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As filed with the Securities and Exchange Commission on December 31, 1998
Registration No. 333-64239
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8
TO FORM S-4 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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WASTE MANAGEMENT, INC.
(Exact name of Registrant as specified in its charter)
Delaware 73-1309529
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1001 Fannin Street
Suite 4000
Houston, Texas 77002
(713) 512-6200
(Address, including zip code, and telephone number, including area
code of Registrant's principal executive offices)
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Eastern Environmental Services, Inc. 1997 Stock Option Plan;
Eastern Environmental Services, Inc.
Amended and Restated 1996 Stock Option Plan;
Eastern Environmental Services, Inc. 1991 Stock Option Plan
(Full titles of the Plans)
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Gregory T. Sangalis
Waste Management, Inc.
1001 Fannin Street
Suite 4000
Houston, Texas 77002
(713) 512-6200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
This Post-Effective Amendment on Form S-8 to Form S-4 Registration Statement
relates to 781,056 shares of Common Stock, par value $.01 per share (the "Common
Stock"), of Waste Management, Inc. (the "Registrant"). Such shares are issuable
to holders of outstanding options to purchase shares of Common Stock, par value
$0.01 per share, of Eastern Environmental Services, Inc. ("Eastern"), a
wholly-owned subsidiary of the Registrant, which options were assumed by the
Registrant upon the effective time of the merger of a subsidiary of the
Registrant with and into Eastern (the "Merger") on December 31, 1998. These
shares of Common Stock were originally registered on the Registrant's
Registration Statement on Form S-4 to which this is an amendment; accordingly,
the registration fee in respect of such Common Stock was paid at the time of the
original filing of the Registration Statement relating to such Common Stock.
EXPLANATORY NOTE
Pursuant to an Agreement and Plan of Merger, dated as of
August 16, 1998 (the "Merger Agreement"), by and among the Registrant, Eastern
Environmental Services, Inc. ("Eastern") and Ocho Acquisition Corporation
("Merger Sub"), among other things, (i) Merger Sub merged with and into Eastern,
with Eastern continuing as the surviving corporation, (ii) each share of common
stock, par value $0.01 per share, of Eastern ("Eastern Common Stock") issued and
outstanding immediately prior to the effective time of the Merger (the
"Effective Time") was converted into the right to receive 0.6406 of a share of
common stock, par value $.01 per share, of the Registrant ("Registrant Common
Stock"), and (iii) at the Effective Time, shares of Registrant Common Stock,
rather than shares of Eastern Common Stock, became issuable pursuant to the
following plans: Eastern Environmental Services, Inc. 1997 Stock Option Plan;
Eastern Environmental Services, Inc. Amended and Restated 1996 Stock Option Plan
and the Eastern Environmental 1991 Stock Option Plan (the "Eastern Plans").
The Registrant hereby amends its Registration Statement on
Form S-4 (No. 333-64239), filed with the Securities and Exchange Commission on
September 29, 1998, by filing this Post-Effective Amendment No. 1 on Form S-8
relating to 781,056 shares of Registrant Common Stock issuable upon the exercise
of options to acquire or receive shares of Registrant Common Stock pursuant to
the provisions of the Eastern Plans.
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Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the "Note" to
Part I of Form S-8.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Registrant (formerly known as USA Waste
Services, Inc.) are hereby incorporated by reference into this Registration
Statement:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
(b) Quarterly Report on Form 10-Q for the quarters ended March
31, 1998, June 30, 1998 (as amended on Form 10-Q/A filed on August 28,
1998) and September 30, 1998.
(c) Current Reports on Form 8-K dated March 12, 1998; July 16,
1998; July 17, 1998 (as amended on Form 8-K/A filed on August 12,
1998); August 17, 1998; September 22, 1998; September 23, 1998 and
October 8, 1998.
(d) The description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form 8-A filed with the
Commission pursuant to Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on July 1, 1993, as amended on
Form 8-B filed with the Commission on July 13, 1995.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part thereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law ("DGCL")
allows a corporation to eliminate the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except in cases where the director breached his or her duty
of loyalty to the corporation or its stockholders, failed to act in good faith,
engaged in intentional misconduct or a knowing violation of the law, willfully
or negligently authorized the unlawful payment of a dividend or approved an
unlawful stock redemption or repurchase or obtained an improper personal
benefit. The Registrant's Restated Certificate of Incorporation (the "Charter")
contains a provision which eliminates directors' personal liability as set forth
above.
The Charter and the Bylaws of the Registrant provide in effect
that the Registrant shall indemnify its directors and officers, and may
indemnify its employees and agents, to the extent permitted by the DGCL. Section
145 of the DGCL provides that a Delaware corporation has the power to indemnify
its directors, officers, employees and agents in certain circumstances.
Subsection (a) of Section 145 of the DGCL empowers a
corporation to indemnify any director, officer, employee or agent, or former
director, officer, employee or agent who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation), against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with such action, suit or proceeding provided
that such director, officer, employee or agent acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided that such director, officer, employee or agent had no
reasonable cause to believe that his or her conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a
corporation to indemnify any director, officer, employee or agent, or former
director, officer, employee or agent, who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that such person acted in any of the capacities set forth above, against
expenses (including attorney's fees), actually and reasonably incurred in
connection with the defense or settlement of such action or suit provided that
such person acted in good faith and in a manner he or she reasonable believed to
be in or not opposed to the best interest of the corporation, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery shall determine that despite the
adjudication of liability such person is fairly and reasonable entitled to
indemnity for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that, to the extent
that a director or officer of a corporation has been successful in the defense
of any action, suit or proceeding referred to in subsections (a) and (b) of
Section 145 of the DGCL or in the defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses (including attorneys' fees)
actually and reasonable incurred by him or her in connection therewith; that
indemnification provided by Section 145 of the DGCL shall not be deemed
exclusive of any other rights to which the party seeking indemnification may be
entitled; and the corporation is empowered to purchase and maintain insurance on
behalf of a director, officer, employee
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or agent of the corporation against any liability asserted against him or her or
incurred by him or her in any such capacity or arising out of his or her status
as such whether or not the corporation would have the power to indemnify him or
her against such liabilities under Section 145 of the DGCL; and that, unless
indemnification is ordered by a court, the determination that indemnification
under subsections (a) and (b) of Section 145 of the DGCL is proper because the
director, officer, employee or agent has met the applicable standard of conduct
under such subsections shall be made to a person who is or director or officer
at the time or such determination (1) by a majority vote of the directors who
are not parties to such action, suit or proceeding, even though less than a
quorum, or (2) by a committee of such directors designated by majority vote of
such directors, even though less than a quorum, or (3) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (4) by the stockholders.
The Registrant has purchased certain liability insurance for
its officers and directors as permitted by Section 145(g) of the DGCL.
The Registrant has entered into Indemnification Agreements
with certain of its directors and executive officers. Such Indemnification
Agreements provide that such persons (the "Indemnitees") will be indemnified and
held harmless from all expenses, including (without limitation) reasonable fees
and expenses of counsel, and all liabilities, including (without limitation) the
amount of any judgements, fines, penalties, excise taxes and amounts paid in
settlement, actually incurred by an Indemnitee with respect to any threatened,
pending or completed claim, action (including any action by or in the right of
the Registrant), suit or proceeding (whether formal or informal, or civil,
criminal, administrative, legislative, arbitrative or investigative) in respect
of which such Indemnitee is, was or at any time becomes, or is threatened to be
made, a party, witness, subject or target, by reason of the fact that such
Indemnitee is or was a director, officer, agent or fiduciary of the Registrant
or serving at the request of the Registrant as a director, officer, employee,
fiduciary or representative of another enterprise. Such Indemnification
Agreements also provide that the Registrant, if requested to do so by an
Indemnitee, will advance to such Indemnitee, prior to final disposition of any
proceeding, the expenses actually incurred by the Indemnitee subject to the
obligation of the Indemnitee to refund if it is ultimately determined that such
Indemnitee was not entitled to indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
4.1 Eastern Environmental Services, Inc. 1997 Stock Option Plan
(incorporated by reference to Exhibit 10.67 to Eastern's Form
10-Q for the quarter ended December 31, 1997).
4.2 Eastern Environmental Services, Inc. Amended and Restated 1996
Stock Option Plan (incorporated by reference to Exhibit 4 to
Eastern's Registration Statement on Form S-8, File No.
333-28627, filed on June 6, 1997, as subsequently amended on
June 18, 1997).
6
4.3 Eastern Environmental Services, Inc. 1991 Stock Option Plan
(incorporated by reference to Exhibit 10.5 to Eastern's Form
10-K for the Transition Period from July 1, 1997 to December
31, 1997).
4.4 Restated Certificate of Incorporation of Registrant, as
amended (incorporated by reference to Exhibit 3.2 to the
Registrant's Current Report on Form 8-K dated July 16, 1998).
4.5 By-laws (incorporated by reference to Exhibit 3.2 to the
Post-Effective Amendment No. 1 to the Registrant's
Registration Statement on Form S-4, File No. 33-60103).
4.6 Agreement and Plan of Merger (previously filed as Annex A to
the proxy statement/prospectus included in the Registrant's
Registration Statement on Form S-4 (File No. 333-64239) filed
on September 29, 1998).
5.1* Opinion of Shearman & Sterling regarding the legality of the
Common Stock being registered hereby.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Shearman & Sterling (included in Exhibit 5.1).
24 Powers of Attorney (included on signature page).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement
to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended (the "Securities Act"), each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
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* Previously filed.
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(b) The undersigned Registrant hereby further undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant has duly caused this Post-Effective Amendment No. 1 on Form S-8
to Form S-4 Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on the 31st day of December, 1998.
WASTE MANAGEMENT, INC.
(Registrant)
By: /s/ John E. Drury
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John E. Drury
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and executive officers of WASTE
MANAGEMENT, INC., hereby severally constitute John E. Drury, Earl E. DeFrates
and Gregory T. Sangalis and each of them singly, our true and lawful attorneys
with full power to them and each of them to sign for us, and in our names in the
capacities indicated below, any and all amendments to the registration statement
filed with the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys to any and
all amendments to said registration statement.
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 1 on Form S-8 to Form S-4 Registration
Statement has been signed by the following persons in the capacities indicated
on the 31st day of December, 1998.
Signature Title
/s/ John E. Drury
- --------------------------------- Chief Executive Officer and Director
John E. Drury (Principal Executive Officer)
/s/ Rodney R. Proto
- --------------------------------- President, Chief Operating Officer
Rodney R. Proto and Director
/s/ Earl E. DeFrates
- --------------------------------- Executive Vice President and Chief
Earl E. DeFrates Financial Officer (Principal Financial
Officer)
/s/ Bruce E. Snyder
- --------------------------------- Vice President and Chief Accounting
Bruce E. Snyder Officer (Controller/Principal
Accounting Officer)
Signature Title
- --------- -----
- --------------------------------- Director
H. Jesse Arnelle
- --------------------------------- Director
Dr. Pastora San Juan Cafferty
- --------------------------------- Director
Ralph F. Cox
/s/ Richard J. Heckmann Director
- ---------------------------------
Richard J. Heckmann
/s/ Roderick M. Hills Director
- ---------------------------------
Roderick M. Hills
- --------------------------------- Director
Richard D. Kinder
- --------------------------------- Director (Non-Executive Chairman of
Robert S. Miller the Board)
/s/ Paul M. Montrone Director
- ---------------------------------
Paul M. Montrone
/s/ John C. Pope Director
- ---------------------------------
John C. Pope
/s/ Steven G. Rothmeier Director
- ---------------------------------
Steven G. Rothmeier
/s/ Ralph V. Whitworth Director
- ---------------------------------
Ralph V. Whitworth
- --------------------------------- Director
Jerome B. York
10
Exhibit Index
Exhibit No. Description of Document
4.1 Eastern Environmental Services, Inc. 1997 Stock Option Plan
(incorporated by reference to Exhibit 10.67 to Eastern's Form
10-Q for the quarter ended December 31, 1997).
4.2 Eastern Environmental Services, Inc. Amended and Restated 1996
Stock Option Plan (incorporated by reference to Exhibit 4 to
Eastern's Registration Statement on Form S- 8, File No.
333-28627, filed on June 6, 1997, as subsequently amended on
June 18, 1997).
4.3 Eastern Environmental Services, Inc. 1991 Stock Option Plan
(incorporated by reference to Exhibit 10.5 to Eastern's Form
10-K for the Transition Period from July 1, 1997 to December
31, 1997).
4.4 Restated Certificate of Incorporation of Registrant, as
amended (incorporated by reference to Exhibit 3.2 to the
Registrant's Current Report on Form 8-K dated July 16, 1998).
4.5 By-laws (incorporated by reference to Exhibit 3.2 to the
Post-Effective Amendment No. 1 to the Registrant's
Registration Statement on Form S-4, File No. 33-60103).
4.6 Agreement and Plan of Merger (previously filed as Annex A to
the proxy statement/prospectus included in the Registrant's
Registration Statement on Form S-4 (File No. 333-64239) filed
on September 29, 1998).
5.1* Opinion of Shearman & Sterling regarding the legality of the
Common Stock being registered hereby.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Shearman & Sterling (included in Exhibit 5.1).
24 Powers of Attorney (included on signature page).
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference of our report on Waste Management, Inc. dated
September 23, 1998 included in Waste Management, Inc.'s Current Report on Form
8-K dated September 23, 1998 in this Post-Effective Amendment No. 1 on Form S-8
to the Registration Statement on Form S-4 (File No. 333-64239) and related
Prospectus of Waste Management, Inc. and to all references to our Firm included
in or incorporated by reference in this Registration Statement.
/s/ Arthur Andersen LLP
Houston, Texas
December 30, 1998
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Post-Effective Amendment No. 1 on Form S-8 to Form S-4 Registration Statement
under the Securities Act of 1933 (File No. 333-64239), of our report dated March
16, 1998, on our audits of the consolidated financial statements of USA Waste
Services, Inc. (now known as Waste Management, Inc.) as of December 31, 1997 and
1996 and for each of the three years in the period ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Houston, Texas
December 30, 1998