AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 15, 1997
REGISTRATION NO. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MERCURY WASTE SOLUTIONS, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA
(State or other jurisdiction of incorporation)
41-1827776
(IRS Employer Identification No.)
302 NORTH RIVERFRONT DRIVE, SUITE 100A
MANKATO, MINNESOTA 56001
(Address of principal executive offices)
STOCK OPTION PLAN
(Full title of Plan)
BRADLEY J. BUSCHER
MERCURY WASTE SOLUTIONS, INC.
302 NORTH RIVERFRONT DRIVE, SUITE 100A
MANKATO, MINNESOTA 56001
(507) 345-0522
(Name, address and telephone number of agent for service)
Copies to:
RUSSELL F. LEDERMAN, ESQ.
SHAWN R. MCINTEE, ESQ.
MASLON EDELMAN BORMAN & BRAND,
A PROFESSIONAL LIMITED LIABILITY PARTNERSHIP
3300 NORWEST CENTER
MINNEAPOLIS, MN 55402-4140
(612) 672-8200
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED(1) PER SHARE (1)(2) OFFERING PRICE (2) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (no 185,500 $4.8125 $892,718.75 $270.52
par value per share) shares
</TABLE>
(1) Estimated solely for purposes of computing the registration fee in
accordance with Rule 457(h) and based upon the average of the high and
low prices of the Common Stock on the NASDAQ SmallCap Market on May 12,
1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the registrant with the Securities and
Exchange Commission are incorporated herein by reference and made a part hereof:
(a) The contents of the Registration Statement on Form SB-2 No.
333-17399, filed on February 28, 1997, as amended.
(b) The contents of the Registrant's Form 10-QSB for the first
quarter ended March 31, 1997.
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 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
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
There are no preemptive, subscription, conversion or redemption rights
pertaining to the Common Stock. The absence of preemptive rights could result in
a dilution of the interest of existing shareholders should additional shares of
Common Stock be issued. Holders of the Common Stock are entitled to receive such
dividends as may be declared by the registrant's Board of Directors out of
assets legally available therefore, and to share ratably in the assets of the
registrant available upon liquidation. The Company's Board of Directors does not
intend to declare dividends and presently intends to return all earnings, if
any, for use in the Company's business for the foreseeable future.
The Company's authorized capital stock consists of 50,000,000
undesignated shares, $.01 par value per share.
Each share of Common Stock is entitled to one vote for all purposes and
cumulative voting is not permitted in the election of directors. Accordingly,
the holders of more than 50% of all of the outstanding shares of Common Stock
can elect all of the directors. Significant corporate transactions such as
amendments to the articles of incorporation, mergers, sales of assets and
dissolution or liquidation require approval by the affirmative vote of the
majority of the outstanding shares of Common Stock. Other matters to be voted
upon by the holders of Common Stock normally require the affirmative vote of a
majority of the shares present at the particular shareholders' meeting. The
Company's directors and officers as a group beneficially own approximately 68%
of the outstanding Common Stock of the Company. Accordingly, such persons will
continue to be able to substantially control the Company's affairs, including,
without limitation, the sale of equity or debt securities of the Company, the
appointment of officers, the determination of officers' compensation and the
determination whether to cause a registration statement to be filed.
The rights of holders of the shares of Common Stock may become subject
in the future to prior and superior rights and preferences in the event the
registrant's Board of Directors establishes one or more additional classes of
Common Stock, or one or more additional series of Preferred Stock. The
registrant's Board of Directors has no present plan to establish any such
additional class or series.
The registrant is governed by the provisions of Sections 302A.671 and
302A.673 of the Minnesota Business Corporation Act. In general, Section 302A.671
provides that the shares of a corporation acquired in a "control share
acquisition" have no voting rights unless voting rights are approved in a
prescribed manner. A "control share acquisition" is an acquisition, directly or
indirectly, of beneficial ownership of shares that would, when added to all
other shares beneficially owned by the acquiring person, entitle the acquiring
person to have voting power of 20% or more in the election of directors. In
general, Section 302A.673 prohibits a publicly-held Minnesota corporation from
engaging in a "business combination" with an "interested shareholder" for a
period of four years after the date of the transaction in which the person
became an interested shareholder, unless the business combination is approved in
a prescribed manner. "Business combination" includes mergers, asset sales and
other transactions resulting in a financial benefit to the interested
shareholder. An "interested shareholder" is a person who is the beneficial
owner, directly or indirectly, of 10% or more of the corporation's voting stock
or who is an affiliate or associate of the corporation and at any time within
four years prior to the date in question was the beneficial owner, directly or
indirectly, of 10% or more of the corporation's voting stock.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant is governed by Minnesota Statutes Chapter 302A.
Minnesota Statutes Section 302A.521 provides that a corporation shall indemnify
any person made or threatened to be made a party to any proceeding by reason of
the former or present official capacity of such person against judgments,
penalties, fines, including, without limitation, excise taxes assessed against
such person with respect to an employee benefit plan, settlements, and
reasonable expenses, including attorney's fees and disbursements, incurred by
such person in connection with the proceeding, if, with respect to the acts or
omissions of such person complained of in the proceeding, such person has not
been indemnified by another organization or employee benefit plan for the same
expenses with respect to the same acts or omissions; acted in good faith;
received no improper personal benefit and Section 302A.255, if applicable, has
been satisfied; in the case of a criminal proceeding, had no reasonable cause to
believe the conduct was unlawful; and in the case of acts or omissions by
persons in their official capacity for the corporation, reasonably believed that
the conduct was in the best interests of the corporation, or in the case of acts
or omissions by persons in their capacity for other organizations, reasonably
believed that the conduct was not opposed to the best interests of the
corporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Articles of Incorporation of the registrant (incorporated
herein by reference as Exhibit 3.1 to the registrant's
Registration Statement on Form SB-2 (Registration No.
333-17399))
4.2 Bylaws of the Company (incorporated herein by reference as
Exhibit 3.2 to the Company's Registration Statement on Form
SB-2 (Registration No. 333-17399)).
5. Opinion of Maslon Edelman Borman & Brand, P.L.L.P.
23.1 Consent of McGladrey & Pullen, LLP
23.2 Consent of Maslon Edelman Borman & Brand, P.L.L.P. (contained
in Exhibit 5).
24. Power of Attorney (included on Page 5).
ITEM 9. UNDERTAKINGS.
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;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any additional or changed material
information on the plan of distribution;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(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.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has authorized this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Minneapolis, State of Minnesota, on April 29, 1997.
MERCURY WASTE SOLUTIONS, INC.
By /s/ Bradley J. Buscher
Bradley J. Buscher
Chairman of the Board, Chief Executive
Officer and Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Bradley J. Buscher or Russell F. Lederman, each or either of them, such person's
true and lawful attorney-in-fact and agent with full power of substitution and
resubstitution for such person and in such person's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
necessary or desirable to be done in and about the premises, as fully to all
intents and purposes as such person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his substitute or substitutes, April
lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates stated.
Signature Title Date
/s/ Bradley J. Buscher Chairman of the Board, April 29, 1997
Bradley J. Buscher Chief Executive Officer and
Chief Financial Officer
/s/ Mark G. Edlund President, Secretary April 29, 1997
Mark G. Edlund Treasurer and Director
/s/ Alan R. Geiwitz Director April 29, 1997
Alan R. Geiwitz
/s/ Joel H. Gottesman Director April 29, 1997
Joel H. Gottesman
/s/ Robert L. Etter Director April 29, 1997
Robert L. Etter
/s/ Frank L. Farrar Director April 29, 1997
Frank L. Farrar
EXHIBITS
Exhibit Number Description of Exhibit Page No.
5. Opinion of Maslon Edelman Borman & Brand, P.L.L.P. 7
23.1 Consent of McGladrey & Pullen, LLP 8
23.2 Consent of Maslon Edelman Borman & Brand, P.L.L.P.
(contained in Exhibit 5). 7
24. Power of Attorney (included on Signature page). 5
Exhibit 5
May 13, 1997
Mercury Waste Solutions, Inc.
302 North Riverfront Drive, Suite 100A
Mankato, Minnesota 56001
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted on behalf of Mercury Waste Solutions, Inc. (the
"Company") in connection with a Registration Statement on Form S-8 filed by the
Company with the Securities and Exchange Commission (the "Registration
Statement"), relating to 185,500 shares of Common Stock, $.01 par value (the
"Shares") to be issued by the Company pursuant to the terms of the Company's
Stock Option Plan (the "Plan"). Upon examination of such corporate documents and
records as we have deemed necessary or advisable for the purposes hereof and
including and in reliance upon certain certificates by the Company, it is our
opinion that:
1. The Company is a validly existing corporation in good standing under
the laws of the State of Minnesota.
2. The Shares, when issued and paid for as contemplated by the Plan,
and when delivered against payment therefor in the manner contemplated by the
Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Maslon Edelman Borman & Brand,
A PROFESSIONAL LIMITED LIABILITY PARTNERSHIP
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report, dated January 22, 1997, which appears on
page F-2 of the Registration Statement on Form SB-2 relating to the financial
statements of Mercury Waste Solutions, Inc. for the year ended December 31,
1996.
MCGLADREY & PULLEN, LLP
Minneapolis, Minnesota
May 14, 1997
