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As filed with the Securities and Exchange Commission on September 7, 1995
Registration No. 33-43619
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
___________________
USA WASTE SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 73-1309529
(State or other jurisdiction (I.R.S. Employer
incorporation or organization) Identification No.)
5000 QUORUM DRIVE, SUITE 300
DALLAS, TEXAS 75240
(Address of principal executive offices)
1990 STOCK OPTION PLAN
(Full title of the plan)
GREGORY T. SANGALIS
USA WASTE SERVICES, INC.
5000 QUORUM DRIVE, SUITE 300
DALLAS, TEXAS 75240
(214) 233-4212
(Name, address and telephone number of agent for service)
Copies to:
JOHN T. UNGER
SNELL & SMITH, A PROFESSIONAL CORPORATION
1000 LOUISIANA, SUITE 3650
HOUSTON, TEXAS 77002
___________________
THIS POST-EFFECTIVE AMENDMENT IS BEING FILED PURSUANT TO RULE 414 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), BY USA WASTE SERVICES,
INC., A DELAWARE CORPORATION ("USA WASTE DELAWARE"), AS SUCCESSOR TO USA WASTE
SERVICES, INC., AN OKLAHOMA CORPORATION. USA WASTE DELAWARE HEREBY EXPRESSLY
ADOPTS THIS REGISTRATION STATEMENT ON FORM S-8 (FILE NO. 33-43619) AS ITS OWN
REGISTRATION STATEMENT FOR ALL PURPOSES OF THE ACT AND THE SECURITIES EXCHANGE
ACT OF 1934.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in the registration
statement:
(a) The registrant's latest annual report on Form 10-K, or, if the
financial statements therein are more current, the registrant's latest
prospectus, other than the prospectus of which this document is a part, filed
pursuant to rule 424(b) or (c) of the Securities Exchange Commission under the
Securities Act of 1933.
(b) All other reports filed by the registrant pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of the
fiscal year covered by the annual report or the prospectus referred to in (a)
above.
(c) The descriptions of the registrant's Common Stock which are
contained in the registrant's registration statement filed under Section 12 of
the Securities Exchange Act of 1934, including any amendment or reports filed
for the purpose of updating such descriptions.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment to the registration statement which
indicates that all of the shares of common stock offered have been sold or
which deregisters all of such shares then remaining unsold, shall be deemed to
be incorporated by reference in the registration statement and to be a part
hereof 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 contained herein or in any other subsequently
filed document which also is or is deemed to be 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
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law provides that
the certificate of incorporated of a Delaware corporation may contain a
provision eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision shall not eliminate or limit
the liability of a director: (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involved intentional misconduct or a knowing violation
of law, (iii) under Section 174 of this title, or (iv) for any transaction from
which the director derived an improper personal benefit. No such provision
shall eliminate or limit the liability of a director for any act or omission
occurring prior to the date when such provision becomes effective.
The Certificate of Incorporation of the registrant includes the following
provisions:
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Seventh: No director of the Corporation shall be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided that this provision shall not
eliminate or limit the liability of a director for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the General Corporation Law of Delaware or (iv) for any
transaction from which the director derived an improper personal benefit.
If the General Corporation Law of Delaware hereafter is amended to
authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Corporation, in
addition to the limitation on personal liability provided herein, shall
be limited to the fullest extent permitted by the amended General
Corporation Law of Delaware. Any repeal or modification of this
paragraph by the stockholders of the Corporation shall be prospective
only, and shall not adversely affect any limitation on the personal
liability of a director of the Corporation existing at the time of such
repeal or modification. Neither this Restated Certificate of
Incorporation nor any amendment, alteration, or repeal of this Article,
nor the adoption of any provision of the Restated Certificate of
Incorporation inconsistent with this Article, shall adversely effect,
eliminate, or reduce any right or protection of a director of the
Corporation hereunder with respect to any act, omission or matter
occurring, or any action, suit, or claim that, but for this Article,
would accrue or arise, prior to the time of such amendment, modification,
repeal, or adoption of an inconsistent provision. All references in this
Article to a "director" shall also be deemed to refer to such person or
persons, if any, who pursuant to a provision of the Restated Certificate
of Incorporation in accordance with subsection (a) of Section 141 of the
Delaware General Corporation Law, exercise or perform any of the powers
or duties otherwise conferred or imposed upon the board of directors by
the Delaware General Corporation Law.
Section 145 of the Delaware General Corporation Law provides as follows:
145. INDEMNIFICATION OF OFFICERS DIRECTORS, EMPLOYEES AND AGENTS;
INSURANCE. -- (a) A corporation may indemnify any person 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), by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person 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 he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees), actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall 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 or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
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(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsection (a) or (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees), actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under the provisions of subsection (a) or (b)
of this section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in subsection (a) or (b) of this section. Such determination shall be made (1)
by a majority vote of directors who were not parties to such action suit or
proceeding even though less than a quorum, or (2) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized by the provisions of this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of directors deems
appropriate.
(f) The indemnification and advancement of expense provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was servicing at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so
that any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this section with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services, by such director, officer, employee,
or agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
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(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section, unless otherwise provided when authorized or
ratified, shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise. The Court of Chancery
may summarily determine a corporation's obligation to advance expenses
(including attorneys' fees).
The Certificate of Incorporation of the registrant includes the following
provision:
Eighth: This Corporation shall, to the maximum extent permitted from
time to time under the law of the State of Delaware, indemnify and upon
request shall advance expenses to any person who is or was a party or is
threatened to be made a party to any threatened, pending or completed
action, suit, proceeding or claim, whether civil, criminal,
administrative or investigative, by reason of the fact that such person
is or was or has agreed to be a director or officer of this Corporation
or any of its direct or indirect subsidiaries or while such a director or
officer is or was serving at the request of this Corporation as a
director, officer, partner, trustee, employee or agent of any
corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against
expenses (including attorney's fees and expenses), judgments, fines,
penalties and amounts paid in settlement incurred in connection with the
investigation, preparation to defend or defense of such action, suit,
proceeding or claim; provided, however, that the foregoing shall not
require this Corporation to indemnify or advance expenses to any person
in connection with any action, suit, proceeding, claim or counterclaim
initiated by or on behalf of such person. Such indemnification shall not
be exclusive of other indemnification rights arising under any bylaws,
agreement, vote of directors or stockholders or otherwise and shall inure
to the benefit of the heirs and legal representatives of such person.
Any person seeking indemnification under this Article shall be deemed to
have met the standard of conduct required for such indemnification unless
the contrary shall be established.
The Bylaws of the registrant include indemnification provisions that
generally provide indemnification to directors and officers of the registrant
in the manner and to the extent permitted by Section 145 of the Delaware
General Corporation Law. However, the provisions corresponding to subsections
145(a) and (b) are mandatory rather than permissive.
The registrant has entered into Indemnification Agreements with each 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 judgments, 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.
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ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation [Incorporated by
reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-4, file No. 33-60103].
4.2 Bylaws [Incorporated by reference to Exhibit 3.2 of the
Registrant's Registration Statement on Form S- 4, File No.
33-60103].
4.3 Specimen Stock Certificate [Incorporated by reference to
Exhibit 3.2 of the Registrant's Registration Statement on Form
8-A, File No. 0-17034, Reference No. 88-15-2847].
*4.4 USA Waste Services, Inc. 1990 Stock Option Plan [Incorporated
by reference to Exhibit 10.1 to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1990].
*5.1 Opinion of Butler & Binion.
*24.1 Consent of Butler & Binion (Contained in Exhibit 5.1).
24.2 Consent of Coopers & Lybrand L.L.P. [Incorporated by reference
to Exhibit 23.1 to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1994 and Exhibit 23.2 to the
Registrant's Current Report on Form 8-K dated June 30, 1995].
24.3 Consent of Deloitte & Touche LLP [Incorporated by reference to
Exhibit 23.2 to the Registrant's Registration Statement on
Form S-4 (File No. 33-59259) and Exhibit 23.1 to the
Registrant's Current Report on Form 8-K dated June 30, 1995].
25 Powers of Attorney (Included on Page II-7).
- --------------------
* Previously filed.
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.
(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;
(iii) 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;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii)
shall not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 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
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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.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security holders that
is incorporated by reference and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(f) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "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
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim or 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 pinion 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 Act and will be governed by the final adjudication of such
issue.
Pursuant to 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 duly caused this
registration statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in Dallas, State of Texas on
September 7, 1995.
USA Waste Services, Inc.
By: /s/ Earl E. DeFrates
------------------------------------
Earl E. DeFrates, Vice President -
Finance and Chief Financial Officer
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POWER OF ATTORNEY
We, the undersigned officers and director of USA Waste Services, Inc.,
hereby severally constitute 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 singly, to sign for us and in our names, in the capacities indicated
below, the Registration Statement on Form S-8 (File No.33-43619) filed herewith
and any amendments to said Registration Statement, and generally to do all such
things in our name and behalf in our capacities as officers and directors to
enable USA Waste Services, Inc. to comply with the provisions of the Securities
Act of 1933 as amended, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be
signed by our said attorneys, or any of them, to said Registration Statement
and any and all amendments thereto.
Witness our hands on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed by the following
persons in the capacities on September 7, 1995
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ John E. Drury Chairman of the Board and
- ------------------------------ Chief Executive Officer
John E. Drury
/s/ Donald F. Moorehead, Jr. Vice Chairman of the Board and
- ------------------------------ Chief Development Officer
Donald F. Moorehead, Jr.
/s/ John G. Rangos, Sr. Vice Chairman of the Board
- ------------------------------
John G. Rangos, Sr.
/s/ David Sutherland-Yoest President and Chief Operating
- ------------------------------ Officer and Director
David Sutherland-Yoest
/s/ Earl E. DeFrates Executive Vice President and
- ------------------------------ Chief Financial Officer
Earl E. DeFrates
/s/ Bruce E. Snyder Vice President and Corporate
- ------------------------------ Controller (Chief Accounting
Bruce E. Snyder Officer)
/s/ Alexander W. Rangos Executive Vice President -
- ------------------------------ Development and Director
Alexander W. Rangos
/s/ George L. Ball Director
- ------------------------------
George L. Ball
/s/ Richard J. Heckmann Director
- ------------------------------
Richard J. Heckmann
/s/ William E. Moffett Director
- ------------------------------
William E. Moffett
/s/ Peter J. Gibbons Director
- ------------------------------
Peter J. Gibbons
</TABLE>
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