<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 22, 1996
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM S-3
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 OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
5400 LBJ FREEWAY, SUITE 300
DALLAS, TEXAS 75240
(214) 383-7900
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
GREGORY T. SANGALIS
USA WASTE SERVICES, INC.
5400 LBJ FREEWAY, SUITE 300
DALLAS, TEXAS 75240
(214) 383-7900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
JOHN T. UNGER
SNELL & SMITH, P.C.
1000 LOUISIANA, SUITE 3650
HOUSTON, TEXAS 77002
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box.[x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] _____________________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ________________________
If delivery of this prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
================================================================================
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered(1) per share price fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 128,500 shares $ 25.875(1) $3,324,936 $1,146.53
$.01 par value
==========================================================================================================================
</TABLE>
(1) Calculated in accordance with Rule 457(c) on the basis of the closing
price for Common Stock on the New York Stock Exchange on July 17,
1996.
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<PAGE> 2
***************************************************************************
* *
* THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE *
* OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE *
* REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES *
* THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN *
* ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL *
* THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE *
* COMMISSION ACTING PURSUANT TO SUCH SECTION 8(A), MAY DETERMINE. *
* *
***************************************************************************
PROSPECTUS SUBJECT TO COMPLETION, JULY 22, 1996
128,500 SHARES
USA WASTE SERVICES, INC.
COMMON STOCK
This Prospectus relates to 128,500 shares (the "Shares") of the Common
Stock, $.01 par value ("Common Stock"), of USA Waste Services, Inc., a Delaware
corporation (the "Company") offered for the account of the selling shareholders
(the "Selling Shareholders") and their transferees if they wish to sell any of
the Shares in transactions in which they and any broker-dealer through whom the
Shares are sold may be deemed underwriters within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"). See "Selling Shareholders." The
Company will not receive any proceeds from the sale of the Shares sold by the
Selling Shareholders.
The Company anticipates that any sales by the Selling Shareholders and
their transferees will be effected from time to time on the open market in
ordinary brokerage transactions on the New York Stock Exchange (the "NYSE"), on
which the Common Stock is listed, in the over-the-counter market, or in private
transactions, at market prices prevailing at the time of sale or at negotiated
prices. The Shares will be offered for sale on terms to be determined when the
agreement to sell is made or at the time of sale, as the case may be. The
Shares may be offered directly, through agents designated from time to time, or
through brokers or dealers. A member firm of the NYSE may be engaged to act as
a Selling Shareholder's agent in the sale of the Shares by such Selling
Shareholders. The commission paid to the member firm will be the normal stock
exchange commission (including negotiated commissions to the extent
permissible). Sales of Shares by the member firm may be made on the NYSE from
time to time at prices related to prices then prevailing. Any such sales may be
block trades. Any commissions allowed to any broker-dealer, and if any
broker-dealer purchases any of the Shares as principal, any profits received on
the resale of such Shares may be deemed underwriting discounts and commissions
under the Securities Act. See "Manner of Offering."
The Shares of Common Stock offered hereby have been listed on the NYSE.
On July , 1996, the last sale price of the Common Stock on the NYSE was $
per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is July , 1996
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
Available Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain Information by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Description of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Selling Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Manner of Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements, and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy and
information statements, and other information filed by the Company may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza Building, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the regional offices of the Commission located at
7 World Trade Center, Suite 1300, New York, New York 10048 and 500 West
Madison, Suite 1400, Chicago, Illinois 60661-2511. Copies of such material
may be obtained from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates.
The Commission maintains an Internet web site that contains reports, proxy and
information statements, and other information regarding registrants that file
electronically with the Commission (http://www.sec.gov). In addition, the
Company's securities are listed on the New York Stock Exchange (the "NYSE") and
reports, proxy and information statements, and other information concerning the
Company described above may be inspected at the offices of the NYSE at 20 Broad
Street, New York, New York 10005.
This Prospectus constitutes part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company with the Commission under the Securities Act.
This Prospectus omits certain of the information contained in the Registration
Statement, and reference is hereby made to the Registration Statement for
further information with respect to the Company and the Common Stock offered
hereby. Any statements contained herein concerning the provisions of any
document filed as an exhibit to the Registration Statement or otherwise filed
with the Commission are not necessarily complete, and in each instance
reference is made to the copy of such document as filed. Each such statement
is qualified in its entirety by such reference. The Registration Statement,
including exhibits and schedules thereto, may be inspected without charge at
the offices of the Commission, and copies of such materials may be obtained
therefrom at prescribed rates.
2
<PAGE> 4
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission under the
Exchange Act (File No. 1-12154) are incorporated by reference in this
Prospectus: (1) its Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, (2) its Current Report on Form 8-K dated January 9, 1996,
its Current Report on Form 8-K dated May 7, 1996, as amended by its Form 8-K/A
(Amendment No. 1) filed May 29, 1996, its Form 8-K/A (Amendment No. 2) filed
June 28, 1996, and its Form 8-K/A (Amendment No. 3) filed July 1, 1996, and its
Current Report on Form 8-K dated June 22, 1996, (3) its Quarterly Report on Form
10-Q for the quarter ended March 31, 1996, including the supplemental condensed
financial statements of the Company at December 31, 1995, and March 31, 1996 and
for the year ended December 31, 1995 and the three months ended March 31, 1996,
(4) its Joint Proxy Statement and Prospectus for the its Annual Meeting of
Shareholders dated April 2, 1996, (5) its Joint Proxy Statement and Prospectus
for the Special Meeting of Shareholders dated July 19, 1996, and (6) the
description of Common Stock of the Company contained in the Company's
Registration Statement on Form 8-A dated July 1, 1993, as amended by Form 8-B
dated July 13, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14,
or 15(d) of the Exchange Act subsequent to the date of filing of the Company's
Annual Report on Form 10-K referred to above and prior to the termination of
the offering described herein shall be deemed to be incorporated by reference
and to be a part of this Prospectus from the date of filing of such documents.
All information appearing in this prospectus is qualified in its entirety by
the information and financial statements (including the notes thereto)
appearing in the documents incorporated by reference.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for all purposes to the extent
that a statement contained in this Prospectus, or in any other subsequently
filed document which is also incorporated by reference, modifies or replaces
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
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on written or oral request of such person, a copy
(without exhibits) of any and all information incorporated by reference in this
Prospectus. Requests for such copies should be directed to Corporate
Secretary, USA Waste Services, Inc., (i) if by telephone to (214) 383-7900 and
(ii) if by mail to 5400 LBJ Freeway, Suite 300, Dallas, Texas 75240.
3
<PAGE> 5
THE COMPANY
USA Waste is the third largest integrated solid waste management company
in North America and serves municipal, commercial, industrial and residential
customers in 24 states. The Company's solid waste management services include
collection, transfer and disposal operations and, to a lesser extent, recycling
and certain other waste management services. USA Waste owns or operates 39
landfills, 26 transfer stations and 72 collection operations and serves more
than 1.3 million customers.
The Company intends to continue to capitalize on the consolidation in the
solid waste management industry. Key elements of the Company's strategy
include (i) increasing productivity and operating efficiencies in existing and
acquired operations, (ii) increasing revenues and enhancing profitability
through tuck-in acquisitions and (iii) expanding into new markets through
acquisitions. The Company seeks to become the low cost operator in each of its
markets by increasing productivity and operating efficiencies through
implementation of uniform administrative systems, consolidation of collection
routes, improvement of equipment utilization, and increases in employee
productivity through incentive compensation and training programs. The Company
regularly pursues opportunities to expand its services through the acquisition
of additional solid waste management businesses and operations that can be
effectively integrated with the Company's existing operations, and pursues
acquisitions in new markets where the Company believes it can strengthen its
overall competitive position as a national provider of integrated solid waste
management services.
Additional information concerning the Company's business, assets,
management, results of operations, and other matters is included in the
Company's reports filed under the Exchange Act that are incorporated by
reference in this Prospectus, including the Company's Annual Report on Form
10-K for the year ended December 31, 1995, and the Joint Proxy Statement and
Prospectus dated July 19, 1996. See "Incorporation of Certain Information by
Reference."
The term "Company" and "USA Waste" refer to USA Waste Services Inc., a
Delaware corporation, and its subsidiaries and predecessors unless the context
requires otherwise. The Company's executive offices are located at 5400 LBJ
Freeway, Suite 300, Dallas, Texas 75240, and its telephone number is (214)
383-7900.
RECENT DEVELOPMENTS
The Company materially expanded its operations and markets with its
acquisition of Western Waste Industries ("Western") on May 7, 1996 (the
"Western Merger"). With the addition of the Western operations, which include
significant collection operations, the Company significantly increased its
presence in California and added additional operations in Texas, Louisiana,
Florida, Colorado, and Arkansas. Western had 91 municipal and regional
authority contracts and served over 785,000 customers. As part of its business,
Western operated six landfills, three transfer stations, and five recycling
facilities.
On June 22, 1996, the Company entered into an Agreement and Plan of Merger
with Sanifill, Inc., a Delaware corporation ("Sanifill"), providing for, among
other things, the merger (the "Sanifill Merger") of Quatro Acquisition Corp., a
Delaware corporation and wholly-owned subsidiary of the Company with and into
Sanifill and the conversion of each outstanding share of Sanifill common stock
into 1.7 shares of the Company's Common Stock. Upon consummation of the
Sanifill Merger, the Company would issue approximately 54.66 million shares of
Common Stock. Sanifill owns and operates nonhazardous waste disposal,
treatment, collection, transfer and recycling businesses and complimentary
operations. Since it was founded in 1989, Sanifill has completed the
acquisition of 140 disposal, collection and related businesses. As of March
31, 1996, Sanifill operated 50 disposal and treatment facilities, 25 transfer
stations, and 36 collection operations. In addition, Sanifill provides sludge
treatment and organic recycling services. Additional information concerning
Sanifill is included in Sanifill's reports filed under the Exchange Act that
are incorporated by reference in the Joint Proxy Statement and Prospectus dated
July 15, 1996. See "Available Information" and "Incorporation of Certain
Information by reference."
4
<PAGE> 6
RISK FACTORS
In addition to the other information set forth in this Prospectus, the
following factors should be considered by prospective investors when evaluating
an investment in the Common Stock of the Company.
FORWARD-LOOKING STATEMENTS MAY NOT PROVE ACCURATE
When used or incorporated by reference in this Prospectus, the words
"anticipate," "estimate," "project" and similar expressions are intended to
identify forward-looking statements. Such statements are subject to certain
risks, uncertainties and assumptions. Should one or more of these risks or
uncertainties materialize, or should underlying assumptions prove incorrect,
actual results may vary materially from those anticipated, estimated or
projected.
Among the key factors that have a direct bearing on the Company's ability
to attain its goals are the level and nature of competition from other waste
companies, evaluation of the current regulatory environment and the costs
associated with such regulations, the availability of attractive acquisition
opportunities, successful integration of acquired businesses, improvement of
operating efficiencies, availability of working capital, ability to maintain
margins and the management of costs in a changing regulatory environment. The
Company has also made certain assumptions relating to the outcome of various
commercial, legal and regulatory proceedings relating to the Company's
operations and the industry generally. These and other risk factors are
discussed below.
EXPECTED BENEFITS OF SANIFILL MERGER MAY NOT BE ACHIEVED
There can be no assurance that if the Sanifill Merger is consummated, the
expected benefits of the Sanifill Merger relative to the combined business as
described in the Joint Proxy Statement and Prospectus dated July 15, 1996 under
"The Merger and Related Transactions -- USA Waste's Reasons for the Merger" and
"The Merger and Related Transactions -- Sanifill's Reasons for the Merger" will
be achieved. Whether the anticipated benefits of the Merger are ultimately
achieved will depend on a number of factors, including the ability of the
combined companies to achieve administrative cost savings, rationalization of
collection routes, insurance and bonding cost reductions, general economies of
scale and, generally, to capitalize on the combined asset base and strategic
position of the combined entity.
NO ASSURANCE OF SUCCESSFUL MANAGEMENT AND MAINTENANCE OF GROWTH
The Company has experienced rapid growth, primarily through acquisitions.
The Company's financial results and prospects depend in large part on its
ability to successfully manage and improve the operating efficiencies and
productivity of these acquired operations. In particular, there can be no
assurance that the Company will be able to successfully integrate the operations
of Western, the Company's most recent large acquisition, or that the Company
will be able to successfully integrate the operations of Sanifill if the
Sanifill Merger is consummated. Moreover, the ability of the Company to
continue to grow will depend on a number of factors, including competition from
other waste management companies, availability of attractive acquisition
opportunities, availability of working capital, ability to maintain margins and
the management of costs in a changing regulatory environment. The Company is
continually seeking acquisition opportunities and believes that there exists a
substantial number of potentially attractive consolidation opportunities in the
solid waste management industry. The Company may pursue significant
acquisitions if they can be achieved on acceptable terms. There can be no
assurance that the Company will be able to continue to expand and successfully
integrate operations.
NEED FOR CAPITAL; DEBT FINANCING
The long-term debt of the Company (including Western), including current
maturities, as of March 31, 1996, was approximately $488 million and on a pro
forma basis including Sanifill was approximately $86 million. The Company
expects to require additional capital from time to time to pursue its
acquisition strategy and to fund internal growth. A portion of the Company's
future capital requirements may be provided through future debt incurrences or
issuances of equity securities. Future events or conditions that could
adversely affect the Company's operations or financial condition may prevent
the Company from fulfilling its obligations under its debt agreements or may
limit the Company's ability to incur additional indebtedness or issue equity
securities.
In addition, approximately $363 million of the Company's existing
indebtedness at March 31, 1996, and approximately $52 million of Sanifill's
existing indebtedness at March 31, 1996, is priced at variable interest rates
that fluctuate as general interest rates change. As a result, an increase in
interest rates could adversely impact the Company's future earnings.
5
<PAGE> 7
PROFITABILITY MAY BE AFFECTED BY COMPETITION
The waste management industry is highly competitive and requires
substantial capital resources. The industry consists of a few large national
waste management companies as well as numerous local and regional companies of
varying sizes and financial resources. The largest national waste management
companies have significantly greater financial resources than the Company.
Competition may also be affected by the increasing national emphasis on
recycling, composting, incineration, and other waste reduction programs that
could reduce the volume of solid waste collected or deposited in landfills.
POTENTIAL ADVERSE EFFECT OF GOVERNMENT REGULATIONS
The Company's operations are subject to, and substantially affected by,
extensive federal, state and local laws, regulations, orders and permits, which
govern environmental protection, health and safety, zoning and other matters.
These regulations may impose restrictions on the Company's operations that
could adversely affect the Company's results, such as limitations on the
expansion of disposal facilities, limitations on or banning disposal of
out-of-state waste or certain categories of waste, or mandates regarding the
disposal of solid waste. Because of heightened public concern, companies in
the waste management business, including the Company, may become subject to
judicial and administrative proceedings involving federal, state or local
agencies. These governmental agencies may seek to (i) impose fines on the
Company, (ii) revoke or deny renewal of the Company's operating permits or
licenses for violations of environmental laws or regulations, or (iii) require
remediation of environmental problems at its sites or nearby properties, or
resulting from transportation or predecessors' transportation and collection
operations, all of which could have a material adverse effect on the Company.
Liability may also arise from actions brought by individuals or community
groups in connection with the permitting or licensing of its operations, any
alleged violations of such permits and licenses, or other matters.
POTENTIAL ENVIRONMENTAL LIABILITY
The Company is subject to liability for environmental damage that its
landfills, transfer stations and collection operations have caused or may cause
nearby landowners, particularly as a result of the contamination of drinking
water sources or soil, including damage resulting from conditions existing
prior to the acquisition of such assets or operations by the Company.
Liability may also arise from any off-site environmental contamination caused
by pollutants or hazardous substances the transportation, treatment or disposal
of which was arranged for by the Company or the predecessor owner of operations
or assets acquired by the Company. Any substantial liability for environmental
damage could materially adversely affect the Company's operating results and
financial condition.
SHARES ELIGIBLE FOR FUTURE SALE MAY ADVERSELY AFFECT MARKET PRICE STOCK
Sales of substantial amounts of Common Stock in the public market could
adversely affect the market price of such stock. The Company recently filed a
shelf registration statement for the benefit of certain stockholders relating
to 4 million shares of the Company's Common Stock. In connection with the
proposed Sanifill Merger, the Company entered into an agreement with these
stockholders that provides that if the number of shares of Common Stock so
registered falls below 2 million shares, such stockholders shall be entitled at
their request to have the Company register additional shares of Common Stock;
provided that at no time shall more than 4 million shares of Common Stock be
registered. All of the initial 4 million shares of Common Stock remain
available to be sold pursuant to such registration statement. Such shares are
immediately saleable in the open market. In addition, the Company has a shelf
registration statement covering approximately 2.5 million shares of Common
Stock that may be used for acquisitions. In the event that the market price of
Common Stock were adversely affected by such sales, the Company's access to
equity capital markets could be adversely affected, and issuances of stock by
the Company in connection with acquisitions, or otherwise, could dilute
earnings per share.
6
<PAGE> 8
USE OF PROCEEDS
This Prospectus relates to an aggregate of 128,500 shares of Common Stock
that are being offered for the account of the Selling Shareholders. All
proceeds from the sale of such shares will go to the Selling Shareholders.
DESCRIPTION OF CAPITAL STOCK
The Company is authorized to issue 150,000,000 shares of Common Stock, par
value $0.01 per share, of which 87,529,268 shares were outstanding at March 31,
1996. The Company is also authorized to issue 10,000,000 shares of Preferred
Stock, $.01 par value (the "Preferred Stock"), none of which are outstanding. In
connection with the proposed Sanifill Merger, the Company has submitted a
proposal to its stockholders to increase the authorized number of shares of
Common Stock from 150,000,000 to 300,000,000 shares.
Common Stock
Each holder of Common Stock is entitled to one vote per share held of
record on each matter submitted to shareholders. Cumulative voting for the
election of directors is not permitted, and the holders of a majority of shares
voting for the election of directors can elect all members of the Board of
Directors.
Subject to the rights of any holders of Preferred Stock, holders of record
of shares of Common Stock are entitled to receive ratably dividends when and if
declared by the Board of Directors out of funds of the Company legally
available therefor. In the event of a voluntary or involuntary winding up or
dissolution, liquidation, or partial liquidation of the Company, holders of
Common Stock are entitled to participate ratably in any distribution of the
assets of the Company, subject to any prior rights of holders of any
outstanding Preferred Stock.
Holders of Common Stock have no conversion, redemption, or preemptive
rights. All outstanding shares of Common Stock are, and the Shares offered
hereby will be, upon issuance and sale, validly issued, fully paid, and
nonassessable.
PREFERRED STOCK
The Board of Directors is authorized, without further approval of the
shareholders, to issue the Preferred Stock in series and with respect to each
series, to fix its designations, relative rights (including voting, dividend,
conversion, sinking fund, and redemption rights), preferences (including with
respect to dividends and upon liquidation), privileges, and limitations. The
Board of Directors of the Company, without shareholder approval, may issue
Preferred Stock with voting and conversion rights, both of which could
adversely affect the voting power of the holders of Common Stock, and dividend
or liquidation preferences that would restrict Common Stock dividends or
adversely affect the assets available for distribution to holders of shares of
Common Stock upon the Company's dissolution.
AUTHORIZED BUT UNISSUED SHARES
Authorized but unissued shares of Common Stock or Preferred Stock can be
reserved for issuance by the Board of Directors from time to time without
further shareholder action for proper corporate purposes, including stock
dividends or stock splits, raising equity capital, and structuring future
corporate transactions, including acquisitions.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is Boston Equiserv,
Boston, Massachusetts.
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<PAGE> 9
LIMITATION OF LIABILITY AND INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Certificate of Incorporation of the Company provides that the
directors of the Company shall not be liable to the Company or its shareholders
for monetary damages for breach of fiduciary duty as a director to the fullest
extent permitted by the Delaware General Corporation Law (the "DGCL"). The
foregoing limitation does not eliminate or limit the liability of a director
for any breach of a director's duty of loyalty to the Company or its
shareholders, for acts or omissions not in good faith or which involved
intentional misconduct or a knowing violation of law, for any transaction from
which the director derived an improper personal benefit, or for approval of the
unlawful payment of a dividend or an unlawful stock purchase or redemption. The
Certificate of Incorporation of the Company also provides that the Company
shall indemnify, and advance litigation expenses to, its officers, directors,
employees, and agents to the fullest extent permitted by the DGCL and all other
laws of the State of Delaware.
The DGCL provides that the Company has the power to indemnify any person
who is sued or threatened to be made a named party in a proceeding, other than
an action by or in the right of the Company, because such person is or was a
director, officer, employee, or agent of the Company or is or was serving at
the request of the Company as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expenses actually and reasonably incurred by him in connection with
such proceeding. In order to be indemnified, the person must have (1) acted in
good faith; (2) acted in a manner he reasonably believed to be in or not
opposed to the best interests of the Company; and (3) with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The indemnification includes attorneys' fees, judgments, fines,
and amounts paid in settlement.
The DGCL also provides that the Company may indemnify any person who is
sued or threatened to be made a named party in a proceeding by or in the right
of the Company to procure a judgment in its favor because such person is or was
a director, officer, employee, or agent of the Company, or is or was serving at
the request of the Company as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise. In
order to be indemnified, the person must have conducted himself in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company. No indemnification may be made, however, with respect
to any claim, issue, or matter as to which such person shall have been judged
to be liable to the Company unless and only to the extent that 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 indemnification for
such expenses which the court shall deem proper.
Indemnification by the Company is subject to a determination that the
director, officer, employee, or agent has met the applicable standard of
conduct. The determination must be made (1) by a majority vote of a quorum of
the Board of Directors, consisting only of directors who were not parties to
such action, suit or proceeding; (2) if such a quorum cannot be obtained, or
even if obtainable, if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or (3) by the shareholders of
the Company.
The Company has entered into an Indemnification Agreement with each of its
directors and executive officers (the "Indemnitees") pursuant to which the
Company has agreed to indemnify and hold each of the Indemnitees harmless from
and against all expenses, including reasonable fees and expenses of counsel,
and all liabilities, including the amounts of any judgments, fines, penalties,
excise taxes, and amounts paid in settlement actually incurred by an Indemnitee
in connection with any threatened, pending or completed claim, action
(including any action by or in the right of the Company), suit, or proceeding
(whether formal or informal, or civil, criminal, administrative, legislative,
arbitrative, or investigative) in respect of which the 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 the Indemnitee is or was an authorized
representative of the Company; provided, however, no indemnity shall be paid on
account of the Indemnitee's conduct that is finally adjudged to constitute
willful misconduct or to have been knowingly fraudulent, deliberately
dishonest, or from which the Indemnitee derives an improper personal benefit.
8
<PAGE> 10
The Company maintains an officers and directors liability insurance policy
insuring officers and directors of the Company and its subsidiaries against
certain liabilities, including liabilities under the Securities Act. The effect
of such policy is to indemnify the officers and directors of the Company
against losses incurred by them while acting in such capacities.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, or person controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
SELLING SHAREHOLDERS
This Prospectus covers offers from time to time by the Selling
Shareholders of the Shares owned by them. The following table sets forth the
names of the Selling Shareholders and the number of shares of Common Stock held
be each as of the date of this Prospectus that are registered hereunder:
<TABLE>
<CAPTION>
Name Number of Shares
----- ----------------
<S> <C>
Sam W. Humphreys (1) . . . . . . . . . . . . . . . . . . . . . . . . 50,000
Donald F. Moorehead, Jr.(2) . . . . . . . . . . . . . . . . . . . . 78,500
-------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128,500
</TABLE>
- ---------------
(1) Mr. Humphreys was a Vice President and General Counsel of Envirofil,
Inc. from May 1993, until it was acquired by the Company on May 27, 1994.
(2) Mr. Moorehead is the Vice Chairman and Chief Development Officer of
the Company.
Mr. Humphreys beneficially owns 50,000 shares of Common Stock of the
Company (including warrants and options currently exercisable or exercisable
within 60 days). Mr. Moorehead beneficially owns 2,247,953 shares of Common
Stock of the Company (including 369,000 shares issuable pursuant to warrants
and options currently exercisable or exercisable within 60 days and 228,832
shares owned by Mr. Moorehead's spouse and children.)
MANNER OF OFFERING
This Prospectus, as appropriately amended or supplemented, may be used
from time to time by a Selling Shareholder, or his transferees, to offer and
sell the Shares in transactions in which he and any broker-dealer through whom
any of the Shares are sold may be deemed to be underwriters within the meaning
of the Securities Act. The Company will receive none of the proceeds from any
such sales. There presently are no arrangements or understandings, formal or
informal, pertaining to the distribution of the Shares.
The Company anticipates that resales of the Shares by the Selling
Shareholders will be effected from time to time on the open market in ordinary
brokerage transactions on the New York Stock Exchange ("NYSE"), on which the
Common Stock is listed, in the over-the-counter market, or in private
transactions (which may involve crosses and block transactions). The Shares
will be offered for sale at market prices prevailing at the time of sale or at
negotiated prices and on terms to be determined when the agreement to sell is
made or at the time of sale, as the case may be. The Shares may be offered
directly, through agents designated from time to time, or through brokers or
dealers. A member firm of the NYSE may be engaged to act as a Selling
Shareholder's agent in the sale of the Shares by a Selling Shareholder and/or
may acquire Shares as principal. Member firms participating in such
transactions as agent may receive commissions from the Selling Shareholder
(and, if they act as agent for the purchaser of such Shares, from such
purchaser), such commissions computed in appropriate cases in accordance with
the applicable rules of the NYSE, which commissions may be at negotiated rates
where permissible. Sales of Shares
9
<PAGE> 11
by the member firm may be made on the NYSE from time to time at prices related
to prices then prevailing. Any such sales may be by block trade.
Participating broker-dealers may agree with a Selling Shareholder to sell
a specified number of shares at a stipulated price per share and, to the extent
such broker-dealer is unable to do so acting as agent for the Selling
Shareholder to purchase as principal any unsold shares at the price required to
fulfill the broker-dealer's commitment to the Selling Shareholder. In addition
or alternatively, shares may be sold by a Selling Shareholder, and/or by or
through other broker-dealers in special offerings, exchange distributions, or
secondary distributions pursuant to and in compliance with the governing rules
of the NYSE, and in connection therewith commissions in excess of the customary
commission prescribed by the rules of such securities exchange may be paid to
participating broker-dealers, or, in the case of certain secondary
distributions, a discount or concession from the offering price may be allowed
to participating broker-dealers in excess of such customary commission.
Broker-dealers who acquire shares as principal may thereafter resell such
Shares from time to time in transactions (which may involve cross and block
transactions and which may involve sales to and through other broker-dealers,
including transactions of the nature described in the preceding two sentences)
on the NYSE, in negotiated transactions, or otherwise, at market prices
prevailing at the time of sale or at negotiated prices, and in connection with
such resales may pay to or receive commissions from the purchasers of such
shares.
Upon the Company's being notified by a Selling Shareholder that a
particular offer to sell the Shares is made, a material arrangement has been
entered into with a broker-dealer for the sale of shares through a block trade,
special offering, exchange distribution, or secondary distribution, or any
block trade has taken place, to the extent required, a supplement to this
Prospectus will be delivered together with this Prospectus and filed pursuant
to Rule 424(b) under the Securities Act setting forth with respect to such
offer or trade the terms of the offer or trade; including (i) the number of
Shares involved, (ii) the price at which the Shares were sold, (iii) any
participating brokers, dealers, agents or member firm involved, (iv) any
discounts, commissions and other items paid as compensation from, and the
resulting net proceeds to, the Selling Shareholder, (v) that such
broker-dealers did not conduct any investigation to verify the information set
out in this Prospectus, and (vi) other facts material to the transaction.
Shares may be sold directly by a Selling Shareholder or through agents
designated by a Selling Shareholder from time to time. Unless otherwise
indicated in the a supplement to this Prospectus, any such agent will be acting
on a best efforts basis for the period of its appointment.
The Selling Shareholders and any brokers, dealers, agents, member firm or
others that participate with the Selling Shareholders in the distribution of
the Shares may be deemed to be "underwriters" within the meaning of the
Securities Act, and any commissions or fees received by such persons and any
profit on the resale of the Shares purchased by such person may be deemed to be
underwriting commissions or discounts under the Securities Act.
The Company may agree to indemnify the Selling Shareholders as
underwriters under the Securities Act against certain liabilities, including
liabilities arising under the Securities Act. Agents may be entitled under
agreements entered into with the Selling Shareholders to indemnification
against certain civil liabilities, including liabilities under the Securities
Act.
The Selling Shareholders will be subject to the applicable provisions of
the Exchange Act and the rules and regulations thereunder, including without
limitation Rules 10b-2, 10b-6, and 10b-7, which provisions may limit the timing
of purchases and sales of any of the Common Stock by the Selling Shareholders.
All of the foregoing may affect the marketability of the Common Stock.
The Company will pay substantially all the expenses incident to this
offering of the Common Stock by the Selling Shareholders to the public other
than brokerage fees, commissions and discounts of underwriters, dealers or
agents.
In order to comply with certain states' securities laws, if applicable,
the Common Stock will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states the Common Stock
10
<PAGE> 12
may not be sold unless the Common Stock has been registered or qualified for
sale in such state or an exemption from registration or qualification is
available and is complied with.
LEGAL MATTERS
Certain legal matters in connection with the Shares have been passed upon
for the Company by Snell & Smith, A Professional Corporation, Houston, Texas.
EXPERTS
The consolidated financial statements of the Company and subsidiaries as
of December 31, 1994 and 1995, and for each of the three years in the period
ended December 31, 1995, which are included in the Company's Annual Report on
Form 10-K for the year ended December 31, 1995, and the supplemental
consolidated balance sheets of the Company as of December 31, 1994 and 1995, and
the supplemental consolidated statements of operations, stockholders' equity,
and cash flows for each of the years in the three-year period ended December 31,
1995, appearing in the Company's Current Report on Form 8-K/A (Amendment No. 3)
filed July 1, 1996 incorporated by reference in this Prospectus, have been
incorporated herein in reliance on the report of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
The consolidated financial statements of Western at June 30, 1995 and
1994, and for each of the three years in the period ended June 30, 1995,
included in the Company's Current Report on Form 8-K dated January 9, 1996,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included in Western's Annual Report (Form 10-K) and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Sanifill appearing in Sanifill's
Annual Report on Form 10-K for the year ended December 31, 1995 and the
financial statements of various companies acquired by Sanifill appearing in
Sanifill's Current Reports on Form 8-K dated February 5, 1996, February 11, 1996
and March 20, 1996 incorporated by reference in the Registration Statement on
Form S-3 and the related Prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated by reference herein in reliance upon the
authority of such firm as experts in accounting and auditing.
11
<PAGE> 13
================================================================================
No dealer, salesman, or any other person has been authorized to give
any information or to make any representations other than those
contained in this Prospectus in connection with the offering contained
herein, and, if given or made, such information or representations must
not be relied upon as having been authorized by the Company or the
Selling Shareholders. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any of the securities offered
hereby to any person to whom it is unlawful to make such offer or
solicitation. Neither the delivery of this Prospectus nor any sale
hereunder shall, under any circumstances, create any implication that
there has been no change in the affairs of the Company since the date
hereof.
================================================================================
================================================================================
128,500 Shares
USA WASTE SERVICES, INC.
COMMON STOCK
PROSPECTUS
----------
July , 1996
================================================================================
12
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the distribution of the securities covered by this Registration Statement.
<TABLE>
<S> <C>
Securities and Exchange Commission fee . . . . . . . . . . . . . . . . . . . . . . . . $ 1,147
Printing expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,000*
Accountants' fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000*
Blue sky fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000*
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,000*
-----
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 13,147*
========
</TABLE>
* Estimated.
ITEM 15. 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 Restated Certificate of Incorporation of the registrant includes the
following provisions:
Seventh: No director of the Corporation shall not 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,
II-1
<PAGE> 15
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.
(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.
II-2
<PAGE> 16
(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.
(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 Restated 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
II-3
<PAGE> 17
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 16. EXHIBITS.
<TABLE>
<S> <C> <C>
4.1 Restated Certificate of Incorporation [Incorporated by reference to Exhibit 3.1 to the Post-Effective
Amendment No. 1 to the Registrant's Registration Statement on Form S-4 (File No. 33-60103].
4.1(a) Amendment to Registrant's Restated Certificate of Incorporation [Incorporated by reference to Exhibit
3.1(a) to the Registrant's Quarterly Report on Form 10-Q for the three months ended March 31, 1996]
4.1(b) Conformed Copy of Registrant's Restated Certificate of Incorporation as amended [Incorporated by
reference to Exhibit 3.1(b) to the Registrant's Quarterly Report on Form 10-Q for the three months
ended March 31, 1996]
4.2 Bylaws [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].
4.3 Specimen Stock Certificate. [Incorporated by reference to Exhibit 4.3 to the Registrant's
Registration Statement on Form S-3 (File No. 33-76224].
* 5 Opinion of Snell & Smith, A Professional Corporation.
23.1 Consent of Snell & Smith, A Professional Corporation (Included in Exhibit 5).
* 23.2 Consent of Coopers & Lybrand L.L.P.
* 23.3 Consent of Ernst & Young LLP
* 23.4 Consent of Arthur Andersen LLP
* 23.5 Consent of Deloitte & Touche LLP
* 24 Powers of Attorney (Included on Page II-7).
</TABLE>
- ------------------
* Filed herewith.
II-4
<PAGE> 18
ITEM 17. 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 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.
(c) 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.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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
II-5
<PAGE> 19
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 duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Dallas, State of Texas on July 22, 1996.
USA Waste Services, Inc.
By:/s/ JOHN E. DRURY
------------------------------------------
John E. Drury, Chief Executive Officer
II-6
<PAGE> 20
POWER OF ATTORNEY
We, the undersigned officers and directors 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-3 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 and on July 22, 1996.
<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/ KOSTI SHIRVANIAN Vice Chairman of the Board
- ---------------------------------------------
Kosti Shirvanian
/s/ DAVID SUTHERLAND-YOEST President, Chief Operating Officer, and Director
- ---------------------------------------------
David Sutherland-Yoest
/s/ EARL E. DeFRATES Executive Vice President, Chief Financial Officer
- --------------------------------------------- and Treasurer
Earl E. DeFrates
/s/ BRUCE E. SNYDER Vice President and Corporate Controller (Chief
- --------------------------------------------- Accounting Officer)
Bruce E. Snyder
/s/ GEORGE L. BALL Director
- ---------------------------------------------
George L. Ball
/s/ PETER J. GIBBONS Director
- ---------------------------------------------
Peter J. Gibbons
/s/ RICHARD J. HECKMANN Director
- ---------------------------------------------
Richard J. Heckmann
/s/ WILLIAM E. MOFFETT Director
- ---------------------------------------------
William E. Moffett
</TABLE>
II-7
<PAGE> 21
<TABLE>
<S> <C>
/s/ JOHN G. RANGOS, SR. Director
- ---------------------------------------------
John G. Rangos, Sr.
/s/ ALEXANDER W. RANGOS Vice Chairman of the Board
- ---------------------------------------------
Alexander W. Rangos
/s/ SAVEY TUFENKIAN Director
- --------------------------------------------
Savey Tufenkian
</TABLE>
II-8
<PAGE> 22
INDEX TO EXHIBITS
<TABLE>
<S> <C> <C>
4.1 Restated Certificate of Incorporation [Incorporated by reference to Exhibit 3.1 to the Post-Effective
Amendment No. 1 to the Registrant's Registration Statement on Form S-4 (File No. 33-60103].
4.1(a) Amendment to Registrant's Restated Certificate of Incorporation [Incorporated by reference to Exhibit
3.1(a) to the Registrant's Quarterly Report on Form 10-Q for the three months ended March 31, 1996]
4.1(b) Conformed Copy of Registrant's Restated Certificate of Incorporation as amended [Incorporated by
reference to Exhibit 3.1(b) to the Registrant's Quarterly Report on Form 10-Q for the three months
ended March 31, 1996]
4.2 Bylaws [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].
4.3 Specimen Stock Certificate. [Incorporated by reference to Exhibit 4.3 to the Registrant's
Registration Statement on Form S-3 (File No. 33-76224].
* 5 Opinion of Snell & Smith, A Professional Corporation.
23.1 Consent of Snell & Smith, A Professional Corporation (Included in Exhibit 5).
* 23.2 Consent of Coopers & Lybrand L.L.P.
* 23.3 Consent of Ernst & Young LLP
* 23.4 Consent of Arthur Andersen LLP
* 23.5 Consent of Deloitte & Touche LLP
* 24 Powers of Attorney (Included on Page II-7).
</TABLE>
- ------------------
* Filed herewith.
<PAGE> 1
EXHIBIT 5.1
July 22, 1996
USA Waste Services, Inc.
5000 Quorum, Suite 300
Dallas, Texas 75240
Gentlemen:
We have acted as counsel for USA Waste Services, Inc., a Delaware
corporation (the "Company"), in connection with the filing of the Registration
Statement on Form S-3 with respect to the registration of 128,500 shares of the
Common Stock, $.01 par value (the "Common Stock"), of the Company, for issuance
and sale from time to time by certain selling shareholders of the Company.
We have made such inquiries and examined such documents as we have
considered necessary or appropriate for purposes of giving the opinions
hereinafter set forth, including the examination of executed or conformed
counterparts, or copies certified or otherwise proved to our satisfaction, of
the following:
(a) the Restated Certificate of Incorporation of the Company as
filed with the Secretary of State of Delaware, as amended;
(b) the By-laws of the Company; and
(c) the Registration Statement on Form S-3 of the Company filed
with the Securities and Exchange Commission (the "Registration Statement").
We have assumed the genuineness and authenticity of all signatures on
all original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies and the due authorization, execution, delivery or recordation of all
documents where due authorization, execution or recordation or prerequisites to
the effectiveness thereof.
<PAGE> 2
USA Waste Services, Inc.
Page 2
July 22, 1996
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
(i) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the States of Delaware;
(ii) the authorized capital of the Company consists of
150,000,000 shares of Common Stock, of which, as of March 31, 1996, 87,529,268
were issued and outstanding, and 10,000,000 shares of Preferred Stock, $.01 par
value, of which, as of the date hereof, no shares are issued and outstanding;
(iii) the 128,500 shares of Common Stock registered under
the Registration Statement are duly authorized, legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement and to the
Statements made regarding our Firm and to the use of our name under the heading
"Legal Matters" in the prospectus constituting a part of the Registration
Statement.
Very truly yours,
SNELL & SMITH, A Professional
Corporation
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of USA Waste Services, Inc. on Form S-3 of our report dated March 1,
1996, on our audits of the consolidated financial statements of USA Waste
Services, Inc. and subsidiaries as of December 31, 1995 and 1994, and for each
of the three years in the period ended December 31, 1995, which is included in
USA Waste Services, Inc.'s Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, and our report dated May 23, 1996, on our audits of the
supplemental consolidated balance sheets of USA Waste Services, Inc. and
subsidiaries as of December 31, 1995 and 1994, and the related supplemental
consolidated statements of operations, stockholders' equity, and cash flows for
each of the years in the three year period ended December 31, 1995, which is
included in USA Waste Services, Inc. Current Report on Form 8-K/A filed
July 1, 1996 with the Securities and Exchange Commission. We also consent to
the reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Dallas, Texas
July 22, 1996
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related prospectus of USA Waste
Services, Inc. and to the incorporation by reference therein of our reports (a)
dated August 25, 1995 (except Note 8, as to which the date is September 12,
1995) with respect to the consolidated financial statements of Western Waste
Industries at June 30, 1995 and 1994, and for each of the three years in the
period ended June 30, 1995 included in USA Waste Services, Inc.'s Current
Report on Form 8-K dated January 9, 1996, and (b) dated August 25, 1995 (except
Note 8, as to which the date is September 12, 1995) with respect to the
consolidated financial statements of Western Waste Industries at June 30, 1995
and 1994, and for each of the two years in the period ended June 30, 1995
(which consolidated financial statements are not presented separately therein)
included in USA Waste Services, Inc.'s Current Report on Form 8-K/A (Amendment
No. 3), dated July 1, 1996, both filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Long Beach, California
July 18, 1995
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of USA Waste Services,
Inc. on Form S-3 and the related Prospectus (a) our report dated February 23,
1996 (except with respect to the matters discussed in Note 15, as to which the
dates are March 4, 1996 and March 18, 1996 as indicated) with respect to the
consolidated balance sheets of Sanifill, Inc. and subsidiaries as of December
31, 1995 and 1994, and the related consolidated statements of operations,
stockholders' investment and cash flows for each of the three years in the
period ended December 31, 1995 which is included in Sanifill, Inc.'s Annual
Report on Form 10- K for the year ended December 31, 1995; (b) our reports dated
(i) August 1, 1995 with respect to the combined balance sheets of Metropolitan
Disposal and Recycling Corporation, Energy Reclamation, Inc., and EE Equipment,
Inc. as of December 31, 1994 and 1993, and the related combined statements of
operations, stockholders' equity and cash flows for each of the three years in
the period ended December 31, 1994, (ii) January 9, 1996 with respect to the
balance sheet of Falcon Disposal Services, Inc. as of December 31, 1994, and the
related statements of operations, stockholders' equity and cash flows for the
year then ended, (iii) February 2, 1996 with respect to the combined balance
sheet of Garnet of Virginia, Inc., and Garnet of Maryland, Inc. as of December
31, 1995 and the related combined statements of operations, stockholders'
deficit and cash flows for the year then ended, (iv) January 13, 1996 with
respect to the combined balance sheet of the Combined Companies, as defined, as
of December 31, 1994 and the related combined statement of operations,
stockholders' equity and partners' capital and cash flows for the year then
ended which are included in Sanifill, Inc.'s Current Report on Form 8-K dated
February 5, 1996; (c) our report dated February 8, 1996 with respect to the
consolidated balance sheets of Sanifill, Inc. and subsidiaries as of December
31, 1994 and 1993, and the related consolidated statements of operations,
stockholders' investment and cash flows for each of the three years in the
period ended December 31, 1994 which is included in Sanifill, Inc.'s Current
Report on Form 8-K dated February 11, 1996; (d) our report dated November 17,
1995 (except with respect to the matters discussed in Note 11, as to which the
date is March 18, 1996) with respect to the combined balance sheets of PST
Reclamation, Inc., and Taylor Land Resources, Inc. as of December 31, 1994 and
1993, and the related combined statements of operations and retained earnings
and cash flows for the years then ended which is included in Sanifill, Inc.'s
Current Report on Form 8-K dated March 20, 1996; and (e) to all references to
our Firm included in this Registration Statement of USA Waste Services, Inc. on
Form S-3 and the Prospectus which forms a part thereof.
ARTHUR ANDERSEN LLP
Houston, Texas
July 19, 1996
<PAGE> 1
EXHIBIT 23.5
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
USA Waste Services, Inc. on Form S-3 of our report dated March 30, 1995
(relating to the consolidated financial statements of Chambers Development
Company, Inc. and subsidiaries) appearing in USA Waste Services, Inc.'s
Current Report on Form 8-K/A, Amendment No. 3, dated May 7, 1996.
DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
July 22, 1996
