As filed with the Securities and Exchange Commission on December 22, 1997
Registration Statement No. 333-37217
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
WASTE SYSTEMS INTERNATIONAL, INC.
(f/k/a BIOSAFE INTERNATIONAL, INC.)
(Exact name of Registrant as specified in its charter)
Delaware 95-4203626
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10 Fawcett Street
Cambridge, MA 02138
(617) 497-4500
(Address, including zip code, and telephone number, including area code of
Registrant's principal executive offices)
-------------------------------
PHILIP W. STRAUSS
President
WASTE SYSTEMS INTERNATIONAL, INC.
10 Fawcett Street
Cambridge, MA 02138
(617) 497-4500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------
With a copy to:
THOMAS P. STORER, P.C.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
----------------------------
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.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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 the prospectus is expected to be made pursuant to Rule
434, please check the following box.
CALCULATION OF REGISTRATION FEE
<TABLE>
<C> <C> <C> <C> <C>
============================= ----------------------- ------------------------- ------------------------- ------------------
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities Being Registered Registered(1) Offering Price Per Aggregate Offering Registration
Share (2) Price (2) Fee(2)
============================= ======================= ========================= ========================= ==================
Common Stock, par value 93,333(2) $.91 $84,933 $26.00
$.001 per share. . . . . .
. . . . . . . . .
============================= ======================= ========================= ========================= ==================
</TABLE>
(1) Plus such additional shares as may be offered or issued to prevent
dilution resulting from stock splits, stock dividends, reverse stock
splits, split-ups, recapitalizations or other similar events.
(2) The total size of this Offering is 35,577,304 shares. The registration
fee with respect to 35,483,971 shares ($8,065) was paid on or about
October 6, 1997 and was based upon the average of the high and low sale
prices reported on The Nasdaq SmallCap Market on September 30, 1997. The
registration fee with respect to the remaining 93,333 shares is being
paid upon the filing of this Pre-Effective Amendment No. 1 to
Registration Statement No. 333-37217 and is based upon the average of
the high and low sale prices reported on The Nasdaq SmallCap Market on
December 15, 1997, and is estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(c) of the
Securities Act of 1933, as amended.
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 said Section 8(a),
may determine.
<PAGE>
================================================================================
================================================================================
SUBJECT TO COMPLETION, DATED DECEMBER 22, 1997
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
PRELIMINARY PROSPECTUS
35,577,304 Shares
WASTE SYSTEMS INTERNATIONAL, INC.
Common Stock
-------------------
All of the shares of common stock, $.001 par value per share (the
"Common Stock"), offered hereby (the "Shares") are being registered for the
account of certain stockholders of Waste Systems International, Inc. (f/k/a
BioSafe International, Inc.) ("Waste Systems" or the "Company"), or their
pledgees, named herein (collectively, the "Selling Stockholders"). The Shares
have been or are to be issued upon the election of such Selling Stockholders to
convert certain shares of Series A Preferred Stock, $.001 par value per share
(the "Preferred Stock"), of the Company into shares of Common Stock. See "Plan
of Distribution" and "Selling Stockholders." The registration of the shares of
Common Stock offered hereby does not necessarily mean that the Selling
Stockholders will elect to convert all or any of their shares of Preferred Stock
or that, upon such conversion, any shares of Common Stock will be offered or
sold by the Selling Stockholders.
Each of the Selling Stockholders, directly or through agents, dealers or
underwriters designated from time to time, may sell all or a portion of the
Shares offered hereby from time to time on terms to be determined at the time of
sale. To the extent required by law, the specific Shares to be sold, the names
of the Selling Stockholders, the respective purchase prices and public offering
prices, the names of any such agent, dealer or underwriter, and any applicable
commissions or discounts with respect to a particular offer will be set forth in
an accompanying Prospectus Supplement. See "Plan of Distribution." Each Selling
Stockholder reserves the sole right to accept and, together with such Selling
Stockholder's agents, dealers or underwriters from time to time, to reject, in
whole or in part, any proposed purchase of Shares to be made directly or through
agents, dealers or underwriters.
The aggregate proceeds to the Selling Stockholders from the sale of the
Shares offered hereby (the "Offering") will be the purchase price of the Shares
sold less the aggregate agents' commissions and underwriters' discounts, if any,
and other expenses of issuance and distribution not borne by the Company. The
Company will pay all of the expenses of the Offering other than agents'
commissions and underwriters' discounts with respect to the Shares offered
hereby and transfer taxes, if any. The Company will not receive any proceeds
from the sale of the Shares offered hereby by the Selling Stockholders.
The Selling Stockholders and any agents, dealers or underwriters that
participate with the Selling Stockholders in the distribution of the Shares may
be deemed to be "underwriters" within the meaning of the Securities Act of 1933,
as amended (the "Securities Act"), in which case any commissions received by
such agents, dealers or underwriters and any profit on the resale of the Shares
purchased by them may be deemed underwriting commissions or discounts under the
Securities Act. See "Plan of Distribution" for indemnification arrangements
between the Company and the Selling Stockholders.
The Common Stock is traded on The Nasdaq SmallCap Market (the "Nasdaq
Market") under the symbol "WSI." On December 15, 1997, the last reported sales
price for the Common Stock on the Nasdaq Market was $.97 per share.
See "Risk Factors" on pages 2 to 4 for a discussion of certain material
factors that should be considered in connection with an investment in the Common
Stock offered hereby.
-------------------
<PAGE>
================================================================================
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE 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 , 1997
<PAGE>
RISK FACTORS
Certain statements in this Prospectus constitute "forward-looking
statements" as that term is defined under the Private Securities Litigation
Reform Act of 1995. The words "believe," "expect," "anticipate," "intend,"
"estimate," "assume" and other similar expressions which are predictions of or
indicate future events and trends and which do not relate to historical matters
identify forward-looking statements. Reliance should not be placed on
forward-looking statements because they involve known and unknown risks,
uncertainties and other factors, which are in some cases beyond the control of
the Company and may cause the actual results, performance or achievements of the
Company to differ materially from anticipated future results, performance or
achievements expressed or implied by such forward-looking statements. Investors
should carefully consider the following factors, in addition to the other
information contained in this Prospectus, in connection with investments in the
shares of Common Stock offered hereby.
Operating Losses and Accumulated Deficit; Uncertainty of Future
Profitability. Waste Systems is a Development Stage Company. From its inception
through December 31, 1996, the Company suffered a net loss of approximately
$23,217,000 on revenues of approximately $2,840,000. In fiscal years 1995 and
1996, the Company suffered net losses of approximately $7,870,000 and
approximately $13,889,000, respectively, on revenues of approximately $1,344,000
and approximately $1,495,000, respectively. Waste Systems had an accumulated
operating deficit at September 30, 1997 of $26,230,996. Prospects for future
profitability are heavily dependent on the success of Waste Systems' ability to
build an integrated solid waste management company, and its landfill remodeling
projects. In addition to immediate capital needs, the Company must raise
substantial additional capital to bring to commercial viability all of its
currently planned projects and must achieve a level of revenues adequate to
support its cost structure. There can be no assurance about the Company's
ability to raise additional capital, achieve an adequate level of revenues or
continue as a going concern.
The Independent Auditors' Report of KPMG Peat Marwick LLP from the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996
states that the "the Company must raise substantial additional capital and must
achieve a level of revenues adequate to support the Company's cost structure,
which raises substantial doubt about [the Company's] ability to continue as a
going concern." The insolvency of the Company could adversely affect certain of
its contracts. For instance, Section 6.2(c) of the Company's contract with
ScotSafe Limited ("ScotSafe"), dated as of February 6, 1996, allows ScotSafe to
terminate the contract at its option upon the Company's insolvency.
Possible Delisting of Securities from the NASDAQ Market. The Company's
Common Stock is traded on The NASDAQ SmallCap Market. Recent changes in the
Nasdaq listing requirements provide that, as of February 22, 1998, in order to
continue to qualify for quotation on the NASDAQ Market, the Company must have,
among other things, at least $2,000,000 in net tangible assets (net tangible
assets means total assets, excluding goodwill, minus total liabilities), a
public float of 500,000 shares (public float is defined as shares that are not
held directly or indirectly by any officer or director of the issuer and by any
other person who is the beneficial owner of more than 10% of the total shares
outstanding) and a minimum bid price for shares of its Common Stock of $1.00 per
share. As of December 15, 1997, the minimum bid price for shares of the
Company's Common Stock was $.81 per share. Accordingly, if the minimum bid price
of the Company's Common Stock does not increase to at least $1.00 per share by
February 22, 1998, the Company's Common Stock will not be eligible for continued
quotation on the NASDAQ Market. The loss of continued listing on the NASDAQ
Market may, inter alia, cause a decline in share price, reduce news coverage of
the Company and make it more difficult for the Company to obtain subsequent
financing. The Company is currently considering implementing a reverse stock
split, which would have the effect of increasing the per share price of its
Common Stock. No assurances can be given, however, that the Company will
undertake or consummate a reverse stock split or that the per share price of the
Company's Common Stock will remain above $1.00 per share for an extended period
of time following a reverse stock split.
Risk of Limited Liquidity. The Company has limited liquidity in relation
to its short-term capital commitments and operating cash requirements. The
Company's ability to satisfy its commitments and operating requirements is
dependent on a number of pending financing activities which are not assured of
successful completion. Any failure of the Company to obtain sufficient financing
in the short run would have a materially adverse effect on the Company's
financial condition and operations.
2
<PAGE>
Initial Commercialization Stage; Limited Operating History. To date,
although Waste Systems has conducted significant testing of methods and
processes based on its size reduction and materials handling technology, Waste
Systems has not yet carried through a landfill remodeling project to completion.
Final development and operation may be subject to engineering and construction
problems such as cost overruns and start up delays resulting from technical or
mechanical problems, unfavorable conditions in the equipment or labor market, or
environmental permitting and other regulatory problems, as well as other
possible adverse factors. There can be no assurance that Waste Systems will be
successful in developing and implementing commercial landfill remodeling
projects, or that any such development can be accomplished without excessive
cost or delay.
Potential Environmental Liability and Adverse Effect of Environmental
Regulation. Waste Systems' business exposes it to the risk that it will be held
liable if harmful substances escape into the environment as a result of its
operations and cause damages or injuries. Moreover, federal, state and local
environmental legislation and regulations require substantial expenditures and
impose significant liabilities for noncompliance.
Potential Adverse Community Relations. The potential exists for
unexpected delays, costs and litigation resulting from community resistance and
concerns relating to specific projects in various communities.
Unpredictability of Patent Protection and Proprietary Technology. Waste
Systems' success depends, in part, on its ability to obtain and enforce patents,
maintain trade secret protection and operate without infringing on the
proprietary rights of third parties. While Waste Systems has been issued a U.S.
patent and certain related foreign patents on certain of its size reduction and
materials handling technology with particular reference to landfill remodeling
and on its CFA medical waste treatment system, there can be no assurance that
others will not independently develop similar or superior technologies,
duplicate any of Waste Systems' processes or design around any processes on
which Waste Systems has or may obtain patents. In addition, it is possible that
third parties may have or acquire licenses for other technology that Waste
Systems may use or desire to use, so that Waste Systems may need to acquire
licenses to, or to contest the validity of, such patents of third parties
relating to Waste Systems' technology. There can be no assurance that any
license required under such patents would be made available to Waste Systems on
acceptable terms, if at all, or that Waste Systems would prevail in any such
contest. Moreover, Waste Systems could incur substantial costs in defending
itself in suits brought against Waste Systems or in bringing suits against other
parties related to patent matters.
Risks Attendant to Company Growth. The Company expects to experience
significant growth in its business. This growth will continue to place
significant demands on the Company's management, resources and operations. To
manage its growth efficiently, the Company will be required to continue to
improve its operational, financial and management information systems and to
hire and train new employees and manage its current employees. The Company's
failure to manage growth effectively could have a material adverse effect on the
Company's business and financial performance.
Competition. The markets in which Waste Systems competes are
characterized by several large companies and numerous small companies. Any of
these companies may develop technologies superior to Waste Systems' technology.
Many of Waste Systems' potential competitors are large companies with
substantially greater financial resources than Waste Systems'. To the extent
these potential competitors offer comparable technologies, Waste Systems'
ability to compete effectively could be adversely affected.
In addition to patent protection, Waste Systems also relies on trade
secrets, proprietary know-how and technology which it seeks to protect, and
confidentiality agreements with its collaborators, employees and consultants.
There can be no assurance that these agreements and other steps taken by Waste
Systems will be effective to protect Waste Systems' technology against
unauthorized use by others.
3
<PAGE>
Dependence on Key Management and Qualified Personnel. Waste Systems is
highly dependent upon the efforts of its senior officers, Philip Strauss,
President and Chief Executive Officer, and Robert Rivkin, Vice-President and
Chief Financial Officer, and other senior management. The loss of the services
of one or more of these employees might have a material adverse effect on the
Company. Waste Systems does not currently maintain key man insurance on any of
its personnel. Waste Systems' future success will depend in large part upon its
ability to attract and retain additional highly skilled managerial and technical
personnel. Waste Systems faces competition for hiring such personnel from other
companies, research and academic institutions, government entities and other
organizations. There can be no assurance that Waste Systems will be successful
in attracting and retaining qualified personnel as required for its projected
operations.
Dilution of Existing Stockholders. As of December 15, 1997, there were
19,467,074 shares of the Company's Common Stock issued and outstanding. As of
the same date, the Selling Stockholders had, in the aggregate, the right to
convert their shares of Preferred Stock into 32,917,306 shares of Common Stock.
Accordingly, the conversion by the Selling Stockholders of shares of Preferred
Stock into shares of Common Stock would substantially dilute holders of the
Company's Common Stock.
THE COMPANY
General
Waste Systems is a regional fully integrated non-hazardous solid waste
management company that is also engaged in the business of rehabilitating
landfills to permit their continued operation with increased capacity in an
environmentally sound manner, a procedure referred to by Waste Systems as
"landfill remodeling." Waste Systems has developed technologies for the handling
of waste materials for use in landfill remodeling.
The Company, in January 1997, through an 80% owned subsidiary, entered
the waste collection business in the State of Vermont as its initial step to
develop fully integrated solid waste management operations in markets where it
believes it can maximize utilization of Company owned or operated landfills
through such integration. An integrated solid waste management company offers
disposal, collection, transfer and recycling services. Accordingly, the Company
is in the initial stages of investigating potential acquisitions of waste
collection, transfer and/or disposal operations which would be integrated with
current or future landfill acquisitions or landfill remodeling projects.
On June 19, 1997, the Company signed an agreement with the Chittenden
Solid Waste District (the "CSWD") to lease/purchase the CSWD's permitted
transfer station in Burlington, Vermont. This transaction will offer the Company
greater access to the Burlington, Vermont and surrounding area markets,
Vermont's most populated and industrialized community. The Company assumed
operations of the transfer station on October 6, 1997. In addition, as of
September 1, 1997, the Company started receiving waste from CSWD at its
landfill. The Company is in preliminary discussions in connection with various
potential acquisitions, including landfills, transfer stations and hauling
operations, but no binding agreements or understanding for any such acquisitions
exists at this time, and no assurance can be given that the Company will be able
to complete any such acquisitions.
As discussed above, Waste Systems is focusing its resources and
activities on the development of an integrated solid waste management business.
With the implementation of Subtitle D Regulations and a growing scarcity of
urban-center disposal sites, solid waste disposal continues to move further out
from these urban centers. The Company believes that through utilization of its
landfill remodeling process, it will be able to acquire and develop landfill
capacity in or near urban metropolitan areas. On an integrated basis, this will
provide the Company with a geographical and logistical competitive advantage
because the Company's operations will be more centrally located as compared to
its competitors whose operations will extend out longer distances from disposal
sites.
The Company is currently maintaining ownership of its infectious medical
waste disposal technology, which is fully developed, requires no further
development costs and is outside the Company's core business.
4
<PAGE>
The Company's principal executive offices are located at 10 Fawcett
Street, Cambridge, Massachusetts 02138; its telephone number is (617) 497-4500.
The Company was incorporated in Nevada in 1989 as Zoe Capital Corp. and had no
operations until March 29, 1995. On that date, the Company acquired BioSafe,
Inc., a Delaware corporation, through a merger with a subsidiary of the Company,
and changed its name to "BioSafe International, Inc." In October 1997, the
Company was reincorporated as "Waste Systems International, Inc." under the laws
of the State of Delaware, pursuant to a reincorporation merger.
The Preferred Stock Offering
On June 30, 1997, the Company closed a Regulation "D" private placement
of Series "A" Convertible Preferred Stock which raised net proceeds of
approximately $9.2 million. As part of the private placement, and included in
the $9.2 million, the Company converted approximately $570,000 in bank debt into
Preferred Stock and acquired the minority interest in Waste Professionals of
Vermont, Inc. for $850,000 of Preferred Stock.
The Preferred Stock was sold at a price of $100 per share, bears an 8%
annual cumulative dividend, and is convertible into Common Stock at a conversion
price of $0.28125 per share of Common Stock, which conversion price may be reset
to a lower conversion price upon the occurrence of certain events. The dividend
is payable in cash or in additional shares of Preferred Stock at the Company's
option and is subject to adjustment after three years. The Preferred Stock is
also redeemable at the Company's option after one year, subject to certain
trading requirements.
REGISTRATION RIGHTS
The registration of the shares of Common Stock pursuant to the
Registration Statement of which this Prospectus is a part will discharge certain
of the Company's obligations under the terms of a Registration Rights Agreement
dated as of June 30, 1997 with the holders of the Preferred Stock (the
"Registration Rights Agreement").
Pursuant to the Registration Rights Agreement, the Company has agreed to
pay all expenses of effecting the registration of such shares of Common Stock
(other than brokerage and underwriting commissions). The Company also has agreed
to indemnify each Selling Stockholder under the Registration Rights Agreement
and its officers, directors and other affiliated persons and any person who
controls any Selling Stockholder against all losses, claims, damages and
expenses arising under the securities laws or otherwise in connection with the
Registration Statement or this Prospectus or any amendment or supplement thereto
or hereto, subject to certain limitations. In addition, the Selling Stockholders
under the Registration Rights Agreement agreed to indemnify the Company and its
directors, officers and any person who controls the Company against any losses,
claims, damages and expenses arising under the securities laws in connection
with the Registration Statement or this Prospectus or any amendment or
supplement thereto or hereto, but only to the extent such loss, claim, damage or
expense relates to written information furnished to the Company by such Selling
Stockholder expressly for use in the Registration Statement or this Prospectus
or any amendment or supplement thereto or hereto.
SELLING STOCKHOLDERS
The following table sets forth certain information known to the Company
with respect to the Selling Stockholders, including the number of shares of
Common Stock beneficially owned by each Selling Stockholder, the number of
Shares registered hereby, and the number and percentage of shares of Common
Stock held by each Selling Stockholder before the Offering and, assuming the
sale of all registered Shares, after the Offering. There can be no assurance
that all or any of the Shares offered hereby will be sold. If any are sold, each
Selling Stockholder will receive all of the net proceeds from the sale of his,
her or its respective Shares offered hereby. The amounts set forth are to the
best of the Company's knowledge.
5
<PAGE>
<TABLE>
Shares Beneficially Shares to be
Owned Prior to Registered and Shares Beneficially
Offering Sold in Owned After Offering
Beneficial Owner Number(1) Percent(2) Offering Number(1) Percent(2)
<S> <C> <C> <C> <C> <C>
Risk Reward Fund Limited................ 1,066,666 2.04% 1,066,666 0 0
VMR High Octane Fund LTD................ 1,066,666 2.04% 1,066,666 0 0
Valux S.A............................... 400,000 * 400,000 0 0
Herb Stein.............................. 400,000 * 400,000 0 0
Richard Brothers........................ 3,022,222 5.77% 3,022,222 0 0
FDIC-for Boston Trade Bank in liquidation 2,488,888 4.75% 2,488,888 0 0
Fritas AS............................... 1,066,666 2.04% 1,066,666 0 0
Corner Bank LTD......................... 161,421 * 161,421 0 0
Simone Haggiag.......................... 88,888 * 88,888 0 0
Banca Del Gottardo...................... 1,322,310 2.52% 1,322,310 0 0
J&C Resources Limited................... 1,777,777 3.39% 1,777,777 0 0
B III Capital Partners, L.P............. 17,777,777 33.94% 17,777,777 0 0
Florian Homm............................ 1,066,666 2.04% 1,066,666 0 0
James McCarthy Jr....................... 6,400 * 6,400 0 0
First Dunbar Associates, Inc............ 57,600 * 57,600 0 0
First Dunbar Securities Corp............ 42,666 * 42,666 0 0
Richard Banakus......................... 355,555 * 355,555 0 0
Cass & Co. - Magnum U.S. Equity Fund.... 355,555 * 355,555 0 0
Cass & Co. - Magnum Tech Fund........... 88,888 * 88,888 0 0
Cass & Co. - Magnum Turbo Growth Fund... 177,777 * 177,777 0 0
Cass & Co. - Magnum Opportunity Fund.... 88,888 * 88,888 0 0
Cass & Co. - Magnum Capital Growth Fund. 355,555 * 355,555 0 0
Rosebud Capital Growth Fund............. 355,555 * 355,555 0 0
Stanley Hollander ...................... 88,888 * 88,888 0 0
Harvey Tauman........................... 106,666 * 106,666 0 0
Robert Rivkin........................... 339,763 * 88,888 250,875 *
Philip W. Strauss....................... 338,888 * 88,888 250,000 *
Joseph Motzkin.......................... 104,513 * 88,888 15,625 *
Rich Golub.............................. 102,400 * 102,400 0 0
Bostar A/S.............................. 17,066 * 17,066 0 0
Egger and Company....................... 14,933 * 14,933 0 0
Nelson Partners......................... 14,933 * 14,933 0 0
Olympus Securities, Ltd................. 1,066 * 1,066 0 0
Demachy Worms & Co. International Ltd... 34,133 * 34,133 0 0
Union Bancaire Privee................... 1,066 * 1,066 0 0
Lars E. Bernsten........................ 2,133 * 2,133 0 0
Birger Dalen............................ 1,066 * 1,066 0 0
Svein Ekjord............................ 1,066 * 1,066 0 0
Per Flring.............................. 6,400 * 6,400 0 0
Nicolai M. Gram......................... 6,400 * 6,400 0 0
Nils Otto Holmen........................ 5,333 * 5,333 0 0
Harold Norman........................... 4,266 * 4,266 0 0
Ellen Jaer Obargaard.................... 1,066 * 1,066 0 0
Peter Spiten............................ 1,066 * 1,066 0 0
Svein Erik Stiansen..................... 1,066 * 1,066 0 0
Ellen og Lars H. Thorklldsen............ 1,061 * 1,061 0 0
Bjorn Tueter............................ 1,061 * 1,061 0 0
International Capital Growth Limited.... 313,955 * 313,955 0 0
Skips A/S `Lodd'........................ 35,555 * 35,555 0 0
Barnfield Limited....................... 220,000 * 220,000 0 0
Heritage Finance & Trust Company........ 120,000 * 120,000 0 0
Banque Privee Edmond de Rothschild S.A.. 200,000 * 200,000 0 0
Comptoir Prive de Gestion S.A........... 70,000 * 70,000 0 0
Arbinter Omnivalor S.A.................. 250,000 * 250,000 0 0
Carl Bailin............................. 98,333 * 93,333 5,000 *
TOTAL................................... 36,098,804 68.91% 35,577,304 521,500 *
</TABLE>
* Less than 1%
(1) Except as indicated in the other footnotes to this table or as described
below with respect to the relationships of the Selling Stockholders in
the Company, based on information provided by such persons and subject
to applicable community property laws, the persons named in the table
above have sole voting and investment power with respect to all of the
shares of Common Stock shown as beneficially owned by them.
(2) Percentage of ownership is based on 52,384,380 common share equivalents
outstanding on December 15, 1997, consisting of 19,467,074 shares of
Common Stock and 92,580 shares of Preferred Stock convertible into an
aggregate of 32,917,306 shares of Common Stock. Shares of Common Stock
subject to stock options that are exercisable within 60 days of December
15, 1997 are deemed outstanding for computing the percentage of the
person or group holding such options, but are not deemed outstanding for
computing the percentage of any other person or group.
6
<PAGE>
The relationships of the Selling Stockholders to the Company are as
follows:
Name Relationship
Philip W. Strauss Chairman of the Board of Directors,
Chief Executive Officer and President.
Robert Rivkin Director, Chief Financial Officer, Vice
President, Treasurer and Secretary.
Joseph E. Motzkin Vice President.
B III Capital Partners, L.P. DDJ Capital Management, LLC ("DDJ")
serves as the investment manager to
B III Capital Partners, L.P. ("B III")
and an affiliate of DDJ acts as the
general partner of B III. Two Directors
of Waste Systems, Judy K. Mencher and
David J. Breazzano, are managing members
of DDJ.
International Capital Growth Limited A Director of Waste Systems, Jay J.
Matulich, is a managing director of
International Capital Growth Limited.
PLAN OF DISTRIBUTION
The Shares of Common Stock offered hereby may be offered and sold from
time to time by the Selling Stockholders listed above, or by pledgees, donees,
transferees or other successors in interest. The Company will not receive any of
the proceeds from this Offering. The Shares offered hereby may be sold from time
to time on the Nasdaq Market on terms to be determined at the time of such
sales. The Shares of Common Stock may be sold by one or more of the following:
(a) a block trade in which the broker or dealer so engaged will attempt to sell
the Shares of Common Stock as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (b) purchases by a broker or
dealer as principal and resale by such broker or dealer for its account pursuant
to this Prospectus; (c) ordinary brokerage transactions and transactions in
which the broker solicits purchasers; (d) private sales directly or through a
broker or brokers; and (e) to or through underwriters, dealers or agents, who
may receive consideration in the form of discounts and commissions; such
compensation, which may be in excess of ordinary brokerage commissions, may be
paid by the Selling Stockholders and/or the purchasers of the Shares offered
hereby for whom such underwriters, dealers or agents may act. The Selling
Stockholders and any dealers or agents that participate in the distribution of
the Shares offered hereby may be deemed to be "underwriters" as defined in the
Securities Act, and any profit on the sale of such Shares offered hereby by them
and any discounts, commissions or concessions received by any such dealers or
agents might be deemed to be underwriting discounts and commissions under the
Securities Act. The aggregate proceeds to the Selling Stockholders from sales of
the Shares offered by the Selling Stockholders hereby will be the purchase price
of such Common Stock less any broker's commissions.
To the extent required, the specific shares of Common Stock to be sold,
the names of the Selling Stockholders, the respective purchase prices and public
offering prices, the names of any such agent, dealer or underwriter, and any
applicable commissions or discounts with respect to a particular offer will be
set forth in an accompanying Prospectus Supplement
The Shares offered hereby may be sold from time to time in one or more
transactions at a fixed offering price, which may be changed, or at varying
prices determined at the time of sale or at negotiated prices.
7
<PAGE>
In order to comply with the securities laws of certain states, if
applicable, the Shares offered hereby will be sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition, in certain
states Shares may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
Under applicable rules and regulations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), any person engaged in the distribution
of the Common Stock offered hereby may not simultaneously engage in market
making activities with respect to the Common Stock for a period of two business
days prior to the commencement of such distribution. In addition, and without
limiting the foregoing, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder,
including, without limitation, Rules 10b-2, 10b-6 and 10b-7, which may limit the
timing of purchases and sales by the Selling Stockholders.
The Company will pay substantially all the expenses incurred by the
Selling Stockholders and the Company incident to the Offering and sale of the
Shares to the public, but excluding any underwriting discounts, commissions or
transfer taxes. The Company has agreed to indemnify the Selling Stockholders
against certain liabilities, including liabilities under the Securities Act.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act and, in accordance therewith, files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). The
Registration Statement, as well as such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at 7
World Trade Center, Suite 1300, New York, New York 10048 and Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 606612511. Copies
of such material can also be obtained from the Public Reference Section of the
Commission at Room 1024, Judiciary Plaza, 450 West Fifth Street, N.W.,
Washington, D.C. 20549, and at its public reference facilities at New York, New
York and Chicago, Illinois at prescribed rates. The Commission also maintains a
Web site at http://www.sec.gov containing reports, proxy and information
statements and other information regarding registrants, including the Company,
that file electronically with the Commission. In addition, the Company's Common
Stock is listed on Nasdaq Market, and the aforementioned materials may also be
inspected at the offices of The Nasdaq Stock Market, Inc. at 1735 K Street,
N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on
Form S-3 (the "Registration Statement," which term shall include all amendments,
exhibits, annexes and schedules thereto) pursuant to the Securities Act, and the
rules and regulations promulgated thereunder, covering the Common Stock being
offered hereby. For further information with respect to the Company and the
shares of Common Stock being offered by this Prospectus, reference is hereby
made to such Registration Statement, including the exhibits filed as part
thereof. Statements contained in this Prospectus concerning the provisions of
certain documents filed with, or incorporated by reference in, the Registration
Statement are not necessarily complete, each such statement being qualified in
all respects by such reference. Copies of all or any part of the Registration
Statement, including the documents incorporated by reference therein or exhibits
thereto, may be obtained upon payment of the prescribed fees at the offices of
the Commission set forth above.
8
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the
Commission pursuant to the Exchange Act are incorporated in this Prospectus by
reference: (i) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, as amended by the Company's Annual Report on Form
10-K/A, as further amended by the Company's Annual Report on Form 10-K/A
(Amendment No. 2); (ii) the Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1997, as amended by the Company's Quarterly
Report on Form 10-Q/A for the quarterly period ended March 31, 1997; (iii) the
Company's Quarterly Report on Form 10-Q for the quarterly period ended June 30,
1997, as amended by the Company's Quarterly Report on Form 10-Q/A for the
quarterly period ended June 30, 1997; (iv) the Company's Quarterly Report on
Form 10-Q for the quarterly period ended September 30, 1997; (v) the Company's
Current Report on Form 8-K dated November 25, 1997; (vi) the Company's Current
Report on Form 8-K dated June 26, 1997, as amended by the Company's Current
Report on Form 8-K/A filed on July 16, 1997; (vii) the description of the
Company's Common Stock contained in its Registration Statement on Form 8-A
(Commission File No. 0-25998) as filed on April 28, 1995 under Section 12 of the
Exchange Act; (viii) the description of the Company's Series A, Series C, Series
D, Series E and Placement Agent Warrants contained in its Registration Statement
on Form 8-A (Commission File No. 0-25998) as filed on June 26, 1995 under
Section 12 of the Exchange Act.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the filing of a post-effective amendment hereto that indicates that all
securities offered hereunder have been sold or that deregisters all such
securities then remaining unsold shall be deemed to be incorporated by reference
in this Prospectus 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 herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
(or in an applicable Prospectus Supplement) or in any subsequently filed
document that is incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part of this Prospectus or any Prospectus Supplement, except as so
modified or superseded.
The Company will provide, without charge, to each person, including any
owner of Common Stock, to whom a copy of this Prospectus is delivered, at the
written or oral request of such person, a copy of any or all of the documents
incorporated herein by reference (other than exhibits thereto, unless such
exhibits are specifically incorporated by reference into such documents).
Requests for such copies should be directed to Robert Rivkin, Chief Financial
Officer, Waste Systems International, Inc., 10 Fawcett Street, Cambridge,
Massachusetts 02138, telephone (617) 497-4500.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been
passed upon for the Company and the Selling Stockholders by Goodwin, Procter &
Hoar LLP, Boston, Massachusetts.
EXPERTS
The consolidated financial statements of Waste Systems International,
Inc. as of December 31, 1996 and 1995, and for each of the years in the
three-year period ended December 31, 1996, incorporated herein by reference to
the Company's Annual Report on Form 10-K for the year ended December 31, 1996,
have been so incorporated in reliance on the report of KPMG Peat Marwick LLP,
independent certified public accountants, given on the authority of that firm as
experts in accounting and auditing. The report of KPMG Peat Marwick LLP covering
the consolidated financial statements is incorporated by reference herein and
contains an explanatory paragraph that states that the Company must raise
substantial additional capital and must achieve a level of revenues adequate to
support the Company's cost structure which raises substantial doubt about its
ability to continue as a going concern. The consolidated financial statements of
Waste Systems International, Inc., incorporated by reference herein, do not
include any adjustments that might result from the outcome of that uncertainty.
9
<PAGE>
No person has been authorized in connection with the offering made hereby to
give any information or to make any representation not contained in this
Prospectus and, if given or made, such information or representation must not be
relied upon as having been authorized by the Company, any Selling Stockholder or
any other person. 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 or by anyone in any jurisdiction in which it is unlawful to make such
offer or solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that the
information contained herein is correct as of any date subsequent to the date
hereof.
TABLE OF CONTENTS
Page
Risk Factors................................... 2
The Company.................................... 4
Registration Rights............................ 5
Selling Stockholders........................... 5-6
Plan of Distribution........................... 7
Available Information.......................... 8
Incorporation of Certain Documents
by Reference................................... 9
Legal Matters.................................. 9
Experts........................................ 9
35,577,304 Shares
WASTE SYSTEMS INTERNATIONAL, INC.
Common Stock
PROSPECTUS
, 1997
<PAGE>
================================================================================
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an itemized statement of all expenses
expected to be incurred in connection with the issuance and distribution of the
securities being registered (all of which are estimated, other than the filing
fee of the Securities and Exchange Commission):
Securities and Exchange Commission filing fee............... $ 8,091
Legal fees and expenses..................................... 7,500
Accounting fees and expenses................................ 2,000
Blue sky fees and expenses.................................. 5,000
Miscellaneous............................................... $ 5,000
------
$ 27,591
======
Item 15. Indemnification of Directors and Officers.
The Delaware General Corporation Law (the "DGCL") empowers a corporation
to 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 that person 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 (including employee benefits plans) against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by that person in connection with that action, suit or
proceeding, to the extent that that person (i) acted in good faith and in a
manner that that person reasonably believed to be in or not opposed to the best
interests of the corporation (including with respect to any employee benefit
plan actions in good faith and in a manner reasonably believed to be in the
interests of the beneficiaries of that employee benefit plan), and (ii) with
respect to any criminal action or proceeding, had no reasonable cause to believe
that the conduct was unlawful.
The DGCL also empowers a corporation to 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 the person acted in any of the
capacities set forth above (that is, a derivative action or suit) against
expenses (including attorneys' fees) actually and reasonably incurred by that
person in connection with the defense or settlement of such an action or suit if
that person acted under similar standards, except that no indemnification may be
made in respect of any claim, issue or matter as to which that person has been
adjudged to be liable to the corporation unless and to the extent that the Court
of Chancery or the court in which the action or suit was brought determines
that, despite the adjudication of liability but in view of all the circumstances
of the case, that person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper.
The DGCL further provides that (i) to the extent a director, officer,
employee or agent of a corporation has been successful in the defense of any
action, suit or proceeding referred to above or in the defense of any claim,
issue or matter in any such action, suit or proceeding, that person shall be
indemnified against expenses (including attorney's fees) actually and reasonably
incurred by that person in connection with that claim, issue or matter, (ii)
indemnification provided for by the DGCL shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled, and (iii) a
corporation may purchase and maintain insurance on behalf of a director,
officer, employee or agent of a corporation against any liability asserted
against that person or incurred by that person in any such capacity or arising
out of that person's status as such whether or not the corporation would have
the power to indemnify against such liabilities under the DGCL.
II-1
<PAGE>
The DGCL also provides that determinations with respect to
indemnification shall be made (i) by the board of directors of a corporation by
a majority vote of a quorum consisting of directors who were not parties to the
action, suit or proceeding, (ii) by independent legal counsel in a written
opinion in cases where a quorum is not obtainable, or, even if obtainable when a
quorum of disinterested directors so directs, or (iii) by the stockholders of
the corporation.
The DGCL contains express limitations on the ability to limit or
eliminate liability to a corporation or its stockholders. Under these
limitations, a director remains potentially liable for monetary damages to the
corporation or the stockholders for (i) breach of the director's duty of
loyalty, (ii) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) an improper payment of a
dividend or an improper repurchase of the corporation's stock and (iv) any
transaction from which a director derives an improper personal benefit.
Article VII of the Company's Amended and Restated Certificate of
Incorporation (the "Charter") provides that directors of the Company shall not
be personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty, except to the extent that the elimination or
limitation of liability is not permitted under the DGCL as in effect when such
liability is determined. Article X of the Charter provides that the Company
shall, to the fullest extent permitted by the DGCL, as amended from time to
time, indemnify each 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, administrative or investigative, by reason of the fact that such
person is or was, or has agreed to become, a director or officer of the Company,
or is or was serving, or has agreed to serve, at the request of the Company, as
a director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise, from and
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person or on his or
her behalf in connection with such action, suit or proceeding and any appeal
therefrom. Indemnification may include payment by the Company of expenses in
defending an action or proceeding in advance of the final disposition of such
action or proceeding upon receipt of any undertaking by the person indemnified
to repay such payment if it is ultimately determined that such person is not
entitled to indemnification, which undertaking may be accepted without reference
to the financial ability of such person to make such payments. The Company shall
not indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person unless the initiation
thereof was approved by the Board of Directors of the Company.
Pursuant to the Company's Bylaws, each officer and non-officer employee
of the Company shall be indemnified and held harmless by the Company to the
fullest extent authorized by the DGCL, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader rights than said law permitted
the Company to provide prior to such amendment), against any and all expenses
incurred by such officer or non-officer employee in connection with any
proceeding in which such officer or non-officer employee is involved as a result
of serving or having served (a) as an officer or employee of the Company, (b) as
a director, officer or employee of any subsidiary of the Company, or (c) in any
capacity with any other corporation, organization, partnership, joint venture,
trust or other entity at the written request or direction of the Company,
including service with respect to employee or other benefit plans, and shall
continue as to an officer or non-officer employee after he or she has ceased to
be an officer or non-officer employee and shall inure to the benefit of his or
her heirs, executors, administrators and personal representatives; provided,
however, that the Company shall indemnify any such officer or non-officer
employee seeking indemnification in connection with a proceeding initiated by
such officer or non-officer employee only if such proceeding was authorized by
the Board of Directors of the Company; and further provided that no
indemnification shall be provided to an officer or to a non-officer employee
with respect to a matter as to which such person shall have been finally
adjudicated in any proceeding not to have acted in good faith and in a manner
her or she reasonably believed to be in, and not opposed to, the best interests
of the Company, and, with respect to any criminal proceeding, had not reasonable
cause to believe his or her conduct was unlawful. In the event that a proceeding
is compromised or settled prior to final adjudication so as to impose any
liability or obligation upon an officer or non-officer employee, no
indemnification shall be provided to said officer or non-officer employee with
respect to a matter if there be a determination that with respect to such matter
such person did not act in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the Company, and,
with respect to any criminal proceeding, had no reasonable cause to believe his
or her conduct was unlawful. The determination contemplated by the preceding
sentence shall be made by (i) a majority vote of those Directors who are not
involved in such proceeding (the "Disinterested Directors"); (ii) by the
stockholders; or (iii) if directed by a majority of Disinterested Directors, by
independent legal counsel in a written opinion. However, if more than half of
the Directors are not Disinterested Directors, the determination shall be made
by (i) a majority vote of a committee of one or more Disinterested Director(s)
chosen by the Disinterested Director(s) at a regular or special meeting; (ii) by
the stockholders; or (iii) by independent legal counsel chosen by the Board of
Directors in a written opinion.
II-2
<PAGE>
The Company has entered into an indemnification agreement with one of
its directors, William B. Philipbar. The indemnification agreement requires,
among other things, that the Company indemnify Mr. Philipbar to the fullest
extent permitted by law and advance to Mr. Philipbar all related expenses. Under
this agreement, the Company must also indemnify and advance all expenses
incurred by Mr. Philipbar seeking to enforce his rights under the
indemnification agreement, provided Mr. Philipbar prevails. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by law, it provides additional assurance to Mr. Philipbar that
indemnification will be available because, as a contract, it cannot be modified
unilaterally in the future by the Board of Directors or the stockholders to
eliminate the rights it provides. It is the position of the Commission that
indemnification of directors and officers for liabilities under the Securities
Act is against public policy and unenforceable pursuant to Section 14 of the
Securities Act.
Item 16. Exhibits
4.1 Superseded Articles of Incorporation of the Registrant (Nevada)
(previously filed as an exhibit to Registrant's Registration Statement
on Form S-1, No. 33-93966).
4.2 Articles of Amendment to superseded Articles of Incorporation of
the Registrant (Nevada)(previously filed as an exhibit to Registrant's
Registration Statement on Form S-1, No. 33-93966) .
4.3 Amended and Restated Certificate of Incorporation of the Registrant
(Delaware).
4.4 Superseded Bylaws of the Registrant (Nevada) (previously filed
as an exhibit to Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995).
4.5 Bylaws of the Registrant (Delaware).
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
Common Stock being registered.
23.1 Consent of KPMG Peat Marwick L.L.P., Independent Accountants.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (Previously Filed).
II-3
<PAGE>
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;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered)and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b)if, in the aggregate,
the change in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement; and
(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 paragraphs (a)(1)(i) and (a)(1)(ii) herein do
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 undersigned Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that
in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director,
officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding)is asserted
by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, The Commonwealth of Massachusetts, on
December 22, 1997.
WASTE SYSTEMS INTERNATIONAL, INC.
By: /s/ Philip W. Straus
----------------------
Philip W. Strauss
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Philip W. Strauss President, Chief Executive December 22, 1997
- - - --------------------- Officer and Director
Philip W. Strauss (Principal Executive Officer)
/s/ Robert Rivkin Vice President, Chief Financial December 22, 1997
- - - --------------------- Officer and Director (Principal
Robert Rivkin Financial Officer and Accounting Officer)
* Director December 22, 1997
- - - --------------------
David Breazzano
* Director December 22, 1997
- - - --------------------
Charles Johnston
* Director December 22, 1997
- - - --------------------
Jay Matulich
* Director December 22, 1997
- - - ---------------------
Judy Mencher
* Director December 22, 1997
- - - ---------------------
William B. Philipbar
*By: /s/ Philip W. Strauss
---------------------
Philip W. Strauss
Attorney-in-Fact
<PAGE>
Index of Exhibits
4.1 Superseded Articles of Incorporation of the Registrant (Nevada)
(previously filed as an exhibit to Registrant's Registration Statement
on Form S-1, No. 33-93966).
4.2 Articles of Amendment to superseded Articles of Incorporation of the
Registrant (Nevada) (previously filed as an exhibit to Registrant's
Registration Statement on Form S-1, No.
33-93966) .
4.3 Amended and Restated Certificate of Incorporation of the Registrant
(Delaware).
4.4 Superseded Bylaws of the Registrant (Nevada) (previously filed as an
exhibit to Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995).
4.5 Bylaws of the Registrant (Delaware).
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the Common
Stock being registered.
23.1 Consent of KPMG Peat Marwick L.L.P., Independent Accountants.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1 hereto)
24.1 Power of Attorney (Previously Filed).
<PAGE>
Exhibit 4.3
FIRST AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
WASTE SYSTEMS INTERNATIONAL, INC.
Waste Systems International, Inc., a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The name of the Corporation is Waste Systems International, Inc. The
date of the filing of its original Certificate of Incorporation with the
Secretary of State of the State of Delaware was January 13, 1997. The name under
which the Corporation filed its original Certificate of Incorporation was Waste
Systems International, Inc.
2. This First Amended and Restated Certificate of Incorporation amends,
restates and integrates the provisions of the Certificate of Incorporation of
the Corporation filed with the Secretary of State of the State of Delaware on
January 13, 1997 as heretofore amended (the "Certificate of Incorporation"), and
was duly adopted by the written consent of the stockholders of the Corporation,
all in accordance with the applicable provisions of Sections 228, 242 and 245 of
the General Corporation Law of the State of Delaware (the "DGCL").
3. The text of the Certificate of Incorporation is hereby amended and
restated in its entirety to provide as herein set forth in full.
ARTICLE I
NAME
The name of the Corporation is Waste Systems International, Inc.
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE III
PURPOSES
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
<PAGE>
ARTICLE IV
CAPITAL STOCK
The total number of shares of capital stock which the Corporation shall
have the authority to issue is One Hundred Fifty One Million (151,000,000)
shares of which (i) One Hundred Fifty Million (150,000,000) shares shall be
common stock, par value $.001 per share (the "Common Stock"), and (ii) One
Million (1,000,000) shares shall be preferred stock, par value $.001 per share
(the "Preferred Stock").
A. PREFERRED STOCK
As set forth in this Article IV, the Board of Directors or any
authorized committee thereof is authorized from time to time to establish and
designate one or more series of Preferred Stock, to fix and determine the
variations in the relative rights and preferences as between the different
series of Preferred Stock in the manner hereinafter set forth in this Article
IV, and to fix or alter the number of shares comprising any such series and the
designation thereof to the extent permitted by law.
The number of authorized shares of the class of Preferred Stock may be
increased or decreased (but not below the number of shares outstanding) by the
affirmative vote of the holders of a majority of the Common Stock, without a
vote of the holders of the Preferred Stock.
The designations, powers, preferences and rights of, and the
qualifications, limitations and restrictions upon, each class or series of stock
shall be determined in accordance with, or as set forth below.
Subject to any limitations prescribed by law, the Board of Directors or
any authorized committee thereof is expressly authorized to provide for the
issuance of the shares of Preferred Stock in one or more series of such stock,
and by filing a certificate pursuant to applicable law of the State of Delaware,
to establish or change from time to time the number of shares to be included in
each such series, and to fix the designations, powers, preferences and the
relative, participating, optional or other special rights of the shares of each
series and any qualifications, limitations and restrictions thereof. Any action
by the Board of Directors or any authorized committee thereof under this Article
IV to fix the designations, powers, preferences and the relative, participating,
optional or other special rights of the shares of a series of Preferred Stock
and any qualifications, limitations and restrictions thereof shall require the
affirmative vote of a majority of the Directors then in office or a majority of
the members of such committee. The Board of Directors or any authorized
committee thereof shall have the right to determine or fix one or more of the
following with respect to each series of Preferred Stock to the extent permitted
by law:
(a) The distinctive serial designation and the number of
shares constituting such series;
(b) The rights in respect of dividends or the amount of
dividends to be paid on the shares of such series, whether dividends shall be
cumulative and, if so, from which date or dates, the payment date or dates for
dividends, and the participating and other rights, if any, with respect to
dividends;
(c) The voting powers, full or limited, if any, of the shares
of such series;
(d) Whether the shares of such series shall be redeemable and,
if so, the price or prices at which, and the terms and conditions on which, such
shares may be redeemed;
(e) The amount or amounts payable upon the shares of such
series and any preferences applicable thereto in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation;
<PAGE>
(f) Whether the shares of such series shall be entitled to the
benefit of a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund and the
manner of its application, including the price or prices at which such shares
may be redeemed or purchased through the application of such fund;
(g) Whether the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or classes or of any other
series of the same or any other class or classes of stock of the Corporation
and, if so convertible or exchangeable, the conversion price or prices, or the
rate or rates of exchange, and the adjustments thereof, if any, at which such
conversion or exchange may be made, and any other terms and conditions of such
conversion or exchange;
(h) The price or other consideration for which the shares of
such series shall be issued;
(i) Whether the shares of such series which are redeemed or
converted shall have the status of authorized but unissued shares of Preferred
Stock (or series thereof) and whether such shares may be reissued as shares of
the same or any other class or series of stock; and
(j) Such other powers, preferences, rights, qualifications,
limitations and restrictions thereof as the Board of Directors or any authorized
committee thereof may deem advisable.
B. COMMON STOCK
1. Voting. Each holder of record shall be entitled to one vote for
each share of Common Stock standing in his name on the books of the Corporation.
2. Dividends. Subject to applicable law, the holders of Common Stock
shall be entitled to receive dividends out of funds legally available therefor
at such times and in such amounts as the Board of Directors may determine in its
sole discretion, with each share of Common Stock sharing equally, share for
share, in such dividends.
3. Liquidation. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary (a "Liquidation Event"), after the
payment or provision for payment of all debts and liabilities of the Corporation
and all preferential amounts to which the holders of Preferred Stock are
entitled with respect to the distribution of assets in liquidation, the holders
of Common Stock shall be entitled to share ratably in the remaining assets of
the Corporation available for distribution.
4. Notices. In the event that the Corporation provides any notice,
report or statement to any holder of Common Stock, the Corporation shall at the
same time provide a copy of any such notice, report or statement to each holder
of outstanding Common Stock.
<PAGE>
ARTICLE V
BOARD OF DIRECTORS
1. General. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors except as otherwise
provided herein or required by law.
2. Election of Directors. Election of Directors need not be by written
ballot unless the By-laws of the Corporation shall so provide.
3. Terms of Directors. The number of Directors of the Corporation shall
be fixed by resolution duly adopted from time to time by the Board of Directors.
The Directors of the Corporation shall serve for one-year terms expiring on the
date of the Corporation's Annual Meeting and until such Director's successor
shall have been duly elected and qualified or until their earlier resignation or
removal. At each succeeding annual meeting of the Stockholders of the
Corporation, the successors of the Directors whose term expires at that meeting
shall be elected by a plurality vote of all votes cast at such meeting.
Notwithstanding the foregoing, whenever, pursuant to the provisions of
Article IV of this Certificate of Incorporation, the holders of any one or more
series of Preferred Stock shall have the right, voting separately as a series or
together with holders of other such series, to elect Directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation and any certificate of designations
applicable thereto.
During any period when the holders of any series of Preferred Stock
have the right to elect additional Directors as provided for or fixed pursuant
to the provisions of Article IV hereof, then upon commencement and for the
duration of the period during which such right continues: (i) the then otherwise
total authorized number of Directors of the Corporation shall automatically be
increased by such specified number of Directors, and the holders of such
Preferred Stock shall be entitled to elect the additional Directors so provided
for or fixed pursuant to said provisions, and (ii) each such additional Director
shall serve until such Director's successor shall have been duly elected and
qualified, or until such Director's right to hold such office terminates
pursuant to said provisions, whichever occurs earlier, subject to such
Director's earlier death, disqualification, resignation or removal. Except as
otherwise provided by the Board in the resolution or resolutions establishing
such series, whenever the holders of any series of Preferred Stock having such
right to elect additional Directors are divested of such right pursuant to the
provisions of such stock, the terms of office of all such additional Directors
elected by the holders of such stock, or elected to fill any vacancies resulting
from the death, resignation, disqualification or removal of such additional
Directors, shall forthwith terminate and the total and authorized number of
Directors of the Corporation shall be reduced accordingly.
4. Stockholder Nominations of Director Candidates. Advance notice of
nominations for the election of Directors, other than by the Board of Directors
of a committee thereof, shall be given in the manner provided in the By-laws.
<PAGE>
5. Vacancies. Subject to the rights, if any, of the holders of any
series of Preferred Stock to elect Directors and to fill vacancies in the Board
of Directors relating thereto, any and all vacancies in the Board of Directors,
however occurring, including, without limitation, by reason of an increase in
size of the Board of Directors, or the death, resignation, disqualification or
removal of a Director, shall be filled solely by the affirmative vote of a
majority of the remaining Directors then in office, even if less than a quorum
of the Board of Directors. Any Director appointed in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
created or vacated directorship and until such Director's successor shall have
been duly elected and qualified or until his or her earlier resignation or
removal. Subject to the rights, if any, of the holders of any series of
Preferred Stock to elect Directors, no decrease in the number of Directors shall
shorten the term of any incumbent Director. In the event of a vacancy in the
Board of Directors, the remaining Directors, except as otherwise provided by
law, may exercise the powers of the full Board of Directors until the vacancy is
filled.
6. Removal. Subject to the rights, if any, of any series of Preferred
Stock to elect Directors and to remove any Director whom the holders of any such
stock have the right to elect, any Director (including persons elected by
Directors to fill vacancies in the Board of Directors) may be removed from
office (i) only with cause and (ii) only by the affirmative vote of at least
two-thirds of the total votes which would be eligible to be cast by stockholders
in the election of such Director. At least 30 days prior to any meeting of
stockholders at which it is proposed that any Director be removed from office,
written notice of such proposed removal shall be sent to the Director whose
removal will be considered at the meeting. For purposes of this Certificate of
Incorporation, "cause," with respect to the removal of any Director shall
include (i) conviction of a felony, (ii) declaration of unsound mind by order of
court, (iii) gross dereliction of duty, (iv) commission of any action involving
moral turpitude, or (v) commission of an action which constitutes intentional
misconduct or a knowing violation of law if such action in either event results
both in an improper substantial personal benefit and a material injury to the
Corporation.
ARTICLE VI
STOCKHOLDER ACTION
Any action required or permitted to be taken by the stockholders of the
Corporation at any annual or special meeting of stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders and
may not be taken or effected by a written consent of stockholders in lieu
thereof. Except as otherwise required by law and subject to the rights of the
holders of any series of preferred stock, special meetings of the stockholders
of the Corporation may be called only by (i) the Board of Directors pursuant to
a resolution approved by the affirmative vote of a majority of the Directors
then in office, (ii) the Chairman of the Board, if one is elected, or (iii) the
President. Only those matters set forth in the notice of the special meeting may
be considered or acted upon at a special meeting of stockholders of the
Corporation, unless otherwise provided by law. Advance notice of any matters or
nominations which stockholder intend to propose for action at an annual meeting
shall be given in the manner provided in the By-laws.
<PAGE>
ARTICLE VII
LIMITATION OF LIABILITY
A director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that the elimination or limitation of
liability is not permitted under the Delaware General Corporation Law as in
effect when such liability is determined. No amendment or repeal of this
provision shall deprive a director of the benefits hereof with respect to any
act or omission occurring prior to such amendment or repeal.
Any repeal or modification of this Article VII by either of (i) the
stockholders of the Corporation or (ii) an amendment to the DGCL, shall not
adversely affect any right or protection existing at the time of such repeal or
modification with respect to any acts or omissions occurring before such repeal
or modification of a person serving as a Director at the time of such repeal or
modification.
ARTICLE VIII
AMENDMENT OF BY-LAWS
1. Amendment by Directors Except as otherwise provided by law, the
By-laws of the Corporation may be amended or repealed by the Board of Directors.
2. Amendment by Stockholders. The By-laws of the Corporation may be
amended or repealed at any annual meeting of stockholders, or special meeting of
stockholders called for such purpose, by the affirmative vote of at least
two-thirds of the total votes eligible to be cast on such amendment or repeal by
holders of voting stock, voting together as a single class; provided, however,
that if the Board of Directors recommends that stockholders approve such
amendment or repeal at such meeting of stockholders, such amendment or repeal
shall only require the affirmative vote of a majority of the total votes
eligible to be cast on such amendment or repeal by holders of voting stock,
voting together as a single class.
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend or repeal this Certificate
of Incorporation in the manner now or hereafter prescribed by statute and this
Certificate of Incorporation, and all rights conferred upon stockholders herein
are granted subject to this reservation. No amendment or repeal of this
Certificate of Incorporation shall be made unless the same is first approved by
the Board of Directors pursuant to a resolution adopted by the Board of
Directors in accordance with Section 242 of the DGCL, and, except as otherwise
provided by law, thereafter approved by the stockholders. Whenever any vote of
the holders of voting stock is required to amend or repeal any provision of this
Certificate of Incorporation, and in addition to any other vote of holders of
voting stock that is required by this Certificate of Incorporation, or by law,
the affirmative vote of a majority of the total votes eligible to be cast by
holders of voting stock with respect to such amendment or repeal, voting
together a single class, at a duly constituted meeting of stockholders called
expressly for such purpose shall be required to amend or repeal any provisions
of this Certificate of Incorporation; provided, however, that the affirmative
vote of not less than 80% of the total votes eligible to be cast by holders of
voting stock, voting together as a single class, shall be required to amend or
repeal any of the provisions of Article VI or Article X of this Certificate of
Incorporation.
<PAGE>
ARTICLE X
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by the Delaware
General Corporation Law, as amended from time to time, indemnify each 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, administrative or
investigative, by reason of the fact that such person is or was, or has agreed
to become, a director or officer of the corporation, or is or was serving, or
has agreed to serve, at the request of the Corporation, as a director, officer
or trustee of, or in a similar capacity with, another corporation, as a
director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise, from and
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person or on his or
her behalf in connection with such action, suit or proceeding and any appeal
therefrom.
Indemnification may include payment by the Corporation of expenses in
defending an action or proceeding in advance of the final disposition of such
action or proceeding upon receipt of any undertaking by the person indemnified
to repay such payment if it is ultimately determined that such person in not
entitled to indemnification under this Article, which undertaking may be
accepted without reference to the financial ability of such person to make such
payments.
The Corporation shall not indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person unless the initiation thereof was approved by the Board of Directors
of the Corporation.
The indemnification rights provided in this Article X (i) shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any law, agreement or vote of stockholders or disinterested directors or
otherwise, and (ii) shall inure to the benefit of the heirs, executors and
administrators of such persons. The Corporation may, to the extent authorized
from time to time by its Board of Directors, grant indemnification rights to
other employees or agents of the Corporation or other persons serving the
Corporation and such rights may be equivalent to, or greater or less than, those
set forth in this Article.
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.
Any amendment or repeal of the provisions of this Article shall not
adversely affect any right or protection of a director or officer of the
Corporation with respect to any act or omission of such director or officer
occurring prior to such amendment or repeal.
ARTICLE XI
BOOKS
The books of this Corporation may (subject to any statutory
requirements) be kept outside the State of Delaware as may be designated by the
Board of Directors or in the Bylaws.
[Remainder of page left intentionally blank]
<PAGE>
WASTE SYSTEMS INTERNATIONAL, INC.
By: /s/ Philip Strauss
------------------
Philip Strauss
President
By: /s/ Robert Rivkin
------------------
Robert Rivkin
Secretary
<PAGE>
BYLAWS
OF
WASTE SYSTEMS INTERNATIONAL, INC.
ARTICLE I
Stockholders
SECTION 1. Annual Meeting. The annual meeting of stockholders shall be
held at the hour, date and place within or without the United States which is
fixed by the majority of the Board of Directors, the Chairman of the Board, if
one is elected, or the President, which time, date and place may subsequently be
changed at any time by vote of the Board of Directors. If no annual meeting has
been held for a period of thirteen months after the Corporation's last annual
meeting of stockholders, a special meeting in lieu thereof may be held, and such
special meeting shall have, for the purposes of these Bylaws or otherwise, all
the force and effect of an annual meeting. Any and all references hereafter in
these Bylaws to an annual meeting or annual meetings also shall be deemed to
refer to any special meeting(s) in lieu thereof.
SECTION 2. Matters to be Considered at Annual Meetings. At any annual
meeting of stockholders or any special meeting in lieu of annual meeting of
stockholders (the "Annual Meeting"), only such business shall be conducted, and
only such proposals shall be acted upon, as shall have been properly brought
before such Annual Meeting. To be considered as properly brought before an
Annual Meeting, business must be: (a) specified in the notice of meeting, (b)
otherwise properly brought before the meeting by, or at the direction of, the
Board of Directors, or (c) otherwise properly brought before the meeting by any
holder of record (both as of the time notice of such proposal is given by the
stockholder as set forth below and as of the record date for the Annual Meeting
in question) of any shares of capital stock of the Corporation entitled to vote
at such Annual Meeting who complies with the requirements set forth in this
Section 2.
In addition to any other applicable requirements, for business to be
properly brought before an Annual Meeting by a stockholder of record of any
shares of capital stock entitled to vote at such Annual Meeting, such
stockholder shall: (i) give timely notice as required by this Section 2 to the
Secretary of the Corporation and (ii) be present at such meeting, either in
person or by a representative. For all Annual Meetings, a stockholder's notice
shall be timely if delivered to, or mailed to and received by, the Corporation
at its principal executive office not less than 75 days nor more than 120 days
prior to the anniversary date of the immediately preceding Annual Meeting (the
"Anniversary Date"); provided, however, that in the event the Annual Meeting is
scheduled to be held on a date more than 30 days before the Anniversary Date or
more than 60 days after the Anniversary Date, a stockholder's notice shall be
timely if delivered to, or mailed to and received by, the Corporation at its
principal executive office not later than the close of business on the later of
(A) the 75th day prior to the scheduled date of such Annual Meeting or (B) the
15th day following the day on which public announcement of the date of such
Annual Meeting is first made by the Corporation.
<PAGE>
For purposes of these Bylaws, "public announcement" shall mean: (i)
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service, (ii) a report or other document filed
publicly with the Securities and Exchange Commission (including, without
limitation, a Form 8-K), or (iii) a letter or report sent to stockholders of
record of the Corporation at the time of the mailing of such letter or report.
A stockholder's notice to the Secretary shall set forth as to each
matter proposed to be brought before an Annual Meeting: (i) a brief description
of the business the stockholder desires to bring before such Annual Meeting and
the reasons for conducting such business at such Annual Meeting, (ii) the name
and address, as they appear on the Corporation's stock transfer books, of the
stockholder proposing such business, (iii) the class and number of shares of the
Corporation's capital stock beneficially owned by the stockholder proposing such
business, (iv) the names and addresses of the beneficial owners, if any, of any
capital stock of the Corporation registered in such stockholder's name on such
books, and the class and number of shares of the Corporation's capital stock
beneficially owned by such beneficial owners, (v) the names and addresses of
other stockholders known by the stockholder proposing such business to support
such proposal, and the class and number of shares of the Corporation's capital
stock beneficially owned by such other stockholders, and (vi) any material
interest of the stockholder proposing to bring such business before such meeting
(or any other stockholders known to be supporting such proposal) in such
proposal.
If the Board of Directors or a designated committee thereof determines
that any stockholder proposal was not made in a timely fashion in accordance
with the provisions of this Section 2 or that the information provided in a
stockholder's notice does not satisfy the information requirements of this
Section 2 in any material respect, such proposal shall not be presented for
action at the Annual Meeting in question. If neither the Board of Directors nor
such committee makes a determination as to the validity of any stockholder
proposal in the manner set forth above, the presiding officer of the Annual
Meeting shall determine whether the stockholder proposal was made in accordance
with the terms of this Section 2. If the presiding officer determines that any
stockholder proposal was not made in a timely fashion in accordance with the
provisions of this Section 2 or that the information provided in a stockholder's
notice does not satisfy the information requirements of this Section 2 in any
material respect, such proposal shall not be presented for action at the Annual
Meeting in question. If the Board of Directors, a designated committee thereof
or the presiding officer determines that a stockholder proposal was made in
accordance with the requirements of this Section 2, the presiding officer shall
so declare at the Annual Meeting and ballots shall be provided for use at the
meeting with respect to such proposal.
Notwithstanding the foregoing provisions of this Bylaw, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder with respect to the matters set forth in this By-Law, and nothing in
this By-Law shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
SECTION 3. Special Meetings. Except as otherwise required by law and
subject to the rights, if any, of the holders of any series of Preferred Stock
of the Corporation, special meetings of the stockholders of the Corporation may
be called only by the Board of Directors pursuant to a resolution approved by
the affirmative vote of a majority of the Directors then in office.
<PAGE>
SECTION 4. Matters to be Considered at Special Meetings. Only those
matters set forth in the notice of the special meeting may be considered or
acted upon at a special meeting of stockholders of the Corporation, unless
otherwise provided by law.
SECTION 5. Notice of Meetings; Adjournments. A written notice of all
Annual Meetings stating the hour, date and place of such Annual Meetings shall
be given by the Secretary or an Assistant Secretary (or other person authorized
by these Bylaws or by law) not less than 10 days nor more than 60 days before
the Annual Meeting, to each stockholder entitled to vote thereat and to each
stockholder who, by law or under the Amended and Restated Certificate of
Incorporation of the Corporation (as the same may hereafter be amended and/or
restated, the "Certificate") or under these Bylaws, is entitled to such notice,
by delivering such notice to him or by mailing it, postage prepaid, addressed to
such stockholder at the address of such stockholder as it appears on the
Corporation's stock transfer books. Such notice shall be deemed to be delivered
when hand delivered to such address or deposited in the mail so addressed, with
postage prepaid.
Notice of all special meetings of stockholders shall be given in the
same manner as provided for Annual Meetings, except that the written notice of
all special meetings shall state the purpose or purposes for which the meeting
has been called.
Notice of an Annual Meeting or special meeting of stockholders need not
be given to a stockholder if a written waiver of notice is signed before or
after such meeting by such stockholder or if such stockholder attends such
meeting, unless such attendance was for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
was not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any Annual Meeting or special meeting of stockholders need
be specified in any written waiver of notice.
The Board of Directors may postpone and reschedule any previously
scheduled Annual Meeting or special meeting of stockholders and any record date
with respect thereto, regardless of whether any notice or public disclosure with
respect to any such meeting has been sent or made pursuant to Section 2 of this
Article I or Section 3 of Article II hereof or otherwise. In no event shall the
public announcement of an adjournment, postponement or rescheduling of any
previously scheduled meeting of stockholders commence a new time period for the
giving of a stockholder's notice under Section 2 of Article I and Section 3 of
Article II of these Bylaws.
When any meeting is convened, the presiding officer may adjourn the
meeting if (a) no quorum is present for the transaction of business, (b) the
Board of Directors determines that adjournment is necessary or appropriate to
enable the stockholders to consider fully information which the Board of
Directors determines has not been made sufficiently or timely available to
stockholders, or (c) the Board of Directors determines that adjournment is
otherwise in the best interests of the Corporation. When any Annual Meeting or
special meeting of stockholders is adjourned to another hour, date or place,
notice need not be given of the adjourned meeting other than an announcement at
the meeting at which the adjournment is taken of the hour, date and place to
which the meeting is adjourned; provided, however, that if the adjournment is
for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote thereat and each stockholder who, by
law or under the Certificate or these Bylaws, is entitled to such notice.
<PAGE>
SECTION 6. Quorum. The holders of shares of voting stock representing a
majority of the voting power of the outstanding shares of voting stock issued,
outstanding and entitled to vote at a meeting of stockholders, represented in
person or by proxy at such meeting, shall constitute a quorum; but if less than
a quorum is present at a meeting, the holders of voting stock representing a
majority of the voting power present at the meeting or the presiding officer may
adjourn the meeting from time to time, and the meeting may be held as adjourned
without further notice, except as provided in Section 5 of this Article I. At
such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
noticed. The stockholders present at a duly constituted meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION 7. Voting and Proxies. Stockholders shall have one vote for
each share of stock entitled to vote owned by them of record according to the
books of the Corporation, unless otherwise provided by law or by the
Certificate. Stockholders may vote either in person or by written proxy, but no
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. Proxies shall be filed with the Secretary of
the meeting before being voted. Except as otherwise limited therein or as
otherwise provided by law, proxies shall entitle the persons authorized thereby
to vote at any adjournment of such meeting, but they shall not be valid after
final adjournment of such meeting. A proxy with respect to stock held in the
name of two or more persons shall be valid if executed by or on behalf of any
one of them unless at or prior to the exercise of the proxy the Corporation
receives a specific written notice to the contrary from any one of them. A proxy
purporting to be executed by or on behalf of a stockholder shall be deemed
valid, and the burden of proving invalidity shall rest on the challenger.
SECTION 8. Action at Meeting. When a quorum is present, any matter
before any meeting of stockholders shall be decided by the vote of a majority of
the voting power of shares of voting stock, present in person or represented by
proxy at such meeting and entitled to vote on such matter, except where a larger
vote is required by law, by the Certificate or by these Bylaws. Any election by
stockholders shall be determined by a plurality of the votes cast, except where
a larger vote is required by law, by the Certificate or by these Bylaws. The
Corporation shall not directly or indirectly vote any shares of its own stock;
provided, however, that the Corporation may vote shares which it holds in a
fiduciary capacity to the extent permitted by law.
SECTION 9. Action by Consent. Any action required or permitted to be
taken by the Stockholders of the Corporation at any annual or special meeting of
stockholders of the Corporation must be effected at a duly-called Annual or
Special Meeting of Stockholders and may not be taken or effected by a written
consent of stockholders in lieu thereof.
SECTION 10. Stockholder Lists. The Secretary or an Assistant Secretary
(or the Corporation's transfer agent or other person authorized by these Bylaws
or by law) shall prepare and make, at least 10 days before every Annual Meeting
or special meeting of stockholders, a complete list of the stockholders entitled
to vote at the meeting, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least 10 days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the hour, date and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
<PAGE>
SECTION 11. Presiding Officer. The Chairman of the Board, if one is
elected, or if not elected or in his or her absence, the President, shall
preside at all Annual Meetings or special meetings of stockholders and shall
have the power, among other things, to adjourn such meeting at any time and from
time to time, subject to Sections 5 and 6 of this Article I. The order of
business and all other matters of procedure at any meeting of the stockholders
shall be determined by the presiding officer.
SECTION 12. Voting Procedures and Inspectors of Elections. The
Corporation shall, in advance of any meeting of stockholders, appoint one or
more inspectors to act at the meeting and make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act at a
meeting of stockholders, the presiding officer shall appoint one or more
inspectors to act at the meeting. Any inspector may, but need not, be an
officer, employee or agent of the Corporation. Each inspector, before entering
upon the discharge of his or her duties, shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall perform such duties as are
required by the General Corporation Law of the State of Delaware, as amended
from time to time (the "DGCL"), including the counting of all votes and ballots.
The inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors. The presiding
officer may review all determinations made by the inspector(s), and in so doing
the presiding officer shall be entitled to exercise his or her sole judgment and
discretion and he or she shall not be bound by any determinations made by the
inspector(s). All determinations by the inspector(s) and, if applicable, the
presiding officer shall be subject to further review by any court of competent
jurisdiction.
ARTICLE II
Directors
SECTION 1. Powers. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors except as
otherwise provided by the Certificate or required by law.
SECTION 2. Number and Terms. The number of Directors of the Corporation
shall be fixed by resolution duly adopted from time to time by the Board of
Directors. The Directors shall hold office in the manner provided in the
Certificate.
SECTION 3. Director Nominations. Nominations of candidates for election
as directors of the Corporation at any Annual Meeting may be made only (a) by,
or at the direction of, a majority of the Board of Directors or (b) by any
holder of record (both as of the time notice of such nomination is given by the
stockholder as set forth below and as of the record date for the Annual Meeting
in question) of any shares of the capital stock of the Corporation entitled to
vote at such Annual Meeting who complies with the timing, informational and
other requirements set forth in this Section 3. Any stockholder who has complied
with the timing, informational and other requirements set forth in this Section
3 and who seeks to make such a nomination, or his, her or its representative,
must be present in person at the Annual Meeting. Only persons nominated in
accordance with the procedures set forth in this Section 3 shall be eligible for
election as directors at an Annual Meeting.
<PAGE>
Nominations, other than those made by, or at the direction of, the
Board of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Section 3. For the first
Annual Meeting following the initial public offering of common stock of the
Corporation, a stockholder's notice shall be timely if delivered to, or mailed
to and received by, the Corporation at its principal executive office not later
than the close of business on the later of (A) the 75th day prior to the
scheduled date of such Annual Meeting or (B) the 15th day following the day on
which public announcement of the date of such Annual Meeting is first made by
the Corporation. For all subsequent Annual Meetings, a stockholder's notice
shall be timely if delivered to, or mailed to and received by, the Corporation
at its principal executive office not less than 75 days nor more than 120 days
prior to the Anniversary Date; provided, however, that in the event the Annual
Meeting is scheduled to be held on a date more than 30 days before the
Anniversary Date or more than 60 days after the Anniversary Date, a
stockholder's notice shall be timely if delivered to, or mailed and received by,
the Corporation at its principal executive office not later than the close of
business on the later of (i) the 75th day prior to the scheduled date of such
Annual Meeting or (ii) the 15th day following the day on which public
announcement of the date of such Annual Meeting is first made by the
Corporation.
A stockholder's notice to the Secretary shall set forth as to each
person whom the stockholder proposes to nominate for election or re-election as
a director: (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of the Corporation's capital stock which are
beneficially owned by such person on the date of such stockholder notice, and
(iv) the consent of each nominee to serve as a director if elected. A
stockholder's notice to the Secretary shall further set forth as to the
stockholder giving such notice: (i) the name and address, as they appear on the
Corporation's stock transfer books, of such stockholder and of the beneficial
owners (if any) of the Corporation's capital stock registered in such
stockholder's name and the name and address of other stockholders known by such
stockholder to be supporting such nominee(s), (ii) the class and number of
shares of the Corporation's capital stock which are held of record, beneficially
owned or represented by proxy by such stockholder and by any other stockholders
known by such stockholder to be supporting such nominee(s) on the record date
for the Annual Meeting in question (if such date shall then have been made
publicly available) and on the date of such stockholder's notice, and (iii) a
description of all arrangements or understandings between such stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by such
stockholder.
If the Board of Directors or a designated committee thereof determines
that any stockholder nomination was not made in accordance with the terms of
this Section 3 or that the information provided in a stockholder's notice does
not satisfy the informational requirements of this Section 3 in any material
respect, then such nomination shall not be considered at the Annual Meeting in
question. If neither the Board of Directors nor such committee makes a
determination as to whether a nomination was made in accordance with the
provisions of this Section 3, the presiding officer of the Annual Meeting shall
determine whether a nomination was made in accordance with such provisions. If
the presiding officer determines that any stockholder nomination was not made in
accordance with the terms of this Section 3 or that the information provided in
a stockholder's notice does not satisfy the informational requirements of this
Section 3 in any material respect, then such nomination shall not be considered
at the Annual Meeting in question. If the Board of Directors, a designated
committee thereof or the presiding officer determines that a nomination was made
in accordance with the terms of this Section 3, the presiding officer shall so
declare at the Annual Meeting and ballots shall be provided for use at the
meeting with respect to such nominee.
<PAGE>
Notwithstanding anything to the contrary in the second sentence of the
second paragraph of this Section 3, in the event that the number of directors to
be elected to the Board of Directors of the Corporation is increased and there
is no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors at least 75
days prior to the Anniversary Date, a stockholder's notice required by this
Section 3 shall also be considered timely, but only with respect to nominees for
any new positions created by such increase, if such notice shall be delivered
to, or mailed to and received by, the Corporation at its principal executive
office not later than the close of business on the 15th day following the day on
which such public announcement is first made by the Corporation.
No person shall be elected by the stockholders as a Director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section. Election of Directors at the annual meeting need not be by written
ballot, unless otherwise provided by the Board of Directors or presiding officer
at such annual meeting. If written ballots are to be used, ballots bearing the
names of all the persons who have been nominated for election as Directors at
the annual meeting in accordance with the procedures set forth in this Section
shall be provided for use at the annual meeting.
SECTION 4. Qualification. No Director need be a stockholder of the
Corporation.
SECTION 5. Vacancies. Subject to the rights, if any, of the holders of
any series of Preferred Stock of the Corporation to elect Directors and to fill
vacancies in the Board of Directors relating thereto, any and all vacancies in
the Board of Directors, however occurring, including, without limitation, by
reason of an increase in size of the Board of Directors, or the death,
resignation, disqualification or removal of a Director, shall be filled solely
by the affirmative vote of a majority of the remaining Directors then in office,
even if less than a quorum of the Board of Directors. Any Director appointed in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of Directors in which the new directorship was
created or the vacancy occurred and until such Director's successor shall have
been duly elected and qualified or until his or her earlier resignation or
removal. Subject to the rights, if any, of the holders of any series of
Preferred Stock of the Corporation to elect Directors, when the number of
Directors is increased or decreased, the Board of Directors shall determine the
class or classes to which the increased or decreased number of Directors shall
be apportioned; provided, however, that no decrease in the number of Directors
shall shorten the term of any incumbent Director. In the event of a vacancy in
the Board of Directors, the remaining Directors, except as otherwise provided by
law, may exercise the powers of the full Board of Directors until the vacancy is
filled.
SECTION 6. Removal. Directors may be removed from office in the
manner provided in the Certificate.
SECTION 7. Resignation. A Director may resign at any time by giving
written notice to the Chairman of the Board, if one is elected, the President or
the Secretary. A resignation shall be effective upon receipt, unless the
resignation otherwise provides.
SECTION 8. Regular Meetings. The regular annual meeting of the Board of
Directors shall be held, without notice other than this By-Law, on the same date
and at the same place as the Annual Meeting following the close of such Annual
Meeting of Stockholders. Other regular meetings of the Board of Directors may be
held at such hour, date and place as the Board of Directors may by resolution
from time to time determine without notice other than such resolution.
<PAGE>
SECTION 9. Special Meetings. Special meetings of the Board of Directors
may be called, orally or in writing, by or at the request of a majority of the
Directors, the Chairman of the Board, if one is elected, or the President. The
person calling any such special meeting of the Board of Directors may fix the
hour, date and place thereof.
SECTION 10. Notice of Meetings. Notice of the hour, date and place of
all special meetings of the Board of Directors shall be given to each Director
by the Secretary or an Assistant Secretary, or in case of the death, absence,
incapacity or refusal of such persons, by the Chairman of the Board, if one is
elected, or the President or such other officer designated by the Chairman of
the Board, if one is elected, or the President. Notice of any special meeting of
the Board of Directors shall be given to each Director in person, by telephone,
or by telex, telecopy, telegram, or other written form of electronic
communication, sent to his or her business or home address, at least 24 hours in
advance of the meeting, or by written notice mailed to his or her business or
home address, at least 48 hours in advance of the meeting. Such notice shall be
deemed to be delivered when hand delivered to such address, read to such
Director by telephone, deposited in the mail so addressed, with postage thereon
prepaid if mailed, dispatched or transmitted if telexed or telecopied, or when
delivered to the telegraph company if sent by telegram.
When any Board of Directors meeting, either regular or special, is
adjourned for 30 days or more, notice of the adjourned meeting shall be given as
in the case of an original meeting. It shall not be necessary to give any notice
of the hour, date or place of any meeting adjourned for less than 30 days or of
the business to be transacted thereat, other than an announcement at the meeting
at which such adjournment is taken of the hour, date and place to which the
meeting is adjourned.
A written waiver of notice signed before or after a meeting by a
Director and filed with the records of the meeting shall be deemed to be
equivalent to notice of the meeting. The attendance of a Director at a meeting
shall constitute a waiver of notice of such meeting, except where a Director
attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because such meeting is not lawfully
called or convened. Except as otherwise required by law, by the Certificate or
by these Bylaws, neither the business to be transacted at, nor the purpose of,
any meeting of the Board of Directors need be specified in the notice or waiver
of notice of such meeting.
SECTION 11. Quorum. At any meeting of the Board of Directors, a
majority of the Directors then in office shall constitute a quorum for the
transaction of business, but if less than a quorum is present at a meeting, a
majority of the Directors present may adjourn the meeting from time to time, and
the meeting may be held as adjourned without further notice, except as provided
in Section 10 of this Article II. Any business which might have been transacted
at the meeting as originally noticed may be transacted at such adjourned meeting
at which a quorum is present.
SECTION 12. Action at Meeting. At any meeting of the Board of Directors
at which a quorum is present, a majority of the Directors present may take any
action on behalf of the Board of Directors, unless otherwise required by law, by
the Certificate or by these Bylaws.
<PAGE>
SECTION 13. Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting if
all members of the Board of Directors consent thereto in writing. Such written
consent shall be filed with the records of the meetings of the Board of
Directors and shall be treated for all purposes as a vote at a meeting of the
Board of Directors.
SECTION 14. Manner of Participation. Directors may participate in
meetings of the Board of Directors by means of conference telephone or similar
communications equipment by means of which all Directors participating in the
meeting can hear each other, and participation in a meeting in accordance
herewith shall constitute presence in person at such meeting for purposes of
these Bylaws.
SECTION 15. Committees. The Board of Directors, by vote of a majority
of the Directors then in office, may elect from its number one or more
committees, including, without limitation, an Executive Committee, a
Compensation Committee, a Stock Option Committee and an Audit Committee, and may
delegate thereto some or all of its powers except those which by law, by the
Certificate or by these Bylaws may not be delegated. Except as the Board of
Directors may otherwise determine, any such committee may make rules for the
conduct of its business, but unless otherwise provided by the Board of Directors
or in such rules, its business shall be conducted so far as possible in the same
manner as is provided by these Bylaws for the Board of Directors. All members of
such committees shall hold such offices at the pleasure of the Board of
Directors. The Board of Directors may abolish any such committee at any time.
Any committee to which the Board of Directors delegates any of its powers or
duties shall keep records of its meetings and shall report its action to the
Board of Directors. The Board of Directors shall have power to rescind any
action of any committee, to the extent permitted by law, but no such rescission
shall have retroactive effect.
SECTION 16. Compensation of Directors. Directors shall receive such
compensation for their services as shall be determined by a majority of the
Board of Directors provided that Directors who are serving the Corporation as
employees and who receive compensation for their services as such, shall not
receive any salary or other compensation for their services as Directors of the
Corporation.
ARTICLE III
Officers
SECTION 1. Enumeration. The officers of the Corporation shall consist
of a President, a Treasurer, a Secretary and such other officers, including,
without limitation, a Chairman of the Board of Directors and one or more Vice
Presidents (including Executive Vice Presidents or Senior Vice Presidents),
Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries, as
the Board of Directors may determine.
SECTION 2. Election. At the regular annual meeting of the Board
following the annual meeting of stockholders, the Board of Directors shall elect
the President, the Treasurer and the Secretary. Other officers may be elected by
the Board of Directors at such regular annual meeting of the Board of Directors
or at any other regular or special meeting.
SECTION 3. Qualification. No officer need be a stockholder or a
Director. Any person may occupy more than one office of the Corporation at any
time. Any officer may be required by the Board of Directors to give bond for the
faithful performance of his or her duties in such amount and with such sureties
as the Board of Directors may determine.
<PAGE>
SECTION 4. Tenure. Except as otherwise provided by the Certificate or
by these Bylaws, each of the officers of the Corporation shall hold office until
the regular annual meeting of the Board of Directors following the next annual
meeting of stockholders and until his or her successor is elected and qualified
or until his or her earlier resignation or removal.
SECTION 5. Resignation. Any officer may resign by delivering his or her
written resignation to the Corporation addressed to the President or the
Secretary, and such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
SECTION 6. Removal. Except as otherwise provided by law, the Board of
Directors may remove any officer with or without cause by the affirmative vote
of a majority of the Directors then in office.
SECTION 7. Absence or Disability. In the event of the absence or
disability of any officer, the Board of Directors may designate another officer
to act temporarily in place of such absent or disabled officer.
SECTION 8. Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
SECTION 9. President. Unless otherwise provided by the Board of
Directors or the Certificate, the President shall be the Chief Executive Officer
of the Corporation and shall, subject to the direction of the Board of
Directors, have general supervision and control of the Corporation's business.
If there is no Chairman of the Board or if he or she is absent, the President
shall preside, when present, at all meetings of stockholders and of the Board of
Directors. The President shall have such other powers and perform such other
duties as the Board of Directors may from time to time designate.
SECTION 10. Chairman of the Board. The Chairman of the Board, if one is
elected, shall preside, when present, at all meetings of the stockholders and of
the Board of Directors. The Chairman of the Board shall have such other powers
and shall perform such other duties as the Board of Directors may from time to
time designate.
SECTION 11. Vice Presidents and Assistant Vice Presidents. Any Vice
President (including any Executive Vice President or Senior Vice President) and
any Assistant Vice President shall have such powers and shall perform such
duties as the Board of Directors or the Chief Executive Officer may from time to
time designate.
SECTION 12. Treasurer and Assistant Treasurers. The Treasurer shall,
subject to the direction of the Board of Directors and except as the Board of
Directors or the Chief Executive Officer may otherwise provide, have general
charge of the financial affairs of the Corporation and shall cause to be kept
accurate books of account. The Treasurer shall have custody of all funds,
securities, and valuable documents of the Corporation. He or she shall have such
other duties and powers as may be designated from time to time by the Board of
Directors or the Chief Executive Officer.
Any Assistant Treasurer shall have such powers and perform such duties
as the Board of Directors or the Chief Executive Officer may from time to time
designate.
<PAGE>
SECTION 13. Secretary and Assistant Secretaries. The Secretary shall
record all the proceedings of the meetings of the stockholders and the Board of
Directors (including committees of the Board) in books kept for that purpose. In
his or her absence from any such meeting, a temporary secretary chosen at the
meeting shall record the proceedings thereof. The Secretary shall have charge of
the stock ledger (which may, however, be kept by any transfer or other agent of
the Corporation). The Secretary shall have custody of the seal of the
Corporation, and the Secretary, or an Assistant Secretary, shall have authority
to affix it to any instrument requiring it, and, when so affixed, the seal may
be attested by his or her signature or that of an Assistant Secretary. The
Secretary shall have such other duties and powers as may be designated from time
to time by the Board of Directors or the Chief Executive Officer. In the absence
of the Secretary, any Assistant Secretary may perform his or her duties and
responsibilities.
Any Assistant Secretary shall have such powers and perform such duties
as the Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION 14. Other Powers and Duties. Subject to these Bylaws and to
such limitations as the Board of Directors may from time to time prescribe, the
officers of the Corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and duties as from
time to time may be conferred by the Board of Directors or the Chief Executive
Officer.
ARTICLE IV
Capital Stock
SECTION 1. Certificates of Stock. Each stockholder shall be entitled to
a certificate of the capital stock of the Corporation in such form as may from
time to time be prescribed by the Board of Directors. Such certificate shall be
signed by the Chairman of the Board of Directors, the President or a Vice
President and by the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary. The Corporation seal and the signatures by Corporation
officers, the transfer agent or the registrar may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed on such certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he or she were such officer,
transfer agent or registrar at the time of its issue. Every certificate for
shares of stock which are subject to any restriction on transfer and every
certificate issued when the Corporation is authorized to issue more than one
class or series of stock shall contain such legend with respect thereto as is
required by law.
SECTION 2. Transfers. Subject to any restrictions on transfer and
unless otherwise provided by the Board of Directors, shares of stock may be
transferred only on the books of the Corporation by the surrender to the
Corporation or its transfer agent of the certificate theretofore properly
endorsed or accompanied by a written assignment or power of attorney properly
executed, with transfer stamps (if necessary) affixed, and with such proof of
the authenticity of signature as the Corporation or its transfer agent may
reasonably require.
SECTION 3. Record Holders. Except as may otherwise be required by law,
by the Certificate or by these Bylaws, the Corporation shall be entitled to
treat the record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and the right to vote
with respect thereto, regardless of any transfer, pledge or other disposition of
such stock, until the shares have been transferred on the books of the
Corporation in accordance with the requirements of these Bylaws.
<PAGE>
It shall be the duty of each stockholder to notify the Corporation of
his or her post office address and any changes thereto.
SECTION 4. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date: (1) in the case of
determination of stockholders entitled to vote at any meeting of stockholders,
shall, unless otherwise required by law, not be more than sixty nor less than
ten days before the date of such meeting and (2) in the case of any other
action, shall not be more than sixty days prior to such other action. If no
record date is fixed: (1) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held and (2) the record date for determining stockholders
for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
SECTION 5. Replacement of Certificates. In case of the alleged loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms as the Board of Directors may
prescribe.
ARTICLE V
Indemnification
SECTION 1. Definitions. For purposes of this Article: (a) "Officer"
means any person who serves or has served as a Director or officer of the
Corporation or in any other office filled by election or appointment by the
stockholders or the Board of Directors of the Corporation and any heirs,
executors, administrators or personal representatives of such person; (b)
"Non-Officer Employee" means any person who serves or has served as an employee
of the Corporation, but who is not or was not an Officer, and any heirs,
executors, administrators or personal representatives of such person; (c)
"Proceeding" means any threatened, pending, or completed action, suit or
proceeding (or part thereof), whether civil, criminal, administrative,
arbitrative or investigative, any appeal of such an action, suit or proceeding,
and any inquiry or investigation which could lead to such an action, suit, or
proceeding; and (d) "Expenses" means any liability fixed by a judgment, order,
decree or award in a Proceeding, any amount reasonably paid in settlement of a
Proceeding and any professional fees and other expenses and disbursements
reasonably incurred in a Proceeding or in settlement of a Proceeding, including
fines, taxes and penalties relating thereto.
<PAGE>
SECTION 2. Officers. Except as provided in Section 4 of this Article V,
each Officer of the Corporation shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader rights
than said law permitted the Corporation to provide prior to such amendment)
against any and all Expenses incurred by such Officer in connection with any
Proceeding in which such Officer is involved as a result of serving or having
served (a) as an Officer or employee of the Corporation, (b) as a director,
officer or employee of any subsidiary of the Corporation, or (c) in any capacity
with any other corporation, organization, partnership, joint venture, trust or
other entity at the written request or direction of the Corporation, including
service with respect to employee or other benefit plans, and shall continue as
to an Officer after he or she has ceased to be an Officer and shall inure to the
benefit of his or her heirs, executors, administrators and personal
representatives; provided, however, that the Corporation shall indemnify any
such Officer seeking indemnification in connection with a Proceeding initiated
by such Officer only if such Proceeding was authorized by the Board of Directors
of the Corporation.
<PAGE>
SECTION 3. Non-Officer Employees. Except as provided in Section 4 of
this Article V, each Non-Officer Employee of the Corporation may, in the
discretion of the Board of Directors, be indemnified by the Corporation to the
fullest extent authorized by the DGCL, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader rights than said law
permitted the Corporation to provide prior to such amendment) against any or all
Expenses incurred by such Non-Officer Employee in connection with any Proceeding
in which such Non-Officer Employee is involved as a result of serving or having
served (a) as a Non-Officer Employee of the Corporation, (b) as a director,
officer or employee of any subsidiary of the Corporation, or (c) in any capacity
with any other corporation, organization, partnership, joint venture, trust or
other entity at the request or direction of the Corporation, including service
with respect to employee or other benefit plans, and shall continue as to a
Non-Officer Employee after he or she has ceased to be a Non-Officer Employee and
shall inure to the benefit of his or her heirs, personal representatives,
executors and administrators; provided, however, that the Corporation may
indemnify any such Non-Officer Employee seeking indemnification in connection
with a Proceeding initiated by such Non-Officer Employee only if such Proceeding
was authorized by the Board of Directors of the Corporation.
SECTION 4. Good Faith. No indemnification shall be provided pursuant to
this Article V to an Officer or to a Non-Officer Employee with respect to a
matter as to which such person shall have been finally adjudicated in any
Proceeding not to have acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal Proceeding, had no reasonable cause to believe
his or her conduct was unlawful. In the event that a Proceeding is compromised
or settled prior to final adjudication so as to impose any liability or
obligation upon an Officer or Non-Officer Employee, no indemnification shall be
provided pursuant to this Article V to said Officer or Non-Officer Employee with
respect to a matter if there be a determination that with respect to such matter
such person did not act in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
and, with respect to any criminal Proceeding, had no reasonable cause to believe
his or her conduct was unlawful. The determination contemplated by the preceding
sentence shall be made by (i) a majority vote of those Directors who are not
involved in such Proceeding (the "Disinterested Directors"); (ii) by the
stockholders; or (iii) if directed by a majority of Disinterested Directors, by
independent legal counsel in a written opinion. However, if more than half of
the Directors are not Disinterested Directors, the determination shall be made
by (i) a majority vote of a committee of one or more disinterested Director(s)
chosen by the Disinterested Director(s) at a regular or special meeting; (ii) by
the stockholders; or (iii) by independent legal counsel chosen by the Board of
Directors in a written opinion.
<PAGE>
SECTION 5. Prior to Final Disposition. Unless otherwise determined by
(i) the Board of Directors, (ii) if more than half of the Directors are involved
in a Proceeding by a majority vote of a committee of one or more Disinterested
Director(s) chosen in accordance with the procedures specified in Section 4 of
this Article or (iii) if directed by the Board of Directors, by independent
legal counsel in a written opinion, any indemnification extended to an Officer
or Non-Officer Employee pursuant to this Article V shall include payment by the
Corporation or a subsidiary of the Corporation of Expenses as the same are
incurred in defending a Proceeding in advance of the final disposition of such
Proceeding upon receipt of an undertaking by such Officer or Non-Officer
Employee seeking indemnification to repay such payment if such Officer or
Non-Officer Employee shall be adjudicated or determined not to be entitled to
indemnification under this Article V.
SECTION 6. Contractual Nature of Rights. The foregoing provisions of
this Article V shall be deemed to be a contract between the Corporation and each
Officer and Non-Officer Employee who serves in such capacity at any time while
this Article V is in effect, and any repeal or modification thereof shall not
affect any rights or obligations then existing with respect to any state of
facts then or theretofore existing or any Proceeding theretofore or thereafter
brought based in whole or in part upon any such state of facts. If a claim for
indemnification or advancement of expenses hereunder by an Officer or
Non-Officer Employee is not paid in full by the Corporation within 60 days after
a written claim for indemnification or documentation of expenses has been
received by the Corporation, such Officer or Non-Officer Employee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim, and if successful in whole or in part, such Officer or Non-Officer
Employee shall also be entitled to be paid the expenses of prosecuting such
claim. The failure of the Corporation (including its Board of Directors or any
committee thereof, independent legal counsel, or stockholders) to make a
determination concerning the permissibility of such indemnification or
advancement of expenses under this Article V shall not be a defense to the
action and shall not create a presumption that such indemnification or
advancement is not permissible
SECTION 7. Non-Exclusivity of Rights. The provisions in respect of
indemnification and the payment of expenses incurred in defending a Proceeding
in advance of its final disposition set forth in this Article V shall not be
exclusive of any right which any person may have or hereafter acquire under any
statute, provision of the Certificate or these Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise; provided, however, that in
the event the provisions of this Article V in any respect conflict with the
terms of any agreement between the Corporation or any of its subsidiaries and
any person entitled to indemnification under this Article V, then the provision
which is more favorable to the relevant individual shall govern.
SECTION 8. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any Officer or Non-Officer Employee against any
liability of any character asserted against or incurred by the Corporation or
any such Officer or Non-Officer Employee, or arising out of any such status,
whether or not the Corporation would have the power to indemnify such person
against such liability under the DGCL or the provisions of this Article V.
<PAGE>
ARTICLE VI
Miscellaneous Provisions
SECTION 1. Fiscal Year. Except as otherwise determined by the Board of
Directors, the fiscal year of the Corporation shall end on the last day of
December of each year.
SECTION 2. Seal. The Board of Directors shall have power to adopt and
alter the seal of the Corporation.
SECTION 3. Execution of Instruments. All deeds, leases, transfers,
contracts, bonds, notes and other obligations to be entered into by the
Corporation in the ordinary course of its business without Director action may
be executed on behalf of the Corporation by the Chairman of the Board, if one is
elected, the President or the Treasurer or any other officer, employee or agent
of the Corporation as the Board of Directors or Executive Committee may
authorize.
SECTION 4. Voting of Securities. Unless the Board of Directors
otherwise provides, the Chairman of the Board, if one is elected, the President
or the Treasurer may waive notice of and act on behalf of this Corporation, or
appoint another person or persons to act as proxy or attorney in fact for this
Corporation with or without discretionary power and/or power of substitution, at
any meeting of stockholders or shareholders of any other corporation or
organization, any of whose securities are held by this Corporation.
SECTION 5. Resident Agent. The Board of Directors may appoint a
resident agent upon whom legal process may be served in any action or proceeding
against the Corporation.
SECTION 6. Corporate Records. The original or attested copies of the
Certificate, Bylaws and records of all meetings of the incorporators,
stockholders and the Board of Directors and the stock transfer books, which
shall contain the names of all stockholders, their record addresses and the
amount of stock held by each, may be kept outside the State of Delaware and
shall be kept at the principal office of the Corporation, at the office of its
counsel or at an office of its transfer agent or at such other place or places
as may be designated from time to time by the Board of Directors.
SECTION 7. Certificate. All references in these Bylaws to the
Certificate shall be deemed to refer to the Amended and Restated Certificate
of Incorporation of the Corporation, as amended and in effect from time to time.
SECTION 8. Amendment of Bylaws.
(a) Amendment by Directors. Except as provided otherwise by law,
these Bylaws may be amended or repealed by the Board of Directors.
(b) Amendment by Stockholders. These Bylaws may be amended or repealed
at any annual meeting of stockholders, or special meeting of stockholders called
for such purpose, by the affirmative vote of at least two-thirds of the total
votes eligible to be cast on such amendment or repeal by holders of voting
stock, voting together as a single class; provided, however, that if the Board
of Directors recommends that stockholders approve such amendment or repeal at
such meeting of stockholders, such amendment or repeal shall only require the
affirmative vote of a majority of the total votes eligible to be cast on such
amendment or repeal by holders of voting stock, voting together as a single
class.
Adopted and effective as of September 10, 1997.
<PAGE>
Exhibit 5.1
December 22, 1997
Waste Systems International, Inc.
10 Fawcett Street
Cambridge, Massachusetts 02138
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
This opinion is rendered to you in connection with the preparation of
the Registration Statement on Form S-3 (File No. 333-37217) (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
relating to the proposed issuance and sale, from time to time, by certain
selling stockholders of Waste Systems International, Inc. (the "Company") of up
to 35,577,304 shares (the "Shares") of the Company's common stock, $.001 par
value per share (the "Common Stock").
We have acted as counsel to the Company in connection with the
preparation of the Registration Statement. For purposes of this opinion, we have
examined the Certificate of Incorporation and Bylaws, as amended and restated,
of the Company; such records of the corporate proceedings of the Company as we
have deemed material; the Registration Statement and all exhibits thereto; and
such other documents as we have deemed necessary to enable us to render this
opinion.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdiction
other than the laws of the United States of America and The Commonwealth of
Massachusetts.
In rendering the opinions expressed herein, we assume that all steps
necessary to comply with the registration requirements of the Securities Act and
with applicable requirements of state law regulating the sale of securities will
be duly taken.
Based upon and subject to the foregoing, and having regard for such
legal considerations as we have deemed relevant, it is our opinion that the
Shares have been authorized for issuance and are validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our name in the Registration
Statement and the Prospectuses contained therein.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors
Waste Systems International, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus. Our report
dated March 28, 1997 includes an explanatory paragraph that states that the
Company must raise substantial additional capital and must achieve a level of
revenues adequate to support its cost structure, which raises substantial doubt
about its ability to continue as a going concern. The consolidated financial
statements incorporated by reference herein do not include any adjustments that
might result from the outcome of that uncertainty.
KPMG Peat Marwick LLP
Boston, Massachusetts
December 22, 1997
<PAGE>
