See earlier versions of this document for initial filing and Pre-Effective
Amendment No. 1. As filed with the Securities and Exchange Commission on
February 9, 1998
Registration Statement No. 333-37217
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
PRE-EFFECTIVE AMENDMENT NO. 2
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.
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 FEBRUARY 9, 1998
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 February 5, 1998, the last reported sales
price for the Common Stock on the Nasdaq Market was $0.72 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 , 1998
<PAGE>
RISK FACTORS
This Prospectus contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The Company intends such
forward-looking statements to be covered by the safe harbor provisions for
forward-looking statements contained in the Private Securities Litigation Reform
Act of 1995, and is including this statement for purposes of complying with
these safe harbor provisions. Forward-looking statements, which are based on
certain assumptions and describe future plans, strategies and expectations of
the Company are generally identifiable by use of the words "believe," "expect,"
"intend," "anticipate," "estimate," "project" or similar expressions. The
Company's ability to predict results or the actual effect of future plans or
strategies is inherently uncertain. Factors which could have a material adverse
affect on the operations and future prospects of the Company include, but are
not limited to, changes in: economic conditions generally and the waste
management industry specifically and legislative/regulatory changes (including
changes to laws governing the waste management industry). These risks and
uncertainties, together with those stated below should be considered in
evaluating forward-looking statements and undue reliance should not be placed on
such statements.
Prospective investors should carefully consider the following factors,
in addition to other matters set forth or incorporated in this Prospectus, prior
to making an investment decision regarding 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 February 5, 1998, the minimum bid price for shares of the Company's
Common Stock was $0.72 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.
2
<PAGE>
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.
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.
3
<PAGE>
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.
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 February 5, 1998, there were
19,482,074 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.
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.
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.
4
<PAGE>
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.
Recent Acquisitions
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, and assumed operations of the transfer
station on October 6, 1997. This transaction provides the Company with greater
access to the Burlington, Vermont and surrounding area markets, Vermont's most
populated and industrialized community. As of September 1, 1997, the Company
started receiving waste from CSWD at its landfill.
On November 20, 1997, the Company entered into a purchase and sale
agreement to acquire the 700 acre municipal solid waste landfill in Hopewell
Township, Pennsylvania. The purchase price of approximately $6 million will be
paid primarily by the assumption of debt on the facility. The existing three
million cubic yard landfill consists of five permitted cells, one of which is
currently being utilized. In addition, the Company has identified additional
room for expansion at the landfill. The transaction is expected to close during
the first quarter of 1998.
The Company is in preliminary discussions regarding other possible
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.
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.
5
<PAGE>
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.
<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)
<C> <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
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 33.93% 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 68.89% 35,577,304 521,500 *
</TABLE>
- ----------------
* Less than 1%
6
<PAGE>
(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 52,399,380 common share equivalents
outstanding on February 5, 1998, consisting of 19,482,074 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 February
5, 1998 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.
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.
7
<PAGE>
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.
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.
In the event of a "distribution" of the shares, the Selling
Stockholders, any selling broker-dealer or agent and any "affiliated purchasers"
may be subject to Regulation M under the Exchange Act, which would prohibit,
with certain exceptions, each such person from bidding for, purchasing or
attempting to induce any person to bid for or purchase any security which is the
subject of such distribution until his participation in that distribution is
completed. In addition, Regulation M under the Exchange Act prohibits certain
"stabilizing bids" or "stabilizing purchases" for the purpose of pegging, fixing
or maintaining the price of Common Stock in connection with this Offering.
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.
8
<PAGE>
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.
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, as further amended by the Company's
Quarterly Report on Form 10-Q/A (Amendment No. 2) 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, as amended by the Company's Quarterly
Report on Form 10-Q/A for the quarterly period ended March 31, 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.
9
<PAGE>
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.
10
<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........................... 6
Plan of Distribution........................... 7
Available Information.......................... 8
Incorporation of Certain Documents
by Reference................................... 9
Legal Matters.................................. 9
Experts........................................ 10
35,577,304 Shares
WASTE SYSTEMS INTERNATIONAL, INC.
Common Stock
PROSPECTUS
, 1998
<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) (Previously Filed).
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) (Previously Filed).
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).
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;
II-3
<PAGE>
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
February 9, 1998.
WASTE SYSTEMS INTERNATIONAL, INC.
By: /s/ Philip W. Strauss
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
Philip W. Strauss Officer Director and
(Principal Executive Officer) February 9, 1998
/s/ Robert Rivkin Vice President, CFO
Robert Rivkin and Director
(Principal Financial Officer
and Accounting Officer) February 9, 1998
* Director February 9, 1998
- ----------------------
David Breazzano
* Director February 9, 1998
- ----------------------
Charles Johnston
* Director February 9, 1998
- ---------------------
Jay Matulich
* Director February 9, 1998
- ---------------------
Judy Mencher
* Director February 9, 1998
- ----------------------
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) (Previously Filed).
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) (Previously Filed).
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 5.1
February 9, 1998
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.
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
February 9, 1998
