As filed with the Securities and Exchange Commission on April 24, 1998
Registration Statement No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
Waste Systems International, Inc.
(formerly "BioSafe International, Inc.")
(Exact name of Registrant as specified in its charter)
Delaware 95-4203626
(State of incorporation) (I.R.S. Employer Identification Number)
420 Bedford Street, Suite 300
Lexington, MA 02173
(781) 862-3000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
WASTE SYSTEMS INTERNATIONAL, INC.
AMENDED AND RESTATED 1995 STOCK OPTION AND INCENTIVE PLAN
WASTE SYSTEMS INTERNATIONAL, INC.
AMENDED AND RESTATED 1995 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plans)
Robert Rivkin
Waste Systems International, Inc.
420 Bedford Street, Suite 300
Lexington, MA 02173
(781) 862-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------
With copies to:
THOMAS P. STORER, P.C.
GOODWIN, PROCTER & HOAR
Exchange Place
53 State Street
Boston, Massachusetts 02109-2881
(617) 570-1000
-----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
- ----------------------------- ----------------------- ------------------------- ------------------------- ------------------
Title of Securities Being Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Share Aggregate Offering Price Registration Fee
- ----------------------------- ----------------------- ------------------------- ------------------------- ------------------
- ----------------------------- ----------------------- ------------------------- ------------------------- ------------------
<C> <C> <C> <C>
Common Stock , 1,000,418 shares $1.40625(2) $1,406,837.81 [1,616.00]
$.01 par value per share 1,000 2.1875 2,187.50
5,000 3.7500 18,750.00
1,000 3.1250 3,125.00
22,000 1.8750 41,250.00
13,480 2.1850 29,453.80
12,000 1.4060 16,872.00
25,000 .7500 18,750.00
570,102 6.91(3) 3,939,404.82
----------- ------------
1,650,000 shares(4) 5,476,630.93
shares(4)
</TABLE>
<PAGE>
(1) Plus such additional number of shares as may be required pursuant to
the 1995 Stock Option and Incentive Plan in the event of a stock
dividend, reverse stock split, split-up, recapitalization or other
similar event.
(2) This estimate is made pursuant to Rule 457(h) under the Securities Act
of 1933, as amended (the "Securities Act"), solely for purposes of
determining the registration fee and is based upon the price at which
outstanding options may be exercised.
(3) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act, solely for purposes of determining the registration fee
based on the average of the high and low prices of the Issuer's Common
Stock on the Nasdaq Small Cap market on April 24, 1998.
(4) Includes 1,400,000 shares and 250,000 shares to be offered pursuant to
the Amended and Restated 1995 Stock Option and Incentive Plan and the
Amended and Restated 1995 Stock Option Plan for Non-Employee Directors,
respectively.
<PAGE>
- --------------------------------------------------------------------------------
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
Waste Systems International, Inc. (the "Company") hereby incorporates
by reference the documents listed in (a) through (c) below, which have
previously been filed with the Securities and Exchange Commission.
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997,
(b) all other reports filed with the Securities and Exchange
Commission by the Company pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 since December 31, 1997; and
(c) the description of the Company's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Securities and
Exchange Commission on or about April 27, 1995, under Section 12 of the Exchange
Act and any amendments and reports filed for the purpose of updating such
description.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein or in any subsequently filed document which also is
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify a director, officer, employee or agent
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement in respect of or in successful defense of any action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
The Company has obtained directors' and officers' insurance providing
benefits aggregating $5 million. In addition, Article X of the Company's Second
Amended and Restated Certificate of Incorporation (the "Charter") provides that
directors or officers of the Company, or others serving as a director or officer
of another corporation at the request of the Company, shall be indemnified to
the fullest extent permitted by the DGCL. Article X further provides that the
indemnification rights provided by such Article X 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.
Article VII of the Charter further provides that no director shall be personally
liable to the Company or its stockholders for monetary damages for any breach of
fiduciary duty by such person as a director, 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. Any amendment or repeal of Article VII
by the stockholders or an amendment to the DGCL shall not adversely affect any
right or protection under such Article existing at the time of such amendment or
repeal with respect to any act or omission occurring prior to such amendment or
repeal of a person serving as a director at the time of such amendment or
repeal.
<PAGE>
Article V of the Company's By-laws provides that present and former
directors and officers of the Company shall be indemnified by the Company to the
fullest extent authorized by the DGCL, as the same exists or may in the future
be amended to provide for broader indemnification rights, against any and all
reasonable expenses or liability incurred in connection with any threatened,
pending or completed legal proceeding in which any such person is involved as a
result of serving or having served as a director or officer of the Company, as a
director or officer of any subsidiary of the Company, or acting or having acted
in any capacity with any other entity at the written request or direction of the
Company, in each case if such person 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
Company, and with respect to criminal actions or proceedings, that such person
had no reasonable cause to believe his or her conduct was unlawful. The By-laws
provide that any indemnification extended to an officer pursuant to Article V
shall include the reimbursement of expenses by the Company prior to the final
disposition of the proceeding upon the receipt of an undertaking by such
indemnified person to repay such payment if it is determined that such
indemnified person is not entitled to such reimbursement. The By-laws further
provide that the previously described provisions of Article V are deemed to be a
contract between the Company and each director and officer. In addition, the
By-laws provide that the provisions with respect to indemnification and payment
of expenses incurred in defending a covered proceeding shall not be exclusive of
any right which any person may have or hereafter acquire under any statute,
provision of the Charter or the By-laws, agreement, vote of the stockholders or
disinterested directors or otherwise.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
Exhibit
5.1 Opinion of Goodwin, Procter & Hoar LLP
as to the legality of the securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5.1 hereto).
23.2 Consent of KPMG Peat Marwick LLP, Independent Accountants.
24.1 Powers of Attorney (included in signature page on page 4
of this registration statement).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(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 changes in
volume and price represent no more than 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in the effective registration statement; 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;
<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 with or furnished to the Commission
by the undersigned registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement;
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof;
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
of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
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 of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has
been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the 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.
<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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Lexington, Commonwealth of Massachusetts, on this __
of April, 1998.
WASTE SYSTEMS INTERNATIONAL, INC.
By: /s/ Robert Rivkin
------------------
Robert Rivkin
Vice President, Chief Financial
Officer and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Waste Systems International, Inc. hereby severally constitute
Philip Strauss and Robert Rivkin, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the Registration Statement filed
herewith and any and all amendments to said Registration Statement, and
generally to do all such things in our names and in our capacities as officers
and directors to enable Waste Systems International, Inc. to comply with the
provisions of the Securities Act of 1933 and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto.
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 Capacity Date
/s/ Philip Strauss Chairman, President and Chief April 24, 1998
- -------------------- Executive Officer (Principal
Philip Strauss Executive Officer)
/s/ Robert Rivkin Vice President, Chief Financial April 24, 1998
- -------------------- Officer, Secretary and Treasurer
Robert Rivkin (Principal Financial and
Accounting Officer)
/s/ Jay Matulich Director April 24, 1998
- --------------------
Jay Matulich
/s/ David Breazzano Director April 24, 1998
- --------------------
David Breazzano
/s/ Charles Johnston Director April 24, 1998
- --------------------
Charles Johnston
/s/ Judy Mencher Director April 24, 1998
- --------------------
Judy Mencher
/s/ William Philipbar Director April 24, 1998
- ---------------------
William Philipbar
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1 hereto).
23.2 Consent of KPMG Peat Marwick LLP, Independent Accountants.
24.1 Powers of Attorney (included on page 4 of this Registration statement).
<PAGE>
Exhibit 5.1
April 20, 1998
Waste Systems International, Inc.
420 Bedford Street, Suite 300
Lexington, MA 02173
Re: Legality of Securities to be Registered Under
Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is furnished in connection with the filing of a
Registration Statement on Form S-8 (the "Registration Statement"), pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), of 1,650,000
shares (the "Shares") of common stock, par value $.01 per share (the "Common
Stock"), of Waste Systems International, Inc., a Delaware corporation (the
"Company").
In connection with rendering this opinion, we have examined the Amended
and Restated Certificate of Incorporation of the Company, as amended and
restated to the date hereof and on file with the Delaware Secretary of State;
the By-laws of the Company; such records of the corporate proceedings of the
Company as we deem appropriate for the purposes of this opinion; the
Registration Statement; the Waste Systems International, Inc. Amended and
Restated 1995 Stock Option and Incentive Plan; and the Amended and Restated
Waste Systems International, Inc. 1995 Stock Option Plan for Non-Employee
Directors (the "Plans"). In our examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as certified, photostatic or facsimile copies, the
authenticity of the originals of such copies and the authenticity of telephonic
confirmations of public officials and others. As to facts material to our
opinion, we have relied upon certificates or telephonic confirmations of public
officials and certificates, documents, statements and other information of the
Company or representatives or officers thereof.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America, the laws of The
Commonwealth of Massachusetts and the General Corporation Law of the State of
Delaware.
Based upon the foregoing, we are of the opinion that when the Shares
have been issued and paid for in accordance with the terms of the Plans, such
Shares will be duly authorized, validly issued, fully paid and non-assessable.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Securities Act and applicable requirements of state
laws regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/Goodwin, Procter & Hoar LLP
------------------------------
GOODWIN, PROCTER & HOAR LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
pertaining to the Waste Systems International, Inc. 1995 Amended and Restated
Stock Option and Incentive Plan and the Waste Systems International, Inc.
Amended and Restated 1995 Stock Option Plan for Non-Employee Directors on Form
S-8 of our report dated March 26, 1998, on our audits of the consolidated
financial statements of Waste Systems International, Inc. as of December 31,
1997 and 1996, and for each of the years in the three-year period ended
December 31, 1997, which report is included in the Annual Report on Form 10-K.
Our report dated MArch 26, 1998 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
April 23, 1998
