Waste Systems International, Inc.
January 22, 1998
Via EDGAR
Filing Desk
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: Waste Systems International, Inc.
Preliminary Proxy Materials
Ladies and Gentleman:
In connection with the Company's Special Meeting of stockholders ("Special
Meeting") scheduled for February 13, 1998, please find enclosed for filing the
documents listed below:
1. Notice of Special Meeting and accompanying Proxy Statement for
Waste Systems International, Inc. (the "Company");
2. Exhibit A to the Proxy Statement: Second Amended and Restated
Certificate of Incorporation of Waste Systems International, Inc.;
3. Proxy card for Common stockholders;
4. Proxy card for Preferred Stockholders;
If you have any questions or require any additional information, please contact
the undersigned at (617) 497-4500.
Sincerely,
/s/ Robert Rivkin
-----------------
Robert Rivkin
Secretary
<PAGE>
Waste Systems International, Inc.
10 Fawcett Street
Cambridge, Massachusetts 02138
---------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON FEBRUARY 13, 1998
---------------
You are cordially invited to attend a Special Meeting of Stockholders
(the "Special Meeting") of Waste Systems International, Inc. ("Waste Systems,"
the "Company") which will be held on February 13, 1998 at 10:00 a.m. at the
offices of Goodwin, Procter & Hoar LLP, 53 State Street, Boston, MA 02109, for
the following purposes:
1. To act upon a proposal to amend the Company's First Amended and
Restated Certificate of Incorporation to effect a reverse stock split of the
Company's outstanding common stock, par value $.001 per share (the "Common
Stock"), pursuant to which each five shares of Common Stock then outstanding
will be converted into one share of common stock, par value $.01 per share; and
2. To consider and act upon any other matters that may properly be
brought before the Special Meeting and at any adjournments or postponements
thereof.
Any action may be taken on the foregoing matters at the Special Meeting
on the date specified above, or on any date or dates to which, by original or
later adjournment, the Special Meeting may be adjourned, or to which the Special
Meeting may be postponed.
The Board of Directors has fixed the close of business on December 30,
1997 as the record date for determining the stockholders entitled to notice of
and to vote at the Special Meeting and at any adjournments or postponements
thereof. Only stockholders of record of the Company's Common Stock, at the close
of business on that date will be entitled to notice of and to vote at the
Special Meeting and at any adjournments or postponements thereof.
You are requested to fill in and sign the enclosed Proxy Card, which is
being solicited by the Board of Directors, and to mail it promptly in the
enclosed postage-prepaid envelope. Any proxy may be revoked by delivery of a
later dated proxy. Stockholders of record who attend the Special Meeting may
vote in person, even if they have previously delivered a signed proxy.
By Order of the Board of Directors
Robert Rivkin
Cambridge, MA Secretary
January 22, 1998
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, PLEASE COMPLETE, SIGN,
DATE AND PROMPTLY RETURN THE ENCLOSED PROXY CARD IN THE POSTAGE-PREPAID ENVELOPE
PROVIDED. IF YOU ATTEND THE SPECIAL MEETING, YOU MAY VOTE IN PERSON IF YOU WISH,
EVEN IF YOU HAVE PREVIOUSLY RETURNED YOUR PROXY CARD.
<PAGE>
Waste Systems International, Inc.
10 Fawcett Street
Cambridge, Massachusetts 02138
---------------
PROXY STATEMENT
---------------
FOR SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON FEBRUARY 13, 1998
January 22, 1998
This Proxy Statement is furnished in connection with the solicitation
of proxies by the Board of Directors of Waste Systems International, Inc., a
Delaware corporation, ("Waste Systems" or the "Company") for use at the Special
Meeting of Stockholders of the Company to be held on February 13, 1998 at 10:00
a.m., and at any adjournments or postponements thereof (the "Special Meeting").
At the Special Meeting, stockholders will be asked to amend the Company's First
Amended and Restated Certificate of Incorporation (the "Certificate of
Incorporation") to effect a reverse stock split of the Company's outstanding
common stock, par value $.001 per share, (the "Common Stock") pursuant to which
each five shares of the Common Stock then outstanding will be converted into one
share of common stock, par value $.01 per share, (the "New Common Stock") (the
"Reverse Split") and to act on any other matters properly brought before them.
This Proxy Statement and the Notice of Special Meeting and Proxy Card
which accompany it are first being sent to stockholders on or about January 22,
1998. The Board of Directors has fixed the close of business on December 30,
1997 as the record date for the determination of stockholders entitled to notice
of and to vote at the Special Meeting (the "Record Date"). Only stockholders of
record of the Company's Common Stock and of the Company's Series A Preferred
Stock, $.001 par value per share (the "Preferred Stock") at the close of
business on the Record Date will be entitled to notice of and to vote at the
Special Meeting. Each holder of the Company's Preferred Stock entitled to vote
shall be entitled to the number of votes equal to the number of shares of Common
Stock into which his Preferred Stock is convertible. Each holder of the
Company's Common Stock entitled to vote will be entitled to one vote for each
share of Common Stock that he holds. As of the Record Date, the total number of
Common Stock equivalents outstanding and eligible to vote at the Special Meeting
was 52,384,380, 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.
The presence, in person or by proxy, of 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 is necessary to constitute a quorum for the transaction of business
at the Special Meeting. The affirmative vote of the holders of a majority of the
outstanding shares of Common Stock entitled to vote, including shares issuable
upon conversion of outstanding shares of Preferred Stock, is required to approve
the Reverse Split.
References in this Proxy Statement to exhibits shall refer to the
particular exhibits attached to this Proxy Statement. The use in this Proxy
Statement of the masculine pronoun shall be deemed to include the feminine or
neuter as the context may require.
Stockholders of the Company are requested to complete, sign, date and
promptly return the accompanying Proxy Card in the enclosed postage-prepaid
envelope. Shares represented by a properly executed proxy received prior to the
vote at the Special Meeting and not revoked will be voted at the Special Meeting
as directed on the Proxy Card. If a properly executed Proxy Card is submitted
and no instructions are given, the shares of Common Stock represented by that
proxy will be voted FOR the amendment of the Company's Certificate of
Incorporation to effect a reverse stock split. It is not anticipated that any
matters other than those set forth in this Proxy Statement will be presented at
the Special Meeting. If other matters are presented, proxies will be voted in
accordance with the discretion of the proxy holders.
<PAGE>
A stockholder of record may revoke a proxy at any time before it has
been exercised by filing a written revocation with the Secretary of the Company
at the address of the Company set forth above, by filing a duly executed proxy
bearing a later date, or by appearing in person and voting by ballot at the
Special Meeting. Any stockholder of record as of the Record Date attending the
Special Meeting may vote in person whether or not a proxy has been previously
given, but the presence (without further action) of a stockholder at the Special
Meeting will not constitute revocation of a previously given proxy.
Beneficial Ownership.
The following table presents information as to all directors and senior
executive officers of the Company as of December 30, 1997 and persons or
entities known to the Company to be beneficial owners of more than 5% of the
Company's Common Stock as of December 30, 1997, unless otherwise indicated,
based on representations of officers and directors of the Company and filings
received by the Company on Schedules 13D and 13G or Form 13F under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
Beneficial Ownership
Directors, Executive Officers Shares of Common Stock Percent
and 5% Stockholders(1) Beneficially Owned of Class
- --------------------------------------------------------------------------------
B-III Capital Partners, L.P.(2) 17,777,778 34.00%
c/o DDJ Capital Management, LLC
141 Linden Street
Wellesley, MA 02181
David J. Breazzano(3) 20,000 *
Charles Johnston(4) 20,000 *
Jay Matulich(5) 39,500 *
Judy K. Mencher(3) 20,000 *
Joseph Motzkin(6) 104,514 *
William B. Philipbar(7) 20,000 *
Robert Rivkin(8) 339,764 *
Philip W. Strauss(9) 338,889 *
All directors and officers as a 902,667 1.70%
group (8 persons)
- -------------------------
* less than 1%
<PAGE>
(1) The persons named in the table have sole voting and investing power
with respect to all shares shown as beneficially owned by them subject
to community property laws where applicable and the information
contained in footnotes to this table.
(2) B-III Capital Partners, L.P. owns 50,000 shares of Preferred Stock that
are convertible into 17,777,778 shares of Common Stock. DDJ Capital
Management, LLC ("DDJ") serves as the investment manager to B-III; an
affiliate of DDJ acts as the general partner of B-III.
(3) Excludes those shares owned by B-III, which Ms. Mencher and Mr.
Breazzano may be deemed to beneficially own as a result of Ms.Mencher's
and Mr. Breazzano's interest in DDJ. Both Ms. Mencher and Mr.Breazzano
are managing members of DDJ. Includes 20,000 shares subject to stock
options which are fully vested and currently exercisable.
(4) Includes 20,000 shares subject to stock options which are fully vested
and currently exercisable.
(5) Includes 32,000 shares of Common Stock currently owned and 7,500 shares
subject to stock options which are fully vested and currently
exercisable.
(6) Includes 3,125 shares of Common Stock currently owned 250 shares of
Preferred Stock convertible into 88,889 shares of Common Stock and
2,500 shares subject to stock options which are fully vested and
currently exercisable.
(7) Includes 20,000 shares subject to stock options which are fully vested
and currently exercisable.
(8) Includes 875 shares of Common Stock currently owned, 250 shares of
Preferred Stock convertible into 88,889 shares of Common Stock and
250,000 shares subject to stock options which are fully vested and
currently exercisable.
(9) Includes 250 shares of Preferred Stock convertible into 88,889 shares
of Common Stock and 250,000 shares subject to stock options which are
fully vested and currently exercisable.
PROPOSAL 1
AMENDMENT OF THE COMPANY'S CERTIFICATE OF
INCORPORATION TO EFFECT A REVERSE STOCK SPLIT OF THE COMMON STOCK
For the reasons set forth below, the Board of Directors believes that
the best interests of the Company and its stockholders will be served by
amending and restating the Company's First Amended and Restated Certificate of
Incorporation to effect a reverse stock split of the outstanding Common Stock,
pursuant to which each five shares of Common Stock then outstanding will
automatically convert into one share (the "proposed Reverse Split") without any
action on the part of the holder. Consequently, the Board of Directors has
unanimously adopted a resolution declaring the advisability of the Reverse Split
and herewith submits the proposed Reverse Split proposal to the stockholders for
approval.
<PAGE>
Certain holders of Preferred and Common Stock carrying an aggregate of
34,623,971 votes entered into voting agreements with the Company in connection
with the purchase of their shares of Preferred Stock, under which such holders
agreed to vote such shares in favor of approving the Reverse Stock Split at this
meeting.
Consummation of the proposed Reverse Split will change the number and
par value of Common Stock that the Company will have the authority to issue.
Consequently, the Company will have the authority to issue Thirty-One Million
(31,000,000) shares consisting of Thirty Million (30,000,000) shares of New
Common Stock and One Million 1,000,000 shares of Preferred Stock. The proposed
Reverse Split will become effective as of 5:00 P.M., Eastern Time, on the date
(the "Effective Date") that the Company's Second Amended and Restated
Certificate of Incorporation (the "Second Certificate of Incorporation") is
filed with the Secretary of State of Delaware. If, for any reason the Board of
Directors deems it advisable to abandon the proposed Reverse Split, the proposed
Reverse Split may be abandoned by the Board of Directors at any time before the
Effective Date, whether before or after the Special Meeting (even if such
proposal has been approved by the stockholders).
The text of the Company's proposed Second Certificate of Incorporation
implementing the proposed Reverse Split, is attached hereto as Exhibit A and is
hereby incorporated by reference.
In lieu of issuing less than one whole share resulting from the
proposed Reverse Split to holders of an odd number of shares, the Company will
determine the fair value of each outstanding share of Common Stock held on the
Effective Date of the proposed Reverse Split (the "Fractional Share Purchase
Price"). The Company currently anticipates that the Fractional Share Purchase
Price will be based on the average daily closing bid price per share of the
Common Stock as reported by the Nasdaq Small Cap Market for the ten (10) trading
days immediately preceding the Effective Date. In the event the Company
determines that unusual trading activity would cause such amount to be an
inappropriate measure of the fair value of the Common Stock, the Company may
base the Fractional Share Purchase Price on the average daily closing bid price
of the Common Stock over a shorter or longer period not exceeding thirty (30)
trading days. Holders of Common Stock who hold a number of shares of Common
Stock not divisible by five on the Effective Date will be entitled to receive,
in lieu of the less than one whole share arising as a result of the proposed
Reverse Split, cash in the amount of the relevant portion of the Fractional
Share Purchase Price.
As soon as practical after the Effective Date, the Company will mail a
letter of transmittal to each holder of record of a stock certificate or
certificates which represent issued Common Stock outstanding on the Effective
Date. The letter of transmittal will contain instructions for the surrender of
such certificate or certificates to the Company's designated exchange agent in
exchange for certificates representing the number of whole shares of Common
Stock (plus the relevant portion of the Fractional Share Purchase Price, if any)
into which the shares of Common Stock have been converted as a result of the
proposed Reverse Split. No cash payment will be made or new certificate issued
to a stockholder until he has surrendered his outstanding certificates together
with the letter of transmittal to the Company's exchange agent. See "--Exchange
of Stock Certificates."
Effect of the Proposed Reverse Split on the Company.
As a result of the proposed Reverse Split, the number of whole shares
of Common Stock held by stockholders of record as of the Effective Date will be
equal to one-fifth the number of shares of Common Stock held immediately prior
to the Effective Date, plus cash in lieu of any fractional share. The proposed
Reverse Split will not effect a stockholder's percentage ownership interest in
the Company or proportional voting power, except for minor differences resulting
from the payment of cash in lieu of fractional shares. The shares of Common
Stock and Preferred Stock resulting from the proposed Reverse Split will be
fully paid and nonassessable. The voting rights and other rights and privileges
of the holders of Common Stock will not be affected by the adoption or the
implementation of the proposed Reverse Split. Each stockholder on the Effective
Date will continue as a stockholder with respect to the shares resulting from
the proposed Reverse Split. Each such stockholder will continue to share in the
Company's assets, earnings or profits, if any, to the extent of each such
stockholder's ownership of Common Stock following the proposed Reverse Split.
<PAGE>
As of December 30, 1997, the number of Common Stock equivalents was
52,384,380 shares, 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. Based on the Company's best estimates, as a result of the
proposed Reverse Split, the number of Common Stock equivalents would be reduced
to approximately 10,476,876 shares, the number of Common Stock would be reduced
to approximately 3,893,415 and the number of Preferred Stock convertible into
Common Stock would be reduced to approximately 6,583,461.
The Common Stock is currently registered under Section 12(g) of the
Exchange Act and as a result, the Company is subject to the periodic reporting
and other requirements of the Exchange Act. The proposed Reverse Split will not
affect the registration of the Common Stock under the Exchange Act, and the
Company has no current intention of terminating its registration under the
Exchange Act.
On the Effective Date, the par value of the Common Stock will change
from $.001 per share to $.01 per share and the number of shares of Common Stock
authorized, issued and outstanding will be reduced. The number of authorized,
issued and outstanding shares of Preferred Stock will remain the same; however,
the conversion rate of the Preferred Stock shall change to reflect the effects
of the proposed Reverse Split on the Common Stock. Upon the Consummation of the
proposed Reverse Split, the Company will be authorized to issue 31,000,000
shares of its capital of which 30,000,000 shall be New Common Stock and
1,000,000 shall be Preferred Stock.
Dissenting stockholders have no appraisal rights under Delaware law or
the Company's Certificate of Incorporation with respect to the proposed Reverse
Split.
Upon consummation of the proposed Reverse Split, the total number of
shares currently reserved for grants of stock options and all stock options
previously granted would be decreased proportionately. The cash consideration
payable per share upon exercise of the stock options would be increased
proportionately. Similarly, the total number of shares issuable upon exercise of
warrants granted by the Company would be decreased proportionately and the cash
consideration payable per share upon exercise of the warrants would increase
proportionately. Moreover, the number of shares of Common Stock issuable upon
conversion of the Preferred Stock will be decreased and the conversion price
increased proportionately.
Purpose of the Proposed Reverse Split.
On August 22, 1997, the Securities and Exchange Commission approved
changes to the Nasdaq SmallCap listing standards that eliminate an exception to
the minimum bid price rule that previously was available to companies. As a
result of recent changes in the Nasdaq listing rules, the Company will be
required to maintain a minimum market price of its Common Stock of at least
$1.00 per share effective February 23, 1998. On January 9, 1998, the price per
share of the Common Stock as reported on Nasdaq was $.8125.
In order to protect the Company from Nasdaq's possible delisting of the
Common Stock, the Board of Directors has determined to recommend the proposed
Reverse Split in order to achieve an increase in the price per share of the
Common Stock as traded on a post-split basis. For this purpose, the Board of
Directors believes that a decrease in the number of outstanding shares of Common
Stock, without any material alteration of the proportionate economic interest in
the Company held by individual stockholders, will result in an approximately
proportionate increase in the trading price of the Common Stock and thereby
satisfy the new Nasdaq qualification standard. No assurance can be given,
however, that the market price of the Common Stock will rise in proportion to
the reduction in the number of outstanding shares resulting from the proposed
Reverse Split.
Additionally, the Board of Directors believes that the current per
share price of the Common Stock may limit the effective marketability of the
Common stock because of the reluctance of many brokerage firms and institutional
investors to recommend lower-priced stocks to their clients or to hold them in
their own portfolios. Certain policies and practices of the securities industry
may tend to discourage individual brokers within those firms from dealing in
lower-priced stocks. Some of those policies and practices involve time-consuming
procedures that make the handling of lower-priced stocks economically
unattractive. The brokerage commission on a sale of lower-priced stock may also
represent a higher percentage of the sale price than the brokerage commission on
a higher-priced issue. Any reduction in brokerage commissions resulting from the
proposed Reverse Split may be offset, however, in whole or in part, by increased
brokerage commissions required to be paid by stockholders selling "odd lots"
created by the proposed Reverse Split.
<PAGE>
The Board of Directors believes that the decrease in the number of
shares of Common Stock outstanding as a consequence of the proposed Reverse
Split and the resulting anticipated increased price level will encourage greater
interest in the Common Stock by the financial community and promote greater
liquidity for the holders of the Common Stock. It is possible, however, that
liquidity could be affected adversely by the reduced number of shares
outstanding after the proposed Reverse Split. Furthermore, there can be no
assurances that the market price of the Common Stock immediately after
implementation of the proposed Reverse Split will approximate five times the
market price before the proposed Reverse Split or will be maintained for any
period of time.
Exchange of Stock Certificates.
If the Board of Directors determines to consummate the proposed Reverse
Split, as soon as practicable after the Effective Date, the Company will send
letters of transmittal to all stockholders of record on the Effective Date for
use in transmitting stock certificates ("Old Certificates") to the Company's
exchange agent.
Upon proper completion and execution of the letter of transmittal and
return thereof to the exchange agent, together with Old Certificates, holders of
record will receive certificates ("New Certificates") representing the number of
whole shares of Common Stock into which their shares of Common Stock have been
converted as a result of the proposed Reverse Split (as well as cash in lieu of
fractional shares resulting from the proposed Reverse Split). Until surrendered,
each outstanding Old Certificate held by a stockholder shall be deemed for all
purposes to represent the number of whole shares to which the holder is entitled
as a result of the proposed Reverse Split (as well as cash in lieu of fractional
shares resulting from the proposed Reverse Split).
No service charges will be payable by stockholders in connection with
the exchange of certificates, all expenses of which will be borne by the
Company.
Federal Income Tax Consequences on the Proposed Reverse Split.
The following discussion describes certain federal income tax
consequences of the proposed Reverse Split to stockholders who are citizens or
residents of the United States, other than stockholders who received their
Common Stock as compensation. The consequences for each stockholder will be
governed by the specific facts and circumstances pertaining to his acquisition
and ownership of Common Stock. Thus, the Company recommends that each
stockholder consult with his tax advisor concerning his own personal tax
situation. In general, the federal income tax consequences of the proposed
Reverse Split will vary among stockholders depending upon whether they receive
the Fractional Share Purchase Price or solely New Certificates in exchange for
Old Certificates. The Company has not sought and will not seek an opinion of
counsel or a ruling from the Internal Revenue Service regarding the federal
income tax consequences of the proposed Reverse Split. The Company, however,
believes that because the proposed Reverse Split is not part of a plan to
increase periodically a stockholder's proportionate interest in the Company's
assets or earnings and profits, the proposed Reverse Split probably will have
the following federal income tax effects:
1. A stockholder who receives solely New Certificates will not
recognize gain or loss on the exchange. In the aggregate, the stockholder's
basis in the Common Stock represented by New Certificates will equal the
holder's basis in the Common Stock represented by Old Certificates.
2. A stockholder who receives a portion of the Fractional Share
Purchase Price as a result of the proposed Reverse Split will generally be
treated as having received the payment as a distribution in redemption of the
Fractional Share, as provided in Section 302 (a) of the Code. Each affected
stockholder will be required to consult such stockholder's own tax advisor for
the tax effect of such redemption (i.e., exchange or dividend treatment) in
light of such stockholder's particular facts and circumstances.
3. The proposed Reverse Split will constitute a reorganization within
the meaning of Section 368(a)(1)(E) of the Code, and the Company will not
recognize any gain or loss as a result of the proposed Reverse Split.
The Board of Directors recommends a vote for the proposed Reverse
Split.
<PAGE>
OTHER MATTERS
Solicitation of Proxies
The cost of solicitation of proxies in the form enclosed herewith will
be borne by the Company. In addition to the solicitation of proxies by mail, the
directors, officers and employees of the Company may also solicit proxies
personally or by telephone without additional compensation for such activities.
The Company will also request persons, firms and corporations holding shares in
their names or in the names of their nominees, which are beneficially owned by
others, to send proxy materials to and obtain proxies from such beneficial
owners. The Company will reimburse such holders for their reasonable expenses.
Stockholder Proposals
A stockholder proposal submitted pursuant to Exchange Act Rule 14a-8
for inclusion in the Company's proxy statement and form of proxy for the 1998
Annual Meeting of Stockholders must be received by the Company by May 22, 1998;
provided, however, that if the scheduled date of 1998 Annual Meeting of
Stockholders is changed by more than 30 calendar days from October 24,
stockholder proposals must be received by the Company a reasonable time before
the proxy solicitation for the 1998 Annual Meeting of Stockholders. Such a
proposal must also comply with the requirements as to form and substance
established by the Securities and Exchange Commission for such a proposal to be
included in the proxy statement and form of proxy. Any such proposal should be
mailed to: Secretary, Waste Systems International, Inc., 10 Fawcett Street,
Cambridge, Massachusetts 02138.
Other Matters
The Board of Directors does not know of any matters other than those
described in this Proxy Statement that will be presented for action at the
Special Meeting. If other matters are presented, proxies will be voted in
accordance with the best judgment of the proxy holders.
REGARDLESS OF THE NUMBER OF SHARES YOU OWN, YOUR VOTE IS IMPORTANT TO THE
COMPANY. PLEASE COMPLETE, SIGN, DATE AND PROMPTLY RETURN THE ENCLOSED
PROXY CARD TODAY.
<PAGE>
WASTE SYSTEMS INTERNATIONAL, INC.
Proxy for Special Meeting of Stockholders, February 13, 1998
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
The undersigned hereby appoints Philip Strauss and Robert Rivkin, and
each of them, as Proxies of the undersigned, with full power of substitution,
and authorizes each of them to represent and to vote all shares of Preferred
Stock of Waste Systems International, Inc. (the "Company") held by the
undersigned as of the close of business of December 30, 1998 at the Special
Meeting of Stockholders to be held at Goodwin, Procter & Hoar LLP, 53 State
Street, Second Floor Conference Center, Boston, Massachusetts on Friday,
February 13, 1998, at 10:00 am, local time, and at any adjournments or
postponements thereof. The undersigned hereby acknowledge(s) receipt of a copy
of the accompanying Notice of Annual Meeting of Stockholders and the Proxy
Statement with respect thereto, and hereby revoke(s) any proxy or proxies
heretofore given. This proxy may be revoked at any time before it is executed.
Please mark boxes with an X in blue or black ink.
1. To act upon a proposal to amend the Company's First
Amended and Restated Certificate of Incorporation to effect a
reverse stock split of the Company's outstanding common stock,
par value $.001 per share (the "Common Stock"), pursuant to
which each five shares of Common Stock then outstanding will
be converted into one share of common stock, par value $.01
per share.
When properly executed, this proxy will be voted in the manner directed
herein by the undersigned stockholder(s). If no direction is given, this proxy
will be voted for the item described in Proposal 1 and at the Proxies'
discretion upon such other business as may properly come before the meeting.
PLEASE SIGN, DATE AND RETURN THIS PROXY IN THE ENCLOSED ENVELOPE.
Please sign name
exactly as shown.
Where there is more than one
holder, each should sign the
proxy. When signing as an
attorney, administrator,
executor, guardian or trustee,
please add your title as such.
If executed by a corporation,
the proxy should be signed by a
duly authorized person, stating
his or her title or authority.
Signature:___________________________
Dated:_________________________,1998
<PAGE>
WASTE SYSTEMS INTERNATIONAL, INC.
Proxy for Special Meeting of Stockholders, February 13, 1998
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
The undersigned hereby appoints Philip Strauss and Robert Rivkin, and
each of them, as Proxies of the undersigned, with full power of substitution,
and authorizes each of them to represent and to vote all shares of Common Stock
of Waste Systems International, Inc. (the "Company") held by the undersigned as
of the close of business of December 30, 1998 at the Special Meeting of
Stockholders to be held at Goodwin, Procter & Hoar LLP, 53 State Street, Second
Floor Conference Center, Boston, Massachusetts on Friday, February 13, 1998, at
10:00 am, local time, and at any adjournments or postponements thereof. The
undersigned hereby acknowledge(s) receipt of a copy of the accompanying Notice
of Annual Meeting of Stockholders and the Proxy Statement with respect thereto,
and hereby revoke(s) any proxy or proxies heretofore given. This proxy may be
revoked at any time before it is executed. Please mark boxes with an X in blue
or black ink.
1. To act upon a proposal to amend the Company's First
Amended and Restated Certificate of Incorporation to effect a
reverse stock split of the Company's outstanding common stock,
par value $.001 per share (the "Common Stock"), pursuant to
which each five shares of Common Stock then outstanding will
be converted into one share of common stock, par value $.01
per share.
When properly executed, this proxy will be voted in the manner directed
herein by the undersigned stockholder(s). If no direction is given, this proxy
will be voted for the item described in Proposal 1 and at the Proxies'
discretion upon such other business as may properly come before the meeting.
PLEASE SIGN, DATE AND RETURN THIS PROXY IN THE ENCLOSED ENVELOPE.
Please sign name
exactly as shown.
Where there is more than one
holder, each should sign the
proxy. When signing as an
attorney, administrator,
executor, guardian or trustee, please
add your title as such. If executed
by a corporation, the proxy should
be signed by a duly authorized
person, stating his or her title
or authority.
Signature:___________________________
Dated:_________________________,1998
<PAGE>
Exhibit A
SECOND 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 Second Amended and Restated Certificate of Incorporation
amends, restates and integrates the provisions of the First Amended and Restated
Certificate of Incorporation of the Corporation filed with the Secretary of
State of the State of Delaware on October 20, 1997 (the "Certificate of
Incorporation"), and was duly adopt 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.
<PAGE>
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.
ARTICLE IV
CAPITAL STOCK
As of 5:00 PM, Eastern time, on the date on which this Second Amended
and Restated Certificate of Incorporation is filed with the Secretary of the
State of Delaware (the "Effective Time"), each FIVE outstanding shares of common
stock par value $.001 per share ("Old Common Stock"), shall thereupon be
reclassified and changed into ONE share of common stock, par value $.01 per
share (the "Common Stock"). Upon such Effective Time, each holder of Old Common
Stock shall thereupon automatically be and become the holder of ONE share of
Common Stock for every FIVE shares of Old Common Stock held by such holder prior
thereto. Upon such Effective Time, each Certificate formerly representing a
stated number of shares of Old Common Stock shall thereupon be deemed for all
Corporate purposes to evidence ownership of Common Stock in the appropriately,
reduced whole number of shares. As soon as practicable after such Effective
Time, stockholders as of the date of the reclassification will be notified
thereof and upon their delivery of their certificates of Old Common Stock to the
Company or its designated agent, will be sent stock certificates representing
their shares of Common Stock, rounded down to the nearest whole number, together
with cash representing the fair value of such holder's fractional shares of Old
Common Stock. No scrip or fractional share certificates for Common Stock will be
issued in connection with this revised stock split.
As of the Effective Time, the total number of shares of capital stock
which the Corporation shall have the authority to issue is Thirty-One Million
(31,000,000) shares of which (i) Thirty Million (30,000,000) shares shall be
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.
<PAGE>
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;
(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;
<PAGE>
(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;
(in) 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: (in) 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.
<PAGE>
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.
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 (in) 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 (in) 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.
<PAGE>
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 (in) 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.
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 (in) 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.
<PAGE>
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.
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 (in) 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.
<PAGE>
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.
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<PAGE>
WASTE SYSTEMS INTERNATIONAL, INC.
By: /s/ Philip Struass
_______________________________
Philip Strauss
President
By: /s/ Robert Rivkin
_______________________________
Robert Rivkin
Secretary
