AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 18, 2003
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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WASTE MANAGEMENT, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 73-1309529
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
1001 FANNIN STREET
SUITE 4000
HOUSTON, TEXAS 77001
(713) 512-6200
(Address, including zip code, and telephone number, including area code of
Registrant's principal executive offices)
WASTE MANAGEMENT, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the Plans)
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LAWRENCE O'DONNELL, III
WASTE MANAGEMENT, INC.
1001 FANNIN STREET
SUITE 4000
HOUSTON, TEXAS 77002
(713) 512-6200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) SHARE (1)(2) PRICE (1)(3) FEE (1)(3)
-------------------------------------------- -------------- -------------------- -------------------- --------------------
Common Stock, par value $0.01 per share .... 2,000,000 $24.695 $49,390,000 $3,995.65
Common Stock, par value $0.01 per share .... 89,266 -- -- --
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(1) The Registrant previously filed a registration statement on Form S-8 to
register the issuance of shares pursuant to the Waste Management, Inc.
Employee Stock Purchase Plan (the "Plan") on September 1, 2000,
Registration No. 333-45064 (the "Old S-8"). The Old S-8 registered the
issuance of up to 1,409,708 shares of the Company's common stock, par value
$0.01 per share (the "Common Stock"), under the Plan. There are currently
89,266 shares of Common Stock registered for issuance under the Old S-8
that have not been issued (the "Unissued Shares"). The registrant paid fees
totaling $447.76 to register the Unissued Shares. Pursuant to General
Instruction E to Form S-8, the Unissued Shares are being carried forward
from such earlier registration statement and, accordingly, the Registrant
has offset the registration fee to be paid herewith by the $447.76 in fees
that were paid by the Registrant on September 1, 2000.
(2) Represents the average of the high and low prices of the Common Stock as
reported on the New York Stock Exchange on June 16, 2003.
(3) Computed in accordance with Rules 457(c) and (h) under the Securities Act
of 1933, as amended, solely for the purpose of calculating the total
registration fee. The aggregate offering price and amount of registration
fee have been computed based on the average of the high and low prices of
Common Stock as reported on the New York Stock Exchange on June 16, 2003.
EXPLANATORY STATEMENT
The Registrant has filed this registration statement on Form S-8 to
register the issuance of an additional 2,000,000 shares of Common Stock pursuant
to the Waste Management, Inc. Employee Stock Purchase Plan (the "Plan"). The
Registrant previously filed a registration statement on Form S-8 to register the
issuance of shares pursuant to the Plan on September 1, 2000, Registration No.
333-45064 (the "Old S-8"). The Old S-8 registered the issuance of up to
1,409,708 shares of Common Stock under the Plan. There are currently 89,266
shares of Common Stock registered for issuance under the Old S-8 that have not
been issued (the "Unissued Shares").
In accordance with the principles set forth in Interpretation 89 under
Section G "Securities Act Forms" of the Manual of Publicly Available Telephone
Interpretations of the Division of Corporation Finance of the Securities and
Exchange Commission (July 1997) and Instruction E to Form S-8, the Unissued
Shares are being carried forward from the Old S-8. Additionally,
contemporaneously with the filing of this Registration Statement, the Registrant
is filing an amendment to post-effectively amend the Old S-8 to deregister the
issuance of the Unissued Shares.
Upon this registration statement's effectiveness, there will be
2,089,266 shares of Common Stock registered for issuance under the Plan,
2,000,000 shares newly registered hereby and 89,266 shares from the Old S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION. *
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. *
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* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended, and the "Note" to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Registrant are hereby incorporated by
reference into this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended December
31, 2002.
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
2003.
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed with
the Commission pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on July
1, 1993, as amended on Form 8-B filed with the Commission on
July 13, 1995.
All documents subsequently filed 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 of the securities
offered hereby 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation (the "Charter") and the Bylaws of the
Registrant provide in effect that the Registrant shall indemnify its directors,
officers, employees and agents (as well as persons serving as a director,
officer, employee or agent of any of the Registrant's direct or indirect
subsidiaries) to the extent permitted by the General Corporation Law of the
State of Delaware (the "DGCL"). Sections 102 and 145 of the DGCL provide that a
Delaware corporation has the power to indemnify its directors, officers,
employees and agents in certain circumstances, as described below.
In accordance with Section 102 of the DGCL, the Registrant's Charter
contains a provision that eliminates the personal liability of directors of the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, except in cases where the director breached his or her duty of
loyalty to the Registrant or its stockholders, failed to act in good faith,
engaged in intentional misconduct or a knowing violation of the law, willfully
or negligently authorized the unlawful payment of a dividend or approved an
unlawful stock redemption or repurchase or obtained an improper personal
benefit.
Pursuant to Subsection (a) of Section 145 of the DGCL, the Registrant's
Bylaws provide that the Registrant shall indemnify any director, officer,
employee or agent, or former director, officer, employee or agent 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 Registrant),
against expenses
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(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding provided that such director, officer, employee or agent acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, provided that such director, officer, employee or agent had no
reasonable cause to believe that his or her conduct was unlawful.
Pursuant to Subsection (b) of Section 145 of the DGCL, the Registrant's
Bylaws provide that the Registrant shall indemnify any director, officer,
employee or agent, or former director, officer, employee or agent, 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 Registrant to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorney's fees),
judgments, fines, penalties and amounts paid in settlement actually and
reasonably incurred in connection with the investigation, preparation to defend
or defense of such action or suit provided that such person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interest of the Registrant, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Registrant unless and only to the extent that the
Court of Chancery (or such other court in which such action or suit has been
brought) shall determine that despite the adjudication of liability such person
is fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
The Registrant's Bylaws further provide that, to the extent that a
director, officer, employee or agent has been successful in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) of Section 145
of the DGCL or in the defense of any claim, issue or matter therein, he or she
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith. Any person seeking
indemnification as described above shall be deemed to have met the standard of
conduct required for such indemnification unless the contrary shall be
established. The indemnification provided by Section 145 of the DGCL shall not
be exclusive of any other rights to which the party seeking indemnification may
be entitled.
Section 145 of the DGCL also provides that a corporation is empowered
to purchase and maintain insurance on behalf of a director, officer, employee or
agent of the corporation against any liability asserted against him or her or
incurred by him or her in any such capacity or arising out of his or her status
as such whether or not the corporation would have the power to indemnify him or
her against such liabilities under Section 145 of the DGCL. The Registrant has
purchased certain liability insurance for its officers and directors.
The Registrant has entered into indemnification agreements with certain
of its executive officers and certain of its executive officers' employment
agreements contain indemnification provisions. Such agreements and provisions
generally provide that such persons will be indemnified and held harmless to the
fullest extent of Delaware law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration
Statement:
4.1 - Certificate of Incorporation (Incorporated by reference to
Exhibit 3.1 to the Registrant's Quarterly Report on Form 10-Q
for the Quarter ended June 30, 2002).
4.2 - Bylaws (Incorporated by reference to Exhibit 3.2 to the
Registrant's Quarterly Report on Form 10-Q for the Quarter
ended June 30, 2002).
4.3 - Waste Management, Inc. Employee Stock Purchase Plan.
5.1 - Opinion of John S. Tsai with respect to the legality of the
securities.
23.1 - Consent of Ernst & Young LLP.
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23.2 - Explanatory Statement Concerning Absence of Current Written
Consent of Arthur Andersen LLP.
23.3 - Consent of John S. Tsai (included in Exhibit 5.1).
24.1 - Powers of Attorney (included on the signature page 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 of 1933, as amended
(the "Securities Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement which represent a fundamental change in the
information set forth in the Registration Statement;
and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement.
Provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) 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 Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this 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 that remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby further 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.
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POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints A. Maurice Myers, David P. Steiner and
Lawrence O'Donnell, III, and each of them, each of whom may act without joinder
of the other, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all pre- or post-effective amendments to
this Registration Statement, including without limitation any registration
statement of the type contemplated by Rule 462(b) under the Securities Act of
1933, as amended, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, and each of them, or substitute or
substitutes of any or all of them, may lawfully do or cause to be done by virtue
hereof.
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
requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas on the 12th day of June,
2003.
WASTE MANAGEMENT, INC.
/s/ A. Maurice Myers
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By: A. Maurice Myers
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities indicated on the 12th day of June, 2003.
SIGNATURE TITLE
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/s/ A. Maurice Myers President, Chief Executive Officer and Chairman of the Board
------------------------------------------------ (Principal Executive Officer)
A. Maurice Myers
/s/ David P. Steiner Executive Vice President and Chief Financial Officer
------------------------------------------------ (Principal Financial Officer)
David P. Steiner
/s/ Robert G. Simpson Senior Vice President and Chief Accounting Officer
------------------------------------------------ (Principal Accounting Officer)
Robert G. Simpson
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/s/ Pastora San Juan Cafferty Director
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Pastora San Juan Cafferty
/s/ Frank M. Clark, Jr. Director
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Frank M. Clark, Jr.
/s/ Robert S. Miller Director
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Robert S. Miller
/s/ John C. Pope Director
------------------------------------------------
John C. Pope
/s/ W. Robert Reum Director
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W. Robert Reum
/s/ Steven G. Rothmeier Director
------------------------------------------------
Steven G. Rothmeier
/s/ Carl W. Vogt Director
------------------------------------------------
Carl W. Vogt
/s/ Ralph V. Whitworth Director
------------------------------------------------
Ralph V. Whitworth
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INDEX TO EXHIBITS
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4.1 - Certificate of Incorporation (Incorporated by reference to
Exhibit 3.1 to the Registrant's Quarterly Report on Form 10-Q
for the Quarter ended June 30, 2002).
4.2 - Bylaws (Incorporated by reference to Exhibit 3.2 to the
Registrant's Quarterly Report on Form 10-Q for the Quarter
ended June 30, 2002).
4.3 - Waste Management, Inc. Employee Stock Purchase Plan.
5.1 - Opinion of John S. Tsai with respect to the legality of the
securities.
23.1 - Consent of Ernst & Young LLP.
23.2 - Explanatory Statement Concerning Absence of Current Written
Consent of Arthur Andersen LLP.
23.3 - Consent of John S. Tsai (included in Exhibit 5.1).
24.1 - Powers of Attorney (included on the signature page of this
Registration Statement).