AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 6, 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 (I.R.S. Employer
of incorporation or organization) Identification Number)
1001 FANNIN STREET
SUITE 4000
HOUSTON, TEXAS 77002
(713) 512-6200
(Address, including zip code, and telephone number, including area code
of Registrant's principal executive offices)
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2003 WASTE MANAGEMENT, INC. DIRECTORS' DEFERRED COMPENSATION 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
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING AGGREGATE REGISTRATION
(1) PRICE PER OFFERING PRICE FEE (1)(3)
SHARE (1)(2) (1)(3)
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Common Stock, par value $0.01 per share..... 500,000 $25.88 $12,940,000 $1,046.85
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(1) Consists of 500,000 shares of Common Stock, $0.01 par value (the
"Common Stock"), of Waste Management, Inc. (the "Company") issuable
pursuant to the 2003 Waste Management, Inc. Directors' Deferred
Compensation Plan (the "Plan").
(2) Represents the average of the high and low prices of the Common Stock
as reported on the New York Stock Exchange on October 31, 2003.
(3) Computed in accordance with Rules 457(c) and (h) under the Securities
Act of 1933, as amended (the "Securities Act"), solely for the purpose
of calculating the total registration fee. The aggregate offering price
and amount of registration fee have been computed based on the average
of the high and low prices of Common Stock as reported on the New York
Stock Exchange on October 31, 2003.
EXPLANATORY STATEMENT
The Registrant has filed this registration statement on Form S-8 to
register the issuance of 500,000 shares of Common Stock pursuant to the Plan.
Upon this registration statement's effectiveness, there will be 500,000 shares
of Common Stock registered for issuance under the Plan.
This Form S-8 includes a Reoffer Prospectus prepared in accordance with
Part I of Form S-3 under the Securities Act. The Reoffer Prospectus may be
utilized for reofferings and resales of shares of Common Stock acquired pursuant
to the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION. *
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. *
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* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act, and the Note to Part I of Form S-8.
PROSPECTUS
26,920 SHARES
WASTE MANAGEMENT, INC.
Common Stock ($.01 par value)
This prospectus relates to the offer and sale by certain stockholders
(the "Selling Stockholders") from time to time of shares of our Common Stock
that will be issued by us to the Selling Stockholders upon conversion of stock
units granted under our 2003 Directors' Deferred Compensation Plan (the "Plan").
The shares are being offered and sold for the account of the Selling
Stockholders and we will not receive any of the proceeds from the sale of the
shares.
The Selling Stockholders may sell their shares from time to time in one
or more transactions on the New York Stock Exchange (the "NYSE"), in negotiated
transactions or otherwise, at market prices prevailing at the time of the sale
or at prices otherwise negotiated. See "Plan of Distribution." We will bear all
expenses in connection with the preparation of this prospectus.
Our Common Stock is listed on the NYSE. On October 31, 2003, the
closing price for our Common Stock, as reported by the NYSE, was $25.92.
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This investment involves risk. See "Risk Factors" beginning at page 2.
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Neither the Securities and Exchange Commission nor any state securities
commission has determined whether this prospectus is truthful or complete. They
have not made, nor will they make, any determination as to whether anyone should
buy these securities. Any representation to the contrary is a criminal offense.
The date of this Prospectus is November 6, 2003.
TABLE OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION ..................................................1
INCORPORATION BY REFERENCE ...........................................................1
ABOUT THIS PROSPECTUS ................................................................1
GENERAL INFORMATION ..................................................................2
RISK FACTORS .........................................................................2
USE OF PROCEEDS ......................................................................6
SELLING STOCKHOLDERS .................................................................6
PLAN OF DISTRIBUTION .................................................................7
LEGAL MATTERS ........................................................................8
EXPERTS ..............................................................................8
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission (the "SEC"). Our
SEC filings are available to the public over the Internet at the SEC's website
at http://www.sec.gov. You may read and copy any document we file at:
o the public reference facilities maintained by the SEC at 450 Fifth
Street, N.W., Washington, D.C. 20549, and
o the regional offices of the SEC located at:
o 500 Madison Street, Suite 1400, Chicago, Illinois 60661, and
o 233 Broadway, New York, New York 10279.
Please call the SEC at 1-800-SEC-0330 for more information about the
public reference facilities.
You can also inspect material filed by us at the offices of the NYSE,
20 Broad Street, New York, New York 10005, on which shares of our Common Stock
are listed.
We maintain a website at http://www.wm.com, at which you can access our
Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports
on Form 8-K. We make those filings available on our website as soon as
practicable.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information we incorporate by reference is
considered to be a part of this prospectus and information that we file later
with the SEC will automatically update and replace this information. We
incorporate by reference the documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"):
(1) Our Annual Report on Form 10-K for the year ended December 31,
2002;
(2) Our Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2003, June 30, 2003 and September 30, 2003; and
(3) The description of our Common Stock contained in our
Registration Statement on Form 8-A filed with the SEC pursuant
to Section 12 of the Exchange Act, on July 1, 1993, as amended
on Form 8-B filed with the SEC on July 13, 1995.
You may request a copy of these filings, excluding the exhibits to such
filings which we have not specifically incorporated by reference in such
filings, at no cost, by writing or telephoning us at the following address:
Waste Management, Inc.
1001 Fannin Street, Suite 4000
Houston, Texas 77002
(713) 512-6200
Attention: Corporate Secretary
ABOUT THIS PROSPECTUS
In this prospectus, the terms "our," "we," "us," "Waste Management,"
and similar terms refer to Waste Management, Inc. and include all of our
consolidated subsidiaries unless the context requires otherwise.
1
This prospectus is part of a registration statement we filed with the
SEC. You should rely only on the information provided or incorporated by
reference in this prospectus or any related supplement. We have not authorized
anyone else to provide you with different information. The Selling Stockholders
will not make an offer of these shares in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any
supplement is accurate as of any other date than the date on the front of those
documents.
GENERAL INFORMATION
Waste Management is its industry's leading provider of integrated waste
services in North America. Through our subsidiaries, we provide collection,
transfer, recycling and resource recovery, and disposal services. We are also a
leading developer, operator and owner of waste-to-energy facilities in the
United States. Our customers include commercial, industrial, municipal and
residential customers, other waste management companies, governmental entities
and independent power market participants.
Our principal executive offices are located at 1001 Fannin Street,
Suite 4000, Houston, Texas 77002. Our telephone number at that address is (713)
512-6200. Our website address is http://www.wm.com.
The shares of Common Stock offered hereby will be issued to the Selling
Stockholders upon conversion of stock units awarded to them under the Plan and
will be sold for the account of the Selling Stockholders. For more information
on the shares of Common Stock offered for sale, see Section entitled, "Selling
Stockholders," included herein.
RISK FACTORS
Risks Relating to Our Business
FACTORS INFLUENCING FUTURE RESULTS AND ACCURACY OF FORWARD-LOOKING STATEMENTS
When we make statements containing projections about our accounting and
finances, plans and objectives for the future, future economic performance, or
when we make statements containing any other projections or estimates about our
assumptions relating to these types of statements, we are making forward-looking
statements. These statements usually relate to future events and anticipated
revenues, earnings or other aspects of our operations or operating results. We
make these statements in an effort to keep stockholders and the public informed
about our business and have based them on our current expectations about future
events. You should view such statements with caution. These statements are not
guarantees of future performance or events. All phases of our business are
subject to uncertainties, risks and other influences, many of which we have no
control over. Any of these factors, either alone or taken together, could have a
material adverse effect on us and could change whether any forward-looking
statement ultimately turns out to be true. Additionally, we assume no obligation
to update any forward-looking statements as a result of future events or
developments.
Outlined below are some of the risks that we face and that could affect
our business and financial statements for 2003 and beyond. However, they are not
the only risks that we face. There may be additional risks that we do not
presently know of or that we currently believe are immaterial which could also
impair our business.
WE COULD BE LIABLE FOR ENVIRONMENTAL DAMAGES RESULTING FROM OUR OPERATIONS
We could be liable if our operations cause environmental damage to our
properties or to that of nearby landowners, particularly as a result of the
contamination of drinking water sources or soil. Under current law, we could
even be held liable for damage caused by conditions that existed before we
acquired the assets or operations involved. Also, we could be liable if we
arrange for the transportation, disposal or treatment of hazardous substances
that cause environmental contamination, or if a predecessor owner made such
arrangements and under applicable law we are treated as a successor to the prior
owner. Any substantial liability for environmental damage could have a material
adverse effect on our financial condition, results of operations and cash flows.
In the ordinary course of our business, we have in the past, and may in the
future, become involved in a variety of legal and administrative proceedings
relating to land use and environmental laws and regulations. These include
proceedings in which:
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o agencies of federal, state, local or foreign governments seek to
impose liability on us under applicable statutes, sometimes involving
civil or criminal penalties for violations, or to revoke or deny
renewal of a permit we need; and
o citizen groups, adjacent landowners or governmental agencies oppose
the issuance of a permit or approval we need, allege violations of the
permits under which we operate or laws or regulations to which we are
subject, or seek to impose liability on us for environmental damage.
The adverse outcome of one or more of these proceedings could result
in, among other things, material increases in our liabilities.
From time to time, we have received citations or notices from
governmental authorities that our operations are not in compliance with our
permits or certain applicable environmental or land use laws and regulations. In
the future we may receive additional citations or notices. We generally seek to
work with the authorities to resolve the issues raised by such citations or
notices. If we are not successful in such resolutions, we may incur fines,
penalties or other sanctions that could result in material unanticipated costs
or liabilities.
The amount of insurance required to be maintained for environmental
liability is governed by statutory requirements. We believe that the cost for
such insurance is high relative to the coverage it would provide, and therefore,
our coverages are generally maintained at the minimum statutorily required
levels. We face the risk of incurring liabilities for environmental damage if
our insurance coverage is ultimately inadequate to cover those damages.
In addition, to fulfill our financial assurance obligations with
respect to environmental closure and post-closure liabilities, we generally
obtain letters of credit or surety bonds, or rely on insurance, including
captive insurance. We currently have in place all necessary financial assurance
instruments, and we do not anticipate any difficulties obtaining financial
assurance instruments in the future, although the cost of such assurance
instruments has increased and may continue to increase. However, in the event we
are unable to obtain sufficient surety bonding, letters of credit or third-party
insurance coverage at reasonable cost, or one or more states cease to view
captive insurance as adequate coverage, we would need to rely on other forms of
financial assurance. These types of financial assurance could be more expensive
to obtain, which could negatively impact our liquidity and capital resources and
our ability to meet our obligations as they become due.
GOVERNMENTAL REGULATIONS OR LEVIES MAY RESTRICT OUR OPERATIONS OR INCREASE OUR
COSTS OF OPERATIONS
Stringent government regulations at the federal, state, provincial,
and local level in the United States and Canada have a substantial impact on our
business. A large number of complex laws, rules, orders and interpretations
govern environmental protection, health, safety, land use, zoning,
transportation and related matters. Among other things, they may restrict our
operations and adversely affect our financial condition, results of operations
and cash flows by imposing conditions such as:
o limitations on the siting and construction of new waste disposal,
transfer or processing facilities or the expansion of existing
facilities;
o limitations, regulations or levies on collection and disposal prices,
rates and volumes;
o limitations or bans on disposal or transportation of out-of-state
waste or certain categories of waste; or
o mandates regarding the disposal of solid waste.
Regulations also affect the siting, design and closure of landfills
and could require us to undertake investigatory or remedial activities, curtail
operations or close a landfill temporarily or permanently. Future changes in
these regulations may require us to modify, supplement or replace equipment or
facilities. The costs of complying with these regulations could be substantial.
3
In order to develop, expand or operate a landfill or other waste
management facility, we must have various facility permits and other
governmental approvals, including those relating to zoning, environmental
protection and land use. The permits and approvals are often difficult, time
consuming and costly to obtain and could contain conditions that limit
operations.
THE POSSIBILITY OF PENDING ACQUISITIONS, DISPOSAL SITE DEVELOPMENTS OR EXPANSION
PROJECTS NOT BEING COMPLETED OR CERTAIN OTHER EVENTS COULD RESULT IN A MATERIAL
CHARGE AGAINST OUR EARNINGS
In accordance with generally accepted accounting principles, we
capitalize certain expenditures and advances relating to acquisitions, pending
acquisitions, and disposal site development and expansion projects. We expense
indirect acquisition costs, such as executive salaries, general corporate
overhead, public affairs and other corporate services, as incurred. Our policy
is to charge against earnings any unamortized capitalized expenditures and
advances relating to any facility or operation that is permanently shut down or
determined to be impaired, any pending acquisition that is not consummated and
any disposal site development or expansion project that is not completed or
determined to be impaired. The charge against earnings is reduced by any portion
of the capitalized expenditure and advances that we estimate will be
recoverable, through sale or otherwise. In future periods, we may be required to
incur charges against earnings in accordance with this policy, or due to other
events that cause impairments. Depending on the magnitude, any such charges
could have a material adverse effect on our results of operations and possibly
our financial covenants, which could negatively affect our liquidity.
THE DEVELOPMENT AND ACCEPTANCE OF ALTERNATIVES TO LANDFILL DISPOSAL AND
WASTE-TO-ENERGY FACILITIES COULD REDUCE OUR ABILITY TO OPERATE AT FULL CAPACITY
Our customers are increasingly using alternatives to landfill
disposal, such as recycling and composting. In addition, some state and local
governments mandate recycling and waste reduction at the source and prohibit the
disposal of certain types of wastes, such as yard wastes, at landfills or
waste-to-energy facilities. Although such mandates are a useful tool to protect
our environment, these developments reduce the volume of waste going to
landfills and waste-to-energy facilities in certain areas, which may affect our
ability to operate our landfills and waste-to-energy facilities at full
capacity, as well as the prices that we can charge for landfill disposal and
waste-to-energy services.
OUR BUSINESS IS SEASONAL IN NATURE AND OUR REVENUES AND RESULTS VARY FROM
QUARTER-TO-QUARTER
Our operating revenues are usually lower in the winter months,
primarily because the volume of waste relating to construction and demolition
activities usually increases in the spring and summer months, and the volume of
industrial and residential waste in certain regions where we operate usually
decreases during the winter months. Our first and fourth quarter results of
operations typically are adversely affected by this seasonality. In addition,
particularly harsh weather conditions may result in the temporary suspension of
certain of our operations.
FLUCTUATIONS IN COMMODITY PRICES AFFECT OUR OPERATING REVENUES
Our recycling operations process for sale certain recyclable
materials, including fibers, aluminum and glass, all of which are subject to
significant price fluctuations. The majority of the recyclables that we process
for sale are fibers, including old corrugated cardboard, or ("OCC"), and old
newsprint, or ("ONP"). We enter into financial swaps in an effort to mitigate
some of the variability in cash flows from the sales of fibers at floating
prices. In the past three years, the year-over-year changes in the quarterly
average market prices for OCC ranged from a decrease of as much as 63% to an
increase of as much as 109%. The same comparisons for ONP have ranged from a
decrease of as much as 46% to an increase of as much as 47%. These fluctuations
can affect future operating income and cash flows; for example, our operating
revenues for the year ended December 31, 2002 were approximately $69 million
more than the corresponding prior period due to such fluctuations.
Additionally, there may be significant price fluctuations in the
price of methane gas, electricity and other energy related products that are
marketed and sold by our landfill gas recovery, waste-to-energy and independent
power production plants operations. Our landfill gas recovery and
waste-to-energy operations generally enter into long-term sales agreements.
Therefore, market fluctuations do not have a significant effect on these
operations in the short-term. However, revenues from our IPPs can be effected by
price fluctuations. In the past two years, the year-over-year changes in the
average quarterly electricity prices have ranged from increases of as much as
78% to decreases of as
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much as 52%. For the year ended December 31, 2002, our revenues decreased, when
compared to the prior year, by $34 million due to lower electricity prices.
WE FACE UNCERTAINTIES RELATING TO PENDING LITIGATION AND INVESTIGATIONS
We and some of our subsidiaries are currently involved in civil
litigation and governmental proceedings relating to the conduct of our business.
The timing of the final resolutions to these matters is uncertain. Additionally,
the possible outcomes or resolutions to these matters could include judgments
against us or settlements, either of which could require substantial payments by
us, adversely affecting our liquidity.
INTENSE COMPETITION COULD REDUCE OUR PROFITABILITY
We encounter intense competition from governmental,
quasi-governmental and private sources in all aspects of our operations. In
North America, the industry consists of large national waste management
companies, and local and regional companies of varying sizes and financial
resources. We compete with these companies as well as with counties and
municipalities that maintain their own waste collection and disposal operations.
These counties and municipalities may have financial competitive advantages
because tax revenues and tax-exempt financing are available to them. Also, such
governmental units may attempt to impose flow control or other restrictions that
would give them a competitive advantage. In addition, competitors may reduce
their prices to expand sales volume or to win competitively bid municipal
contracts.
EFFORTS BY LABOR UNIONS TO ORGANIZE OUR EMPLOYEES COULD DIVERT MANAGEMENT
ATTENTION AND INCREASE OUR OPERATING EXPENSES
Labor unions constantly make attempts to organize our employees, and
these efforts will likely continue in the future. Certain groups of our
employees have chosen to be represented by unions, and we have negotiated
collective bargaining agreements with some of the groups. Additional groups of
employees may seek union representation in the future, and the negotiation of
collective bargaining agreements could divert management attention and result in
increased operating expenses and lower net income. If we are unable to negotiate
acceptable collective bargaining agreements, we might have to wait through
"cooling off" periods, which are often followed by union-initiated work
stoppages, including strikes. Depending on the type and duration of any labor
disruptions, our operating expenses could increase significantly, which could
adversely affect our financial condition, results of operations and cash flows.
FLUCTUATIONS IN FUEL COSTS COULD AFFECT OUR OPERATING EXPENSES AND RESULTS
The price and supply of fuel is unpredictable and fluctuates based
on events outside our control, including geopolitical developments, supply and
demand for oil and gas, actions by OPEC and other oil and gas producers, war and
unrest in oil producing countries, regional production patterns and
environmental concerns. Fuel is needed to run our collection and transfer
trucks, and any price escalations or reductions in the supply could increase our
operating expenses and have a negative impact on our consolidated financial
condition, results of operations and cash flows. We have implemented a fuel
surcharge to partially offset increased fuel costs. However, we are not always
able to pass through all of the increased fuel costs due to the terms of certain
customers' contracts.
WE FACE RISKS RELATING TO GENERAL ECONOMIC CONDITIONS
We face risks related to general economic and market conditions,
including the potential impact of the status of the economy and interest rate
fluctuations. We also face risks related to other adverse external economic
conditions, such as the ability of our insurers to timely meet their commitments
and the effect that significant claims or litigation against insurance companies
may have on such ability. Any negative general economic conditions could
materially adversely affect our financial condition, results of operations and
cash flows.
WE MAY NEED ADDITIONAL CAPITAL
We currently expect to meet our anticipated cash needs for capital
expenditures, acquisitions and other cash expenditures with our cash flows from
operations and, to the extent necessary, additional financings. However, our
Board of Directors has approved a stock repurchase program pursuant to which we
may, at management's discretion, repurchase up to $1 billion of our Common Stock
in both 2003 and 2004. In addition, the Board of Directors recently
5
approved an increase in our dividend policy to $0.75 per share annually. The
dividend is expected to be paid in equal quarterly installments with the first
payment anticipated to be made in March 2004. If our cash flows from operations
are less than is currently expected, or our capital expenditures or acquisitions
increase, we may elect to incur more indebtedness. However, there can be no
assurances that we will be able to obtain additional financings on acceptable
terms. In these circumstances, we would likely use our revolving credit
facilities to meet our cash needs.
Our credit facilities require us to comply with certain financial
ratios. However, if our cash flows are less than expected, our capital
requirements are more than expected or we incur additional indebtedness, we may
not be in compliance with the ratios. This would result in a default under our
credit facilities. If we were unable to obtain waivers or amendments to the
credit facilities, the lenders could choose to declare all outstanding
borrowings immediately due and payable, which we may not be able to pay in full.
The default under or unavailability of our credit agreements could have a
material adverse effect on our ability to meet our borrowing and bonding needs.
WE MAY ENCOUNTER DIFFICULTIES DEPLOYING OUR ENTERPRISE SOFTWARE
Upon implementation of new information technology systems, we may
experience problems that could adversely affect, or even temporarily disrupt,
all or a portion of our operations until resolved.
CHANGES IN ACCOUNTING RULES COULD ADVERSELY AFFECT OUR OPERATING RESULTS
Changes in accounting rules, including new accounting rules and
interpretations, could adversely affect our operating results or cause
unanticipated fluctuations in our operating results in future periods.
RISKS RELATING TO AN INVESTMENT IN COMMON STOCK
POTENTIAL EFFECT OF CERTAIN ANTI-TAKEOVER PROVISIONS
Certain provisions of our Certificate of Incorporation and Bylaws
may make it more difficult for a third party to acquire us in a transaction that
is not approved by our Board of Directors. For example, our Board of Directors
has the power to issue up to 10,000,000 shares of preferred stock in one or more
series, and to fix the rights and preferences of any series, without further
authorization by the holders of our Common Stock. This provision is designed to
permit us to develop our businesses and foster our long-term growth without the
disruption caused by the threat of a takeover that our Board of Directors does
not think is in our best interests or in the best interests of our stockholders.
Also, third parties may be discouraged from making a tender offer or otherwise
attempting to gain control of us even though the attempt might be beneficial
economically to us and our stockholders.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the offer and
sale of the shares of our Common Stock by the Selling Stockholders.
SELLING STOCKHOLDERS
This prospectus relates to the offer and sale of shares of our Common
Stock by the Selling Stockholders. The Selling Stockholders are all members, or
former members, of our Board of Directors. They will acquire the shares they are
offering hereby pursuant to the Plan. Under the Plan, certain of the
compensation payable to the directors is credited to an account for each
director in the form of stock units that are equal in value to shares of Common
Stock. The stock units are paid out in shares following termination of the
directors' service.
The following table sets forth (i) the number of shares of Common Stock
beneficially owned by each Selling Stockholder at October 31, 2003, (ii) the
number of shares of Common Stock to be offered hereby by each Selling
Stockholder and (iii) the number of shares of Common Stock to be held by each
Selling Stockholder after completion of the offering, assuming all of the
Selling Stockholders sell all of the shares offered hereby:
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NAME NUMBER OF SHARES OF COMMON NUMBER OF SHARES OF COMMON NUMBER OF SHARES OF COMMON
STOCK HELD AS OF STOCK TO BE OFFERED FOR SALE STOCK TO BE OWNED AFTER
OCTOBER 31, 2003 (1) COMPLETION OF OFFERING (2)
---------------------------- ---------------------------- ----------------------------
H. Jesse Arnelle 37,243(3) 1,724 35,519
Pastora San Juan Cafferty 57,660(4) 3,160 54,500
Frank M. Clark, Jr 4,160 3,160 1,000
Robert S. Miller 472,235(5) 4,801 467,434
John C. Pope 49,673(6) 3,160 46,513
W. Robert Reum 1,435 1,435 0
Steven G. Rothmeier 48,749(7) 3,160 45,589
Carl W. Vogt 69,615(8) 3,160 66,455
Ralph V. Whitworth 7,634,360(9) 3,160 7,631,200
(1) Includes stock units to be paid out in shares of Common Stock
following termination of the directors' service.
(2) None of these individuals own more than 1% of our outstanding shares,
except for Mr. Whitworth, who owns 1.3%, as described in Footnote 9
below.
(3) Includes 35,000 options to purchase Common Stock exercisable within 60
days.
(4) Includes 50,875 options to purchase Common Stock exercisable within 60
days.
(5) Includes 452,708 options to purchase Common Stock exercisable within
60 days.
(6) Includes 42,175 options to purchase Common Stock exercisable within 60
days; and also includes 435 shares held in a trust for the benefit of
Mr. Pope's children.
(7) Includes 44,350 options to purchase Common Stock exercisable within 60
days.
(8) Includes 10,000 options to purchase Common Stock exercisable within 60
days.
(9) Includes 315,000 options to purchase Common Stock exercisable within
60 days. The number of shares listed for Mr. Whitworth includes
7,316,200 shares held by limited partnerships and managed accounts
controlled by Relational Investors LLC, of which Mr. Whitworth is a
principal. Mr. Whitworth disclaims beneficial ownership of these
shares.
PLAN OF DISTRIBUTION
The Selling Stockholders may sell the shares of Common Stock from time
to time in the open market, either directly or through brokers or agents, or in
privately negotiated transactions. The shares may be sold at then prevailing
market prices, prices relating to the current market price or other negotiated
prices. The Selling Stockholders, brokers executing selling orders on behalf of
the Selling Stockholders and dealers to whom the Selling Stockholders may sell
may be deemed to be "underwriters" within the meaning of the Securities Act, in
which event any profit represented by
7
the excess of the selling price over the cost of the shares sold, and any
commission, discount or concession received may be deemed to be an underwriting
discount or commission under the Securities Act.
LEGAL MATTERS
The validity of the shares of Common Stock offered pursuant to this
prospectus will be passed upon for us by John S. Tsai, our Vice President and
Assistant General Counsel - Corporate & Securities.
EXPERTS
The audited consolidated financial statements as of December 31, 2001
and for the years ended December 31, 2001 and 2000 appearing in Waste
Management's Annual Report on Form 10-K for the year ended December 31, 2002
incorporated by reference in this prospectus have been audited by Arthur
Andersen LLP, independent public accountants, as set forth in their report.
Arthur Andersen has not consented to the inclusion of their report in this
prospectus, and we have dispensed with the requirement to file their report in
reliance upon Rule 437a of the Securities Act. Because Arthur Andersen has not
consented to the inclusion of their report in this prospectus, you will not be
able to recover against Arthur Andersen under Section 11 of the Securities Act
for any untrue statements of a material fact contained in the financial
statements audited by Arthur Andersen or any omissions to state a material fact
required to be stated therein.
The consolidated financial statements of Waste Management, Inc.
appearing in Waste Management, Inc.'s Annual Report (Form 10-K) for the year
ended December 31, 2002, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given on the authority of such
firm as experts in accounting and auditing.
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 "SEC") 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 Reports on Form 10-Q for the quarters ended March
31, 2003, June 30, 2003 and September 30, 2003.
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed with
the SEC 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 SEC on July 13, 1995.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, 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.
Certain legal matters in connection with the issuance of the shares of
Common Stock offered hereby have been passed upon for us by John S. Tsai, our
Vice President and Assistant General Counsel - Corporate & Securities.
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 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
9
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 (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 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 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 shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him 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 incurred
by him in any such capacity or arising out of his status as such whether or not
the corporation would have the power to indemnify him 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.
10
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 - 2003 Waste Management, Inc. Directors' Deferred Compensation Plan (Incorporated by reference to Exhibit
10.5 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 2003).
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).
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 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.
11
(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.
12
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, and
to file the same, with all exhibits thereto and other documents in connection
therewith, with the SEC, 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, 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 3rd day of
November, 2003.
WASTE MANAGEMENT, INC.
/s/ A. Maurice Myers
------------------------------------------
By: A. Maurice Myers
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
indicated on the 3rd day of November, 2003.
SIGNATURE TITLE
--------- -----
/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
13
/s/ Pastora San Juan Cafferty Director
------------------------------------------------
Pastora San Juan Cafferty
/s/ Frank M. Clark, Jr. Director
------------------------------------------------
Frank M. Clark, Jr.
/s/ Robert S. Miller Director
------------------------------------------------
Robert S. Miller
/s/ John C. Pope Director
------------------------------------------------
John C. Pope
/s/ W. Robert Reum Director
------------------------------------------------
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
14
INDEX TO EXHIBITS
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 - 2003 Waste Management, Inc. Directors' Deferred Compensation Plan (Incorporated by reference to Exhibit
10.5 to Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 2003).
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).
15