sv8
As filed with the Securities and Exchange Commission on October 27, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
Republic Services, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of incorporation or organization)
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65-0716904
(IRS Employer Identification No.) |
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18500 North Allied Way
Phoenix, Arizona
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85054 |
(Address of Principal Executive Offices)
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(Zip Code) |
Republic Services, Inc. Deferred Compensation Plan
(as amended and restated effective January 1, 2010)
(Full title of the plan)
Michael P. Rissman
Executive Vice President, General Counsel and Corporate Secretary
Republic Services, Inc.
18500 North Allied Way
Phoenix, Arizona 85054
(Name and address of agent for service)
(480) 627-2700
(Telephone number, including
area code, of agent for service)
Copy to:
Jodi A. Simala
71 South Wacker Drive
Chicago, Illinois 60606
(312) 782-0600
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
Large accelerated filer þ |
Accelerated filer o |
Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Maximum |
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Maximum |
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Amount to be |
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Offering Price |
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Aggregate |
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Amount of |
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Title of Securities to be Registered |
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Registered (1) |
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Per Share (2) |
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Offering Price (2) |
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Registration Fee |
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Deferred Compensation Obligations |
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$ |
40,000,000 |
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100 |
% |
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$ |
40,000,000 |
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$ |
2,852 |
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(1) |
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The Deferred Compensation Obligations are general unsecured obligations of Republic
Services, Inc. to pay deferred compensation in the future in accordance with the terms of the
Republic Services, Inc. Deferred Compensation Plan (the Plan). |
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(2) |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c)
and 457(h) under the Securities Act of 1933, as amended (the Securities Act). |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Republic Services, Inc. (Republic or the
Registrant), with the Securities and Exchange Commission (the Commission)
pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act), are
incorporated by reference in this Registration Statement:
(a) The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2009;
(b) The Registrants Quarterly Reports on Form 10-Q for the quarters ended March 31, 2010 and
June 30, 2010; and
(c) The Registrants Current Reports on Form 8-K filed with the Commission on January 4, 2010,
January 6, 2010, February 12, 2010, March 1, 2010 (relating to item 8.01 which is filed with the
Commission), March 1, 2010 (relating to item 2.03 which is filed with the Commission), March 4,
2010, May 14, 2010, June 28, 2010 and July 29, 2010 (relating to item 8.01 which is filed with the
Commission).
In addition, all documents subsequently filed with the Commission by the Registrant or the
Plan 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 securities offered herein 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 such document.
Item 4. Description of Securities.
The Plan provides a select group of management or highly compensated employees and
non-employee directors of Republic and certain of its affiliates with an opportunity to defer a
portion of their compensation (including base salary, bonus, commissions, director fees, amounts
earned under long-term and synergy incentive plans and restricted stock units) on a pre-tax basis.
The Plan also provides for Republic to make special employer contributions to the Plan on behalf of
participants, certain of which contributions are to be made in accordance with a formula set forth
in the Plan. Republic may also credit discretionary contributions to some or all of the Plan
participants. Amounts deferred under the Plan are credited with investment returns based on
measurement funds selected by the Plan participants from among funds selected by the committee that
administers the Plan. Any deferrals of restricted stock units are required to be invested in stock
units which correspond to Republic common stock. The amount of the Companys obligations under the
Plan (the Deferred Compensation Obligations), and the amount of the Deferred Compensation
Obligations payable to any Plan participant under the Plan, will reflect the returns of the
applicable measurement fund.
The amount of compensation deferred under the Plan is based on elections by the Plan
participants, employer contributions and the earnings and losses on the foregoing amounts. The
Deferred Compensation Obligations payable by Republic under the Plan will become due in accordance
with payment elections made by Plan participants in accordance with the terms of the Plan. The
Deferred Compensation Obligations represent the contractual obligations of Republic to pay or
distribute when due to participants in the Plan cash with respect to amounts deferred in accordance
with the terms of the Plan and shares with respect to deferred restricted stock units (which shares
have been registered separately) with respect to the Republic 2007 Stock Incentive Plan (or a
predecessor plan) (the Stock Incentive Plan).
Plan participants will not have any ownership interest in any of the amounts deferred or the
measurement funds under the Plan. The right of each participant in the Plan is solely that of a
general, unsecured creditor of
Republic with respect to his or her own interest under the Plan. The Plan is unfunded and Republic
is not required to set aside assets to be used for payment of the Deferred Compensation Obligations
under the Plan. Payments under the Plan shall be payable solely from the general assets of
Republic (subject to settlement of deferred restricted stock units with shares of Republic common
stock from the Stock Incentive Plan). Neither a participant in the Plan nor any other person will
have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise
encumber, transfer, hypothecate, alienate or convey in advance of actual receipt, the amounts, if
any, payable under the Plan or any part thereof. No part of the amounts payable will, prior to
actual payment, be subject to seizure, attachment, garnishment or sequestration for the payment of
any debts, judgments, alimony or separate maintenance owed by a participant in the Plan or any
other person, be transferable by operation of law in the event of a participants or any other
persons bankruptcy or insolvency or be transferable to a spouse as a result of a property
settlement or otherwise.
Any participating employer, including Republic, may amend or modify the Plan in whole or in
part with respect to that employer, provided that no such amendment or modification will be
effective to decrease the value of a Participants account balance in existence at the time the
amendment or modification is made and any measurement funds must remain in effect following such
termination. Republic may adopt amendments to the Plan to preserve the intended tax treatment of
the Plan benefits and to comply with the requirements of Section 409A of the Internal Revenue Code
of 1986, as amended (the Code). Republic may also terminate and liquidate the Plan to
the extent permitted by Code Section 409A.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The following summary is qualified in its entirety by reference to the complete text of the
statutes referred to below and to Republics Amended and Restated Certificate of Incorporation, as
amended (the Certificate), and Amended and Restated Bylaws.
The Certificate provides that Republic shall indemnify, to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law (the DGCL), each person who is
involved in any litigation or other proceeding because such person is or was a Republic director or
officer or was serving at Republics request as a director, officer, employee or agent of another
enterprise, against all expense (including attorneys fees), loss or liability reasonably incurred
or suffered in connection therewith. The Certificate provides that a person entitled to
indemnification under the Certificate shall be paid expenses incurred in defending any proceeding
in advance of its final disposition upon Republics receipt of an undertaking, by or on behalf of
the director or officer, to repay all amounts so advanced if it is ultimately determined that such
director or officer is not entitled to indemnification.
Section 145 of the DGCL permits a corporation to indemnify any director or officer of a
corporation against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with any action, suit or proceeding
brought by reason of the fact that such person is or was a director or officer of the corporation,
if such person acted in good faith and in a manner that 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, if he had no reason to believe his conduct was unlawful. In a derivative action (i.e.,
one brought by or on behalf of the corporation), however, indemnification may be made only for
expenses, actually and reasonably incurred by any director or officer in connection with the
defense or settlement of such action or suit, if such person acted in good faith and in a manner
that he reasonably believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made if such person shall have been adjudged to be liable
to the corporation, unless and only to the extent that the Delaware Court of Chancery or the court
in which the action or suit was brought shall determine that the defendant is fairly and reasonably
entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the DGCL, the Certificate eliminates the liability of a
director to Republic or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liabilities arising (a) from any breach of the directors duty of loyalty to
Republic or its stockholders, (b) from acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL, or (d)
from any transaction from which the director derived an improper personal benefit.
Republic may purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of Republic or another corporation, partnership, joint venture, trust or
other enterprise. Under an insurance policy maintained by Republic, the directors and officers of
Republic are insured, within the limits and subject to the limitations of the policy, against
certain expenses in connection with the defense of certain claims, actions, suits or proceedings,
and certain liabilities which might be imposed as a result of such claims, actions, suits or
proceedings, which may be brought against them by reason of being or having been such directors or
officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
A list of exhibits included as part of this Registration Statement is set forth in the Exhibit
Index which is incorporated herein by reference.
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 this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement;
and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply
if the Registration Statement is on Form S-8 and the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or 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.
(3) To remove from registration by means of a post-effective amendment any of the
securities being
registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a)
or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(a) of the Exchange Act) that is incorporated by reference in
this 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 provisions of the
Registrants articles of incorporation, by-laws 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.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of Phoenix, State of Arizona,
on October 27, 2010.
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REPUBLIC SERVICES, INC.
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By: |
/s/ Michael P. Rissman
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Name: |
Michael P. Rissman |
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Title: |
Executive Vice President and General Counsel |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor, Tod C. Holmes, Edward A. Lang, III and Michael P. Rissman, and each of
them, 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
and all amendments (including post-effective amendments) to this Form S-8 Registration Statement,
and to file the same, with all exhibits thereto, and all 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 and to all intents and purposes as he
might or could do in person hereby ratifying and confirming that said attorneys-in-fact and agents,
and each of them, or the substitute or substitutes of any of them, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons, in the capacities indicated on October 27, 2010.
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Signature |
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Title |
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/s/ James E. OConnor
James E. OConnor
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Chairman of the Board and Chief Executive Officer (principal
executive officer) |
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/s/ Tod C. Holmes
Tod C. Holmes
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Executive Vice President and Chief Financial Officer (principal
financial officer) |
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/s/ Charles F. Serianni
Charles F. Serianni
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Senior Vice President and Chief Accounting Officer (principal
accounting officer) |
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/s/ John W. Croghan
John W. Croghan
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Director |
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/s/ James W. Crownover
James W. Crownover
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Director |
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/s/ William J. Flynn
William J. Flynn
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Director |
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/s/ David I. Foley
David I. Foley
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Director |
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/s/ Michael Larson
Michael Larson
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Director |
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Signature |
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Title |
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/s/ Nolan Lehmann
Nolan Lehmann
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Director |
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/s/ W. Lee Nutter
W. Lee Nutter
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Director |
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/s/ Ramon A. Rodriguez
Ramon A. Rodriguez
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Director |
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/s/ Donald W. Slager
Donald W. Slager
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Director |
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/s/ Allan C. Sorensen
Allan C. Sorensen
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Director |
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/s/ John M. Trani
John M. Trani
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Director |
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/s/ Michael W. Wickham
Michael W. Wickham
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Director |
The Plan. Pursuant to the requirements of the Securities Act of 1933, as amended, the
trustees (or other persons who administer the employee benefit plan) have duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Phoenix, State of Arizona, on October 27, 2010.
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REPUBLIC SERVICES, INC. DEFERRED COMPENSATION PLAN
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By: |
Republic Services, Inc. Retirement Benefits Committee, Plan Administrator
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By: |
/s/ Donna Marquette
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Name: |
Donna Marquette |
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Title: |
Committee Member |
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EXHIBIT INDEX
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Exhibit |
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Number |
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Description |
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4.1*
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Amended and Restated Certificate of Incorporation of Republic Services,
Inc. (incorporated by reference to Exhibit 3.1 to the Registrants
Quarterly Report on Form 10-Q for the period ended June 30, 1998). |
4.2*
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Certificate of Amendment to Amended and Restated Certificate of
Incorporation of Republic Services, Inc. (incorporated by reference to
Exhibit 4.2 to the Registrants Registration Statement on Form S-8,
Registration No. 333-81801, filed with the Commission on June 29, 1999). |
4.3*
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Amended and Restated Bylaws of Republic Services, Inc. (incorporated by
reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K
filed on June 28, 2010). |
4.4
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Republic Services, Inc. Deferred Compensation Plan. |
5.1
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Opinion of Mayer Brown LLP as to the legality of the Deferred
Compensation Obligations being registered. |
23.1
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Consent of Ernst & Young LLP. |
23.2
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Consent of Mayer Brown LLP (contained in Exhibit 5.1). |
24.1
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Powers of Attorney (included on signature page to Registration Statement). |