<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 29, 1999
REGISTRATION NO. 333-______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
REPUBLIC SERVICES, INC.
(Exact Name of Registrant as Specified in its Governing Instruments)
DELAWARE 65-0716904
(State or Other Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification No.)
REPUBLIC SERVICES, INC.
110 S.E. SIXTH STREET, 28TH FLOOR
FORT LAUDERDALE, FLORIDA 33301
(954) 769-2400
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
DAVID A. BARCLAY
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
REPUBLIC SERVICES, INC.
110 S.E. SIXTH STREET, 28TH FLOOR
FORT LAUDERDALE, FLORIDA 33301
(954) 769-2400
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
REPUBLIC SERVICES 401(K) PLAN
(Full Title of the Plan)
-------------------------
COPIES OF ALL COMMUNICATIONS TO:
JONATHAN L. AWNER, ESQ.
AKERMAN, SENTERFITT & EIDSON, P.A.
SUNTRUST INTERNATIONAL CENTER
ONE S.E. 3RD AVENUE, 28TH FLOOR
MIAMI, FLORIDA 33131-1704
(305) 374-5600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
PROPOSED
MAXIMUM AMOUNT OF
TITLE OF AMOUNT TO PROPOSED MAXIMUM AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED OFFERING PRICE PER SHARE OFFERING PRICE (2) FEE
--------------------------- ------------- ------------------------ ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per 800,000 $22.91(1) $18,328,000(1) $5,096.00
share
======================================================================================================================
</TABLE>
(1) Estimated solely for the purposes of calculating the registration fee,
computed pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended, on the basis of the average of the high and low
prices of a shares of the Registrant's Common Stock as reported on The
New York Stock Exchange on June 23, 1999. In addition, pursuant to Rule
416(c) of the Securities Act of 1933, as amended, this Registration
Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2) Employees participating in the Plan may allocate their contribution
among various investment alternatives offered by the Plan which
includes Common Stock of the Registrant. The Registrant will contribute
$.50 for each $1.00 of employee contributions up to 4% of eligible
compensation in the form of original issuances of Common Stock of the
Registrant.
Total Number of Sequentially Numbered Pages: 8
Exhibit Index on Sequentially Numbered Page: 8
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participants in the Republic Services 401(k) Plan
(the "Plan") filed by Republic Services, Inc. (the "Company") as specified by
Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act. The documents incorporated
by reference into the Registration Statement pursuant to Item 3 of Part II
hereof will be available to participants in the Plan, without charge, upon
written or oral request. Any such request should be directed to David A.
Barclay, Senior Vice President and General Counsel, Republic Services, Inc., 110
S.E. Sixth Street, 28th Floor, Fort Lauderdale, Florida, 33301, Telephone (954)
769-2400.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
(Not Required in Prospectus)
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed by Republic Services,
Inc. (the "Company") with the Commission pursuant to the Securities Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998; and
(b) The Company's Quarterly Report on Form 10-Q for the period
ended March 31, 1999; and
(c) The Company's prospectus filed pursuant to Rule 424(b) under
the Securities Act, filed with the Commission on May 20, 1999;
and
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1, dated March 3,
1999, as amended.
In addition, all documents filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Registration Statement and prior to the termination of the offering
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of the filing of such document with the
Commission. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of the
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modified or superseded such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of the Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares registered hereby will be passed upon for
the Company by Akerman, Senterfitt & Eidson, P.A., Miami, Florida. Certain
attorneys employed by Akerman, Senterfitt & Eidson, P.A. beneficially own shares
of the Common Stock of the Company as of the date hereof.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Certificate of Incorporation, as
amended (the "Certificate") provides that the Company shall indemnify, to the
fullest extent permitted by Section 145 of the Delaware General Corporation Law
("DGCL"), each person who is involved in any litigation or other proceeding
because such person is or was a director or officer of the Company, against all
expense, loss or liability reasonably incurred or suffered in connection
therewith. The Amended and Restated Bylaws (the "Bylaws") provide that a
director or officer may be paid expenses
3
<PAGE> 4
incurred in defending any proceeding in advance of its final disposition upon
receipt by the Company 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 the 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), 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 an 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 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 the corporation or its stockholders for monetary
damages for such breach of fiduciary duty as a director, except for liabilities
arising (i) from any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) from acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) from any transaction from which the director
derived an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed as part of this Registration Statement are as
follows:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C> <C>
4.1 -- Amended and Restated Certificate of
Incorporation of the Company (incorporated by
reference to Exhibit 3.1 of the Company's
Quarterly Report on Form 10-Q for the period
ended June 30, 1998).
4.2 -- Certificate of Amendment of Amended and
Restated Certificate of Incorporation of the
Company dated June 15, 1999.
4.3 -- Amended and Restated Bylaws of the Company
(incorporated by reference to Exhibit 3.2 of
the Company's Quarterly Report on Form 10-Q
for the period ended June 30, 1998).
4.4 -- Form of the Company's Common Stock Certificate.
5.1 -- Opinion of Akerman, Senterfitt & Eidson, P.A.
10.1 -- Republic Services 401(k) Plan.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Akerman, Senterfitt & Eidson, P.A. (included in opinion
filed as Exhibit 5.1).
</TABLE>
4
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C> <C>
24.1 -- Powers of Attorney (included as part of the
signature page hereto).
</TABLE>
In lieu of the opinion of counsel or determination letter contemplated
by Section 601(b)(5) of Regulation S-K, the Registrant hereby undertakes that it
will submit the Plan and any amendments thereto to the Internal Revenue Service
("IRS") in a timely manner and will make all changes required by the IRS in
order to continue to qualify the Plan under Section 401 of the Internal Revenue
Code of 1986, as amended.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
A. (1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement; 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 paragraphs (a)(1)(i) and (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 or furnished to the Commission
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 herein, 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 Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act 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 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 of whether such indemnification by it is against
public policy and as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has duly caused this Registration Statement on Form S-8 to be
signed on its behalf by the undersigned, thereunto duly approved, in the City of
Fort Lauderdale, State of Florida, on the 29th day of June, 1999.
REPUBLIC SERVICES, INC.
By:/s/ Harris W. Hudson
--------------------------
Harris W. Hudson
Vice Chairman and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints H. Wayne Huizenga and Harris W.
Hudson his true and lawful attorneys-in-fact, each acting alone, with full
powers of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities to sign any or all amendments, including any
post-effective amendments, to this registration statement, and to file the same,
with exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact or their substitutes, each acting alone, may lawfully do
or cause to be done by virtue hereof.
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
their capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ H. Wayne Huizenga Chairman of the Board June 29, 1999
- ---------------------------------
H. Wayne Huizenga
/s/ Harris W. Hudson Vice Chairman and Director June 29, 1999
- ---------------------------------
Harris W. Hudson
/s/ James E. O'Connor Chief Executive Officer and Director June 29, 1999
- --------------------------------- (principal executive officer)
James E. O'Connor
/s/ Tod C. Holmes Senior Vice President and Chief June 29, 1999
- --------------------------------- Financial Officer (principal financial
Tod C. Holmes officer and principal accounting
officer)
/s/ John W. Croghan Director June 29, 1999
- ---------------------------------
John W. Croghan
/s/ Ramon A. Rodriguez Director June 29, 1999
- ---------------------------------
Ramon A. Rodriguez
/s/ Allan C. Sorensen Director June 29, 1999
-----------------------------
Allan C. Sorensen
</TABLE>
6
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act, the Plan
administrator has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Fort
Lauderdale, State of Florida, on the 29th day of June, 1999.
REPUBLIC SERVICES 401(K) PLAN
By: The Administrative Committee, as Plan Administrator
/s/ David A. Barclay
-------------------------------
By: David A. Barclay
Title: Senior Vice President, General Counsel, Secretary
and Member of the Administrative Committee
administering the Republic Services 401(k) Plan
7
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C> <C>
4.1 -- Amended and Restated Certificate of
Incorporation of the Company (incorporated by
reference to Exhibit 3.1 of the Company's
Quarterly Report Form 10-Q for the period
ended June 30, 1998).
4.2 -- Certificate of Amendment of Amended and Restated Certificate
of Incorporation of the Company dated June 15, 1999.
4.3 -- Amended and Restated Bylaws of the Company
(incorporated by reference to Exhibit 3.2 of
the Company's Quarterly Report on Form 10-Q
for the period ended June 30, 1998).
4.4 -- Form of the Company's Common Stock Certificate.
5.1 -- Opinion of Akerman, Senterfitt & Eidson, P.A.
10.1 -- Republic Services 401(k) Plan.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Akerman, Senterfitt & Eidson, P.A. (included in opinion
filed as Exhibit 5.1).
24.1 -- Powers of Attorney (included as part of the signature page hereto).
</TABLE>
8
<PAGE> 1
Exhibit 4.2
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "REPUBLIC SERVICES, INC.", FILED IN THIS OFFICE ON THE FIFTEENTH
DAY OF JUNE, A.D. 1999, AT 10 O'CLOCK A.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
---------------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 9804517
DATE: 06-15-99
<PAGE> 2
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
REPUBLIC SERVICES, INC.
Republic Services, Inc., a corporation duly organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify that:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting Sections 1 and 2 of Article IV thereof and inserting the
following in lieu thereof:
"SECTION 1. GENERAL.
The total number of shares of stock which the Corporation shall have
authority to issue will be 800,000,000, consisting of 750,000,000
shares of common stock, par value $.01 per share (the "Common Stock"),
and 50,000,000 shares of preferred stock, par value $.01 per share (the
"Preferred Stock"). The Preferred Stock may be issued in one or more
series having such designations as may be fixed by the Board of
Directors (the "Board").
SECTION 2. COMMON STOCK.
(a) Issuance and Consideration. Any unissued or treasury shares of the
Common Stock may be issued for such consideration as may be fixed in
accordance with applicable law from time to time by the Board.
(b) Voting. Except as otherwise required by law or this Article IV,
Section 2(b) or provided in any resolutions adopted by the Board with
respect to any series of Preferred Stock, the holders of Common Stock
will possess all voting power. Except as otherwise provided by law, and
subject to any voting rights granted holders of any Preferred Stock,
amendments to the Certificate must be approved by a majority of the
votes entitled to be cast by all outstanding shares of Common Stock.
(c) Dividends. Subject to any preferential rights of any outstanding
series of Preferred Stock created from time to time by the Board, the
holders of shares of Common Stock shall be entitled to such cash
dividends as may be declared from time to time by the Board from funds
available therefor.
(d) Liquidation. Subject to any preferential rights of any outstanding
series of Preferred Stock created from time to time by the Board, upon
liquidation, dissolution or winding up of the Corporation, the holders
of shares of Common Stock shall be entitled to receive pro rata all
assets of the Corporation available for distribution to such holders.
<PAGE> 3
At the effective time of this Certificate, all outstanding shares of
Class A Common Stock shall be reclassified as "Common Stock."
2. The foregoing amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Republic Services, Inc. has caused this Certificate
to be executed this 14th day of June, 1999.
REPUBLIC SERVICES, INC.
By: /s/ David A. Barclay
--------------------------------------------
Name: David A. Barclay
Office: Senior Vice President, General Counsel
and Assistant Secretary
<PAGE> 1
EXHIBIT 4.4
<TABLE>
<S> <C> <C>
NUMBER SHARES
RSG 2045 SPECIMEN
COMMON STOCK COMMON STOCK
THIS CERTIFICATE IS TRANSFERRABLE
IN CHARLOTTE, NC AND NEW YORK, NY (PICTURE) CUSIP 760759 10 0
REPUBLIC SERVICES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
SEE REVERSE FOR
CERTAIN
DEFINITIONS
THIS CERTIFIES THAT
SPECIMEN
IS THE OWNER OF
FULLY-PAID AND NON-ASSESSABLE CLASS A SHARES OF THE COMMON STOCK, PAR VALUE $.01, OF
Republic Services, Inc. transferrable on the books of the Corporation in person or by duly authorized attorney upon surrender of
this certificate properly endorsed. This certificate and the shares evidenced hereby are issued under and shall be subject to all
of the provisions of the certificate of incorporation of the corporation and any amendments thereto copies of which are on file with
the corporation and the transfer agent to all of which the holder by acceptance hereof assents. This certificate is not valid until
countersigned by the transfer agent and registered by the registrar. Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
/s/ Harris W. Hudson /s/ H. Wayne Huizenga
VICE CHAIRMAN AND SECRETARY [SEAL] CHAIRMAN AND CHIEF EXECUTIVE OFFICER
Countersigned and Registered:
FIRST UNION NATIONAL BANK
(CHARLOTTE, NC)
By Transfer Agent
and Registrar,
Authorized Signature
</TABLE>
<PAGE> 2
REPUBLIC SERVICES, INC.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS, THE
POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF OF THE COMPANY
AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR
RIGHTS. SUCH REQUEST MAY BE MADE TO THE OFFICE OF THE SECRETARY OF THE COMPANY.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM--as tenants in common UNIF GIFT MIN ACT --______ Custodian _______
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act ____________________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received, _______ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
----------------------------------------
----------------------------------------
--------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF ASIGNEE)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
shares
------------------------------------------------------------------
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
Attorney
-----------------------------------------------------------------
to transfer the said stock on the books of the within named Corporation
with full power of substitution in the premises.
Dated
-------------------------
-------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED:
-------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
<PAGE> 1
EXHIBIT 5.1
Akerman, Senterfitt & Eidson, P.A.
Attorneys at Law
SunTrust International Center
28th Floor
One S.E. Third Avenue
Miami, Florida 33131-1704
(305) 374-5600
Telecopy (305) 374-5095
June 29, 1999
Republic Services, Inc.
110 S.E. Sixth Street, 28th Floor
Fort Lauderdale, FL 33301
Gentlemen:
We have acted as counsel to Republic Services, Inc., a Delaware
corporation (the "Company") with respect to the filing by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
of a Registration Statement on Form S-8 (the "Registration Statement") covering
the issuance of up to 800,000 shares (the "Shares") of the Company's common
stock, par value $0.01 per share (the "Common Stock"), which may be issued from
time to time in accordance with the terms of the Republic Services 401(k) Plan
(the "Plan").
Based on our review of the Company's Amended and Restated Certificate
of Incorporation, as amended, the Company's Amended and Restated Bylaws, the
Plan and documents related thereto, and such other documents and records as we
have deemed necessary and appropriate, and based upon representations made to us
by the officers and directors of the Company, we are of the opinion that:
1. The Company is duly formed and validly existing as a
corporation in good standing under the laws of the State of
Delaware.
2. When the Registration Statement becomes effective under the
Securities Act and the Shares are issued in accordance with
the terms and conditions of the Plan, the Shares will
constitute legally issued, fully paid and non-assessable
securities of the Company.
The opinions expressed herein are limited to the corporate laws of the
State of Delaware, and we express no opinion as to the effect on the matters
covered by any other jurisdiction.
We consent to the filing of this opinion of counsel as Exhibit 5.1 to
the Registration Statement.
Very truly yours,
AKERMAN, SENTERFITT & EIDSON, P.A.
/s/ Akerman, Senterfitt & Eidson, P.A.
<PAGE> 1
EXHIBIT 10.1
REPUBLIC SERVICES
401(K) PLAN
Effective April 1, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
INTRODUCTION...................................................................................................... 1
ARTICLE 1. DEFINITIONS..................................................................................... 2
1.1. Account Balance or Account...................................................................... 2
1.2. Act............................................................................................. 2
1.3. Affiliate....................................................................................... 2
1.4. After-Tax Account............................................................................... 2
1.5. After-Tax Contributions......................................................................... 2
1.6. Beneficiary..................................................................................... 2
1.7. Board of Directors or Board..................................................................... 2
1.8. Break in Service................................................................................ 3
1.9. Code............................................................................................ 3
1.10. Company......................................................................................... 3
1.11. Compensation.................................................................................... 3
1.12. Discretionary Contribution...................................................................... 4
1.13. Effective Date.................................................................................. 4
1.14. Eligible Employee............................................................................... 4
1.15. Employee........................................................................................ 4
1.16. Employee Benefits Committee or Committee........................................................ 5
1.17. Employer Account................................................................................ 5
1.18. 401(k) Contributions............................................................................ 5
1.19. 401(k) Account.................................................................................. 5
1.20. Grandfathered Account Balance or Grandfathered Account.......................................... 5
1.21. Grandfathered After-Tax Account................................................................. 5
1.22. Grandfathered Employer Account.................................................................. 5
1.23. Grandfathered 401(k) Account.................................................................... 5
1.24. Grandfathered Nonelective Contribution Account.................................................. 5
1.25. Grandfathered Prior Plan........................................................................ 6
1.26. Grandfathered Rollover Account.................................................................. 6
1.27. Highly Compensated Employee..................................................................... 6
1.28. Hour of Service................................................................................. 7
1.29. Investment Fund................................................................................. 8
1.30. Limitation Year................................................................................. 8
1.31. Matching Account................................................................................ 8
1.32. Matching Contributions.......................................................................... 8
</TABLE>
(i)
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
1.33. Merger Date..................................................................................... 8
1.34. Nonelective Contribution Account................................................................ 8
1.35. Nonhighly Compensated Employee.................................................................. 8
1.36. Normal Retirement Age........................................................................... 9
1.37. Normal Retirement Date.......................................................................... 9
1.38. One-Year Period of Severance.................................................................... 9
1.39. Participant..................................................................................... 9
1.40. Participating Company........................................................................... 9
1.41. Period of Severance............................................................................. 9
1.42. Plan............................................................................................ 9
1.43. Plan Year....................................................................................... 9
1.44. Predecessor Company............................................................................. 9
1.45. Prior Plan...................................................................................... 9
1.46. Qualified Domestic Relations Order.............................................................. 9
1.47. Qualified Nonelective Contributions............................................................ 10
1.48. Qualified Matching Contributions............................................................... 10
1.49. Republic Rewards After-Tax Account............................................................. 10
1.50. Republic Rewards Employer Account.............................................................. 10
1.51. Republic Rewards 401(k) Account................................................................ 10
1.52. Republic Rewards Nonelective Contribution Account.............................................. 10
1.53. Republic Rewards Plan to Plan Transfer Account................................................. 10
1.54. Republic Rewards Plan to Plan Transfer Contributions........................................... 10
1.55. Republic Rewards Rollover Account.............................................................. 11
1.56. Republic Rewards (AutoNation) Stock Account.................................................... 11
1.57. Republic Rewards Stock Contributions........................................................... 11
1.58. Republic Rewards Stock or AutoNation Stock..................................................... 11
1.59. Republic Rewards (AutoNation) Stock Fund....................................................... 11
1.60. RSG............................................................................................ 11
1.61. Rollover Account............................................................................... 11
1.62. Rollover Contribution.......................................................................... 11
1.63. Service........................................................................................ 11
1.64. Severance of Service........................................................................... 12
1.65. Spouse or Surviving Spouse..................................................................... 13
1.66. Totally and Permanently Disabled............................................................... 13
1.67. Transferred Participants....................................................................... 14
1.68. Trust.......................................................................................... 14
1.69. Trustee........................................................................................ 14
1.70. Valuation Date................................................................................. 14
1.71. Year of Service................................................................................ 14
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE 2. ELIGIBILITY AND PARTICIPATION.................................................................. 16
2.1. Time of Participation.......................................................................... 16
2.2. Change in Status............................................................................... 17
ARTICLE 3. CONTRIBUTIONS.................................................................................. 18
3.1. Employee Contributions......................................................................... 18
3.2. Company Contributions.......................................................................... 18
3.3. Makeup Contributions........................................................................... 19
3.4. 401(k) Plan Nondiscrimination Testing.......................................................... 19
3.5. Rollover Contributions......................................................................... 20
3.6. Method and Time for Payment of Contributions................................................... 20
3.7. Contribution Due to Mistake of Fact............................................................ 20
3.8. Nondeductible Overpayment...................................................................... 20
3.9. Initial Nonqualification....................................................................... 21
3.10. Individual Accounting.......................................................................... 21
ARTICLE 4. CONTRIBUTION ALLOCATIONS AND VESTING........................................................... 22
4.1. Allocation of 401(k) Contributions............................................................. 22
4.2. Company Contributions.......................................................................... 22
4.3. Allocation of Rollover Contribution............................................................ 24
4.4. Allocation of Assets from Prior Plan........................................................... 24
4.5. Limitation on Allocations...................................................................... 24
4.6. Vesting........................................................................................ 24
ARTICLE 5. VALUATION OF FUND AND ALLOCATION OF GAINS AND LOSSES........................................... 25
5.1. Valuation of Fund.............................................................................. 25
5.2. Daily Valuation................................................................................ 25
ARTICLE 6. PAYMENT OF BENEFITS............................................................................ 27
6.1. Distribution of Benefits...................................................................... 27
6.2. Amount and Time of Payment..................................................................... 28
6.3. Method of Payment.............................................................................. 29
6.4. Small Benefit Payments......................................................................... 29
6.5. Minimum Distribution Rules..................................................................... 30
6.6. Election of Direct Rollover.................................................................... 30
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C> <C>
6.7. Qualified Domestic Relations .................................................................. 31
6.8. Nonforfeitability.............................................................................. 31
6.9. Reemployment................................................................................... 31
ARTICLE 7. DEATH BENEFITS................................................................................. 33
7.1. Death Benefits................................................................................. 33
7.2. Designation of Beneficiary..................................................................... 34
ARTICLE 8. IN-SERVICE WITHDRAWALS BY PARTICIPANTS......................................................... 35
8.1. Hardship Distributions from 401(k) Account..................................................... 35
8.2. Withdrawal from Rollover Account............................................................... 37
8.3. Withdrawals after Age 59 1/2................................................................... 37
8.4. Withdrawals from After-Tax Account............................................................. 37
8.5. Withdrawals from Employer Account.............................................................. 37
8.6. Limitations on Withdrawals..................................................................... 37
8.7. Spousal Consent................................................................................ 37
8.8. Automated Withdrawals.......................................................................... 38
ARTICLE 9. INVESTMENT OF TRUST ASSETS..................................................................... 39
9.1. Participant Directed Investments............................................................... 39
9.2. Investment of Matching Account................................................................. 40
9.3. Voting Rights.................................................................................. 40
9.4. Investment Directions of Republic Rewards Stock Contributions.................................. 41
ARTICLE 10. PLAN ADMINISTRATION.................................................................................. 42
10.1. Establishment of the Employee Benefits Committee............................................... 42
10.2. Powers of the Committee........................................................................ 42
10.3. Duties and Authority of the Employee Benefits Committee........................................ 43
10.4. Actions by the Committee or a Subcommittee..................................................... 44
10.5. Action Taken in Good Faith..................................................................... 44
10.6. Indemnification................................................................................ 45
10.7. Benefit Application and Claims Procedure....................................................... 45
10.8. Responsibilities of Named Fiduciaries Other than the Committee................................. 46
10.9. Allocation of Responsibilities................................................................. 47
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C> <C>
10.10. Designation of Persons to Carry Out Responsibilities of Named Fiduciaries...................... 47
10.11. Payment of Expenses............................................................................ 47
ARTICLE 11. PLAN ADOPTION, AMENDMENT OR TERMINATION.............................................................. 48
11.1. Adoption of Plan by Affiliates................................................................. 48
11.2. Disassociation of Participating Company........................................................ 48
11.3. Amendment of Plan.............................................................................. 48
11.4. Form of Amendments............................................................................. 49
11.5. Merger......................................................................................... 49
ARTICLE 12. TRUST FUND AND THE TRUSTEE........................................................................... 51
12.1. Trust and Trustee.............................................................................. 51
12.2. Assets of the Trust............................................................................ 51
ARTICLE 13. MISCELLANEOUS........................................................................................ 52
13.1. Limitation of Assignment. .................................................................... 52
13.2. Legally Incompetent Distributee................................................................ 52
13.3. Unclaimed Payments............................................................................. 52
13.4. Notification of Addresses...................................................................... 52
13.5. Notice of Proceedings and Effect of Judgment................................................... 53
13.6. Severability................................................................................... 53
13.7. Prohibition Against Diversion.................................................................. 53
13.8. Limitation of Rights........................................................................... 53
13.9. Controlling Law................................................................................ 53
13.10. Errors in Payment.............................................................................. 53
13.11. USERRA and Code Section 414(u) Compliance...................................................... 53
13.12. Loans from Prior Plans......................................................................... 54
13.13. Headings and Use of Words...................................................................... 54
ARTICLE 14. TOP-HEAVY PROVISIONS................................................................................. 55
14.1. Applicability of this Article.................................................................. 55
14.2. Top-Heavy and Super Top-Heavy Determination.................................................... 55
14.3. Computation of the Aggregate of the Account Balances........................................... 55
14.4. Required Aggregation of Plans.................................................................. 56
14.5. Permissive Aggregation of Plans................................................................ 57
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C> <C>
14.6. Special Rules of Top-Heavy Plans and Super Top-Heavy Plans..................................... 58
14.7. Special Definitions............................................................................ 59
</TABLE>
(vi)
<PAGE> 8
INTRODUCTION
The Republic Services 401(k) Plan (the "Plan") is adopted effective
April 1, 1999. It is an individual account plan within the meaning of the
Employee Retirement Income Security Act of 1974, as amended ("Act") and the
Internal Revenue Code of 1986, as amended ("Code").
The purpose of the Plan is to encourage eligible employees to
accumulate savings for retirement, to further their financial independence by
affording them an opportunity to make systematic contributions to the Plan,
supplemented by contributions made by Republic Services, Inc. ("RSG").
The Plan continues the elections made under the Republic Rewards 401(k)
Plan, as amended and restated effective January 1, 1998 and is intended to hold
accounts for the employees of RSG and its participating Affiliates spun-off from
that plan pursuant to the Amended and Restated Employee Benefits Agreement of
February 1999.
The Plan is intended to comply with the requirements of the Act and
with the qualification requirements of section 401(a) of the Code and that the
trust associated with the Plan be exempt from federal income taxation pursuant
to the provisions of section 501(a) of the Code. Furthermore, the Plan is
intended to be a profit sharing plan that includes a qualified cash or deferred
arrangement within the meaning of section 401(k) of the Code. Contributions may
be made to the Plan without regard to current or accumulated profits of any
company participating in the Plan.
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ARTICLE 1.
DEFINITIONS
Whenever the following capitalized terms are used in this Plan, they
have the meanings specified below. Other words and phrases may be used in the
Plan which are not defined in this Article I, but, for convenience, are defined
when introduced in the text.
1.1. ACCOUNT BALANCE OR ACCOUNT means the total amount credited to
a Participant's 401(k) Account, After-Tax Account, Matching Account, Employer
Account, Nonelective Contribution Account and Rollover Account. Where the
balance in a Participant's Account is to be determined as of a given Valuation
Date, such balance shall be determined after all adjustments and allocations for
the Valuation Date have been made.
1.2. ACT means the Employee Retirement Income Security Act of 1974,
as amended.
1.3. AFFILIATE means (a) any corporation which is a member of the
same controlled group of corporations (within the meaning of Code Section
414(b)) with RSG, (b) any other trade or business (whether or not incorporated)
under common control (within the meaning of Code Section 414(c)) with RSG, (c)
any other corporation, partnership or other organization which is a member of an
affiliated service group (within the meaning of Code Section 414(m)) with RSG,
and (d) any other entity required to be aggregated with RSG pursuant to
regulations under Code Section 414(o). An entity shall be considered an
Affiliate only with respect to such period as the relationship in the preceding
sentence exists.
1.4. AFTER-TAX ACCOUNT means the account maintained for a
Participant which is credited with a Participant's After-Tax Contributions.
1.5. AFTER-TAX CONTRIBUTIONS mean the contributions made at an
Employee's election which were subject to federal income tax when made under the
terms of a Prior Plan.
1.6. BENEFICIARY means the person, persons, or entity designated by
the Participant in accordance with Section 7.2 (or by the terms of the Plan) to
receive any death benefit that becomes payable under the Plan.
1.7. BOARD OF DIRECTORS OR BOARD means the Board of Directors of
Republic Services, Inc.
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1.8. BREAK IN SERVICE means a number of consecutive One-Year
Periods of Severance which exceed the greater of five or the aggregate number of
Years of Service before such interruption (excluding Years of Service previously
disregarded by reason of any prior interruption of employment).
1.9. CODE means the federal Internal Revenue Code of 1986, as
amended.
1.10. COMPANY means Republic Services, Inc., the companies listed in
Schedule A and any other Affiliate participating in the Plan with the consent of
the Employee Benefits Committee.
1.11. COMPENSATION means for a calendar year the amount paid to a
Participant by a Company during the year for wages, salaries, and other amounts
received in the course of employment with the Company to the extent that the
amounts are includible in gross income including, but not limited to commissions
paid to salesmen, compensation for services on the basis of a percentage of
profits, bonuses (except for sign-on and relocation bonuses), incentive
payments, overtime pay and shift differential. For all purposes under the Plan,
Compensation shall include any amount contributed by a Company on behalf of a
Participant pursuant to a salary reduction agreement which is not includible in
the gross income of the Participant under Code Section 125, 401(k), 402(e)(3) or
402(h). For purposes of this definition, Compensation does not include severance
pay, stock options, reimbursements or other expense allowances, fringe benefits
(cash and non-cash), moving expenses, deferred compensation, welfare benefits
(whether or not includible in gross income), nonperformance bonuses (e.g.,
sign-on bonuses or relocation bonuses) and income from property subject to Code
Section 83.
Notwithstanding the foregoing, in the case of a Participant who was
covered by a Prior Plan, a Grandfathered Prior Plan or any other tax-qualified
retirement plan sponsored by RSG or an Affiliate during the calendar year in
which the Participant first became eligible under this Plan, Compensation shall
be limited to Compensation earned during the period beginning with the first day
the Participant was covered by this Plan and ending the following December 31.
Compensation shall be limited to $160,000 annually and shall be
adjusted for changes in the cost of living in accordance with Code Section
401(a)(17)(B). Provided however, "Compensation" as used in Section 3.1(a) for
Participant contribution percentage elections will not be so limited.
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1.12. DISCRETIONARY CONTRIBUTION means the Company contributions
made pursuant to Section 3.2(b) and allocated to the Participant's Matching
Account in accordance with 4.2(b).
1.13. EFFECTIVE DATE means April 1, 1999.
1.14. ELIGIBLE EMPLOYEE means any Employee actively providing
services to a Company or on an authorized leave of absence, other than an
Employee who is:
(A) covered by a collective bargaining agreement between
a union and a Company, provided that retirement
benefits were the subject of good faith bargaining,
unless (1) the bargaining agreement specifically
provides for participation in this Plan, or (2) the
bargaining agreement specifically provided for
participation in a tax qualified plan of a company
acquired by RSG or an affiliate and the Employee
Benefits Committee has consented to participation in
this Plan, or
(B) a leased employee within the meaning of Code Section
414(n)(2), or
(C) a non-resident alien, or
(D) any employee in a classification determined by the
Company and described in Schedule D.
1.15. EMPLOYEE means any person, including an officer, who is on the
payroll of the Company and whose wages are subject to withholding for purposes
of federal income taxes or for purposes of the Federal Insurance Contribution
Act. An independent contractor shall not be treated as an Employee for purposes
of this Plan without regard to recharacterization of such individual as an
employee by the Internal Revenue Service for wage tax purposes.
Any leased employee within the meaning of Code Section 414(n)(2) shall
be treated as an Employee of the Company. Notwithstanding the foregoing, if such
leased employees constitute less than twenty percent of the Company's non-highly
compensated work force within the meaning of Code Section 414(n)(5)(C)(ii), the
term "Employee" shall not include those leased employees covered by a plan
described in Code Section 414(n)(5) unless otherwise provided by the terms of
the Plan.
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1.16. EMPLOYEE BENEFITS COMMITTEE OR COMMITTEE means the Republic
Services Employee Benefits Committee which shall consist of not less than three
nor more than seven persons appointed from time to time by the Board of
Directors of RSG or its Executive Committee to serve at its pleasure.
1.17. EMPLOYER ACCOUNT means the account maintained for a
Participant which is credited with employer contributions (other than
non-elective contributions as defined in Code Section 401(m)(4)(C)) made under
the terms of a Prior Plan.
1.18. 401(K) CONTRIBUTIONS mean the elective deferrals made pursuant
to a Participant's election which are contributed by the Company to this Plan
under Section 3.1(a) and which are not subject to federal income tax when made
because they are deferred by the Participant under Code Section 401(k).
1.19. 401(K) ACCOUNT means the account maintained for a Participant
which is credited with the Participant's 401(k) Contributions. A Participant's
401(k) Account may also be credited with elective deferrals made under the terms
of a Prior Plan.
1.20. GRANDFATHERED ACCOUNT BALANCE OR GRANDFATHERED ACCOUNT means
the total amount credited to a Participant's Grandfathered 401(k) Account,
Grandfathered After-Tax Account, Grandfathered Employer Account, Grandfathered
Nonelective Contribution Account and Grandfathered Rollover Account.
1.21. GRANDFATHERED AFTER-TAX ACCOUNT means the account maintained
for a Participant which is credited with the Participant's contributions which
were subject to federal income tax when made under the terms of a Grandfathered
Prior Plan.
1.22. GRANDFATHERED EMPLOYER ACCOUNT means the account maintained
for a Participant which is credited with employer contributions (other than
non-elective contributions as defined in Code Section 401(m)(4)(C)) under the
terms of a Grandfathered Prior Plan.
1.23. GRANDFATHERED 401(K) ACCOUNT means the account maintained for
a Participant which is credited with the Participant's elective deferrals made
under the terms of a Grandfathered Prior Plan.
1.24. GRANDFATHERED NONELECTIVE CONTRIBUTION ACCOUNT means the
account maintained for a Participant which is credited with qualified
nonelective and/or matching contributions made under the terms of a
Grandfathered Prior Plan.
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<PAGE> 13
1.25. GRANDFATHERED PRIOR PLAN means any tax-qualified retirement
plan of a company acquired by RSG or an Affiliate which has been merged into
this Plan and which had one or more of the distribution options described in
Schedule C, and any tax-qualified plan of a company which was merged into
Republic Rewards 401(k) Plan and designated as a "Grandfathered Prior Plan"
thereunder and transferred to this Plan pursuant to the Amended and Restated
Employee Benefits Agreement dated March 4, 1999.
1.26. GRANDFATHERED ROLLOVER ACCOUNT means the account maintained
for a Participant which is credited with the Participant's rollover contribution
made under the terms of a Grandfathered Prior Plan.
1.27. HIGHLY COMPENSATED EMPLOYEE means an Employee who:
(A) is a 5-percent owner at any time during the year or
the preceding year; or
(B) received compensation during the preceding year from
the Company in excess of $80,000 (as adjusted
pursuant to Code Section 415(d)), and, if the Company
so elects, was a member of the top-paid group for
such year.
An employee is in the top-paid group of
employees for any year if such employee is in the
group consisting of the top 20 percent of employees
when ranked on the basis of compensation paid during
such year. For purposes of determining the number of
employees in the top-paid group, the Company shall
exclude employees who:
(I) have not completed 6 months of
service;
(II) normally work less than 17 1/2
Hours of Service per week;
(III) normally work during not more than
6 months during any year;
(IV) have not attained age 21; and
(V) except to the extent provided in
regulations, are included in a unit
of Employees covered by a
6
<PAGE> 14
collective bargaining agreement
between employee representatives
and the Company.
A former Employee shall be treated as a Highly Compensated Employee if
such employee was a Highly Compensated Employee when such employee separated
from service, or such employee was a Highly Compensated Employee at any time
after attaining age 55.
The determination of who is a Highly Compensated Employee, including
the determinations of the number and identity of employees in the top-paid
group, and the compensation that is considered, will be made in accordance with
Code Section 414(q) and the regulations thereunder.
1.28. HOUR OF SERVICE means:
(A) Each hour for which an Employee is paid, or entitled
to payment, for the performance of duties for a
Company. These hours shall be credited to the
Employee for the computation period or periods in
which the duties are performed;
(B) Each hour for which an Employee is paid, or entitled
to payment, by a Company on account of a period of
time during which no duties are performed
(irrespective of whether the employment relationship
has terminated) due to vacation, holiday, illness,
incapacity (including disability), layoff, jury duty,
or leave of absence. Such person shall not be
considered to have terminated employment under this
subsection (b) unless the person fails to return to
the employ of the Company at or prior to the
expiration date of the person's absence hereunder, in
which case the person shall be deemed to have
terminated employment as of the date of commencement
of such absence;
(C) Each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to
by a Company. These hours shall be credited to the
Employee for the computation period or periods to
which the award or agreement pertains rather than the
computation period in which the award, agreement or
payment is made; and
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<PAGE> 15
(D) Each hour during which an Employee is in qualified
military service (as defined in Code Section
414(u)(5)) as long as the Employee returns to the
employment of the Company within the time specified
by law.
(E) An Hour of Service credited under subsection (a) or
(b) above will not be credited under subsection (c)
or (d).
(F) Hours under this section shall be calculated and
credited pursuant to Section 2530.200b-2 of the
Department of Labor regulations which are
incorporated herein by reference.
(G) An Hour of Service with an Affiliate that has not
adopted the Plan is treated as an Hour of Service
with a Company for vesting purposes and for purposes
of meeting the eligibility service requirement.
1.29. INVESTMENT FUND means any of the funds in which a Participant
may invest his or her Account in accordance with the provisions of Article 9.
1.30. LIMITATION YEAR means the calendar year.
1.31. MATCHING ACCOUNT means the account maintained for a
Participant which is credited with Matching Contributions and Discretionary
Contributions.
1.32. MATCHING CONTRIBUTIONS mean the contributions made by a
Company under Section 3.2(a).
1.33. MERGER DATE means the date as of which a Prior Plan or
Grandfathered Prior Plan was merged with the Plan.
1.34. NONELECTIVE CONTRIBUTION ACCOUNT means the account maintained
for a Participant which is credited with Qualified Nonelective Contributions or
Qualified Matching Contributions made on behalf of a Participant. A
Participant's Nonelective Contribution Account may also be credited with
nonelective contributions (as defined in Code Section 401(m)(4)(C)) made under
the terms of a Prior Plan or to comply with the requirements of Schedule B and
Code Section 401(k) and (m) nondiscrimination testing.
1.35. NONHIGHLY COMPENSATED EMPLOYEE means an Employee who is not a
Highly Compensated Employee.
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<PAGE> 16
1.36. NORMAL RETIREMENT AGE means a Participant's 65th birthday.
1.37. NORMAL RETIREMENT DATE means the first day of the month
coincident with or next following the attainment of Normal Retirement Age.
1.38. ONE-YEAR PERIOD OF SEVERANCE means a 12-consecutive month
period beginning on the date a Severance of Service occurs and ending on the
first anniversary of such date, provided that the Employee during the
12-consecutive month period fails to perform an Hour of Service.
1.39. PARTICIPANT means any Eligible Employee who has completed the
service required in Article 2 for so long as he or she has an Account Balance in
the Plan. Notwithstanding the foregoing, an Eligible Employee who is eligible to
participate, but elects not to contribute to the Plan, shall be treated as a
Participant for purposes of Article 14 and Schedule B.
1.40. PARTICIPATING COMPANY means an Affiliate whose employees are
covered under the Plan.
1.41. PERIOD OF SEVERANCE means the period of time commencing on the
date a Severance of Service occurs and ending on the date on which the Employee
again performs an Hour of Service for a Company.
1.42. PLAN means the Republic Services 401(k) Plan.
1.43. PLAN YEAR means the calendar year.
1.44. PREDECESSOR COMPANY means a company or other business entity
from whom RSG or an Affiliate acquired stock or all or substantially all of the
assets.
1.45. PRIOR PLAN means any tax-qualified retirement plan of a
company acquired by RSG or an Affiliate which has been merged into this Plan and
which had as its distribution options lump sum payments only.
1.46. QUALIFIED DOMESTIC RELATIONS ORDER means a judgement, decree,
or order relating to the provision of child support, alimony payments, or
marital property rights, to a spouse, former spouse, child or other dependent,
made pursuant to a state domestic relations law, which creates or recognizes the
existence of an alternate payee's right to receive all or a portion of the
benefits payable with respect to a Participant under the Plan, as described in
Code Section 414(p). The Committee shall develop procedures (in
9
<PAGE> 17
accordance with applicable federal regulations) to determine whether a domestic
relations order is qualified, and, if so, the method and procedures for
complying with the order.
1.47. QUALIFIED NONELECTIVE CONTRIBUTIONS mean the Company
contributions made pursuant to Section 3.2(d) and allocated to the Participant's
Nonelective Contribution Account in accordance with Section 4.2(d).
1.48. QUALIFIED MATCHING CONTRIBUTIONS mean the Company
contributions made pursuant to Section 3.2(d) and allocated to the Participant's
Nonelective Contribution Account in accordance with Section 4.2(e).
1.49. REPUBLIC REWARDS AFTER-TAX ACCOUNT means the account
maintained for a Participant which were subject to federal income tax
attributable to his or her Republic Rewards Plan to Plan Transfer Contributions.
1.50. REPUBLIC REWARDS EMPLOYER ACCOUNT means the account maintained
for a Participant which is credited with employer contributions (other than
non-elective contributions as defined in Code Section 401(m)(4)(C) or Rewards
Matching Account contributions) attributable to his or her Republic Rewards Plan
to Plan Transfer Contributions.
1.51. REPUBLIC REWARDS 401(K) ACCOUNT means the account maintained
for a Participant which is credited with the Participant's elective deferrals
which were not subject to federal income tax when made because they were
deferred under Code Section 401(k) attributable to his or her Republic Rewards
Plan to Plan Transfer Contributions.
1.52. REPUBLIC REWARDS NONELECTIVE CONTRIBUTION ACCOUNT means the
account maintained for a Participant which is credited with qualified
nonelective and/or matching contributions attributable to his or her Republic
Rewards Plan to Plan Transfer Contributions.
1.53. REPUBLIC REWARDS PLAN TO PLAN TRANSFER ACCOUNT means the
Republic Rewards After-Tax Account, Republic Rewards Employer Account, Republic
Rewards 401(k) Account, Republic Rewards Nonelective Contribution Account,
Republic Rewards Rollover Account maintained for a Participant.
1.54. REPUBLIC REWARDS PLAN TO PLAN TRANSFER CONTRIBUTIONS means the
Republic Rewards Plan to Plan Transfer Accounts, transferred by the direct plan
to plan transfer to this Plan on behalf of Transferred Participants from the
Republic Rewards 401(k)
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<PAGE> 18
Plan, pursuant to the Amended and Restated Employee Benefits Agreement dated
March 4, 1999.
1.55. REPUBLIC REWARDS ROLLOVER ACCOUNT means the account maintained
for a Participant which is credited with the Participant's rollover contribution
attributable to his or her Republic Rewards Plan to Plan Transfer Contributions.
1.56. REPUBLIC REWARDS (AUTONATION) STOCK ACCOUNT means the account
maintained for a Participant which is credited with the Participant's Republic
Rewards Stock Contributions.
1.57. REPUBLIC REWARDS STOCK CONTRIBUTIONS means common stock of
AutoNation, Inc. transferred by the direct plan to plan transfer to this Plan on
behalf of Transferred Participants from the Republic Rewards 401(k) Plan,
pursuant to the Amended and Restated Employee Benefits Agreement dated March 4,
1999.
1.58. REPUBLIC REWARDS STOCK OR AUTONATION STOCK means shares of
common stock of AutoNation, Inc.
1.59. REPUBLIC REWARDS (AUTONATION) STOCK FUND means the fund
established pursuant to Section 9.4 to hold Republic Rewards Stock Contributions
and reinvested dividends and other distributions from said contributions.
1.60. RSG means Republic Services, Inc. and any successor thereto.
1.61. ROLLOVER ACCOUNT means the account maintained for a
Participant which is credited with a Rollover Contribution made pursuant to
Section 3.5 and/or with a rollover contribution made under the terms of a Prior
Plan.
1.62. ROLLOVER CONTRIBUTION means the amount transferred to the Plan
from another plan qualified under Code Section 401(a) or from a qualifying
individual retirement account ("IRA") pursuant to Section 3.5 and allocated to
the Participant's Rollover Account.
1.63. SERVICE means a period commencing on the Participant's
Employment Commencement Date or Reemployment Commencement Date, whichever is
applicable, and ending on the Severance From Service Date, subject to the
following:
(A) If an Employee has a Severance of Service because of
quit, discharge or retirement and then performs an
Hour of Service
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<PAGE> 19
within twelve (12) months of the Severance of Service
date, he or she shall receive Service credit for the
Period of Severance.
(B) An Employee who has a Severance of Service because of
quit, discharge or retirement during an authorized
leave of absence, and who performs an Hour of Service
within (12) months from the date the leave of absence
began, shall receive service credit for the Period of
Severance. If an Employee is absent for 12 full
months, no service credit is given for the Period of
Severance, except as required by Section 13.11.
Service with a Predecessor Company shall be taken into account under
the Plan as Service with a Company only with respect to an Employee who was
employed by the Predecessor Company on the date its assets were acquired by RSG
or an Affiliate. Service with a Predecessor Company shall be taken into account
under the Plan unless previously disregarded under the Plan or a Prior Plan.
Service with AutoNation, Inc. or its Affiliates shall be taken into
account under the Plan for all Transferred Employees.
In determining an Employee's Service, a prior period of service not
required to be taken into account by reason of a Period of Severance which
constitutes a Break in Service shall not be recognized under the Plan. If an
Employee incurs more than a One-Year Period of Severance but less than five
consecutive One-Year Periods of Severance, all Years of Service credited before
the Period of Severance shall be reinstated.
1.64. SEVERANCE OF SERVICE means the earlier of:
(A) the date on which the Employee quits, retires, is
discharged or dies;
(B) the date on which the Employee fails to return to the
service of the Company at the expiration of an
authorized leave of absence in excess of twelve (12)
months or recovery from being Totally and Permanently
Disabled in excess of six (6) months; or
(C) the first anniversary of the first date of a period
in which the Employee remains absent from service
with the Company (with or without pay) for any reason
other than quit, retirement, discharge, death,
authorized leave of absence or Total and
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<PAGE> 20
Permanent Disability (such as vacation, holiday,
sickness, unauthorized leave of absence or layoff).
Severance of Service shall not occur and credit for vesting purposes
shall be given for the following:
(A) a period of service with the Armed Forces of the
United States of America, if an Employee who left
active service with the Company to enter and did
directly enter such Armed Forces, returned to active
employment within the time and under the conditions
which entitle him/her to reemployment rights under
the laws of the United States of America.
(B) transfer directly from the employment of one Company
to another Company. Transfer of an Employee in this
Plan to service with an Affiliate which has not
adopted this Plan will not be considered as Severance
of Service and such service will be included as
Service in this Plan. However, such aforesaid service
will only be credited for vesting purposes and not
for benefit purposes under this Plan.
(C) the period ending on the second anniversary of any
absence from work by reason of the pregnancy of the
Employee, by reason of the birth of a child of the
Employee, by reason of the placement of a child with
the Employee in connection with the adoption of such
child by the Employee, or for purposes of caring for
such child for a period immediately following such
birth or placement; provided, however, that the
period between the first and second anniversaries of
the first day of any such absence shall not count as
Service and no credit will be given for such period
for vesting purposes.
1.65. SPOUSE OR SURVIVING SPOUSE means the legal spouse of the
Participant as of the date of the Participant's death or as of the Participant's
commencement of benefits, provided that a former spouse will be treated as the
Spouse or Surviving Spouse to the extent provided under a Qualified Domestic
Relations Order, except that none of the requirements relating to consent shall
apply to such former spouse.
1.66. TOTALLY AND PERMANENTLY DISABLED means having a disability
which qualifies the Participant for Social Security disability benefits or
Company sponsored long-
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<PAGE> 21
term disability benefits ("LTD benefits"), if any. A Participant shall be
Totally and Permanently Disabled only so long as he or she continues to qualify
for Social Security disability benefits or LTD benefits. To be Totally and
Permanently Disabled, the disability must arise while the Participant is
employed by a Company.
1.67. TRANSFERRED PARTICIPANTS means participants under the Republic
Rewards 401(k) Plan whose account balances are transferred by direct plan to
plan transfer to this Plan pursuant to the Amended and Restated Employee
Benefits Agreement dated March 4, 1999.
1.68. TRUST means the assets of the Plan held by the Trustee under
the Trust Agreement between Merrill Lynch Trust Company (Florida) and Republic
Services, Inc. dated effective April 1, 1999, as that instrument may be amended
from time to time.
1.69. TRUSTEE means the person, persons, bank, and/or other entity
selected by the Board to hold the assets of the Trust in accordance with Article
12.
1.70. VALUATION DATE means each business day of the Plan Year that
the Trust assets are valued.
1.71. YEAR OF SERVICE means twelve months of Service with a Company,
a non-participating Affiliate or a Predecessor Company. Years of Service shall
not include employment otherwise disregarded under the Plan, a Prior Plan, or
any other tax-qualified retirement plans maintained by RSG or an Affiliate.
All non-successive periods of Service shall be aggregated and any
periods of Service of less than a whole year (whether or not consecutive) shall
be aggregated on the basis that twelve months of Service equal a whole year of
Service. A month of Service is deemed to be 30 days in the case of the
aggregation of fractional months. After aggregating all Service, any period of
Service less than a whole year (12 months) shall be disregarded.
If, under the terms of the Prior Plan, service was credited using the
general method described in ERISA Reg. ss. 2530.200b-2, an Employee's Service
shall be converted to the elapsed time method by crediting each Employee with a
period of Service consisting of:
(1) A number of years equal to the number of years of service
credited to the Employee under the terms of the Prior Plan
before the Plan Year in which the Prior Plan was amended and
restated using the Republic Services Group Holding Plan (the
"Holding Plan"); and
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<PAGE> 22
(2) The greater of:
(A) the period of Service that would be credited to the
Employee under the Service provisions of the Holding
Plan beginning on the first day of the Plan Year in
which the Plan is amended and restated using the
Holding Plan; or
(B) the service taken into account under the Prior Plan
for the year of the amendment as of the date the
Prior Plan is amended and restated using the Holding
Plan.
An Employee shall receive credit for Service subsequent to the
amendment and restatement commencing on the day after the last day of the Plan
Year in which the transfer occurs.
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<PAGE> 23
ARTICLE 2.
ELIGIBILITY AND PARTICIPATION
2.1. TIME OF PARTICIPATION.
(A) INITIAL ELIGIBILITY. An Eligible Employee may become
a Participant in the Plan as of the first day of the
month coinciding with or immediately following
completion of a three (3) consecutive month period of
Service, provided such Employee is employed and is at
least age 18 on such date.
(B) ELIGIBILITY OF REHIRED EMPLOYEE.
(I) A former Participant who is reemployed by a
Company and who is an Eligible Employee
becomes a Participant on the date he or she
is reemployed.
(II) A former Employee who terminated employment
with a Company before becoming a Participant
must satisfy the requirement of paragraph
(a) above following reemployment if such
Employee returns to employment with a
Company after more than a One-Year Period of
Severance.
(III) A former Employee who terminated employment
with a Company before becoming a Participant
and returns to employment with a Company
before a One-Year Period of Severance will
be eligible to participate on the first day
of the month following reemployment if he or
she has at least three months of Service on
such date.
(IV) An Eligible Employee who had been a
Participant under any tax-qualified
retirement plan maintained by an Affiliate
after its acquisition by RSG or another
Affiliate shall be eligible to participate
in the Plan in accordance with subparagraph
(i), (ii) and (iii) above as if such
employee had been formerly employed by RSG.
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<PAGE> 24
2.2. CHANGE IN STATUS.
(A) If a Participant no longer meets the definition of an
Eligible Employee, such Participant may no longer
contribute to the Plan and is no longer eligible for
Company contributions effective as of the date of
such change in status. If any such Employee again
becomes an Eligible Employee, active participation in
the Plan commences effective as of the date of the
change in status. A change in status includes, but is
not limited to, transfer to or from an Affiliate
which is not participating in this Plan or becoming a
member of a collective bargaining unit whose members
do not participate in the Plan.
(B) If an Employee is employed by a Company after working
for an Affiliate not covered by the Plan, his Service
with the Affiliate shall count for purposes of
meeting the eligibility requirement of Section
2.1(a).
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<PAGE> 25
ARTICLE 3.
CONTRIBUTIONS
3.1. EMPLOYEE CONTRIBUTIONS.
(A) 401(K) CONTRIBUTIONS.
(I) A Participant may elect to make 401(k)
Contributions in whole percentages of
Compensation in the manner prescribed by the
Committee which may not be less than 1% of
Compensation and which may not exceed the
lesser of (i) 15% of Compensation, or (ii)
$10,000 (adjusted from time to time for
increases in the cost-of-living pursuant to
Code Section 402(g)(5)).
(II) With respect to participants in the Republic
Rewards 401(k) Plan who begin participating
in this Plan effective April 1, 1999, the
election to defer compensation made under
the Republic Rewards 401(k) Plan is deemed
to be an election made under paragraph (i)
above.
(B) CHANGE IN PARTICIPANT'S ELECTION. A Participant may
change his contribution election at any time in
accordance with the Plan's administrative procedures.
(C) AFTER-TAX CONTRIBUTIONS. No After-Tax Contributions
can be made to this Plan.
(D) AUTOMATED ELECTIONS. In the event that Participant
deferral elections are automated through a voice
response unit or similar automated method provided by
the Plan's recordkeeper, a written election form will
not be required.
3.2. COMPANY CONTRIBUTIONS.
(A) MATCHING CONTRIBUTIONS. The Company shall make
contributions on behalf of each Participant who is an
Eligible Employee credited with at least one Year of
Service in an amount equal to 50% of the amount
contributed for a Participant
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<PAGE> 26
under Section 3.1 during a calendar quarter; however,
no more than 4% of the Participant's Compensation for
said calendar quarter shall be taken into account,
and the Participant must be employed on the last day
of the calendar quarter for which the contribution is
made, except as provided in Section 4.2(c).
(B) DISCRETIONARY CONTRIBUTIONS. RSG, in its sole
discretion, may make a Discretionary Contribution to
the Plan for a Plan Year.
(C) CONTRIBUTIONS IN RSG STOCK. Matching Contributions
and Discretionary Contributions may be made in RSG
common stock. If stock is contributed, the shares
contributed will be valued using the average of the
closing prices for the stock each trading day during
the calendar quarter for which the stock is being
contributed.
(D) QUALIFIED NONELECTIVE CONTRIBUTIONS AND QUALIFIED
MATCHING CONTRIBUTIONS. The Company may make
Qualified Nonelective Contributions and/or Qualified
Matching Contributions, to the extent necessary to
satisfy the nondiscrimination tests described in
Schedule B of the Plan. RSG shall not be required to
make a Qualified Nonelective Contribution or a
Qualified Matching Contribution for any Plan Year,
and RSG shall have sole discretion to determine
whether any such contribution shall be made for a
Plan Year.
3.3. MAKEUP CONTRIBUTIONS. In addition to other Company
contributions described in this Article, the Company may make special makeup
contributions to the Plan, if necessary. A makeup contribution is necessary if a
Participant's or Beneficiary's Account must be reinstated in accordance with
Section 6.10 or if a mistake or omission in making or allocating contributions
is discovered and is not corrected by revising prior allocations. A makeup
contribution may be made if it is determined that a correction is advisable
under an IRS procedure such as APRSC.
3.4. 401(K) PLAN NONDISCRIMINATION TESTING. The Plan will satisfy
the nondiscrimination tests set out in Schedule B.
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<PAGE> 27
3.5. ROLLOVER CONTRIBUTIONS. An Eligible Employee may transfer to
the Plan and Trust, by check made payable to the plan from the transferring plan
trustee, all or any portion of the amount to the credit of the Employee under
the transferee plan and trust that is tax-qualified under Code Section 401(a)
which constitutes a qualifying rollover distribution under Code Section 402(c),
excluding any amount representing non-deductible employee contributions.
The Rollover Contribution must be made in cash and must meet all
applicable direct rollover transfer requirements under the Code. Acceptance by
the Plan and Trust of any direct rollover transfer shall not constitute, or be
construed to be, a determination by the Committee of the tax consequences to the
Participant of the direct rollover transfer.
3.6. METHOD AND TIME FOR PAYMENT OF CONTRIBUTIONS.
(A) It is the intent of RSG to pay 401(k) Contributions
to the Trustee in accordance with Department of Labor
regulations.
(B) All other contributions shall be paid to the Trustee
no later than the time prescribed by law (including
extensions thereof) for filing the Company's federal
income tax return for the fiscal year ending with or
within the Plan Year for which the contribution is
made.
3.7. CONTRIBUTION DUE TO MISTAKE OF FACT. If a contribution was
made due to a mistake of fact, the amount attributable to the mistake of fact
(unadjusted for earnings attributable to the mistaken amount, but reduced for
any losses attributable to the mistaken amount) may revert to the Company within
a one year period after it was contributed. If such reversion does not occur
within such one year period, such mistaken amount shall be held in a suspense
account (with no adjustment made for gains, losses or interest), and such
mistaken amount shall be applied against future Company contributions until it
has been fully used.
3.8. NONDEDUCTIBLE OVERPAYMENT. All contributions to the Plan are
conditioned on their deductibility under Code Section 404. If a nondeductible
overpayment is made by the Company, such overpayment may revert to the Company
within a one year period, unadjusted for earnings attributable to the
overpayment, but reduced for any losses attributable to the overpayment. If a
nondeductible overpayment does not revert within such one year period, such
overpayment shall be held in a suspense account (with no adjustment for gains,
losses or interest), and such overpayment shall be applied against future
Company contributions until it has been fully used.
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<PAGE> 28
3.9. INITIAL NONQUALIFICATION. The provisions of this Plan are
subject to the approval by the Internal Revenue Service and to any amendments
necessary to obtain such approval. Notwithstanding the foregoing, if, upon the
timely filing of a determination letter application on the qualified status of
the Plan, the Plan is determined not to initially satisfy the qualification
requirements of Section 401(a) of the Code and if the Company declines to amend
the Plan to satisfy such qualification requirements, all of the Company's
contributions together with the income and gain therefrom, will be returned to
the Company within one year of such determination.
3.10. INDIVIDUAL ACCOUNTING. The Committee shall establish and
maintain adequate records disclosing the separate proportionate interest of each
Participant in the Trust.
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<PAGE> 29
ARTICLE 4.
CONTRIBUTION ALLOCATIONS AND VESTING
4.1. ALLOCATION OF 401(K) CONTRIBUTIONS. 401(k) Contributions made
by the Company pursuant to the Participant's election under Section 3.1(a) will
be allocated to the 401(k) Account of the Participant on whose behalf they are
made.
4.2. COMPANY CONTRIBUTIONS.
(A) ALLOCATION OF MATCHING CONTRIBUTIONS. Matching
Contributions made pursuant to Section 3.2(a) will be
allocated as of the last day of each calendar quarter
to the Matching Account of the Participant on whose
behalf they are made.
(B) ALLOCATION OF DISCRETIONARY CONTRIBUTIONS.
Discretionary Contributions made pursuant to Section
3.2(b) will be allocated to the Matching Accounts of
those Participants (or, if so specified by RSG, in
its sole discretion, only to Participants who are
Non-Highly Compensated Employees) who made 401(k)
Contributions during the Plan Year, who are credited
with at least one Year of Service and who are
employed on the last day of the Plan Year. The amount
of Discretionary Contribution allocated to such
Participant will be equal to the product obtained by
multiplying the amount of the Discretionary
Contribution by a fraction
(I) the numerator of which is the total amount
of 401(k) Contributions made by the
Participant that are not in excess of 6% of
the Participant's Compensation, and
(II) the denominator of which is the total amount
of the 401(k) Contributions made by all
Participants eligible for a Discretionary
Contribution, taking into account only
401(k) Contributions that are not in excess
of 6% of each such Participant's
Compensation.
(C) EXCEPTION TO LAST DAY OF PLAN QUARTER/YEAR EMPLOYMENT
REQUIREMENT. Notwithstanding anything in the Plan to
the contrary, a Participant who dies, retires at or
after reaching Early
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<PAGE> 30
Retirement Age or becomes Totally and Permanently
Disabled will receive a Matching Contribution and any
Discretionary Contribution as provided in Section
4.2(b), provided the Participant is credited with at
least One Year of Service.
(D) ALLOCATION OF QUALIFIED NONELECTIVE CONTRIBUTIONS. If
the Company elects to make a Qualified Nonelective
Contribution for a Plan Year, such contribution will
be allocated to the Nonelective Contribution Account
of each Participant. At the discretion of the
Committee, such allocation shall be made (i) in the
ratio that the Compensation of each such Participant
for the Plan Year bears to the total Compensation of
all such Participants for the Plan Year, (ii) in
equal dollar amounts, or (iii) using another method
of allocation selected by the Committee. The
Committee in its sole discretion, may limit the
allocation of Qualified Nonelective Contributions to
Nonhighly Compensated Employees or to a specific
group of Nonhighly Compensated Employees. Qualified
Nonelective Contributions shall be treated as 401(k)
Contributions for all purposes under the Plan to the
extent used to satisfy the ADP test described in
Schedule B.
(E) ALLOCATION OF QUALIFIED MATCHING CONTRIBUTIONS. If
the Company elects to make a Qualified Matching
Contribution for a Plan Year, such contribution will
be allocated to the Nonelective Contribution Account
of each Participant. At the discretion of the
Committee, such allocation shall be made (i) in the
ratio that the Compensation of each such Participant
for the Plan Year bears to the total Compensation of
all such Participants for the Plan Year, (ii) in
equal dollar amounts, or (iii) using another method
of allocation selected by the Committee. The
Committee in its sole discretion, may limit the
allocation of Qualified Matching Contributions to
Nonhighly Compensated Employees or to a specific
group of Nonhighly Compensated Employees. Qualified
Matching Contributions shall be treated as 401(k)
Contributions for all purposes under the Plan to the
extent used to satisfy the ADP test described in
Schedule B.
(F) ALLOCATION OF MAKEUP CONTRIBUTIONS. A contribution
made
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<PAGE> 31
pursuant to Section 3.3 will be allocated in
accordance with the Committee's direction to
reinstate a former Participant's Account or, as
necessary, to correct a mistake or omission.
4.3. ALLOCATION OF ROLLOVER CONTRIBUTION. A Rollover Contribution
made by a Participant will be allocated to the Participant's Rollover Account.
4.4. ALLOCATION OF ASSETS FROM PRIOR PLAN. Assets from a Prior Plan
will be allocated to a subaccount of the 401(k) Account, Nonelective
Contribution Account, After Tax Contribution Account, Rollover Account or
Employer Account, whichever is appropriate, for the benefit of the Participant
who was credited with those assets under the Prior Plan at the time of transfer.
4.5. LIMITATION ON ALLOCATIONS.
(A) Notwithstanding the preceding sections, the amount of
contributions allocated under Sections 4.1 and 4.2
may be limited in accordance with the provisions of
Code Section 415. Any amounts that cannot be
allocated to a particular Participant because of Code
Section 415 shall be applied in the following order:
(i) a Participant's 401(k) Contributions for the year
will be reduced to the extent necessary to satisfy
Code Section 415 and returned to the Participant; and
(ii) any other amounts shall be forfeited from the
Participant's Account and used to reduce Company
contributions.
(B) If the benefit under this Plan, when considered in
combination with any allocations or benefits the
Participant accrues under any other qualified
retirement plan of a Company, fails to meet Code
Section 415, the requirements of Code Section 415
shall be met by reducing the Participant's benefits
under this Plan. However, if the other plan has a
similar provision which would require that the
reduction to satisfy Code Section 415 be taken under
that plan, the provisions of that plan shall apply.
4.6. VESTING. A Participant is 100% vested in his or her Account
Balance, Republic Rewards Plan to Plan Transfer Account, Republic Rewards
(AutoNation) Stock Account and Grandfathered Account under the Plan.
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<PAGE> 32
ARTICLE 5.
VALUATION OF FUND AND ALLOCATION OF GAINS AND LOSSES
5.1. VALUATION OF FUND. The Trustee shall value the Trust as of the
last Valuation Date of each calendar quarter, and the Trustee shall report the
value of the net worth of the Trust to the Committee in writing upon the
completion of the valuation. In determining the net worth of the Trust, the
Trustee shall value the assets at fair market value as of such Valuation Date
and shall deduct from the Trust expenses, charges, and fees of the Trust unless
such expenses, charges, and fees have been guaranteed or reimbursed by the
Company.
5.2. DAILY VALUATION. A Participant's Account Balance, Rewards Plan
to Plan Transfer Account, Republic Rewards (AutoNation) Stock Account and
Grandfathered Account shall be valued using a daily valuation method of
accounting. Under the daily valuation method of accounting, all amounts held in
the Trust are invested as a unit or in accordance with the provisions of certain
other limited investment options as allowed by the Committee and the Trustee. As
of each Valuation Date, the Trustee shall adjust each Investment Fund in the
Participant's Account Balance, Rewards Plan to Plan Transfer Account, Republic
Rewards (AutoNation) Stock Account and Grandfathered Account (including a
suspense account and any other accounts maintained for daily valuation
accounting purposes) in the following manner (but not necessarily in the same
order):
(A) Value at current fair market value the assets of the
Trust.
(B) Adjust the Participant's Account Balance, Republic
Rewards Plan to Plan Transfer Account, Republic
Rewards (AutoNation) Stock Account and Grandfathered
Account (including any suspense accounts) for any
gain or loss since the last Valuation Date.
(C) Subtract all payments or distributions made from the
Participant's Account Balance, Republic Rewards Plan
to Plan Transfer Account, Republic Rewards
(AutoNation) Stock Account and Grandfathered Account
since the preceding Valuation Date, including any
adjustments for fees and expenses of the trust
charged to such accounts.
(D) Add the 401(k) Contributions, Matching and/or
Nonelective Contributions, and Rollover Contributions
made to the Trust
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<PAGE> 33
since the last Valuation Date to the appropriate
accounts. Add Discretionary Contributions when
allocable to the appropriate accounts.
(E) Debit or credit, as applicable, the Investment Funds
due to the Participant's change in investment
election pursuant to Article 9.
Notwithstanding the foregoing, if the Plan holds an asset that cannot
be valued readily on a daily basis, the Committee and the Trustee may treat that
asset separate and apart from the daily valuation accounting and may value that
asset at such time or times as deemed necessary, but at least annually.
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<PAGE> 34
ARTICLE 6.
PAYMENT OF BENEFITS
6.1. DISTRIBUTION OF BENEFITS.
(A) If a Participant separates from service or becomes
Totally and Permanently Disabled, the Participant's
Account Balance shall be payable in cash, in
accordance with this article.
(B) If a Participant separates from service or becomes
Totally and Permanently Disabled, the Participant's
Grandfathered Account Balance shall be payable in
accordance with Schedule C and Sections 6.4, 6.5,
6.7, 6.8 and 6.10. Participants who were participants
in a Grandfathered Prior Plan have grandfathered
distribution options set out in Schedule C. The
identity of the Participants and the amounts subject
to those provisions shall be determined by the
Committee and maintained by the Plan's recordkeeper.
Such Participants have all of the options set out in
Schedule C if they were formerly covered by a
Grandfathered Prior Plan which had one or more of the
Schedule C options and merged with this Plan, but
only with respect to amounts (and gains and losses
thereon) transferred to this Plan from the
Grandfathered Prior Plan.
(C) If a Participant separates from service or becomes
Totally and Permanently Disabled, the Participant's
Republic Rewards Plan to Plan Transfer Account and
Republic Rewards (AutoNation) Stock Account shall be
payable in accordance with Schedule E and Sections
6.4, 6.5, 6.7, 6.8 and 6.10. Participants who have
Republic Rewards Plan to Plan Transfer Account and
Republic Rewards (AutoNation) Stock Account balances
have the distribution options set out in Schedule E.
The identity of the Participants and the amounts
subject to those provisions shall be determined by
the Committee and maintained by the Plan's
recordkeeper. Such Participants have the options set
forth in Schedule E only with respect to amounts (and
gains and losses thereon) transferred to this Plan as
Republic Rewards Plan to
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<PAGE> 35
Plan Transfer Account and Republic Rewards
(AutoNation) Stock Account.
(D) A Participant will be treated as having incurred a
separation from service and a distribution will be
available under this Article, Schedule C and/or
Schedule E in the event of:
(I) the disposition of a corporation to an
unrelated corporation of substantially all
of the assets (within the meaning of Code
Section 409(d)(2)) used in a trade or
business if the Participant continues
employment with the corporation acquiring
the assets and the selling corporation
continues to maintain the Plan after the
disposition; or
(II) the disposition by a corporation to an
unrelated entity or individual of such
corporation's interest in a subsidiary
(within the meaning of Code Section
409(d)(3)) if the Participant continues
employment with the subsidiary and the
selling corporation continues to maintain
the Plan.
A distribution is not available under this paragraph if the purchaser
maintains the seller's plan at any time after the disposition. A distribution
made under this paragraph may not be made later than the end of the second year
following the calendar year in which the disposition occurred except in unusual
circumstances or in accordance with applicable regulations.
6.2. AMOUNT AND TIME OF PAYMENT.
(A) When a Participant's Account Balance and/or Republic
Rewards Plan to Plan Transfer Account and Republic
Rewards (AutoNation) Stock Account become payable, a
distribution of the Account Balance and/or Republic
Rewards Plan to Plan Transfer Account and Republic
Rewards (AutoNation) Stock Account, valued as of the
Valuation Date immediately preceding the date of
distribution, will be made to the Participant with
the Participant's consent as soon as administratively
practicable.
(B) If the Participant does not consent to a
distribution, the Account
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<PAGE> 36
Balance and/or Republic Rewards Plan to Plan Transfer
Account and Republic Rewards (AutoNation) Stock
Account will remain invested under the Plan, subject
to the Participant's right to direct the investment
of the Account.
(C) If a Participant receives a distribution, any
contributions credited to the Participant's Account
and/or Republic Rewards Plan to Plan Transfer Account
and Republic Rewards (AutoNation) Stock Account
subsequent to such distribution shall become
distributable as of their allocation.
(D) Distribution of a Participant's Account Balance
and/or Republic Rewards Plan to Plan Transfer Account
and Republic Rewards (AutoNation) Stock Account shall
begin no later than sixty (60) days after the end of
the Plan Year in which occurs the later of:
(I) the Participant's attainment of age 65,
(II) the tenth anniversary of the Participant's
participation in the Plan, or
(III) the Participant's termination of employment
with the Company.
6.3. METHOD OF PAYMENT. When a Participant's Account is
distributable, a Participant has the right to elect in writing, on a form
approved by and filed with the Committee, to have his or her Account Balance
distributed in a single lump sum payment.
6.4. SMALL BENEFIT PAYMENTS. Notwithstanding Sections 6.2, if the
total of the Participant's Account Balance Republic Rewards Plan to Plan
Transfer Account and Republic Rewards (AutoNation) Stock Account and
Grandfathered Account Balance is $5,000 or less, the Committee will pay the
Participant or the designated Beneficiary (if the benefit payable is a death
benefit) the value of the Account Balance, Republic Rewards Plan to Plan
Transfer Account, Republic Rewards (AutoNation) Stock Account and Grandfathered
Account Balance in a lump sum payment as soon as administratively practicable,
without the consent of the Participant (or Spouse, if applicable under Schedule
C).
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<PAGE> 37
6.5. MINIMUM DISTRIBUTION RULES.
(A) GENERAL RULE. A Participant must begin receiving
minimum required distributions from the Plan in
accordance with Code Section 401(a)(9) by April 1 of
the calendar year following the later of the calendar
year in which such Participant attains age seventy
and one-half (70 1/2) or the calendar year in which
the Participant retires.
(B) SPECIAL RULE APPLICABLE TO 5-PERCENT OWNER. A
5-percent owner of a Company, as that term is defined
in Code Section 416, is required to begin receiving
minimum required distributions under Code Section
401(a)(9) by April 1 of the calendar year following
attainment of age 70 1/2 without regard to whether he
or she has retired.
6.6. ELECTION OF DIRECT ROLLOVER. Notwithstanding any provision of
the Plan to the contrary that would otherwise limit a distributee's election
under this Article, Schedule C or Schedule E, a distributee may elect, at the
time and in the manner prescribed by the Committee, to have any portion of an
eligible rollover distribution paid directly to an eligible retirement plan
specified by the distributee in a Direct Rollover (as defined below).
DEFINITIONS -
(A) ELIGIBLE ROLLOVER DISTRIBUTION. An eligible rollover
distribution is any distribution of all or any
portion of the balance to the credit of the
distributee, except that an eligible rollover
distribution does not include: any distribution that
is one of a series of substantially equal periodic
payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or
the joint lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten years
or more; any distribution to the extent such
distribution is required under Code Section
401(a)(9); and the portion of any distribution that
is not includible in gross income (determined without
regard to the exclusion for net unrealized
appreciation with respect to employer securities).
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(B) ELIGIBLE RETIREMENT PLAN. An eligible retirement plan
is an individual retirement account described in Code
Section 408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan
described in Code Section 403(a), or a qualified
trust described in Code Section 401(a) that accepts
the distributee's eligible rollover distribution.
However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account
or individual retirement annuity.
(C) DISTRIBUTEE. A distributee includes an Employee or
former Employee. In addition, the Employee's or
former Employee's Surviving Spouse and the Employee's
or former Employee's Spouse or former Spouse who is
the alternate payee under a Qualified Domestic
Relations Order are distributees with regard to the
interest of the Spouse or former Spouse.
(D) DIRECT ROLLOVER. A direct rollover is a payment by
the Plan to the eligible retirement plan specified by
the distributee.
6.7. QUALIFIED DOMESTIC RELATIONS ORDER PAYMENTS. A domestic
relations order relating to benefits under this Plan shall be reviewed by the
Committee in accordance with the Committee's QDRO procedures. The Committee may
establish procedures for processing domestic relations orders and determining
the qualified status of any such order in accordance with IRS guidance, rulings
or regulations. If the order is a Qualified Domestic Relations Order received by
this Plan, the Committee will authorize payment to the alternate payee pursuant
to the terms of the Qualified Domestic Relations Order as soon as
administratively practicable without regard to the time distribution would be
made with respect to the affected Participant.
6.8. NONFORFEITABILITY. Notwithstanding anything in the Plan to the
contrary, a Participant's right to his or her Account Balance shall be
nonforfeitable. In the event that a Plan amendment directly or indirectly
changes the vesting schedule, the vested percentage of each Participant in his
or her Account Balance accumulated to the date when the amendment is adopted
shall not be reduced as a result of the amendment.
6.9. REEMPLOYMENT. If a Participant, who received a lump sum
distribution from a Prior Plan, or a Grandfathered Prior Plan upon termination
of employment prior to the merger of said Plan into this Plan, is reemployed,
such Participant shall have the right to have the nonvested portion of his or
her account balance that was forfeited restored upon
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repayment to the Plan of the full amount of the distribution. To receive a
restoration of the forfeited amount, the repayment must be made before the
Participant incurs five One-Year Periods of Severance. The restoration
allocation will be in the amount of the forfeiture and will not be adjusted for
gains or losses which occurred after the forfeiture arose.
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ARTICLE 7.
DEATH BENEFITS
7.1. DEATH BENEFITS.
(A) A Participant's Account Balance, Republic Rewards
Plan to Plan Transfer Account and Republic Rewards
(AutoNation) Stock Account are payable upon his or
her death prior to commencement of benefit payments
to such Participant's Surviving Spouse, unless the
Participant is either not married or has filed a
Qualified Designation of Beneficiary (described in
Section 7.2) with the Committee. If a Participant is
not married or has filed a Qualified Designation of
Beneficiary, his or her Account Balance, Republic
Rewards Plan to Plan Transfer Account and Republic
Rewards (AutoNation) Stock Account are payable to the
Participant's designated Beneficiary.
(B) Distribution of the Participant's Account Balance
shall be paid out in a lump sum as soon as
administratively practicable after the Participant's
death with the Participant's spouse or Designated
Beneficiary consent, but not later than December 31
of the calendar year containing the fifth anniversary
of the Participant's death. Provided however, if the
Participant's combined Account Balance, Republic
Rewards Plan to Plan Transfer Account, Republic
Rewards (AutoNation) Stock Account and Grandfathered
Account Balance is $5,000 or less, distributions will
be made in accordance with Section 6.4.
(C) Distribution of the Participant's Republic Rewards
Plan to Plan Transfer Account and Republic Rewards
(AutoNation) Stock Account will be paid in accordance
with Schedule E.
(D) A Participant's Grandfathered Account Balance is
payable upon his or her death prior to commencement
of benefit payments in accordance with Schedule C.
Participants who were Participants in a Grandfathered
Prior Plan have grandfathered distribution options
set out in Schedule C. The identity of the
Participants and the amounts subject to those
provisions shall be determined by the Committee and
maintained by the Plan's recordkeeper.
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Such Participants (and their beneficiaries) have all
of the distribution options set out in Schedule C if
they were formerly covered by a Grandfathered Prior
Plan which had one or more of the Schedule C options
and merged with this Plan, but only with respect to
amounts (and gains and losses thereon) transferred to
this Plan from the Grandfathered Prior Plan.
7.2. DESIGNATION OF BENEFICIARY. If a Participant is not married,
he or she may file a designation of Beneficiary with the Committee. The
designated Beneficiary shall be entitled to receive any death benefit payable
under the Plan in accordance with Section 7.1. If a Participant is married at
the time of his or her death, the Beneficiary of such deceased Participant will
be the Participant's Surviving Spouse, unless the Participant has filed a
Qualified Designation of Beneficiary with the Committee. A "Qualified
Designation of Beneficiary" means a form provided by the Committee on which the
Participant's Spouse consents in writing to the designation of a Beneficiary
other than the Spouse. The written consent must be witnessed by either a Notary
Public or an authorized representative of the Committee. A Spouse's consent is
irrevocable when given. A Qualified Designation of Beneficiary may be revoked at
any time by the Participant and a new Qualified Designation of Beneficiary filed
with the Committee. If the Surviving Spouse or designated Beneficiary
predeceases the Participant and no contingent beneficiary is named, or if there
is no valid designation of Beneficiary executed by a Participant, the death
benefit payable under this section will be paid to the Participant's estate.
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<PAGE> 42
ARTICLE 8.
IN-SERVICE WITHDRAWALS BY PARTICIPANTS
8.1. HARDSHIP DISTRIBUTIONS FROM 401(K) ACCOUNT. A Participant may
request a distribution of his or her elective deferrals made to the 401(k)
Account, Republic Rewards 401(k) Account and/or Grandfathered 401(k) Account in
the event of hardship. For purposes of this section, a distribution is made on
account of hardship only if the distribution is made both on account of an
immediate and heavy financial need of the Participant and is necessary to
satisfy the financial need. This section is intended to comply with Internal
Revenue Service regulation ss. 1.401(k)-1(d)(2) and will be interpreted and
applied in accordance with that regulation.
(A) The following are the only financial needs considered
immediate and heavy:
(I) Expenses for medical care (described in
Section 213(d) of the Code) previously
incurred by the Participant, the
Participant's Spouse, or any dependent of
the Participant (as defined in Code Section
152) or amounts necessary for these persons
to obtain such medical care;
(II) Costs directly related to the purchase of a
principal residence for the Participant
(excluding mortgage payments);
(III) Payment of tuition and related educational
fees for the next 12 months of
post-secondary education for the
Participant, the Participant's Spouse,
children or dependents (as defined in Code
Section 152);
(IV) Payments necessary to prevent the eviction
of the Participant from, or a foreclosure on
the mortgage of, the Participant's principal
residence; or
(V) Any other financial need considered
immediate and heavy under IRS regulations,
rulings, notices or other documents of
general applicability.
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<PAGE> 43
(B) When a Participant takes a hardship distribution:
(I) He or she will be suspended from making
401(k) Contributions for twelve months
following receipt of the hardship
distribution; and
(II) For the taxable year of the Participant
following the taxable year of the hardship
distribution, the Participant's 401(k)
Contributions are limited to the applicable
limit under Code Section 402(g) reduced by
the Participant's 401(k) Contributions for
the year the hardship distribution was
taken.
(C) A distribution will be considered as necessary to
satisfy an immediate and heavy financial need of the
Participant only if:
(I) The Participant has obtained all
distributions, other than hardship
distributions, and all nontaxable loans
currently available under all plans
maintained by the Company;
(II) The distribution is not in excess of the
amount of the immediate and heavy financial
need (including amounts necessary to pay any
federal, state or local income taxes or
penalties reasonably anticipated to result
from the distribution).
(D) Notwithstanding the foregoing, if the Participant has
a Grandfathered 401(k) Account or elective deferrals
in the 401(k) Account made under a Prior Plan,
elective deferrals may be withdrawn under this
section only if records identifying the elective
deferrals were maintained under the Prior Plan or
Grandfathered Prior Plan.
(E) Earnings on elective deferrals in the 401(k) Account
made under a prior plan may be withdrawn if
attributable to elective deferrals made for Plan
Years which began prior to 1989, if records
identifying the earnings were maintained.
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8.2. WITHDRAWAL FROM ROLLOVER ACCOUNT. Upon written notice to the
Committee, a Participant may withdraw his or her Rollover Account, Republic
Rewards Rollover Account and/or Grandfathered Rollover Account at any time for
any reason.
8.3. WITHDRAWALS AFTER AGE 59 1/2. Upon written notice to the
Committee, a Participant who has attained age 59 1/2 may withdraw all or part of
his or her Account, Republic Rewards Plan to Plan Transfer Account and/or
Grandfathered Account at any time for any reason.
8.4. WITHDRAWALS FROM AFTER-TAX ACCOUNT. Upon written notice to the
Committee, a Participant may elect to withdraw his or her After-Tax Account,
Republic Rewards After-Tax Account and/or Grandfathered After-Tax Account at any
time for any reason.
8.5. WITHDRAWALS FROM EMPLOYER ACCOUNT. With respect to a
Participant with a Republic Rewards Employer Account or Grandfathered Employer
Account, such Participant, upon written notice to the Committee, may elect (with
spousal consent given in accordance with Schedule C as to the Grandfathered
Employer Account), to withdraw such account, provided such Participant has a
total of at least five years of employment with RSG, its Affiliates and any
Predecessor Company.
8.6. LIMITATIONS ON WITHDRAWALS.
(A) No distribution will be made under this article which
will result in a distribution amount of less than
$500 or the total amount available for withdrawals,
if less. This limitation is applicable to each
account and is not an aggregate limitation.
(B) In the case of a partial withdrawal made by a
Participant having an interest in more than one
Investment Fund, the amount withdrawn from each
Investment Fund shall be in the same proportion as
the value of his interest in each such Investment
Fund immediately preceding such withdrawal bears to
the total value of the account from which the
withdrawal is made.
8.7. SPOUSAL CONSENT. A Participant who requests a withdrawal from
any account subject to Schedule C must obtain the consent of his or her Spouse,
if married, to any withdrawal requested under this article on such form and with
such notice as the Committee requires in accordance with Code Sections
401(a)(11) and 417.
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8.8. AUTOMATED WITHDRAWALS. The written notice for a withdrawal is
not required in the event a withdrawal is processed through an automated voice
response unit or similar automated method provided by the Plan's recordkeeper in
accordance with the recordkeeper's procedures.
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ARTICLE 9.
INVESTMENT OF TRUST ASSETS
9.1. PARTICIPANT DIRECTED INVESTMENTS.
(A) Each Participant has the right to direct the
investment of his or her Account Balance, the
Republic Rewards Plan to Plan Transfer Account, the
Republic Rewards (AutoNation) Stock Account and/or
Grandfathered Accounts maintained for a Participant
under this Plan except the Matching Account. A
Participant's investment direction is limited to the
Investment Funds selected by the Committee.
(B) One of the Investment Funds is designed to invest
primarily in RSG common stock. The Committee may set
limits on the percentage of a Participant's Account
(other than the Matching Account) that may be
invested in RSG stock.
(C) A Participant's investment direction shall be made in
accordance with the procedures established by the
Committee and/or the Trustee governing the manner and
method in which such direction may occur. The
Participant may change his or her investment
selections at such times as are permitted by the
Trustee and the Committee in accordance with the
procedures and rules established by the Trustee and
the Committee. A Participant has the right to have
all or part of the Account Balance and Grandfathered
Account Balance (except for the Matching Account)
transferred between Investment Funds under rules
established by the Committee and/or the Trustee.
(D) All accounts transferred to this Plan from Republic
Rewards 401(k) Plan pursuant to the Amended and
Restated Employee Benefits Agreement of February 1999
shall be initially invested in the same Funds in this
Plan and in the same proportions as invested by a
Participant under the Republic Rewards 401(k) Plan
immediately prior to said transfer.
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<PAGE> 47
9.2. INVESTMENT OF MATCHING ACCOUNT.
(A) A Participant's Matching Account shall be invested in
a fund designed to invest primarily in RSG common
stock. A Participant has no investment discretion
with respect to that account except as set forth in
subsection (b) below.
(B) A Participant who has attained age 55 and completed
three Years of Service may direct all of a portion of
the investment of his or her Matching Account in
accordance with the direction applicable to all other
assets in his or her Account.
9.3. VOTING RIGHTS. Voting rights with respect to stock or other
securities in the respective Funds, may be exercised by the Trustee or by such
proxy as the Trustee may elect, except for voting rights with respect to shares
of RSG common stock and AutoNation, Inc. common stock (including fractional
shares) held by the Trustee which are held respectively in the Matching Account
or Republic Rewards (AutoNation) Stock Account of any Participant, which shall
be exercised by the Trustee at respective meetings of RSG's stockholders or
AutoNation stockholders in accordance with the instructions of each Participant.
For purposes of exercising the Participant's rights under this section,
RSG or AutoNation shall respectively notify each Participant of each annual or
special meeting of its shareholders and of any other occasion for the exercise
of voting or other rights by such shareholders in the same manner as any other
shareholder of the stock. The notification shall include a copy of any proxy
solicitation material and any other information which RSG or AutoNation
distributes to its shareholders regarding the exercise of voting or other
rights, together with a form requesting instructions to the Trustee as to how
the Participant's rights are to be exercised. RSG or AutoNation shall tabulate
and certify to the Trustee the instructions received, and the Trustee shall vote
or otherwise exercise rights with respect to shares as instructed. In so doing,
the Trustee shall accumulate fractional share votes covered by such instruction
for or against any proposed action and shall disregard any remaining fractional
share.
All shares of RSG or AutoNation common stock held in a Participant's
Account for which instructions shall not have been timely received by the
Trustee shall be voted by the Trustee in the same manner and in the same
proportions as are voted for shares of RSG or AutoNation common stock for which
instructions shall have been so received.
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9.4. INVESTMENT DIRECTIONS OF REPUBLIC REWARDS STOCK CONTRIBUTIONS.
The Trustee shall hold all Republic Rewards (AutoNation) Stock Contributions in
shares of AutoNation, Inc. common stock ("AutoNation" shares), which will be
held in a separate fund designated the Republic Rewards (AutoNation) Stock Fund.
This Fund is established to retain said AutoNation shares and reinvest all
dividends and other distributions on said AutoNation shares in additional shares
of AutoNation stock. Except for shares of AutoNation stock purchased with
dividends or other distributions from AutoNation stock, no additional shares of
AutoNation stock may be purchased or added to this Fund.
A Participant shall have the right to make an unlimited number of
irrevocable elections, each of which shall be made in accordance with procedures
prescribed by the Committee, to have a stated dollar amount or a stated whole
percentage of his or her interest in the Republic Rewards (AutoNation) Stock
Fund valued as of the Valuation Date determined by the Trustee in accordance
with uniform procedures it establishes, which date shall coincide with or be
immediately after receipt by the Trustee of such election, transferred in
designated portions, in a stated dollar amount or stated whole percentage, to
one (1) or more of the Investment Funds established pursuant to Section 9.1, as
the Participant may direct in each such election. Once an election has been made
to transfer values out of the Republic Rewards (AutoNation) Stock Fund such
transferred values cannot be reinvested in the RII Stock Fund. The interest or
interests in any of the Investment Funds established pursuant to Section 9.1
resulting from any such transfer shall be attributable to, and become a part of
the Participant's Matching Account for purposes of administration and
distribution.
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ARTICLE 10.
PLAN ADMINISTRATION
10.1. ESTABLISHMENT OF THE EMPLOYEE BENEFITS COMMITTEE. The general
administration of the Plan and the responsibility for carrying out its
provisions shall be placed in the Employee Benefits Committee. The Committee is
the plan administrator (within the meaning of Section 3 of the Act and Code
Section 414(g)) with such authority, responsibilities and obligations as the Act
and the Code grant to and impose upon persons so designated. For purposes of the
Act, the Committee shall be a "named fiduciary" under the Plan. If no Committee
is appointed by the Board of Directors of RSG (or the Executive Committee of RSG
with authority from the Board of Directors), RSG shall be the plan administrator
and named fiduciary of the Plan and shall have all the rights, duties and powers
of the Committee set forth in this Article.
Any member of the Committee may resign by delivering his or her written
resignation to the secretary of the Committee. Such resignation shall be
effective thirty (30) days after the date the notice is received, or on an
earlier date designated by majority vote of the Committee's remaining members.
No member of the Committee who is also an Employee receiving regular
compensation as such shall receive any compensation for his or her services as a
member of the Committee. No bond or other security shall be required of any
member of the Committee in any jurisdiction. No member of the Committee shall,
in such capacity, act or participate in any action directly affecting his or her
own benefits under the Plan other than an action which affects the benefits of
Participants generally or group of Participants.
10.2. POWERS OF THE COMMITTEE. The powers of the Committee include,
but are not limited to, the following:
(A) determining the times and places for holding meetings
of the Committee and the notice to be given of such
meetings;
(B) employing such agents and assistants, such counsel
(who may be counsel to the Company), and such
clerical, medical, accounting, actuarial and
investment services or advisers as the Committee may
require in carrying out the provisions of the Plan;
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<PAGE> 50
(C) authorizing one or more of their number or any agent
to make any payment, or to execute or deliver any
instrument, on behalf of the Committee, except that
all requisitions for funds from, and requests,
directions, notifications and instructions to the
trustee of the Plan shall be signed by at least two
members of the Committee;
(D) in its discretion, establishing one or more
subcommittees as it deems appropriate, and delegating
any power or duty granted to the Committee to any
such subcommittee;
(E) appointing and removing the trustee of the Plan
pursuant to the terms of the trust agreement;
(F) receiving and reviewing reports from the trustee of
the Plan as to the financial condition of the trust,
including its receipts and disbursements;
(G) executing and filing with the appropriate
governmental agencies such registration and other
statements, forms, applications, notifications, and
other documents or information as the Committee may
from time to time deem necessary or appropriate in
connection with the Plan;
(H) executing the adoption, amendment or restatement of
the Plan by any company or other entity affiliated
with the Company;
(I) amending the Plan to the extent it is authorized to
do so by the Board on the terms of the Plan; and
(J) directing the Trustee, or appointing one or more
investment managers to direct the Trustee, subject to
the conditions set forth in the trust agreement and
in this article, in all matters concerning the
investment of the Trust.
10.3. DUTIES AND AUTHORITY OF THE EMPLOYEE BENEFITS COMMITTEE.
(A) The Committee shall have the general responsibility
for administering the Plan and carrying out its
provisions. Subject to the limitations of the Plan,
the Committee from time to time
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<PAGE> 51
shall establish rules for the administration of the
Plan and the transaction of its business and shall
promulgate such rules as may be necessary to
effectuate the Plan's funding and investment policy.
The Committee, in its sole discretion, shall
determine all matters of administration and
interpretation and the amounts of and rights to
benefits payable under the Plan. Provided however, to
the extent the Committee delegates its discretion to
determine matters of administration, interpretation
and amounts of and rights to benefits payable under
the Plan to a subcommittee such subcommittee shall
have the sole discretion to make such determinations.
(B) It shall be the duty of the Committee to notify the
Trustee in writing of the amount of any benefit which
shall be due to any Participant and in what form and
when such benefit is to be paid.
(C) The Committee may at any time or from time to time
with respect to the Plan require the Trustee, by a
written direction to purchase one or more annuities,
in specific amounts, in the names of Participants,
their Spouses, their contingent annuitants, and/or
their beneficiaries from an insurance company
designated by the Committee.
(D) The responsibility for the formulation of the general
investment practices and policies of the Plan and its
related Trust and for effectuating such practices and
policies is placed with the Committee.
10.4. ACTIONS BY THE COMMITTEE OR A SUBCOMMITTEE. The majority of
the members of the Committee, but no fewer than two, or a subcommittee
established pursuant to Section 10.2(d) (a "subcommittee") shall constitute a
quorum for the transaction of business at any meeting. Resolutions or other
actions made or taken by the Committee or subcommittee shall require the
affirmative vote of a majority of the members of the Committee or subcommittee
attending a meeting, or by a majority of members in office by writing without a
meeting.
10.5. ACTION TAKEN IN GOOD FAITH. To the extent permitted by the
Act, the members of the Committee and RSG and the Companies and their respective
officers and directors shall be entitled to rely upon all tables, valuations,
certificates, and reports furnished
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<PAGE> 52
by the recordkeeper, upon all certificates and reports made by any accountant or
by the Trustee, upon all opinions given by any legal counsel selected or
approved by the Committee, and upon all opinions given by any investment adviser
selected or approved by the Committee, and the members of the Committee, the
Companies and their respective officers and directors shall be fully protected
in respect of any action taken or suffered by them in good faith in reliance
upon any such tables, valuations, certificates, reports, opinions or other
advice of any recordkeeper, accountant, Trustee, investment adviser, legal
counsel or other professional advisor, and all action so taken or suffered shall
be conclusive upon each of them and upon all Participants and Employees.
10.6. INDEMNIFICATION. To the extent not contrary to the Act or
applicable state law, RSG shall indemnify the Committee and its members and any
other director, officer or employee of a Company who is designated to carry out
any responsibilities under the Plan for any liability, joint and/or several,
arising out of or connected with their duties hereunder to the fullest extent
permitted by law.
10.7. BENEFIT APPLICATION AND CLAIMS PROCEDURE.
(A) A Participant or Beneficiary shall apply for benefits
by filing with the Committee a signed, written
request specifically identifying the benefits
requested and describing all facts and circumstances
entitling him or her to payment. A written request is
not required if distribution is processed through an
automated voice response unit or similar automated
method provided by the Plan's recordkeeper in
accordance with the recordkeeper's procedures.
(B) Within ninety days after receipt of such an
application, the Committee shall notify the applicant
of its decision. If special circumstances require an
extension of time, the Committee shall notify the
applicant of such circumstances within ninety days
after receipt of the application, and the Committee
shall there after notify the applicant of its
decision within 180 days after receipt of the
application. If the application is denied in whole or
in part, the Committee's notice of denial shall be in
writing and shall state:
(I) the specific reasons for denial with
specific reference to pertinent Plan
provisions upon which the denial was based;
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<PAGE> 53
(II) a description of any additional materials or
information necessary for the applicant to
perfect his or her claim and an explanation
of why the materials or information are
necessary; and
(III) an explanation of the Plan's claim review
procedure.
(C) During the sixty-day period following an applicant's
receipt of a notice of denial of his or her
application for benefits, the applicant or his or her
duly authorized representative may review pertinent
documents and within sixty (60) days submit a written
request to the Committee for an appeal of the denial.
An applicant requesting an appeal, or his or her duly
authorized representative, may submit issues and
comments in writing to the Committee. The Committee
shall consider the merits of the applicant's
presentations, the merits of any facts or evidence in
support of the denial of benefits, and such other
facts and circumstances as the Committee shall deem
relevant; and shall render a decision as to the merit
of the appeal and the claim. Within sixty (60) days
after receipt of the request for appeal, the
Committee shall issue a written decision to the
applicant. If special circumstances require an
extension of time, the Committee shall issue a
written decision no later than 120 days after receipt
of the request for appeal. The Committee's decision
shall include specific reasons for the decision,
written in a manner calculated to be understood by
the applicant, and contain specific references to the
pertinent Plan provisions upon which the decision is
based.
(D) If the Committee fails to respond to the claim or
appeal within the times described above, the claim or
appeal, whichever is applicable, is deemed denied.
10.8. RESPONSIBILITIES OF NAMED FIDUCIARIES OTHER THAN THE
COMMITTEE. The Trustee shall have such responsibilities with respect to the
operation of the Plan as are set forth in the trust agreement. Any investment
adviser which the Committee may employ shall have the responsibility to direct
the Trustee in investing and reinvesting the Trust (or that portion thereof
specified by the Committee in the instrument appointing such adviser) and to
report the book value and fair market value of each asset in the Trust (or such
portion
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<PAGE> 54
thereof) to the Committee periodically, as such responsibilities may be more
fully described in the trust agreement.
10.9. ALLOCATION OF RESPONSIBILITIES. The description of the
responsibilities and powers of the Committee and the description of the
responsibilities of the Trustee contained in the foregoing provisions of this
article shall constitute, for purposes of the Act, procedures for allocating
responsibilities operation and administration of the Plan among the named
fiduciaries.
10.10. DESIGNATION OF PERSONS TO CARRY OUT RESPONSIBILITIES OF NAMED
FIDUCIARIES. The Committee, the Trustee and any investment adviser which the
Committee may employ may, except as to responsibilities involving management and
control of assets held in the Trust, designate one or more other persons to
carry out any or all of their respective responsibilities under the Plan,
provided that such designation shall be made in writing, filed with the Plan's
records and made available for inspection upon request by any Participant or
Beneficiary under the Plan.
10.11. PAYMENT OF EXPENSES. All expenses that shall arise in
connection with the administration of this Plan and the trust agreement,
including, but not limited to, the compensation of the Trustee and of any
recordkeeper, accountant, counsel, investment adviser, other expert or other
person who shall be employed by the Committee in connection with the
administration thereof, shall be paid from the Trust unless paid by the Company
or RSG; provided, however, that no person who is employed by any Company shall
receive any compensation from the Plan except for reimbursement of expenses
properly and actually incurred.
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ARTICLE 11.
PLAN ADOPTION, AMENDMENT OR TERMINATION
11.1. ADOPTION OF PLAN BY AFFILIATES. Any Affiliate of RSG, if the
corporation, business entity or Affiliate is authorized to do so by the
Committee, may become a Company and may be included in this Plan. Such inclusion
shall not require action by the Affiliate's Board of Directors (or other
governing body) or by an officer of the Affiliate. The Companies listed in
Schedule A are covered by this Plan, although inclusion in the Schedule is not
necessary for a Company's employees to be covered by the Plan.
11.2. DISASSOCIATION OF PARTICIPATING COMPANY. The participation in
the Plan of a Participating Company shall cease at such time as the Committee
may determine, without the consent, authorization, or corporate action of such
Company. Participation in this Plan shall cease automatically upon the sale or
other disposition of a Participating Company, without regard to the form of the
sale.
11.3. AMENDMENT OF PLAN.
(A) RSG reserves the right to terminate the Plan or to
modify, alter or amend the Plan from time to time to
any extent that it may, in its sole and complete
discretion, deem advisable, including, but without
limiting the generality of the foregoing, any
amendment deemed necessary to qualify or to ensure
the continued qualification of the Plan under the
Code. The foregoing right shall be exercised only by
action of RSG's Board of Directors or other entity
authorized to act for RSG or by action of an officer
of RSG with later ratification by RSG's Board.
(B) Notwithstanding subsection (a), the Committee, by a
written instrument, duly executed by a majority of
its members, may make, on behalf of RSG's Board of
Directors,
(I) any amendment which may be necessary or
desirable to ensure the continued
qualification of the Plan and its related
Trust under the Code or which may be
necessary to comply with the requirements of
the Act, or any regulations or
interpretations issued by the Department of
Labor or the Internal Revenue Service with
respect to the requirements of the Act or
the Code,
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(II) any amendment which is required by the
provisions of a collective bargaining
agreement between a Company and its
employees, and
(III) any other amendment which will not involve
an estimated annual cost under the Plan
(determined at the time of the amendment in
a manner consistent with the requirements of
the Act) in excess of $5,000,000. No such
amendment shall increase the duties or
responsibilities of the Trustee without its
consent thereto in writing. No such
amendment shall have the effect of diverting
the whole or any part of the principal or
income of the Trust to purposes other than
for the exclusive benefit of Participants
and others having an interest in the Plan,
prior to the satisfaction of all liabilities
with respect to them.
11.4. FORM OF AMENDMENTS. Any amendment to the provisions of this
instrument shall be evidenced by (1) the substitution of the page of this
instrument by one with a new date setting forth the amendment and (2) a proper
recording of the same on the Register of Amendments which is made a part of this
instrument.
11.5. MERGER. In the case of any merger or consolidation of the Plan
with, or any transfer of the assets or liabilities of the Plan to any other plan
qualified under Code Section 401, the terms of such merger, consolidation or
transfer shall be such that each Participant in the Plan would receive (in the
event of termination of the Plan or its successor immediately thereafter) a
benefit which is no less than the benefit which such Participant would have
received in the event of termination of the Plan immediately before the merger,
consolidation or transfer.
11.6. ACCEPTANCE OF TRANSFERRED ASSETS. In the event of a merger
into this Plan of any other plan qualified under Section 401(a) of the Internal
Revenue Code, the Trustee may accept amounts transferred on behalf of a
Participant from such other plan, provided that the Trustee is authorized to do
so by RSG.
11.7. PLAN TO PLAN TRANSFERS. Notwithstanding any other provisions
of this Plan, in the event a Participating Company or a division of RSG or of a
Participating Company ceases to participate under this Plan (ex-Participating
Company) and establishes a successor to this Plan for its Participants and the
Plan Administrator directs a plan to plan transfer, the Trustee at the direction
of the Plan Administrator, shall transfer all Accounts
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which such Participants are entitled to under this Plan to another plan forming
a part of a pension, profit sharing or stock bonus plan maintained by such
Participant's ex-Participating Company and which meets the requirements of
Internal Revenue Code Section 401(a), provided that the plan to which such
transfers are made permits the transfer to be made. All transfers to another
qualified plan of an ex-Participating Company shall be made in cash. In
accordance with procedures established by the Plan Administrator, in the Plan
Administrator's sole discretion, during the time period when Investment Funds
are being liquidated to effectuate the plan to plan transfer, no investment
direction changes may be made. No such transfer shall decrease the accrued
benefit of any Participant or otherwise deprive a Participant of any rights that
are protected by Section 411(d)(6) of the Internal Revenue Code.
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ARTICLE 12.
TRUST FUND AND THE TRUSTEE
12.1. TRUST AND TRUSTEE. A Trust has been created and will be
maintained for the purpose of the Plan, and the corpus thereof will be invested
in accordance with the terms of the Plan and Trust. The Committee shall select a
Trustee to hold and invest the Trust in accordance with the terms of a trust
agreement and/or other contract. A Trustee shall be an individual, a bank or
trust company incorporated under the laws of the United States or of any state
and qualified to operate as a trustee or shall be a legal reserve life insurance
company or a combination of such entities. The Committee may, from time to time,
change the Trustee then serving under the trust agreement and/or other contract
to another Trustee, to elect to terminate the Trust and/or other contract and
hold the Plan assets in any other method acceptable under Act.
12.2. ASSETS OF THE TRUST. All contributions under this Plan shall
be paid to the Trustee and held in Trust. The Trust shall be used for the
exclusive benefit of Participants and their Beneficiaries and shall be used to
pay benefits to such persons and to pay administrative expenses of the Plan and
Trust to the extent such administrative expenses are not paid by the Company.
Assets of the Trust shall never revert or inure to the benefit of the Company,
except that contributions may be returned to the Company as provided in Sections
3.7, 3.8 and 3.9. Contributions shall be made in cash; however, Matching
Contributions, Qualified Matching Contributions and Discretionary Contributions
may be made in RSG stock.
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ARTICLE 13.
MISCELLANEOUS
13.1. LIMITATION OF ASSIGNMENT. No benefit payable under the Plan to
any person shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber or charge a
benefit shall be void; and no such benefit shall in any manner be liable for, or
subject to, the debts, contracts, liabilities, engagements or torts of any
person, nor shall it be subject to attachment or legal process for, or against,
such person, and the same shall not be recognized under the Plan, except to such
extent as may be required by law. Notwithstanding the above, this section shall
not apply to a Qualified Domestic Relations Order, and benefits may be paid
pursuant to the provisions of such an order.
13.2. LEGALLY INCOMPETENT DISTRIBUTEE. Whenever any benefit payable
under the Plan is to be paid to or for the benefit of any person who is then a
minor or determined to be incompetent by qualified medical advice, the Committee
need not require the appointment of a guardian or custodian, but is authorized,
in its sole discretion, to cause the benefit (a) to be paid to the person having
custody of such minor or incompetent, without intervention of a guardian or
custodian, (b) to pay the benefit to a legal guardian or custodian of such minor
or incompetent if one has been appointed, or (c) to use the payment for the
benefit of the minor or incompetent.
13.3. UNCLAIMED PAYMENTS. If the Committee is unable, after
reasonable and diligent effort, to locate a Participant, Spouse, or Beneficiary
who is entitled to payment under the Plan, the payment due such person may be
forfeited after three years. If such person later files a claim for such
benefit, and is determined by the Committee to have a legal right to the
benefit, the benefit shall be reinstated (without gain or earnings). Unless
required by law, in no event shall benefits be paid retroactively for the period
during which such benefits were payable, but unclaimed.
13.4. NOTIFICATION OF ADDRESSES. As a condition of participation in
this Plan, Participants are required to provide a current address and other
information requested for the administration of the Plan. Each Participant and
Beneficiary shall from time to time file with the Committee in writing his or
her address or any change of address. Any communication, statement, or notice
mailed to the last address filed with the Committee, or if no such address was
filed with the Committee, to the last address shown on the Company's records,
will be binding on the Participant or Beneficiary for all purposes, and neither
the Committee nor the Company shall be obliged to search for or ascertain the
whereabouts of any Participant or Beneficiary.
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13.5. NOTICE OF PROCEEDINGS AND EFFECT OF JUDGMENT. In any
application, proceeding or action in any court, no Participant or other person
having any interest in the Plan shall be entitled to any notice or service of
process except as required by law. Any judgment or decree entered on account of
such application, proceeding or action shall be binding and conclusive upon all
persons claiming under this Plan.
13.6. SEVERABILITY. If any provisions of this Plan are held illegal
or invalid for any reason, such illegality or invalidity shall not affect the
remaining parts of this Plan, and this Plan shall be construed and enforced as
if the illegal and invalid provisions were not included.
13.7. PROHIBITION AGAINST DIVERSION. At no time shall any part of
the assets of the Plan revert to a Company or be used for or diverted to
purposes other than the exclusive benefit of Participants or their
Beneficiaries, subject, however, to the payment of all taxes and administrative
expenses and subject to the provisions of the Plan with respect to returns of
contributions and excess assets on plan termination.
13.8. LIMITATION OF RIGHTS. Participation in the Plan shall not give
any Employee any right or claim except to the extent that such right is
specifically fixed under the terms of the Plan. The adoption of the Plan by a
Company shall not be construed to give any Employee a right to continue in the
employ of a Company or to interfere with the right of a Company to terminate the
employment of the Employee at any time.
13.9. CONTROLLING LAW. The laws of the State of Delaware shall be
the controlling state law in all matters relating to the Plan and shall apply to
the extent not preempted by the laws of the United States of America.
13.10. ERRORS IN PAYMENT. If any error shall result in the payment to
a Participant or other person of more or less than he/she would have received
but for such error, the Committee shall be authorized to correct such error and
to adjust the payments to the extent possible in such manner as the Committee
determines or, in its discretion, seek restitution from the Participant, former
Participant or other person, provided, however, that the Committee need not seek
restitution, if the Committee determines that doing so would not be cost
effective or is otherwise contraindicated.
13.11. USERRA AND CODE SECTION 414(U) COMPLIANCE. Notwithstanding any
provision of this Plan to the contrary, contributions, benefits, service credit
and other rights under the Plan of a Participant with respect to qualified
military service will be provided in accordance with Code Section 414(u).
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13.12. LOANS FROM PRIOR PLANS. The Committee will administer loans
transferred from a Prior Plan, Grandfathered Prior Plan or transferred as part
of the plan to plan transfer from Republic Rewards 401(k) Plan pursuant to the
Amended and Restated Employee Benefits Agreement of February 1999 in accordance
with the terms of such loans and in accordance with Code Section 72(p). The
Committee shall develop a loan policy and procedure to administer the loans. No
new loans are available under the Plan.
13.13. HEADINGS AND USE OF WORDS. Headings are for convenience in
referencing only and are not to be used in interpretation of the Plan. The use
of a masculine term shall include the feminine where applicable. Whenever the
context of the Plan dictates, the plural shall be read as the singular and the
singular shall be read as the plural.
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ARTICLE 14.
TOP-HEAVY PROVISIONS
14.1. APPLICABILITY OF THIS ARTICLE. This Article shall apply for
any Plan Year in which the Plan is a Top-Heavy Plan within the meaning of
Sections 14.2 and 14.4.
14.2. TOP-HEAVY AND SUPER TOP-HEAVY DETERMINATION.
(A) The Plan shall be a Top-Heavy Plan for a Plan Year
if, as of the Determination Date, the aggregate of
the Account Balances under the Plan for Key Employees
exceeds 60 percent of the aggregate of the Account
Balances under the Plan for all Employees.
(B) The Plan shall be a Super Top-Heavy Plan if, as of
the Determination Date, the aggregate of the Account
Balances under the Plan for Key Employees exceeds 90
percent of the aggregate of the Account Balances
under the Plan for all Employees.
14.3. COMPUTATION OF THE AGGREGATE OF THE ACCOUNT BALANCES.
(A) The Account Balance of an Employee shall be the sum
of (i) the Account Balance as of the most recent
Valuation Date occurring within a twelve (12) month
period ending on the Determination Date and (ii) the
amount of any contributions that would be allocated
as of a date not later than the Determination Date
without regard to whether such amount is subject to a
waiver of the minimum funding standards or is in
violation of such standards or actually contributed
or, in the case of a Plan not subject to the minimum
funding standards, the amount of any contributions
actually made after the Valuation Date, but before
the Determination Date.
(B) If an Employee is a Key Employee on a Determination
Date, the total amount of the Employee's Account
Balance is taken into account in determining the
aggregate of Account Balances (including amounts
attributable to service as a Non-Key Employee). If
any individual is a Non-Key Employee with
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respect to the Plan for a Plan Year, but such
individual was a Key Employee for any prior Plan
Year, the Account Balance of such individual shall
not be taken into account.
(C) If an Employee has not performed any service for the
Company or an Affiliate at any time during the
five-year period ending on the Determination Date,
any accrued benefit and Account Balance of such
Employee shall not be taken into account.
(D) (I) In the case of an unrelated rollover, the
plan making the distribution counts it in
determining top-heaviness, and the plan
receiving the distribution does not count it
in determining top-heaviness. An unrelated
rollover is a rollover or plan-to-plan
transfer both initiated by the Employee and
made from a plan maintained by one company
to a plan maintained by another company.
(II) In the case of a related rollover, the plan
making the distribution does not count the
distribution in determining top-heaviness
and the plan receiving the distribution
counts the rollover in determining
top-heaviness. A related rollover is a
rollover or a plan-to-plan transfer either
not initiated by the Employee or made to a
plan maintained by the same company.
(III) For purposes of determining whether the
company is the same company, all companies
aggregated under Code Section 414(b), (c),
(m) and (o) are treated as the same company.
(E) Distributions (other than those described in (d)
above) made within the Plan Year that includes the
Determination Date or within the four preceding Plan
Years are added to the aggregate of Account Balances.
14.4. REQUIRED AGGREGATION OF PLANS.
(A) Each plan of a company required to be included in an
aggregation group shall be treated as a Top-Heavy
Plan if the
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required aggregation group is a top-heavy group. The
required aggregation group includes:
(I) each plan of the company (within the meaning
of Code Section 414(b), (c), (m) and (o)) in
which a Key Employee participates in the
Plan Year containing the Determination Date
or any of the four preceding Plan Years, and
(II) each other plan of the company which enables
any plan described in (i) above to meet the
requirements of Code Section 401(a)(4) or
Code Section 410.
(B) A required aggregation group is a top-heavy group if,
as of each Plan's Determination Date, the sum of (i)
the present value of the cumulative accrued benefits
for Key Employees under all defined benefit plans
included in the group and (ii) the aggregate of the
Account Balances of Key Employees under all defined
contribution plans included in the group exceeds 60
percent of a similar sum determined for all
Employees. When aggregating plans, the value of
accrued benefits and Account Balances shall be
calculated by adding together the results of each
plan as of the Determination Dates that fall within
the same calendar year. In performing this
computation the principles of Section 14.3 shall be
applied.
(C) Each plan in the required aggregation group will be a
Top-Heavy Plan if the group is top-heavy. No plan in
the required aggregation group will be a Top-Heavy
Plan if the group is not top-heavy.
14.5. PERMISSIVE AGGREGATION OF PLANS. A permissive aggregation
group consists of plans of the Company that are required to be aggregated, plus
one or more plans that are not part of the required aggregation group, but that
satisfy the requirements of Code Sections 401(a)(4) and 410 when considered as a
group. In no event will permissively aggregated plans which are not part of the
required aggregation group be considered top-heavy. If, as a result of the
permissive aggregation of plans the entire group of plans is not top-heavy, then
no plan in the permissive aggregation group will be a Top-Heavy Plan. Plans may
be permissively aggregated to avoid being super top-heavy.
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14.6. SPECIAL RULES OF TOP-HEAVY PLANS AND SUPER TOP-HEAVY PLANS.
(A) (I) The allocation of Company contributions and
forfeitures to the account of a Non-Key
Employee for a Plan Year shall equal at
least three (3%) percent of Compensation.
Notwithstanding the foregoing, if the
largest percentage of compensation provided
for any Key Employee is less than three (3%)
percent, then the minimum percentage of
compensation that must be provided for a
Non-Key Employee for a Plan Year is the
largest percentage of compensation provided
for any Key Employee. The preceding sentence
does not apply if this Plan is included in
any required aggregation group and enables a
defined benefit plan included in such group
to meet the requirements of Code Section
401(a)(4) or Section 410. For purposes of
determining the largest percentage of
compensation provided for any Key Employee,
amounts contributed as a result of a salary
reduction agreement must be included. All
defined contribution plans of the Company
and Affiliates shall be treated as a single
plan for purposes of determining the defined
contribution minimum. Neither amounts the
Employee elects to defer under any 401(k)
plan maintained by the Company nor any
Matching Contributions made by the Company
and Affiliates shall be treated as Company
contributions for purposes of determining
minimum required contributions.
The following Non-Key Employees shall
receive the minimum allocation provided
under this subparagraph (2) for a particular
Plan Year:
(1) Participants who are otherwise
eligible for an allocation under
the Plan;
(2) Employees who are Participants but
who have not completed 1,000 Hours
of Service during the Plan Year;
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(3) Employees who would be Participants
but for the failure to make
mandatory contributions to the
Plan; or
(4) Employees who are Participants but
whose compensation is less than the
amount necessary to receive an
allocation under the Plan: however,
(5) Employees who are also Participants
in a defined benefit plan sponsored
by the Company shall receive the
minimum benefit under the defined
benefit plan.
(II) The compensation of a Participant taken into
account under the Plan shall not exceed
$160,000, subject to applicable cost of
living increases.
(B) If the Plan is a Top-Heavy Plan then, in applying the
limitations of Code Section 415, the denominators of
the defined benefit fraction and the defined
contribution fraction shall be determined by
substituting 1.0 for 1.25 as the multiplier for the
Code Section 415 dollar limitation. If the Plan is
not a Super Top-Heavy Plan, this Subsection (b) shall
not apply so long as the minimum benefits required
under Code Section 416 are satisfied.
14.7. SPECIAL DEFINITIONS. For purposes of this article, the
following definitions shall apply:
(A) DETERMINATION DATE. With respect to any Plan Year,
the last day of the preceding Plan Year. In the case
of the first Plan Year of the Plan, the Determination
Date shall be the last day or such Plan Year.
(B) KEY EMPLOYEE. Any Employee or former Employee who at
any time during the Plan Year containing the
Determination Date or any of the four preceding Plan
Years, is or was
(I) An officer of the Company having an annual
compensation from the Company greater than
50% of the
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dollar limitation in effect under Code
Section 415(b)(1)(A) for any such Plan Year,
(II) One of the ten Employees having annual
compensation from the Company of more than
the limitation in effect under Code Section
415(c)(1)(A) and owning (or considered as
owning under Code Section 318) the largest
interests in the Company,
(III) The owner of a five percent or more interest
in the Company, or
(IV) The owner of a one percent or more interest
in the Company who has annual compensation
(as defined in Code Section 415(c)(3) but
including amounts contributed by the Company
pursuant to a salary reduction agreement
which are excludable from the Employee's
gross income under Code 125, 402(a)(8),
402(h) or 403(b)) from the Company for a
Plan Year of more than $160,000, subject to
applicable cost of living increases.
For purposes of clause (i) the number of
officers of the Company considered to be Key
Employees cannot exceed fifty and is further
limited to the greater of three or ten
percent of all Employees (including leased
employees within the meaning of Code Section
414(n)). If a Company has more officers than
the number required to be counted as Key
Employees, the officers to be taken into
account are the Employees who had the
largest annual compensation for the prior
five Plan Year period. For purposes of
clause (ii), if two employees have the same
interest in the Company, the Employee having
the greater annual compensation from the
Company shall be treated as having a larger
interest. The Beneficiary of a Key Employee
shall be treated as a Key Employee for the
applicable portion of the five-year period,
and the Beneficiary of a Non-Key Employee
shall be treated as a Non-Key Employee for
the applicable portion of the five-year
period. For purposes of applying the
foregoing
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limitations, the aggregation rules of Code
Section 414(b), (c) and (m) apply except
with respect to determining ownership. For
purposes of determining ownership under
clauses (iii) and (iv) an Employee shall be
considered as owning an interest in the
Company within the meaning of Code Section
318.
(C) NON-KEY EMPLOYEE. Any Employee who is not a
Key Employee.
(D) ACCOUNT BALANCE. A Participant's Account
Balance and Grandfathered Account Balance.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
January 28, 1999, included in Republic Services, Inc.'s Form 10-K for the year
ended December 31, 1998, and our report dated January 28, 1999, except with
respect to the matters discussed in Note 12, as to which the date is May 3,
1999, included in Republic Services, Inc.'s Prospectus filed May 20, 1999, and
to all references to our Firm included in this registration statement.
Fort Lauderdale, Florida,
June 29, 1999
