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EXHIBIT 4.5
AMENDED AND RESTATED
REPUBLIC SERVICES, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of the Plan is to encourage stock ownership by
employees of the Company in order to increase their identification with the
Company=s goals and secure a proprietary interest in the Company=s success. The
Plan is intended to qualify as an "Employee Stock Purchase Plan" under Section
423 of the Code. The provisions of the Plan shall be construed in a manner
consistent with the requirements of such sections of the Code and the
regulations issued thereunder.
2. DEFINITIONS.
(a) "BOARD" shall mean the Board of Directors of the Company
or a committee of the Board as from time to time appointed by the Board.
(b) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "COMMON STOCK" shall mean the common stock of Republic
Services, Inc., par value $0.01 per share.
(d) "COMPANY" shall mean Republic Services, Inc. and any
Designated Subsidiary of the Company.
(e) "COMPENSATION" shall mean the gross cash compensation
(including, wage, salary, bonus and overtime earnings) paid by the Company or
any Designated Subsidiary to a participant in accordance with the terms of
employment, but excluding all expense allowances and other compensation paid in
a form other than cash.
(f) "DESIGNATED SUBSIDIARY" shall mean any Subsidiary which
has been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
(g) "EMPLOYEE" shall mean any individual who is an employee of
the Company for federal income tax purposes and whose customary employment with
the Company is at least twenty (20) hours per week and more than five (5) months
in any calendar year. For purposes of the Plan, the employment relationship
shall be treated as continuing intact while the individual is on sick leave or
other leave of absence approved by the Company. Where the period of leave
exceeds ninety (90) days and the individual's right to reemployment is not
guaranteed either by statute or by contract, the employment relationship shall
be deemed to have terminated on the 91st day of such leave.
(h) "ENROLLMENT DATE" shall mean the first Trading Day of each
Offering Period.
(i) "EXERCISE DATE" shall mean the last Trading Day of each
Offering Period.
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(j) "FAIR MARKET VALUE" shall mean, as of any date, the
closing sales price of Common Stock on that date as
listed on any established stock exchange or a national market system, including
without limitation the New York Stock Exchange, as reported in THE WALL STREET
JOURNAL or such other source as the Board deems reliable. In the event that Fair
Market Value is to be determined for a day which is not a Trading Day, the Fair
Market Value shall be the closing sales price of the Common Stock on the
immediately preceding Trading Day. In the absence of an established market for
the Common Stock, the Fair Market Value thereof shall be determined in good
faith by the Board.
(k) "OFFERING PERIODS" shall mean the periods during which an
option granted pursuant to the Plan may be exercised.
(l) "PLAN" shall mean this Employee Stock Purchase Plan.
(m) "PURCHASE PRICE" shall mean the exercise price of a share
of Common Stock as determined by the Board, provided however, that such price
shall not be less than eighty-five percent (85%) of the Fair Market Value of a
share of Common Stock on the Enrollment Date or on the Exercise Date, whichever
is less. The Purchase Price may be adjusted by the Board pursuant to Section 17.
(n) "RESERVES" shall mean the number of shares of Common Stock
covered by each option under the Plan which have not yet been exercised and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but not yet placed under option.
(o) "SUBSIDIARY" shall mean any domestic corporation (other
than the Company) which, pursuant to Section 424(f) of the Code, is included in
an unbroken chain of corporations beginning with the Company if, at the
beginning of an Offering Period, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of capital stock in one
of the other corporations in such chain.
(p) "TRADING DAY" shall mean a day on which national stock
exchanges are open for trading.
3. ELIGIBILITY.
(a) Participation in the Plan is voluntary. Each Employee will
be eligible to participate in the Plan on the first day of the month following
the date such employee has completed three (3) consecutive months of employment
with the Company. However, Employees covered by a collective bargaining
agreement in connection with which, after review of the Plan, there was an
affirmative decision by such union not to participate in the Plan are not
permitted to participate in the Plan.
(b) Notwithstanding any provisions of the Plan to the
contrary, no Employee shall be granted an option under the Plan (i) to the
extent that, immediately after the grant, such Employee (or any other person
whose stock would be attributed to such Employee pursuant to Section 424(d)
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of the Code) would own capital stock of the Company or of any Subsidiary and/or
hold outstanding options to purchase such stock possessing five percent (5%) or
more of the total combined voting power or value of all classes of the capital
stock of the Company or of any Subsidiary, or (ii) to the extent that his or her
rights to purchase stock under all employee stock purchase plans of the Company
and its subsidiaries accrues at a rate which exceeds twenty-five thousand
dollars ($25,000) worth of Common Stock (determined at the Fair Market Value of
the shares at the time such option is granted) for each calendar year in which
such option is outstanding at any time.
4. OFFERING PERIODS. The duration and timing of Offering Periods shall
be determined by the Board. In no event may an Offering Period exceed
twenty-seven (27) months.
5. PARTICIPATION.
(a) An eligible Employee may become a participant in the Plan
by completing a subscription agreement authorizing payroll deductions and filing
it with the Company's payroll office prior to the applicable Enrollment Date.
(b) Payroll deductions for a participant shall commence on the
first payroll of the Offering Period following the beginning of such Offering
Period and shall end on the last payroll in the Offering Period to which such
authorization is applicable, unless sooner terminated by the participant.
6. PAYROLL DEDUCTIONS.
(a) At the time a participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on each pay day
during the Offering Period in an amount not exceeding fifteen percent (15%) of
the Compensation which he or she receives on each pay day during the Offering
Period.
(b) All payroll deductions made for a participant shall be
credited to his or her account under the Plan and shall be withheld in whole
percentages only. A participant may not make any additional payments into such
account.
(c) A participant may discontinue his or her participation in
the Plan or may increase or decrease the rate of his or her payroll deductions
during the Offering Period by completing or filing with the Company a new
subscription agreement authorizing a change in payroll deduction rate. The Board
may, in its discretion, limit the number of deduction rate changes during any
Offering Period. The change in rate shall be effective with the first full
payroll period following thirty (30) business days after the Company's receipt
of the new subscription agreement unless the Company elects to process a given
change in participation more quickly. A participant=s subscription agreement
shall remain in effect for successive Offering Periods unless terminated by such
participant.
(d) Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and Section 3(b) hereof, a
participant's payroll deductions may be decreased by the Company to zero percent
(0%) at any time during an Offering Period. Payroll deductions shall recommence
at the rate provided in such participant=s subscription agreement at the
beginning of the first Offering Period which is scheduled to end in the
following calendar year, unless terminated by the participant.
(e) At the time the option is exercised, in whole or in part,
or at the time some or all of the Company's Common Stock issued under the Plan
is disposed of, the participant must make adequate provision for the Company's
federal, state, or other tax withholding obligations, if any, which arise upon
the exercise of the option or the disposition of the Common Stock. At any time,
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the Company may, but shall not be obligated to, withhold from the participant's
Compensation the amount necessary for the Company to meet applicable withholding
obligations, including any withholding required to make available to the Company
any tax deductions or benefits attributable to sale or early disposition of
Common Stock by the Employee.
7. GRANT OF OPTION. On the Enrollment Date of each Offering Period,
each eligible Employee participating in such Offering Period shall be granted an
option to purchase on the Exercise Date during such Offering Period (at the
applicable Purchase Price) up to a number of shares of the Common Stock
determined by dividing such Employee's payroll deductions accumulated prior to
such Exercise Date and retained in the participant's account as of the Exercise
Date by the applicable Purchase Price; provided that in no event shall an
Employee be permitted to purchase during each Offering Period more than two
thousand five hundred (2,500) shares of the Company's Common Stock (subject to
any adjustment pursuant to Section 17 hereof), and provided further that such
purchase shall be subject to the limitations set forth in Sections 3(b) and 18
hereof. The Board may increase or decrease, in its absolute discretion, the
maximum number of shares of the Company's Common Stock an Employee may purchase
during each Offering Period. Exercise of the option shall occur as provided in
Section 8 hereof.
8. EXERCISE OF OPTION.
(a) A participant's option for the purchase of Common Stock
shall be exercised automatically on the Exercise Date (even if such participant
is no longer employed with the Company), and the maximum number of shares
subject to an option shall be purchased for such participant at the applicable
Purchase Price with the accumulated payroll deductions in his or her account.
Fractional shares may be purchased. Any other monies left over in a
participant's account after the Exercise Date shall be returned to the
participant.
(b) If the Board determines that, on a given Exercise Date,
the number of shares with respect to which options are to be exercised may
exceed (i) the number of shares of Common Stock that were available for sale
under the Plan on the Enrollment Date of the applicable Offering Period, or (ii)
the number of shares available for sale under the Plan on such Exercise Date,
the Board may in its sole discretion provide that the Company shall make a pro
rata allocation of the shares of Common Stock available for purchase on such
Enrollment Date or Exercise Date, as applicable, in as uniform a manner as shall
be practicable and as it shall determine in its sole discretion to be equitable
among all participants exercising options to purchase Common Stock on such
Exercise Date, and continue all Offering Periods then in effect, or provide that
the Company shall make a pro rata allocation of the shares available for
purchase on such Enrollment Date or Exercise Date, as applicable, in as uniform
a manner as shall be practicable and as it shall determine in its sole
discretion to be equitable among all participants exercising options to purchase
Common Stock on such Exercise Date, and terminate any or all Offering Periods
then in effect pursuant to Section 18 hereof. The Company may make pro rata
allocation of the shares available on the Enrollment Date of any applicable
Offering Period pursuant to the preceding sentence, notwithstanding any
authorization of additional shares for issuance under the Plan by the Company's
shareholders subsequent to such Enrollment Date.
9. DELIVERY. As promptly as practicable after each Exercise Date on
which a purchase of shares occurs, the Company shall arrange the delivery to
each participant, as appropriate, the shares of Common Stock purchased upon
exercise of his or her option. At the Board=s sole election, the Company may
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deliver such shares in certificate or book entry form. Alternatively, the Board
may issue and deliver certificates for the number of shares of Common Stock
purchased by all participants to a firm which is a member of the National
Association of Securities Dealers, as selected by the Board, which shares shall
be maintained by such firm in a separate brokerage account for each participant.
10. WITHDRAWAL.
A participant may not withdraw any payroll deductions once they are
credited to his or her account.
11. INTEREST.
No interest shall accrue on the payroll deductions of a participant in
the Plan.
12. STOCK.
(a) Subject to adjustment upon changes in capitalization of
the Company as provided in Section 17 hereof, the maximum number of shares of
the Company's Common Stock which shall be made available for sale under the Plan
shall be one million (1,000,000) shares.
(b) The participant shall have no interest or voting right in
shares covered by his option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan
shall be registered in the name of the participant. (d)abShares may not be sold
or transferred by a participant (or the participant's estate) for 180 days
following the Exercise Date.
13. ADMINISTRATION. The Plan shall be administered by the Board. The
Board shall have full and exclusive discretionary authority to construe,
interpret and apply the terms of the Plan, to determine eligibility and to
adjudicate all disputed claims filed under the Plan. Every finding, decision and
determination made by the Board shall, to the full extent permitted by law, be
final and binding upon all parties. The Board may delegate the authority and
responsibility for the day-to-day administrative or ministerial tasks of the
Plan to a benefits representative, including a brokerage firm or other third
party engaged for such purpose.
14. TRANSFERABILITY. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will and the laws of descent and
distribution) by the participant. Any such attempt at assignment, transfer,
pledge or other disposition shall be without effect.
15. USE OF FUNDS. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose, and
the Company shall not be obligated to segregate such payroll deductions.
16. REPORTS. Individual accounts shall be maintained for each
participant in the Plan. Statements of account shall be given to participating
Employees at least annually, which statements shall set forth the amounts of
payroll deductions, the Purchase Price, the number of shares purchased and the
remaining cash balance, if any.
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17. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION,
LIQUIDATION, MERGER OR ASSET SALE.
(a) CHANGES IN CAPITALIZATION. Subject to any required action
by the shareholders of the Company, the Reserves, the maximum number of shares
each participant may purchase each Offering Period (pursuant to Section 7), as
well as the price per share and the number of shares of Common Stock covered by
each option under the Plan which has not yet been exercised shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of shares of Common Stock affected without
receipt of consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration". Such adjustment shall be made by
the Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an option.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, the Offering Period then in progress
shall be shortened by setting a new Exercise Date (the "New Exercise Date"), and
shall terminate immediately prior to the consummation of such proposed
dissolution or liquidation, unless provided otherwise by the Board. The New
Exercise Date shall be before the date of the Company's proposed dissolution or
liquidation. The Board shall notify each participant in writing, at least ten
(10) business days prior to the New Exercise Date, that the Exercise Date for
the participant's option has been changed to the New Exercise Date and that the
participant's option shall be exercised automatically on the New Exercise Date.
(c) MERGER OR ASSET SALE. In the event of a proposed sale of
all or substantially all of the assets of the Company, or the merger of the
Company with or into another corporation, each outstanding option shall be
assumed or an equivalent option substituted by the successor corporation or a
Parent or Subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the option, any
Offering Periods then in progress shall be shortened by setting a new Exercise
Date (the "New Exercise Date") and any Offering Periods then in progress shall
end on the New Exercise Date. The New Exercise Date shall be before the date of
the Company's proposed sale or merger. The Board shall notify each participant
in writing, at least ten (10) business days prior to the New Exercise Date, that
the Exercise Date for the participant's option has been changed to the New
Exercise Date and that the participant's option shall be exercised automatically
on the New Exercise Date.
18. AMENDMENT OR TERMINATION.
(a) The Board of Directors of the Company may at any time and
for any reason terminate or amend the Plan. Except as provided in Section 17
hereof, no such termination can affect options previously granted, provided that
an Offering Period may be terminated by the Board of Directors on any Exercise
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Date if the Board determines that the termination of the Offering Period or the
Plan is in the best interests of the Company and its shareholders. Except as
provided in Section 17 and this Section 18 hereof, no amendment may make any
change in any option theretofore granted which adversely affects the rights of
any participant. To the extent necessary to comply with Section 423 of the Code
(or any successor rule or provision or any other applicable law, regulation or
stock exchange rule), the Company shall obtain shareholder approval in such a
manner and to such a degree as required.
(b) Without shareholder consent and without regard to whether
any participant rights may be considered to have been "adversely affected," the
Board shall be entitled to change the Offering Periods, limit the frequency
and/or number of changes in the amount withheld during an Offering Period,
establish the exchange ratio applicable to amounts withheld in a currency other
than U.S. dollars, permit payroll withholding in excess of the amount designated
by a participant in order to adjust for delays or mistakes in the Company's
processing of properly completed withholding elections, establish reasonable
waiting and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of Common Stock for each
participant properly correspond with amounts withheld from the participant's
Compensation, and establish such other limitations or procedures as the Board
determines in its sole discretion advisable which are consistent with the Plan.
(c) In the event the Board determines that the ongoing
operation of the Plan may result in unfavorable financial accounting
consequences, the Board may, in its discretion and, to the extent necessary or
desirable, modify or amend the Plan to reduce or eliminate such accounting
consequence including, but not limited to:
(i) altering the Purchase Price for any Offering
Period including an Offering Period underway at the time of the change in
Purchase Price;
(ii) shortening any Offering Period so that Offering
Period ends on a new Exercise Date, including an Offering Period underway at the
time of the Board action; and
(iii) allocating shares.
Such modifications or amendments shall not require stockholder approval
or the consent of any Plan participants.
19. NOTICES. All notices or other communications by a participant to
the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company at the location,
or by the person, designated by the Company for the receipt thereof.
20. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
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Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, the rules and regulations promulgated thereunder, and the requirements
of any stock exchange upon which the shares may then be listed, and shall be
further subject to the approval of counsel for the Company with respect to such
compliance.
As a condition to the exercise of an option, the Company may require
the person exercising such option to represent and warrant at the time of any
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned applicable provisions of law. Additionally, the Company may
require that shares acquired through the Plan be held by the participant for a
minimum period of time before such shares may be transferred. The Company may
require a legend setting forth any applicable transfer restrictions to be
stamped or otherwise written on the certificates of shares purchased through the
Plan.
21. TERM OF PLAN. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company. It shall continue in effect for a term of ten (10)
years unless sooner terminated under Section 18 hereof.
22. MISCELLANEOUS.
(a) PURCHASE RIGHTS CARRY SAME RIGHTS AND PRIVILEGES. To the
extent required to comply with the requirements of Section 423 of the Code, all
Employees shall have the same rights and privileges hereunder.
(b) ADMINISTRATIVE COSTS. The Company shall pay the
administrative expenses associated with the operation of the Plan.
(c) NO EMPLOYMENT RIGHTS. The Plan does not, directly or
indirectly, create in any person any right with respect to continuation of
employment by the Company or any Subsidiary, and it shall not be deemed to
interfere in any way with the Company's or any Subsidiary=s right to terminate,
or otherwise modify, any employee's employment at any time.
(d) HEADINGS. Any headings or subheadings in the Plan are
inserted for convenience of reference only and are to be ignored in the
construction or interpretation of any provisions hereof.
(e) GENDER AND TENSE. Any words herein used in the masculine
shall be read and construed in the feminine when appropriate. Words in the
singular shall be read and construed as though in the plural, and vice-versa,
when appropriate.
(f) GOVERNING LAW. The Plan shall be governed and construed in
accordance with the laws of the State of Delaware to the extent not preempted by
federal law.
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(g) REGULATORY APPROVALS AND COMPLIANCE. The Company=s
obligation to sell and deliver Common Stock under the Plan is at all times
subject to all approvals of and compliance with the (i) regulations of any
applicable stock exchanges and (ii) any governmental authorities required in
connection with the authorization, issuance, sale or delivery of such Common
Stock, as well as federal, state and foreign securities laws.
(h) SEVERABILITY. In the event that any provision of the Plan
shall be held illegal, invalid, or unenforceable for any reason, such provision
shall be fully severable, but shall not affect the remaining provisions of the
Plan, and the Plan shall be construed and enforced as if the illegal, invalid,
or unenforceable provision had not been included herein.
(i) NO GUARANTEE OF TAX CONSEQUENCES. The Company does not
make any commitment or guarantee that any particular tax treatment shall apply
or be available to any person participating or eligible to participate in the
Plan, including, without limitation, any tax imposed by the United States or any
state thereof, any estate tax, or any tax imposed by a foreign government.
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