As filed with the Securities and Exchange Commission on January 11, 2000
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------------------------
ALLIED WASTE INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 88-02286366
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
15880 North Greenway-Hayden Loop, Suite 100
Scottsdale, Arizona 85260
(480) 627-2700
Allied Waste Industries, Inc. 1991 Incentive Stock Plan
(Full title of the plan)
Henry L. Hirvela
Allied Waste Industries, Inc.
15880 North Greenway-Hayden Loop, Suite 100
Scottsdale, Arizona 85260
(480) 627-2700
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================== ================== =================== ================== ======================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered (1) Per Share (2) Offering Price (2) Registration Fee
- ---------------------------------------- ------------------ ------------------- ------------------ ======================
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 10,827,133 $7.75 $83,910,281 $22,152
======================================== ================== =================== =================== ======================
<FN>
(1) Plus such additional number of shares as may be required in the event
of a stock dividend, stock split, recapitalization, or other similar event
in accordance with Rule 416 of the Securities Act of 1933, as amended (the
"Securities Act").
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) of the Securities Act based upon the average of the
high and low prices of the Common Stock, as reported on the New York Stock
Exchange on January 7, 2000.
</FN>
</TABLE>
<PAGE>
PART II
EXPLANATORY NOTE
This Registration Statement is filed pursuant to Instruction E to Form
S-8 to register additional common stock of Allied Waste Industries, Inc., par
value $.01 per share (the "Common Stock"), issuable under Allied Waste's amended
and restated 1991 Stock Incentive Plan (the "Plan"). On August 23, 1991, the
Company registered 825,000 common shares on a Registration Statement (File No.
33-42354) (the "1991 Form S-8"), and on December 11, 1998, the Company
registered an additional 9,211,784 common shares on a Registration Statement
(File No. 333-68815) (the "1998 Form S-8") which were issuable under the Plan.
Pursuant to Instruction E to Form S-8, the registrant hereby
incorporates by reference into this Registration Statement the contents of the
1991 Form S-8 and the 1998 Form S-8 and all amendments thereto.
Item 8. Exhibits
Exhibit No. Description of Exhibit
4.1* -- Allied Waste Industries, Inc. Amended and Restated 1991
Incentive Stock Plan
4.2* -- First Amendment to the Restated Allied Waste Industries, Inc.
1991 Incentive Stock Plan (as amended in and restated in 1999)
4.3* -- Second Amendment to the Restated Allied Waste Industries, Inc.
1991 Incentive Stock Plan (as amended in and restated in 1999)
5.1* -- Opinion of Steven H. Helm
23.1* -- Consent of Arthur Andersen LLP, Phoenix
23.2* -- Consent of Arthur Andersen LLP, Houston
23.3* -- Consent of Steven H. Helm (included in Exhibit 5.1)
24.1* -- Power of Attorney (filed as part of the signature page to the
Form S-8 and incorporated herein by reference)
* Filed herewith.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Scottsdale, State of Arizona on January 11, 2000.
ALLIED WASTE INDUSTRIES, iNC.
By: /s/ Henry L. Hirvela
-----------------------------------------
Henry L. Hirvela
Vice President - Chief Financial Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas H. Van Weelden, Henry L. Hirvela,
James S. Eng, and each of them (with full power to each of them to act alone),
his true and lawful attorney-in-fact and agent with full powers of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement
(including post-effective amendments), and any and all additional Registration
Statements pursuant to Instruction E to Form S-8, and any and all amendments
thereto (including post-effective amendments), and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same, as fully to all intents and purposes as he might or could
do in person and hereby ratifies and confirms all his said attorneys-in-fact and
agents, each acting alone, or his or their substitutes may lawfully do or cause
to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------- ------------------------------------ -------------------------
<S> <C> <C>
January 11, 2000
/s/ Thomas H. Van Weelden Chairman of the Board of Directors,
- -------------------------------------- President and Chief Executive Officer
Thomas H. Van Weelden (Principal Executive Officer)
January 11, 2000
/s/ Henry L. Hirvela Vice President -
- -------------------------------------- Chief Financial Officer
Henry L. Hirvela (Principal Financial Officer)
January 11, 2000
/s/ James S. Eng Corporate Controller
- --------------------------------------
James S. Eng (Principal Accounting Officer)
January 11, 2000
/s/ Nolan Lehmann Director
- --------------------------------------
Nolan Lehmann
January 11, 2000
/s/ Michael Gross Director
- --------------------------------------
Michael Gross
January 11, 2000
/s/ David B. Kaplan Director
- --------------------------------------
David B. Kaplan
January 11, 2000
/s/ Antony P. Ressler Director
- --------------------------------------
Antony P. Ressler
January 11, 2000
/s/ Howard A. Lipson
- -------------------------------------- Director
Howard A. Lipson
January 11, 2000
/s/ Dennis Hendrix Director
- --------------------------------------
Dennis Hendrix
January 11, 2000
/s/ Roger A. Ramsey Director
- --------------------------------------
Roger A. Ramsey
January 05, 2000
/s/ Warren B. Rudman Director
- --------------------------------------
Warren B. Rudman
January 11, 2000
/s/ Vincent Tese Director
- --------------------------------------
Vincent Tese
January 11, 2000
/s/ David Blitzer Director
- ---------------------------------------
David Blitzer
</TABLE>
ALLIED WASTE INDUSTRIES, INC.
AMENDED AND RESTATED 1991 INCENTIVE STOCK PLAN
Effective September 8, 1999
1. Purpose of the Plan
The Plan is intended to provide a means through which the Company and
its subsidiaries may attract able persons to enter into the employ of the
Company or its subsidiaries, and to promote the interests of the Company by
providing the employees and consultants of the Company or its subsidiaries, who
are largely responsible for the management, growth and protection of the
business of the Company, with a proprietary interest in the Company, thereby
strengthening their concern for the welfare of the Company and their desire to
remain in its employ. A further purpose of the Plan is to provide such persons
with additional incentive and reward opportunities to enhance the profitable
growth of the Company.
The Plan amends and restates the Company's 1991 Incentive Stock Plan
("Former Plan"). Upon the effectiveness of the Plan, no further Incentive Awards
shall be granted under the Former Plan, but all outstanding Incentive Awards
granted under the Former Plan shall remain outstanding pursuant to the terms and
provisions of the agreements (if any) relating to their grant.
2. Definitions
As used in the Plan, the following definitions apply to the terms
indicated below.
(a) "Board of Directors" means the Board of Directors of Allied
Waste Industries, Inc.
(b) "Cause," when used in connection with the termination of a
Participant's employment with the Company, means the termination of the
Participant's employment by the Company by reason of (i) the conviction of the
Participant by a court of competent jurisdiction as to which no further appeal
can be taken of a crime involving moral turpitude; (ii) the proven commission by
the Participant of an act of fraud upon the Company; (iii) the willful and
proven misappropriation of any funds or property of the Company by the
Participant; (iv) the willful, continued and unreasonable failure by the
Participant to perform duties assigned to him and agreed to by him; (v) the
knowing engagement by the Participant in any direct, material conflict of
interest with the Company without compliance with the Company's conflict of
interest policy, if any, then in effect; (vi) the knowing engagement by the
Participant, without the written approval of the Board of Directors of the
Company, in any activity which competes with the business of the Company or
which would result in a material injury to the Company; or (vii) the knowing
engagement in any activity which would constitute a material violation of the
provisions of the Company's Policies and Procedures Manual, if any, then in
effect.
(c) "Cash Bonus" means an award of a bonus payable in cash pursuant to
Section 11.
<PAGE>
(d) "Change in Control" means (i) a "change in control" of the Company,
as that term is contemplated in the federal securities laws; or (ii) the
occurrence of any of the following events: (A) any Person becomes, after the
effective date of this Plan, the "beneficial owner" (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of securities of
the Company representing 20% or more of the combined voting power of the
Company's then outstanding securities; provided, that the Board of Directors (as
constituted immediately prior to such person becoming such a beneficial owner)
may determine, in its sole discretion, that a Change in Control has not
occurred; and provided, further, that the acquisition of additional voting
securities, after the effective date of this Plan, by any Person who is, as of
the effective date of this Plan, the beneficial owner, directly or indirectly,
of 20% or more of the combined voting power of the Company's then outstanding
securities, shall not constitute a "Change in Control" of the Company for
purposes of this Section 2(d), (B) a majority of individuals who are nominated
by the Board of Directors for election to the Board of Directors on any date,
fail to be elected to the Board of Directors as a direct or indirect result of
any proxy fight or contested election for positions on the Board of Directors or
(C) the Board of Directors determines in its sole and absolute discretion that
there has been a change in control of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended from
time to time. Reference in the Plan to any Code Section shall be deemed to
include any amendments or successor provisions to any Section and any treasury
regulations promulgated thereunder.
(f) "Committee" means the Compensation Committee of the Board of
Directors or such other committee as the Board of Directors shall appoint from
time to time to administer the Plan.
(g) "Common Stock" means the Company's common stock, par value $.01 per
share.
(h) "Company" means Allied Waste Industries, Inc., a Delaware
corporation, and each of its Subsidiaries, and its successors.
(i) "Consultant" means any person who is engaged by the Company or any
Subsidiary to render consulting services and is compensated for such services.
(j) "Employee" means any person who is an employee of the Company or
any Subsidiary within the meaning of Code Section 3401(c) and the applicable
interpretive authority thereunder.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
<PAGE>
(l) "Fair Market Value" of a share of Common Stock on any date is (i)
the closing sales price on the immediately preceding business day of a share of
Common Stock as reported on the principal securities exchange on which shares of
Common Stock are then listed or admitted to trading; (ii) if not so reported,
the average of the closing bid and asked prices for a share of Common Stock on
the immediately preceding business day as quoted on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or (iii) if not quoted
on NASDAQ, the average of the closing bid and asked prices for a share of Common
Stock as quoted by the National Quotation Bureau's "Pink Sheets" or the National
Association of Securities Dealers' OTC Bulletin Board System. If the price of a
share of Common Stock is not so reported, the Fair Market Value of a share of
Common Stock shall be determined by the Committee in its absolute discretion.
(m) "Incentive Award" means an Option, a share of Restricted Stock, a
Performance Award, a share of Phantom Stock, a Stock Bonus or Cash Bonus granted
pursuant to the terms of the Plan.
(n) "Incentive Stock Option" means an Option which is an "incentive
stock option" within the meaning of Code Section 422 and which is identified as
an Incentive Stock Option in the agreement by which it is evidenced.
(o) "Issue Date" means the date established by the Committee on which
certificates representing shares of Restricted Stock shall be issued by the
Company pursuant to the terms of Section 7(d).
(p) "Non-Employee Director" means a member of the Board who (i) is not
at the time in question an officer or Employee of the Company or any Subsidiary;
(ii) has not received compensation for serving as a consultant or in any other
non-director capacity or who had an interest in any transaction with the Company
or any Subsidiary that would exceed the $60,000 threshold for which disclosure
would be required under Item 404(a) of Regulation S-K or (iii) has not been
engaged through another party in a business relationship with the Company or any
Subsidiary that would be disclosable under Item 404(b) of Regulation S-K.
(q) "Non-Qualified Stock Option" means an Option which is not an
Incentive Stock Option and which is identified as a Non-Qualified Stock Option
in the agreement by which it is evidenced.
(r) "Option" means an option to purchase shares of Common Stock of the
Company granted pursuant to Section 6. Each Option shall be identified as either
an Incentive Stock Option or a Non-Qualified Stock Option in the agreement by
which it is evidenced.
(s) "Parent" means a "parent corporation" of the Company, whether now
or hereafter existing, as defined in Code Section 424(e).
(t) "Participant" means an Employee or Consultant who is eligible to
participate in the Plan and to whom an Incentive Award is granted pursuant to
the Plan and, upon his death, his successors, heirs, executors and
administrators, as the case may be, to the extent permitted herein.
(u) "Performance Award" means an award payable in cash or Common Stock,
which award is granted pursuant to Section 8 and subject to the terms and
conditions contained herein.
<PAGE>
(v) "Person" means a "person" as such term is used in Sections 13(d)
and 14(d) of the Exchange Act and the rules and regulations in effect from time
to time thereunder.
(w) A share of "Phantom Stock" represents the right to receive in cash
the Fair Market Value of a share of Common Stock of the Company, which right is
granted pursuant to Section 9 and subject to the terms and conditions contained
herein.
(x) "Plan" means the Allied Waste Industries, Inc. Amended and Restated
1991 Incentive Plan, as it may be amended from
time to time.
(y) "Qualified Domestic Relations Order" means a qualified domestic
relations order as defined in the Code, Title I of the Employee Retirement
Income Security Act, or in the rules and regulations as may be in effect from
time to time thereunder.
(z) Share of "Restricted Stock" means a share of Common Stock which is
granted pursuant to the terms of Section 7 and which is subject to the
restrictions set forth in Section 7(c) for so long as such restrictions continue
to apply to such share.
(aa) "Securities Act" means the Securities Act of 1933, as amended from
time to time.
(bb) "Stock Bonus" means a grant of a bonus payable in shares of Common
Stock pursuant to Section 10.
(cc) "Subsidiary" or "Subsidiaries" mean any and all corporations in
which, at the pertinent time, the Company owns, directly or indirectly, stock
vested with more than 50% of the total combined voting power of all classes of
stock of such corporations within the meaning of Code Section 424(f).
(dd) "Vesting Date" means the date established by the Committee on
which a share of Restricted Stock or Phantom Stock may vest.
3. Stock Subject to the Plan
Under the Plan, the Committee may grant to Participants (a) Options;
(b) shares of Restricted Stock; (c) Performance Awards; (d) shares of Phantom
Stock; (e) Stock Bonuses and (f) Cash Bonuses.
<PAGE>
The Committee may grant Options, shares of Restricted Stock,
Performance Awards, shares of Phantom Stock and Stock Bonuses under the Plan
with respect to a number of shares of Common Stock that in the aggregate at any
time does not exceed the greater of (a) 750,000 shares or (b) 7.5% of the shares
of Common Stock issued and outstanding as reflected on the Company's stock
transfer records on the final day of the previous fiscal quarter. The grant of a
Cash Bonus shall not reduce the number of shares of Common Stock with respect to
which Options, shares of Restricted Stock, Performance Awards, shares of Phantom
Stock or Stock Bonuses may be granted pursuant to the Plan.
If any outstanding Option expires, terminates or is canceled for any
reason, the shares of Common Stock subject to the unexercised portion of such
Option shall again be available for grant under the Plan. If any shares of
Restricted Stock or Phantom Stock, or any shares of Common Stock granted as a
Performance Award or a Stock Bonus are forfeited or canceled for any reason,
such shares shall again be available for grant under the Plan.
Shares of Common Stock issued under the Plan may be either newly issued
or treasury shares, at the discretion of the Committee.
4. Administration of the Plan
The Plan shall be administered by the Board or by a Committee of not
less than two Non-Employee Directors who shall be appointed by the Board. For
purposes of grants and awards pursuant to, and administration of this Plan
under, Sections 4 through 24, the terms "Committee" and "Board" shall be used
interchangeably.
The Committee shall from time to time designate the key Employees and
Consultants who shall be granted Incentive Awards and the amount and type of
such Incentive Awards.
The Committee shall have full authority to administer the Plan,
including authority to interpret and construe any provision of the Plan and the
terms of any Incentive Award issued under it and to adopt such rules and
regulations for administering the Plan as it may deem necessary. Decisions of
the Committee shall be final and binding on all parties.
The Committee may, in its absolute discretion (a) accelerate the date
on which any Option granted under the Plan becomes exercisable; (b) extend the
date on which any Option granted under the Plan ceases to be exercisable; (c)
accelerate the Vesting Date or Issue Date, or waive any condition imposed
pursuant to Section 7(b), with respect to any share of Restricted Stock granted
under the Plan and (d) accelerate the Vesting Date or waive any condition
imposed pursuant to Section 9, with respect to any share of Phantom Stock
granted under the Plan.
In addition, the Committee may, in its absolute discretion, grant
Incentive Awards to Participants on the condition that such Participants
surrender to the Committee for cancellation such other Incentive Awards
(including, without limitation, Incentive Awards with higher exercise prices) as
the Committee specifies. Notwithstanding Section 3, Incentive Awards granted on
the condition of surrender of outstanding Incentive Awards shall not count
against the limits set forth in such Section 3 until such time as such Incentive
Awards are surrendered.
<PAGE>
Except as provided in Section 6(e)(iv), whether an authorized leave of
absence, or absence in military or government service, shall constitute
termination of employment shall be determined by the Committee in its absolute
discretion.
No member of the Committee shall be liable for any action, omission or
determination relating to the Plan, and the Company shall indemnify and hold
harmless each member of the Committee and each other director or employee of the
Company to whom any duty or power relating to the administration or
interpretation of the Plan has been delegated from and against any cost or
expense (including attorneys' fees) or liability (including any sum paid in
settlement of a claim with the approval of the Committee) arising out of any
action, omission or determination relating to the Plan, unless, in either case,
such action, omission or determination was taken or made by such member,
director or employee in bad faith and without reasonable belief that it was in
the best interests of the Company.
The Committee or Board may delegate to an officer of the Corporation
the authority to make decisions pursuant to this Plan; provided, that no such
delegation may be made that would cause any award or other transaction under the
Plan to cease to be exempt from Section 16(b) of the Exchange Act. The Committee
may authorize any one or more of its members or any officer of the Company to
execute and deliver documents on behalf of the Committee.
5. Eligibility
The persons who shall be eligible to receive Incentive Awards pursuant
to the Plan shall be (a) those Employees who are largely responsible for the
management, growth and protection of the business of the Company or any
Subsidiary (including officers of the Company, whether or not they are directors
of the Company) or (b) any Consultant, as the Committee, in its absolute
discretion, shall select from time to time; provided, however, Incentive Stock
Options may only be granted to Employees.
6. Options
The Committee may grant Options pursuant to the Plan, which Options
shall be evidenced by agreements in such form as the Committee shall from time
to time approve. Options shall comply with and be subject to the following terms
and conditions.
(a) Identification of Options. All Options granted under the Plan shall
be clearly identified in the agreement evidencing such Options as either
Incentive Stock Options or as Non-Qualified Stock Options.
(b) Exercise Price. The exercise price of any Option granted under the
Plan shall be such price as the Committee shall determine on the date on which
such Option is granted; provided, that such price shall be not less than 100% of
the Fair Market Value of a share of Common Stock on the date on which such
Option is granted, subject to (i) the restrictions provided in Section 6(d) and
(ii) the adjustments provided in Section 12.
<PAGE>
(c) Term and Exercise of Options
(i) Each Option shall be exercisable on such date or dates,
during such period and for such number of shares of Common Stock as
shall be determined by the Committee on the day on which such Option is
granted and set forth in the agreement evidencing the Option; provided,
however, that (A) subject to the restrictions provided in Section 6(d),
no Option shall be exercisable after the expiration of ten years from
the date such Option was granted and (B) no Option shall be exercisable
until six months after the date of grant; and, provided, further, that
each Option shall be subject to earlier termination, expiration or
cancellation as provided in the Plan.
(ii) Each Option shall be exercisable in whole or in part with
respect to whole shares of Common Stock. The partial exercise of an
Option shall not cause the expiration, termination or cancellation of
the remaining portion thereof. Upon the partial exercise of an Option,
the agreement evidencing such Option shall be returned to the
Participant exercising such Option together with the delivery of the
certificates described in Section 6(c)(v).
(iii) An Option shall be exercised by delivering notice to the
Company's principal office, to the attention of its Secretary, no fewer
than five business days in advance of the effective date of the
proposed exercise. Such notice shall be accompanied by the agreement
evidencing the Option, shall specify the number of shares of Common
Stock with respect to which the Option is being exercised and the
effective date of the proposed exercise, and shall be signed by the
Participant. The Participant may withdraw such notice at any time prior
to the close of business on the business day immediately preceding the
effective date of the proposed exercise, in which case such agreement
shall be returned to the Participant. Payment for shares of Common
Stock purchased upon the exercise of an Option shall be made on the
effective date of such exercise either (A) in cash, by certified check,
bank cashier's check or wire transfer, (B) subject to the approval of
the Committee, in shares of Common Stock owned by the Participant and
valued at their Fair Market Value on the effective date of such
exercise, (C) subject to the approval of the Committee, in the form of
a "cashless exercise" (as described below) or (D) subject to the
approval of the Committee, in any combination of the foregoing. Any
payment in shares of Common Stock shall be effected by the delivery of
such shares to the Secretary of the Company, duly endorsed in blank or
accompanied by stock powers duly executed in blank, together with any
other documents and evidences as the Secretary of the Company shall
require from time to time.
The cashless exercise of an Option shall be pursuant
to procedures whereby the Participant by written notice, directs (A) an
immediate market sale or margin loan respecting all or a part of the
shares of Common Stock to which he is entitled upon exercise pursuant
to an extension of credit by the Company to the Participant of the
exercise price, (B) the delivery of the shares of Common Stock directly
from the Company to a brokerage firm and (C) delivery of the exercise
price from the sale or the margin loan proceeds from the brokerage firm
directly to the Company.
<PAGE>
(iv) Any Option granted under the Plan may be exercised by a
broker-dealer acting on behalf of a Participant if (A) the
broker-dealer has received from the Participant or the Company a duly
endorsed agreement evidencing such Option and instructions signed by
the Participant requesting the Company to deliver the shares of Common
Stock subject to such Option to the broker-dealer on behalf of the
Participant and specifying the account into which such shares should be
deposited, (B) adequate provision has been made with respect to the
payment of any withholding taxes due upon such exercise and (C) the
broker-dealer and the Participant have otherwise complied with Section
220.3(e)(4) of Regulation T, 12 CFR Part 220.
(v) Certificates for shares of Common Stock purchased upon the
exercise of an Option shall be issued in the name of the Participant or
permitted transferee of the Participant and delivered to the
Participant or permitted transferee as soon as practicable following
the effective date on which the Option is exercised; provided, however,
that such delivery shall be effected for all purposes when a stock
transfer agent of the Company shall have deposited such certificates in
the United States mail, addressed to the Participant or permitted
transferee.
(vi) Except as set forth in this Section 6(c)(vi), during the
lifetime of a Participant, each Option granted to him shall be
exercisable only by him or a broker-dealer acting on his behalf
pursuant to Section 6(c)(iv). No Option shall be assignable or
transferable for value. Each Option may be assigned by a Participant by
will or by the laws of descent and distribution, or pursuant to a
Qualified Domestic Relations Order. Non-Qualified Stock Options may be
assigned to: (A) a child, stepchild, grandchild, sibling, niece,
nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law or sister-in-law, including adoptive relationships, (B)
any person sharing the Participant's household (other than a tenant or
employee), (C) a trust in which the persons described in (A) or (B) (or
the Participant) hold more than 50% of the beneficial interest or (D) a
private foundation in which the persons described in (A) or (B) (or the
Participant) own more than 50% of the voting interests. A transfer to
any entity in which more than 50% of the voting interests are owned by
the persons described in (A) or (B) (or the Participant) in exchange
for an interest in that entity shall not constitute a transfer for
value.
(d) Limitations on Grant of Incentive Stock Options
<PAGE>
(i) The aggregate Fair Market Value of shares of Common Stock
with respect to which "incentive stock options" (within the meaning of
Code Section 422, without regard to Code Section 422(d)) are
exercisable for the first time by a Participant during any calendar
year under the Plan (and any other stock option plan of the Company, or
of its Parent or any Subsidiary) shall not exceed $100,000. Such Fair
Market Value shall be determined as of the date on which each such
Incentive Stock Option is granted. If such aggregate Fair Market Value
of shares of Common Stock underlying such Incentive Stock Options
exceeds $100,000, then Incentive Stock Options granted hereunder to
such Participant shall, to the extent and in the order required by
Regulations promulgated under the Code (or any other authority having
the force of Regulations), automatically be deemed to be Non-Qualified
Stock Options, but all other terms and provisions of such Incentive
Stock Options shall remain unchanged. In the absence of such
Regulations (and authority), or if such Regulations (or authority)
require or permit a designation of the options which shall cease to
constitute Incentive Stock Options, the Incentive Stock Options shall,
to the extent of such excess and in the order in which they were
granted, automatically be deemed to be Non-Qualified Stock Options, but
all other terms and provisions of such Incentive Stock Options shall
remain unchanged.
(ii) No Incentive Stock Option may be granted to an individual
if, at the time of the proposed grant, such individual owns stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company, or of its Parent or any Subsidiary,
unless (A) the exercise price of such Incentive Stock Option is at
least 110% of the Fair Market Value of a share of Common Stock at the
time such Incentive Stock Option is granted and (B) such Incentive
Stock Option is not exercisable after the expiration of five years from
the date such Incentive Stock option is granted.
(e) Effect of Termination of Employment
(i) If the employment of a Participant with the Company shall
terminate for any reason other than Cause, "permanent and total
disability" (within the meaning of Code Section 22(e)(3)) or the death
of the Participant (A) Options granted to such Participant, to the
extent that they were exercisable at the time of such termination,
shall remain exercisable until the expiration of one month after such
termination, on which date they shall expire and (B) Options granted to
such Participant, to the extent that they were not exercisable at the
time of such termination, shall expire at the close of business on the
date of such termination; provided, however, that no Option shall be
exercisable after the expiration of its term.
(ii) If the employment of a Participant with the Company shall
terminate as a result of the "permanent and total disability" (within
the meaning of Code Section 22(e)(3)) or the death of the Participant
(A) Options granted to such Participant, to the extent that they were
exercisable at the time of such termination, shall remain exercisable
until the expiration of one year after such termination, on which date
they shall expire and (B) Options granted to such Participant, to the
extent that they were not exercisable at the time of such termination,
shall expire at the close of business on the date of such termination;
provided, however, that no Option shall be exercisable after the
expiration of its term.
(iii) In the event of the termination of a Participant's
employment for cause, all outstanding Options granted to such
Participant shall expire at the commencement of business on the date of
such termination.
<PAGE>
(iv) A Participant's employment with the Company shall be
deemed terminated if the Participant's leave of absence (including
military or such leave or other bona fide leave of absence) extends for
more than 90 days and the Participant's continued employment with the
Company is not guaranteed by contract or statute.
(f) Acceleration of Exercise Date Upon Change in Control. Upon the
occurrence of a Change in Control, each Option granted under the Plan and
outstanding at such time shall become fully and immediately exercisable and
shall remain exercisable until its expiration, termination or cancellation
pursuant to the terms of the P1an.
(g) Buyout of Options. The Committee may at any time (i) offer to buy
out for a payment of cash or cash equivalents an Option previously granted, or
(ii) authorize a holder of an Option to elect to cash out an Option previously
granted, in either case at such time and based upon such terms and conditions as
the Committee shall establish.
7. Restricted Stock
The Committee may grant shares of Restricted Stock pursuant to the Plan
for such consideration as the Committee may determine, including (without
limitation) cash, cash equivalents, full-recourse promissory notes, past
services or future services. Each grant of shares of Restricted Stock shall be
evidenced by an agreement in such form as the Committee shall from time to time
approve. Each grant of shares of Restricted Stock shall comply with and be
subject to the following terms and conditions.
(a) Issue Date and Vesting Date. At the time of the grant of shares of
Restricted Stock, the Committee shall establish an Issue Date or Issue Dates and
a Vesting Date or Vesting Dates with respect to such shares. The Committee may
divide such shares into classes and assign a different Issue Date and/or Vesting
Date for each class. Except as provided in Sections 7(c) and 7(f), upon the
occurrence of the Issue Date with respect to a share of Restricted Stock, a
share of Restricted Stock shall be issued in accordance with the provisions of
Section 7(d). Provided that all conditions to the vesting of a share of
Restricted Stock imposed pursuant to Section 7(b) hereof are satisfied, and
except as provided in Sections 7(c) and 7(f), upon the occurrence of the Vesting
Date with respect to a share of Restricted Stock, such share shall vest and the
restrictions of Section 7(c) shall cease to apply to such share.
(b) Conditions to Vesting. At the time of the grant of shares of
Restricted Stock, the Committee may impose such restrictions or conditions, not
inconsistent with the provisions hereof, to the vesting of such shares as it, in
its absolute discretion, deems appropriate. By way of example and not by way of
limitation, the Committee may require, as a condition to the vesting of any
class or classes of shares of Restricted Stock, that the Participant or the
Company achieve certain performance criteria, such criteria to be specified by
the Committee at the time of the grant of such shares.
<PAGE>
(c) Restrictions on Transfer Prior to Vesting. Prior to the vesting of
a share of Restricted Stock, no transfer of a Participant's rights with respect
to such share, whether voluntary or involuntary, by operation of law or
otherwise, shall vest the transferee with any interest or right in or with
respect to such share, but immediately upon any attempt to transfer such rights,
such share, and all of the rights related thereto, shall be forfeited by the
Participant and the transfer shall be of no force or effect.
(d) Issuance of Certificates
(i) Except as provided in Sections 7(c) or 7(f), reasonably
promptly after the Issue Date with respect to shares of Restricted
Stock, the Company shall cause to be issued a stock certificate,
registered in the name of the Participant to whom such shares were
granted, evidencing such shares; provided, that the Company shall not
cause to be issued such a stock certificate unless it has received a
stock power duly endorsed in blank with respect to such shares.
Each such stock certificate shall bear the following legend:
The transferability of this certificate and the shares of
stock represented hereby are subject to the restrictions,
terms and conditions (including forfeiture and restrictions
against transfer) contained in the Allied Waste Industries,
Inc. Amended and Restated 1991 Incentive Stock Plan and an
Agreement entered into between the registered owner of such
shares and Allied Waste Industries, Inc. A copy of the Plan
and Agreement is on file in the office of the Secretary of
Allied Waste Industries, Inc., 15880 North Greenway - Hayden
Loop, Suite 100, Scottsdale, Arizona 85260.
Such legend shall not be removed from the certificate evidencing such
shares until such shares vest pursuant to the terms of this Plan and
the agreement governing the grant of Restricted Stock.
(ii) Each certificate issued pursuant to Paragraph 7(d)(i),
together with the stock powers relating to the shares of Restricted
Stock evidenced by such certificate, shall be held by the Company. The
Company shall issue to the Participant a receipt evidencing the
certificates held by it which are registered in the name of the
Participant.
(e) Consequences Upon Vesting. Upon the vesting of a share of
Restricted Stock pursuant to the terms hereof, the restrictions of Section 7(c)
shall cease to apply to such share. Reasonably promptly after a share of
Restricted Stock vests pursuant to the terms hereof, the Company shall cause to
be issued and delivered to the Participant to whom such shares were granted, a
certificate evidencing such share, free of the legend set forth in Paragraph
7(d)(i), together with any other property of the Participant held by Company
pursuant to Section 12(a); provided, however, that such delivery shall be
effected for all purposes when the Company shall have deposited such certificate
and other property in the United States mail, addressed to the Participant.
<PAGE>
(f) Effect of Termination of Employment
(i) If the employment of a Participant with the Company shall
terminate for any reason other than Cause prior to the vesting of
shares of Restricted Stock granted to such Participant, a portion of
such shares, to the extent not forfeited or canceled on or prior to
such termination pursuant to any provision hereof, shall vest on the
date of such termination. The portion referred to in the preceding
sentence shall be determined by the Committee at the time of the grant
of such shares of Restricted Stock and may be based on the achievement
of any conditions imposed by the Committee with respect to such shares
pursuant to Section 7(b). Such portion may equal zero, and any
non-vested shares shall be forfeited as of the commencement of business
on the date of the Participant's termination of employment.
(ii) In the event of the termination of a Participant's
employment for Cause, all shares of Restricted Stock granted to such
Participant which have not vested as of the commencement of business on
the date of such termination shall immediately be forfeited.
(g) Effect of Change in Control. Upon the occurrence of a Change in
Control, all shares of Restricted Stock which have not yet vested (including
those with respect to which the Issue Date has not yet occurred) shall
immediately vest.
(h) Voting and Dividend Rights. The holders of Restricted Stock awarded
under this Plan shall have the same voting, dividend and other rights as the
Company's other stockholders (except that the transfer of such shares is limited
in accordance with Section 7(c) prior to vesting); provided, however, that the
Committee may require in the agreement granting the Restricted Stock that cash
dividends be invested in additional shares of Restricted Stock, subject to the
same conditions and restrictions as the Incentive Award with respect to which
the dividends were paid.
8. Performance Awards
The Committee may grant Performance Awards pursuant to the Plan. Each
grant of Performance Awards shall be evidenced by an agreement in such form as
the Committee shall from time to time approve. Each grant of Performance Awards
shall comply with and be subject to the following terms and conditions.
(a) Performance Period and Performance Award
(i) With respect to each grant of a Performance Award, the
Committee shall establish a performance period over which the
performance of the applicable Participant shall be measured.
<PAGE>
(ii) In determining the amount of the Performance Award to be
granted to a particular Participant, the Committee may take into
account such factors as the Participant's responsibility level and
growth potential, the amount of other Incentive Awards granted or
received by such Participant, and such other considerations as the
Committee deems appropriate; provided, however, the maximum value that
can be granted as a Performance Award to any one individual during any
calendar year is $10,000,000.
(b) Performance Goals. A Performance Award shall be paid solely on the
attainment of certain preestablished, objective performance goals (within the
meaning of Code Section 162(m)). Such performance goals shall be based on any
one or any combination of the following business criteria of the Company as a
whole or any of its subsidiaries (or any division or department of the
foregoing), as determined by the Committee: revenues, profitability, earnings
(including, without limitation, earnings per share); successful acquisitions of
other companies or assets; successful dispositions of subsidiaries, divisions or
departments of the Company or any of its subsidiaries; successful financing
efforts; return to stockholders; market share; or cost or expense control. The
Committee shall establish, in writing, the applicable performance goal(s) and
the specific targets related to such goal(s) within 90 days after the
commencement of the performance period to which such goal(s) relate and at a
time when the outcome of such performance goal(s) are substantially uncertain
within the meaning of Code Section 162(m), subject to adjustment by the
Committee as it deems appropriate to reflect significant unforseen events or
changes.
(c) Payment. Upon the expiration of the performance period relating to
a Performance Award granted to a Participant, such Participant shall be entitled
to receive payment of an amount not exceeding the maximum value of the
Performance Award, based on the achievement of the performance goals for such
performance period, as determined by the Committee. The Committee may, within
its sole discretion, pay a Performance Award under any one or more of the
performance goals established by the Committee with respect to such Performance
Award. The Committee shall certify in writing prior to the payment of a
Performance Award that the applicable performance goals and any other material
terms of the grant have been satisfied. Subject to Section 3, payment of a
Performance Award may be made in cash, Common Stock or a combination thereof, as
determined by the Committee. Payment shall be made in a lump sum or in
installments as prescribed by the Committee. Any payment to be made in Common
Stock shall be based on the Fair Market Value of the Common Stock on the payment
date.
(d) Effect of Termination of Employment. If the employment of a
Participant shall terminate for any reason prior to the expiration of the
applicable performance period, the Performance Awards relating to such
performance period shall immediately be forfeited as of the commencement of
business on the date of such termination, except as may be determined by the
Committee in its sole and absolute discretion, or as may be otherwise provided
in the agreement evidencing such Performance Award.
(e) Effect of Change in Control. Upon the occurrence of a Change in
Control, the Committee (as constituted immediately prior to such Change in
Control) shall determine, in its sole discretion, whether Performance Awards,
for which the requisite performance goals have not been satisfied or for which
the performance period has not expired, shall immediately be paid or whether
such Performance Awards shall remain outstanding according to their respective
terms.
<PAGE>
9. Phantom Stock
The Committee may grant shares of Phantom Stock pursuant to the Plan.
Each grant of shares of Phantom Stock shall be evidenced by an agreement in such
form as the Committee shall from time to time approve. Each grant of shares of
Phantom Stock shall comply with and be subject to the following terms and
conditions.
(a) Vesting Date. At the time of the grant of shares of Phantom Stock,
the Committee shall establish a Vesting Date or Vesting Dates with respect to
such shares. The Committee may divide such shares into classes and assign a
different Vesting Date for each class. Provided that all conditions to the
vesting of a share of Phantom Stock imposed pursuant to Section 9(c) are
satisfied, and except as provided in Section 9(d), upon the occurrence of the
Vesting Date with respect to a share of Phantom Stock, such share shall vest.
(b) Benefit Upon Vesting. Upon the vesting of a share of Phantom Stock,
a Participant shall be entitled to receive in cash, within 90 days of the date
on which such share vests, an amount in cash in a lump sum equal to the sum of
(i) the Fair Market Value of a share of Common Stock of the Company on the date
on which such share of Phantom Stock vests and (ii) the aggregate amount of cash
dividends paid with respect to a share of Common Stock of the Company during the
period commencing on the date on which the share of Phantom Stock was granted
and terminating on the date on which such share vests.
(c) Conditions to Vesting. At the time of the grant of shares of
Phantom Stock, the Committee may impose such restrictions or conditions, not
inconsistent with the provisions herein, to the vesting of such shares as it in
its absolute discretion deems appropriate. By way of example and not by way of
limitation, the Committee may require, as a condition to the vesting of any
class or classes of shares of Phantom Stock, that the Participant or the Company
achieve certain performance criteria, such criteria to be specified by the
Committee at the time of the grant of such shares.
(d) Effect of Termination of Employment
(i) If the employment of a Participant with the Company shall
terminate for any reason other than Cause prior to the vesting of
shares of Phantom Stock granted to such Participant, a portion of such
shares, to the extent not forfeited or canceled on or prior to such
termination pursuant to any provision, shall vest on the date of such
termination. The portion referred to in the preceding sentence shall be
determined by the Committee at the time of the grant of such shares of
Phantom Stock and may be based on the achievement of any conditions
imposed by the Committee with respect to such shares pursuant to
Section 9(c). Such portion may equal zero, and any non-vested shares
shall be forfeited as of the commencement of business on the date of
the Participant's termination of employment.
<PAGE>
(ii) In the event of the termination of a Participant's
employment for Cause, all shares of Phantom Stock granted to such
Participant which have not vested as of the date of such termination
shall immediately be forfeited.
(e) Effect of Change in Control. Upon the occurrence of a Change in
Control, all shares of Phantom Stock which have not theretofore vested shall
immediately vest.
10. Stock Bonuses
The Committee may, in its absolute discretion, grant Stock Bonuses in
such amounts as it shall determine from time to time. A Stock Bonus shall be
paid at such time and subject to such conditions as the Committee shall
determine at the time of the grant of such Stock Bonus. Certificates for shares
of Common Stock granted as a Stock Bonus shall be issued in the name of the
Participant to whom such grant was made and delivered to such Participant as
soon as practicable after the date on which such Stock Bonus is required to be
paid.
11. Cash Bonuses
The Committee may, in its absolute discretion, grant in connection with
any grant of Restricted Stock or shares of Common Stock granted as a Performance
Award or Stock Bonus or at any time thereafter, a cash bonus, payable promptly
after the date on which the Participant is required to recognize income for
federal income tax purposes in connection with such Restricted Stock,
Performance Award or Stock Bonus, in such amounts as the Committee shall
determine from time to time; provided, however, that in no event shall the
amount of a Cash Bonus exceed the Fair Market Value of the related shares of
Restricted Stock or shares of Common Stock granted pursuant to a Performance
Award or Stock Bonus on such date. A Cash Bonus shall be subject to such
conditions as the Committee shall determine at the time of the grant of such
Cash Bonus.
12. Adjustment Upon Changes in Common Stock
(a) Outstanding Restricted Stock, Performance Awards and Phantom Stock.
Unless the Committee in its absolute discretion otherwise determines, if a
Participant receives any securities or other property (including dividends paid
in cash) with respect to a share of Restricted Stock, the Issue Date with
respect to which occurs prior to such event, but which has not vested as of the
date of such event, as a result of any dividend, stock split, recapitalization,
merger, consolidation, combination, exchange of shares or otherwise, such
securities or other property will not vest until such share of Restricted Stock
vests and shall be held by the Company pursuant to Paragraph 7(d)(ii) as if such
securities or other property were non-vested shares of Restricted Stock.
<PAGE>
The Committee may, in its absolute discretion, adjust any grant of
shares of Restricted Stock, the Issue Date with respect to which has not
occurred as of the date of the occurrence of any of the following events, any
shares of Common Stock upon the grant of a Performance Award or any grant of
shares of Phantom Stock, to reflect any dividend, stock split, recapitalization,
merger, consolidation, combination, exchange of shares or similar corporate
change as the Committee may deem appropriate to prevent the enlargement or
dilution of rights of Participants under the grant.
(b) Stock Subject to Plan, Outstanding Options, Increase or Decrease in
Issued Shares Without Consideration. Subject to any required action by the
shareholders of the Company, in the event of any increase or decrease in the
number of issued shares of Common Stock resulting from a subdivision or
consolidation of shares of Common Stock or the payment of a stock dividend (but
only on the shares of Common Stock), or any other increase or decrease in the
number of such shares effected without receipt of consideration by the Company,
the Committee shall proportionally adjust (i) the number of shares of Common
Stock for which Incentive Awards may be granted under the Plan and (ii) the
number of shares and the exercise price per share of Common Stock subject to
each outstanding Option.
(c) Outstanding Options, Certain Mergers. Subject to any required
action by the shareholders of the Company, if the Company shall be the surviving
corporation in any merger or consolidation (except a merger or consolidation as
a result of which the holders of shares of Common Stock receive securities of
another corporation), each Option outstanding on the date of such merger or
consolidation shall entitle the Participant to acquire upon exercise the
securities which a holder of the number of shares of Common Stock subject to
such Option would have received in such merger or consolidation.
(d) Outstanding Options, Certain Other Transactions. In the event of a
dissolution or liquidation of the Company, a sale of all or substantially all of
the Company's assets, a merger or consolidation involving the Company in which
the Company is not the surviving corporation or a merger or consolidation
involving the Company in which the Company is the surviving corporation but the
holders of shares of Common Stock receive securities of another corporation
and/or other property, including cash, the Committee shall, in its absolute
discretion, have the power to: (i) cancel, effective immediately prior to the
occurrence of such event, each Option outstanding immediately prior to such
event (whether or not then exercisable), and, in full consideration of such
cancellation, pay to the Participant to whom such Option was granted an amount
in cash, for each share of Common Stock subject to such Option equal to the
excess of (A) the value, as determined by the Committee in its absolute
discretion, of the property (including cash) received by the holder of a share
of Common Stock as a result of such event over (B) the exercise price of such
Option; or (ii) provide for the exchange of each Option outstanding immediately
prior to such event (whether or not then exercisable) for an option on some or
all of the property for which such Option is exchanged and, incident thereto,
make an equitable adjustment as determined by the Committee in its absolute
discretion in the exercise price of the option, or the number of shares or
amount of property subject to the option or, if appropriate, provide for a cash
payment to the Participant to whom such Option was granted in partial
consideration for the exchange of the Option.
<PAGE>
(e) Outstanding Options, Other Changes. In the event of any change in
the capitalization of the Company or corporate change other than those
specifically referred to in Sections 12(b), (c) or (d), the Committee may, in
its absolute discretion, make such adjustments in the number and class of shares
subject to Options outstanding on the date on which such change occurs and in
the per share exercise price of each such Option as the Committee may consider
appropriate to prevent dilution or enlargement of rights.
(f) No Other Rights. Except as expressly provided in the Plan, no
Participant shall have any rights by reason of any subdivision or consolidation
of shares of stock of any class, the payment of any dividend, any increase or
decrease in the number of shares of stock of any class or any dissolution,
liquidation, merger or consolidation of the Company or any other corporation.
Except as expressly provided in the Plan, 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 of shares of Common Stock subject to an Incentive Award
or the exercise price of any Option.
13. Deferral of Delivery of Shares
The Committee (in its sole discretion) may permit or require a
Participant who receives an Incentive Award to have Common Shares that would
otherwise be delivered to the Participant converted into a deferred compensation
account established for such Participant by the Committee as an entry on the
Company's books. Such amounts shall be determined by reference to the Fair
Market Value of such Common Shares as of the date they otherwise would have been
delivered to the Participant. A deferred compensation account established under
this Section 13 may be credited with interest or other forms of investment
return, as determined by the Committee. A Participant for whom such an account
is established shall have no rights other than those of a general creditor of
the Company. Such an account shall represent an unfunded and unsecured
obligation of the Company and shall be subject to the terms and conditions of
the applicable agreement between the Participant and the Company; provided,
however, that the Committee may elect to establish a trust for the purpose of
securing any such obligation. If the deferral of Incentive Awards is permitted
or required, the Committee (in its sole discretion) may establish rules,
procedures and forms pertaining to such Awards, including (without limitation)
the settlement of deferred compensation accounts established under this Section
13.
14. Rights as a Stockholder
No person shall have any rights as a stockholder with respect to any
shares of Common Stock covered by or relating to any Incentive Award granted
pursuant to this Plan until the date of the issuance of a stock certificate with
respect to such shares. Except as otherwise expressly provided in Section 12, no
adjustment to any Incentive Award shall be made for dividends or other rights
for which the record date occurs prior to the date such stock certificate is
issued.
15. No Special Employment Rights; No Right to Incentive Award
<PAGE>
Nothing contained in the Plan or any Incentive Award shall confer upon
any Participant any right with respect to the continuation of his employment by
the Company or interfere in any way with the right of the Company, subject to
the terms of any separate employment agreement to the contrary, at any time to
terminate such employment or to increase or decrease the compensation of the
Participant from the rate in existence at the time of the grant of an Incentive
Award.
No person shall have any claim or right to receive an Incentive Award
hereunder. The Committee's granting of an Incentive Award to a Participant at
any time shall neither require the Committee to grant an Incentive Award to such
Participant or any other Participant or other person at any time nor preclude
the Committee from making subsequent grants to such Participant or any other
Participant or other person.
16. Securities Matters
(a) The Company shall be under no obligation to effect the registration
pursuant to the Securities Act of any shares of Common Stock to be issued
hereunder or to effect similar compliance under any state laws. Notwithstanding
anything herein to the contrary, the Company shall not be obligated to cause to
be issued or delivered any certificates evidencing shares of Common Stock
pursuant to the Plan unless and until the Company is advised by its counsel that
the issuance and delivery of such certificates is in compliance with all
applicable laws, regulations of governmental authority and the requirements of
any securities exchange on which shares of Common Stock are traded. The
Committee may require, as a condition of the issuance and delivery of
certificates evidencing shares of Common Stock pursuant to the terms hereof that
the recipient of such stock make such covenants, agreements and representations,
and that such certificates bear such legends, as the Committee, in its sole
discretion, deems necessary or desirable.
(b) The exercise of any Option granted hereunder shall only be
effective at such time as counsel to the Company shall have determined that the
issuance and delivery of shares of Common Stock pursuant to such exercise is in
compliance with all applicable laws, regulations of governmental authorities and
the requirements of any securities exchange on which shares of Common Stock are
traded. The Company may, in its sole discretion, defer the effectiveness of any
exercise of an Option granted hereunder in order to allow the issuance of shares
of Common Stock pursuant thereto to be made pursuant to registration or an
exemption from registration or other methods for compliance available under
federal or state securities laws. The Company shall inform the Participant in
writing of its decision to defer the effectiveness of the exercise of an Option
granted hereunder. During the period that the effectiveness of the exercise of
an Option has been deferred, the Participant may, by written notice, withdraw
such exercise and obtain the refund of any amount paid with respect thereto.
(c) It is intended that the Plan and any grant of an Incentive Award
made to a person subject to Section 16 of the 1934 Act meet all of the
requirements of Rule 16b-3 promulgated thereunder. If any provision of the Plan
or any Incentive Award would disqualify the Plan or the Incentive Award, or
would otherwise not comply with Rule 16b-3, such provision or Incentive Award
shall be construed or deemed amended to conform to Rule 16b-3 to the extent
permitted by applicable law and deemed advisable by the Board.
<PAGE>
17. Withholding Taxes
Whenever shares of Common Stock are to be issued upon the exercise of
an Option, the occurrence of the Issue Date or Vesting Date with respect to a
share of Restricted Stock, the payment of a Performance Award in shares of
Common Stock or the payment of a Stock Bonus, the Company shall have the right
to require the Participant to remit to the Company in cash an amount sufficient
to satisfy federal, state and local withholding tax requirements, if any,
attributable to such exercise, occurrence or payment prior to the delivery of
any certificate or certificates for such shares. In addition, upon the grant of
a Cash Bonus, the payment of a Performance Award or the making of a payment with
respect to a share of Phantom Stock, the Company shall have the right to
withhold from any cash payment required to be made pursuant thereto an amount
sufficient to satisfy the federal, state and local withholding tax requirements,
if any, attributable to such exercise or grant.
18. Amendment of the Plan
The Board of Directors may at any time suspend or discontinue the Plan
or revise or amend it in any respect whatsoever; provided, however, that without
approval of the shareholders no revision or amendment shall (i) except as
provided in Section 12, increase the number of shares of Common Stock that may
be issued under the Plan; (ii) except as provided in Section 12, increase the
maximum number of shares of Common Stock that may be subject to an Incentive
Award granted to any one individual for any calendar year; (iii) increase the
maximum value that can be awarded as a Performance Award; (iv) materially
increase the benefits accruing to an individual holding Incentive Awards granted
pursuant to the Plan; (v) materially modify the requirements as to eligibility
for participation in the Plan; (vi) extend the term of the Plan or (vi) decrease
any authority granted to the Committee in contravention of Rule 16b-3 under the
Exchange Act.
19. No Obligation to Exercise
The grant to a Participant of an Option shall impose no obligation upon
such Participant to exercise such Option.
20. Transfers Upon Death
Upon the death of a Participant, outstanding Incentive Awards granted
to such Participant may be exercised only by the executors or administrators of
the Participant's estate or by any person or persons who shall have acquired
such right to exercise by will or by the laws of descent and distribution. No
transfer by will or the laws of descent and distribution of any Incentive Award,
or the right to exercise any Incentive Award, shall be effective to bind the
Company unless the Committee shall have been furnished with (a) written notice
thereof and with a copy of the will and/or such evidence as the Committee may
deem necessary to establish the validity of the transfer and (b) an agreement by
the transferee to comply with all the terms and conditions of the Incentive
Award that are or would have been applicable to the Participant and to be bound
by the acknowledgments made by the Participant in connection with the grant of
the Incentive Award.
<PAGE>
21. Expenses and Receipts
The expenses of the Plan shall be paid by the Company. Any proceeds
received by the Company in connection with any Incentive Award will be used for
general corporate purposes.
22. Failure to Comply
In addition to the remedies of the Company elsewhere provided for
herein, failure by a Participant to comply with any of the terms and conditions
of the Plan or the agreement executed by such Participant evidencing an
Incentive Award, unless such failure is remedied by such Participant within ten
days after having been notified of such failure by the Committee, shall be
grounds for the cancellation and forfeiture of such Incentive Award, in whole or
in part as the Committee, in its absolute discretion, may determine.
23. Effective Date and Term of Plan
The Plan was adopted by the Board of Directors on September 8, 1999 and
shall become effective on such date, subject to approval by the stockholders of
the Company in accordance with applicable law, the requirements of Code Section
422 and the requirements of Rule 16b-3 under Section 16b-3 of the Exchange Act.
No Incentive Award may be granted under the Plan after September 8, 2009.
Incentive Awards may be granted under the Plan at any time prior to the receipt
of such stockholder approval; provided, however, that each such grant shall be
subject to such approval. Without limitation on the foregoing, no Option may be
exercised prior to the receipt of such approval, no share certificate shall be
issued pursuant to a grant of Restricted Stock, Performance Award or Stock Bonus
prior to the receipt of such approval and no Cash Bonus or payment with respect
to a Performance Award or a share of Phantom Stock shall be paid prior to the
receipt of such approval. If the Plan is not so approved prior to September 8,
2000, then the Plan and all Incentive Awards then outstanding hereunder shall
forthwith automatically terminate and be of no force and effect.
24. Compliance With the Exchange Act
With respect to persons subject to Section 16 of the Exchange Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent
any provisions of the Plan or action by the Committee or Board fails to so
comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by the Committee or Board.
<PAGE>
DATED: September 8, 1999.
ALLIED WASTE INDUSTRIES, INC.,
a Delaware corporation
By /S/ STEVEN M. HELM
--------------------------------
Steven M. Helm, Vice President
FIRST AMENDMENT TO THE RESTATED
ALLIED WASTE INDUSTRIES, INC. 1991 INCENTIVE STOCK PLAN
(AS AMENDED AND RESTATED IN 1999)
THIS AMENDMENT, made and entered into on September 8, 1999, by ALLIED
WASTE INDUSTRIES, INC., a Delaware corporation ("Employer").
R E C I T A L S:
1. The Employer maintains the Allied Waste Industries, Inc. 1991
Incentive Stock Plan ("Plan"), as amended and restated
effective September 8, 1999;
2. The Employer has reserved the right to amend the Plan in
whole or in part; and
3. The Employer intends to amend the Plan, with the approval of
its shareholders.
THEREFORE, the Employer hereby adopts this Amendment, subject to the
approval of the Employer's stockholders, as follows:
1. In Section 2, the following new definition is added:
"Fully Diluted Shares" means the aggregate of all issued and
outstanding shares of Common Stock, shares of Common Stock
issuable upon the vesting or payment of awards or exercise of
options under any employee benefit plan, including the Plan,
shares of Common Stock otherwise available or reserved for
issuance under employee benefit plans, including the Plan, and
shares of Common Stock issuable upon conversion or exercise of
any outstanding convertible securities, warrants or options.
For these purposes, shares of Series A Senior Convertible
Preferred Stock are deemed convertible into shares of Common
Stock.
2 In Section 3, the first sentence of the second paragraph is
amended to read as follows:
The Committee may grant Options, shares of Restricted Stock,
Performance Awards shares of Phantom Stock and Stock Bonuses
under the Plan with respect to a number of shares of Common
Stock that in the aggregate at any time does not exceed 8.5%
of the Fully Diluted Shares as of the date any Incentive Award
is granted, subject to adjustment pursuant to Section 12.
<PAGE>
3. The Effective Date of this Amendment shall be the date on
which this Amendment is approved by the stockholders of the
Employer.
4. Except as amended, all of the terms and conditions of the Plan
shall remain in full force and effect.
ALLIED WASTE INDUSTRIES, INC.,
a Delaware corporation
By /s/ Steven M. Helm
-------------------------------
Steven M. Helm, Vice President
SECOND AMENDMENT TO THE RESTATED
ALLIED WASTE INDUSTRIES, INC. 1991 INCENTIVE STOCK PLAN
(AS AMENDED AND RESTATED IN 1999)
THIS AMENDMENT, made and entered into on November 17, 1999, by ALLIED
WASTE INDUSTRIES, INC., a Delaware corporation ("Employer").
R E C I T A L S:
1. The Employer maintains the Allied Waste Industries, Inc. 1991
Incentive Stock Plan ("Plan"), as amended and restated
effective September 8, 1999, and as later amended;
2. The Employer has reserved the right to amend the Plan in whole
or in part; and
3. The Employer intends to amend the Plan, with the approval of
its stockholders.
THEREFORE, the Employer hereby adopts this Amendment, subject to the
approval of the Employer's stockholders, as follows:
1. In Section 3, the first sentence of the second paragraph is
amended by changing the referenced percentage from "8.5%" to
"8.0%."
2. Section 6(b) is revised by adding the following new sentence
to that Section: "Notwithstanding any other provision of the
Plan to the contrary, no amendment or adjustment of the
exercise price of an Option (whether through amendment,
cancellation or replacement Grants, or other means of pricing
such Options) in respect of an Option having an exercise price
greater than the Fair Market Value of a Share as of the date
of such amendment or adjustment shall be authorized under the
Plan unless stockholder approval of such repricing is
obtained."
3. The Effective Date of this Amendment shall be the date on
which this Amendment is approved by the stockholders of the
Employer.
<PAGE>
4. Except as amended, all of the terms and conditions of the
Plan shall remain in full force and effect
ALLIED WASTE INDUSTRIES, INC.,
a Delaware corporation
By /s/ Steven M. Helm
---------------------------------
Steven M. Helm, Vice President
EX-5.1
OPINION AND CONSENT OF STEVEN M. HELM
January 11, 2000
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Allied Waste Industries, Inc. - Registration Statement on Form S-8
(the "Registration Statement")
Ladies and Gentlemen:
I have acted as counsel to Allied Waste Industries, Inc., a Delaware
corporation (the "Company"), in connection with the registration on Form S-8
under the Securities Act of 1933, as amended, of 10,827,133 shares of the
Company's common stock, par value $.01 per share (the "Common Stock"). In such
capacity I have examined the certificate of incorporation, bylaws and corporate
proceedings of the Company, and based upon such examination and having regard
for applicable legal principles, it is my opinion that the 10,827,133 shares
offered by the Company will, when issued as contemplated in the Registration
Statement, be validly issued, fully paid and non-assessable, outstanding shares
of the Company's Common Stock.
I consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Steven M. Helm
------------------------------------
Steven M. Helm
Vice President - Legal and Corporate Secretary
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Allied Waste Industries, Inc. Registration Statement on Form
S-8 of our report dated March 3, 1999 included in Allied Waste Industries,
Inc.'s Form 10-K/A for the year ended December 31, 1998, and to all references
to our firm included in this registration statement.
Phoenix, Arizona,
January 10, 2000.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Allied Waste Industries, Inc. Registration Statement on Form
S-8 of our report dated December 3, 1998 included in Browning-Ferris Industries,
Inc.'s Form 10-K/A for the year ended September 30, 1998, and to all references
to our firm included in this registration statement.
Houston, Texas,
January 10, 2000.
