sv3asr
As filed with the Securities and Exchange Commission on June 5, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
REPUBLIC SERVICES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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65-0716904 |
(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer Identification Number) |
18500 North Allied Way
Phoenix, Arizona 85054
(480) 627-2700
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Michael P. Rissman
Acting General Counsel
18500 North Allied Way
Phoenix, Arizona 85054
(480) 627-2700
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Jodi A. Simala.
David A. Schuette
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606-4637
(312) 782-0600
Approximate date of commencement of proposed sale to the public: From time to time after this
registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the
following box. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. þ
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check One):
Large accelerated filer þ | Accelerated filer o | Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed maximum |
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Proposed maximum |
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Title of each class of |
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Amount to be |
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offering price |
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aggregate |
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Amount of |
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securities to be registered |
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registered |
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per unit |
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offering price |
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registration fee |
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Common stock, par value $0.01 per share |
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21,558,088 |
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$23.06 (1) |
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$497,129,510 (1) |
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$27,740 |
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(1) |
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Estimated solely for the purpose of computing the amount of the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933, as amended, based on $23.06, the
average of the high and low sale prices for shares of common stock as reported on the New York
Stock Exchange on June 3, 2009. |
PROSPECTUS
Republic Services, Inc.
21,558,088 SHARES
COMMON STOCK
This prospectus covers 21,558,088 shares of our common stock that may be offered for resale
by the selling stockholders named in this prospectus. No securities are being offered or sold by
us pursuant to this prospectus. These shares consist of shares of our common stock that we issued
to the selling stockholders in connection with our merger with Allied Waste Industries, Inc.
(Allied). We will not receive any of the proceeds from the sale of these shares by the selling
stockholders.
Our common stock is listed on the New York Stock Exchange under the symbol RSG. On June 3,
2009, the last reported sale price of our common stock on the New York Stock Exchange was $22.78
per share.
The selling stockholders may from time to time sell, transfer or otherwise dispose of any or
all of their shares of common stock through underwriters or dealers, directly to purchasers (or a
single purchaser) or through broker-dealers or agents. The common stock may be sold in one or
more transactions at fixed prices, prevailing market prices at the time of sale, prices related
to the prevailing market prices, varying prices determined at the time of sale or negotiated
prices. We do not know when or in what amount the selling stockholders may offer the shares for
sale. The selling stockholders may sell any, all or none of the shares offered by this
prospectus. See Plan of Distribution beginning on page 4 for more information about how the
selling stockholders may sell or dispose of their shares of common stock.
Investing in our common stock involves risks, including those set forth under the heading
Risk Factors in our most recent Annual Report on Form 10-K, as the same may be updated from
time to time by our filings under the Securities Exchange Act of 1934, as amended, as discussed
on page 1 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved these securities, or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The date of this Prospectus is June 5, 2009.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING INFORMATION
Certain statements and information included herein constitute forward-looking statements
within the meaning of the Federal Private Securities Litigation Reform Act of 1995. Such
forward-looking statements involve known and unknown risks, uncertainties, and other factors that
may cause the actual results, performance, or achievements of the Company to be materially
different from any future results, performance, or achievements expressed or implied in or by such
forward-looking statements. Such factors include, among other things:
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whether the Companys estimates and assumptions concerning its selected balance sheet
accounts, income tax accounts, final capping, closure, post-closure and remediation costs,
available airspace, and projected costs and expenses related to the Companys landfills
and property and equipment, and labor, fuel rates, and economic and inflationary trends,
turn out to be correct or appropriate; |
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various factors that will impact the actual business and financial performance of the
Company such as competition and demand for services in the solid waste industry; |
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the Companys ability to manage growth; |
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the Companys ability to successfully integrate Allieds and Republics operations
and to achieve synergies or create long-term value for stockholders as expected; |
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compliance with, and future changes in, environmental regulations; |
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the Companys ability to obtain approvals from regulatory agencies in connection with
operating and expanding the Companys landfills; |
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the ability to obtain financing on acceptable terms to finance the Companys
operations and growth strategy and for the Company to operate within the limitations
imposed by financing arrangements; |
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the Companys dependence on key personnel; |
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general economic and market conditions including, but not limited to, inflation and
changes in commodity pricing, fuel, labor, risk and health insurance, and other variable
costs that are generally not within control of the Company; |
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the Companys dependence on large, long-term collection, transfer and disposal
contracts; |
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the Companys dependence on acquisitions for growth; |
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risks associated with undisclosed liabilities of acquired businesses; |
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risks associated with pending legal proceedings; and |
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other factors contained in the Companys filings with the Securities and Exchange
Commission. |
TABLE OF CONTENTS
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Page |
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ABOUT THIS PROSPECTUS |
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1 |
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REPUBLIC SERVICES, INC. |
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1 |
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RISK FACTORS |
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1 |
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USE OF PROCEEDS |
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DESCRIPTION OF CAPITAL STOCK |
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SELLING STOCKHOLDERS |
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PLAN OF DISTRIBUTION |
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LEGAL MATTERS |
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EXPERTS |
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WHERE YOU CAN FIND MORE INFORMATION |
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6 |
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ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed with the Securities and
Exchange Commission utilizing a shelf registration process. Under this shelf registration
process, the selling stockholders may from time to time sell the shares of common stock described
in this prospectus in one or more offerings.
We have not authorized anyone to give any information or to make any representation other
than those contained or incorporated by reference in this prospectus. You must not rely upon any
information or representation not contained or incorporated by reference in this prospectus. The
selling stockholders are offering to sell, and seeking offers to buy, shares of our common stock
only in jurisdictions where it is lawful to do so. This prospectus does not constitute an offer
to sell or the solicitation of an offer to buy any shares other than the registered shares to
which they relate, nor does this prospectus constitute an offer to sell or the solicitation of an
offer to buy shares in any jurisdiction to any person to whom it is unlawful to make such offer
or solicitation in such jurisdiction. You should not assume that the information contained in
this prospectus is accurate on any date subsequent to the date set forth on the front of the
document or that any information we have incorporated by reference is correct on any date
subsequent to the date of the document incorporated by reference, even though this prospectus is
delivered or shares are sold on a later date.
In this prospectus, the words we, us, our, the Company or Republic refer to
Republic Services, Inc. and its consolidated subsidiaries.
REPUBLIC SERVICES, INC.
As of December 31, 2008, we are the second largest provider of services in the domestic
non-hazardous solid waste industry. We provide non-hazardous solid waste collection services for
commercial, industrial, municipal and residential customers through 400 collection companies in 40
states and Puerto Rico. We also own or operate 242 transfer stations, 213 active solid waste
landfills and 78 recycling facilities. We were incorporated as a Delaware corporation in 1996.
On December 5, 2008, we completed our merger with Allied (the merger), pursuant to which
each share of Allied common stock outstanding immediately prior to the effective time of the merger
was converted into .45 shares of Republic common stock, together with cash in lieu of fractional
shares of Republic common stock.
We manage our operations through four geographic operating segments which are also our
reportable segments: Eastern, Midwest, Southern and Western.
The boundaries of our operating segments may change from time to time. Each of
our regions is organized into several operating areas and each area contains multiple operating
locations. Each of our regions and substantially all our areas provide collection, transfer,
recycling and disposal services. We believe this structure facilitates the integration of our
operations within each region, which is a critical component of our operating strategy, and allows
us to maximize the growth opportunities in each of our markets and to operate the business
efficiently, while maintaining effective controls and standards over operational and administrative
matters, including financial reporting.
Our principal and administrative offices are located at 18500 North Allied Way, Phoenix,
Arizona 85054. Our telephone number at that location is (480) 627-2700.
RISK FACTORS
Investing in our common stock involves risk. Before you decide whether to purchase any of our
common stock, in addition to the other information in this prospectus and the documents
incorporated by reference, you should carefully consider the risk factors under the heading Risk
Factors in our most recent Annual Report on Form 10-K, which is incorporated by reference into
this prospectus, as the same may be updated from time to time by our filings under the Securities
Exchange Act of 1934, as amended. For more information, see the section entitled Where You Can
Find More Information. These risks could materially affect our business, results of operations or
financial condition and cause the value of our common stock to decline. You could lose all or part
of your investment.
USE OF PROCEEDS
The selling stockholders will receive all of the proceeds from the sale of the shares of our
common stock offered by this prospectus, and we will not receive any of such proceeds.
1
DESCRIPTION OF CAPITAL STOCK
The following summary of the material terms of our capital stock is not intended to be a
complete summary of all the rights and preferences of our capital stock. We urge you to read our
charter and bylaws and refer to the applicable provisions of Delaware law, for a complete
description of the rights and preferences of our capital stock. See Where You Can Find More
Information beginning on page 6.
Authorized Capital Stock
Under our charter, our authorized capital stock consists of 750 million shares of common
stock, par value of $.01 per share, and 50 million shares of preferred stock, par value $.01 per
share. At April 29, 2009, there were approximately 378,802,292 shares of our common stock issued
and outstanding.
Common Stock
Common Stock Outstanding. The outstanding shares of our common stock are duly authorized,
validly issued, fully paid and nonassessable.
Voting Rights. Each holder of a share of our common stock is entitled to one vote for each
share held of record on the applicable record date on all matters submitted to a vote of
stockholders. All matters properly presented to the stockholders are decided by a majority vote of
the voting power of shares present in person or by proxy at a stockholders meeting and entitled to
vote thereon, except that contested elections of directors are decided by a plurality vote.
Preemptive Rights. Holders of shares of our common stock have no preemptive right to
purchase, subscribe for or otherwise acquire any unissued or treasury shares or other securities.
Dividend Rights. Subject to the preferential rights of any series of preferred stock
outstanding from time to time, the holders of shares of our common stock are entitled to such cash
dividends as may be declared from time to time by our board of directors from funds available for
such purpose.
Liquidation Rights. Subject to the preferential rights of any series of preferred stock
outstanding from time to time, upon our liquidation, dissolution or winding up, the holders of
shares of our common stock are entitled to receive pro rata all of our assets available for
distribution to such holders.
The rights, preferences and privileges of holders of our common stock are subject to, and may
be adversely affected by, the rights of the holders of shares of any series of preferred stock
which we may issue in the future.
Preferred Stock
Our board of directors has the authority, without action by the holders of our common stock,
to designate and issue preferred stock in one or more series and to fix the rights, preferences,
privileges and related restrictions of any such series, including dividend rights, dividend rates,
conversion rights, voting rights, terms of redemption, redemption prices and liquidation
preferences. The issuance of preferred stock may delay, impede or prevent the completion of a
merger, tender offer or other takeover attempt of Republic without further action of the holders of
our common stock, including a tender offer or other transaction that some, or a majority, of the
holders of our common stock might believe to be in their best interest.
Transfer Agent and Registrar
Common Stock Transfer Agent & Registrar is the transfer agent and registrar for the shares of
our common stock.
2
SELLING STOCKHOLDERS
In connection with our merger with Allied, shareholders of Allied, including the selling
stockholders, received .45 shares of our common stock in exchange for each share of Allied common
stock. The shares of our common stock issued to the selling stockholders in connection with the
merger are being offered by this prospectus. In December 2008, we entered into a letter agreement
with the selling stockholders, pursuant to which we agreed, among other things, to file a
registration statement covering the resale on a delayed or continuous basis of the common stock
received by the selling stockholders pursuant to the merger.
For purposes of this document, selling stockholders include partners, donees, pledgees, direct
and indirect transferees or other successors-in-interest from time to time selling shares received
from a named selling stockholder as a gift, pledge, partnership distribution or other non-sale
transfer. Further, this prospectus may be used in connection with resales by the general partner of
the Blackstone funds listed below in connection with resales by such general partner for cash or
subsequent transfers by such general partner to its limited partners of their ratable portion of
the shares then owned by such general partner, together with resales of such shares of such limited
partners.
Information below with respect to beneficial ownership has been furnished by each selling
stockholder and we have not sought to verify such information. Except as stated below, none of the
selling stockholders nor any of their affiliates, officers, directors or principal equity holders
has held any position or office or has had any material relationship with us or any of our
predecessors or affiliates within the past three years. Prior to our merger with Allied, each of
the following principals of the selling stockholders served as a director of Allied: David I. Foley
and James A. Quella. Following consummation of our merger with Allied, David I. Foley was appointed
as a director of Republic.
The following table sets forth information with respect to the selling stockholders and the
shares of our common stock beneficially owned by the selling stockholders as of April 29, 2009 that may
from time to time be offered or sold pursuant to this prospectus. The selling stockholders may
offer all, some or none of their shares of common stock. We cannot advise you as to whether selling
stockholders will in fact sell any or all of such shares of common stock. In addition, the selling
stockholders listed in the table below may have sold, transferred or otherwise disposed of, or may
sell, transfer or otherwise dispose of, at any time and from time to time, shares of our common
stock in transactions exempt from the registration requirements of the Securities Act after the
date on which they provided the information set forth on the table below.
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Number of Shares Beneficially |
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Number of Shares |
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Owned Before the Offering |
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Being Offered |
Name of Selling Stockholder |
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Number |
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Percent(1) |
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Hereby |
Blackstone Capital
Partners II Merchant
Banking Fund L.P. |
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2,975,195 |
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0.785 |
% |
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2,975,195 |
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Blackstone Offshore
Capital Partners II L.P. |
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883,073 |
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0.233 |
% |
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883,073 |
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Blackstone Family
Investment Partnership II
L.P. |
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296,071 |
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0.078 |
% |
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296,071 |
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Blackstone Capital
Partners III Merchant
Banking Fund L.P. |
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13,800,705 |
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3.643 |
% |
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13,800,705 |
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Blackstone Offshore
Capital Partners III L.P. |
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2,558,819 |
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0.676 |
% |
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2,558,819 |
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Blackstone Family
Investment Partnership III
L.P. |
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1,044,225 |
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0.276 |
% |
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1,044,225 |
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Calculated based on 378,802,292 shares of our common stock outstanding as of April 29,
2009. |
3
PLAN OF DISTRIBUTION
The selling stockholders may, from time to time sell, transfer or otherwise dispose of any
or all of their shares of common stock through underwriters or dealers, directly to purchasers
(or a single purchaser) or through broker-dealers or agents. The common stock may be sold in one
or more transactions at fixed prices, prevailing market prices at the time of sale, prices
related to the prevailing market prices, varying prices determined at the time of sale or
negotiated prices. The selling stockholders may use any one or more of the following methods when
disposing of the shares or interests therein:
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on any national securities exchange on which our common stock may be listed at the
time of sale, including the New York Stock Exchange; |
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in the over-the-counter market; |
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in transactions otherwise than on such exchange or in the over-the-counter market; or |
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through the writing of options. |
These transactions may include block transactions or crosses. Crosses are transactions in
which the same broker acts as agent on both sides of the trade.
The selling stockholders may also sell shares under Rule 144 under the Securities Act, if
available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from the selling
stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the
purchaser) in amounts to be negotiated.
Selling stockholders and any broker-dealers or agents that are involved in selling the shares
may be deemed to be underwriters within the meaning of the Securities Act in connection with such
sales. In such event, any commissions received by such broker-dealers or agents and any profit on
the resale of the shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. If underwriters are used in the sale of any securities, the
securities will be acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The securities may be either offered to
the public through underwriting syndicates represented by managing underwriters, or directly by
underwriters. Generally, the underwriters obligations to purchase the securities will be subject
to certain conditions precedent. The underwriters will be obligated to purchase all of the
securities if they purchase any of the securities (other than any securities purchased upon
exercise of any over-allotment option).
The selling stockholders may sell the securities through agents from time to time. Generally,
any agent will be acting on a best efforts basis for the period of its appointment. Any
underwriters, broker-dealers and agents that participate in the distribution of the securities may
be deemed to be underwriters as defined in the Securities Act. Any commissions paid or any
discounts or concessions allowed to any such persons, and any profits they receive on resale of the
securities, may be deemed to be underwriting discounts and commissions under the Securities Act.
The selling stockholders may enter into derivative transactions or forward sale agreements on
shares of common stock with third parties. In such event, the selling stockholders may pledge the
shares underlying such transactions to the counterparties under such agreements, to secure the
selling stockholders delivery obligation. The counterparties or third parties may borrow shares of
common stock from us, the selling stockholders or third parties and sell such shares in a public
offering. This prospectus may be delivered in conjunction with such sales. Upon settlement of such
transactions, the selling stockholders may deliver shares of common stock to the counterparties
that, in turn, the counterparties may deliver the selling stockholders or third parties, as the
case may be, to close out the open borrowings of common stock. The counterparty in such
transactions will be an underwriter and will be identified in the applicable prospectus supplement.
Underwriters or agents may purchase and sell the securities in the open market. These
transactions may include over-allotment, stabilizing transactions, syndicate covering transactions
and penalty bids. Over-allotment involves sales in excess of the offering size, which creates a
short position. Stabilizing transactions consist of bids or purchases for the purpose of preventing
or retarding a decline in the market price of the securities and are permitted so long as the
stabilizing bids do not exceed a specified maximum. Syndicate covering transactions involve the
placing of any bid on behalf of the underwriting syndicate or the effecting of any purchase to
reduce
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a short position created in connection with the offering. The underwriters or agents also may
impose a penalty bid, which permits them to reclaim selling concessions allowed to syndicate
activities that may stabilize, maintain or otherwise affect the market price of the securities,
which may be higher than the price that might otherwise prevail in the open market. These
activities, if begun, may be discontinued at any time. These transactions may be effected on any
exchange on which the securities are traded, in the over-the-counter market or otherwise.
In order to comply with the securities laws of some states, if applicable, the shares must be
sold in those states only through registered or licensed brokers or dealers. In addition, some
states may restrict the selling stockholders from selling shares unless the shares have been
registered or qualified for sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
We have advised the selling stockholders that they are required to comply with Regulation M
promulgated under the Securities Exchange Act during such time as they may be engaged in a
distribution of the shares. The foregoing may affect the marketability of the common stock.
The selling stockholders are required to reimburse us for any expenses we incur in connection
with the registration of the public sale by the selling stockholders of the shares of common stock.
We have agreed to indemnify the selling stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act or otherwise.
We cannot assure you that the selling stockholders will sell all or any of the common stock
offered under the registration statement.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed upon for us by Mayer
Brown LLP.
EXPERTS
The consolidated financial statements of Republic Services, Inc. appearing in Republic
Services, Inc.s Annual Report (Form 10-K) for the year ended December 31, 2008 (including the
schedule appearing therein), as amended by our Current Report on Form 8-K filed on June 5, 2009,
and the effectiveness of Republic Services, Inc.s internal control over financial reporting as of
December 31, 2008 have been audited by Ernst & Young LLP, independent registered public accounting
firm, as set forth in their reports thereon, included in our Current Report on Form 8-K filed on
June 5, 2009, and incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such reports given on the authority of such firm
as experts in accounting and auditing.
5
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and periodic reports, proxy statements and other information with
the SEC. You may read and copy any of this information filed at the SECs public reference rooms
located at:
Public Reference Room
100 F Street, N.E.
Room 1024
Washington, DC 20549
You may obtain information on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. These SEC filings are also available to the public from commercial document
retrieval services and at the website maintained by the SEC at http://www.sec.gov. Our SEC filings
are also available at the office of the NYSE.
The SEC allows us to incorporate by reference information into this prospectus, which means
that we can disclose important information to you by referring you to other documents filed
separately with the SEC. The information incorporated by reference is considered part of this
prospectus, except for any information superseded by information contained directly in this
prospectus or in later filed documents incorporated by reference into this prospectus.
This document incorporates by reference the documents listed below that we have previously
filed with the SEC. These documents contain important business and financial information about us
that is not included in or delivered with this prospectus.
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Republic SEC Filings (File No. 1-14267) |
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Period |
Annual Report on Form 10-K
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For the fiscal year ended December 31, 2008 |
Quarterly Report on Form 10-Q
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For the quarter ended March 31, 2009 |
Current Reports on Form 8-K or 8-K/A
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Filed on: January 7, 2009, January 28,
2009, February 5, 2009, February 24, 2009,
March 5, 2009, May 5,
2009, May 19, 2009, June 2, 2009 and June
5, 2009 |
The description of Republic common
stock set forth in its Registration
Statements on Form 8-A
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Filed on: June 30, 1998 |
We also incorporate by reference additional documents that we may file with the Securities and
Exchange Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities and Exchange
Act of 1934 after the date of this document. Those documents include periodic reports such as
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as
well as proxy statements.
Documents incorporated by reference are available without charge excluding any exhibits to
those documents unless the exhibit is specifically incorporated by reference in this prospectus.
You can obtain documents incorporated by reference into this prospectus by requesting them in
writing or by telephone from us at the following address: Republic Services, Inc., Attention:
Investor Relations, 18500 North Allied Way, Phoenix, AZ 85054, (480) 627-2700.
6
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with this offering to be paid by us are as follows:
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Amount To Be Paid |
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SEC registration fee |
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$ |
27,740 |
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Legal fees and expenses |
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50,000 |
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Accounting fees and expenses |
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50,000 |
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Miscellaneous |
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25,000 |
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Total |
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$ |
152,740 |
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Item 15. Indemnification of Directors and Officers
The following summary is qualified in its entirety by reference to the complete text of the
statutes referred to below and to our Amended and Restated Certificate of Incorporation, as amended
(the Certificate), and bylaws.
The Certificate, provides that we shall indemnify, to the fullest extent permitted by Section
145 of the Delaware General Corporation Law (the DGCL), each person who is involved in any
litigation or other proceeding because such person is or was a Republic director or officer or was
serving at our request as a director, officer, employee or agent of another enterprise, against all
expense (including attorneys fees), loss or liability reasonably incurred or suffered in
connection therewith. The Certificate provides that a person entitled to indemnification under the
Certificate shall be paid expenses incurred in defending any proceeding in advance of its final
disposition upon our receipt of an undertaking, by or on behalf of the director or officer, to
repay all amounts so advanced if it is ultimately determined that such director or officer is not
entitled to indemnification.
Section 145 of the DGCL permits a corporation to indemnify any director or officer of the
corporation against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with any action, suit or proceeding
brought by reason of the fact that such person is or was a director or officer of the corporation,
if such person acted in good faith and in a manner that he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or
proceeding, if he had no reason to believe his conduct was unlawful. In a derivative action (i.e.,
one brought by or on behalf of the corporation), however, indemnification may be made only for
expenses, actually and reasonably incurred by any director or officer in connection with the
defense or settlement of such action or suit, if such person acted in good faith and in a manner
that he reasonably believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made if such person shall have been adjudged to be liable
to the corporation, unless and only to the extent that the Delaware Court of Chancery or the court
in which the action or suit was brought shall determine that the defendant is fairly and reasonably
entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the DGCL, the Certificate eliminates the liability of a
director to the corporation or its stockholders for monetary damages for such breach of fiduciary
duty as a director, except for liabilities arising (i) from any breach of the directors duty of
loyalty to the corporation or its stockholders, (ii) from acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the
DGCL, or (iv) from any transaction from which the director derived an improper personal benefit.
We may purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of Republic or another corporation, partnership, joint venture, trust or
other enterprise. Under an insurance policy maintained by us, our directors and officers are
insured, within the limits and subject to the limitations of the policy, against certain expenses
in connection with the defense of certain claims, actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such claims, actions, suits or proceedings, which
may be brought against them by reason of being or having been such directors or officers.
Item 16. Exhibits
Reference is made to the Exhibit Index included herewith which is incorporated herein by
reference.
Item 17. Undertakings
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (a)(i), (a)(ii) and (a)(iii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, that are incorporated by reference in the registration statement.
(b) That, for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(c) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of determining liability
under the Securities Act of 1933 to any purchaser:
(a) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of the registration statement as of the date the filed prospectus was deemed part of and
included in the registration statement; and
(b) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part
of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus that
is part of the registration statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date.
3. The undersigned Registrant hereby undertakes that, for the purpose of determining liability
of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of
the securities, the Registrant undertakes that in a primary offering of
securities of the Registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the Registrant will be a
seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(a) Any preliminary prospectus or prospectus of the Registrant relating to the offering
required to be filed pursuant to Rule 424;
(b) Any free writing prospectus relating to the offering prepared by or on behalf of the
Registrant or used or referred to by the Registrant;
(c) The portion of any other free writing prospectus relating to the offering containing
material information about the Registrant or its securities provided by or on behalf of the
Registrant; and
(d) Any other communication that is an offer in the offering made by the Registrant to the
purchaser.
4. The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of Republics annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
provisions described under Item 15 above, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by any Registrant of expenses
incurred or paid by a director, officer or controlling person of that Registrant in the successful
defense of any action, suit or proceeding) is asserted against a Registrant by such director,
officer or controlling person in connection with the securities being registered, that Registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Republic Services, Inc. certifies
that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Phoenix, State of Arizona on June 5, 2009.
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REPUBLIC SERVICES, INC.
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By: |
/s/ James E. OConnor
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James E. OConnor |
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Chairman of the Board and Chief Executive Officer
(principal executive officer) |
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KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and
appoints James E. OConnor and Tod C. Holmes and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Form S-3 registration statement, and to file the same, with all
exhibits thereto, and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully and to all intents and purposes as he might or could do in person
hereby ratifying and confirming that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons, in the capacities indicated on June 5, 2009.
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Signature |
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Title |
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/S/ James E. Oconnor
James E. OConnor
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Chairman of the Board and Chief Executive Officer
(principal executive officer) |
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/s/ Tod C. Holmes
Tod C. Holmes
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Executive Vice President and Chief Financial Officer
(principal financial officer) |
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/s/ Charles F. Serianni
Charles F. Serianni
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Senior Vice President, Chief Accounting Officer
(principal accounting officer) |
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/s/ John W. Croghan
John W. Croghan
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Director |
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/s/ James W. Crownover
James W. Crownover
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Director |
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/s/ William J. Flynn
William J. Flynn
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Director |
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/s/ David I. Foley
David I. Foley
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Director |
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/s/ Nolan Lehmann
Nolan Lehmann
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Director |
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/s/ W. Lee Nutter
W. Lee Nutter
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Director |
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/s/ Ramon A. Rodriguez
Ramon A. Rodriguez
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Director |
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/s/ Allan C. Sorensen
Allan C. Sorensen
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Director |
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/s/ John M. Trani
John M. Trani
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Director |
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/s/ Michael W. Wickham
Michael W. Wickham
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Director |
EXHIBIT INDEX
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Exhibit |
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Number |
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Document |
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4.1
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Registrants Amended and Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to Registrants Quarterly Report on Form 10-Q for the
period ended June 30, 1998). |
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4.2
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Registrants Certificate of Amendment to Amended and Restated Certificate of
Incorporation (incorporated by reference to Exhibit 4.2 to Registrants
Registration Statement on Form S-8, Registration No. 333-81801, filed with the
Commission on June 29, 1999). |
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4.3
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Registrants Amended and Restated Bylaws (incorporated by reference to Exhibit
3.1 to Registrants Current Report on Form 8-K filed on December 12, 2008). |
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4.4
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Registrants Common Stock Certificate (incorporated by reference to Exhibit 4.4
to Registrants Registration Statement on Form S-8, Registration No. 333-81801,
filed with the Commission on June 29, 1999). |
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5.1
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Opinion of Mayer Brown LLP, as to the validity of the securities. |
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23.1
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Consent of Ernst & Young LLP. |
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23.3
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Consent of Mayer Brown LLP (included in Exhibit 5.1). |
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24.1
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Power of Attorney (included in signature pages of the Registration Statement). |