FORM 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
|
|
|
Date of report (Date of earliest event reported) |
|
December 5, 2008 |
Republic Services, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
|
|
|
1-14267
|
|
65-0716904 |
|
|
|
(Commission File Number)
|
|
(IRS Employer Identification No.) |
|
|
|
18500 North Allied Way, Phoenix, Arizona
|
|
85054 |
|
|
|
(Address of Principal Executive Offices)
|
|
(Zip Code) |
(480) 627-2700
(Registrants Telephone Number, Including Area Code)
110 S.E. 6th Street, Suite 2800, Fort Lauderdale, Florida 33301
(Former Name or Former Address, If Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
|
|
|
o
|
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
|
o
|
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
|
o
|
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
|
o
|
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13d-4(c)) |
|
|
|
ITEM 2.01. |
|
COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS. |
On December 5, 2008, Allied Waste Industries, Inc. (Allied) merged with RS Merger Wedge,
Inc. (Merger Sub), a wholly owned subsidiary of Republic Services, Inc. (Republic), with Allied
continuing as the surviving corporation and a wholly owned subsidiary of Republic (the Merger).
The Merger was effected pursuant to an Agreement and Plan of Merger dated as of June 22, 2008, as
amended, by and among Republic, Allied, and Merger Sub (the Merger Agreement).
In connection with the Merger, each share of common stock of Allied, par value $0.01 per share,
was cancelled and converted into the right to receive .45 shares of Republic common stock, par
value $0.01 per share. In connection with the Merger, Republic issued approximately 196.2
million shares of Republic common stock to Allied stockholders representing approximately 52%
ownership of the combined company. Cash will be paid in lieu of fractional shares of Republic
common stock.
Republics common stock will continue to trade on the New York Stock Exchange (NYSE) under the symbol
RSG. Allieds common stock was delisted from the NYSE, effective at the
open of the market on December 8, 2008.
The foregoing description of the Merger Agreement and the Merger is not complete and is qualified
in its entirety by reference to the Merger Agreement, which was attached as Exhibit 2.1 to
Republics Current Report on Form 8-K, filed with the Securities and Exchange Commission on June
23, 2008, as Exhibit 2.1 to Republics Current Report on Form 8-K, filed with the Securities
and Exchange Commission on August 6, 2008, and as
Exhibit 2.1 to this Current Report in Form 8-K, and is incorporated herein by this reference.
A copy of a press release issued by Republic announcing the consummation of the Merger is attached
hereto as Exhibit 99.1, and is incorporated herein by reference.
|
|
|
ITEM 2.03. |
|
CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION
UNDER AN OFF-BALANCE ARRANGEMENT OF A REGISTRANT. |
In connection with the Merger, on December 5, 2008, Republic and substantially
all of its subsidiaries, including substantially all of the subsidiaries of
Allied, entered into the Third Supplemental Indenture by and among the parties
thereto as listed on Exhibit 4.1 to this Current Report on Form 8-K.
The Third Supplemental Indenture provides for the guaranty by Republic and the
other guarantors thereunder of the 9.25% debentures due 2021 and the 7.40%
debentures due 2035 issued by Browning-Ferris Industries, LLC (successor to
Browning-Ferris Industries, Inc.) (BFI) under that certain Indenture, dated
as of September 1, 1991, as amended and supplemented from time to time (BFI
Indenture), by and between BFI, BBCO, Inc., as Co-Obligor, and The Bank of New
York Mellon Trust Company, N.A., successor to JPMorgan Chase Bank, National
Association (successor to Chase Bank of Texas, National Association), as
successor trustee to First City, Texas-Houston, National Association.
Subsidiaries of Republic and Allied that were not required by the terms of
Republics $1.0 billion and $1.75 billion credit facilities to guaranty such
credit facilities, and which did not guaranty such credit facilities, are not
parties to the Third Supplemental Indenture. Prior to the Merger, Allied and
Allied Waste North Americam Inc. (AWNA) had become guarantors under the BFI Indenture.
As
of November 30, 2008, the outstanding principal amount of the 9.25%
debentures was $99.5 million and the outstanding principal amount of the
7.40% debentures was $360 million.
The guaranty delivered by Republic and its subsidiaries of the obligations
under the BFI Indenture is a guaranty of payment, not of collection. The
guaranty by the subsidiaries of Allied became effective on the day following
the effective date of the Merger. The terms of the BFI Indenture contain
customary provisions permitting the trustee and holders of debentures to
accelerate the amounts outstanding thereunder, including for non-payment of
principal and interest.
In addition, in connection with the Merger, on December 5, 2008, Republic and substantially all of its subsidiaries that existed prior to the Merger, together with Allied and
substantially all of its subsidiaries, entered into the Twentieth Supplemental Indenture by and
among the parties thereto as listed on Exhibit 4.2 to this Current Report on Form 8-K. The
Twentieth Supplemental Indenture provides for the guaranty by Republic, and by substantially all of its subsidiaries, of
the senior notes more particularly described below, issued by AWNA under that certain Indenture, dated as of December 23, 1998, as amended and supplemented from time
to time (AWNA Indenture), between AWNA, and U.S. Bank
National Association (f/k/a U.S. Bank Trust National Association), as Trustee. Subsidiaries of
Republic (prior to the Merger) that were not required by the terms of Republics $1.0 billion and $1.75 billion credit facilities to guaranty such credit facilities, and
which did not guaranty such credit facilities, are not parties to the Twentieth Supplemental
Indenture.
Prior to the Merger, Allied and substantially all of its subsidiaries (other than those
that did not guaranty Republics outstanding credit facilities), had become guarantors under the
AWNA Indenture. These parties entered into the Twentieth Supplemental Indenture for the purpose of reaffirming their prior guarantee obligations.
2
As of November 30, 2008, the outstanding principal amounts of the senior notes issued under the
AWNA Indenture were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Description of Senior Notes |
|
|
Amount Outstanding as of November 30, 2008 |
|
|
|
1. |
|
|
|
61/2% Senior Notes due 2010 issued
pursuant to Eleventh Supplemental
Indenture, dated as of November 10,
2003 |
|
|
$350 million |
|
|
|
2. |
|
|
|
53/4% Senior Notes due 2011 issued
pursuant to Twelfth Supplemental
Indenture, dated as of January 27,
2004 |
|
|
$400 million |
|
|
|
3. |
|
|
|
63/8% Senior Notes due 2011 issued
pursuant to Fifteenth Supplemental
Indenture, dated as of April 20, 2004 |
|
|
$275 million |
|
|
|
4. |
|
|
|
77/8% Senior Notes due 2013 issued
pursuant to Tenth Supplemental
Indenture, dated as of April 9, 2003 |
|
|
$450 million |
|
|
|
5. |
|
|
|
61/8% Senior Notes due 2014 issued
pursuant to Thirteenth Supplemental
Indenture, dated as of January 27,
2004 |
|
|
$425 million |
|
|
|
6. |
|
|
|
73/8% Senior Unsecured Notes due 2014
issued pursuant to Fourteenth
Supplemental Indenture, dated as of
April 20, 2004 |
|
|
$400 million |
|
|
|
7. |
|
|
|
71/4% Senior Notes due 2015 issued
pursuant to Sixteenth Supplemental
Indenture, dated as of March 9, 2005 |
|
|
$600 million |
|
|
|
8. |
|
|
|
71/8% Senior Notes due 2016 issued
pursuant to Seventeenth Supplemental
Indenture, dated as of May 17, 2006 |
|
|
$600 million |
|
|
|
9. |
|
|
|
67/8% Senior Notes due 2017 issued
pursuant to Eighteenth Supplemental
Indenture, dated as of March 12, 2007 |
|
|
$750 million |
|
|
The guaranty delivered by Republic and its subsidiaries of the obligations under the AWNA Indenture
is a guaranty of payment, not of collection. The terms of the AWNA Indenture contain customary
provisions permitting the trustee and holders of senior notes to accelerate the amounts outstanding
thereunder, including for non-payment of principal and interest.
|
|
|
ITEM 5.02. |
|
DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS. |
Effective as of the effective time of the Merger, as approved by resolutions of the Republic board
of directors and pursuant to the Merger Agreement, the number of directors on the Republic board of
directors was increased from seven to eleven. Effective at the same time, each of the following
former members of the Allied board of directors was appointed to the Republic board of directors:
James W. Crownover, William J. Flynn, Nolan Lehmann, and John M. Trani. Effective as of one day
after the effective time of the Merger, David I. Foley, a former member of the Allied board of
directors, was appointed to the Republic board of directors. The Republic board of directors now
consists of eleven directors, ten of whom are independent as defined under the NYSE director independence standards.
There are no arrangements or understandings between Messrs. Crownover, Flynn, Foley, Lehmann, and
Trani and any other person pursuant to which they were appointed as directors other than the Merger
Agreement. There are no transactions in which Messrs. Crownover, Flynn, Foley, Lehmann, or Trani
has an interest requiring disclosure under Item 404(a) of Regulation S-K.
The Republic board of directors reconstituted the members of Republics Audit Committee,
Nominating and Corporate Governance Committee and Compensation Committee effective as of one day
after the effective time of the Merger. The following persons were appointed to the Audit Committee
effective as of one day after the effective time of the Merger: Ramon Rodriguez (Chairperson),
John Croghan, Mr. Flynn, Mr. Lehmann and Michael Wickham. The following persons were
appointed to the Nominating and Corporate Governance Committee as of one day after the effective
time of the Merger: Mr. Croghan (Chairperson),
Mr. Crownover, Mr. Foley, W. Lee Nutter and
Allan Sorensen. The following persons were appointed to the Compensation Committee effective as of
one day after the effective time of the Merger: Mr. Wickham (Chairperson), Mr. Lehmann, Mr. Rodriguez, Mr. Sorensen and Mr. Trani.
In connection with the Merger, the Republic board of directors established an Integration Committee
of the Board of Directors effective as of one day after the effective time of the Merger. The
following persons were appointed to the Integration Committee effective as of one day after the
effective time of the Merger: Mr. Sorensen (Chairperson), Mr. Crownover, Mr. Foley, Mr. Rodriguez and Mr. Wickham.
James E. OConnor will continue as Republics Chief Executive Officer and Chairman of the Board and
Tod C. Holmes will continue as Republics Chief Financial Officer and has been named Executive Vice
President.
Effective
December 5, 2008, Michael J. Cordesman resigned as Executive Vice President of Republic
and David A. Barclay resigned as Vice President, General Counsel and Assistant Secretary of
Republic.
On December 5, 2008, Donald A. Slager, 46, was appointed Chief Operating Officer and President of
Republic. Prior to consummation of the Merger, Mr. Slager served as President and Chief Operating
Officer of Allied since January 2005. Prior to that, Mr. Slager served as Executive Vice President
and Chief Operating Officer from June 2003 to January 2005, and held various other positions with
Allied, and a predecessor company acquired by Allied since 1985.
On December 5, 2008, Timothy R. Donovan, 53, was appointed Executive Vice President, General
Counsel and Secretary of Republic. Prior to consummation of the Merger, Mr. Donovan served as
Executive Vice President, General Counsel and Corporate Secretary of
Allied since April 2007. Prior to joining Allied,
Mr. Donovan was Executive Vice President, Strategy and Business
Developemnt, and General Counsel of Tenneco Inc. Mr. Donovan
joined Tenneco in 1999 as Senior Vice President and General Counsel.
There are
no transactions in which Mr. Slager or Mr. Donovan has an
interest requiring disclosure under Item 404(a) of Regulation S-K.
3
|
|
|
ITEM 5.03. |
|
AMENDMENTS TO THE ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR. |
Republic and Allied agreed on a governance structure for Republic following the completion of the
Merger, referred to as the New Republic Governance Structure. Republic amended its bylaws in
connection with the Merger in order to facilitate the implementation of the New Republic
Governance Structure.
The impact of the New Republic Governance Structure is described below.
Republic Board of Directors
During the period commencing at the effective time of the Merger and continuing until the close of
business on the day immediately prior to the third annual meeting of Republic stockholders held
after the effective time, referred to as the Continuation Period:
|
|
the Republic board of directors must have a Continuing Republic
Committee, consisting solely of five Continuing Republic Directors,
defined as directors who are either (1) members of the Republic board
of directors prior to the effective time of the Merger, determined by
the Republic board of directors to be independent of Republic under
the rules of the NYSE and designated by Republic to be members of the
Republic board of directors as of the effective time of the Merger, or
(2) subsequently nominated or appointed to be a member of the Republic
board of directors by the Continuing Republic Committee; |
|
|
|
the Republic board of directors must have a Continuing Allied
Committee, consisting solely of five Continuing Allied Directors,
defined as directors who are either (1) members of the Allied board of
directors prior to the effective time of the Merger, determined by the
Allied board of directors to be independent of Allied and Republic
under the rules of the NYSE and designated by Allied to be members of
the Republic board of directors as of the effective time of the
Merger, or (2) subsequently nominated or appointed to be a member of
the Republic board of directors by the Continuing Allied Committee; |
|
|
|
the Republic board of directors must be comprised of eleven members,
consisting of (1) the Chief Executive Officer of Republic, (2) five
Continuing Republic Directors, and (3) five Continuing Allied
Directors, provided that, notwithstanding the foregoing, after the
Initial Continuation Period, the size of the Republic board of
directors may be increased by the affirmative vote of a majority of
the board of directors; |
|
|
|
at each meeting of the Republic stockholders during the Continuation
Period at which directors are to be elected, (1) the Continuing
Republic Committee shall have the exclusive authority on behalf of
Republic to nominate as directors of the Republic board of directors,
a number of persons for election equal to the number of Continuing
Republic Directors to be elected at such meeting, and (2) the
Continuing Allied Committee shall have the exclusive authority on
behalf of Republic to nominate as directors of the Republic board of
directors, a number of persons for election equal to the number of
Continuing Allied Directors to be elected at such meeting; and |
|
|
|
all directors nominated or appointed by the Continuing Republic
Committee or the Continuing Allied Committee, as the case may be, must
be independent of Republic for purposes of the rules of the NYSE, as
determined by a majority of the persons making the nomination or
appointment. |
In addition, during the period commencing on the effective time of the
Merger and continuing until the close of business on the day
immediately prior to the second annual meeting of Republic
stockholders held after the effective time, referred to as the Initial
Continuation Period, (1) if any Continuing Republic Director is
removed from the Republic board of directors, becomes disqualified,
resigns, retires, dies or otherwise cannot or will not continue to
serve as a member of the Republic board of directors, such vacancy may
only be filled by the Continuing Republic Committee, and (2) if any
Continuing Allied Director is removed from the Republic board of
directors, becomes disqualified, resigns, retires, dies or otherwise
cannot or will not continue to serve as a member of the Republic board
of directors, such vacancy may only be filled by the Continuing Allied
Committee.
Committees of the Republic Board of Directors
Other than with respect to the Continuing Republic Committee or Continuing Allied Committee:
|
|
during the Continuation Period, each committee of the Republic board
of directors must be comprised of five members, consisting of three
Continuing Republic Directors and two Continuing Allied Directors; |
|
|
|
the initial chairperson of the Audit Committee, the Nominating and
Corporate Governance Committee and the Compensation Committee of the
Republic board of directors as of the effective time of the Merger
will be, in each case, the Continuing Republic Director who was the
chairman of such committee immediately prior to the effective time of
the Merger; and |
|
|
|
each Continuing Republic Director and Continuing Allied Director
serving on the Audit Committee, the Nominating and Corporate
Governance Committee or the Compensation Committee of the Republic
board of directors must qualify as independent under the rules of
the NYSE and, as applicable, the rules of the SEC. |
Future Amendments to New Republic Governance Structure
During the Continuation Period, the Republic board of directors may amend, alter or repeal any
provisions included in Republics bylaws relating to the New Republic Governance Structure only
upon the affirmative vote of directors constituting at least seven members of the Republic board of
directors, referred to as the Required Number. In the event that the size of the Republic board of
directors is increased after the Initial Continuation Period as described above, the Required
Number will be increased by one for each additional director position created.
The Amended and Restated Republic Bylaws are attached hereto as Exhibit 3.1, and are
incorporated herein by reference.
4
|
|
|
ITEM 9.01. |
|
FINANCIAL STATEMENTS AND EXHIBITS. |
(a) Financial Statements of Business Acquired
The financial statements specified in Rule 3-05(b) of Regulation S-X were included in (1) Allieds
Annual Report on Form 10-K for the fiscal year ended
December 31, 2007, filed with the Securities and Exchange Commission on February 20, 2008, and as
amended in Allieds Current Report on Form 8-K, filed with the Securities and Exchange Commission on
May 6, 2008,
and (2) Allieds Quarterly Report on Form 10-Q for the quarter ended September 30, 2008, on
October 29, 2008, and are incorporated herein by reference.
(b) Pro Forma Financial Information
The pro forma financial statements required by this Item are not being filed herewith. The pro
forma financial statements will be filed by amendment to this Current Report on Form 8-K not later
than 71 days after the date on which this Current Report on Form 8-K is required to be filed.
(d) Exhibits
|
|
|
Exhibit No. |
|
Description |
2.1
|
|
Second Amendment to Agreement and
Plan of Merger, dated as of December 5, 2008, by and among
Republic Services, Inc., RS Merger Wedge, Inc. and Allied Waste
Industries, Inc. |
|
3.1
|
|
Amended and Restated Republic Bylaws. |
|
4.1
|
|
Third Supplemental Indenture, dated December 5, 2008, to Indenture dated January 15, 1985. |
|
4.2
|
|
Twentieth Supplemental Indenture, dated December 5, 2008, to Indenture dated December 23, 1998. |
|
23.1
|
|
Consent of PricewaterhouseCoopers LLP. |
|
99.1
|
|
Press Release of Republic, dated December 5, 2008, announcing the consummation of the Merger. |
5
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
|
|
December 10, 2008 |
REPUBLIC SERVICES, INC.
|
|
|
By: |
/s/ Tod C. Holmes
|
|
|
|
Tod C. Holmes |
|
|
|
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer) |
|
|
|
|
|
|
By: |
/s/ Charles F. Serianni
|
|
|
|
Charles F. Serianni |
|
|
|
Senior Vice President and
Chief Accounting Officer
(Principal Accounting Officer) |
|
6
EXHIBIT INDEX
|
|
|
Exhibit No. |
|
Description |
2.1
|
|
Second Amendment to Agreement and
Plan of Merger, dated as of December 5, 2008, by and among
Republic Services, Inc., RS Merger Wedge, Inc. and Allied Waste
Industries, Inc. |
|
3.1
|
|
Amended and Restated Republic Bylaws. |
|
4.1
|
|
Third Supplemental Indenture, dated December 5, 2008, to Indenture dated January 15, 1985. |
|
4.2
|
|
Twentieth Supplemental Indenture, dated December 5, 2008, to Indenture dated December 23, 1998. |
|
23.1
|
|
Consent of PricewaterhouseCoopers LLP. |
|
99.1
|
|
Press Release of Republic, dated December 5, 2008, announcing the consummation of the Merger. |
7