As
filed with the Securities and Exchange Commission on May 7, 2008
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
COVANTA HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware
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95-6021257
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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40 Lane Road
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Fairfield, New Jersey
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07004
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(Address of Principal Executive Offices)
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(Zip Code)
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Covanta Holding Corporation Equity Award Plan for Employees and Officers
Covanta Holding Corporation Equity Award Plan for Directors
(Full title of plan)
Anthony J. Orlando
President and Chief Executive Officer
Covanta Holding Corporation
40 Lane Road
Fairfield, New Jersey 07004
(Name and address of agent for service)
(973) 882-9000
(Telephone number, including area code, of agent for
service)
with copies to:
Timothy J. Simpson, Esq.
Executive Vice President,
General Counsel and Secretary
Covanta Holding Corporation
40 Lane Road
Fairfield, New Jersey 07004
(973) 882-9000
David S. Stone, Esq.
Neal, Gerber & Eisenberg LLP
Two North LaSalle Street
Chicago, Illinois 60602
(312) 269-8000
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):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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maximum
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maximum
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Title of securities
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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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to be registered
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registered (1)
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per share (2)
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offering price (2)
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registration fee
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Common Stock (par value $.10 per share)
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6,300,000
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$27.43
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$172,809,000
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$6,792
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(1)
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Pursuant to Rule 416 of the Securities Act of 1933, also covers such additional number of
shares as may be required in the event of a stock dividend, stock split, recapitalization or
other similar event.
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(2)
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Estimated solely for the purpose of calculating the registration fee in accordance with Rules
457(c) and (h) of the Securities Act of 1933 and based on the average of the high and low
prices of a share of Common Stock as reported on the New York Stock
Exchange on May 2, 2008.
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TABLE OF CONTENTS
EXPLANATORY STATEMENT
This Registration Statement on Form S-8 is filed to register an additional 6,300,000 shares of
common stock, par value $.10 per share (the Common Stock), of Covanta Holding Corporation (the
Company), as a result of an increase of 6,000,000 shares of Common Stock issuable under the
Companys Equity Award Plan for Employees and Officers, as amended (the Employees Plan), and an
increase of 300,000 shares of Common Stock issuable under the Companys Equity Award Plan for
Directors (the Directors Plan and together with the Employees Plan, the Plans). The Company
previously filed Registration Statements on Form S-8 relating to the Plans with the Securities and
Exchange Commission (the Commission) on October 7, 2004 (File No. 333-119609) and on December 1,
2005 (File No. 333-130046). Pursuant to General Instruction E of Form S-8, this Registration
Statement has been prepared in accordance therewith and the previously filed Registration
Statements are hereby incorporated by reference herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
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4.1
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Covanta Holding Corporation Equity Award Plan for Employees and Officers (incorporated by
reference to Appendix A of the Companys Definitive Proxy Statement, filed on April 1,
2008).
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4.2
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Covanta Holding Corporation Equity Award Plan for Directors (incorporated by reference to
Appendix B of the Companys Definitive Proxy Statement, filed on April 1, 2008).
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4.3
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Form of Covanta Holding Corporation Stock Option Agreement.
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4.4
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Form of Covanta Holding Corporation Restricted Stock Award Agreement.
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4.5
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Form of Covanta Holding Company Restricted Stock Award Agreement for Directors
(incorporated by reference to the Companys Current Report on Form 8-K, filed on June 2,
2006).
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5.1
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Opinion of Neal, Gerber & Eisenberg LLP.
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23.1
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Consent of Independent Registered Public Accounting Firm of Covanta Holding Corporation
and Subsidiaries, dated May 2, 2008, by Ernst & Young LLP.
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23.2
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Consent of Independent Registered Public Accounting Firm of Quezon Power, Inc.,
dated May 2, 2008, by Sycip Gorres Velayo & Co., a Member
Practice of Ernst & Young Global Limited.
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23.3
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Consent of Neal, Gerber & Eisenberg LLP (included in Exhibit 5.1).
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24.1
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Powers of Attorney (included as part of the signature page of this Registration Statement).
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 Fairfield, State of New Jersey, on May 1, 2008.
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COVANTA HOLDING CORPORATION
(Registrant)
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By:
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/s/ ANTHONY J. ORLANDO
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Anthony J. Orlando
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President and Chief Executive Officer
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints ANTHONY J. ORLANDO and TIMOTHY J. SIMPSON, and each of them, his/her true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution, to sign, execute
and file with the Securities and Exchange Commission (or any other governmental or regulatory
authority), for us and in our names in the capacities indicated below, this registration statement
on Form S-8 (including all amendments thereto) with all exhibits and any and all documents required
to be filed with respect thereto, granting unto said attorneys-in-fact and agents and each of them,
full power and authority to do and to perform each and every act and thing necessary and/or
desirable to be done in and about the premises in order to effectuate the same as fully to all
intents and purposes as he himself/she herself might or could do if personally present, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration
Statement on Form S-8 has been signed on May 1, 2008, by the following persons in the capacities
indicated:
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Signature
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Title
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/s/ Samuel Zell
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Chairman of the Board
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Samuel Zell
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/s/ Anthony J. Orlando
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President and Chief Executive Officer and Director
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Anthony J. Orlando
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(Principal Executive Officer)
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/s/ Mark A. Pytosh
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Executive Vice President and Chief Financial Officer
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Mark A. Pytosh
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(Principal Financial Officer)
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/s/ Thomas E. Bucks
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Vice President and Chief Accounting Officer
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Thomas E. Bucks
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(Principal Accounting Officer)
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/s/ David M. Barse
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Director
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David M. Barse
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/s/ Ronald J. Broglio
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Director
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Ronald J. Broglio
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/s/ Peter C.B. Bynoe
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Director
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Peter C.B. Bynoe
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/s/ Richard L. Huber
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Director
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Richard L. Huber
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Signature
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Title
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/s/ Linda J. Fisher
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Director
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Linda J. Fisher
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/s/ William C. Pate
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Director
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William C. Pate
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/s/ Robert S. Silberman
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Director
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Robert S. Silberman
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/s/ Jean Smith
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Director
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Jean Smith
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/s/ Clayton Yeutter
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Director
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Clayton Yeutter
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EXHIBIT
INDEX
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4.1
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Covanta Holding Corporation Equity Award Plan for Employees and Officers (incorporated by
reference to Appendix A of the Companys Definitive Proxy Statement, filed on April 1,
2008).
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4.2
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Covanta Holding Corporation Equity Award Plan for Directors (incorporated by reference to
Appendix B of the Companys Definitive Proxy Statement, filed April 1, 2008).
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4.3
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Form of Covanta Holding Corporation Stock Option Agreement.
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4.4
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Form of Covanta Holding Corporation Restricted Stock Award Agreement.
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4.5
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Form of Covanta Holding Company Restricted Stock Award Agreement for Directors
(incorporated by reference to the Companys Current Report on Form 8-K, filed on June 2,
2006).
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5.1
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Opinion of Neal, Gerber & Eisenberg LLP.
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23.1
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Consent of Independent Registered Public Accounting Firm of Covanta Holding Corporation
and Subsidiaries, dated May 2, 2008, by Ernst & Young LLP.
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23.2
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Consent of Independent Registered Public Accounting Firm of Quezon Power, Inc., dated
May 2, 2008, by Sycip Gorres Velayo & Co., a Member Firm of Ernst
& Young Global Limited.
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23.3
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Consent of Neal, Gerber & Eisenberg LLP (included in Exhibit 5.1).
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24.1
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Powers of Attorney (included as part of the signature page of this Registration Statement).
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Exhibit 4.3
COVANTA HOLDING CORPORATION
STOCK OPTION AGREEMENT
FOR EMPLOYEES AND OFFICERS
THIS STOCK OPTION AGREEMENT
, is made as of this ___day of
, ___(the Grant Date)
between Covanta Holding Corporation, a Delaware corporation (the Company), and
(the Optionee). Capitalized terms used herein that are not otherwise
defined shall have the meaning ascribed to them in the Covanta Holding Corporation 2005 Equity
Award Plan for Employees and Officers (the Plan).
W I T N E S S E T H:
WHEREAS
, the Company desires to provide the Optionee with the opportunity to purchase shares
of its common stock, par value $0.10 per share (Common Stock), in accordance with the terms of
the Plan; and
WHEREAS,
the Optionee wishes to acquire the right to purchase shares of Common Stock granted
hereby.
NOW, THEREFORE
, in consideration of the premises and of the mutual covenants and agreements
hereinafter contained, the parties hereto mutually covenant and agree as follows:
1.
Grant of Option
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The Company hereby grants to the Optionee the option to purchase
all or part of an aggregate of
shares of Common Stock, on the terms and
conditions set forth in the Plan, subject to the vesting, exercise and other requirements set forth
in this Agreement, to the extent not inconsistent with the Plan (the Option). Of the shares
subject to this Option,
are intended to qualify as Incentive Stock Options, as defined in
and subject to Section 422 of the Internal Revenue Code (Code), to the extent these Options, when
aggregated with other incentive stock options granted to the Optionee, do not exceed the $100,000
per year limitation of Section 422(d) of the Code. The remainder shall be Non-Qualified Stock
Options, which are not intended to qualify as Incentive Stock Options.
2.
Purchase Price
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The per share purchase price of the shares of Common Stock
issuable upon exercise of the Option shall be $
, which shall be not less than 100%
of the Fair Market Value (as determined by the Committee in accordance with the Plan) on the
effective date of this grant.
3.
Term
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The term of the Option shall expire as of the earliest of the following:
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(a)
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the date that is ten (10) years from the date of grant, for
both Incentive Stock Options and Non-Qualified Stock Options;
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(b)
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the date the Optionees employment with the Company, or any
Subsidiary or Affiliate, is terminated for Cause, as defined in the Plan;
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(c)
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to the extent the Option is vested on the date of Optionees
termination of employment, (i) for Incentive Stock Options, the date that is
three (3) months after the Optionees employment with the Company, or any
Subsidiary or Affiliate, is terminated
other than
(i) for Cause or (ii) upon
the Optionees death, Disability or Retirement, as defined in the Plan
(provided that if the Optionee dies within such three (3)-month period, any
such unexercised Option shall continue to be exercisable for twelve (12) months
from the date of such death or the exercise period that applies for purposes of
Section 422 of the Code); or (ii) for Non-Qualified Stock Options, the date
that is twelve (12) months after the Optionees employment with the Company, or
any Subsidiary or Affiliate, is terminated
other than
(i) for Cause or (ii)
upon the Optionees death, Disability or Retirement;
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(d)
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to the extent the Option is vested on the date of Optionees
termination of employment, the date that is twelve (12) months after the
Optionees employment with the Company, or any Subsidiary or Affiliate, is
terminated as a result of the Optionees Disability, as defined in the Plan;
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(e)
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to the extent the Option is vested on the date of Optionees
termination of employment due to death, the date that is twelve (12) months
after the Optionee dies while employed by the Company, or any Subsidiary or
Affiliate (or, for Incentive Stock Options, the exercise period that applies
for purposes of Section 422 of the Code); or
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(f)
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to the extent the Option is vested on the date of Optionees
termination of employment due to Retirement, (i) for Incentive Stock Options,
the date that is three (3) months after the date the Optionees employment with
the Company, or any Subsidiary or Affiliate, is terminated as a result of the
Optionees Retirement, as defined in the Plan (provided that if the Optionee
dies within such three (3)-month period, any such unexercised Option shall
continue to be exercisable for twelve (12) months from the date of such death
or the exercise period that applies for purposes of Section 422 of the Code);
or (ii) for Non-Qualified Stock Options, the date that is three (3) years after
the Optionees employment with the Company, or any Subsidiary or Affiliate, is
terminated as a result of the Optionees Retirement, as defined in the Plan
(provided that if the Optionee dies within such three (3)-year period, any such
unexercised Option shall continue to be exercisable for twelve (12) months from
the date of such death).
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In the event of termination of the Optionees employment for Cause, the Optionee shall forfeit all
rights hereunder with respect to any vested or nonvested Options as of the date of such
termination. Subject to the foregoing terms of this Section 3, in the event of Optionees
termination of employment without Cause, the Optionee shall forfeit all rights hereunder with
respect to any
nonvested
Options as of the date of such termination, including the right to
purchase shares of Common Stock under the Option.
4.
Vesting
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(a) Subject to any forfeiture provisions in this Agreement or in the Plan, and unless
expressly provided to the contrary hereunder, the Optionee shall become vested in the Options
granted hereunder, to the extent employed by the Company or its Affiliates or Subsidiaries as of
each applicable vesting date, as of the close of business on the vesting dates shown below:
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Percentage Vested
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Vesting Date
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(b) Notwithstanding the vesting schedule contained in Section 4(a) hereof, in the event of a
Change in Control, then the Optionee shall become 100% vested in the Option following such
Change in Control of the Company. For purposes of this Agreement, a Change in Control shall
mean the occurrence of any of the following events, each of which shall be determined independently
of the others: (i) any Person (as hereinafter defined), other than a holder of at least 10% of
the outstanding voting power of the Company as of the date of this Agreement, becomes a beneficial
owner (as such term is used in Rule 13d-3 promulgated under the Securities Exchange Act of 1934,
as amended (the Exchange Act)) of a majority of the stock of the Company entitled to vote in the
election of directors of the Company; (ii) individuals who are Continuing Directors of the Company
(as hereinafter defined) cease to constitute a majority of the members of the Board; (iii)
stockholders of the Company adopt and consummate a plan of complete or substantial liquidation or
an agreement providing for the distribution of all or substantially all of the assets of the
Company; (iv) the Company is a party to a merger, consolidation, other form of business combination
or a sale of all or substantially all of its assets, with an unaffiliated third party, unless the
business of the Company following consummation of such merger, consolidation or other business
combination is continued following any such transaction by a resulting entity (which may be, but
need not be, the Company) and the stockholders of the Company immediately prior to such transaction
hold, directly or indirectly, at least a majority of the voting power of the resulting entity;
provided,
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however
, that a merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) shall not constitute a Change in Control; (v) there is a Change in
Control
of the Company of a nature that is reported in response to item 5.01 of Current Report on Form
8-K or any similar item, schedule or form under the Exchange Act, as in effect at the time of the
change, whether or not the Company is then subject to such reporting requirements;
provided,
however
, that for purposes of this Agreement a Change in Control shall not be deemed to occur if
the Person or Persons deemed to have acquired control is a holder of at least 10% of the
outstanding voting power of the Company as of the date of this Agreement; or (vi) the Company
consummates a transaction which constitutes a Rule 13e-3 transaction (as such term is defined in
Rule 13e-3 of the Exchange Act) prior to the termination or expiration of this Agreement.
(c) In the event of a Rule 13e-3 transaction, then effective coincident with the consummation
of such Rule 13e-3 transaction, all unvested Options issued hereunder shall immediately vest and be
exercisable by Optionee notwithstanding the vesting schedules set forth in Section 4(a) hereof;
provided, however,
that notwithstanding the foregoing, in connection with the consummation of such
Change in Control or Rule 13e-3 transaction, all such unvested Options then held by Optionee shall
be deemed to vest and become exercisable at such time in order to permit Optionee to participate in
such transaction.
(d) In the event that Employee is an employee of Covanta Energy Corporation, a wholly-owned
subsidiary of the Company (Covanta), then the references to the Company in Section 4(b)(i),
(iii), (iv), (v) and (vi) above shall also include, in the alternative, Covanta.
(e) For purposes of this Section 4, Continuing Directors shall mean the members of the Board
on the date of execution of this Agreement, provided that any person becoming a member of the Board
subsequent to such date whose election or nomination for election was supported by at least a
majority of the directors who then comprised the Continuing Directors shall be considered to be a
Continuing Director; and the term Person is used as such
term is used in Sections 13(d) and 14(d) of
the Exchange Act.
5.
Exercise
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The Optionee shall not be entitled to exercise the Option until it is
vested. Subject to the provisions of Section 3, the Option may be exercised only while the
Optionee is employed by the Company or an Affiliate or Subsidiary of the Company. In no event
shall the Option be exercisable after the expiration date of the Option.
6.
Nontransferability
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The Option shall not be transferable or assignable other than
by will or the laws of descent and distribution, or pursuant to a qualified domestic relations
order as described in Section 206(d) of the Employee Retirement Income Security Act of 1974, as
amended, subject to Article 3. Any attempt to assign, transfer, pledge, hypothecate, dispose of or
subject the Option to execution, attachment or similar process shall be null and void and without
effect. The Option may be exercised during the lifetime of the Optionee only by the
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Optionee, his
guardian or his legal representative, or by an alternate payee pursuant to a qualified domestic
relations order.
7.
Method of Exercising Options
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(a) Subject to the terms and conditions of this Agreement, the Option may be exercised by
written notice delivered to the Company or its designated representative in the manner and at the
address for notices set forth in Section 10 hereof. Such notice shall state that the Option is
being exercised thereby and shall specify the number of shares of Common Stock involved. The
notice shall be signed by the person or persons exercising the Option and shall be accompanied by
payment in full of the Option price for such shares of Common Stock, such payment to be made in (i)
cash, as described in Section 8(c) of the Plan; (ii) subject to Section 8(c) of the Plan, that
number of Mature Shares of unrestricted Common Stock, or vested Restricted Stock, which has an
aggregate Fair Market Value as of the date of exercise equal to the aggregate exercise price for
all of the shares of Common Stock subject to such exercise; (iii) a combination of methods (i) and
(ii); or (iv) other means authorized by the Committee in accordance with Section 8(c) of the Plan.
If the tender of shares of Common Stock as payment of the Option price would result in the issuance
of fractional shares of Common Stock, the Company shall instead return the balance in cash or by
check to the Optionee. If the Option is exercised by any person or persons other than the
Optionee, the notice described in this Section 7(a) shall be accompanied by appropriate proof (as
determined by the Committee) of the right of such person or persons to exercise the Option under
the terms of the Plan and this Agreement. The Company shall issue and deliver, in the name of the
person or persons exercising the Option, a certificate or certificates representing such shares as
soon as practicable after notice and payment are received and the exercise is approved.
(b) The Option may be exercised in accordance with the terms of the Plan and this Agreement
with respect to any whole number of shares subject to the Option, but in no event may an Option be
exercised as to fewer than one hundred (100) shares at any one time, or the remaining shares
covered by the Option if less than two hundred (200).
(c) The Optionee shall have no rights of a stockholder with respect to shares of Common Stock
to be acquired by the exercise of the Option until the date of issuance of a certificate or
certificates representing such shares. Except as otherwise expressly provided in the Plan, no
adjustment shall be made for dividends or other rights for which the record date is prior to the
date such stock certificate is issued. All shares of Common Stock purchased upon the exercise of
the Option as provided herein shall be fully paid and non-assessable.
(d) The Optionee agrees that no later than the date as of which an amount first becomes
includible in Optionees gross income for federal income tax purposes with respect to the Option,
the Optionee shall pay to the Company, or make arrangements satisfactory to the Company regarding
the payment of, any federal, state, local or foreign taxes of any kind required by law to be
withheld with respect to such amount. Withholding obligations may be settled with
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Common Stock,
including Common Stock that is acquired upon exercise of the Option. The obligations of the
Company under this Agreement and the Plan shall be conditional on such payment or arrangements, and
the Company, its Affiliates and Subsidiaries shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment otherwise due to
the Employee.
8.
Adjustment upon Changes in Capitalization
.
Subject to any required action by the
stockholders of the Company and the terms of the Plan, if, during the terms of this Agreement,
there shall be any increase or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or reclassification of the
Common Stock or any other increase or decrease in the number of issued shares of Common Stock
effected without receipt of consideration by the Company (as defined in Section 14 of the Plan),
the Committee may, in its sole discretion, make an appropriate and equitable adjustment in the
aggregate number, kind and option price of shares subject to this Option;
provided, however
, that
in no event shall the Option price be adjusted below the par value of a share of Common Stock, nor
shall any fraction of a share be issued upon the exercise of the Option.
9.
Conditions Upon Issuance of Option
.
As a condition to the exercise of the Option,
the Company may require the Optionee to (i) represent and warrant at the time of any such exercise
that the Common Stock is being purchased only for investment and without any present intention to
sell or distribute such shares if, in the opinion of legal counsel for the Company, such a
representation is required by any relevant provision of law; and (ii) enter into a lock-up or
similar agreement with the Company with respect to such shares prohibiting, for up to 90 days, the
disposition of such shares.
10.
Notices
.
Each notice relating to this Agreement shall be in writing and shall be
sufficiently given if delivered by registered or certified mail, or by a nationally recognized
overnight delivery service, with postage or charges prepaid, to the address hereinafter provided in
this Section 10. Any such notice or communication given by first-class mail shall be deemed to
have been given two business days after the date so mailed, and such notice or communication given
by overnight delivery service shall be deemed to have been given one business day after the date so
sent, provided such notice or communication arrives at its destination. Each notice to the Company
shall be addressed to it at its offices at 40 Lane Road, Fairfield, New Jersey 07004 (attention:
Chief Financial Officer), with a copy to the Secretary of the Company or to such other designee of
the Company. Each notice to the Optionee or other person or persons then entitled to exercise the
Option shall be addressed to the Optionee or such other person or persons at the Optionees address
shown on the signature page hereof.
11.
Limitations
.
Nothing contained in this Agreement shall be construed as conferring
upon the Optionee the right to continue as an Employee or Officer or shall affect the right of the
Company, in its sole discretion, to terminate the Optionees employment at any time, with or
without cause.
6
12.
Incorporation of the Plan
.
Notwithstanding the terms and conditions contained
herein, this Agreement shall be subject to and governed by all the terms and conditions of the
Plan, which is hereby incorporated by reference. In the event of any discrepancy or inconsistency
between the terms and conditions of this Agreement and of the Plan, the terms and conditions
of the Plan shall control.
13.
Interpretation
.
The interpretation and construction of any terms or conditions of
the Plan, or of this Agreement or other matters related to the Plan by the Committee, shall be
final and conclusive.
14.
Severability
.
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement or the application thereof to any party or circumstance shall be prohibited by or
be invalid under applicable law, then such provision shall be ineffective to the minimal extent of
such provision or the remaining provisions of this Agreement or the application of such provision
to other parties or circumstances.
15.
Enforceability
.
This Agreement shall be binding upon the Optionee and such
Optionees estate, personal representative and beneficiaries.
16.
Pronouns, Singular/Plural
.
Any use of any masculine pronoun shall include the
feminine and vice-versa, and any use of a singular shall include the plural or vice-versa, as the
context and facts may require.
17.
Counterpart Execution
.
This Agreement may be executed in counterparts, each of
which shall constitute an original and all of which, when taken together, shall constitute the
entire document.
7
IN WITNESS WHEREOF,
the Company has caused this Agreement to be duly executed by its officer
thereunto duly authorized, and the Optionee has executed this Agreement all as of the day and year
first above written.
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COVANTA HOLDING CORPORATION
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By:
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Its:
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OPTIONEE:
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OPTIONEES ADDRESS:
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8
Exhibit 4.4
COVANTA HOLDING CORPORATION
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT is made and entered into as of this 20
th
day of February, 2008 (the
Grant Date) by and between Covanta Holding Corporation, a Delaware corporation (the Company),
and
(the Employee), pursuant to the Covanta Holding Corporation 2005 Equity
Award Plan for Employees and Officers (the Plan). This Agreement and the award contained herein
is subject to the terms and conditions set forth in the Plan, which are incorporated by reference
herein, and the following terms and conditions:
1.
Award of Restricted Stock
. In consideration for the prior and continued service of
Employee to Covanta Energy Corporation (Covanta), a wholly-owned subsidiary of the Company, and
as part of the Long-Term Incentive Program of Covanta, as adopted by the Company, the Company
hereby awards to the Employee, subject to the further terms and conditions set forth in this
Agreement,
shares (the Restricted Stock) of its common stock, $0.10 par value per
share (the Common Stock), as of the Grant Date.
2.
Rights of Stockholder
. Employee shall have all of the rights of a stockholder with
respect to the shares of Restricted Stock (including the right to vote the shares of Restricted
Stock and the right to receive dividends with respect to the shares of Restricted Stock), except as
provided in Section 3 and Section 6 hereof.
3.
Restrictions on Transfer
. Except as otherwise provided in this Agreement, Employee
may not sell, transfer, assign, pledge, encumber or otherwise dispose of any of the shares of
Restricted Stock or the rights granted hereunder (any such disposition or encumbrance being
referred to herein as a Transfer). Any Transfer or purported Transfer by Employee of any of the
shares of Restricted Stock shall be null and void and the Company shall not recognize or give
effect to such Transfer on its books and records or recognize the person to whom such purported
Transfer has been made as the legal or beneficial holder of such shares. The shares of Restricted
Stock shall not be subject to sale, execution, pledge, attachment, encumbrance or other process and
no person shall be entitled to exercise any rights of Employee as the holder of such Restricted
Stock by virtue of any attempted execution, attachment or other process until the restrictions
imposed herein on the Transfer of the shares of Restricted Stock shall lapse as provided in Section
4 hereof. All certificates representing the shares of Restricted Stock shall have endorsed thereon
the following legend (in addition to any other legends that are customary or required on
certificates representing shares of the Companys Common Stock):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AND OTHER TERMS AND CONDITIONS (INCLUDING FORFEITURE) SET FORTH IN A
RESTRICTED STOCK AWARD AGREEMENT DATED AS OF FEBRUARY 20, 2008,
BETWEEN THE COMPANY AND THE REGISTERED HOLDER, A COPY OF WHICH IS ON FILE AT
THE PRINCIPAL OFFICE OF THE COMPANY. ANY TRANSFER OR PURPORTED TRANSFER OF THE
SHARES REPRESENTED BY THIS CERTIFICATE IN VIOLATION OF SUCH RESTRICTED STOCK AWARD
AGREEMENT SHALL BE NULL AND VOID.
If and when the restrictions imposed herein on the transfer of shares of Restricted Stock
shall have lapsed as provided in Section 4 hereof, certificates for such shares without the
restricted stock legend set forth in this section shall be delivered to the Employee. Until such
restrictions have lapsed, any certificates representing any shares of Restricted Stock shall be
held in custody by the Company. Employee may request the removal of such restricted stock legend
from certificates representing any shares of Restricted Stock as to which the restrictions imposed
herein on the transfer thereof shall have lapsed as provided in Section 4 hereof. Such request
shall be in writing to the General Counsel of the Company.
4.
Lapse of Restrictions and Forfeiture
. Subject to Section 4(c) hereof, the
restrictions on transfer imposed on the shares of Restricted Stock by this Section 4 shall lapse
with respect to the shares of Restricted Stock and the Employee will vest, or gain actual
ownership of the shares of Restricted Stock in accordance with the terms of Sections 4(a) or (b)
hereof.
(a)
Restricted Stock Time Vesting
.
percent (___%) of the shares of Restricted
Stock awarded hereunder, consisting of
shares (Time Vesting Restricted Stock), shall
vest as of the dates and in the amounts set forth below provided that Employee is employed on such
date by the Company or its Affiliates or Subsidiaries:
A.
shares and representing
of the Time Vesting Restricted
Stock, shall vest on
;
B.
shares and representing
of the Time Vesting Restricted
Stock, shall vest on
; and
C.
shares and representing
of the Time Vesting Restricted
Stock, shall vest on
.
(b)
Restricted Stock Performance Vesting
.
percent (___%) of the shares of
Restricted Stock awarded hereunder, consisting of
shares (Performance Vesting
Restricted Stock), shall vest as of the dates and in the amounts set forth below provided that
Employee is employed on such date by the Company or its Affiliates or Subsidiaries:
A.
First Tranche Amount
. The First Tranche Amount consisting of
shares and representing
of the Performance Vesting Restricted Stock
shall vest on
(i) pursuant to the satisfaction of the applicable
performance based metric of Free Cash Flow, as set forth in the
Long-Term
Incentive Plan Guidelines or (ii) pursuant to the satisfaction of such other applicable
performance criteria and schedule determined by the Board of Directors of the Company (the
Board) or the Compensation Committee of the Companys Board of Directors (Compensation
Committee);
2
B.
Second Tranche Amount
. The Second Tranche Amount consisting of
shares and representing
of the Performance Vesting Restricted Stock,
shall vest on
, (i) pursuant to the satisfaction of the applicable performance
based metric of Free Cash Flow, as set forth in the ___Long-Term Incentive Plan Guidelines
or (ii) pursuant to the satisfaction of such other applicable performance criteria and
schedule determined by the Board or the Compensation Committee; and
C.
Third Tranche Amount
. The Third Tranche Amount consisting of
shares and representing
of the Performance Vesting Restricted Stock,
shall vest on
, (i) pursuant to the satisfaction of the applicable performance based
metric of Free Cash Flow, as set forth in the ___Long-Term Incentive Plan Guidelines or
(ii) pursuant to the satisfaction of such other applicable performance criteria and schedule
determined by the Board or the Compensation Committee.
D.
Forfeiture of Unearned Restricted Stock
. In the event that any shares of
Performance Vesting Restricted Stock do not vest pursuant to any of Subsection A, B or C of
this Section 4(b), then such Performance Vesting Restricted Stock shall be forfeited and
cancelled as of such date.
(c) Notwithstanding anything to the contrary in Sections 4(a) or (b), in the event that prior
to the lapse of restrictions on transfer pursuant to Sections 4(a) or (b), Employees employment
with all of the Company, its Affiliates and Subsidiaries is terminated for any reason other than
death or Disability, Employee shall forfeit, on the date on which his employment is terminated, all
of the shares of Restricted Stock as to which the restrictions on transfer imposed thereon by
Section 3 hereof shall not have lapsed prior to such date.
(d) Notwithstanding anything to the contrary in Sections 4(a) or (b) hereof, in the event of a
Change in Control, the restrictions on transfer imposed by Section 3 on the shares of Restricted
Stock shall lapse. For purposes of this Agreement, a Change in Control shall mean the occurrence
of any of the following events, each of which shall be determined independently of the others: (i)
any Person (as hereinafter defined), other than a holder of at least 10% of the outstanding
voting power of the Company as of the date of this Agreement, becomes a beneficial owner (as such
term is used in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the
Exchange Act)) of a majority of the stock of the Company entitled to vote in the election of
directors of the Company; (ii) individuals who are Continuing Directors of the Company (as
hereinafter defined) cease to constitute a majority of
the members of the Board; (iii) stockholders of the Company adopt and consummate a plan of
complete or substantial liquidation or an agreement providing for the distribution of all or
substantially all of the assets of the Company; (iv) the Company is a party to a merger,
consolidation, other form of business combination or a sale of all or substantially all of its
assets, with an unaffiliated third party, unless the business of the Company following consummation
of such merger, consolidation or other business combination is continued following any such
transaction by a resulting entity (which may be, but need not be, the Company) and the stockholders
of the Company immediately prior to such transaction hold, directly or indirectly, at
3
least a
majority of the voting power of the resulting entity;
provided, however
, that a merger or
consolidation effected to implement a recapitalization of the Company (or similar transaction)
shall not constitute a Change in Control; (v) there is a Change in Control of the Company of a
nature that is reported in response to item 5.01 of Current Report on Form 8-K or any similar item,
schedule or form under the Exchange Act, as in effect at the time of the change, whether or not the
Company is then subject to such reporting requirements;
provided, however
, that for purposes of
this Agreement a Change in Control shall not be deemed to occur if the Person or Persons deemed to
have acquired control is a holder of at least 10% of the outstanding voting power of the Company as
of the date of this Agreement; or (vi) the Company consummates a transaction which constitutes a
Rule 13e-3 transaction (as such term is defined in Rule 13e-3 of the Exchange Act) prior to the
termination or expiration of this Agreement.
(e) In the event of a Rule 13e-3 transaction, then effective coincident with the consummation
of such Rule 13e-3 transaction, the restrictions on transfer imposed by Section 3 on the shares of
Restricted Stock shall lapse;
provided, however,
that notwithstanding the foregoing, in connection
with the consummation of such Change in Control or Rule 13e-3 transaction, all such unvested shares
of Restricted Stock then held by Employee shall be deemed to vest and become exercisable at such
time in order to permit Employee to participate in such transaction.
(f) In the event that Employee is an employee of Covanta, then the references to the Company
in Section 4(d)(i), (iii), (iv), (v) and (vi) above shall also include, in the alternative,
Covanta.
(g) For purposes of this Section 4, Continuing Directors shall mean the members of the Board
on the date of execution of this Agreement, provided that any person becoming a member of the Board
subsequent to such date whose election or nomination for election was supported by at least a
majority of the directors who then comprised the Continuing Directors shall be considered to be a
Continuing Director; and the term Person is used as such
term is used in Sections 13(d) and 14(d) of
the Exchange Act.
5.
Transferability
. Notwithstanding anything contained in this Agreement to the
contrary, shares of Restricted Stock are not transferable or assignable by the Employee until the
restrictions thereon have lapsed.
6.
Adjustment Provisions
. If, during the term of this Agreement, there shall be any
merger, reorganization, consolidation, recapitalization, stock dividend, stock split, rights
offering or extraordinary distribution with respect to the Common Stock, or other change in
corporate structure affecting the Common Stock, the Committee shall make or cause to be made an
appropriate and equitable substitution, adjustment or treatment with respect to the Restricted
Stock, including a substitution or adjustment in the aggregate number or kind of shares subject to
this Agreement, notwithstanding that the Restricted Stock are subject to the restrictions on
transfer imposed by Section 3 above. Any securities, awards or rights issued pursuant to this
Section 6 shall be subject to the same restrictions as the underlying Restricted Stock to which
they relate.
4
7.
Tax Withholding
. As a condition precedent to the receipt of any shares of
Restricted Stock hereunder, Employee agrees to pay to the Company, at such times as the Company
shall determine, such amounts as the Company shall deem necessary to satisfy any withholding taxes
due on income that Employee recognizes as a result of (i) the lapse of the restrictions imposed by
Section 3 hereof on the shares of Restricted Stock or (ii) Employees filing of an election
pursuant to Section 83(b) of the Internal Revenue Code of 1986 (the Code), as amended, with
respect to the shares of Restricted Stock. The obligations of the Company under this Agreement and
the Plan shall be conditional on such payment or arrangements, and the Company, its Affiliates and
Subsidiaries shall, to the extent permitted by law, have the right to deduct any such taxes from
any payment otherwise due to the Employee. In addition, Employee may elect, unless otherwise
determined by the Compensation Committee, to satisfy the withholding requirement by having the
Company withhold shares of vested Restricted Stock with a Fair Market Value, as of the date of such
withholding, sufficient to satisfy the withholding obligation.
8.
Registration
. This grant is subject to the condition that if at any time the Board
or Compensation Committee shall determine, in its discretion, that the listing of the shares of
Common Stock subject hereto on any securities exchange, or the registration or qualification of
such shares under any federal or state law, or the consent or approval of any regulatory body,
shall be necessary or desirable as a condition of, or in connection with, the grant, receipt or
delivery of shares hereunder, such grant, receipt or delivery will not be effected unless and until
such listing, registration, qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board or Compensation Committee. The Company agrees
to make every reasonable effort to effect or obtain any such listing, registration, qualification,
consent or approval.
9.
Rights of Employee
. In no event shall the granting of the Restricted Stock or the
other provisions hereof or the acceptance of the Restricted Stock by Employee interfere with or
limit in any way the right of the Company, an Affiliate or Subsidiary to terminate Employees
employment at any time, nor confer upon Employee any right to continue in the employ of the
Company, an Affiliate or Subsidiary for any period of time or to continue his or her present or any
other rate of compensation.
10.
Construction
.
(a)
Successors
. This Agreement and all the terms and provisions hereof shall
be binding upon and shall inure to the benefit of the parties hereto and their respective
legal representatives, heirs and successors, except as expressly herein otherwise provided.
(b)
Entire Agreement; Modification
. This Agreement contains the entire
understanding between the parties with respect to the matters referred to herein. Subject
to Section 16(c) of the Plan, this Agreement may be amended by the Board or Compensation
Committee at any time.
(c)
Capitalized Terms; Headings; Pronouns; Governing Law
. Capitalized terms
used and not otherwise defined herein are deemed to have the same meanings as in the Plan.
The descriptive headings of the respective sections and subsections of this
5
Agreement are
inserted for convenience of reference only and shall not be deemed to modify or construe the
provisions which follow them. Any use of any masculine pronoun shall include the feminine
and vice-versa and any use of a singular, the plural and vice-versa, as the context and
facts may require. The construction and interpretation of this Agreement shall be governed
in all respects by the laws of the State of Delaware.
(d)
Notices
. Each notice relating to this Agreement shall be in writing and
shall be sufficiently given if delivered by registered or certified mail, or by a nationally
recognized overnight delivery service, with postage or charges prepaid, to the address
hereinafter provided in this Section 10. Any such notice or communication given by
first-class mail shall be deemed to have been given two business days after the date so
mailed, and such notice or communication given by overnight delivery service shall be deemed
to have been given one business day after the date so sent, provided such notice or
communication arrives at its destination. Each notice to the Company shall be addressed to
it at its offices at 40 Lane Road, Fairfield, New Jersey 07004 (attention: Chief Financial
Officer), with a copy to the Secretary of the Company or to such other designee of the
Company. Each notice to the Employee shall be addressed to the Employee at the Employees
address shown on the signature page hereof.
(e)
Severability
. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement or the application thereof to any party or circumstance shall be
prohibited by or invalid under applicable law, such provision shall be ineffective to the
minimal extent of such provision or the remaining provisions of this Agreement or the
application of such provision to other parties or circumstances.
(f)
Counterpart Execution
. This Agreement may be executed in counterparts,
each of which shall constitute an original and all of which, when taken together, shall
constitute the entire document.
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COVANTA HOLDING CORPORATION
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By:
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Title
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Accepted this _______________ day of
___________________________, 2008.
_____________________________________________________________________
EMPLOYEES ADDRESS:
6
[NEAL GERBER & EISENBERG LLP LETTERHEAD]
EXHIBIT 5.1
May 7, 2008
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
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Re:
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Covanta Holding Corporation
Registration Statement on Form S-8
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Ladies and Gentlemen:
We are counsel to Covanta Holding Corporation, a Delaware corporation (the Company), and in
such capacity we have assisted in the preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the Act), of the Companys Registration
Statement on Form S-8 (the Registration Statement) relating to 6,000,000 shares of the Companys
common stock, par value $.10 per share (the Common Stock), that may be issued from time to time
pursuant to the Covanta Holding Corporation Equity Award Plan for Employees and Officers (as
amended effective May 1, 2008, the Employees Plan) and relating to 300,000 shares of Common Stock
that may be issued from time to time under the Covanta Holding Corporation Equity Award Plan for
Directors (as amended effective May 1, 2008, the Directors Plan and collectively with the
Employees Plan, the Plans).
In connection with this opinion, we have (i) investigated such questions of law, (ii) examined
originals or certified, conformed or reproduction copies of such agreements, instruments, documents
and records of the Company, such certificates of public officials and such other documents, and
(iii) received such information from officers and representatives of the Company, as we have deemed
necessary or appropriate for the purposes of this opinion. For purposes of this opinion, we have
assumed the authenticity of all documents submitted to us as originals, the conformity to the
originals of all documents submitted to us as copies and the authenticity of the originals of all
documents submitted to us as copies. We have also assumed the legal capacity of all natural
persons, the genuineness of the signatures of persons signing all documents in connection with
which this opinion is rendered, the authority of all persons signing such documents on behalf of
the parties thereto other than the Company, the availability for
issuance of a sufficient number of shares of Common Stock at the time
any shares of Common Stock are issued pursuant to the Plans, and the due authorization, execution and delivery of all
documents by the parties thereto other than the Company. As to any facts material to the opinions
expressed herein, we have relied upon the statements and representations of officers and other
representatives of the Company and others.
Based upon the foregoing, we are of the opinion that (i) the issuance by the Company pursuant
to the Plans of the 6,300,000 shares of Common Stock that are registered on the Registration
Statement has been duly and validly authorized by all necessary corporate action on the part of the
Company and (ii) when issued and paid for as described in the Plans and the applicable agreements
thereunder, such shares will be duly and validly issued and outstanding, fully paid and
non-assessable shares of Common Stock.
We express no opinion as to any laws other than (i) the federal laws of the United States of
America and (ii) the General Corporation Law of the State of Delaware, the applicable provisions of
the Delaware constitution and reported decisions of the Delaware courts interpreting these laws.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ NEAL, GERBER & EISENBERG LLP