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EXHIBIT 10.71
ALLIED WASTE INDUSTRIES, INC.
2005 EXECUTIVE DEFERRED COMPENSATION PLAN
EFFECTIVE DECEMBER 1, 2004
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TABLE OF CONTENTS
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ARTICLE I PURPOSE; EFFECTIVE
DATE..............................................1
1.1
PURPOSE............................................................1
1.2 EFFECTIVE
DATE.....................................................1
ARTICLE II
DEFINITIONS.........................................................1
2.1
ACCOUNT............................................................1
2.2 ADJUSTMENT
RATE....................................................1
2.3 BASE
SALARY........................................................1
2.4
BENEFICIARY........................................................2
2.5
BOARD..............................................................2
2.6
BONUS..............................................................2
2.7
CODE...............................................................2
2.8
COMMITTEE..........................................................2
2.9
COMPANY............................................................2
2.10
COMPENSATION.......................................................2
2.11 DEFERRED STOCK
UNITS...............................................2
2.12 DEFERRAL
COMMITMENT................................................3
2.13 DEFERRAL
PERIOD....................................................3
2.14 DISCRETIONARY
CONTRIBUTION.........................................3
2.15
EMPLOYER...........................................................3
2.16 LTIP
AWARD.........................................................3
2.17
PARTICIPANT........................................................3
2.18 PARTICIPATION
AGREEMENT............................................3
2.19
PLAN...............................................................3
2.20 PLAN
YEAR..........................................................3
2.21 RESTRICTED STOCK
UNITS.............................................4
2.22 UNFORESEEABLE
EMERGENCY............................................4
2.23 VALUATION
DATE.....................................................4
2.24 VALUATION
PERIOD...................................................4
ARTICLE III PARTICIPATION AND DEFERRAL
COMMITMENTS.............................4
3.1 ELIGIBILITY AND
PARTICIPATION......................................4
3.2 FORM OF
DEFERRAL...................................................5
3.3 LIMITATIONS ON DEFERRAL
COMMITMENTS................................6
3.4 MODIFICATION OF DEFERRAL
COMMITMENT................................7
3.5 CHANGE IN EMPLOYMENT
STATUS........................................7
ARTICLE IV DEFERRED COMPENSATION
ACCOUNT.......................................8
4.1
ACCOUNT............................................................8
4.2 TIMING OF CREDITS:
WITHHOLDING.....................................8
4.3 DISCRETIONARY
CONTRIBUTIONS........................................8
4.4 DETERMINATION OF
ACCOUNT...........................................8
4.5 VESTING OF
ACCOUNT.................................................9
4.6 STATEMENT OF
ACCOUNT...............................................9
ARTICLE V ADJUSTMENT
RATE......................................................9
5.1 SELECTION OF ADJUSTMENT
RATE.......................................9
5.2 RATE OF
RETURN....................................................10
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5.3 RATE FOR DEFERRED STOCK
UNITS.....................................10
ARTICLE VI
DISTRIBUTIONS......................................................11
6.1 TIMING OF
DISTRIBUTIONS...........................................11
6.2 SCHEDULED
DISTRIBUTIONS...........................................11
6.3 DISTRIBUTIONS FOR UNFORESEEABLE
EMERGENCIES.......................13
6.4 DISTRIBUTIONS AT
TERMINATION......................................13
6.5 DEATH
BENEFITS....................................................13
6.6 WITHHOLDING FOR
TAXES.............................................14
6.7 VALUATION AND
SETTLEMENT..........................................14
6.8 PAYMENT TO
GUARDIAN...............................................14
6.9 RECEIPT ON
RELEASE................................................14
6.10 INABILITY TO LOCATE PARTICIPANT OR
BENEFICIARY....................15
ARTICLE VII BENEFICIARY
DESIGNATION...........................................15
7.1 BENEFICIARY
DESIGNATION...........................................15
7.2 CHANGING
BENEFICIARY..............................................15
7.3 COMMUNITY
PROPERTY................................................15
7.4 NO BENEFICIARY
DESIGNATION........................................16
ARTICLE VIII
ADMINISTRATION...................................................17
8.1 COMMITTEE;
DUTIES.................................................17
8.2
AGENTS............................................................17
8.3 BINDING EFFECT OF
DECISIONS.......................................17
8.4 INDEMNITY OF
COMMITTEE............................................17
8.5 COMPENSATION AND
EXPENSES.........................................18
ARTICLE IX CLAIMS
PROCEDURE...................................................18
9.1
CLAIM.............................................................18
9.2 REVIEW OF
CLAIM...................................................18
9.3 NOTICE OF DENIAL OF
CLAIM.........................................18
9.4 RECONSIDERATION OF DENIED
CLAIM...................................19
9.5 EMPLOYER TO SUPPLY
INFORMATION....................................20
ARTICLE X AMENDMENT AND TERMINATION OF
PLAN...................................20
10.1
AMENDMENT.........................................................20
10.2 EMPLOYER'S RIGHT TO
TERMINATE.....................................21
ARTICLE XI
MISCELLANEOUS......................................................21
11.1 UNFUNDED
PLAN.....................................................21
11.2 COMPANY
OBLIGATIONS...............................................21
11.3 UNSECURED GENERAL
CREDITOR........................................22
11.4 TRUST
FUND........................................................22
11.5
NONASSIGNABILITY..................................................22
11.6 NOT A CONTRACT OF
EMPLOYMENT......................................22
11.7 PROTECTIVE
PROVISIONS.............................................23
11.8 GOVERNING
LAW.....................................................23
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11.9
VALIDITY..........................................................23
11.10
NOTICE............................................................23
11.11
SUCCESSORS........................................................23
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ALLIED WASTE INDUSTRIES, INC.
2005 EXECUTIVE DEFERRED COMPENSATION PLAN
THIS PLAN is established by ALLIED WASTE INDUSTRIES, INC., a
Delaware
corporation ("Company").
ARTICLE I
PURPOSE; EFFECTIVE DATE
1.1 PURPOSE. The purpose of this 2005 Executive Deferred
Compensation Plan is to provide a tax deferred capital
accumulation opportunity
to certain executives through deferrals of salary, bonus awards,
certain
long-term incentive awards, and restricted stock units. It is
intended that the
Plan also will provide the Company with a method of rewarding
and retaining
certain executives.
1.2 EFFECTIVE DATE. The effective date of this Plan is December
1, 2004.
ARTICLE II
DEFINITIONS
For the purposes of this Plan, the following terms shall have
the meanings
indicated, unless the context clearly indicates otherwise:
2.1 ACCOUNT. "Account" means the bookkeeping account maintained
by the
Committee for each Participant.
2.2 ADJUSTMENT RATE. "Adjustment Rate" means the rate of return
on the
Participant's Account (or subaccounts thereunder) during a
Valuation Period, as
determined pursuant to Article V below.
2.3 BASE SALARY. "Base Salary" means a Participant's annual base
salary,
excluding bonuses, incentives, and other extraordinary
remuneration for services
rendered to the Company, but
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including any contributions made by a Participant to a plan
established pursuant
to Code Section 125 or qualified pursuant to Code Section
401(k).
2.4 BENEFICIARY. "Beneficiary" means the person(s) or
entity(ies)
entitled under Article VII to receive any death benefits payable
after a
Participant's death.
2.5 BOARD. "Board" means the Board of Directors of the
Company.
2.6 BONUS. "Bonus(es) " means such additional amounts of income,
over
and above the Participant's Base Salary, as the Company may pay
the Participant,
including incentive compensation.
2.7 CODE. "Code" means the Internal Revenue Code of 1986, as
thereafter
amended.
2.8 COMMITTEE. "Committee" means a committee consisting of the
Company's
Chief Financial Officer and General Counsel.
2.9 COMPANY. "Company" means Allied Waste Industries, Inc., a
Delaware
corporation. The term "Company" also shall include any entity or
sole proprietor
that adopts this Plan with the express written consent of Allied
Waste
Industries, Inc.
2.10 COMPENSATION. "Compensation" means Base Salary and Bonuses
payable
to an employee-Participant during the calendar year, before
reduction for
amounts deferred under this Plan or any other salary reduction
program.
"Compensation" also includes any LTIP Award and/or RSUs that
would be paid to
the employee-Participant but for a deferral election made under
this Plan.
Compensation does not include expense reimbursements, any form
of noncash
compensation, or benefits.
2.11 DEFERRED STOCK UNITS "Deferred Stock Units" mean Restricted
Stock
Units which are vested under the terms of the Allied Waste
Industries, Inc. 1991
Incentive Stock Plan ("91 Stock Plan") and have been deferred
under this Plan
pursuant to Article III.
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2.12 DEFERRAL COMMITMENT. "Deferral Commitment" means a
commitment made
by a Participant to defer Compensation pursuant to Article
III.
2.13 DEFERRAL PERIOD. "Deferral Period" means each calendar
year,
beginning with the 2005 calendar year.
2.14 DISCRETIONARY CONTRIBUTION. "Discretionary Contribution"
means the
Employer contribution credited to a Participant's Account under
Section 4.3.
2.15 EMPLOYER. "Employer" means the Company.
2.16 LTIP AWARD. "LTIP Award" means an amount awarded to a
Participant
under the Allied Waste Industries, Inc. Long-Term Incentive Plan
("LTIP"), which
would otherwise be payable to the Participant but for an
election to defer the
LTIP Award under this Plan.
2.17 PARTICIPANT. "Participant" means any eligible individual
who becomes
a Participant in accordance with Section 3.1.
2.18 PARTICIPATION AGREEMENT. "Participation Agreement" (also
called a
"Deferral Election Form") means the agreement submitted by a
Participant prior
to the beginning of a Deferral Period, with respect to a
Deferral Commitment
made for such Deferral Period. "Participant Agreement" also
includes an
agreement submitted by a Participant with respect to a deferral
of an LTIP Award
and/or RSUs in accordance with Sections 3.2(c) and (d).
2.19 PLAN. "Plan" means this 2005 Executive Deferred
Compensation Plan as
amended from time to time.
2.20 PLAN YEAR. "Plan Year" means the calendar year; provided
that there
shall be an initial short Plan Year of December 1, 2004 through
December 31,
2004.
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2.21 RESTRICTED STOCK UNITS. "Restricted Stock Units" or "RSUs"
mean units
of restricted stock granted to a Participant under the 91 Stock
Plan, which
would otherwise be payable to the Participant but for an
election to defer the
RSUs under this Plan.
2.22 UNFORESEEABLE EMERGENCY. "Unforeseeable Emergency" means a
severe
financial hardship to the Participant resulting from a sudden
and unexpected
illness or accident of the Participant, the Participant's
spouse, or a dependent
of the Participant (as defined in Code Section 152(a)), loss of
the
Participant's property due to casualty, or other similar
extraordinary and
unforeseeable circumstances arising as a result of events beyond
the control of
the Participant.
2.23 VALUATION DATE. "Valuation Date" means the last day of the
Plan Year
or such other, more frequent, dates as determined by the
Committee.
2.24 VALUATION PERIOD. "Valuation Period" means the period
beginning on
the day after each Valuation Date and ending on the immediately
following
Valuation Date.
ARTICLE III
PARTICIPATION AND DEFERRAL COMMITMENTS
3.1 ELIGIBILITY AND PARTICIPATION.
(a) Eligibility. Eligibility to participate in the Plan shall
be
limited to the Company's corporate officers who earn an annual
Base Salary of at
least $130,000, or who satisfy such other criteria as may be
established by the
Chief Executive Officer of the Company, and who are designated
from time to time
by the Chief Executive Officer.
(b) Participation. An eligible individual may elect to
participate
in the Plan with respect to any Deferral Period by submitting a
Participation
Agreement to the Committee by the fifteenth (15th) day of the
month immediately
preceding the beginning of the Deferral Period.
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Notwithstanding the foregoing, participation with respect to
deferral elections
for an LTIP Award or RSUs is permitted as provided in Sections
3.2(c) and (d).
(c) Partial-Year Participation. If an individual first
becomes
eligible to participate during a Deferral Period, the eligible
individual may
elect to participate in the Plan by submitting a Participation
Agreement to the
Committee within thirty (30) days after the individual is
designated as eligible
to participate, and participation will begin as of the first
paycycle beginning
in the month following the submission of the Participation
Agreement to the
Committee.
3.2 FORM OF DEFERRAL. A Participant may elect Deferral
Commitments in
the Participation Agreement as follows:
(a) Salary Deferral Commitment. A salary Deferral Commitment
shall
be related to the Base Salary earned by and payable to a
Participant during the
Deferral Period. The amount to be deferred shall be stated
either as a
percentage or a flat dollar amount.
(b) Bonus Deferral Commitment. A bonus Deferral Commitment
shall
be related to the Bonus earned by and payable to the Participant
for the
Deferral Period. Bonuses are deemed earned at such time as the
Company
communicates its determination of Bonuses to the affected
Participant. The
amount to be deferred may be stated either as a percentage or a
flat dollar
amount. A bonus Deferral Commitment shall only be valid for one
Deferral Period.
(c) LTIP Award Deferral Commitment. If permitted by the
Committee
for the LTIP, a Participant may elect to defer his or her LTIP
Award for a
Performance Cycle (as defined in the LTIP). Such election will
be applicable for
that LTIP Award only and must be made at least one year prior to
the close of
the relevant Performance Cycle. The amount to be deferred may be
stated either
as a percentage or a flat dollar amount. If a Participant elects
to defer his or
her LTIP Award for a Performance Cycle, all of the Participant's
rights to his
or her LTIP Award will be deemed to
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have been transferred to this Plan, effective as of the date the
LTIP Award
would have otherwise been payable to the Participant from the
LTIP, but for the
Participant's deferral election.
(d) RSU Deferral Commitment. A Participant may elect to defer
his
or her RSUs. Such election will be applicable only for the RSUs
identified in
the Deferral Election Form and must be made at least one year
prior to vesting
date (or, if later, within the later of 30 days of the grant
date or 30 days of
the date of the award agreement) of such RSUs. The amount to be
deferred may be
stated either as a percentage or a specified amount. If a
Participant elects to
defer his or her RSUs, all of the Participant's rights to his or
her RSUs will
be deemed to have been transferred to this Plan, effective as of
the date the
RSUs would have otherwise been paid out under the terms of the
91 Stock Plan
(but for the Participant's deferral election).
3.3 LIMITATIONS ON DEFERRAL COMMITMENTS. The following
limitations shall
apply to Deferral Commitments:
(a) Minimum. The minimum deferral amount shall be five
thousand
dollars ($5,000) for each Deferral Period. The minimum deferral
amount can be
satisfied from either the Participant's Base Salary, Bonus
and/or LTIP Award.
The minimum deferral amount does not apply to RSU deferrals.
(b) Maximum. The maximum deferral amount shall be one
hundred
percent (100%) of the Participant's Base Salary (pro-rated based
on the number
of months remaining in the Deferral Period if the Participant
begins
participating after the beginning of the Deferral Period), one
hundred percent
(100%) of the Participant's Bonus, one hundred percent (100%) of
the
Participant's LTIP Award; and/or one hundred percent (100%) of
the Participant's
RSUs; provided, however, that no Deferral Commitment shall
reduce a
Participant's total Compensation below the amount necessary to
satisfy the
following obligations: (1) applicable employment taxes on
amounts
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deferred; (2) withholding requirements for other employee
benefit plan elections
made by the Participant and/or required by the Company; and (3)
all applicable
tax withholding for Compensation that cannot be deferred.
(c) Changes in Minimum or Maximum. The Committee may change
the
minimum or maximum deferral amounts from time to time by giving
written notice
to all Participants. No such change may affect a Deferral
Commitment for a
Deferral Period, which is made prior to the Committee's
action.
3.4 MODIFICATION OF DEFERRAL COMMITMENT. Generally, a
Deferral
Commitment made for a Deferral Period is irrevocable once the
Deferral Period
for which the Deferral Commitment was made commences. However,
with the consent
of the Committee, a Participant may elect to suspend his
Deferral Commitment
once during a Deferral Period with respect to Base Salary and/or
Bonuses that
have not been paid, by giving the Committee 20-days prior
written notice of the
Participant's election to suspend his Deferral Commitment.
Absent the
Committee's consent, no such suspensions shall be permitted.
3.5 CHANGE IN EMPLOYMENT STATUS. If the Chief Executive Officer
of the
Company determines that a Participant's performance is no longer
at a level that
deserves to be rewarded through participation in the Plan, or
that the
Participant otherwise no longer satisfies the eligibility
criteria of Section
3.1, but the Participant's employment with Employer is not
terminated, the
Participant's existing Deferral Commitment shall terminate at
the end of the
Deferral Period and no new Deferral Commitment may be made by
such Participant
after notice of such determination is given. Also,
notwithstanding any provision
to the contrary, if it is determined or reasonably believed,
based on a judicial
or administrative determination or an opinion of the Company's
legal counsel
that a Participant is not a "management" or "highly compensated"
employee within
the meaning of
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Sections 201, 301, and 401 of the Employee Retirement Income
Security Act of
1974, as amended ("ERISA"), such individual shall cease to be a
Participant and
his Account shall be paid to him in a lump sum as soon as
practicable after the
adverse determination is made.
ARTICLE IV
DEFERRED COMPENSATION ACCOUNT
4.1 ACCOUNT. The Committee shall establish and maintain an
Account for
each Participant under the Plan. Separate subaccounts may be
maintained to
reflect different forms of distribution and payment
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