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EXHIBIT 10.7
STOCK PURCHASE AGREEMENT
Dated as of September 30, 1997
among
Waste Connections, Inc.
and
the Purchasers Listed
on Exhibit A
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as
of September 30, 1997, by and among Waste Connections, Inc., a Delaware
corporation (the "Company"), and each of the Purchasers listed on Exhibit A
attached hereto (collectively the "Purchasers" and individually either a "Series
A Purchaser," if the purchaser buys Series A Preferred Stock, or a "Common
Purchaser," if the purchaser buys Common Stock, with reference to the following
facts:
The Company wishes to issue and sell to the Series A Purchasers an
aggregate of 2,500,000 shares of the Series A Preferred Stock of the Company
(the "Series A Preferred Stock") and to the Common Purchasers an aggregate of
2,500,000 shares of Common Stock of the Company (the "Common Stock"). Each of
the Purchasers wishes to purchase either the Series A Preferred Stock or the
Common Stock or both on the terms and subject to the conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and conditions set forth in this Agreement, the parties agree
as follows:
1. Purchase and Sale of the Series A Preferred Stock and the Common
Stock.
1.1 Sale and Issuance of the Series A Preferred Stock and the Common
Stock.
(a) The Company shall adopt and file with the Secretary of State of
the State of Delaware on or before the Closing (as defined below) the
Certificate of Designations, Preferences and Rights of Preferred Stock (the
"Certificate of Designation") in the form attached hereto as Exhibit B.
(b) Subject to the terms and conditions of this Agreement, each of
the Purchasers, severally and not jointly, agrees to purchase, the Company
agrees to sell and issue to the Purchasers, an aggregate of 2,500,000 shares of
Series A Preferred Stock at a price of $2.80 per share and an aggregate of
2,500,000 shares of Common Stock at a price of $0.01 per share, in consideration
for cash, which shares shall be issued to each Purchaser in such amount as
provided in Exhibit A.
1.2 Closing.
(a) The purchase and sale of the Series A Preferred Stock and the
Common Stock shall take place at Shartsis, Xxxxxx & Xxxxxxxx LLP, Xxx Xxxxxxxx
Xxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, on September 30, 1997, at 10:00
a.m., California time, or at such other time and place as the Company and the
Purchasers mutually agree upon (the "Closing").
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(b) At the Closing the Company shall deliver to each Purchaser a
certificate representing the number of shares of Series A Preferred Stock or
Common Stock as listed next to each Purchaser's name on Exhibit A and the
Purchaser shall pay to the Company $2.80 per share of Series A Preferred Stock
acquired and $0.01 per share for Common Stock acquired, in cash, in the form of
a check or federal funds wire transfer.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to each of the Purchasers that, except as set forth on
the Schedules attached hereto:
2.1 Organization and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own and
operate its properties and assets, to carry on its business as now and
heretofore conducted, to issue and sell the Series A Preferred Stock and the
Common Stock and to execute, deliver and carry out the terms of the Related
Documents. The Company has conducted no operations and was formed to acquire,
concurrent with the Closing hereunder, certain solid waste assets in the states
of Washington and Idaho ("the Acquisition"). The Company is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
in which the ownership of its properties or the nature of its business make such
qualification necessary and where a failure to be so qualified would have a
material adverse effect on the business, operations, prospects or condition,
financial or otherwise, of the Company and its Subsidiaries taken as a whole
(the "Condition of the Company").
2.2 Capitalization.
(a) The Company has been recently formed and has not yet issued any
shares of capital stock.
(b) Except as set forth in Schedule 2.2 and pursuant to the
transactions contemplated by this Agreement, there are not on the date hereof
authorized, outstanding or contemplated any subscriptions, options, conversion
rights, warrants or other agreements, securities or commitments obligating the
Company to issue, deliver or sell, or cause to be issued, delivered or sold, any
shares of capital stock of the Company or any securities convertible into or
exchangeable for shares of capital stock of the Company or obligating the
Company to grant, extend or enter into any such agreement or commitment.
(c) The designations, powers, preferences, rights, qualifications,
limitations and restrictions in respect of authorized capital stock of the
Company are as set forth in the Certificate of Designation, and all such
designations, powers, preferences, rights, qualifications,
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limitations and restrictions are valid, binding and enforceable and in
accordance with all applicable laws.
(d) The Series A Preferred Stock and the Common Stock which is being
purchased hereunder, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable, subject to the truth and accuracy of the
representations and warranties of the Purchasers contained in Section 3 of this
Agreement.
2.3 Execution and Binding Effect. The execution and delivery of the
Related Documents, the adoption of the Company's Certificate of Incorporation
(the "Certificate of Incorporation") and the Certificate of Designation and the
consummation of the transactions contemplated hereby or thereby have been duly
authorized by all necessary corporate action on the part of the Company. The
Related Documents have been duly executed and delivered by the Company and the
Related Documents constitute legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their respective terms,
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors. The Series A Preferred Stock and the Common Stock will be
free of restrictions on transfer other than under applicable federal and state
securities laws and as provided in the Related Documents.
2.4 Authorization and Filings. Except as set forth in Schedule 2.4,
no authorization, consent, approval, license, exemption or other action by, and
no registration, qualification, designation, declaration or filing with, any
Authority or any other Person is required to be made or obtained by the Company
in order to execute or deliver the Related Documents or to consummate the
transactions contemplated hereby or thereby.
2.5 Absence of Conflicts. Neither the execution and delivery of the
Related Documents nor the consummation of the transactions contemplated hereby
or thereby nor the performance of or compliance with the terms and conditions in
the Related Documents will (a) violate any Law; (b) conflict with or result in a
breach or violation of or a default or loss of benefit under or permit the
acceleration of any obligation under any provision of the Certificate of
Incorporation or Bylaws of the Company, or any agreement or instrument to which
the Company is a party or by which the Company is bound, or (c) result in the
creation or imposition of any Lien on any property or asset of the Company, in
each case or in the aggregate which would have a material adverse effect on the
Condition of the Company.
2.6 Taxes. The Company has filed on a timely basis, within the
original filing period or any applicable extension period, all returns and
reports of all Taxes, including, without limitation, federal income tax returns,
withholding tax returns and declarations of estimated Tax and Tax reports, that
are required to be filed with respect to the Company and or its income,
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properties or operations, except where the failure to so file would not have a
material adverse effect on the Condition of the Company.
2.7 Contracts. Except as set forth in Schedule 2.7, (a) the Company
is not in violation of or default under its Certificate of Incorporation,
Bylaws, any other governing document or any Material Contract, and no condition
or event exists that after notice or lapse of time or both, would result in a
breach or violation of, or a default or loss of benefit by the Company
thereunder; (b) to the best of the Company's knowledge, none of the other
parties to any Material Contract are in violation of or default under any
Material Contract in any material respect which would cause a material adverse
effect on the Condition of the Company; and (c) the Company has not received any
notice of cancellation or any written communication threatening cancellation of
any Material Contract by any party thereto. Schedule 2.7 lists all Material
Contracts.
2.8 Permits; Compliance with Laws. The Company has obtained or will
obtain and maintains or will maintain in full force and effect all permits,
licenses, consents, approvals, registrations, memberships, authorizations and
qualifications under all applicable Laws, and with all applicable Authorities,
required for the conduct by it of its businesses and the ownership or possession
by it of its properties and assets, except to the extent the failure to so
obtain and maintain would not have a material adverse effect, individually or in
the aggregate, on the Condition of the Company. The Company is in compliance in
all respects with all Laws applicable to it or to the conduct by it of its
businesses or to its ownership and possession of its properties and assets,
except where the failure to so comply, does not, individually or in the
aggregate, have a material adverse effect on the Condition of the Company.
2.9 Debt. Following the Closing of the Acquisition, the Company will
be indebted in the approximate amounts set forth on Schedule 2.9, which
indebtedness will be secured by all of the Company's assets.
2.10 Brokers and Finders. The Company has not employed any broker,
finder, consultant or intermediary in connection with the transactions
contemplated by the Related Documents that would be entitled to a broker's,
finder's or similar fee or commission in connection therewith.
2.11 Reservation of Shares. The Common Stock issuable on conversion
of the Series A Preferred Stock has been duly and validly reserved for issuance
and upon conversion will be duly and validly issued, fully paid and
nonassessable and will be free of restrictions on transfer other than
restrictions on transfer under applicable Federal and state securities laws and
as provided herein.
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2.12 Registration Rights. Except as required pursuant to the
Investors' Rights Agreement, the Company is presently not under any obligation,
and has not granted any rights, to register (as defined in Section 1.1 of the
Investors' Rights Agreement) any of the Company's presently outstanding
securities or any of its securities that may hereafter be issued.
2.13 Full Disclosure. This Agreement, the Exhibits hereto, the
Related Documents and all other documents delivered by the Company to the
Purchasers or their attorneys or agents in connection herewith or therewith at
the Closing or with the transactions contemplated hereby or thereby, do not
contain any untrue statement of a material fact, in the light of the
circumstances under which they were made, nor, to the Company's knowledge, omit
to state a material fact necessary in order to make the statements contained
herein or therein, in the light of the circumstances under which they were made,
not misleading. To the Company's knowledge, there are no facts which
(individually or in the aggregate) materially adversely affect the Condition of
the Company that have not been set forth in the Agreement, the Exhibits hereto,
the Related Documents or in other documents delivered to the Purchasers or their
attorneys or agents in connection herewith; provided that it is understood that
the level of disclosure to the Purchasers is less than that which would be
provided in a securities offering registered under the 1933 Act, including,
without limitation, the omission of risk factors, in reliance on the
sophistication and investment experience of the Purchasers.
3. Representations and Warranties of the Purchasers. This Agreement
is made with each Purchaser in reliance upon that Purchaser's representations to
the Company, which by that Purchaser's acceptance hereof that Purchaser
severally, but not jointly, represents and warrants, that:
3.1 Investment Intent. The Purchasers are acquiring the Series A
Preferred Stock and the Common Stock issuable hereunder or upon conversion of
the Series A Preferred Stock (collectively, "Securities") pursuant to this
Agreement with the Purchasers' own funds for the Purchasers' own account and not
as a nominee or agent. No one else has any interest, beneficial or otherwise, in
any of the Securities to be purchased by the Purchasers. Except as provided
herein, the Purchasers are not obligated to transfer any Securities to anyone
else nor do the Purchasers have any agreements or understandings to do so. The
Purchasers are purchasing the Securities for investment for an indefinite period
and not with a view to the sale or distribution of any Securities, by public or
private sale or other disposition, and the Purchasers have no intention of
selling, granting any participation in or otherwise distributing or disposing of
any Securities. The Purchasers do not intend to subdivide the Purchasers'
purchase of Securities with anyone. Notwithstanding the foregoing, the
disposition of the Purchasers' property shall be at all times within the
Purchasers' own control, and that the Purchasers' right to sell or otherwise
dispose of all or any part of the Securities purchased by the Purchasers
pursuant to an effective registration statement under the 1933 Act or under an
exemption
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available from such registration available under the 1933 Act shall not be
prejudiced; provided that the Purchasers comply with Section 6.11.
3.2 No Public Offering. The Purchasers are able to bear the economic
risk of the Purchasers' investment in the Securities. The Purchasers are aware
that the Purchasers must be prepared to hold the Securities for an indefinite
period and that the Securities have not been registered under the 1933 Act or
registered or qualified under any state securities law, on the ground, among
others, that no distribution or public offering of Securities is to be effected
and Securities are being issued by the Company without any public offering
within the meaning of Section 4(2) of the 1933 Act. The Purchasers have had an
opportunity to discuss the Company's business, management and financial affairs
with its management. The Purchasers are not subscribing for the Securities as a
result of or subsequent to any advertisement, article, notice, or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio or any solicitation of a subscription by a person not
previously known to the Purchasers in connection with investments in securities
generally.
3.3 Certificates to be Legended. The Purchasers understand that each
Security will bear a legend on the face thereof (or on the reverse thereof with
a reference to such legend on the face thereof) required by the Securities and
Exchange Commission or a state securities commission.
3.4 Securities Will be "Restricted Securities". The Purchasers
understand that the Securities will be "restricted securities" as that term is
defined in Rule 144 under the 1933 Act and, accordingly, that the Securities
must be held indefinitely unless they are subsequently registered under the 1933
Act or an exemption from such registration is available. The Purchasers
understand and agree that except as provided herein the Company is not under any
obligation to register Securities under the 1933 Act or to comply with
Regulation A or any other exemption and that Rule 144 is not currently available
for sales of the Securities.
3.5 Accredited Investor. The Purchasers have been advised or are
aware of the provisions of Regulation D under the 1933 Act relating to the
accreditation of investors, and by checking the appropriate boxes below, each of
the Purchasers represents that such Purchaser is an "accredited investor" as
defined in Regulation D under the 0000 Xxx.
___ (a) A natural person (not an entity) whose individual net worth, or
joint net worth with his or her spouse, at the time of his or her
purchase exceeds $1,000,000;
___ (b) A natural person (not an entity) who [initial appropriate
blank(s)] (i) ___ had an individual income in excess of $200,000 in
each of the preceding two years or (ii) ___ had joint income with his
or her spouse in excess of $300,000 in each of
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those years and (iii) in either case (i) or (ii), has a reasonable
expectation of reaching the same income level in the current year;
___ (c) An employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, [initial appropriate
blank] (i) if the investment decision is made by a plan fiduciary, as
defined in section 3(21) thereof, which is (1) ___ a bank, (2) ___ a
savings and loan association, (3) ___ an insurance company or (4) ___
a registered investment adviser, or (ii) ___ if the employee benefit
plan has total assets in excess of $5,000,000, or (iii) ___ if the
employee benefit plan is a self-directed plan, with investment
decisions made solely by persons that are accredited investors;
___ (d) A trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the securities of the Company being
offered, whose purchase is directed by a person who has such knowledge
and experience in financial and business matters that he or she is
capable of evaluating the merits and risks of the prospective
investment in the Company;
___ (e) A bank as defined in section 3(a)(2) of the 1933 Act, whether
acting in its individual or fiduciary capacity;
___ (f) A savings and loan association or other institution as defined in
section 3(a)(5)(A) of the 1933 Act, whether acting in its individual
or fiduciary capacity;
___ (g) A broker or dealer registered pursuant to section 15 of the
Securities Exchange Act of 1934;
___ (h) An insurance company as defined in section 2(13) of the 1933 Act;
___ (i) An investment company registered under the Investment Company Act
of 1940 or a business development company as defined in section
2(a)(48) of the Investment Company Act of 1940;
___ (j) A Small Business Investment Company licensed by the U.S. Small
Business Administration under section 301(c) or (d) of the Small
Business Investment Act of 1958;
___ (k) A private business development company as defined in section
202(a)(22) of the Investment Advisers Act of 1940;
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___ (l) [Initial applicable blank] (i) ___ An organization described in
section 501(c)(3) of the Internal Revenue Code, as amended December
29, 1981, or (ii) ___ a corporation, a Massachusetts or similar
business trust, or a partnership not formed for the specific purpose
of acquiring the securities of the Company being offered, or (iii) ___
a plan established or maintained by a state or its political
subdivisions or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, in either
case (i), (ii) or (iii) with total assets in excess of $5,000,000 (in
case (i), such total assets include endowment, annuity and life income
funds and are to be determined according to the investor's most recent
audited financial statements);
___ (m) A director or executive officer of the Company; or
___ (n) An entity in which all the equity owners are accredited investors.
If you have indicated category (c)(iii) or (n) above, please list below the
names and categories of accreditation of the accredited investors making the
investment decisions (category (c)(iii)) or who are the equity owners (category
(n)) (attach additional pages if necessary):
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Accredited
Investor
Person Making Decision/Equity Owner Category
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Special Note for Trusts, Partnerships and Certain Plans: The application of the
"accredited investor" categories to trusts (including Massachusetts or similar
business trusts), partnerships and self-employed individual retirement plans is
subject to complex regulatory interpretations and may differ under state and
federal law. Accordingly, such an entity attempting to qualify may be required
to deliver additional information, including a satisfactory opinion of its
counsel.
3.6 Sophistication of the Purchaser. The Purchasers have such
knowledge and experience in financial and business matters that the Purchasers
are capable of evaluating the merits and risks of the Purchasers' investment
contemplated by this Agreement and have the capacity to protect the Purchasers'
own interests. The Purchasers acknowledge that investment in the Securities is
highly speculative and involves a substantial and high degree of risk of loss of
the Purchasers' entire investment. The Purchasers have adequate means of
providing for current and anticipated financial needs and contingencies, are
able to bear the economic risk for an indefinite period of time and have no need
for liquidity of the investment in the Securities and could afford complete loss
of such investment.
3.7 Authorization. All partnership, limited liability or corporate
action on the part of the Purchasers (if applicable) necessary for the
authorization, execution and delivery of the Related Documents and the
performance of all obligations of the Purchasers under the Related Documents has
been taken or will be taken on or prior to the Closing, and the Related
Documents constitute legal, valid and binding agreements of the Purchasers,
enforceable against the Purchasers in accordance with their respective terms,
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors.
3.8 Brokers' Fees. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Purchasers.
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3.9 Governmental Consents. No consent, approval, order or
authorization of, or representation, qualification, designation, declaration or
filings with, any United States federal, state, local or provincial government
authority on the part of the Purchasers is required in connection with the
Purchasers' valid execution, delivery or performance of the Related Documents or
the purchase of the Common Stock or the Series A Preferred Stock by the
Purchasers.
3.10 Review of Documents. The Purchasers have conducted a thorough
investigation of the Company. The Purchasers have carefully reviewed all the
information provided to them by the Company and are familiar with the proposed
business, operations, properties and management of the Company by virtue of such
review and of their relationship with the Company. The Purchasers are entering
into this Agreement and the transactions contemplated hereby in reliance on
their own investigation and review of the information concerning the Company
provided to it and the representations contained in this Agreement.
4. The Purchasers' Conditions to Closings. The Purchasers' obligation
to purchase and pay for the Common Stock and the Series A Preferred Stock to be
sold to the Purchasers at the Closing is subject to the fulfillment to the
Purchasers' satisfaction, prior to or at such Closing, of the following
conditions:
4.1 Representations and Warranties. The representations and warranties
of the Company contained in Section 2 shall be true in all material respects on
and as of the Closing with the same effect as though such representations and
warranties had been made on and as of the date of such Closing.
4.2 Performance. The Company shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed by it or complied in all material respects with on or
before the Closing.
4.3 Certificate of Designation. The Company shall have adopted and
filed the Certificate of Designation with the Secretary of State of the State of
Delaware on or before the Closing.
4.4 Schedule of Exceptions. Any revisions to the schedules attached
hereto delivered by the Company after the date of this Agreement are signed by
the Purchasers and shall not contain anything which causes the Purchaser to
believe that it is imprudent for it to proceed with the Closing.
4.5 Investors' Rights Agreement. The Investors' Rights Agreement in
the form attached hereto as Exhibit C (the "Investors' Rights Agreement") shall
have been executed by all the parties thereto.
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4.6 Stockholders Agreement. The Stockholders Agreement in the form
attached hereto as Exhibit D (the "Stockholders Agreement") shall have been
executed by all the parties thereto.
4.7 BFI Purchase and Sale Agreement. The Company shall have entered
into a Purchase and Sale Agreement with Xxxxxxxx Xxxxxx Industries ("BFI")
relating to the Acquisition.
4.8 Financing. The Company shall have arranged the financing described
on Schedule 2.9 or suitable alternate financing in the same amount.
4.9 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Purchasers, and the Purchasers shall have received all such counterpart original
and certified or other copies of such documents as they may reasonably request.
4.10 Election of Directors. Effective upon the consummation of the
Closing, the members of the Board of Directors shall consist of: Xxxxxx X.
Xxxxxxxxxxxx; J. Xxxxxxxx Xxxxxx and Xxxxx X. Xxxxxx.
5. The Company's Conditions to Closing. The Company's obligation to
deliver the Series A Preferred Stock and the Common Stock at the Closing is
subject to the fulfillment to its satisfaction, prior to or at such Closing, of
the following conditions:
5.1 Representations and Warranties. The representations and warranties
of the Purchasers contained in Section 3 hereof shall be true in all material
respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing.
5.2 Payment of Purchase Price. Each Purchaser shall have delivered the
purchase price specified in Section 1.2 for each share of Common Stock or Series
A Preferred Stock purchased by that Purchaser.
5.3 Certificate of Designation. The Company shall have adopted and
filed the Certificate of Designation with the Secretary of State of the State of
Delaware on or before the Closing.
5.4 Stockholders Agreement. The Stockholders Agreement shall have been
executed by all the parties thereto.
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5.5 Investors' Rights Agreement. The Investors' Rights Agreement shall
have been executed by all the parties thereto.
5.6 BFI Purchase and Sale Agreement. The Company shall have entered
into a Purchase and Sale Agreement with Xxxxxxxx Xxxxxx Industries relating to
the Acquisition.
5.7 Financing. The Company shall have arranged the financing described
on Schedule 2.9 or suitable alternate financing in the same amount.
6. Miscellaneous.
6.1 Survival of Warranties. The warranties, representations and
covenants of the Company and the Purchasers contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing.
6.2 Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and a Majority of the Investors. Any
amendment or waiver effective in accordance with this Section 6.2 shall be
binding upon each holder of any Common Stock and Series A Preferred Stock, each
future holder of all such Common Stock and Series A Preferred Stock and the
Company.
6.3 Notices. Any notice, consent, authorization or other communication
to be given hereunder shall be in writing and shall be deemed duly given and
received when delivered personally or transmitted by facsimile transmission with
receipt acknowledged by the addressee or three days after being mailed by first
class mail, or the next business day after being deposited for next-day delivery
with a nationally recognized overnight delivery service, charges and postage
prepaid, properly addressed to the party to receive such notice at the following
address for such party (or at such other address as shall be specified by like
notice):
(a) if to the Company, to:
Waste Connections, Inc.
0000 Xxxxxxx Xxx
Xx Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with copies to:
Shartsis, Xxxxxx & Xxxxxxxx LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Purchasers, to the address indicated on Exhibit A.
6.4 Entire Agreement. This Agreement (including the Schedules and
Exhibits), and the Related Documents contain the entire agreement of the parties
and supersede all prior negotiations, correspondence, agreements and
understandings, written and oral, between or among the parties, regarding the
subject matter hereof.
6.5 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Common Stock or Series A Preferred Stock). Nothing
in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
6.6 Severability. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, shall be held
invalid or unenforceable, the remainder of this Agreement, or the application of
such provision to Persons or circumstances other than those to which it is held
to be invalid or unenforceable, shall not be affected thereby.
6.7 Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the Law of the State of California, without
regard to that state's conflict of laws principles.
6.8 Interpretation. This Agreement shall be construed according to its
fair language. The rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
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6.9 Further Assurances. Each party shall execute such other and
further certificates, instruments and other documents as may be necessary and
proper to implement, complete and perfect the transactions contemplated by this
Agreement.
6.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, and all of which
together shall be considered one and the same agreement.
6.11 Assignment. The Purchasers may assign or transfer all or any part
of the Securities provided that the conditions specified in this Section are
satisfied, which conditions are intended to insure compliance with the
provisions of the 1933 Act and state securities laws in respect of the transfer
of any of the Securities. Prior to any transfer or attempted transfer of any
Securities, the holder thereof shall give the Company written notice of its
intention to transfer, describing briefly the nature of any such proposed
transfer. If, in the written opinion of counsel for such holder, in form and
substance reasonably satisfactory to the Company and its counsel, the proposed
transfer may be effected without registration of such Securities, the Securities
proposed to be transferred may be transferred in accordance with the terms of
said notice and in compliance with applicable securities laws and regulations.
The Company shall not be required to effect any such transfer prior to the
receipt of such favorable opinion. The Company shall not assign this Agreement
or any rights hereunder or delegate any duties hereunder. Any attempted or
purported assignment or delegation in violation of the preceding sentence shall
be void.
6.12 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.13 Corporate Securities Law. THE SALE OF THE SECURITIES WHICH ARE
THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH
QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM
QUALIFICATION BY SECTION 25102(f) OF THE CALIFORNIA CORPORATIONS CODE. THE
RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH
QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
14
16
6.14 Exculpation Among Purchasers. Each Purchaser acknowledges that it
is not relying upon any person, firm, or corporation, other than the Company and
its officers and directors, in making its investment or decision to invest in
the Company. Each Purchaser agrees that no Purchaser nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Purchaser shall be liable for any action heretofore or hereafter taken or
omitted to be taken by any of them in connection with the Common Stock or Series
A Preferred Stock or the Common Stock issuable upon conversion of such shares of
Series A Preferred Stock.
7. Definitions.
7.1 Glossary. For purposes of this Agreement, the following terms
shall have the following meanings, which shall be equally applicable to both the
singular and plural forms of any of such terms:
"AUTHORITY" shall mean any government or political subdivision, or any
agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury, arbitrator or
mediator, in each case whether federal, state, local or foreign.
"LAW" shall mean any judgment, decree, order, statute, law, ordinance,
rule or regulation of any Authority (including common law), constitution,
statute, treaty, regulation, rule, ordinance, judgment, order, foreign
injunction, writ, decree or award of any Authority.
"LIEN" shall mean any voluntary or involuntary lien, security
interest, mortgage, pledge, charge, encumbrance, title defect or title retention
agreement that are entered into in the ordinary course of business.
"MAJORITY OF THE INVESTORS" means (i) holders of the Common Stock who
in the aggregate hold more than 50% of the Common Stock and (ii) holders of the
Preferred Stock who in the aggregate hold more than 50% of the Preferred Stock.
"MATERIAL CONTRACT" means any agreement to which the Company is a
party or by which any of its properties or assets are bound or affected material
to the Condition of the Company.
"PERSON" shall mean a natural person, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, limited
liability company, Authority, or any other entity.
15
17
"RELATED DOCUMENTS" shall mean this Agreement, the Certificate of
Designation, the Investors' Rights Agreement and the Stockholders Agreement.
"TAX" or "TAXES" shall be understood to include any tax or similar
governmental charge, impost or levy (including, without limitation, income
taxes, franchise taxes, transfer taxes or fees, sales taxes, excise taxes, ad
valorem taxes, withholding taxes, minimum taxes, use taxes, occupancy taxes,
property taxes, employment taxes, stamp taxes or windfall profit taxes),
together with any related liabilities, penalties, fines, additions to tax or
interest, imposed by the United States or any state, county, local or foreign
government or subdivision or agency therefor.
"1933 ACT" shall mean the Securities Act of 1933, as amended.
7.2 Index. The following terms shall have the respective meanings
specified on the indicated page of this Agreement:
Agreement........................................................1
Certificate of Designation.......................................1
Certificate of Incorporation.....................................2
Closing..........................................................1
Common Purchaser.................................................1
Company..........................................................1
Condition of the Company.........................................2
Investors' Rights Agreement......................................9
Purchasers.......................................................1
Securities.......................................................5
Series A Preferred Stock.........................................1
Series A Purchaser...............................................1
Stockholders Agreement...........................................9
16
18
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first set forth above.
WASTE CONNECTIONS, INC.
By:
-------------------------------------
Xxxxxx X. Xxxxxxxxxxxx
President and CEO
PURCHASER:
----------------------------------------
(Name of Purchaser)
By:
-------------------------------------
Name:
-----------------------------
Title:
----------------------------
NOTE: EACH PURCHASER SHOULD CHECK THE APPROPRIATE LINE IN SECTION 3.5 AND
FILL IN SUCH PURCHASER'S ADDRESS ON EXHIBIT A.
17
19
EXHIBIT A
20
EXHIBIT B
CERTIFICATE OF DESIGNATION
21
EXHIBIT C
INVESTORS' RIGHTS AGREEMENT
22
EXHIBIT D
STOCKHOLDERS AGREEMENT
23
TABLE OF CONTENTS
PAGE
----
1. Purchase and Sale of the Series A Preferred Stock and the Common
Stock................................................................ 1
1.1 Sale and Issuance of the Series A Preferred Stock and the Common
Stock............................................................ 1
1.2 Closing.......................................................... 1
2. Representations and Warranties of the Company........................ 2
2.1 Organization and Qualification................................... 2
2.2 Capitalization................................................... 2
2.3 Execution and Binding Effect..................................... 3
2.4 Authorization and Filings........................................ 3
2.5 Absence of Conflicts............................................. 3
2.6 Taxes............................................................ 3
2.7 Contracts........................................................ 3
2.8 Permits; Compliance with Laws.................................... 4
2.9 Debt............................................................. 4
2.10 Brokers and Finders............................................. 4
2.11 Reservation of Shares........................................... 4
2.12 Registration Rights............................................. 4
2.13 Full Disclosure................................................. 4
3. Representations and Warranties of the Purchasers..................... 5
3.1 Investment Intent................................................ 5
3.2 No Public Offering............................................... 5
3.3 Certificates to be Legended...................................... 6
3.4 Securities Will be "Restricted Securities........................ 6
3.5 Accredited Investor.............................................. 6
3.6 Sophistication of the Purchaser.................................. 8
3.7 Authorization.................................................... 8
3.8 Brokers' Fees.................................................... 8
3.9 Governmental Consents............................................ 8
3.10 Review of Documents............................................. 9
4. The Purchasers' Conditions to Closings............................... 9
4.1 Representations and Warranties................................... 9
4.2 Performance...................................................... 9
4.3 Certificate of Designation....................................... 9
4.4 Schedule of Exceptions........................................... 9
4.5 Investors' Rights Agreement...................................... 9
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24
4.6 Stockholders Agreement........................................... 9
4.7 BFI Purchase and Sale Agreement.................................. 10
4.8 Financing........................................................ 10
4.9 Proceedings and Documents........................................ 10
4.10 Election of Directors........................................... 10
5. The Company's Conditions to Closing.................................. 10
5.1 Representations and Warranties................................... 10
5.2 Payment of Purchase Price........................................ 10
5.3 Certificate of Designation....................................... 10
5.4 Stockholders Agreement........................................... 10
5.5 Investors' Rights Agreement...................................... 10
5.6 BFI Purchase and Sale Agreement.................................. 10
5.7 Financing........................................................ 11
6. Miscellaneous........................................................ 11
6.1 Survival of Warranties........................................... 11
6.2 Amendments and Waivers........................................... 11
6.3 Notices.......................................................... 11
6.4 Entire Agreement................................................. 12
6.5 Successors and Assigns........................................... 12
6.6 Severability..................................................... 12
6.7 Governing Law.................................................... 12
6.8 Interpretation................................................... 12
6.9 Further Assurances............................................... 12
6.10 Counterparts.................................................... 12
6.11 Assignment...................................................... 12
6.12 Titles and Subtitles............................................ 13
6.13 Corporate Securities Law........................................ 13
6.14 Exculpation Among Purchasers.................................... 13
7. Definitions.......................................................... 13
7.1 Glossary......................................................... 13
7.2 Index.............................................................14
ii
25
EXHIBIT A List of Purchasers
EXHIBIT B Certificate of Designation
EXHIBIT C Investors' Rights Agreement
EXHIBIT D Stockholders Agreement
SCHEDULE 2.2 Capitalization
SCHEDULE 2.4 Authorization and Filings
SCHEDULE 2.7 Material Contracts
SCHEDULE 2.9 Debt
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26
Agreement....................................................................1
Certificate of Designation...................................................1
Certificate of Incorporation.................................................2
Closing......................................................................1
Common Purchaser.............................................................1
Company......................................................................1
Condition of the Company.....................................................2
Investors' Rights Agreement..................................................9
Purchasers...................................................................1
Securities...................................................................5
Series A Preferred Stock.....................................................1
Series A Purchaser...........................................................1
Stockholders Agreement.......................................................9
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27
Schedule 2.2
Capitalization
PRIOR TO CLOSING:
Common Stock: 15,000,000 shares authorized.
Common Stockholders Amount of Common Stock Held
------------------- ---------------------------
NONE NONE
Series A Preferred Stock: 10,000,000 shares authorized.
Series A Preferred Stockholders Amount of Series A Preferred Stock Held
------------------------------- ---------------------------------------
NONE NONE
AFTER CLOSING:
See Exhibit A
28
SCHEDULE 2.4
Authorizations and Filings
State Blue Sky Filings
Federal Securities Laws Filings
Certificate of Designation
29
SCHEDULE 2.7
Material Contracts
NONE
30
SCHEDULE 2.9
Debt
Lender Amount Rate Due Date
---------------- ---------------- -------------- --------------------------
Imperial Bank $5,500,000 Prime + 2% 60 Month Term Loan
---------------- ---------------- -------------- --------------------------
Imperial Bank up to $2,000,000 Prime + 1.5% Revolving Line of Credit
---------------- ---------------- -------------- --------------------------
BFI $500,000 10% Six Months
---------------- ---------------- -------------- --------------------------
BFI $2,593,767 6% By December 1, 1997
---------------- ---------------- -------------- --------------------------
BFI $359,514 6% October 31, 1997
---------------- ---------------- -------------- --------------------------
