INTERIM INVESTORS AGREEMENT
Exhibit
7.13
This
Interim Investors Agreement (the “Agreement”) is made as of December 17,
2007 by and among Xxxxxx HoldCo LP, a Delaware limited partnership
(“Parent”), Xxxxxx MergeCo Inc., a North Carolina corporation and an
indirect wholly-owned subsidiary of Parent (“Merger Sub”), and the other
parties appearing on the signature pages hereto (the
“Investors”).
RECITALS
1. On
the
date hereof, Parent, Merger Sub and Waste Industries USA, Inc., a North Carolina
corporation (the “Company”), have executed an Agreement and Plan of
Merger (as it may be amended, restated, supplemented or otherwise modified
from
time to time, the “Merger Agreement”) pursuant to which Merger Sub will
be merged with and into the Company (the “Merger”).
2. Each
of the
Investors has executed a letter agreement in favor of Parent in which each
such
Investor has agreed, subject to the terms and conditions set forth therein,
to
make an equity investment in Parent at the Closing (as defined below), in the
form of a cash investment and/or through a contribution of shares of common
stock of the Company, and certain of such Investors also have agreed, subject
to
the terms and conditions set forth therein, to purchase for cash senior
subordinated mezzanine loan notes to be issued by Xxxxxx MidCo Inc. (“Xxxxxx
MidCo”) at the Closing (each, a “Commitment Letter”).
3. The
Investors
and Parent wish to agree to certain terms and conditions that will govern the
actions of Parent, Merger Sub and the relationship among the Investors with
respect to the Merger Agreement and the Commitment Letters, and the transactions
contemplated by each.
AGREEMENT
Therefore,
the parties hereto hereby agree as follows:
1. EFFECTIVENESS;
DEFINITIONS.
1.1 Effectiveness. This
Agreement shall become effective on the date hereof and shall terminate (except
with respect to Sections 1.1, 1.2, 2.2, 2.6.1, 2.7, 2.9, 2.10 and Articles
3 and 4) upon the earlier of (i) the closing of the Merger under the Merger
Agreement (the “Closing”) and (ii) the termination of the Merger
Agreement; provided that any liability for failure to comply with the terms
of
this Agreement shall survive such termination.
1.2 Definitions. Certain
terms are used in this Agreement as specifically defined
herein. Capitalized terms used herein but not defined herein
shall have the meanings given to them in the Merger Agreement.
2. AGREEMENTS
AMONG THE INVESTORS.
2.1 Actions
of Parent and Actions Under the Merger Agreement. Subject to the terms and
conditions of this Agreement and the Merger Agreement, the Sponsor Investors,
acting jointly, shall administer the operations of Parent, Xxxxxx MidCo and
Merger Sub between the date hereof and the Closing Date and shall cause Parent
and Merger Sub to take any action or refrain from taking any action in order
for
Parent and Merger Sub to comply with their obligations under the Merger
Agreement, including satisfying the conditions to Closing specified in
Sections 6.1 and 6.2 of the Merger Agreement, and exercising their rights
under the Merger Agreement, including the right to cause Parent to terminate
the
Merger Agreement or not effect the Closing if either Sponsor Investor determines
that one or more closing conditions set forth in Sections 6.1 or 6.3 of the
Merger Agreement have not been satisfied. Except as contemplated in the previous
sentence, any Material Decision of Parent and Merger Sub that is to be taken
or
refrained from being taken in connection with the transactions contemplated
by
the Merger Agreement shall require approval from the Requisite
Investors. A “Material Decision” is a material decision
that Parent or Merger Sub must make in connection with the transactions
contemplated by the Merger Agreement other than as contemplated in the first
sentence of this Section 2.1, which material decisions include, without
limitation, a proposed modification to the Merger Consideration, a waiver of
compliance by the Company with any of its representations or warranties or
covenants contained in the Merger Agreement (including any timeframe by which
the Company is required to comply with an action set forth in the Merger
Agreement), any other material amendment or waiver to the Merger Agreement,
a
modification to any material term of the Debt Financing and the settlement,
or
the consent to settlement, of any litigation instituted after the
date hereof with respect to the Merger Agreement, the Merger or actions taken
in
furtherance thereof.
2.2 Breach
of Commitment.
2.2.1 If,
following satisfaction or valid waiver of the closing conditions set forth
in
Sections 6.1 and 6.3 of the Merger Agreement as determined in accordance with
Section 2.1 hereof, any Sponsor Investor is unable or unwilling to fund its
Commitment upon the Closing as required by the terms of such Sponsor Investor’s
Commitment Letter, as evidenced in writing to the other Investors, fails upon
request of the Funding Majority (defined below) to confirm promptly in writing
its ability and willingness to fund timely its Commitment in accordance with
its
Commitment Letter, and/or does not timely fund its Commitment as required by
the
terms of such Sponsor Investor’s Commitment Letter (a “Non-Funding
Sponsor”), then Parent, acting at the direction of the Investors that
collectively hold a majority of the Commitments and who are willing and able
to
fund their respective Commitments upon the Closing (the “Funding
Majority”), may elect to terminate the participation of the Non-Funding
Sponsor(s) in the transactions contemplated by the Merger Agreement by written
notice at any time and, in the event the Merger is not consummated, recover
from
such Non-Funding Sponsor(s) all Expenses of the other Investors incurred before
such termination of participation of the Non-Funding Sponsor(s).
2.2.2 If,
following satisfaction or valid waiver of the closing conditions set forth
in
Sections 6.1 and 6.3 of the Merger Agreement as determined in accordance with
Section 2.1 hereof, any Rollover Investor is unable or unwilling to fund its
Commitment upon the Closing as required by the terms of such Rollover Investor’s
Commitment Letter, as evidenced in writing to the other Investors, fails upon
request of the Funding Sponsors (defined below) to confirm promptly
in writing its ability and willingness to fund timely its Commitment in
accordance with its Commitment Letter, and/or does not timely fund its
Commitment as required by the terms of such Rollover Investor’s Commitment
Letter (a “Non-Funding Rollover Investor”), then Parent,
acting at the direction of the Sponsor Investors who are willing and able to
fund their respective Commitments upon the Closing (the “Funding
Sponsors”), may elect, as to any Non-Funding Rollover Investor, (a) to
terminate the participation of such Rollover Investor in the transactions
contemplated by the Merger Agreement by written notice at any time and, in
the
event the Merger is not consummated, recover from such Rollover Investor all
Expenses of the other Investors incurred before such termination of
participation of such Rollover Investor; or (b) seek specific performance
of such Rollover Investor’s Commitment Letter (i.e., contribution of
shares of common stock of the Company and/or of cash as specified in such
Commitment Letter) and of such Rollover Investor’s obligations under this
Agreement, together with recovery from such Rollover Investor of all costs
incurred by Parent in seeking such specific performance, provided that upon
such
specific performance and cost recovery such Rollover Investor shall receive
the
benefits of such Commitment Letter and of this Agreement. Parent,
acting at the direction of the Funding Sponsors, may elect pursuant to the
preceding sentence to pursue different remedies with respect to different
Rollover Investors that have breached their obligations under the Commitment
Letter as described above; provided, however, that Parent, acting at the
direction of the Funding Sponsors, shall not pursue an available remedy against
any such Rollover Investor unless it also pursues an available remedy against
each other Rollover Investor that has breached its obligations under the
Commitment Letter as described above.
2.3 Debt
Financing. The Funding Sponsor(s), acting jointly if both Sponsor
Investors are Funding Sponsors, shall cause Merger Sub to, and the Investors
shall seek to cause the Company to, enter into and borrow under the definitive
agreements relating to the debt financing to be provided at the Closing on
the
terms set forth in the Debt Commitment Letters and in any amendments or
modifications thereto that may be approved by the Requisite
Investors.
2.4 Share
Purchase. In connection with, and immediately prior to, the
Merger, the Sponsor Investors agree to purchase from certain Rollover Investors
and/or their successor or assigns as provided herein (the “Selling Investors”),
and the Selling Investors shall sell to the Sponsor Investors (pro rata based
on
the Common Equity Commitments of each Sponsor Investor) (the "Sale") free and
clear of all Liens (except for such transfer restrictions of general
applicability as may be provided under the Securities Act and the “blue sky”
laws of the various states of the United States), the number of shares of
Company Common Stock set forth on Schedule A hereto (the "Shares")
. The Rollover Investors as set forth on Schedule A commit to sell
those Shares beside each Rollover Investor’s name on Schedule A, but such
Rollover Investor may assign such right to sell some or all of the same number
of Shares to another Company shareholder that is part of the attribution group
under Internal Revenue Code Section 318 of such Rollover Investor. No other
rights under this Agreement of a Rollover Investor may be assigned to such
other
Company shareholder or any other Person, except as expressly permitted
herein. The Sponsor Investors agree to pay such Selling Investors the
per share cash Merger Consideration for each Share sold to the Sponsor
Investors. Each Rollover Investor identified on Schedule A owns of
record as of the date hereof, and each Selling Investor will own immediately
prior to the consummation of the Sale, all of the Shares listed opposite his
or
its name on Schedule A hereto. Each Rollover Investor owns (and each Selling
Investor will own immediately prior to the Sale) all such Shares free and clear
of any Lien (except for such transfer restrictions of general applicability
as
may be provided under the Securities Act and the “blue sky” laws of the various
states of the United States). Each Rollover Investor has (and each
Selling Investor will have at the time of the Sale) sole voting power and sole
power of disposition with respect to all such Shares, with no restrictions
on
such Rollover Investor’s (or Selling Investor's as the case may be) rights of
voting or disposition pertaining thereto. No Person other than such Rollover
Investor (or Selling Investor as the case may be) has any right to direct or
approve the voting or disposition of any such Shares, and the Sale will not
conflict with the terms of any Contract to which such Rollover Investor or
Selling Investor is party. The Sale shall be effected pursuant to a customary
stock power reasonably acceptable to the Sponsors and the Selling
Investors. The Rollover Investors shall not be entitled to specific
performance of this Section 2.4 against either Sponsor Investor unless such
Sponsor Investor is a Funding Sponsor and the Merger will occur immediately
following the Sale.
2.5 Limited
Partnership Agreement. Each Investor agrees to enter into,
concurrently with the Closing, an amended limited partnership agreement of
Parent and an amended limited liability company agreement of the general partner
of Parent that will together govern the actions of Parent and the Investors
from
and after the Closing (respectively, the “Limited Partnership Agreement”
and the “GP Agreement”) and will contain substantially the same terms
contained in the Amended and Restated Limited Liability Company Agreement (the
“LLC Agreement”) in the form attached hereto as Exhibit A and with such
additional or modified terms as (i) are necessary to cause the terms of the
LLC
Agreement to be reflected in the Limited Partnership Agreement and GP Agreement
or (ii) may be approved by the written consent of Investors whose vote would
be
sufficient to approve such additional or modified terms had the LLC Agreement
been in effect at the time of such modification.
2.6 Commitments.
2.6.1 Each
Investor and Parent hereby affirms and agrees that Parent, acting at the
direction of the Funding Sponsors, shall be entitled to enforce the provisions
of each Commitment Letter of each Rollover Investor. Parent shall not
attempt to enforce any Commitment Letter of a Rollover Investor until the
closing conditions set forth in Sections 6.1 and 6.3 of the Merger Agreement
have been satisfied or validly waived as permitted under Section 2.1
hereof. Parent shall have no right (i) to specifically enforce any
Commitment Letter of any Sponsor Investor or (ii) to specifically enforce,
unless acting at the direction of one or both Funding Sponsors, any Commitment
Letter of any Rollover Investor, and no Investor shall have any right to enforce
any of the Commitment Letters other than the right as Funding Sponsors to direct
Parent’s enforcement of the Commitment Letters of any Rollover
Investor.
2.6.2 All
securities issued by Parent at the Closing shall be equity securities and shall
be issued to the Investors in accordance with the Limited Partnership Agreement
and the Commitment Letters. All securities issued by Xxxxxx MidCo to
the Investors at the Closing shall be debt securities and shall be issued to
the
Investors in accordance with the Commitment Letters.
2.6.3 Prior
to
the Closing, no Investor shall transfer, directly or indirectly, its rights
or
obligations under its Commitment Letters, other than (i) a transfer permitted
as
provided for in the applicable Commitment Letter, (ii) with respect to a
Rollover Investor, a transfer to a transferee of common stock of the Company
in
a permitted transfer under the Support Agreement, provided such transferring
Rollover Investor remains liable for such Rollover Investor’s obligations under
its Commitment Letter, (iii) with respect to a Sponsor Investor, a transfer
to
one or more affiliated funds or affiliated entities with a common investment
advisor or funds managed by affiliates of Macquarie Group Limited (with respect
to MIP Waste Holdings, L.P.) and affiliates of Xxxxxxx, Xxxxx & Co. (with
respect to GS Direct, L.L.C.), provided such Sponsor Investor remains liable
for
its obligations under its Commitment Letter or (iv) a transfer approved by
the
Requisite Investors, provided that in each case the transferee agrees to be
bound by the provisions of this Agreement applicable to the
transferor.
2.7 Merger
Agreement Payments.
2.7.1 Parent
shall, and the Sponsor Investors shall cause Parent to, arrange that any Company
Termination Fee paid by the Company or any of its affiliates pursuant to the
Merger Agreement shall be promptly paid as follows, provided that an Investor
whose participation in the transactions contemplated by the Merger Agreement
has
been terminated pursuant to Section 2.2 hereof (each, a “Terminated
Investor”) shall not share in any portion of the Company Termination
Fee:
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(a)
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First,
reimbursement to each Investor of all documented and reasonable expenses
and fees of legal counsel, accountants, financial advisors and other
consultants and advisors incurred by it in connection with the
transactions contemplated by the Merger Agreement whether incurred
before
or after the execution of the Merger Agreement (the “Expenses”),
provided that no Investor shall be reimbursed for Expenses for any
budgeted item in excess of 125% of the amount shown on Exhibit C,
subject
to any amendments thereof as contemplated in Section 2.9.1;
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(c)
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Third,
payment to Xxxxx Xxxxxx and Xxxxx Xxxxxxx of an aggregate amount
equal to
$650,000,2 to be split between
them in proportion to the maximum remuneration each would be
entitled to
based on its compensation arrangements with the Company on the
date
hereof; and
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(d)
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Fourth,
distribution of the balance of the Company Termination Fee
to the
Investors pro rata, based on the Common Equity Commitments
of each
Investor as compared to the Common Equity Commitments of the
other
Investors.
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2.7.2 Parent
shall, and the Sponsor Investors shall cause Parent to, arrange that any
Expenses paid by the Company or any of its affiliates pursuant to the Merger
Agreement shall be promptly distributed to each Investor in an amount equal
to
the Expenses actually incurred by such Investor, provided that no Investor
shall
be reimbursed for Expenses for any budgeted item in excess of 125% of the amount
shown on Exhibit C, subject to any amendments thereof as contemplated in Section
2.9.1; provided further that if the aggregate amount of Expenses incurred by
the
Investors (“Aggregate Expenses”) exceeds the amount of the Expense
reimbursement received from the Company (the “Company Reimbursement
Amount”), the amount distributed to each Investor shall equal the amount of
Expenses actually incurred by such Investor multiplied by a fraction, the
numerator of which is the Company Reimbursement Amount and the denominator
of
which is the Aggregate Expenses.
2.7.3 In
the
event a Parent Termination Fee is due and payable under the Merger Agreement,
each Investor shall be required to pay Parent, no later than immediately prior
to the time such fee is required to be paid by Parent to the Company in
accordance with the Merger Agreement, by wire transfer of immediately available
funds, the amount set forth next to such Investor’s name on Schedule A to the
Limited Guarantee. Notwithstanding the foregoing, in the event a
Parent Termination Fee is due and payable under the Merger Agreement as a result
of a breach described under Section 2.2.1 or 2.2.2 hereof by a Terminated
Investor, the Terminated Investors shall be required to pay the full amount
of
the Parent Termination Fee (pro rata based on each Terminated Investor’s Common
Equity Commitments) as described above. In addition, in the event one
or both Sponsor Investors determines that it does not intend to fund its
Commitment upon the Closing because it has concluded, pursuant to Section 2.1,
that one or more closing conditions set forth in Section 6.1 or 6.3 of the
Merger Agreement have not been satisfied and the Funding Majority disagreed
with
such conclusion, as evidenced in writing to such Sponsor Investor(s) but it
is
later determined by a court of competent jurisdiction that such closing
condition(s) had been satisfied at the time such Sponsor Investor(s) claimed
such closing condition(s) had not been satisfied, such Sponsor Investor or
Sponsor Investors, as applicable, shall be required, if a Parent Termination
Fee
is due and payable under the Merger Agreement, to pay the full amount of the
Parent Termination Fee and pay all Expenses of the other Investors, in each
case
pro rata (based on the Common Equity Commitments of the Sponsor Investors),
incurred before the Sponsor Investor provided written notice to the other
Investors of its conclusion that one or more of the conditions set forth in
Section 6.1 or 6.3 of the Merger Agreement had not been satisfied.
2.8 Notice
of Closing. Parent will use its reasonable best efforts to keep
the Investors informed, on a current basis, of developments relating to the
Merger, including the likely Closing Date. If Parent receives any
notice under the Merger Agreement, it shall notify each Investor at the address
designated by such Investor in writing to Parent. The failure of Parent to
perform its obligations under this Section 2.8 will not relieve an Investor
of its obligations under this Agreement.
2.9 Expense
Responsibility.
2.9.1 Attached
hereto as Exhibit C is an estimate of the Expenses incurred by the Buying Group
prior to the date hereof and an estimate of the Expenses anticipated to be
incurred between the date hereof and the Closing. Subject to Section
2.2 and Section 2.9.2, each Investor shall be responsible for and bear its
pro
rata portion (based on the Common Equity Commitments of each Investor as
compared to the Common Equity Commitments of the other Investors) of all
Expenses actually incurred in relation to the Expenses identified on Exhibit
C,
provided that the Expenses incurred in relation to any item on Exhibit C is
no
greater than 125% of the amount shown for such item. If an Investor
anticipates actual Expenses related to an item identified on Exhibit C will
exceed the stated estimate by 25%, such Investor shall provide written notice
to
the other Investors seeking their approval to amend the amount and stating
the
proposed amended amount. If the Requisite Investors consent to such request,
which consent shall not be unreasonably withheld, conditioned or delayed,
Exhibit C shall be deemed amended and each Investor shall be responsible for
its
pro rata portion of such amended amount.
2.9.2 Notwithstanding
anything to the contrary, (i) other than as contemplated in Section 2.2.2,
no
Rollover Investor shall be liable for or have any obligation with respect to
any
Expense incurred by either Sponsor Investor, and (ii) other than as contemplated
in Section 2.2.1 or Section 2.7.3, no Sponsor Investor shall be liable for
or
have any obligation with respect to any Expense incurred by any Rollover
Investor. Further, subject to Section 2.2 and
Section 2.7.3, collectively the Rollover Investors shall not be
liable for, or have any obligation to Parent or the Sponsor Investors with
respect to, any amount of the Parent Termination Fee or Expenses of
the Sponsor Investors in excess of $4 million in the aggregate.
2.9.3 Upon
the
Closing of the Merger, (i) Parent shall cause the Company to reimburse each
Investor for all Expenses actually incurred prior to the date hereof through
Closing by such Investor in accordance with Section 2.9.1, and (ii) in
consideration of the financial risk assumed by the Sponsors and Xxxxxx X. Xxxxx,
Xx. in pursuing and supporting the Merger, Parent shall cause the Company to
pay
each Sponsor Investor and Xxxxxx X. Xxxxx Xx. an additional amount equal to
50%
of the amount payable to such Investor under clause (i) hereof.
2.10 Representations
and Warranties; Covenants. Each Investor hereby represents,
warrants and covenants to the other Investors that:
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(a)
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none
of the information supplied in writing by such Investor for inclusion
or
incorporation by reference in the Schedule 13E-3 and the Proxy
Statement will cause a breach of the representation and warranty
of Parent
set forth in Section 4.3 of the Merger Agreement;
and
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(b)
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it
has not entered, and will not enter, into any agreement, arrangement
or
understanding with any other Investor, any other potential investor
or
acquiror or group of potential investors or acquirors or the Company
with
respect to the subject matter of this Agreement or the Merger Agreement,
other than (i) the agreements contemplated or permitted by this Agreement,
the Support Agreement or the Merger Agreement, (ii) any debt financing
agreements and (iii) any agreements, arrangements or understandings
with
affiliates of such Investor.
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3. DEFINITIONS. For
purposes of this Agreement, the following terms shall have the following
meanings:
3.1.1 “Commitments”
shall mean the aggregate amount of cash committed to be invested in Parent
or
Xxxxxx MidCo, as applicable, as set forth in each Investor’s Commitment Letter
and the aggregate value (based on the Merger Consideration) of the common stock
of the Company committed to be contributed to Parent as set forth in each
Investor’s Commitment Letter, copies of all of which are attached as Exhibit B1
and B2 hereto.
3.1.2 “Common
Equity Commitments” shall mean the Commitments of the Investors to invest in
Parent in exchange for Class B Units of Parent in accordance with the terms
of
the applicable Commitment Letter.
3.1.3 “Requisite
Investors” shall mean Investors holding at least 87% of the Common Equity
Commitments as identified in the applicable Commitment Letters.
3.1.4 “Rollover
Investors” means the Shareholder Parties as defined in the Support
Agreement, and their respective successors and permitted assigns.
3.1.5 “Sponsor
Investors” means MIP Waste Holdings, L.P. and GS Direct, L.L.C., and their
respective successors and permitted assigns.
3.1.6 “Support
Agreement” means the support agreement, dated as of October 22, 2007,
as it may be amended from time to time by and among the Investors.
4. MISCELLANEOUS.
4.1 Amendment. This
Agreement may be amended or modified and the provisions hereof may be waived,
only by an agreement in writing signed by the Requisite Investors; provided
that
no provision of this Agreement may be amended or modified in a manner that
disproportionately materially adversely affects an Investor without such
Investor’s consent.
4.2 Severability. In
the event that any provision hereof would, under applicable law, be invalid
or
unenforceable in any respect, such provision shall be construed by modifying
or
limiting it so as to be valid and enforceable to the maximum extent compatible
with, and possible under, applicable law. The provisions hereof are
severable, and in the event any provision hereof should be held invalid or
unenforceable in any respect, it shall not invalidate, render unenforceable
or
otherwise affect any other provision hereof.
4.3 Remedies. Neither
Parent, Xxxxxx MidCo nor any other party to this Agreement will have the right
to recover lost profits or benefit of the bargain damages or any special,
indirect, or consequential damages (other than recovery of Expenses or costs
as
set forth in Section 2.2 or the Parent Termination Fee pursuant to Section
2.7.3) from any other party to this Agreement. Notwithstanding
anything to the contrary in this Agreement, the parties agree that if the Merger
Agreement is terminated, no Investor (or any of such Investor’s current or
future stockholders, directors, officers or affiliates) who has paid the full
amount of the Parent Termination Fee or otherwise satisfied all obligations
to
the Company and each of the other Investors’ Expenses, in each case as may be
required by the terms of this Agreement, shall have any further liability
hereunder to any other Investor, Parent, Xxxxxx MidCo, Merger Sub or any
Investor’s current or future stockholders, directors, officers or
affiliates.
4.4 No
Recourse. Subject to the guarantee of the obligations of MIP
Waste Holdings, L.P., by the signatories thereto, dated the date hereof and
delivered in connection herewith, notwithstanding anything that may be expressed
or implied in this Agreement, and notwithstanding the fact that Parent and
certain of the Investors may be partnerships or limited liability companies,
Parent and each Investor covenants, agrees and acknowledges that no recourse
under this Agreement or any documents or instruments delivered in connection
with this Agreement shall be had against any former, current or future
directors, officers, agents, affiliates, general or limited partners, members,
managers or stockholders of Parent or any Investor or any former, current or
future directors, officers, agents, affiliates, employees, general or limited
partners, members, managers or stockholders of any of the foregoing, as such,
whether by the enforcement of any assessment or by any legal or equitable
proceeding, or by virtue of any statute, regulation or other applicable law,
it
being expressly agreed and acknowledged that no personal liability whatsoever
shall attach to, be imposed on or otherwise be incurred by any current or future
director, officer, employee, general or limited partner or member or manager
of
Parent or any Investor or of any partner, member, manager or affiliate thereof,
as such, for any obligation of Parent or any Investor under this Agreement
or
any documents or instruments delivered in connection with this Agreement for
any
claim based on, in respect of or by reason of such obligations or their
creation.
4.5 Governing
Law; Arbitration. This Agreement, and all claims or causes of
action (whether at law, in equity, in contract, in tort or otherwise) that
may
be based upon, arise out of or relate to this Agreement or the negotiation,
execution or performance hereof, shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
any
choice or conflict of law provision or rule (whether of the State of Delaware
or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware. Any dispute, claim or
controversy arising out of or relating to this Agreement, including the
determination of the scope or applicability of this agreement to arbitrate,
shall be finally determined by arbitration in North Carolina before a single
arbitrator (the “Sole Arbitrator”). The arbitration shall be
administered by the American Arbitration Association pursuant to its Commercial
Arbitration Rules of the AAA (the “Rules”). The selection of
the Sole Arbitrator shall be made pursuant to the Rules. Each party
shall be entitled, in its discretion, to the deposition of at least three fact
witnesses and any expert witness designated to testify at the hearing, and
the
parties may seek additional depositions or other discovery. No
deposition shall exceed two days unless the Sole Arbitrator permits otherwise
for good cause. Judgment on any award may be entered in any court
having jurisdiction, and shall include injunctive or other equitable relief
to
the extent awarded by the Sole Arbitrator. If the Sole Arbitrator
determines that a frivolous claim or defense was asserted by a party, the Sole
Arbitrator shall, in the award, direct that such party pay the costs of the
arbitration, including the fees of the arbitrator and the reasonable attorneys’
fees of the other party, that are attributable to the disposition of such
frivolous claim or defense .
4.6 Exercise
of Rights and Remedies. No delay of or omission in the exercise
of any right, power or remedy accruing to any party as a result of any breach
or
default by any other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed as a waiver of or acquiescence in
any
such breach or default, or of any similar breach or default occurring later;
nor
shall any such delay, omission nor waiver of any single breach or default be
deemed a waiver of any other breach or default occurring before or after that
waiver.
4.7 Other
Agreements; Assignment. This Agreement, together with the
agreements referenced herein, constitutes the entire agreement, and supersedes
all prior agreements, understandings, negotiations and statements, both written
and oral, among the parties or any of their affiliates with respect to the
subject matter contained herein except for such other agreements as are
referenced herein which shall continue in full force and effect in accordance
with their terms. Other than as provided herein, this Agreement shall
not be assigned without the prior written consent of the parties
hereto.
4.8 Tax-Free
Rollover. Parent, each Rollover Investor and each Sponsor
Investor will cooperate to structure the contribution of the common stock of
the
Company to Parent pursuant to the Commitment Letter executed by each Rollover
Investor as a tax-free exchange to the extent permitted by law; provided,
however, that under no circumstances shall any party be required to
take
any action or agree to any amendment, waiver or modification of the Merger
Agreement or any related agreement (including this Agreement) pursuant to this
Section 4.8 if such action or amendment, waiver or modification would be
materially adverse to such party (provided that the incurrence of immaterial
costs or expenses shall not be deemed to be adverse for purposes of this
sentence). In addition, none of the Parent or any Sponsor Investor
may take any action to amend, modify or waive any provision of the Merger
Agreement or any related agreement (including this Agreement) if such amendment,
waiver or modification would result in a material adverse change in the ability
of any Rollover Investor to contribute common stock of the Company to Parent
pursuant to such Rollover Investor’s Commitment Letter as a tax-free
exchange.
4.9 Non-Circumvention. Each
party hereto agrees that it shall not indirectly accomplish that which it is
not
permitted to accomplish directly under this Agreement.
4.10 General. Nothing
in this Agreement shall be deemed to constitute a partnership between any of
the
parties, nor constitute any part the agent of any other party for any
purpose. This Agreement may be executed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. Notwithstanding anything in
this Agreement to the contrary, in no event shall the obligations of any party
set forth in this Agreement convey to any other party or any other person voting
power in the election of directors of the Company, sole or shared ownership
of
any shares of common stock of the Company, or sole or shared power to vote
any
shares of common stock of the Company or to direct the exercise of voting power
of any such shares.
[SIGNATURE
PAGES FOLLOW]
1 122.5%
where the actual break fee paid is 3.5%, 110% where the actual break fee
paid is
3%, 100% where the actual break fee paid is 2%, and 0% where the actual break
fee paid is under 2%. In the event the actual break fee paid falls between
two
of the numbers above then the percentage xxxx up shall be applied on a straight
line basis between the higher and lower percentage break fee
amounts.
2 $650,000
where the actual break fee paid is 3.5%, $600,000 where the actual break
fee
paid is 3%, $500,000 where the actual break fee paid is 2%, and $0.00 where
the
actual break fee paid is under 2%. In the event the actual break fee
paid falls between two of the numbers above then the payment shall be applied
on
a straight line basis between the higher and lower percentage break fee
amounts.
IN
WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as
of
the date first above written.
| XXXXXX HOLDCO LP, by its General partner, Xxxxxx HoldCo GP, LLC | |||
|
|
By:
|
/s/ Xxx X. Xxxxx | |
| Name: Xxx X. Xxxxx | |||
| Title: Vice President | |||
| XXXXXX MERGECO INC. | |||
|
|
By:
|
/s/ Xxx X. Xxxxx | |
| Name: Xxx X. Xxxxx | |||
| Title: Vice President | |||
| MIP WASTE HOLDINGS, L.P., by its General Partner, MIP Waste GP LLC | |||
|
|
By:
|
/s/ Xxxxxxxxxxx Xxxxxx | |
| Name: Xxxxxxxxxxx Xxxxxx | |||
| Title: President | |||
|
|
By:
|
/s/ Xxxx Xxxx | |
| Name: Xxxx Xxxx | |||
| Title: Treasurer | |||
| GS DIRECT, LLC | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxxx | |||
| Title: Managing Director | |||
|
|
|
/s/ Xxxxxx X. Xxxxx, Xx. | |
| Xxxxxx X. Xxxxx, Xx. | |||
|
|
|
/s/ Xxx X. Xxxxx | |
| Xxx X. Xxxxx | |||
|
|
|
/s/ Xxxxxx X. Xxxxx, III | |
|
Xxxxxx X. Xxxxx, III
|
|||
|
|
|
/s/ Xxxxx X. Xxxxx | |
| Xxxxx X. Xxxxx | |||
| XXXXXX X. XXXXX, III IRREVOCABLE TRUST (TAILWALKER TRUST) | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxx | |
| Name: Xxxxx X. Xxxxx | |||
| Title: Trustee | |||
| XXXXXX X. XXXXX, III IRREVOCABLE TRUST (TAILWALKER NON-GST TRUST) | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxx | |
| Name: Xxxxx X. Xxxxx | |||
| Title: Trustee | |||
| XXXXXX X. XXXXX, XX GRANTOR TRUST DATED MAY 1, 1995 | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxx, III | |
| Name: Xxxxxx X. Xxxxx, III | |||
| Title: Trustee | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxx | |
| Name: Xxxxx X. Xxxxx | |||
| Title: Trustee | |||
| PERRY
2007 IRREVOCABLE TRUST
U/A/D
DECEMBER 13, 2007
|
|||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxx Xxxxx | |
| Name: Xxxxxxx Xxxxxxx Perry | |||
| Title: Trustee | |||
|
DAMAS
II CHARITABLE REMAINDER
UNITRUST
U/A/D 12/13/07
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxx | |
| Name: Xxxxxx Xxxx | |||
| Title: Trustee | |||
