================================================================================
IESI CORPORATION
A DELAWARE CORPORATION
SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
Dated as of October 10, 2003
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..............................................2
1.1 CERTAIN DEFINITIONS..........................................2
ARTICLE II MANAGEMENT; VOTING OF SHARES.............................8
2.1 BOARD OF DIRECTORS...........................................8
2.2 CERTAIN RESTRICTIONS.........................................9
2.3 APPROVAL OF CERTAIN TRANSACTIONS.............................9
ARTICLE III TRANSFER OF SHARES......................................11
3.1 GENERAL RESTRICTIONS ON TRANSFER............................11
ARTICLE IV RIGHT OF FIRST OFFER....................................12
4.1 FIRST OFFER RIGHT...........................................12
4.2 PLEDGE OF SHARES............................................14
ARTICLE V TAG ALONG AND BRING ALONG RIGHTS........................14
5.1 TAG ALONG RIGHTS............................................14
5.2 BRING ALONG RIGHTS..........................................15
ARTICLE VI ISSUANCE OF STOCK.......................................16
6.1 RIGHTS UPON ISSUANCE OF ADDITIONAL SECURITIES...............16
ARTICLE VII MISCELLANEOUS...........................................18
7.1 REPRESENTATIONS AND WARRANTIES..............................18
7.2 LEGEND......................................................19
7.3 TERMINATION UPON PUBLIC OFFERING OR SALE TRANSACTION........20
7.4 AMENDMENT; WAIVER...........................................20
7.5 FURTHER ASSURANCES..........................................21
7.6 NOTICES.....................................................21
7.7 BINDING EFFECT; ASSIGNMENT..................................21
7.8 SEVERABILITY................................................21
7.9 SPECIFIC PERFORMANCE........................................21
7.10 GOVERNING LAW...............................................21
7.11 ENTIRE AGREEMENT............................................22
7.12 COUNTERPARTS................................................22
-i-
TABLE OF CONTENTS
(continued)
Page
7.13 BOARD MEETINGS..............................................22
7.14 INFORMATION.................................................22
7.15 WARRANT HOLDERS.............................................22
7.16 EXPENSES....................................................22
-ii-
SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
This SECOND AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (this
"Agreement") is entered into as of October 10, 2003, by and among IESI
Corporation, a Delaware corporation (the "Company"), the stockholders named on
the signature pages hereto (collectively, the "Stockholders"), J. Xxxxx Xxxxxxxx
(the "Warrant Holder"), and each other Person that may become a Stockholder or a
Warrant Holder after the date hereof and who executes a Joinder Agreement (as
hereinafter defined).
WITNESSETH:
WHEREAS, certain of the Stockholders have heretofore entered
into a certain Stockholders' Agreement, dated March 25, 1997 (the "First
Agreement"), and thereafter entered into a certain Amended and Restated
Stockholders' Agreement, dated as of June 25, 1997 (the "Second Agreement"), and
thereafter entered into a certain Amended and Restated Stockholders' Agreement,
dated as of May 22, 1998 (the "Third Agreement"), and thereafter entered into a
certain Amended and Restated Stockholders' Agreement, dated as of December 15,
1998 (the "Fourth Agreement"), and thereafter entered into a certain Amended and
Restated Stockholders' Agreement, dated as of June 30, 1999 (the "Fifth
Agreement"), and thereafter entered into a certain Amended and Restated
Stockholders' Agreement, dated as of September 10, 2001 (the "Sixth Agreement"
and together with the First Agreement, the Second Agreement, the Third
Agreement, the Fourth Agreement and Fifth Agreement, collectively the "Prior
Agreements"), each of which outlined the various rights and obligations of the
parties thereto as Stockholders of the Company;
WHEREAS, concurrently herewith, the Company and the purchasers
named therein are entering into that certain Stock Purchase Agreement of even
date herewith (the "Purchase Agreement"), pursuant to which the Company is
issuing up to 55,000 shares of its Series E Convertible Preferred Stock (the
"Series E Preferred Stock"), par value $1.00 per share, to certain of the
Stockholders;
WHEREAS, the Stockholders own, beneficially and of record, all
of the issued and outstanding shares of Common Stock (as hereinafter defined)
and all of the issued and outstanding shares of Preferred Stock (as hereinafter
defined);
WHEREAS, the Stockholders and the Warrant Holder deem it to be
in their best interests to provide for consistent and uniform management of the
Company;
WHEREAS, the Stockholders and the Warrant Holder desire to
restrict the Transfer (as hereinafter defined) of shares of Company Stock (as
hereinafter defined), whether issued and outstanding on the date hereof or
issued from time to time hereafter;
WHEREAS, the Stockholders and the Warrant Holder desire to
evidence their agreement with respect to certain other matters in relation to
the Company and their respective holdings of Common Stock and Preferred Stock;
and
WHEREAS, the Stockholders and the Warrant Holder intend that
this Agreement shall replace and supersede the Prior Agreements;
NOW, THEREFORE, in consideration of the premises, the terms
and provisions set forth herein, the mutual benefits to be gained by the
performance thereof and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
-----------
1.1 CERTAIN DEFINITIONS. As used herein, the terms set forth below
shall have the following respective meanings:
"Act" has the meaning specified in Section 7.2 hereof.
"Additional Securities" means all Securities which are issued
by the Company after the date hereof other than (a) any Securities issued or
issuable to all of the holders of Securities then outstanding on a proportionate
basis (based on such holders' respective ownership of the Securities); (b) any
Securities issued or issuable to any employees, officers or directors pursuant
to any Employee Plan approved by the Board; (c) Securities which are reissued by
the Company to employees following the repurchase, redemption or other
acquisition of such Securities by the Company from any employee; (d) any
Securities issued pursuant to a public offering of Equity Securities pursuant to
an effective registration statement under the Act; or (e) any Securities issued
by the Company upon conversion, exercise or exchange of Securities issued (i) on
or before the date hereof or (ii) after the date hereof in compliance with the
provisions of Article VI hereof; or (f) Common Stock issued pursuant to the
Investment Right.
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise; provided that TCC, TCC2, TCC3, Xxxxxx
and their respective affiliates shall not be deemed "Affiliates" of the Company.
"Agreement" has the meaning specified in the Introduction
hereto.
"Amended Charter" means the Fifth Amended and Restated
Certificate of Incorporation of the Company in the form annexed hereto as
Exhibit A.
"Article V Notice" has the meaning specified in Section 5.1(a)
hereof.
2
"Article V Sellers" has the meaning specified in Section 5.1
hereof.
"Article V Shares" has the meaning specified in Section 5.1(a)
hereof.
"Board" has the meaning specified in Section 2.1 hereof.
"Bring Along Notice" has the meaning specified in Section
5.2(b) hereof.
"Bring Along Sale" has the meaning specified in Section 5.2(a)
hereof.
"Business Day" means any day that is not a Saturday, a Sunday
or other day on which banks are required or authorized by law to be closed in
the City of New York, New York.
"By-laws" means the By-laws of the Company as in effect on the
date hereof and as the same may hereafter be amended from time to time.
"Common Stock" means the Class A Common Stock, par value $0.01
per share, and the Class B Common Stock, par value $0.01 per share, of the
Company.
"Company" has the meaning specified in the Introduction
hereto.
"Company Stock" means the Common Stock and the Preferred
Stock.
"Company Transfer" is defined in Section 3.1(a) hereto.
"Credit Agreement" means the Amended and Restated Revolving
Credit and Term Loan Agreement, among IESI Corporation and its subsidiaries
(other than De Minimis Subsidiaries), the Lenders, Fleet National Bank as
Administrative Agent and LaSalle Bank National Association as Syndication Agent.
"Employee Plan" means any equity incentive plan, agreement,
bonus, award, stock purchase plan, stock option plan or other stock arrangement
with respect to any employee, officer or director of (i) the Company or (ii) any
subsidiary of the Company.
"EOF II" means Environmental Opportunities Fund II, L.P., a
Delaware limited partnership.
"EOF Delaware" means Environmental Opportunities Fund, L.P., a
Delaware limited partnership.
"EOF Institutional" means Environmental Opportunities Fund II
(Institutional), L.P., a Delaware limited partnership.
"Fifth Agreement" has the meaning specified in the first
recital to this Agreement.
3
"First Agreement" has the meaning specified in the first
recital to this Agreement.
"Fourth Agreement" has the meaning specified in the first
recital to this Agreement.
"IESI Capital" means IESI Capital LLC, IESI Capital II LLC,
IESI Capital III LLC, IESI Capital IV LLC, IESI Capital V LLC and IESI VI LLC,
each a Mississippi limited liability company.
"Indosuez" means Indosuez Capital Partners 2001, L.P.
"Investment" as applied to any Person means (a) any direct or
indirect purchase or other acquisition by such Person of any notes, obligations,
instruments, stock, securities or ownership interest (including partnership
interests and joint venture interests) of any other Person and (b) any capital
contribution by such Person to any other Person.
"Issuance Notice" has the meaning specified in Section 6.1(a)
to this Agreement.
"JESCO" means Xxx Xxxxxx Construction Co., Inc.
"Joinder Agreement" has the meaning specified in Section
3.1(a) to this Agreement.
"Like Percentage" means the percentage derived from a
fraction, the numerator of which is the total number of Paid-In Shares proposed
to be transferred by the Proposing Stockholder(s) under Section 5.2(a) and the
denominator of which is the total number of Paid-In Shares held by the Proposing
Stockholder(s).
"Offer Notice" has the meaning specified in Section 4.1(a) to
this Agreement.
"Offered Stock" has the meaning specified in Section 4.1(a) to
this Agreement.
"Option Period" has the meaning specified in Section 5.1(b)
hereof.
"Other Stockholders" is defined in Section 4.1(a) hereof.
"Paid-In Shares" means the Common Stock and the Preferred
Stock on an as-if-converted basis.
"Participant" has the meaning specified in Section 5.1(b)
hereof.
"Permitted Transferee" means (a) in the case of JESCO, Xxxxxx,
(b) in the case of a Stockholder who is a natural person and is a signatory to
the Agreement on the
4
date hereof, any spouse, child (natural or adopted), spouse of any such child,
grandchild, sister, brother or parent of such Stockholder and to whom Common
Stock is transferred from such Stockholder by (i) will or the laws of descent
and distribution or (ii) by gift without consideration of any kind, (c) any
trust in which there are and continue to be during the term of this Agreement no
beneficiaries other than Permitted Transferees, (d) any charitable foundation,
all the trustees of which are Permitted Transferees, (e) any Stockholder, and
(f) any Person with respect to which a resolution approved by the Board has been
adopted stating that the Board has no objection if a Transfer of Common Stock is
made to such Person (provided, however, that such transfer is subject to the
provisions of Section 5.1) and (g) in the case of EOF Delaware, EOF II, EOF
Institutional, Xxxxxxx I, Xxxxxxx II, Suez, SEI, TCC, TCC2, TCC3 , Xxxxxx, or
any other Stockholder that is an investment fund a Transfer by any of them to
any of their respective general partners, limited partners or members, and by
any such Persons, to any of their respective general partners, limited partners
or members, and (h) in the case of a Stockholder who is not a natural person, an
Affiliate thereof.
"Person" means any individual, corporation, partnership,
limited liability company, association, trust or any other entity or
organization of any kind or character, including a governmental authority or
agency.
"Preferred Stock" means the Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred
Stock and the Series E Preferred Stock.
"Prior Agreements" has the meaning specified in the first
recital to this Agreement.
"Proposing Stockholders" has the meaning specified in Section
5.2(a) hereof.
"Pro Rata Portion" means, as to an individual Stockholder, the
percentage of the Total Shares owned by such Stockholder (including, as to any
individual Stockholder who holds warrants to purchase Common Stock, the number
of shares of Common Stock that would then be issued upon exercise of such
warrants).
"Public Offering" means a firm commitment underwritten public
offering of Common Stock of the Company, subsequent to which the Common Stock
listed is on a national securities exchange or on the NASDAQ System, at an
offering price to the public (without deduction for underwriting fees,
commission or discounts) in an aggregate amount not less than U.S. $20,000,000
pursuant to an effective registration statement under the Act.
"Public Sale" means any sale of Common Stock or Preferred
Stock to the public pursuant to any offering registered under the Act or to the
public through a broker, dealer or market maker pursuant to the provisions of
Rule 144 adopted under the Act.
"Purchase Agreement" has the meaning specified in the second
recital to this Agreement.
5
"Registration Agreement" means that certain Second Amended and
Restated Registration Rights Agreement of even date herewith among the Company
and the parties named therein as Stockholders.
"Response Notice" has the meaning specified in Section 6.1(b)
to this Agreement.
"Sale Transaction" means any merger, consolidation,
recapitalization, sale, transfer or issuance of shares of the Company's capital
stock by the Company or any holders, thereof, or any series of such
transactions, in each case which results in any Person or group of Persons (as
the term "group" is used under the Securities Exchange Act of 1934), other than
the holders of Common Stock and Preferred Stock as of the date of the Purchase
Agreement, and the Affiliates thereof, owning more than fifty percent (50%) by
vote of the voting stock of the Company outstanding at the time of such merger,
consolidation, recapitalization, sale, transfer or issuance or series of such
transactions.
"Xxxxxxx I" means Xxxxxxx Opportunity Fund, L.P.
"Xxxxxxx II" means Xxxxxxx Opportunity Fund (Institutional),
L.P.
"Second Agreement" has the meaning specified in the first
recital to this Agreement.
"Securities" means any capital stock or other similar security
of the Company, including, without limitation, Company Stock, securities
containing equity features and securities containing profit participation
features, and any debt or equity security convertible or exchangeable, with or
without consideration, into or for any stock or similar security, or any
security carrying any warrant, option or right to subscribe for or to purchase
any of the foregoing.
"SEI" means SEI Associates, a Delaware partnership.
"SEI Capital" means SEI Capital, LLC.
"Selling Party" has the meaning specified in Section 5.1(b)
hereof.
"Series A Preferred Stock" means the Series A Convertible
Preferred Stock, par value $1.00 per share, of the Company.
"Series B Preferred Stock" means the Series B Convertible
Preferred Stock, par value $1.00 per share, of the Company.
"Series C Preferred Stock" means the Series C Convertible
Preferred Stock, par value $1.00 per share, of the Company.
"Series D Preferred Stock" means the Series D Convertible
Preferred Stock, par value $1.00 per share, of the Company.
6
"Series E Preferred Stock" has the meaning specified in the
second recital to this Agreement.
"Share" means any share of Common Stock or any other security
exercisable, convertible or exchangeable into Common Stock.
"Sixth Agreement" has the meaning specified in the first
recital to this Agreement.
"Xxxxxx" means Xxxxx X. Xxxxxx.
"Stockholders" means the Persons identified in the
Introduction hereto and each other Person that may hereafter become a record
owner of shares of Common Stock or Preferred Stock and who executes a conformed
copy hereof or a Joinder Agreement.
"Subsidiaries" means (a) any corporation more than fifty
percent (50%) of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(excluding any class or classes having such voting power solely by reason of the
happening of a contingency) is owned by the Company directly or indirectly
through other Subsidiaries, and (b) any partnership, association, joint venture
or other entity in which the Company directly or indirectly through other
Subsidiaries has more than a fifty percent (50%) equity interest.
"Suez" means Suez Equity Investors L.P., a Delaware limited
partnership.
"TCC" means TC Carting, L.L.C., a Delaware limited liability
company.
"TCC2" means TC Carting II, L.L.C., a Delaware limited
liability company.
"TCC3" means TC Carting III, L.L.C., a Delaware limited
liability company.
"Xxxxxx" means Xxxxxx Equity Investors IV, L.P.
"Third Agreement" has the meaning specified in the first
recital to this Agreement.
"Total Shares" means the total number of shares of Common
Stock outstanding, assuming the exercise, conversion or exchange into Common
Stock of all Shares.
"Transfer" means any sale, transfer, assignment, gift,
exchange, pledge, hypothecation, encumbrance or other disposition of any shares
of Company Stock or any interest therein, whether voluntary or involuntary and
regardless of the nature or method thereof (other than an exchange,
reclassification or other conversion of shares of Company Stock into cash,
securities or other property pursuant to a merger, consolidation or
recapitalization of the Company). For the purposes of Sections 4.1, 5.1 and 5.2,
7
"Transfer" means any sale, transfer or other disposition of any shares of
Company Stock or any interest therein for value, whether voluntary or
involuntary and regardless of the nature or method thereof (other than an
exchange, reclassification or other conversion of shares of Company Stock into
cash, securities or other property pursuant to a merger, consolidation or
recapitalization of the Company).
"Transferring Stockholder" has the meaning specified in
Section 4.1(a) to this Agreement.
"Warrant Holder" has the meaning specified in the Introduction
hereto.
ARTICLE II
MANAGEMENT; VOTING OF SHARES
----------------------------
2.1 BOARD OF DIRECTORS. The Company shall at all times be managed by or
under the direction of a Board of Directors (the "Board"), which shall consist
of not more than eight members unless Suez should fail or be unable to exercise
its right to designate a director pursuant to this Section, in which case the
Board shall consist of not more than seven members. The Stockholders hereby
agree to use their best efforts and to take all reasonably necessary or
desirable actions within their power, whether in their capacities as
stockholders, directors, members of a board committee, officers of the Company
or otherwise (including, but not limited to, the voting of shares of Company
Stock owned by them, attendance at meetings in person or by proxy for purposes
of obtaining a quorum and execution of written consents in lieu of meetings),
and the Company shall take all reasonably necessary or desirable actions within
its control (including, without limitation, calling special board and
stockholder meetings) to effectuate and carry out the following provisions:
(a) The Stockholders shall be entitled to representation on
the Board as follows:
(i) Xxxxxxx X. Xxxxx shall have the right to serve as a
director for so long as he shall remain chief
executive officer of the Company;
(ii) IESI Capital shall have the right to designate one
director, initially designated as Xxxxxxx X. Xxxxxx;
(iii) EOF Delaware shall have the right to designate one
director, initially designated as Xxxxx X. XxXxxxx;
(iv) TCC shall have the right to designate two directors,
initially designated as Xxxxxx X. Xxxxxxxxx and
Xxxxxx Xxxxxxxx;
(v) Xxxxxx shall have the right to designate two
directors, initially designated as Xxxxxxx X.
Xxxxxxxx and Xxx Xxxxxx; and
8
(vi) Subject to Regulation Y of the Governors of the
Federal Reserve System, 12 C.F.R. 225, if it shall
elect in writing to the Company, Suez Equity
Investors L.P., a Delaware limited partnership, shall
have the right to designate one director.
The Stockholders hereby agree to vote all of the voting
securities of the Company owned by them for the election of the directors
designated in accordance with this Section 2.1(a) or to cause the directors then
in office to elect such persons in the case of a vacancy. In the event of a tie
in any vote of the Board, one of the TCC directors designated by TCC as the tie
breaker shall have the right to cast the tie-breaking vote. Each of Xxxxxx and,
if Suez should fail or be unable to exercise a member of the Board pursuant to
clause (vi) above, SEI Capital, shall have the right to (a) designate a
representative to attend and observe meetings of the Board and any committee
thereof and (b) receive all information and consents distributed to directors.
(b) A director may be removed only if the Person or Persons,
if any, entitled to designate such director pursuant to Section 2.1(a) hereof
delivers a written notice to the Company stating that such director shall
forthwith be removed and replaced with a substitute director designated in such
notice.
(c) In the event that any vacancy is created on the Board by
reason of the death, resignation or removal of any director designated pursuant
to Section 2.1(a), such vacancy shall be filled by a substitute director
designated by the Person or Persons, if any, entitled to designate the director
whose death, resignation or removal created such vacancy and each of the
Stockholders shall cause its designated directors to elect the person designated
to fill the vacancy.
(d) Any committee of the Board will be constituted to give
each of IESI Capital, EOF Delaware, TCC and Xxxxxx representation thereon at
least proportionate to their representation on the Board.
(e) Directors shall not be entitled to receive any
compensation from the Company for service as a director; provided, however, that
all reasonable out-of-pocket expenses of each director `incurred in connection
with attending regular and special board meetings and any meeting of any board
committee shall be paid by the Company.
2.2 CERTAIN RESTRICTIONS. No Stockholder shall grant any proxy, enter
into or agree to be bound by any voting trust agreement or arrangement of any
kind with respect to any voting securities of the Company, or enter into any
stockholder agreements or arrangement of any kind with respect to any Securities
of the Company, any of which is inconsistent with the provisions of this
Agreement, including, but not limited to, any agreement or arrangement with
respect to the voting of voting securities of the Company, nor shall any
Stockholder act as a member of a group or in concert with any other Person in
connection with the acquisition of shares of Securities of the Company in any
manner inconsistent with the provisions of this Agreement; provided, however,
that the foregoing shall in no way restrict IESI Capital, EOF Delaware, TCC or
Xxxxxx from establishing
9
any arrangement with respect to the exercise of their respective rights pursuant
to Section 2.1(a) hereof.
2.3 APPROVAL OF CERTAIN TRANSACTIONS. Neither the Company nor any
Subsidiaries nor any of their officers, employees, agents or advisors, shall do
or take or cause to be done or taken, nor shall any of them cause or permit any
direct or indirect subsidiary of the Company to do or take or cause to be done
or taken, any of the actions or decisions set forth below without the prior
consent and approval of each of the directors appointed by TCC and Xxxxxx:
(a) Make any substantial change in the character of the
Company's or any Subsidiary's principal business;
(b) Adopt or modify in any material respect the Company's or
any Subsidiary's annual business and financial plan or any other material budget
for the Company or any Subsidiary;
(c) Amend or modify the Credit Agreement; or (ii) create,
incur, assume or permit to exist any indebtedness or other obligation that under
generally accepted accounting principles is required to be shown on the
consolidated balance sheet of the Company as a liability, including, but not
limited to, indebtedness evidenced by a promissory note, bond or similar written
obligation to pay money and indebtedness guaranteed by the Company or any
Subsidiary or for which the Company or any Subsidiary is otherwise liable, other
than such indebtedness or other obligation (A) arising in the ordinary course of
business of the Company or any Subsidiary, (B) contemplated in the Company's
most recently approved annual or financial plan, as approved by the Board, or
(C) in an amount of up to $5,000,000 incurred in connection with an acquisition
permitted by or consented to under the Credit Agreement as the same may be
amended or supplemented from time to time in accordance with Section 2.3(c)(i);
(d) Make any expenditure for fixed or capital assets that
exceed by more than 10% the aggregate limitations set forth in the Company's or
any Subsidiary's annual business and financial plan, as approved by the Board;
(e) Sell, lease, pledge, encumber, assign, exchange, transfer
or otherwise dispose of, or part with control of (whether in one transaction or
a series of transactions) all or substantially all of the assets of the Company
or any Subsidiary (including, without limitation, receivables and leasehold
interests), whether now owned or hereafter acquired, except for (i) sales or
other dispositions of inventory in the ordinary course of business and (ii)
sales or other dispositions of assets which have become worn out or obsolete or
which are promptly being replaced;
(f) Purchase or acquire any property from, exchange any
property with, or lease any property to, lend or advance any money to, borrow
any money from, guarantee any obligation of, acquire any stock, obligations or
securities of, enter into any merger or consolidation agreement with, or enter
into any other transaction or arrangement or otherwise deal with (i) any
officer, director or shareholder of the
10
Company or any Subsidiary in an amount greater than $100,000 or (ii) any
Affiliate of the Company or any Subsidiary, except for transactions (A) entered
into in the ordinary course of business, (B) having terms no less favorable to
the Company than in similar transactions negotiated with a third party, and (C)
under which the Company's obligations do not exceed $100,000 per year;
(g) Issue, offer or sell, or obligate itself to issue, offer
or sell, to any person or entity, any Equity Securities, except as otherwise
required under this Agreement or the Registration Agreement;
(h) Agree to register any securities of the Company or any
Subsidiary under the
Act, except as otherwise required under the Registration Agreement;
(i) Make any loan or advance to or other Investment in any
person or entity,
except advances and similar expenditures in the ordinary course of business;
(j) Declare or pay out any dividend or make any distribution
on its capital stock or purchase, redeem (by direct payment, sinking fund or
otherwise) or otherwise acquire or retire for value any of its Capital Stock,
except for optional redemption of the Preferred Stock in accordance with the
terms thereof;
(k) Directly or indirectly (i) encourage, solicit, initiate,
pursue or enter into, or engage or participate in, any negotiations or
agreements with any Person concerning any merger, acquisition, consolidation,
sale of all or substantially all of the assets of the Company or any Subsidiary,
recapitalization, or other business combination or change in control transaction
involving the Company or any Subsidiary or any division or business unit
thereof, or (ii) acquire all or substantially all of the ownership interests or
assets, or any division or business unit, of any other Person;
(l) Change or appoint the chairman, chief executive officer,
the chief operating officer or the chief financial officer of the Company; or
(m) Agree to any of the actions described in Sections 2.3(a) through 2.3(l).
ARTICLE III
TRANSFER OF SHARES
------------------
3.1 GENERAL RESTRICTIONS ON TRANSFER.
---------------------------------
(a) Except as otherwise provided in this Agreement, no
Stockholder shall directly or indirectly effect a Transfer of any Shares owned
or held by such Stockholder unless (i) such Transfer is (A) to a Permitted
Transferee (other than Transfers to another Stockholder that is not an Affiliate
of the transferring Stockholder or Transfers that are consummated after
compliance with the provisions of Section 4.1, Section 5.1 or Section 5.2
hereof) or (B) a Permitted Xxxxxx Transfer, (ii) the certificate or certificates
representing such Shares bear a legend as provided in Section 7.2 hereof to the
11
effect that such Shares are not registered under the Act and that the Transfer
thereof is subject to the terms of this Agreement, (iii) the Permitted
Transferee shall have executed, as a condition to obtaining ownership of such
Shares, an instrument substantially in the form attached hereto as Exhibit B (a
"Joinder Agreement") in which the Permitted Transferee agrees that its ownership
of such shares of Company Stock shall be subject to, and that the Permitted
Transferee will comply with, all of the terms and conditions of this Agreement
and in which the Permitted Transferee confirms that the representations and
warranties contained in Section 7.1(a) hereof are true and correct with respect
to such Permitted Transferee as of the date of such Joinder Agreement, and (iv)
such Joinder Agreement shall have been promptly delivered to the Board of the
Company prior to the acquisition by such Permitted Transferee of such Shares. As
used herein, "Permitted Xxxxxx Transfer" shall mean a sale by TCC3 of Series E
Preferred Stock pursuant to Section 8.2 of the Purchase Agreement. Such a
Permitted Transferee or transferee in a Permitted Xxxxxx Transfer that is not
already a party to this Agreement, by executing a Joinder Agreement as
hereinabove provided, shall become a party to this Agreement and shall be deemed
a Stockholder for purposes hereof. Notwithstanding the foregoing, a Stockholder
may effect a Transfer of Shares owned or held by such Stockholder (i) pursuant
to a Public Sale, or (ii) to the Company, in a transaction that is incidental to
(A) the exercise, conversion or exchange of such Shares in accordance with the
terms of such Shares, (B) a combination of such Shares (including a reverse
stock split), or (C) a recapitalization, reorganization or reclassification, or
merger or consolidation involving the Company or the Shares (each a "Company
Transfer").
(b) No Stockholder shall directly or indirectly effect a
Transfer of any Shares owned or held by such Stockholder if such action would
constitute a violation of any federal securities laws or any state securities or
blue sky laws or a breach of the conditions under which such Transfer is exempt
from registration under any such laws or a breach of any undertaking or
agreement on the part of such Stockholder made or entered into pursuant to such
laws or in connection with obtaining an exemption from registration thereunder.
Such Stockholder shall deliver to the Company a written opinion of counsel
acceptable to the Company, in form and substance reasonably satisfactory to the
Company, to the effect that the Transfer of such Shares is exempt from
registration under the Act and applicable state securities laws; provided,
however, that in the event of a Permitted Xxxxxx Transfer, a Transfer of Shares
between any of Suez, EOF, Xxxxxxx I, Xxxxxxx II (or their respective successors
or assigns hereunder) and any of their respective Affiliates who are
Stockholders; IESI Capital and any of the other entities included in such
definition hereunder; and between or among Xxxxxx, TCC2, TCC 3 and TCC, no
opinion of counsel shall be required, unless, in any case, the Company
reasonably requests such an opinion. The Company shall promptly advise a selling
Stockholder whether such opinion of counsel is in form and substance
satisfactory to the Company.
(c) The Company shall refuse to record in its stock transfer
books a Transfer by any Stockholder of any Shares that is not effected in
compliance with this Agreement, and any such attempted Transfer shall be null
and void.
12
ARTICLE IV
RIGHT OF FIRST OFFER
--------------------
4.1 FIRST OFFER RIGHT.
------------------
(a) At least thirty (30) days prior to making any Transfer of
any Company Stock (other than in a Public Sale, a Permitted Xxxxxx Transfer, to
a Permitted Transferee (but not Transfers to a Stockholder that is not an
affiliate of the transferring Stockholder (the "Transferring Stockholder")) or a
Company Transfer), the Transferring Stockholder shall deliver a written notice
(an "Offer Notice") to the Company and the other Stockholders (the "Other
Stockholders"). The Offer Notice shall disclose in reasonable detail the
proposed number of shares of Company Stock to be transferred (the "Offered
Stock"), the proposed terms and conditions of the Transfer and the identity of
the prospective transferee(s) (if any). The Company shall promptly provide to
any Stockholder, upon written request to the Company for the purpose of
delivering an Offer Notice, a list of names and addresses of all the
Stockholders. First, the Company may elect to purchase all (but not less than
all) of the Offered Stock specified in the Offer Notice at the price and on the
terms specified therein by delivering written notice of such election to the
Transferring Stockholder and the Other Stockholders as soon as practical but in
any event within ten (10) days after the delivery of the Offer Notice. If the
Company does not elect to purchase all of the Offered Stock within such ten (10)
day period, each Other Stockholder may elect to purchase a portion of such
Offered Stock at the price and on the terms specified in the Offer Notice by
delivering written notice of such election to the Transferring Stockholder as
soon as practical, but in any event within twenty (20) days after delivery of
the Offer Notice, provided that the rights granted to the Other Stockholders
under this Section 4.1(a) shall only exist if the Other Stockholders
collectively elect to purchase all (or more than all as provided in the next
sentence) and not less than all of the Offered Stock. If the Other Stockholders
have in the aggregate elected to purchase more than the number of shares of
Offered Stock being offered by the Transferring Stockholder, the Offered Stock
shall be allocated among the Other Stockholders electing to purchase Shares pro
rata based upon the number of Shares elected to be purchased. Any Offered Stock
not elected to be purchased by the end of such twenty (20) day period shall be
re-offered by the Transferring Stockholder, for the ten (10) day period
following the expiration of such twenty (20) day period, on a pro rata basis to
the Other Stockholders who have elected to purchase Offered Stock and, if any
Offered Stock remains after such re-offering, the Company shall have the right
to purchase such remaining Offered Stock. If the Company or any Other
Stockholders have elected to purchase all (but not less than all) Offered Stock
from the Transferring Stockholder, the transfer of such Shares shall be
consummated as soon as practical after the delivery of the election notice(s) to
the Transferring Stockholder, but in any event within fifteen (15) days after
the expiration of the final applicable election period.
(b) If the Company and the Other Stockholders have not elected
to purchase all of the Offered Stock, the Transferring Stockholder may, within
sixty (60) days after the expiration of the applicable election period and
subject to the provisions of Section 5.1 hereof, Transfer such Offered Stock to
one or more third parties at a price no
13
less than the price per Share specified in the Offer Notice and on other terms
no more favorable to the transferees thereof than offered to the Company and the
Other Stockholders in the Offer Notice. Any Offered Stock not transferred within
such sixty (60) day period shall be re-offered to the Company and the Other
Stockholders under Section 4.1(a) above prior to any subsequent Transfer.
(c) At any closing pursuant to Section 4.1(a) above, the
Company and/or the relevant Other Stockholder(s), as the case may be, shall
deliver to the Transferring Stockholder the full amount of the purchase price of
the Offered Stock (any cash portion thereof to be paid in immediately available
funds), and the Transferring Stockholder shall execute and deliver to the
Company or the relevant Other Stockholder(s) certificate(s) representing the
Shares being transferred, free of any liens, claims or encumbrances (other than
those imposed by Federal or state securities laws and this Agreement), and such
duly executed stock powers or other instruments of conveyance as the Company or
the relevant Other Stockholder(s), as the case may be, shall reasonably request
to convey title to the Offered Stock. The Transferring Stockholder shall pay any
applicable federal, state or local taxes incurred in connection with the
foregoing transfer.
4.2 PLEDGE OF SHARES. A Stockholder shall have the right to pledge any
shares of Company Stock owned or held by such Stockholder to the Company, a
commercial bank, savings and loan association or other lending or financial
institution as security for any indebtedness of such Stockholder; provided,
however, that no such pledge shall be made unless (a) the Person to which such
pledge is made shall have executed an appropriate document in which such Person
agrees that, in the event of realization upon such Shares, such Shares shall
continue to be subject to the terms and conditions of this Agreement and that
such Person will not effect any Transfer of such Shares except in compliance
with the provisions hereof as if such Person was a Stockholder, and (b) such
document shall have been promptly delivered to, and shall have been approved by,
the Company prior to the pledge of such Shares, which approval shall not be
unreasonably withheld.
ARTICLE V
TAG ALONG AND BRING ALONG RIGHTS
--------------------------------
5.1 TAG ALONG RIGHTS. In the event that any Stockholder or group of
Stockholders (such Stockholder or Stockholders, together with their respective
Permitted Transferees, shall be hereinafter referred to as the "Article V
Sellers") proposes to Transfer in a single transaction or a series of related
transactions to any Person or group of Persons (other than to any Person who is
a Stockholder as of the date hereof or a Permitted Transferee) other than in any
Company Transfer, Permitted Xxxxxx Transfer, Public Sale or a Transfer to the
Company or another Stockholder pursuant to Section 4.1, Paid-In Shares
representing an amount equal to or greater than five percent (5%) of the Paid-In
Shares in the aggregate, the Article V Sellers shall first comply with the
following:
14
(a) The Article V Seller or Sellers shall give written notice
(the "Article V Notice") to the Company and each Stockholder identifying the
number of Paid-In Shares it desires to Transfer (the "Article V Shares"), the
intended method of the Transfer, the price such Article V Seller desires to
receive for such Article V Shares, the proposed transfer date, and all other
pertinent terms thereof, including, if known, the identity of any proposed buyer
or buyers of such Article V Shares. The Company shall promptly provide to any
Stockholder, upon written request to the Company, for the purpose of delivering
an Article V Notice, a list of the names and addresses of all of the
Stockholders. For purposes hereof, a bona fide third-party tender or exchange
offer to purchase shares of Company Stock shall be deemed to be an offer to
purchase such Shares at the price specified therein, without regard to any
provisions thereof with respect to proration or conditions to the offeror's
obligation to purchase.
(b) Any Stockholder that is not an Article V Seller (a
"Participant") may elect to participate in the contemplated Transfer by
delivering a written notice to the Company and the Article V Seller or Sellers,
within thirty (30) Business Days (the "Option Period") after receipt of the
Article V Notice, specifying the number of Paid-In Shares such Participant
elects to sell. Each such Participant may elect to Transfer in the contemplated
transaction, at the same price and on the same terms, up to a number of Paid-in
Shares equal to the product of (i) the quotient determined by dividing the
percentage of Paid-In Shares owned by such Stockholder by the aggregate
percentage of Paid-In Shares owned by the Article V Sellers and all Participants
and (ii) the number of Paid-in Shares to be sold in the proposed transaction. If
the Participants and the Article V Sellers (singularly, a "Selling Party," and,
collectively, the "Selling Parties") in the aggregate elect to sell more than
the total number of Paid-In Shares that the proposed buyer or buyers wish to
purchase, then each Selling Party shall be entitled to sell to such buyer or
buyers that number of Shares equal to the number of Paid-In Shares to be so
purchased by such buyer or buyers from the Selling Parties multiplied by a
fraction the numerator of which is the number of Paid-in Shares such Selling
Party elects to sell and the denominator of which is the aggregate number of
Paid-in Shares all of such Selling Parties elect to sell.
(c) Each Article V Seller and Participant shall effect its
participation in a sale or other Transfer by arranging for the delivery to the
buyer or buyers of one or more certificates, properly endorsed for transfer,
which represent the number of shares of Company Stock which the Article V Seller
or Participant is entitled to sell pursuant to this Section 5.1. All shares of
Company Stock proposed to be transferred by each Article V Seller and
Participant shall be transferred free and clear of all liens, claims and
encumbrances of any kind (other than those imposed by federal and state
securities laws and this Agreement) and such Article V Seller and Participant
shall, if requested, deliver certificates to such effect.
5.2 BRING ALONG RIGHTS.
-------------------
(a) If TCC, Xxxxxx, TCC2 and/or TCC3 (a "Proposing
Stockholder") shall propose a Transfer (in a business combination or otherwise)
of more than fifty percent (50%) of the aggregate of the Paid-In Shares in a
bona fide arm's length
15
transaction (a "Bring Along Sale") with a party who is not an Affiliate of such
Proposing Stockholder, the Proposing Stockholder(s), at its option, may require
that (i) each other Stockholder sell or exchange a Like Percentage of its
Paid-In Shares in the same transaction at the same price and on the same terms
and conditions as applicable to the Proposing Stockholder(s), and (ii) if
Stockholder approval of the transaction is required, then each Stockholder shall
vote its shares of Company Stock in favor thereof. Each Stockholder covenants
and agrees that it shall vote for, consent to and raise no objections against
the Bring Along Sale (and shall waive any rights of appraisal) and shall fully
cooperate with and take all necessary and desirable actions in connection with
the consummation of such Bring Along Sale, including without limitation
executing and delivering (A) a purchase and sale agreement in the form to be
entered into by the Proposing Stockholder(s), (B) instruments of conveyance and
transfer and (C) such other documents as the Proposing Stockholder(s) or the
buyer(s) may reasonably require to consummate the Bring Along Sale. The
obligations of the other Stockholders with respect to any Bring Along Sale are
subject to the conditions that upon consummation of the Bring Along Sale, all of
the holders of Common Stock will receive the same form and amount of
consideration per share of Common Stock, all of the holders of the same series
of Preferred Stock will receive the same form and amount of consideration per
share of such series of Preferred Stock, and if any holder of Common Stock or
any series of Preferred Stock is given an option as to the form and amount of
consideration to be received, all holders of such stock will be given the same
option.
(b) The Proposing Stockholders shall give written notice (the
"Bring Along Notice") to each of the other Stockholders, identifying the
proposed buyer or buyers, a description of the Bring Along Sale, the number of
shares of Company Stock to be transferred, the amount and type of consideration
to be paid, the proposed transfer date and all other pertinent terms thereof no
later than fifteen (15) days prior to such proposed transfer date. The Company
shall promptly provide to the Proposing Stockholders, upon written request to
the Company for the purpose of delivering a Bring Along Notice, a list of the
names and addresses of all of the Stockholders.
(c) On the closing date of a Transfer pursuant to this Section
5.2, the Proposing Stockholders and the other Stockholders shall sell the shares
of Company Stock owned by them to the buyer or buyers designated in the Bring
Along Notice on the terms and conditions acceptable to the Proposing
Stockholders which shall be at least as favorable as those set forth in the
Bring Along Notice. By execution of this Agreement, each Stockholder hereby
irrevocably designates and appoints the Proposing Stockholders, or any one of
them, as its attorney in fact to transfer such Stockholder's shares of Company
Stock on the books of the Company in connection with any Transfer made or
required to be made by such Stockholder (if such Stockholder is not a Proposing
Stockholder) pursuant to this Section 5.2. All shares of Company Stock to be
Transferred by each Stockholder pursuant to this Section 5.2 shall be free and
clear of all liens, claims and encumbrances of any kind (other than those
imposed by federal and state securities laws and this Agreement) and such
Stockholder shall, if requested, deliver certificates to such effect.
16
(d) For the purposes of Section 5.1 and Section 5.2, a
"Transfer" shall include a merger, consolidation or similar combination,
exchange, sale of assets followed by a liquidation, any disposition for cash,
marketable securities, debt obligations and/or other property or a combination
thereof and a public offering of shares of Company Stock pursuant to a
registration statement under the Act.
ARTICLE VI
ISSUANCE OF STOCK
-----------------
6.1 RIGHTS UPON ISSUANCE OF ADDITIONAL SECURITIES. Except as otherwise
provided in Section 6.1(e), the Company hereby grants to each Stockholder the
following rights with respect to any and all proposed issuances of Additional
Securities by the Company:
(a) The Company shall give each Stockholder written notice of
the Company's intention to issue Additional Securities (the "Issuance Notice"),
describing the type of Additional Securities, the price at which the Additional
Securities will be issued and the general terms upon which the Company proposes
to issue the Additional Securities, including the anticipated date of such
issuance.
(b) Each Stockholder shall have twenty (20) Business Days from
the date it receives the Issuance Notice to agree to purchase all or any portion
of its Pro Rata Portion of such Additional Securities by giving written notice
to the Company of its desire to purchase Additional Securities (the "Response
Notice") and stating therein the quantity of Additional Securities to be
purchased. Such Response Notice shall constitute the irrevocable agreement of
such Stockholder to purchase the quantity of Additional Securities indicated in
the Response Notice at the price and upon the terms stated in the Issuance
Notice; provided, however, that if the Company is proposing to issue Additional
Securities for consideration other than all cash, and subject to the limitations
on the rights set forth in this Section 6.1(e), the Company shall accept from
such Stockholder either non-cash consideration which is reasonably comparable to
the non-cash consideration proposed by the Company or the cash value of such
non-cash consideration. Any purchase by a Stockholder of Additional Securities
shall be consummated on or prior to the later of the date on which all other
Additional Securities described in the applicable Issuance Notice are issued or
the tenth Business Day following delivery of the Response Notice by such
Stockholder.
(c) The Company shall have one hundred twenty (120) days from
the date of the
Issuance Notice to consummate the proposed issuance of the Additional
Securities, which the Stockholders have not elected to purchase pursuant to
Section 6.1(b). Notwithstanding the foregoing, the Company may sell the
Additional Securities which the Stockholders have not elected to purchase
pursuant to a Response Notice at a price and upon terms that are less favorable
to the Company than those specified in the Issuance Notice; provided that any
purchase of Additional Securities by the Stockholders consummated at the time of
such issuance, pursuant to the last sentence of Section 6.1(b), shall be upon
the same less favorable terms; provided, further that if a Stockholder did not
17
elect to purchase any or all of its Pro Rata Portion of Additional Securities
based upon the terms specified in the relevant Issuance Notice, the Company
shall provide such Stockholder with a revised Issuance Notice reflecting such
less favorable terms, and each such Stockholder shall have fifteen (15) Business
Days from the date such Stockholder receives such revised Issuance Notice to
agree to purchase all or any portion of its Pro Rata Portion of such Additional
Securities to be issued upon the less favorable terms set forth in the revised
Issuance Notice by giving written notice to the Company of its desire to
purchase such Additional Securities and stating therein the quantity of
Additional Securities to be purchased. In the event the Company proposes to
issue Additional Securities after such one hundred eighty (180) day period or
Additional Securities in addition to those specified in the Issuance Notice, it
must again comply with the procedures set forth in this Section 6.1.
(d) In the event the Company grants to any Person rights to
participate in any issuances of Securities which are more favorable than the
rights granted to the Stockholders in this Section 6.1, the rights granted to
the Stockholders shall be expanded to the extent necessary to make such rights
no less favorable than the rights granted to such other Person; provided,
however, that the foregoing provisions shall not apply to the rights granted by
the Company to any underwriter to acquire Securities to be issued and sold by
the Company in a Public Offering.
(e) Notwithstanding the foregoing provisions of this Section
6.1, the Stockholders shall not have the right to participate in (i) the sale of
up to 55,000 shares of Series E Preferred Stock pursuant to the Purchase
Agreement (as the same may be amended, modified or supplemented from time to
time, by the addition of additional Purchasers thereunder or otherwise) or (ii(
the issuances of any Securities (A) made as part of the consideration paid by
the Company in any merger, consolidation, combination, acquisition of securities
of another corporation or purchase of any business or assets for such securities
by or with the Company; provided that the Board shall have determined, in its
sole discretion by resolution approved by the Board, that the consideration to
be received by the Company in such issuance is not less than the fair market
value of the Securities to be issued in such transaction; provided, further,
that no Stockholder or Affiliate thereof shall own any interest in the
corporation or entity with whom the merger, consolidation, combination,
acquisition or purchase of assets is consummated, unless such Stockholder is an
executive officer of the Company on such date and will be employed by the entity
with which the merger, consolidation, combination, acquisition or purchase of
assets transaction is consummated after the date of such transaction; or (B) any
Securities issued or issuable to any employees, officers or directors pursuant
to any Employee Plan approved by the Board.
18
ARTICLE VII
MISCELLANEOUS
-------------
7.1 REPRESENTATIONS AND WARRANTIES.
-------------------------------
(a) Each of the Stockholders hereby represents and warrants to
the Company and the other Stockholders as follows:
(i) such Stockholder has full power and authority to
execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby
without the consent, concurrence or joinder of any
other Person (except for any such consent,
concurrence or joinder that has been obtained and a
copy of which has been delivered to the Company);
(ii) the execution, delivery, and performance by such
Stockholder of this Agreement and the consummation by
it of the transactions contemplated hereby have been
duly authorized by all necessary action on the part
of such Stockholder;
(iii) this Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a
binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its
terms; and
(iv) the execution, delivery and performance by such
Stockholder of this Agreement and the consummation by
such Stockholder of the transactions contemplated
hereby will not (with or without the giving of notice
or the lapse of time, or both) (A) violate any
provision of law, statute, rule or regulation to
which such Stockholder is subject, (B) violate any
order, judgment, or decree applicable to such
Stockholder or its properties or assets, or (C)
conflict with, or result in a breach or default
under, any agreement or other instrument to which
such Stockholder is a party or by which such
Stockholder or its properties or assets is bound.
(b) The Company hereby represents to each of the Stockholders
as follows:
(i) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware;
(ii) the Company has all requisite corporate power and
authority under the Amended Charter and By-Laws to
execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby;
(iii) the execution, delivery and performance by the
Company of this Agreement and the consummation by the
Company of the transactions contemplated hereby have
been duly authorized by all necessary corporate
action on the part of the Company;
19
(iv) this Agreement has been duly and validly executed and
delivered by the Company and constitutes a binding
obligation of the Company, enforceable against the
Company in accordance with its terms; and
(v) the execution, delivery and performance by the
Company of this Agreement and the consummation by the
Company of the transactions contemplated hereby will
not (with or without the giving of notice or the
lapse of time, or both) (A) violate any provision of
law, statute, rule or regulation to which the Company
is subject, (B) violate any order, judgment, or
decree applicable to the Company or its properties or
assets, or (C) conflict with, or result in a breach
or default under, the Amended Charter or By-laws or
any other agreement or other instrument to which the
Company is a party or by which the Company or its
properties or assets is bound.
7.2 LEGEND. A copy of this Agreement shall be filed with the permanent
records of the Company and shall be kept at all times at the principal place of
business of the Company. Each Stockholder agrees that all certificates
representing shares of Common Stock and Preferred Stock shall have affixed
thereto a legend substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF OR PLEDGED OR HYPOTHECATED UNLESS REGISTERED UNDER THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND ANY SUCH LAWS IS AVAILABLE (AND, IN SUCH
CASE, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, SHALL HAVE BEEN
DELIVERED TO THE COMPANY TO THE EFFECT THAT THE OFFER, SALE, TRANSFER,
DISPOSITION, PLEDGE OR HYPOTHECATION THEREOF IS EXEMPT FROM
REGISTRATION UNDER THE ACT AND ANY SUCH LAWS).
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE SECOND AMENDED AND
20
RESTATED STOCKHOLDERS' AGREEMENT DATED AS OF OCTOBER 10, 2003 AMONG THE
COMPANY AND ITS STOCKHOLDERS, AS IT MAY BE AMENDED FROM TIME TO TIME. A
COPY OF SUCH AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF THE
SHARES REPRESENTED BY THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN
REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED
OFFICE. NO REGISTRATION OF TRANSFER OF SUCH SHARES WILL BE MADE ON THE
BOOKS OF THE COMPANY UNLESS AND UNTIL SUCH RESTRICTIONS SHALL BE
COMPLIED WITH."
7.3 TERMINATION UPON PUBLIC OFFERING OR SALE TRANSACTION. If this
Agreement has not previously been terminated by the written consent of all the
Stockholders then party hereto, this Agreement, except for the provisions of
Section 2.1, shall terminate upon the effective date of a Public Offering or
Sale Transaction. In addition, upon the request of the underwriter in connection
with an initial Public Offering, the Stockholders will discuss the termination
of Section 2.1.
7.4 AMENDMENT; WAIVER. The provisions of this Agreement may be amended,
and compliance with the provisions hereof may be waived, only by a written
instrument executed by Stockholders holding not less than seventy percent (70%)
of the Paid-In Shares and the Company; provided, however, that the Agreement may
be amended to add a new Stockholder as a party hereto by the Company and such
new Stockholder executing and delivering a Joinder Agreement. No failure on the
part of any party to exercise any right, power or privilege granted hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege granted hereunder.
By virtue of the execution hereof, any non-compliance with the
provisions of the Prior Agreements in connection with the issuance of the Series
E Preferred Stock is hereby waived.
7.5 FURTHER ASSURANCES. Each Stockholder agrees to do, or cause to be
done, such further acts and to execute and deliver, or to cause to be executed
and delivered, such further agreements, instruments, certificates and other
documents as may be necessary or appropriate to effectuate and carry out the
purposes of this Agreement.
7.6 NOTICES. All notices and other communications hereunder shall be in
writing and shall be given by delivery in person, by registered or certified
mail (return receipt requested and with postage prepaid thereon) or by facsimile
transmission to the parties at their respective addresses as reflected in the
Company's records (or to such other address as any party shall have furnished to
the others pursuant to this Section 7.6). All notices and other communications
hereunder that are addressed as provided in this Section 7.6 shall be deemed
duly and validly given, (a) if delivered in person or by overnight courier, upon
delivery, (b) if delivered by registered or certified mail, seventy-two (72)
hours after being placed in a depository of the United States mails, and (c) if
21
delivered by facsimile transmission, upon transmission thereof and receipt of
the appropriate confirmation.
7.7 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
assigns, executors, administrators, personal representatives and successors (it
being understood and agreed that nothing contained in this Agreement is intended
to confer upon any other Person any rights, benefits or remedies of any kind or
character whatsoever). No Stockholder may assign this Agreement to any Person
(other than a Permitted Transferee of Shares previously owned or held by such
Stockholder that acquired the same in compliance with the provisions of this
Agreement) without the prior written consent of each of the other parties
hereto.
7.8 SEVERABILITY. In the event that any provision set forth in this
Agreement is found to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining terms and provisions hereof shall
not be in any way affected thereby, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein.
7.9 SPECIFIC PERFORMANCE. The parties hereto agree that a violation of
the provisions hereof would cause irreparable injury to the parties hereto for
which they would have no adequate remedy at law. Accordingly, in the event of
any such violation, the parties hereto shall be entitled to preliminary and
other injunctive relief without necessity of complying with any requirement as
to the posting of a bond or other security. Any such injunctive relief shall be
in addition to any other remedies that may now or hereafter be available at law
or in equity.
7.10 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
7.11 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements or understandings, whether written or oral, among the parties
or any of them with respect thereto, including the Prior Agreements.
7.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.13 BOARD MEETINGS. The Company shall conduct quarterly board meetings
at which the financial statements and activities of the Company in the prior
quarter are reviewed.
7.14 INFORMATION. Each Stockholder shall receive all information
provided to any other Stockholder, in their capacity as such, at the time such
other Stockholder receives such information.
22
7.15 WARRANT HOLDERS. No right granted under this Agreement shall be
effective as to any Warrant Holder that is a party to this Agreement on the date
hereof, or that becomes a party to this Agreement by submitting a Joinder
Agreement to the Company in connection with being issued, after the date hereof,
warrants to purchase Company Stock, until such Warrant Holder exercises its
right to purchase shares of Company Stock pursuant to its warrants. Upon any
such purchase, the Warrant Holder shall become a Stockholder with respect to the
shares of Company Stock purchased, subject to all the terms, conditions and
restrictions and entitled to all the rights and benefits of this Agreement. The
foregoing notwithstanding, upon becoming a party to this Agreement, Warrant
Holders shall be subject to all the terms, conditions and restrictions of this
Agreement.
7.16 EXPENSES. The costs and expenses (including reasonable attorneys'
fees) associated with any filings with any governmental body and any approvals
of any governmental authority (including with respect to the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended) required under the Amended
Charter in connection with the conversion or redemption of any capital stock of
the Company shall be paid by the Company.
[Remainder of page intentionally left blank]
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
ADDRESSES: COMPANY:
0000 Xxxxx Xxxxxxx IESI CORPORATION
Suite 200 a Delaware corporation
Xxxxx Xxxxx, XX 00000
Attn: President
Tel: (000) 000-0000 By:
Fax: (000) 000-0000 Name:
Title:
with a copy to
0 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx
Attn: Secretary
Tel: (000) 000-0000
Fax: (000) 000-0000
c/o Xxxxxxx X. Xxxxxx IESI CAPITAL LLC,
c/o The United Company a Mississippi limited liability company
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By:
Fax: (___) ___-____ Xxxxxxx X. Xxxxxx
Managing Member
c/o Xxxxxxx X. Xxxxxx IESI CAPITAL II LLC,
c/o The United Company a Delaware limited partnership
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By:
Fax: (___) ___-____ Xxxxxxx X. Xxxxxx
Managing Member
c/o Xxxxxxx X. Xxxxxx IESI CAPITAL III LLC,
c/o The United Company a Mississippi limited liability company
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By:
Fax: (___) ___-____ Xxxxxxx X. Xxxxxx
Managing Member
c/o Xxxxxxx X. Xxxxxx IESI CAPITAL IV LLC,
c/o The United Company a Mississippi limited liability company
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By:
Fax: (___) ___-____ Xxxxxxx X. Xxxxxx
Managing Member
c/o Xxxxxxx X. Xxxxxx IESI CAPITAL V LLC,
c/o The United Company a Mississippi limited liability company
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By:
Fax: (___) ___-____ Xxxxxxx X. Xxxxxx
Managing Member
c/o Xxxxxxx X. Xxxxxx IESI CAPITAL VI LLC,
c/o The United Company a Mississippi limited liability company
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By:
Fax: (___) ___-____ Xxxxxxx X. Xxxxxx
Managing Member
0000 Xxx Xxxxxx XXX XXXXXX CONSTRUCTION CO., INC.,
Suite 300 a Texas corporation
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000 By:
Name:
Title:
c/o AEA Investors XXXXXXX X. XXXXXXXX
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxx 00000
c/o IESI Corporation
0000 Xxxxx Xxxxxxx XXXXXXX X. XXXXX
Xxxxx 000
Xxxxx Xxxxx, XX 00000
0000 Xxxxxx Xxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxx 00000 XXXXXX X. XXXXXXXXXX
c/x Xxxxxxx Xxxxxx Xxxxxx ENVIRONMENTAL OPPORTUNITIES
000 Xxxxxx Xxxxxx, Xxxxx 0000 FUND II, L.P.,
Xxxxxxx, Xxxxx 00000 a Delaware limited partnership
Attn: Xxxxx X. XxXxxxx By: Fund II Mgt. Co., LLC, its General
Fax: (000) 000-0000 Partner
By:
Xxxxx X. XxXxxxx
Manager
c/o Xxxxxxx Xxxxxx Xxxxxx XXX X. XXXXXXX
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxx X. Xxxxxxx By:
Fax: (000) 000-0000 Xxx X. Xxxxxxx
c/x Xxxxxxx Xxxxxx Xxxxxx ENVIRONMENTAL OPPORTUNITIES
000 Xxxxxx Xxxxxx, Xxxxx 0000 FUND II (INSTITUTIONAL), L.P.,
Xxxxxxx, Xxxxx 00000 a Delaware limited partnership
Attn: Xxxxx X. XxXxxxx By: Fund II Mgt. Co., LLC, its General
Fax: (000) 000-0000 Partner
By:
Xxxxx X. XxXxxxx
Manager
c/o Sanders Xxxxxx Xxxxxx ENVIRONMENTAL OPPORTUNITIES FUND, L.P.,
000 Xxxxxx Xxxxxx a Delaware limited partnership
Suite 3100 By: Environmental Opportunities
Xxxxxxx, Xxxxx 00000 Management Co., LLC, its
Attn: Xxxxx X. XxXxxxx General Partner
Fax: (000) 000-0000 By:
Name:
Title:
c/o Xxxxxxx Xxxxxx Xxxxxx XXXXXXX OPPORTUNITY FUND, L.P.
000 Xxxxxx Xxxxxx a Delaware limited partnership
Suite 3100 by: Fund II Mgt. Co., LLC, its General
Xxxxxxx, Xxxxx 00000 Partner
Attn: Xxx X. Xxxxxxx By:
Fax: (000) 000-0000 Name: Xxx X. Xxxxxxx
Title: Manager
c/o Xxxxxxx Xxxxxx Xxxxxx XXXXXXX OPPORTUNITY FUND,
000 Xxxxxx Xxxxxx (INSTITUTIONAL), L.P. a Delaware
Suite 3100 limited partnership
Xxxxxxx, Xxxxx 00000 by: Fund II Mgt. Co., LLC, its General
Attn: Xxx X. Xxxxxxx Partner
Fax: (000) 000-0000
By:
Name: Xxx X. Xxxxxxx
Title: Manager
c/o New Jersey Group Funding MANHATTAN GROUP FUNDING,
000 X. Xxxxxxxx Xxx. a New Jersey limited partnership
Xxxxxxxxx Xxxxxx, XX 00000
email: xxxxxxxx000@xxxxx.xxx
phone: (000) 000 0000 By:
Fax:: (000) 000-0000 Name:
Title:
Fleet National Bank BANCBOSTON INVESTMENTS INC.,
000 Xxxxxxx Xxxxxx a Massachusetts corporation
MA DE 10008H
Xxxxxx, Xxxxxxxxxxxxx 00000
By:
Attn: Xx. Xxx Xxxxxxx Name:
Title:
000 Xxxxx Xxxxxx, 0xx Xxxxx SUEZ EQUITY INVESTORS, L.P.,
Xxx Xxxx, Xxx Xxxx 00000 a Delaware limited partnership
Fax: (000) 000-0000 By SEI Capital, L.L.C., its General
Partner,
By:
Xxxxxxx X. Xxxxx
Member
000 Xxxxx Xxxxxx, 0xx Xxxxx SEI ASSOCIATES,
Xxx Xxxx, Xxx Xxxx 00000 a Delaware partnership
Fax: (000) 000-0000
By:
Xxxxxxx X. Xxxxx
Partner
0000 Xxxxxxxxxxxx Xxxxxx, X.X. TC CARTING, L.L.C.,
Suite 350 a Delaware limited liability company
Xxxxxxxxxx, X.X. 00000
Fax: 000-000-0000 By: Xxxxxx Equity Investors III, L.P.,
its Managing Member
By: TC Equity Partners, L.L.C.,
its General Partner
By:
Name:
Title:
0000 Xxxxxxxxxxxx Xxxxxx, X.X. XXXXXX EQUITY INVESTORS IV, L.P.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000 By: TC Equity Partners IV, L.L.C.,
Fax: 000-000-0000 its General Partner
By:
Name:
Title:
0000 Xxxxxxxxxxxx Xxxxxx, X.X. TC CARTING II, L.L.C.,
Suite 350 a Delaware limited liability company
Xxxxxxxxxx, X.X. 00000
Fax: 000-000-0000 By: TC Management Partners IV, L.L.C.,
its Managing Member
By:
Name:
Title:
0000 Xxxxxxxxxxxx Xxxxxx, X.X. TC CARTING III, L.L.C.,
Suite 350 a Delaware limited liability company
Xxxxxxxxxx, X.X. 00000
Fax: 000-000-0000 By: Xxxxxx Equity Investors IV, L.P.
its Managing Member
By: TC Equity Partners IV, L.L.C.,
its General Partner
By:
Name:
Title:
000 Xxxxx Xxxxxx, 0xx Xxxxx INDOSUEZ CAPITAL PARTNERS 2001, L.P.
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000 By: Indosuez XX XX, Inc., its managing
general partner
By:
Name:
Title:
By:
Name:
Title:
000 Xxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000 XXXX XXXXXXXXXX
000 Xxxxx Xxxx, Xxx. 0
Xxxxxxxxx, Xxx Xxxx 00000 XXXXXXXX XXXXXXXXXX
00 Xxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000 XXXXXXXXX XXXXXXXXXX
000 Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000 XXXXXX XXXXXXXXXX
000 Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000 XXXXXXX XXXXXXXXXX
00 Xxxxxxx Xxxx
Xxx Xxxxxxxx, Xxx Xxxx 00000 XXXX X. XXXXXXXX
00 Xxxx Xxxxx
Xxx Xxxxxxxx, Xxx Xxxx 00000 XXXXXX XXXXXXXX
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000 XXXXX XXXXXXXXX
0 Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000 MAURO DELL'OLIO
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000 J. XXXXX XXXXXXXX
0 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000 XXXXXXX XXXXXX, SR
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000 XXXXXX X. XXXXXX
00 Xxxxxx Xxxxx
Xxxxx, Xxx Xxxxxx 00000 XXXXXX XX VERDE
00 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000 JOIE XXXXX XXXXXX-XXXX
0 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000 XXXXX X. XXXXX
c/o IESI Corporation
0000 Xxxxx Xxxxxxx XXXXXXXX XXXXX
Xxxxx 000
Xxxxx Xxxxx, XX 00000
EXHIBIT A
AMENDED CHARTER
---------------
EXHIBIT B
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this "Agreement") is made this __ day
of _____, by ____________________________ (the "New Stockholder") in favor of
IESI CORPORATION, a Delaware corporation (the "Company") and the other parties
to the Stockholders' Agreement referred to below.
WITNESSETH:
WHEREAS, the Company and the stockholders named on Exhibit A
hereto (collectively, the "Stockholders") are parties to that certain Second
Amended and Restated Stockholders' Agreement dated as of [_____________ __],
2003 (the "Stockholders' Agreement"); and
WHEREAS, concurrently with the execution and delivery of this
Agreement to the Board of the Company, the New Stockholder is acquiring [____]
shares of Stock of the Company; and
WHEREAS, it is a condition to the transfer of such shares to
the New Stockholder that he execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the premises, the terms
and provisions set forth herein, the mutual benefits to be gained by the
performance thereof and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The New Stockholder acknowledges and agrees that by
execution and delivery of this Agreement, he becomes a party to the
Stockholders' Agreement, subject to the terms, conditions and restrictions set
forth therein. The New Stockholder hereby acknowledges receipt of a true and
correct copy of the Stockholders' Agreement and confirms that the
representations and warranties contained in Section 7.1(a) thereof are true and
correct with respect to such New Stockholder.
2. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
3. This Agreement and the Stockholders' Agreement constitute
the entire agreement among the parties with respect to the subject matter
hereof.
4. In the event that any provision set forth in this Agreement
is found to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining terms and provisions hereof shall not be in any
way affected thereby, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
5. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have entered into this
Agreement as of the date written above.
Address: COMPANY:
0000 Xxxxx Xxxxxxx IESI CORPORATION
Xxxxx 000
Xxxxx Xxxxx, XX 00000
By:
Name:
Title:
Address: NEW STOCKHOLDER:
By:
Name:
Title:
