EXHIBIT 12
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement, dated as of
July 30, 1999 (this "Agreement"), by and between Allied Waste Industries, Inc.,
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a Delaware corporation (the "Company"), on the one hand, and Apollo Investment
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Fund IV, L.P., a Delaware limited partnership, Apollo Investment Fund III, L.P.,
a Delaware limited partnership, Apollo Overseas Partners IV, L.P., a Delaware
limited partnership, Apollo Overseas Partners III, L.P., a Delaware limited
partnership, Apollo (U.K.) Partners III, L.P., an English limited partnership,
Apollo/AW LLC, a Delaware limited liability company, Blackstone Capital Partners
II Merchant Banking Fund L.P., a Delaware limited partnership, Blackstone
Capital Partners III Merchant Banking Fund L.P., a Delaware limited partnership
("BCP"), Blackstone Offshore Capital Partners III L.P., a Cayman Islands limited
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partnership, Blackstone Offshore Capital Partners II L.P., a Cayman Islands
limited partnership, Blackstone Family Investment Partnership III L.P., a
Delaware limited partnership, and Blackstone Family Investment Partnership II
L.P., a Delaware limited partnership, Blackstone Capital Partners III Merchant
Banking Fund L.P., a Delaware limited partnership, Greenwich Street Capital
Partners II, L.P., a Delware limited partnership, GSCP Offshore Fund, L.P., a
Cayman Islands exempted limited partnership, Greenwich Fund, L.P., a Delaware
limited partnership, Greenwich Street Employees Fund, L.P., a Delaware limited
partnership, TRV Executive Fund, L.P., a Delaware limited partnership, DLJMB
Funding II, Inc., a Delaware corporation, DLJ Merchant Banking Partners II,
L.P., a Delaware limited partnership, DLJ Merchant Banking Partners II-A, L.P.,
a Delaware limited partnership, DLJ Diversified Partners, L.P., a Delaware
limited partnership, DLJ Diversified Partners-A, L.P., a Delaware limited
partnership, DLJ Millenium Partners, L.P., a Delaware limited partnership, DLJ
Millenium Partners-A, L.P., a Delaware limited partnership, DLJ First ESC L.P.,
a Delaware limited partnership, DLJ Offshore Partners II, C.V., a Netherlands
Antilles limited partnership, DLJ EAB Partners, L.P., a Delaware limited
partnership, and DLJ ESC II L.P., a Delaware limited partnership (collectively,
the "Shareholders"), on the other hand, amending and restating in its entirety
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the Registration Rights Agreement dated as of April 21, 1997 (the "Original
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Agreement"), by and between the Company, on the one hand, and certain of the
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Shareholders, on the other hand.
W I T N E S S E T H:
WHEREAS, concurrently herewith, the Company and certain of the
Shareholders are entering into a Preferred Stock Purchase Agreement (the
"Purchase Agreement") pursuant to which, upon the terms and subject to the
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conditions set forth in the Purchase Agreement, certain of the Shareholders
shall purchase an aggregate of 1,000,000 shares of Senior Convertible Preferred
Stock, par value $.10 per share, of the Company ("Senior Preferred Stock"),
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which shall be convertible into either shares of Series A Junior Preferred
Stock, par value $.10 per share, of the Company ("Junior
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Preferred Stock"), or shares of common stock, par value $.01 per share, of the
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Company (the "Common Stock");
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WHEREAS, concurrently herewith, the Company and Shareholders are
entering into a Second Amended and Restated Shareholders Agreement (the
"Shareholders Agreement"), which shall become effective at the time the shares
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of Senior Preferred Stock are purchased by the Shareholders (the "Effective
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Time"), granting Shareholders certain rights to designate directors and setting
forth certain restrictions on the acquisition and distribution of securities of
the Company by Shareholders and the conduct of Shareholders with respect to the
Company; and
WHEREAS, as part of establishing the relationship between Shareholders
and the Company, Shareholders and the Company have agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement, the Purchase Agreement and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows, effective upon the closing of
the purchase of the Senior Preferred Stock pursuant to the Purchase Agreement:
ARTICLE I
Definitions
1.1. Certain Definitions. In this Agreement:
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"Apollo/Blackstone Shareholders" shall have the meaning set forth in
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the Shareholders Agreement.
"Exchange Act" means the United States Securities Exchange Act of
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1934, as amended, and the rules and regulations of the SEC promulgated under
such Act.
"Non-Apollo/Blackstone Shareholders" means all of the Shareholders
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other than the Apollo/Blackstone Shareholders.
"Registrable Securities" means the 11,776,765 shares of Common Stock
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acquired by certain of the Shareholders from TPG Partners, L.P. and TPG Parallel
I, L.P. (the "TPG Block"), the 14,600,000 shares of Common Stock acquired by
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certain of the Shareholders from Xxxxxxx, Inc. (the "Xxxxxxx Block" and,
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together with the TPG Block, the "Original Shares"), the 1,000,000 shares of
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Senior Preferred Stock, any shares of Junior Preferred Stock or Common Stock
issued upon conversion of the Senior Preferred Stock (such shares, the
"Additional Shares", together with the Original Shares and the Senior Preferred
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Stock, the "Shares"), and any additional shares of Common Stock
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acquired by Shareholders in compliance with the Shareholders Agreement, and any
additional shares of Common Stock, Senior Preferred Stock or Junior Preferred
Stock issued in connection with any stock dividend on, or any stock split,
reclassification or reorganization of any of the Shares or such additional
shares; provided, however, that shares of Junior Preferred Stock shall not be
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Registrable Securities at any time on or prior to June 30, 2001.
"SEC" means the United States Securities and Exchange Commission or
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any successor agency.
"Securities Act" means the United States Securities Act of 1933, as
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amended, and the rules and regulations of the SEC promulgated under such Act.
"Subject Securities" means shares of Senior Preferred Stock, Junior
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Preferred Stock, Common Stock or other equity securities of the Company
convertible into or exchangeable for shares of Common Stock.
ARTICLE II
REGISTRATION RIGHTS
2.1. Incidental Rights. If at any time or from time to time (but
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subject to the limitations on sales of Registrable Securities in the
Shareholders Agreement) the Company proposes to file with the SEC a registration
statement (whether on Form X-0, X-0, or S-3, or any equivalent form then in
effect) for the registration under the Securities Act of any shares of Subject
Securities for sale, for cash consideration, to the public by Company or on
behalf of one or more shareholders of Company (excluding any sale of securities
upon conversion into or exchange or exercise for shares of Common Stock, and any
shares of Common Stock issuable by Company upon the exercise of employee stock
options, or to any employee stock ownership plan, or in connection with any
acquisition made by Company, any securities exchange offer, dividend
reinvestment plan, employee benefit plan, corporate reorganization, or in
connection with any amalgamation, merger or consolidation of Company or any
direct or indirect subsidiary of Company with one or more other corporations if
Company is the surviving corporation), Company shall give Shareholders at least
20 days' prior written notice of the proposed filing (or if 20 days' notice is
not practicable, a reasonable shorter period to be not less than 7 days), which
notice shall outline the nature of the proposed distribution and the
jurisdictions in the United States in which Company proposes to qualify and
offer such securities (the "Elected Jurisdictions"). On the written request of
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Shareholders received by Company within 15 days after the date of Company's
delivery to Shareholders of the notice of intended registration (which request
shall specify the Registrable Securities sought to be disposed of by
Shareholders and the intended method or methods by which dispositions are
intended to be made), Company shall, under the terms and subject to the
conditions of this Article II, at its own expense as provided in Section 4.1,
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include in the coverage of
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such registration statement (or in a separate registration statement
concurrently filed) and qualify for sale under the blue sky or securities laws
of the various states in the Elected Jurisdictions the number of Registrable
Securities of the kind being registered (the "Specified Securities") held by
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Shareholders or into which the Registrable Securities are convertible, as the
case may be, and which Shareholders have so requested to be registered or
qualified for distribution, to the extent required to permit the distribution
(in accordance with the intended method or methods thereof as aforesaid) in the
Elected Jurisdictions requested by Shareholders of such Registrable Securities.
Notwithstanding anything else contained in this Section 2.1, if the
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registration statement to be filed by the Company is a registration filed in
response to any of the first three demands made by the Apollo/Blackstone
Shareholders pursuant to Section 2.2 (the "First Three Demands"), then the Non-
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Apollo/Blackstone Shareholders shall not be entitled to have their Registrable
Securities included in the coverage of such a registration statement, provided,
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however, that if the First Three Demands include Additional Shares (or shares
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into which Additional Shares have been converted), then the Non-
Apollo/Blackstone Shareholders shall be entitled to have their Registrable
Securities included in the coverage of such registration statement, on the terms
and conditions set forth in this Section 2.1.
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If the distribution proposed to be effected by Company involves an
underwritten offering of the securities being so distributed by or through one
or more underwriters, and if the managing underwriter of such underwritten
offering indicates in writing its reasonable belief that including all or part
of the Specified Securities in the coverage of such registration statement or in
the distribution to be effected by such prospectus will materially and adversely
affect the sale of securities proposed to be sold (which statement of the
managing underwriter shall also state the maximum number of shares, if any,
which can be sold by Shareholders requesting registration under this Section 2.1
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without materially adversely affecting the sale of the shares proposed to be
sold), then the number of Specified Securities which Shareholders shall have the
right to include in such registration statement shall be reduced to the maximum
number of shares specified by the managing underwriter. In the case of a
registration statement filed in response to any of the First Three Demands
covering both Original Shares and Additional Shares (or shares into which
Additional Shares have been converted), first priority shall be afforded to the
Original Shares, with all other securities to be completely eliminated before
the number of such Original Shares is reduced and second priority shall be given
to the other Registrable Securities of both the Apollo/Blackstone Shareholders
and the Non-Apollo/Blackstone Shareholders, with all other securities to be
completely eliminated before the number of such Registrable Securities is
reduced; provided; however, that if the number of Registrable Securities is to
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be reduced, then reductions will respect to the Registrable Securities shall be
made among the Shareholders on a pro-rata basis in accordance with the
relationship which the number of the Registrable Securities held by each
Shareholder bears to the number of Registrable
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Securities held by all Shareholders (the "Additional Shares Pro-Rata
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Reduction").
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In all other cases, first priority shall be afforded to securities
covered by a registration statement filed in response to the exercise of a
demand registration right by another holder of Common Stock, Senior Preferred
Stock or Junior Preferred Stock, including the Apollo/Blackstone Shareholders,
and no securities proposed to be sold by such holders shall be so reduced until
all securities proposed to be sold by all other parties have been entirely
eliminated and second priority shall be afforded to the Original Shares;
provided, however, that in the case of a registration statement filed in
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response to a demand from the Apollo/Blackstone Shareholders (other than any of
the First Three Demands) (the "Other Demands"), first priority shall be afforded
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to the Original Shares, with all other securities to be completely eliminated
before the number of such Original Shares is reduced and second priority shall
be given to the other Registrable Securities of both the Apollo/Blackstone
Shareholders and the Non-Apollo/Blackstone Shareholders, with all other
securities to be completely eliminated before the number of such Registrable
Securities is reduced. As to any reductions to be made to the Registrable
Securities (other than the Original Shares) proposed to be sold by the
Shareholders pursuant to a registration statement filed in response to the Other
Demands, such reductions to be made among the Shareholders shall be made on a
pro-rata basis in accordance with the relationship which the number of
Registrable Securities (other than the Original Shares) held by each Shareholder
bears to the number of Registrable Securities (other than the Original Shares)
held by all Shareholders (the "Pro-Rata Reduction"). As to all other proposed
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selling shareholders of Securities, including Shareholders, any such reduction
in the number of Securities proposed to be sold by the selling shareholders
shall be effected on a pro rata basis in accordance with the relationship which
the number of such Securities of the class proposed to be sold by each selling
shareholder bears to the number of such Securities of that class proposed to be
sold by all selling shareholders.
For purposes of calculating the Additional Shares Pro-Rata Reduction
and the Pro-Rata Reduction, each share of Preferred Stock shall be counted as
the number of shares of Common Stock into which such Preferred Share would be
convertible as of the date of determination, assuming Stockholder Approval (as
defined in the Purchase Agreement) , and each share of Junior Preferred Stock
shall be counted as the number of shares of Common Stock that would have been
issued in lieu of such share of Junior Preferred Stock, as of the date of
determination.
Company shall have the sole right to select any underwriters,
including the managing underwriter, of any public offering of securities made
other than as a result of the rights granted in Section 2.2. Nothing in this
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Section 2.1 shall create any liability on the part of Company to Shareholders if
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Company for any reason decides not to file or to
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delay or withdraw a registration statement (which Company may do in its sole
discretion).
Shareholders may request to have Registrable Securities included in an
unlimited number of registrations under this Section 2.1.
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2.2. Demand Rights. Upon written request of the Apollo/Blackstone
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Shareholders made at any time (but subject to the limitations on sales of
Registrable Securities in the Shareholders Agreement), the Company shall, under
the terms and subject to the conditions set forth in this Section 2.2, and
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Sections 2.3 and 2.4, file (and use its reasonable efforts to cause to become
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effective) a registration statement covering, and use its reasonable efforts to
qualify for sale under the blue sky or securities laws of the various states of
the United States as may be requested by the Apollo/Blackstone Shareholders
(except any such state in which, in the opinion of the managing underwriter of
the offering, the failure to so qualify would not materially and adversely
affect the proposed offering), in accordance with the intended method or methods
of disposition set forth in that notice, of such number of Registrable
Securities, as may be designated by the Apollo/Blackstone Shareholders in their
request, or that portion thereof designated in said request for registration in
each of the Designated Jurisdictions (as defined below). A request for
registration under this Section 2.2 shall specify the number of shares to be
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registered, the jurisdictions in the United States in which such registration is
to be effected (the "Designated Jurisdictions") and the proposed manner of sale,
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including the name and address of any proposed underwriter; provided, that all
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offerings contemplated by a request for registration under this Section 2.2
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shall be underwritten offerings involving a distribution of Registrable Shares
to the public in which reasonable efforts are made not to knowingly sell to any
single buyer, acting individually or with others, who after such underwriting
will own more than 9% of the Total Voting Power (as defined in the Shareholders
Agreement) (any such buyer, "Significant Stockholder"), under circumstances in
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which it would reasonably be expected to not result in any person becoming a
Significant Stockholder. The principal underwriter or underwriters for any such
offering shall be selected by the Apollo/Blackstone Shareholders, subject to
Company's approval, which may not be unreasonably withheld. Notwithstanding any
other provision in this Section, the Apollo/Blackstone Shareholders shall not be
permitted to make a demand for registration pursuant to this Section unless the
number of Registrable Securities covered by such demand is at least 2,500,000
shares of Common Stock (or securities convertible into such number of shares of
Common Stock) (as such number may be appropriately adjusted to reflect stock
splits, reverse stock splits, dividends and any other recapitalization or
reorganization of Company) or such lesser number of shares as would yield gross
proceeds of not less than $50 million based on the average closing price of the
Common Stock (and assuming that the market price of shares of Junior Preferred
Stock was equal to the market price of the shares of Common Stock into which
such shares would then be convertible) over the ten trading day period
immediately preceding the date of the written request hereunder (with the gross
proceeds
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of Senior Preferred Stock deemed to be its liquidation preference on the date of
such demand). No Shareholders other than the Apollo/Blackstone Shareholders and
their Related Transferees shall have demand registration rights.
If the distribution proposed to be effected pursuant to this Section
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2.2 involves an underwritten offering of Registrable Securities and securities
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of the Company other than Registrable Securities ("Other Securities"), and if
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the managing underwriter of such underwritten offering indicates in writing its
reasonable belief that including all or part of such securities in the coverage
of such registration statement will materially and adversely affect the sale of
the securities proposed to be sold, then the number of securities proposed to be
sold shall be reduced to the maximum number of securities specified by the
managing underwriter. In such a case, first priority shall be afforded to
Registrable Securities in accordance with the third and fourth paragraph of
Section 2.1, and such Other Securities, subject to the limitations set forth in
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such third and fourth paragraphs.
Company may delay the filing of any registration statement requested
under this Section 2.2, or delay its effectiveness, for a reasonable period (but
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not longer than 90 days) if, in the sole judgment of Company's Board of
Directors, (i) a delay is necessary in light of pending financing transactions,
corporate reorganizations, or other major events involving Company, or (ii)
filing at the time requested would materially and adversely affect the business
or prospects of Company in view of disclosures that may be thereby required.
Once the cause of the delay is eliminated, Company shall promptly notify the
Apollo/Blackstone Shareholders and, promptly after Shareholders notify Company
to proceed, Company shall file a registration statement and begin performance of
its other obligations under this Section 2.2.
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The Apollo/Blackstone Shareholders shall be entitled to request not
more than nine registrations under this Section 2.2 (provided that the filing of
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a registration statement in more than one Designated Jurisdiction in connection
with a concurrent or substantially concurrent distribution shall be deemed for
the purposes of this Agreement to be a single registration). However, if the
Apollo/Blackstone Shareholders request a registration under this Section 2.2,
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but no registration statement becomes effective with respect to the Registrable
Securities covered by such request, then such request shall not count as a
request for purposes of determining the number of requests for registration the
Apollo/Blackstone Shareholders may make under this Section 2.2.
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If there is an effective registration statement requested by the
Apollo/Blackstone Shareholders pursuant to this Section 2.2, the
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Apollo/Blackstone Shareholders may require the Company to delay the filing of
any registration statement relating to shares of Common Stock or delay its
effectiveness, for a reasonable period (but not longer than 90 days) if, in the
sole judgment of the Apollo/Blackstone Shareholders, a delay is necessary in
order to avoid materially and adversely affecting the
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disposition of Registrable Securities pursuant to the offering by the
Shareholders; provided that the foregoing shall not limit the Company's right to
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file and have declared effective registration statements relating to shares of
Common Stock issuable pursuant to employee benefit plans of the Company or any
of its subsidiaries or issuable pursuant to a merger, acquisition or similar
transaction involving the Company or any of its subsidiaries.
2.3. Registration Conditions. Notwithstanding any other
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provision of this Agreement, Company shall not be required to effect a
registration of any securities under this Article II, or file any post-effective
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amendment to such a registration statement relating to such a qualification:
(a) unless Shareholders agree to (x) sell and distribute a
portion or all of their Registrable Securities in accordance with the plan
or plans of distribution adopted by and through underwriters, if any,
acting for Company or any such other sellers of Common Stock, Senior
Preferred Stock or Junior Preferred Stock, and (y) bear a pro rata share of
underwriter's discounts and commissions;
(b) if a registration requested under Section 2.2, or any
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post-effective amendment to the registration statement filed in connection
therewith, requires, under applicable statutes and rules, a special audit
(other than a normal fiscal year-end audit) of any financial statements,
unless Shareholders agree to pay their proportionate share (determined by
the number of shares to be sold by Shareholders in the offering in
proportion to the total number of shares to be sold by Company and all
other participants in such offering) of the reasonable fees and expenses of
accountants incurred in connection with the special audit and which would
otherwise not be incurred; provided that Shareholders shall not be required
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to pay any share of such fees and expenses if such audit would otherwise be
required at substantially the same time to satisfy the Company's reporting
requirements under the Exchange Act absent such registration;
(c) if, in the case of a request for registration under
Section 2.2, (x) any offering pursuant to a registration statement covering
securities of the same kind otherwise sought to be registered regarding
which Shareholders could have exercised registration rights under Section
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2.1 of this Agreement has been completed within the prior 90 days, (y) a
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registration statement requested by Shareholders pursuant to Section 2.2
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has become effective under the Securities Act within the prior six months,
or (z) Company has given notice under Section 2.1 of its intention to file
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a registration statement under the Securities Act and has not completed or
abandoned the proposed offering (for so long as the Company continues in
good faith to pursue the proposed offering); and
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(d) unless Company has received from Shareholders all
information Company has reasonably requested concerning Shareholders and
their method of distribution of Registrable Securities, so as to enable
Company to include in the registration statement all facts required to be
disclosed in it.
2.4. Covenants and Procedures. If Company becomes obligated
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under this Article II to effect a registration of Registrable Securities on
behalf of Shareholders, then (as applicable to the jurisdictions for which such
registration is to be made):
(a) Company, at its expense as provided in Section 4.2,
shall prepare and file with the SEC a registration statement covering such
securities and such other related documents as may be necessary or
appropriate relating to the proposed distribution, and shall use reasonable
efforts to cause the registration statement to become effective. Company
will also, with respect to any registration statement, file such post-
effective amendments to the registration statement (and use reasonable
efforts to cause them to become effective) and such supplements as are
necessary so that current prospectuses are at all times available for a
period of at least 90 days after the effective date of the registration
statement or for such longer period, not to exceed 180 days, as may be
required under the plan or plans of distribution set forth in the
registration statement. Shareholders shall promptly provide Company with
such information with respect to Shareholders' Registrable Securities to be
so registered and, if applicable, the proposed terms of their offering, as
is required for the registration. If the Registrable Securities to be
covered by the registration statement are not to be sold to or through
underwriters acting for Company, Company shall:
(i) deliver to Shareholders, as promptly as practicable,
as many copies of preliminary prospectuses as Shareholders may
reasonably request (in which case Shareholders shall keep a
written record of the distribution of the preliminary
prospectuses and shall refrain from delivery of the preliminary
prospectuses in any manner or under any circumstances which would
violate the Securities Act or the securities laws of any other
jurisdiction, including the various states of the United States);
(ii) deliver to Shareholders, as soon as practicable
after the effective date of the registration statement, and from
time to time thereafter during the applicable period described in
Section 2.4, as many copies of the relevant prospectuses as
Shareholders may reasonably request; and
(iii) in case of the happening, after the effective date
of the registration statement and during the applicable 90 or
180-day period described in the second sentence of Section
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2.4(a), of any event or occurrence as a result of which the
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prospectus, as then in effect, would
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include an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make any statement therein not misleading in the light of the
circumstances in which it was made, give Shareholders written
notice of the event or occurrence and prepare and furnish to
Shareholders, in such quantities as it may reasonably request,
copies of an amendment of or a supplement to such prospectus as
may be necessary so that the prospectus, as so amended or
supplemented and thereafter delivered to purchasers of the
securities, will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light
of the circumstances under which it was made, not misleading.
(b) Company will notify Shareholders of any action by the
SEC or any Commission to suspend the effectiveness of any registration
statement filed pursuant hereto or the initiation or threatened initiation
of any proceeding for such purpose or the receipt by Company of any
notification with respect to the suspension of the qualification of the
securities for sale in any jurisdiction. Immediately upon receipt of any
such notice, Shareholders shall cease to offer or sell any Registrable
Securities pursuant to the registration statement or prospectus in the
jurisdiction to which such order or suspension relates. Company will also
notify Shareholders promptly of the occurrence of any event or the
existence of any state of facts that, in the judgment of Company, should be
set forth in such registration statement or prospectus. Immediately upon
receipt of such notice, Shareholders shall cease to offer or sell any
Registrable Securities pursuant to such registration statement or
prospectus, cease to deliver or use such registration statement or
prospectus and, if so requested by Company, return to Company at Company's
expense all copies of such registration statement or prospectus. Company
will as promptly as practicable take such action as may be necessary to
amend or supplement such registration statement or prospectus in order to
set forth or reflect such event or state of facts and provide copies of
such proposed amendment or supplement to Shareholders.
(c) On or before the date on which the registration
statement is declared effective, Company shall use its reasonable efforts
to:
(i) register or qualify (and cooperate with
Shareholders, the underwriter or underwriters, if any, and their
counsel, in connection with the registration or qualification of)
the securities covered by the registration statement for offer
and sale under the securities or blue sky laws of each state and
other jurisdiction as Shareholders or any underwriter reasonably
requests;
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(ii) keep each such registration or qualification
effective, including through new filings, or amendments or renewals,
during the period the registration statement or prospectus is required
to be kept effective; and
(iii) do any and all other acts or things necessary or
advisable to enable the disposition in all such jurisdictions of the
Registrable Securities covered by the applicable registration
statement, provided that Company will not be required to qualify
generally to do business in any jurisdiction where it is not then so
qualified.
(d) Company shall use its reasonable efforts to cause all
Registrable Securities of Shareholders included in the registration
statement to be listed, by the date of the first sale of such shares
pursuant to such registration statement, on each securities exchange on
which the securities are then listed or proposed to be listed, if any, as
directed by the Apollo/Blackstone Shareholders (subject to the Company's
consent, which consent shall not be unreasonably withheld).
(e) Company shall make generally available to Shareholders and
any underwriter participating in the offering conducted pursuant to the
registration statement an earnings statement satisfying Section 11(a) of
the Securities Act no later than 45 days after the end of the 12-month
period beginning with the first day of Company's first fiscal quarter
commencing after the effective date of the registration statement. The
earnings statement shall cover such 12-month period. This requirement will
be deemed to be satisfied if Company timely files complete and accurate
information on Forms 10-Q, 10-K, and 8-K under the Exchange Act, and
otherwise complies with Rule 158 under the Securities Act as soon as
feasible.
(f) Company shall cooperate with Shareholders and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legends)
representing Registrable Securities to be sold under the registration
statement, and to enable such securities to be in such denominations and
registered in such names as the managing underwriter or underwriters, if
any, or Shareholders, may request, subject to the underwriters' obligation
to return any certificates representing unsold securities.
(g) Company shall use its reasonable efforts to cause
Registrable Securities covered by the registration statement to be
registered with or approved by such other governmental agencies or
authorities in the United States (including the registration of Registrable
Securities under the Exchange Act) as may be necessary to enable
Shareholders or the underwriter or underwriters, if any, to consummate the
disposition of such securities.
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(h) Company shall, during normal business hours and upon
reasonable notice, make available for inspection by Shareholders, any
underwriter participating in any offering pursuant to the registration
statement, and any attorney, accountant or other agent retained by
Shareholders or any such underwriter (collectively, the "Inspectors"), all
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financial and other records, pertinent corporate documents, and properties
of Company (including non-public information), as shall be reasonably
necessary to enable the Inspectors to exercise their due diligence
responsibilities; provided that any Inspector receiving non-public
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information shall have previously entered into an appropriate
confidentiality agreement in mutually satisfactory form and substance.
Company shall also cause its officers, directors, and employees to supply
all nonconfidential information reasonably requested by any Inspector in
connection with the registration statement.
(i) Company shall use its reasonable efforts to obtain a "cold
comfort" letter and, as applicable, a "long-form comfort letter" from
Company's independent public accountants, and an opinion of counsel for
Company, each in customary form and covering such matters of the type
customarily covered by cold comfort letters and long form comfort letters
and legal opinions in connection with public offerings of securities, as
Shareholders reasonably request.
(j) Company shall enter into such customary agreements
(including an underwriting agreement containing such representations and
warranties by Company and such other terms and provisions, as are
customarily contained in underwriting agreements for comparable offerings
and are reasonably satisfactory to the Company) and take all such other
actions as Shareholders or the underwriters participating in such offering
and sale may reasonably request in order to expedite or facilitate such
offering and sale (other than such actions which are disruptive to the
Company or require significant management availability), including
providing reasonable availability of appropriate members of senior
management of the Company to provide customary due diligence assistance in
connection with any offering and to participate in customary "road show"
presentations in connection with any underwritten offerings in
substantially the same manner as they would in an underwritten primary
registered public offering by the Company of its Common Stock, after taking
into account the reasonable business requirements of the Company in
determining the scheduling and duration of any road show.
-12-
ARTICLE III
INDEMNIFICATION
3.1. Indemnification by Company. In the event of any registration
--------------------------
under the Securities Act by any registration statement pursuant to rights
granted in this Agreement of Registrable Securities held by Shareholders,
Company will hold harmless Shareholders and each underwriter of such securities
and each other person, if any, who controls any Shareholder or such underwriter
within the meaning of the Securities Act, against any losses, claims, damages,
or liabilities (including legal fees and costs of court), joint or several, to
which Shareholders or such underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages,
or liabilities (or any actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact (i)
contained, on its effective date, in any registration statement under which such
securities were registered under the Securities Act or any amendment or
supplement to any of the foregoing, or which arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii)
contained in any preliminary prospectus, if used prior to the effective date of
such registration statement, or in the final prospectus (as amended or
supplemented if Company shall have filed with the SEC any amendment or
supplement to the final prospectus) if used within the period which Company is
required to keep the registration to which such registration statement or
prospectus relates current under Section 2.4, or which arise out of or are based
-----------
upon the omission or alleged omission (if so used) to state a material fact
required to be stated in such prospectus or necessary to make the statements in
such prospectus not misleading; and will reimburse Shareholders and each such
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, or liability; provided, however, that Company shall
-------- -------
not be liable to any Shareholder or its underwriters or controlling persons in
any such case to the extent that any such loss, claim, damage, or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement or such
amendment or supplement, in reliance upon and in conformity with information
furnished to Company through a written instrument duly executed by Shareholders
or such underwriter specifically for use in the preparation thereof.
3.2. Indemnification by Shareholders. It shall be a condition
-------------------------------
precedent to the obligation of Company to include in any registration statement
any Registrable Securities of Shareholders that Company shall have received from
Shareholders an undertaking, reasonably satisfactory to Company and its counsel,
to indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 3.1) Company, each director of Company, each officer of Company
-----------
who shall sign the
-13-
registration statement, and any person who controls Company within the meaning
of the Securities Act, (i) with respect to any statement or omission from such
registration statement, or any amendment or supplement to it, if such statement
or omission was made in reliance upon and in conformity with information
furnished to Company through a written instrument duly executed by Shareholders
specifically for use in the preparation of such registration statement or
amendment or supplement, and (ii) with respect to compliance by Shareholders
with applicable laws in effecting the sale or other disposition of the
securities covered by such registration statement.
3.3 Indemnification Procedures. Promptly after receipt by an
--------------------------
indemnified party of notice of the commencement of any action involving a claim
referred to in the preceding Sections of this Article III, the indemnified party
-----------
will, if a resulting claim is to be made or may be made against and indemnifying
party, give written notice to the indemnifying party of the commencement of the
action. If any such action is brought against an indemnified party, the
indemnifying party will be entitled to participate in and to assume the defense
of the action with counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume defense of the action, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses incurred by the
latter in connection with the action's defense. An indemnified party shall have
the right to employ separate counsel in any action or proceeding and participate
in the defense thereof, but the fees and expenses of such counsel shall be at
such indemnified party's expense unless (a) the employment of such counsel has
been specifically authorized in writing by the indemnifying party, which
authorization shall not be unreasonably withheld, (ii) the indemnifying party
has not assumed the defense and employed counsel reasonably satisfactory to the
indemnified party within 30 days after notice of any such action or proceeding,
or (iii) the named parties to any such action or proceeding (including any
impleaded parties) include the indemnified party and the indemnifying party and
the indemnified party shall have been advised by such counsel that there may be
one or more legal defenses available to the indemnified party that are different
from or additional to those available to the indemnifying party (in which case
the indemnifying party shall not have the right to assume the defense of such
action or proceeding on behalf of the indemnified party), it being understood,
however, that the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to all local counsel which is necessary, in the good
faith opinion of both counsel for the indemnifying party and counsel for the
indemnified party in order to adequately represent the indemnified parties) for
the indemnified party and that all such fees and expenses shall be reimbursed as
they are incurred upon written request and presentation of invoices. Whether or
not a defense is assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent. No
indemnifying party will
-14-
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term the giving by the claimant or plaintiff, to the
indemnified party, of a release from all liability in respect of such claim or
litigation.
3.4. Contribution. If the indemnification required by this Article
------------ -------
III from the indemnifying party is unavailable to or insufficient to hold
---
harmless an indemnified party in respect of any indemnifiable losses, claims,
damages, liabilities, or expenses, then the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result of such
losses, claims, damages, liabilities, or expenses in such proportion as is
appropriate to reflect (i) the relative benefit of the indemnifying and
indemnified parties and (ii) if the allocation in clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect the relative
benefit referred to in clause (i) and also the relative fault of the indemnified
and indemnifying parties, in connection with the actions which resulted in such
losses, claims, damages, liabilities, or expenses, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and the
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact, has been made by, or relates to information supplied by,
such indemnifying party or parties, and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such action. The
amount paid or payable by a party as a result of the losses, claims, damage,
liabilities, and expenses referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
any investigation or proceeding. Company and Shareholders agree that it would
not be just and equitable if contribution pursuant to this Section 3.4 were
-----------
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the prior
provisions of this Section 3.4.
-----------
Notwithstanding the provisions of this Section 3.4, no indemnifying
-----------
party shall be required to contribute any amount in excess of the amount by
which the total price at which the securities were offered to the public by the
indemnifying party exceeds the amount of any damages which the indemnifying
party has otherwise been required to pay by reason of an untrue statement or
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such a fraudulent misrepresentation.
ARTICLE IV
OTHER AGREEMENTS
4.1. Other Registration Rights. Company agrees that it will not
-------------------------
grant to any party registration rights which would allow such party to limit
Shareholders' priority
-15-
for the sale or distribution of Registrable Securities upon the exercise of a
demand registration right pursuant to Section 2.2.
-----------
4.2. Expenses. All expenses incurred by Company in connection with
--------
any registration statement covering Registrable Securities offered by
Shareholders, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National Association of
Securities Dealers, Inc.), printing expenses, fees and disbursements of counsel
(except for the fees and disbursements of counsel for Shareholders) and of the
independent certified public accountants (except, in the case of any special
audits, if required in connection with any such registration, Shareholders'
proportionate share of their expense as provided in Section 2.4), and the
-----------
expense of qualifying such shares under state blue sky laws, shall be borne by
Company, including such expenses of any registration delayed by the Company
under the fourth paragraph of Section 2.2; provided, however, that Company shall
----------- -------- -------
not be required to pay for any expenses of any registration proceeding begun
pursuant to Section 2.2 if the registration request is subsequently withdrawn at
-----------
the request of the Apollo/Blackstone Shareholders (in which case the
Apollo/Blackstone Shareholders shall bear such expenses, each such Shareholder
to bear its pro rata share of the expense based on the number of Registrable
Securities such Apollo/Blackstone Shareholder intended to include in such
registration compared to the total number of Registrable Securities all of such
Apollo/Blackstone Shareholders intended to include in such registration), unless
the Apollo/Blackstone Shareholders agree to forfeit their right to one demand
registration under Section 2.2; provided further, however, that if at the time
----------- -------- -------
of such withdrawal, the Apollo/Blackstone Shareholders have learned of a
material adverse change in the condition, business, or prospects of the Company
from that known at the time of its request, then the Apollo/Blackstone
Shareholders shall not be required to pay any of such expenses and shall retain
their rights pursuant to Section 2.2. Company's obligations under this Section
----------- -------
4.2 shall apply to each registration under the Securities Act or state blue sky
---
legislation pursuant to Section 2.2. However, all underwriting expenses
-----------
incurred by Shareholders, including underwriter's discounts and commissions and
legal, accounting and similar expenses, shall be borne by Shareholders.
4.3. Dispositions During Registration. Each Shareholder agrees that,
--------------------------------
without the consent of the managing underwriter(s) in an underwritten offering
in respect of Common Stock or other Subject Securities, it will not effect any
sale or distribution of Common Stock or other Subject Securities (other than
Registrable Securities included in such offering), during the ten (10) day
period prior to, and during the ninety (90) day period beginning on, the
effective date of the registration statement filed by the Company in respect of
such underwritten offering, or any shorter period as may apply to the Company
and its affiliates.
4.4. Transfer of Rights. All rights of Shareholders under this
------------------
Agreement shall be transferable by Shareholders to a Related Transferee (as
defined in the
-16-
Shareholders Agreement) who acquires Registrable Securities in compliance with
Section 4.1(f) of the Shareholders Agreement and who executes an instrument in
form and substance satisfactory to the Company in which it agrees to be bound by
the terms of this Agreement as if an original signatory hereto, in which case
such Related Transferee shall thereafter be a "Shareholder" for all purposes of
this Agreement. The incidental registration rights or benefits of this Agreement
and the demand registration rights, including indemnification by Company, shall
be transferable by Shareholders only in a transaction permitted under Section
4.1(c) or 4.1(d) of the Shareholders Agreement to a transferee that is not an
Affiliate of the Company who receives at least an aggregate of 1,000,000 shares
of Common Stock, in the case of incidental registration rights, or 2,500,000
shares of Common Stock (or securities convertible into such number of shares of
Common Stock) or such lesser number of shares as would yield gross proceeds of
not less than $50 million (as calculated in accordance with the first paragraph
of Section 2.2) for each right to demand registration, in the case of demand
registration rights. In the case of any assignment, the party or parties who
have the rights and benefits of Shareholders under this Agreement shall become
parties to and be subject to this Agreement, and shall not, as a group, have the
right to request any greater number of registrations than Shareholders would
have had if no assignment had occurred. Upon any transfer of the registration
rights or benefits of this Agreement, Shareholders shall give Company written
notice prior to or promptly following such transfer stating the name and address
of the transferee and identifying the securities with respect to which such
rights are being assigned. Such notice shall include or be accompanied by a
written undertaking by the transferee to comply with the obligations imposed
hereunder. In the event any registration rights are transferred in accordance
with the terms of this Agreement, any actions required to be taken by
Shareholders will be taken with the approval of the holders of such registration
rights who hold a majority of the Registrable Securities, whose actions shall
bind all such holders of such registration rights provided that, any actions
--------
required to be taken by the Apollo/Blackstone Shareholders will be taken with
the approval of the holders of such registration rights who hold a majority of
the Registrable Securities originally held by the Apollo/Blackstone Shareholders
or in such other manner as the Apollo/Blackstone Shareholders shall agree, whose
actions shall bind all holders (including all non-Apollo/Blackstone
Shareholders) of such registration rights..
4.5. Best Registration Rights. If the Company grants to any Person
------------------------
with respect to any security issued by the Company or any of its Affiliates
registration rights that provide for terms that are in any manner more favorable
to the holder of such registration rights than the terms granted to the
Shareholders other than the number of demand registrations or the minimum amount
of shares required to exercise demand registration rights (or if the Company
amends or waives any provision of any agreement providing registration rights of
others or takes any other action whatsoever to provide for terms that are more
favorable to other holders than the terms provided to the Shareholders other
than the number of demand registrations or the minimum amount of shares required
to exercise demand registration rights), then this Agreement shall immediately
be deemed
-17-
amended to provide the Shareholders with any (or all) of such more favorable
terms as Shareholders shall elect to include herein. The Company shall promptly
give notice to the Shareholders of the granting of any such registration rights
to another Person.
ARTICLE V
MISCELLANEOUS
5.1. Notices. All notices, requests, demands and other
-------
communications required or permitted hereunder shall be made in writing by hand-
delivery, registered first-class mail, telex, fax or air courier guaranteeing
delivery:
(a) If to the Company, to:
Allied Waste Industries, Inc.
00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxx, Esq.
Fax: (000) 000-0000
with copies to:
Xxxxxxxxx Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. XxXxxxxxx, Esq.
Fax: (000) 000-0000
and to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
or to such other person or address as the Company shall furnish to Shareholders
in writing;
-18-
(b) If to Shareholders, to:
Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
and:
The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
-19-
and:
Xxxxxxxxx Xxxxxx Xxxxxxxxxxx XX, X.X.X.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Nissan
Fax: (000) 000-0000
and:
DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxxxxxx
Fax: (000) 000-0000
and
Attn: Xxx Xxxxx
Fax: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
or to such other person or address as Shareholders shall furnish to the Company
in writing.
All such notices, requests, demands and other communications shall be
deemed to have been duly given: at the time of delivery by hand, if personally
delivered; five (5) Business Days after being deposited in the mail, postage
prepaid, if mailed
-20-
domestically in the United States (and seven (7) Business Days if mailed
internationally); when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the Business Day for which delivery is guaranteed, if timely
delivered to an air courier guaranteeing such delivery.
5.2. Section Headings. The article and section headings in this
----------------
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement. References in this Agreement to a designated
"Article" or "Section" refer to an Article or Section of this Agreement unless
otherwise specifically indicated.
5.3. Governing Law. This Agreement shall be construed and enforced
-------------
in accordance with and governed by the law of Delaware, without regard to its
conflicts of laws principles.
5.4. Consent to Jurisdiction and Service of Process. Any legal
----------------------------------------------
action or proceeding with respect to this Agreement or any matters arising out
of or in connection with this Agreement (other than the Shareholders Agreement,
which shall be governed solely by the analogous provisions thereof), and any
action for enforcement of any judgment in respect thereof shall be brought
exclusively in the state of federal courts located in the State of Delaware,
and, by execution and delivery of this Agreement, the Company and Shareholders
each irrevocably consent to service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, or by recognized international
express carrier or delivery service, to the Company or Shareholders at their
respective addresses referred to in this Agreement. The Company and the
Shareholders each hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement (other than the
Shareholders Agreement, which shall be governed solely by the analogous
provisions thereof) brought in the courts referred to above and hereby further
irrevocably waives and agrees, to the extent permitted by applicable law, not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing in this
Agreement shall affect the right of any party hereto to serve process in any
other manner permitted by law.
5.5. Amendments. This Agreement may be amended only by an instrument
----------
in writing executed by all of its parties.
5.6. Entire Agreement. This Agreement and the Shareholders Agreement
----------------
constitute the entire agreement and understanding of the parties with respect to
the transactions contemplated hereby and thereby. The registration rights
granted under this Agreement supersede any registration, qualification or
similar rights with respect to any of the Shares granted under any other
agreement, and any of such preexisting registration
-21-
rights are hereby terminated. This Agreement may be amended only by a written
instrument duly executed by the parties or their respective successors or
assigns; provided, however, that any amendment or waiver by the Company shall be
-------- -------
made only with the prior approval of a majority of the entire Board of Directors
of the Company other than Shareholder Designees (as defined in the Shareholders
Agreement).
5.7. Severability. The invalidity or unenforceability of any
------------
specific provision of this Agreement shall not invalidate or render
unenforceable any of its other provisions. Any provision of this Agreement held
invalid or unenforceable shall be deemed reformed, if practicable, to the extent
necessary to render it valid and enforceable and to the extent permitted by law
and consistent with the intent of the parties to this Agreement.
5.8. Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument.
5.9. Shareholder Action. The Company shall be entitled to rely upon
------------------
any written notice, designation, or instruction signed by Apollo Capital
Management IV, L.P. or Apollo Capital Management II, Inc, as the case may be,
and BCP (the "Representatives") as a notice, designation or instruction of all
---------------
Shareholders and the Company shall not be liable to any Shareholder if the
Company acts in accordance with and relies upon such writing; provided, however,
--------
that any such notice, designation or instruction shall not (in the sole good
faith determination of the Company) have a disproportionate effect upon any of
the Shareholders. Notwithstanding the foregoing, however, the Company shall not
be entitled to rely upon any notice, designation or instruction signed by the
Representatives as a notice, designation or instruction of the DLJ Shareholder,
the Greenwich Street Stockholder if such notice, designation or instruction
relates to Section 2.1, 4.4 or 5.5 of this Agreement (the "Specific Rights").
---------------
In that regard, each of the Shareholders acknowledges that the Representatives
have full power and authority to act on their behalf provided, however, that
--------
none of the DLJ Shareholders and the Greenwich Street Stockholders acknowledge
the power or authority of the Representatives to act on their behalf with
respect to the Specific Rights.
-22-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ALLIED WASTE INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
APOLLO INVESTMENT FUND IV, L.P.
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors IV, L.P.
its General Partner
By: Apollo Capital Management IV, Inc.
its General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
APOLLO/AW LLC
By: Apollo Management IV, L.P.
its Manager
By: AIF IV Management, Inc.
its General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
-23-
APOLLO INVESTMENT FUND III, L.P.
APOLLO OVERSEAS PARTNERS III, L.P.
APOLLO (UK) PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
its General Partner
By: Apollo Capital Management II, Inc.
its General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS III X.X.
XXXXXXXXXX FAMILY INVESTMENT PARTNERSHIP III L.P.
By: Blackstone Management Associates III L.L.C.
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
-24-
BLACKSTONE CAPITAL PARTNERS II MERCHANT
BANKING FUND, X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS II, X.X.
XXXXXXXXXX FAMILY INVESTMENT PARTNERSHIP II, L.P.
By: Blackstone Management Associates II L.L.C.
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
GREENWICH STREET CAPITAL PARTNERS II, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
GSCP OFFSHORE FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
-00-
XXXXXXXXX XXXX, X.X.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
GREENWICH STREET EMPLOYEES FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
TRV EXECUTIVE FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
-26-
DLJMB FUNDING II, INC.
By: /s/ Xxx Xxxxxxxxxx
-----------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
-----------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
-----------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
-27-
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
--------------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
--------------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
--------------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
-28-
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Xxx Xxxxx
-------------------------------------
Name: Xxx Xxxxx
Title: Vice Precident
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
-29-
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Xxx Xxxxxxxxxx
---------------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
DLJ ESC II L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Xxx Xxxxx
---------------------------------------
Name: Xxx Xxxxx
Title: Vice Precident
-30-
