AMENDMENT NO. 1
TO REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1, dated as of June 1, 1998 (the "Amendment"), to
the Registration Rights Agreement dated as of December 19, 1997 (the
"Agreement"), by and among Xxxxxxx Waste Systems, Inc., a Delaware corporation
(the "Buyer") and the persons listed on Schedule I hereto (the "Company
Stockholders"), is entered into by said parties.
WHEREAS, the Company Stockholders (other than Xxxxxxx Xxxxxxx) have
received a loan from Xxxxxxx, Xxxxx & Co. ("Xxxxxxx, Sachs") and have pledged
the Merger Shares owned by them as collateral therefor (the "Pledge");
WHEREAS, the Company has agreed to extend to Xxxxxxx, Xxxxx certain
benefits of the Agreement in the event Xxxxxxx, Sachs exercises its rights as
pledgee, and Goldman, Sachs, by its signature below, has agreed to become party
to the Agreement;
WHEREAS, Xxxxxxx Xxxxxxx has collared 39,000 of the Registrable Shares
owned by her, with a maturity date of January 8, 1999 (the "Collar");
WHEREAS, the Company Stockholders have exercised their rights under
Section 2(a) of the Agreement to require the Buyer to effect the registration of
Registrable Shares owned by such Company Stockholders under the Securities Act,
and the Buyer is in the process of seeking to register those shares (the "Demand
Registration") pursuant to a registration statement on Form S-1 (the "Demand
Registration Statement");
WHEREAS, the Buyer and the Company Stockholders desire to amend certain
other provisions of the Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Amendment, the parties hereto agree that certain subsections
of the Agreement shall be amended to read as indicated below.
Capitalized terms used herein which are not otherwise defined shall
have the meanings ascribed to them in the Agreement.
1. Section 3(a) is hereby amended by deleting the reference to "14
days" in the first sentence thereof and inserting "five days" in lieu thereof,
and by deleting the reference to "10 days" in the first sentence thereof and
inserting "two days" in lieu thereof.
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2. Section 4 of the Agreement is hereby deleted and the following shall
be inserted in lieu thereof:
"4. Registration Procedures. The Buyer shall:
(a) promptly prepare and file the Demand Registration Statement
with the Commission and use its best efforts to cause the Demand Registration
Statement to become and remain effective until the earlier of the sale of all
Registrable Shares covered thereby or December 19, 1998 (the "Termination
Date"), and as expeditiously as possible prepare and file with the Commission
any amendments and supplements to the Demand Registration Statement and the
prospectus included in the Demand Registration Statement as may be necessary to
keep the Demand Registration Statement effective until the Termination Date;
provided, that (i) upon the filing by the Company of a registration statement on
Form S-1 or S-3 for the sale of shares of its Common Stock (the "Follow-on
Offering"), the Company may terminate or withdraw the Demand Registration
Statement, and (ii) if at any other time the Buyer is engaged in any other
activity which, in the good faith determination of the Buyer's Board of
Directors would be required to be disclosed in the Demand Registration Statement
and such disclosure would, in the good faith determination of the Buyer's Board
of Directors interfere with the ability of the Buyer to consummate such
transaction, then the Buyer shall have the right, by written notice to the
Company Stockholders and Goldman, Sachs, to withdraw the Demand Registration
Statement (if it is not yet effective) and/or to require that the Company
Stockholders and any pledgees of Registrable Shares cease making offers of
Registrable Shares and to return all prospectuses to the Buyer. Following such
time as (i) the Company and Xxxxxxx, Sachs mutually agree that the Follow-on
Offering has been abandoned, and/or (ii) the Buyer discloses such other
transaction or such other transaction is abandoned by the Buyer, the Buyer shall
promptly use its best efforts to take such actions as may be necessary to
re-register the Registrable Shares (if the Demand Registration Statement has
been terminated) and provide the Company Stockholders and Xxxxxxx, Xxxxx (if
Xxxxxxx, Xxxxx is then still the pledgee of Registrable Shares) with revised
prospectuses, and following receipt of the revised prospectuses, the Company
Stockholders and Xxxxxxx, Sachs shall be free to resume making offers of the
Registrable Shares. For purposes hereof, any such registration statement which
is filed pursuant to this paragraph to re-register the Registrable Shares shall
be deemed to be a "Demand Registration Statement".
(b) as expeditiously as possible furnish to each selling Company
Stockholder and to Xxxxxxx, Xxxxx (if Xxxxxxx, Xxxxx is then still the pledgee
of Registrable Shares) such reasonable numbers of copies of the prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the selling Company Stockholder or
Xxxxxxx, Sachs may reasonably request in order to facilitate the public sale or
other disposition of the Registrable Shares owned by the selling Company
Stockholder;
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(c) as expeditiously as possible use its best efforts to register
or qualify the Registrable Shares covered by the Demand Registration Statement
under the securities or Blue Sky laws of such states as the selling Company
Stockholders or Xxxxxxx, Xxxxx shall reasonably request, and do any and all
other acts and things that may be necessary or desirable to enable the selling
Company Stockholders and Xxxxxxx, Sachs to consummate the public sale or other
disposition in such states of the Registrable Shares owned by the selling
Company Stockholder; provided, however, that the Buyer shall not be required in
connection with this paragraph (c) to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction;
(d) in connection with an underwritten public offering, to furnish
to each selling Company Stockholder and Xxxxxxx, Xxxxx a signed counterpart,
addressed to all such selling Company Stockholders and Goldman, Sachs, of an
opinion of counsel for the Buyer experienced in securities law matters covering
substantially the same matters with respect to the registration statement and
the prospectus as are customarily covered in opinions of issuer's counsel
delivered to underwriters in underwritten public offerings of securities; and
(e) use its best efforts to comply with all applicable rules and
regulations of the Commission and make available to its security holders, as
soon as reasonably practicable, an earnings statement of the Buyer (in form
complying with the provisions of Rule 158 under the Securities Act) covering the
period of at least 12 months beginning with the first month following the
effective date of the registration statement.
If the Buyer has delivered preliminary or final prospectuses to the
selling Company Stockholders and/or Xxxxxxx, Sachs and after having done so the
prospectus is required to be amended to comply with the requirements of the
Securities Act, the Buyer shall promptly notify the selling Company Stockholders
and Goldman, Sachs, as the case may be, and, if requested, the selling Company
Stockholders and Xxxxxxx, Xxxxx shall immediately cease making offers of
Registrable Shares and return all prospectuses to the Buyer. Subject to the
provisions of Section 4(a) above, the Buyer shall promptly provide the selling
Company Stockholders and Xxxxxxx, Sachs with revised prospectuses and, following
receipt of the revised prospectuses, the selling Company Stockholders and
Xxxxxxx, Xxxxx shall be free to resume making offers of the Registrable Shares."
3. Section 5 of the Agreement is hereby deleted and the following shall
be inserted in lieu thereof:
"5. Allocation of Expenses. Xxxxxxx, Sachs will pay all Registration
Expenses of the Demand Registration and any other registrations under Section 2
or registrations required by Section 4(a) above (including any amendments or
supplements to the Demand Registration Statement) and the Buyer will pay all
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Registration Expenses of all registrations under Section 3. For purposes of this
Section 5, the term "Registration Expenses" shall mean all expenses incurred by
the Buyer in complying with this Agreement, including, without limitation, all
registration and filing fees, exchange listing fees, printing expenses, fees and
expenses of counsel for the Buyer and of the Buyer's accountants and the fees
and expenses of one counsel selected by the selling Company Stockholders to
represent the selling Company Stockholders, state Blue Sky fees and expenses,
but excluding underwriting discounts, selling commissions and the fees and
expenses of selling Company Stockholders' own counsel (other than the counsel
selected to represent all selling Company Stockholders)."
4. Section 6 of the Agreement is hereby deleted and the following shall
be inserted in lieu thereof:
"6. (a)(i) The Buyer agrees to indemnify and hold harmless Goldman,
Sachs, each of the selling Company Stockholders and each other person, if any,
who controls Xxxxxxx, Xxxxx or such selling Company Stockholder (collectively,
the "Sellers' Indemnified Parties") against any losses, claims, damages or
liabilities, joint or several, to which any of the Sellers' Indemnified Parties
may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement under which Registrable
Shares are registered under the Securities Act or any preliminary prospectus
included in such Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Securities
Act (each, a "Preliminary Prospectus"), the form of final prospectus relating to
the resale of the Registrable Shares by the Company Stockholders (the
"Prospectus") in the form first filed pursuant to Rule 424(b) under the
Securities Act, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each of the Sellers' Indemnified Parties for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that (i) the Buyer shall not be liable to the
Company Stockholders or any controlling person thereof 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 any Preliminary Prospectus, Registration Statement or
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Buyer by the Company
Stockholders expressly for use therein, and (ii) the Buyer shall not be liable
to Xxxxxxx, Sachs or any controlling person thereof 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 any Preliminary Prospectus, Registration Statement or
Prospectus or any such amendment
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or supplement in reliance upon and in conformity with written information
furnished to the Buyer by Xxxxxxx, Xxxxx expressly for use therein.
Notwithstanding the foregoing, the Company shall have no obligations to Xxxxxxx,
Sachs under this paragraph with respect to any Registration Statement,
Preliminary Prospectus or Prospectus used in connection with an underwritten
offering of the shares of the Company for which there is an underwriting
agreement containing indemnification provisions for the benefit of Xxxxxxx,
Xxxxx.
(ii) Each of the Company Stockholders, severally and not jointly,
will indemnify and hold harmless the Company and Xxxxxxx, Sachs and their
respective officers and directors and each other person, if any, who controls
the Company or Xxxxxxx, Xxxxx against any losses, claims, damages or
liabilities, joint or several, to which any of such persons may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, Registration Statement or Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, Registration Statement or Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Buyer by such Company Stockholder expressly for use therein; and will
reimburse each such person for any legal or other expenses reasonably incurred
by such person in connection with investigating or defending any such action or
claim as such expenses are incurred. The obligations of each Company Stockholder
under this subparagraph (a)(ii) shall be limited to an amount equal to the
proceeds to each Company Stockholder of Registrable Shares sold in connection
with such registration;
(b) Xxxxxxx, Sachs will indemnify and hold harmless the Buyer and
its officers and directors and each selling Company Stockholder and each other
person, if any, who controls the Company or such selling Company Stockholder
against any losses, claims, damages or liabilities, joint or several, to which
any such person may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
Registration Statement or Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, Registration Statement
or Prospectus or any such amendment or supplement in reliance upon and in
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conformity with written information furnished to the Buyer by Xxxxxxx, Xxxxx
expressly for use therein; and will reimburse each such person for any legal or
other expenses reasonably incurred by such person in connection with
investigating or defending any such action or claim as such expenses are
incurred;
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may otherwise have to any indemnified
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party; and
(d) If the indemnification provided for herein is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein for any reason, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportions as is appropriate to reflect not only (i)
the relative benefits received by the Buyer, the Company Stockholders and
Xxxxxxx, Sachs from the sale of the Registrable Shares but also (ii) the
relative fault of the Buyer, the Company Stockholders and Xxxxxxx, Xxxxx in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material
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fact or the omission or alleged omission to state a material fact relates to
information supplied by the Buyer, the Company Stockholders or Xxxxxxx, Sachs
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Buyer, the
Company Stockholders and Xxxxxxx, Xxxxx agree that it would not be just and
equitable if contributions pursuant to this indemnity agreement were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. 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 fraudulent
misrepresentation. The Company Stockholders' obligations in this subsection to
contribute are several and not joint and no Company Stockholder shall be
required to contribute any amount in excess of the proceeds to him, her or it of
all Registrable Shares sold by him, her or it pursuant to such Demand
Registration Statement."
5. Section 9 of the Agreement is hereby amended by designating the
paragraph appearing therein as paragraph "(a)" and by inserting the following
paragraph after said paragraph:
"(b) Without limiting the generality of the foregoing, and in
consideration of Buyer's promises set forth herein and for other good and
valuable consideration, each of the Company Stockholders agrees that (other than
the Pledge by the Company Stockholders other than Xxxxxxx Xxxxxxx and the Collar
by Xxxxxxx Xxxxxxx) he, she or it will not offer, sell, contract to sell, grant
any option to sell, transfer or otherwise dispose of, directly or indirectly, or
otherwise seek to reduce or limit his, her or its economic risk of ownership in,
any shares of Common Stock of the Buyer, or securities convertible into or
exchangeable for shares of Common Stock of the Buyer, until August 31, 1998,
otherwise than (i) as a bona fide gift or a transfer effected solely for estate
planning purposes, provided the donee or transferee agrees in writing to be
bound by the terms hereof, (ii) pursuant to an effective registration statement
filed by the Buyer covering such shares (other than the Demand Registration
Statement), or (iii) with the prior written consent of the Buyer. Xxxxxxx, Xxxxx
& Co. agrees to be bound by the terms of the foregoing with respect to the
shares of Common Stock of the Buyer pledged to it by any of the Company
Stockholders except in connection with the exercise of its rights as pledgee of
such shares following a bona fide margin call on such shares. Each of the
Company Stockholders and Xxxxxxx, Sachs agrees and consents to the entry of stop
transfer instructions with the Buyer's transfer agent against the transfer of
shares of Common Stock held by such persons, except in accordance with the terms
of this paragraph."
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6. Section 10(a) of the Agreement is hereby amended by adding the
following paragraph immediately following the provisions for notice to the
Buyer:
"If to Goldman, Sachs, at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Special Execution;"
7. Section 10(c) of the Agreement is hereby deleted and the following
shall be inserted in lieu thereof:
"(c) Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), with the
written consent of the Buyer and the holders of at least 50% of the Registrable
Shares; provided, however, that any such amendment or waiver shall also require
the written approval of Xxxxxxx, Xxxxx to the extent the same would materially
and adversely affect the rights of Xxxxxxx, Sachs herein; and provided further,
however, that this Agreement may be amended with the consent of the holders of
less than all Registrable Shares only in a manner which affects all Registrable
Shares in the same fashion. No waivers of or exceptions to any term, condition
or provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision."
8. The Buyer hereby agrees that the Xxxxxxx Family Partnership, as
transferee of certain of the Registrable Shares, shall have the benefit of the
Agreement, subject to the execution and delivery by the Xxxxxxx Family
Partnership of a counterpart of this Amendment. By its signature below, the
Xxxxxxx Family Partnership agrees to be bound by the Agreement, as amended
hereby, and is hereby deemed included within the definition of "Company
Stockholders".
9. In all other respects, the Agreement shall remain in full force and
effect.
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Executed as of the date first written above.
BUYER:
XXXXXXX WASTE SYSTEMS, INC.
By:_________________________
Title:______________________
COMPANY STOCKHOLDERS:
____________________________
Xxxxxx X. Xxxxxxx
____________________________
Xxxxxx X. Xxxxxxx
____________________________
Xxxxxx Xxxxxxx
____________________________
Xxxx Xxxxxxx
____________________________
Xxxxxxx Xxxxxxx
XXXXXXX FAMILY PARTNERSHIP
By:_________________________
General Partner
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XXXXXXX, SACHS & CO.
By:_________________________
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Schedule I
List of Company Stockholders
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxxx Family Partnership
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