Exhibit 4.1
AMENDMENT NO. 1 TO THE
PREFERRED SUBSCRIPTION AGREEMENT
AMENDMENT NO. 1 TO THE PREFERRED SUBSCRIPTION AGREEMENT,
dated as of February 13, 2004 (this "Amendment"), among Waste
Services, Inc., a Delaware corporation ("WSI"), Capital
Environmental Resource Inc., a corporation amalgamated under
the laws of the Province of Ontario, Canada ("CERI"), Xxxxx
Investment Associates VI, L.P., a Delaware limited partnership,
and KEP VI, LLC, a Delaware limited liability company.
WHEREAS, the parties hereto entered into the Preferred
Subscription Agreement, dated as of May 6, 2003 (the "Preferred
Subscription Agreement"); capitalized terms used herein without
definition shall have the meaning assigned to them in the
Preferred Subscription Agreement; and
WHEREAS the parties hereto desire to amend the Preferred
Subscription Agreement pursuant to Section 8.4 therein.
NOW, THEREFORE, it is agreed as follows:
1. Amendment to Section 6.7(a). Section 6.7(a) of the
Preferred Subscription Agreement is hereby amended and restated
in its entirety to read as follows:
"(a) Each of the US Company and the Canadian Company shall
take the actions described in Exhibit C hereto and shall
use their reasonable best efforts to take all actions
necessary or advisable and permitted by applicable law to
complete the Migration on or before June 30, 2004 (the
"Migration Outside Date") in compliance with all
applicable laws and regulations. Each of the US Company
and the Canadian Company shall update the Purchasers
regularly on the terms and conditions of and progress made
towards consummating such Migration."
2. Amendment to Section 6.7(b). Section 6.7(b) of the
Preferred Subscription Agreement is hereby amended and restated
in its entirety to read as follows:
"(b) Notwithstanding anything herein to the contrary, if
the Migration does not occur on or prior to the Migration
Outside Date, the Purchasers shall have the right to
require the Canadian Company at any time following the
expiration of the Consultation Period (as defined below)
upon request by the Purchasers, to (x) exchange the
Preferred Shares for preferred shares in the capital of
the Canadian Company having the revised terms set forth on
Exhibit F hereto and (y) exchange the Warrants (including
any Warrants issued pursuant to Section 6.7(c)) for
warrants to purchase common shares in the capital of the
Canadian Company having the revised terms set forth on
Exhibit G hereto (with appropriate adjustments for the
Warrants issued under Section 6.7(c)), and in each case
having economic and other rights and preferences with
respect to the Canadian Company and its Subsidiaries that
are substantially identical to those applicable to the US
Company and its Subsidiaries immediately prior to such
exchange (any such exchange, an "Exchange Event"). If the
Migration does not occur by August 6, 2005, the US Company
will have the right to require that the Purchasers
participate in an Exchange Event. Following any such
Exchange Event, all references to any of the Securities or
the Conversion Shares herein shall be deemed to refer to
the new securities or conversion shares, respectively, of
the Canadian Company issued in connection with the
Exchange Event or thereafter. "Consultation Period" means
a 60 day period following the Migration Outside Date,
during which period the Companies and the Purchasers shall
discuss in good faith whether there are structuring
alternatives to an Exchange Event that would preserve for
the Purchasers the economic and other rights associated
with direct ownership of Securities and Conversion Shares
issued by the Canadian Company that could be achieved
without an exchange of Securities and Conversion Shares
issued by the US Company, subject to the right of the
Purchasers in their sole discretion to reject any such
alternatives.
3. Certificate of Designations. For the avoidance of doubt,
the parties hereto hereby acknowledge and agree that the
references to the "Migration Outside Date" in section 5 of the
Certificate of Designations shall be deemed to refer to the
Migration Outside Date as modified by this Amendment.
4. Full Force and Effect. Except as provided in this
Amendment, the Subscription Agreement shall continue in full
force and effect in accordance with the provisions thereof.
5. Miscellaneous. Pursuant to Section 8.4 of the Preferred
Subscription Agreement, this Amendment shall be effective, as
of the date hereof, at such time as it is executed by WSI and
the Purchasers. This Amendment shall be construed in
accordance with and governed by the internal law of the State
of New York (without reference to its rules as to conflict of
laws). The section headings herein are for convenience only
and shall not affect the construction hereof. This Amendment
may be executed in one of more counterparts, each of which
shall be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed as of the day and year first
above written.
CAPITAL ENVIRONMENTAL RESOURCE INC.
By: /s/Xxxx X. Xxxxxx
___________________________
Name: Xxxx X. Xxxxxx
Title: Secretary
WASTE SERVICES, INC.
By: /s/Xxxx X. Xxxxxx
___________________________
Name: Xxxx X. Xxxxxx
Title: Secretary
XXXXX INVESTMENT ASSOCIATES VI, L.P.
By: Xxxxx XX VI, LLC,
its general partner
By: /s/Xxxxxx X. Xxxxxxxx
____________________________
Managing Member
KEP VI, LLC
By: /s/Xxxxxx X. Xxxxxxxx
_____________________________
Managing Member
