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VOTING AGREEMENT
VOTING AGREEMENT, dated as of December 18, 1995 (this
"Agreement"), among USA Waste Services, Inc., a Delaware corporation
("Parent"), Western Waste Industries, a California corporation (the "Company"),
and Xxxxx Xxxxxxxxxx (the "Holder") of shares of the common stock, no par value
(the "Company Common Stock"), of the Company:
WITNESSETH:
WHEREAS, the Company, Parent and Riviera Acquisition
Corporation, a California corporation and wholly- owned subsidiary of Parent
("Sub"), propose to enter into an Agreement and Plan of Merger and
Reorganization, dated as of the date hereof (the "Merger Agreement";
capitalized terms used herein and not otherwise defined are used herein as
defined in the Merger Agreement), pursuant to which Sub will be merged (the
"Merger") with and into the Company, and each outstanding share of Company
Common Stock will be converted into the right to receive shares of the common
stock, $.01 par value, of Parent, on the basis described in the Merger
Agreement.
WHEREAS, the Holder, individually or as trustee or custodian,
is the owner of the number of shares of Company Common Stock set forth opposite
the Holder's name on Schedule I to this Agreement (the "Subject Shares");
WHEREAS, as a condition of its entering into the Merger
Agreement, Parent has requested that the Holder agree, and the Holder has
agreed, to vote the Subject Shares and to grant Parent an irrevocable proxy to
vote the Subject Shares upon the terms and subject to the conditions set forth
herein; and
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants hereinafter set forth, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
1. Agreement to Vote Shares. At every annual or special
meeting of the shareholders of the Company and at every continuation or
adjournment thereof, and on every action or approval by written consent of the
shareholders of the Company in lieu of any such meeting, the Holder (i) shall
vote the Subject Shares in favor of approval of the Merger Agreement and the
Merger and any matter that could reasonably be expected to facilitate the
Merger, (ii) shall vote the Subject Shares against any proposal made in
opposition to or competition with consummation of the Merger, (iii) shall not
vote the Subject Shares in favor of any merger (including, without limitation,
a Superior Proposal), consolidation, sale of assets, reorganization or
recapitalization of the Company with any party other than Parent or its
affiliates and (iv) shall vote the Subject Shares against any liquidation or
winding up of the Company or any amendment of the Company's Articles of
Incorporation or By-laws or any other transaction
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or action which is intended to frustrate or impair the right or ability of
Parent or Subsidiary, on the one hand, or the Company, on the other hand, to
consummate the Merger.
2. Irrevocable Proxy. Concurrently with the execution
of this Agreement, the Holder is delivering to Parent a proxy in the form
attached hereto as Exhibit A, which shall be irrevocable to the full extent
permitted by law, with respect to the Subject Shares.
3. Representations and Warranties of the Holder. The
Holder hereby represents and warrants to Parent that:
(a) This Agreement has been duly executed and delivered
by the Holder, and is the legal, valid and binding obligation of the
Holder;
(b) No consent of any court, governmental authority,
beneficiary, co-trustee or other person is necessary for the
execution, delivery and performance of this Agreement by the Holder;
(c) The Subject Shares have been duly authorized and
validly issued, are fully paid and nonassessable, and are owned free
and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind, other than this Agreement;
(d) The Holder has the present power and right to vote
all of the Subject Shares; and
(e) Except as provided herein, the Holder has not (i)
granted any proxy, power-of-attorney or other authorization or
interest with respect to any of the Subject Shares, (ii) deposited any
of the Subject Shares into a voting trust or (iii) entered into any
voting agreement or other arrangement with respect to the voting of
any of the Subject Shares.
4. Representations and Warranties of the Company. The
Company hereby represents and warrants to Parent that:
(a) This Agreement has been duly executed and delivered
by the Company, and is the legal, valid and binding obligation of the
Company.
(b) No consent of any court, governmental authority,
beneficiary, co-trustee or other person is necessary for the
execution, delivery and performance of this Agreement by the Company;
and
(c) All of the Subject Shares have been duly authorized
and validly issued and are fully paid and nonassessable.
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5. Covenants of the Holder. The Holder hereby agrees
and covenants that:
(a) Prior to the termination of this Agreement pursuant
to Section 8 hereof, the Holder will not, in the Holder's capacity as
a stockholder, directly or indirectly, encourage, initiate or engage
in discussions or negotiations with, or provide any information to,
any corporation, partnership, person or other entity or group, other
than Parent and its affiliates, concerning the sale of the Subject
Shares, or the issuance and sale of Company Common Stock by the
Company or, with respect to any merger or other business combination,
any disposition or grant of an interest in a substantial asset or any
similar transaction involving the Company;
(b) The Holder will not transfer, sell, exchange, pledge
or otherwise dispose of or encumber any of the Subject Shares or make
any offer or agreement relating thereto at any time prior to the
termination of this Agreement pursuant to Section 8 hereof; and
(c) The Holder agrees that any shares of capital stock of
the Company (including Company Common Stock) that the Holder purchases
or with respect to which the Holder otherwise acquires beneficial
ownership after the date of this Agreement and prior to the
termination of this Agreement pursuant to Section 8 shall be
considered "Subject Shares" and subject to each of the terms and
conditions of this Agreement.
6. Covenants of the Company. The Company hereby agrees
and covenants that:
(a) The Company will not, and will cause its stock
transfer agent not to, register the transfer of any of the Subject
Shares on the stock transfer ledger of the Company at any time prior
to the termination of this Agreement pursuant to Section 8; and
(b) The Company agrees that any shares of capital stock
of the Company (including Company Common Stock) that the Holder
purchases or with respect to which the Holder otherwise acquires
beneficial ownership after the date of this Agreement and prior to the
termination of this Agreement pursuant to Section 8 shall be
considered "Subject Shares" and subject to each of the terms and
conditions of this Agreement.
7. Adjustment Upon Changes in Capitalization. In the
event of any change in the Company Common Stock by reason of stock dividends,
split-ups, recapitalizations, combinations, exchanges of shares or the like,
the number of Subject Shares shall be adjusted appropriately.
8. Termination. This Agreement shall terminate on the
earlier of (a) the Effective Time, (b) at any time upon written notice by
Parent to the Holder terminating this Agreement and (c) the later of June 30,
1996 and 30 calendar days after the date on which the Merger Agreement is
terminated.
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9. Notices. All notices and other communications given
or made pursuant hereto shall be in writing and shall be deemed to have been
duly given or made as of the date delivered, mailed or transmitted, and shall
be effective upon receipt, if delivered personally or mailed by registered or
certified mail (postage prepaid, return receipt requested) to the parties at
the following addresses (or to such other address for a party as shall be
specified by like change of address), or sent by electronic transmission with
confirmation received, to the telecopy number specified below, if any:
(a) if to the Holder:
Xxxxx Xxxxxxxxxx
00000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx
Telecopy: 000-000-0000
with a copy to:
Xxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy: 000-000-0000
(b) if to the Company:
Western Waste Industries
00000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx
Attention: President
Telecopy: 000-000-0000
(c) if to Parent:
USA Waste Services, Inc.
0000 XXX Xxxxxxx
Xxxxx 000 - Xxxxx Xxx
Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer
Telecopy: 000-000-0000
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with a copy to:
Xxxxxxx X. Xxxxxxxx USA Waste Services, Inc.
0000 XXX Xxxxxxx
Xxxxx 000 - Xxxxx Xxx
Xxxxxx, Xxxxx 00000
Telecopy: 000-000-0000
10. Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
11. Severability. If any term or other provision of this
Agreement is invalid, illegal on incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affect in any
manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
12. Entire Agreement. This Agreement constitutes the
entire agreement and supersedes all prior agreements and undertakings, both
written and oral, among the parties, or any of them, with respect to the
subject matter hereof and, except as otherwise expressly provided herein, are
not intended to confer upon any other person any rights or remedies hereunder.
13. Assignment. This Agreement shall not be assigned by
operation of law or otherwise.
14. Amendment. This Agreement may not be modified,
amended or waived in any manner except by an instrument in writing signed by
each of the parties hereto. Except as is provided in Section 8, this Agreement
may only be terminated in a writing signed by each of the parties hereto. The
waiver by any party of compliance with any provision of this Agreement by any
other party shall not operate or be construed as a waiver of any other
provision of this Agreement, or of any subsequent breach by such party of a
provision of this Agreement.
15. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of California.
16. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
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and to enforce specifically the terms and provisions hereof in any court of the
United States or any state thereof having jurisdiction, this being in addition
to any other remedy to which they are entitled at law or in equity.
17. Counterparts. This Agreement may be executed in one
or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Agreement has been executed by each
of the parties hereto individually, by its duly authorized officer or in its
capacity as a duly authorized trustee or custodian, all as of the date first
above written.
USA WASTE SERVICES, INC.
By: /s/ XXXX X. XXXXX
-------------------------------------
Name:
Title
WESTERN WASTE INDUSTRIES
By: /s/ XXXXX TUFENKINAN
-------------------------------------
Name:
Title
THE HOLDER:
/s/ XXXXX XXXXXXXXXX
----------------------------------------
Xxxxx Xxxxxxxxxx
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SCHEDULE I
HOLDER NUMBER OF SHARES
------ ----------------
Xxxxx Xxxxxxxxxx . . . . . . . . . . . . . . . . . . . . . 4,516,413
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IRREVOCABLE PROXY
The undersigned shareholder of Western Waste Industries, a
California corporation (the "Company"), hereby irrevocably (to the full extent
permitted by law) appoints and constitutes Xxxx X. Xxxxx, Chairman of the Board
and Chief Executive Officer of Parent, and Xxxxxx X. Xxxxxxxxx, Xx., Vice
Chairman of the Board of Parent, in their respective capacities and officers of
Parent, and any individual or individuals, who shall hereafter succeed to the
office of Chairman of the Board or Chief Executive Officer of Parent, and
Parent, and each of them, the attorneys and proxies of the undersigned with
full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the shares of capital stock of the Company
beneficially owned by the undersigned, which shares are listed on the final
page of this Proxy (the "Shares"), and any and all other shares or securities
issued or issuable in respect thereof on or after the date hereof, until such
time as the Voting Agreement, dated as of December 18, 1995 (the "Voting
Agreement"), among Parent, the Company and the undersigned, shall be terminated
in accordance with its terms. Upon the execution hereof, all prior proxies
given by the undersigned with respect to the Shares and any and all other
shares or securities issued or issuable in respect thereof on or after the date
hereof are hereby revoked and no subsequent proxies will be given.
This proxy is irrevocable (to the full extent permitted by
law) and is granted in connection with the Voting Agreement and is granted in
consideration of Parent entering into the Agreement and Plan of Merger, dated
as of December 18, 1995 (the "Merger Agreement"), among Parent, Riviera
Acquisition Corporation, a California corporation and wholly-owned subsidiary
of Parent, and the Company.
The attorneys and proxies named above will be empowered at any
time prior to termination of the Voting Agreement to exercise all voting and
other rights (including, without limitation, the power to execute and deliver
written consents with respect to the Shares) of the undersigned at every annual
or special meeting of the shareholders of the Company and at every continuation
or adjournment thereof, and on every action or approval by written consent of
the shareholders of the Company in lieu of any such meeting, (i) in favor of
approval of the Merger Agreement and the Merger and any matter that could
reasonably be expected to facilitate the Merger, (ii) against approval of any
proposal made in opposition to or competition with consummation of the Merger,
(iii) against, or so as to abstain with regard to, any merger, consolidation,
sale of assets, reorganization or recapitalization of the Company with any
party other than Parent or it affiliates, and (iv) against any liquidation or
winding up of the Company or any amendment of the Company's Articles of
Incorporation or By-laws or any other transaction or action which is intended
to frustrate or impair the right or ability of Parent or Subsidiary, on the one
hand, or the Company, on the other hand, to consummate the Merger.
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The attorneys and proxies named above may only exercise this
proxy to vote the Shares subject hereto at any time prior to termination of the
Voting Agreement at every annual or special meeting of the shareholders of the
Company and at every continuation or adjournment thereof, and on every action
or approval by written consent of the shareholders of the Company in lieu of
any such meeting, (i) in favor of approval of the Merger Agreement and the
Merger and any matter that could reasonably be expected to facilitate the
Merger, (ii) against approval of any proposal made in opposition to or
competition with consummation of the Merger, (iii) against, or so as to abstain
with regard to, any merger, consolidation, sale of assets, reorganization or
recapitalization of the Company with any party other than Parent or it
affiliates and (iv) against any liquidation or winding up of the Company or
any amendment of the Company's Articles of Incorporation or By-laws or any
other transaction or action which is intended to frustrate or impair the right
or ability of Parent or Subsidiary, on the one hand, or the Company, on the
other hand, to consummate the Merger, and may not exercise this proxy on any
other matter. The undersigned shareholder may vote the Shares on all other
matters.
Any obligation of the undersigned hereunder shall be binding
upon the successors and assigns of the undersigned.
This proxy is irrevocable.
Dated: December 18, 1995
Signature of Shareholder: /s/ XXXXX XXXXXXXXXX
--------------------------------------
Print name of Shareholder: Xxxxx Xxxxxxxxxx
Shares beneficially owned: 4,516,413 shares of Company
Common Stock
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