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EXCHANGE AGREEMENT
BY AND AMONG
ALLIED WASTE INDUSTRIES, INC.
AND
THE PARTIES LISTED ON SCHEDULE 1 HERETO
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Dated as of
July 31, 2003
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TABLE OF CONTENTS
(Not Part of Agreement)
Article Page
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ARTICLE I DEFINITIONS.....................................................1
ARTICLE II EXCHANGE........................................................4
SECTION 2.1. Agreement to Exchange Shares......................4
SECTION 2.2. Closing...........................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................6
SECTION 3.1. Organization and Standing.........................6
SECTION 3.2. Capital Stock.....................................6
SECTION 3.3. Authorization; Enforceability.....................7
SECTION 3.4. No Violation; Consents............................7
SECTION 3.5. Commission Filings; Financial Statements..........8
SECTION 3.6. Private Offering..................................9
SECTION 3.7. Antitakeover Laws.................................9
SECTION 3.8. Material Adverse Change...........................9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS................9
SECTION 4.1. Authorization.....................................9
SECTION 4.2. Private Placement.................................9
SECTION 4.3. Authorization; Enforceability....................10
SECTION 4.4. No Violation; Consents...........................10
SECTION 4.5. No Brokers.......................................11
ARTICLE V COVENANTS OF THE COMPANY.......................................11
SECTION 5.1. Operation of Business............................11
SECTION 5.2. Agreement to Take Necessary and
Desirable Actions..............................12
SECTION 5.3. Compliance with Conditions; Reasonable
Best Efforts...................................12
SECTION 5.4. HSR Act Notification.............................12
SECTION 5.5. Consents and Approvals...........................13
SECTION 5.6. Stockholder Vote.................................13
SECTION 5.7. Listing of Shares................................13
SECTION 5.8. Tax Treatment of Shares..........................13
SECTION 5.9. Periodic Information.............................15
SECTION 5.10. Legends.........................................15
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ARTICLE VI COVENANTS OF THE PURCHASERS....................................16
SECTION 6.1. Agreement to Take Necessary and
Desirable Actions..............................16
SECTION 6.2. Compliance with Conditions; Reasonable
Best Efforts...................................16
SECTION 6.3. HSR Act Notification.............................16
SECTION 6.4. Shareholder Vote.................................16
SECTION 6.5. Consents and Approvals...........................16
ARTICLE VII CONDITIONS PRECEDENT TO CLOSING................................17
SECTION 7.1. Conditions to the Company's Obligations..........17
SECTION 7.2. Conditions to Holders' Obligations...............18
ARTICLE VIII MISCELLANEOUS..................................................19
SECTION 8.1. Indemnification..................................19
SECTION 8.2. Notices..........................................21
SECTION 8.3. Governing Law....................................22
SECTION 8.4. Termination......................................22
SECTION 8.5. Entire Agreement.................................22
SECTION 8.6. Modifications and Amendments.....................22
SECTION 8.7. Waivers and Extensions...........................23
SECTION 8.8. Titles and Headings..............................23
SECTION 8.9. Exhibits and Schedules...........................23
SECTION 8.10. Expenses; Brokers...............................23
SECTION 8.11. Press Releases and Public Announcements.........23
SECTION 8.12. Assignment; No Third Party Beneficiaries........24
SECTION 8.13. Severability....................................24
SECTION 8.14. Counterparts....................................24
SECTION 8.15. Further Assurances..............................24
SECTION 8.16. Remedies Cumulative.............................24
SECTION 8.17. Several Liability of the Holders................25
SECTION 8.18. No Duty to Other Holders........................25
SECTION 8.19. Specific Performance............................25
SCHEDULES
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Schedule 1 List of the Holders
EXHIBITS
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Exhibit A Form of Supplementary Registration Rights Agreement
Exhibit B Form of Supplementary Shareholders Agreement
Exhibit C Form of Opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
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Exhibit D Form of Secretary's Certificate
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EXCHANGE AGREEMENT
EXCHANGE AGREEMENT, dated as of July 31, 2003 (this
"Agreement"), by and among Allied Waste Industries, Inc., a Delaware corporation
(together with its predecessors and successors, the "Company"), and each of the
parties listed on Schedule 1 hereto (the "Holders").
WHEREAS, the Holders and the Company desire that the Series A
Preferred Stock (as defined) owned by the Holders be exchanged for shares of
Common Stock (as defined) to be issued by the Company, upon the terms and
subject to the conditions set forth in this Agreement;
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows.
ARTICLE I
DEFINITIONS
(a) As used in this Agreement, the following terms shall have
the following meanings:
"Affiliate" means, with respect to any person, any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such person. For the purposes of this definition,
"control" when used with respect to any person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Apollo" means Apollo Advisors II, L.P., a Delaware limited
partnership, on behalf of one or more managed funds.
"Apollo Management" means Apollo Management IV, L.P., a
Delaware limited partnership.
"Applicable Law" means (a) any United States federal, state,
local or foreign law, statute, rule, regulation, order, writ, injunction,
judgment, decree or permit of any Governmental Authority and (b) any rule or
listing requirement of any stock exchange or listing requirement of any stock
exchange or Commission recognized trading market on which securities issued by
the Company or any of the Subsidiaries are listed or quoted (an "Exchange
Requirement").
"Blackstone" means Blackstone Capital Partners III Merchant
Banking Fund L.P., a Delaware limited partnership, on behalf of one or more
managed funds.
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"Blackstone Management" means Blackstone Management Partners
III LLC, a Delaware limited liability company.
"Business Day" means any day other than a Saturday, a Sunday
or a day when banks in The City of New York are authorized by Applicable Law to
be closed.
"Capital Stock" means, (i) with respect to any Person that is
a corporation, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, and (ii) with respect to
any other Person, any and all partnership or other equity interests of such
Person.
"Commission" means the United States Securities and Exchange
Commission.
"Commission Filings" means all reports, registration
statements and other filings filed by the Company with the Commission since
December 31, 2001 (and all notes, exhibits and schedules thereto and documents
incorporated by reference therein).
"Common Stock" means the common stock, par value $.01 per
share, of the Company.
"Contract" means any contract, lease, loan agreement,
mortgage, security agreement, trust indenture, note, bond, or other agreement
(whether written or oral) or instrument.
"Credit Agreement" means the Credit Agreement dated as of July
21, 1999 among the Company, Allied Waste North America, Inc., the lenders named
therein and certain other parties, as such agreement has been amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"GAAP" means United States generally accepted accounting
principles, consistently applied.
"Governmental Authority" means (i) any foreign, Federal, state
or local court or governmental or regulatory agency or authority, (ii) any
arbitration board, tribunal or mediator and (iii) any stock exchange or
Commission recognized trading market on which securities issued by the Company
or any of the Subsidiaries are listed or quoted.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and applicable rules and regulations and any similar
state acts.
"Lien" means any mortgage, pledge, lien, security interest,
claim, restriction, charge or encumbrance of any kind.
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"Material Adverse Effect" means, (i) a material adverse effect
on the business, condition (financial or otherwise), operations, performance or
properties of the Company and the Subsidiaries, taken as a whole, in each case
(x) after giving effect to the projections presented to the Board of Directors
on July 28, 2003 for the year ending December 31, 2003 and (y) excluding any
changes resulting from or arising in connection with (A) changes or conditions
generally affecting the waste management industry, or (B) changes in general
economic, regulatory or political conditions, including acts of war or terrorism
(other than in the case of clauses (A) and (B) changes or conditions that
materially disproportionately affect the Company and its Subsidiaries, taken as
a whole, compared with other companies in the waste management industry), (ii) a
material impairment of the ability of the Company to perform its obligations
under this Agreement, the Registration Rights Agreement or the Shareholders
Agreement, or (iii) a material impairment of the rights of the Holders under or
enforceability by the Holders of this Agreement, the Registration Rights
Agreement, the Supplementary Registration Rights Agreement, (the form of which
is attached as Exhibit A hereto), the Shareholders Agreement, or the
Supplementary Shareholders Agreement (the form of which is attached as Exhibit B
hereto).
"Person" means any individual, partnership, corporation,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or agency or political
subdivision thereof, or other entity.
"Preferred Stock" means the Preferred Stock, par value $.10
per share, of the Company.
"Registration Rights Agreement" means the Amended and Restated
Registration Rights Agreement, dated as of July 30, 1999, by and among the
Company, the Holders and others.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder.
"Series A Preferred Stock" means the Series A Senior
Convertible Preferred Stock of the Company.
"Shareholders Agreement" means the Second Amended and Restated
Shareholders Agreement, dated as of July 30, 1999, by and among the Company, the
Holders and others.
"Shares" means the shares of Series A Preferred Stock owned by
the Holders.
"subsidiary" means, with respect to any Person (i) a
corporation a majority of whose capital stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by a subsidiary of such
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Person, or by such Person and one or more subsidiaries of such Person, (ii) a
partnership in which such Person or a subsidiary of such Person is, at the date
of determination, a general partner of such partnership and has the power to
direct the policies and management of such partnership, or (iii) any other
Person (other than a corporation) in which such Person, a subsidiary of such
Person or such Person and one or more subsidiaries of such Person, directly or
indirectly, at the date of determination thereof, has (A) at least a majority
ownership interest or (B) the power to elect or direct the election of the
directors or other governing body of such Person.
"Subsidiary" means a subsidiary of the Company.
"Transactions" means the transactions contemplated by this
Agreement, the Supplementary Registration Rights Agreement and the Supplementary
Shareholders Agreement, forms of which are attached hereto as Exhibits A and B,
respectively.
(b) As used in this Agreement, the following terms shall have
the meanings given thereto in the Sections set forth opposite such terms:
Term Section
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Agreement Preamble
BFI Preamble
Closing 2.2
Closing Date 2.2
Company Preamble
DGCL 3.8
Xxxxxxx Xxxxx 3.3
Holders Preamble
indemnified person 8.1
Information 3.9
Issuance 2.1
Losses 8.1
Nonperforming Holder 8.4(a)
Notices 8.2
Performing Holders 8.4(b)
Substitute Holder Undertaking 8.4(b)
Supplying Holders 8.18
ARTICLE II
EXCHANGE
SECTION 2.1. Agreement to Exchange Shares. On the Closing
Date, and upon the terms and subject to the conditions set forth in this
Agreement, the Company shall issue to each Holder, and each Holder, severally
and not jointly, shall accept from
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the Company, such number of shares of Common Stock as is indicated on such
Holder's signature page attached hereto (the "Issuance"), in exchange for each
Holder surrendering to the Company certificates for the number of Shares as
indicated on such Holder's signature page (the "Exchange"). The exchange rate
shall be 110.5 shares of Common Stock for each Share.
SECTION 2.2. Closing. The closing of the Issuance and Exchange
(the "Closing") shall take place as promptly as reasonably practicable after the
time as of which all of the conditions set forth in Article VII hereof shall
have been satisfied or at such other time and date as the parties hereto shall
agree in writing (such date and time, the "Closing Date"), at the offices of
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 or at such other place as the parties hereto shall agree in writing.
At the Closing:
(a) Each Holder shall deliver:
(i) against delivery of a certificate or certificates
representing the shares being acquired by such Holder pursuant to
Section 2.1, certificates for Shares, duly endorsed for transfer, to
be surrendered to the Company by such Holder pursuant to Section
2.1;
(ii) an executed copy of the Supplementary Registration
Rights Agreement; and
(iii) an executed copy of the Supplementary Shareholders
Agreement.
(b) The Company shall deliver to each Holder:
(i) against surrender by such Holder of certificates
representing the Shares to be surrendered to the Company pursuant to
Section 2.1, a certificate or certificates representing the shares
of Common Stock being acquired by such Holder pursuant to Section
2.1, which shall be in definitive form and registered in the name of
such Holder or its nominee or designee (to the extent permitted by
the Shareholders Agreement) and in a single certificate or in such
other denominations as such Holder shall request not later than one
Business Day prior to the Closing Date.
(ii) an opinion of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, counsel to the Company, dated the Closing Date in the form
of Exhibit C;
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(iii) an officer's certificate of the Company as
contemplated by Section 7.2(f);
(iv) a certificate of the secretary of the Company
substantially in the form attached hereto as Exhibit D:
(v) a long-form good standing certificate of the
Company, issued by the Secretary of State of the State of Delaware;
(vi) an executed copy of the Supplementary Registration
Rights Agreement; and
(vii) an executed copy of the Supplementary Shareholders
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company hereby represents and warrants to each Holder
that, except as set forth in the Disclosure Schedule to this Agreement, on the
date hereof and on the Closing Date as follows:
SECTION 3.1. Organization and Standing. The Company is duly
incorporated, validly existing and in good standing as a domestic corporation
under the laws of the State of Delaware and has all requisite corporate power
and authority to own its properties and assets and to carry on its business as
it is now being conducted and as proposed to be conducted. The Company is duly
qualified to transact business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the properties owned or leased by
it or the nature of its business makes such qualification necessary, except for
any such failures to so qualify or be in good standing that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 3.2. Capital Stock. (a) As of June 30, 2003, (i) the
authorized Capital Stock of the Company consisted solely of 525,000,000 shares
of Common Stock, of which 209,092,579 were issued and outstanding, and
10,000,000 shares of Preferred Stock, of which 1,000,000 shares are designated
as Series A Senior Convertible Preferred Stock and all 1,000,000 shares are
issued and outstanding, 500,000 shares are designated as Series B Junior
Participating Preferred Stock and none are issued and outstanding, and 6,900,000
shares are designated as Series C Senior Mandatory Convertible Stock of which
6,900,000 shares are issued and outstanding. Associated with each outstanding
share of Common Stock is a preferred stock purchase right issued pursuant to a
Rights Agreement dated May 18, 2000 between the Company and American Stock
Transfer &
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Trust Company, as Rights Agent. As of June 30, 2003, there were 19,465,812
shares of Common Stock reserved for issuance upon exercise of outstanding
options issued under the Company's stock option and incentive plans. Each share
of Capital Stock of the Company that is issued and outstanding immediately
following the Closing, including without limitation the shares of Common Stock
to be acquired by the Holders pursuant to this Agreement, will be duly
authorized and validly issued and fully paid and nonassessable, and the issuance
thereof will not have been subject to any preemptive rights or made in violation
of any Applicable Law. Since June 30, 2003, the Company has not issued any
shares of Capital Stock except upon the exercise or conversion of securities
outstanding on June 30, 2003 and securities whose aggregate proceeds have been
less than $50 million.
(b) Except as set forth above as of June 30, 2003, there are
(i) no outstanding options, warrants, agreements, conversion rights, exchange
rights, preemptive rights or other rights (whether contingent or not) to
subscribe for, purchase or acquire any issued or unissued shares of Capital
Stock of the Company or any Subsidiary, and (ii) no restrictions upon, or
Contracts or understandings of the Company or any Subsidiary with respect to,
the voting or transfer of any shares of Capital Stock of the Company or any
Subsidiary other than the Shareholders Agreement.
SECTION 3.3. Authorization; Enforceability. The Company has
the power and authority to execute, deliver and perform, subject to the receipt
of stockholder approval, the terms and provisions of this Agreement and the
Supplementary Shareholder Agreement and the Supplementary Registration Rights
Agreement, and has taken all action necessary to authorize the execution,
delivery and performance by it of each of such agreements and to consummate each
of the Transactions. The Transactions have been approved by a Special Committee
of the Board of Directors of the Company (the "Special Committee") and a
majority of the members of the Company's Board of Directors who are not
affiliated with the Holders, and the Special Committee has received a letter
from Xxxxxxx, Sachs & Co. ("Xxxxxxx Xxxxx") expressing the view that, as of the
date of such letter, the exchange ratio of 110,500,000 shares of Common Stock
for an aggregate of 1,000,000 Shares falls within a range of exchange ratios
that reasonably could have been expected to be achieved in an arm's-length
transaction between the Company and an unaffiliated third party. Other than
receipt of stockholder approval of the issuance of shares of Common Stock, no
other corporate proceeding on the part of the Company is necessary for such
authorization, execution, delivery and consummation. The Company has duly
executed and delivered this Agreement and, at the Closing, the Company will have
duly executed and delivered each of the other agreements to be executed and
delivered at or prior to Closing. This Agreement constitutes, and each of the
other agreements, when executed and delivered by the Company, will constitute, a
legal, valid and binding obligation of the Company.
SECTION 3.4. No Violation; Consents. (a) The execution,
delivery and performance by the Company of each of this Agreement and the
Supplementary
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Shareholders Agreements and Supplementary Registration Rights Agreement and the
consummation of the Transactions do not and will not contravene any Applicable
Law, except for any such contravention that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Subject
only to receiving stockholder approval of the issuance of shares of Common Stock
pursuant to this Agreement and the receipt of any waiver or consent required
under the Credit Agreement to permit the consummation of the Transactions, the
execution, delivery and performance by the Company of each of this Agreement and
the Supplementary Shareholders Agreements and Supplementary Registration Rights
Agreement and the consummation of the Transactions (i) will not (A) violate,
result in a breach of or constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of termination, cancellation or
acceleration) under any Contract to which the Company or any Subsidiary is a
party or by which the Company or any Subsidiary is bound or to which any of
their respective assets is subject, or (B), result in the creation or imposition
of any Lien upon any of the assets of the Company or any Subsidiary, except for
any such violations, breaches, defaults or Liens that would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect, and
(ii) will not conflict with or violate any provision of the certificate of
incorporation or bylaws or other governing documents of the Company or any
Subsidiary.
(b) Except for (i) the filings, if any, by the Company
required by the HSR Act, and (ii) applicable filings, if any, with the
Commission pursuant to the Exchange Act, no consent, authorization or order of,
or filing or registration with, any Governmental Authority or other Person is
required to be obtained or made by the Company or any Subsidiary for the
execution, delivery and performance of this Agreement, the Supplementary
Shareholders Agreement and the Supplementary Registration Rights Agreement or
the consummation of any of the Transactions, except where the failure to obtain
such consents, authorizations or orders, or make such filings or registrations,
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
SECTION 3.5. Commission Filings; Financial Statements. (a)
Since December 31, 2001, the Company has filed all reports, registration
statements and other filings, together with any amendments or supplements
required to be made with respect thereto, that it has been required to file with
the Commission under the Securities Act and the Exchange Act. As of the
respective dates of their filing with the Commission, the Commission Filings
complied in all material respects with the applicable provisions of the
Securities Act and the Exchange Act and did not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(b) Each of the historical financial statements of the Company
(including any related notes or schedules) included in the Commission Filings
was
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prepared in accordance with GAAP (except as may be disclosed therein) and
complied in all material respects with the rules and regulations of the
Commission. Such financial statements fairly present the consolidated financial
position of the Company and the Subsidiaries as of the dates thereof and the
results of operations, cash flows and changes in stockholders' equity for the
periods then ended (subject, in the case of the unaudited interim financial
statements, to normal year-end audit adjustments on a basis comparable with past
periods).
SECTION 3.6. Private Offering. Based, in part, on the Holders'
representations in Section 4.2, the issuance of the shares of Common Stock to
the Holders is exempt from the registration and prospectus delivery requirements
of the Securities Act. None of the Company and the Subsidiaries, nor anyone
acting on behalf of any of them, has offered or sold or will offer or sell any
securities, or has taken or will take any other action, which would subject any
of the Transactions to the registration provisions of the Securities Act.
SECTION 3.7. Antitakeover Laws. The Company and the Board of
Directors of the Company have each taken all action required to be taken by it
in order to exempt the execution, delivery, and performance of the Issuance and
the Exchange from, and each of the foregoing hereby is exempt from, the
requirements of any "moratorium," "control share," "fair price," "affiliate
transaction," "business combination" or other antitakeover laws and regulations
of any state, including, without limitation, the State of Delaware, and Section
203 of the General Corporation Law of the State of Delaware (the "DGCL").
SECTION 3.8. Material Adverse Change. Except as disclosed in
the Commission Filings, since December 31, 2002, there has not been any change
or condition which has resulted in a Material Adverse Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Holder severally as to itself only, and not jointly,
hereby represents and warrants to the Company as follows:
SECTION 4.1. Authorization. Such Holder is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization and has all requisite power and authority to own its properties and
assets and to carry on its business as it is now being conducted and as
currently proposed to be conducted.
SECTION 4.2. Private Placement. (a) Such Holder understands
that the offering and sale of the shares of Common Stock in the Issuance by the
Company is intended to be exempt from registration under the Securities Act
pursuant to Section 4(2) thereof.
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(b) Such Holder is an "accredited investor" as such term is
defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Holder is acquiring the shares of Common Stock to be
acquired hereunder for its own account (or for accounts over which it exercises
investment authority), for investment and not with a view to the public resale
or distribution thereof, in violation of any securities law.
(d) Each Holder understands that the shares of Common Stock
will be issued in a transaction exempt from the registration or qualification
requirements of the Securities Act and applicable state securities laws, and
that such securities must be held indefinitely unless a subsequent disposition
thereof is registered or qualified under the Securities Act and such laws or is
exempt from such registration or qualification.
(e) Each Holder (A) has been furnished with or has had full
access to all of the information that it considers necessary or appropriate to
make an informed investment decision with respect to the shares of Common Stock
to be issued in the Issuance and that it has requested from the Company, (B) has
had an opportunity to discuss with management of the Company the intended
business and financial affairs of the Company and to obtain information (to the
extent the Company possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any information furnished to
it or to which had access, and (C) can bear the economic risk of such investment
in the shares of Common Stock to be issued in the Issuance, has such knowledge
and experience in business and financial matters so as to enable it to
understand and evaluate the risks of and form an investment decision with
respect to its investment in the Shares and to protect its own interest in
connection with such investment.
SECTION 4.3. Authorization; Enforceability. Each Holder has
the power and authority to execute, deliver and perform the terms and provisions
of each of this Agreement and the Supplementary Shareholders Agreement and the
Supplementary Registration Rights Agreement to which it is a party, and has
taken all action necessary to authorize the execution, delivery and performance
by it of each of such agreements and to consummate each of the Transactions
contemplated thereby. All requisite proceedings (corporate or other) on the part
of such Holder necessary for such authorization, execution, delivery and
consummation has been taken or made. Such Holder has duly executed and delivered
this Agreement and, at the Closing, such Holder will have duly executed and
delivered each of the other agreements to be executed and delivered at or prior
to Closing. This Agreement constitutes, and each of the other agreements, when
executed and delivered by such Holder, will constitute, a legal, valid and
binding obligation of such Holder.
SECTION 4.4. No Violation; Consents. (a) The execution,
delivery and performance by such Holder of this Agreement and the Supplementary
Shareholders
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Agreement and the Supplementary Registration Rights Agreement and the
consummation of the Transactions do not and will not contravene any Applicable
Law except for such contraventions as would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
ability of such Holder to timely perform its obligations under this Agreement.
The execution, delivery and performance by such Holder of each of such
agreements and the consummation of the Transactions (i) will not (A) violate,
result in a breach of or constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of termination, cancellation or
acceleration) under any Contract to which such Holder is party or by which such
Holder is bound or to which any of its assets is subject, or (B) result in the
creation or imposition of any Lien upon any of the assets of such Holder, except
for any such violations, breaches, defaults or Liens that would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of such Holder to timely perform its obligations
under this Agreement, and (ii) will not conflict with or violate any provision
of the certificate of incorporation or bylaws or other governing documents of
such Holder.
(b) Except for filings, if any, required under the HSR Act, no
consent, authorization or order of, or filing or registration with, any
Governmental Authority or other Person is required to be obtained or made by
such Holder for the execution, delivery and performance of any of such
agreements referred to in Section 4.4(a) or the consummation of any of the
Transactions, except (i) for those filings which have been made and (ii) where
the failure to obtain such consents, authorizations or orders, or make such
filings or registrations, would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the ability of such
Holder to timely perform its obligations under this Agreement.
SECTION 4.5. No Brokers. No Holder has engaged any Person as a
broker, finder or other agent who would be entitled to a fee relating to the
consummation by such Holder of the Transactions to be contemplated by such
Holder.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.1. Operation of Business. From the date hereof until
the Closing Date, except as contemplated by this Agreement, the Company shall,
and shall cause each of the Subsidiaries to:
(i) operate its business in all material respects in
compliance with Applicable Laws;
(ii) not adopt any amendment to the Company's charter or
by-laws or comparable organizational documents that have or could
reasonably be expected to have an adverse effect on the Holders or
their ownership or control of the shares of Common Stock to be
issued in the Issuance; and
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(iii) except for issuances of Capital Stock of the
Subsidiaries to the Company or a wholly-owned Subsidiary (or on a
proportionate basis to all of such Subsidiary's stockholders) and
issuance of Common Stock or options to acquire Common Stock pursuant
to employee benefit plans disclosed in the Commission Filings, as in
effect on the date hereof, or as consented to in writing by Apollo
Management and Blackstone (which consent shall not be unreasonably
withheld), not issue, reissue, sell, pledge, dispose of or encumber
or authorize the issuance, reissuance, sale, pledge, disposition or
encumbrance of additional shares of Capital Stock of any class, or
securities convertible into Capital Stock or any rights, warrants or
options or other rights of any kind to acquire any convertible
securities or Capital Stock or any other ownership interest
(including, but not limited to, stock appreciation rights or phantom
stock) of the Company or any of its Subsidiaries in excess of shares
of Common Stock whose aggregate market value is less than $25
million, other than the Issuance and the issuance of preferred stock
purchase rights associated with shares of Common Stock issued in
compliance with this provision.
SECTION 5.2. Agreement to Take Necessary and Desirable
Actions. The Company shall (a) subject to the satisfaction of the conditions set
forth in Section 7.1, execute and deliver the Supplementary Shareholders
Agreement and the Supplementary Registration Rights Agreement and such other
documents, certificates, agreements and other writings and (b) take such other
actions, in each case, as may be necessary or reasonably requested by any of the
Holders in order to consummate or implement expeditiously the Transactions in
accordance with the terms of this Agreement.
SECTION 5.3. Compliance with Conditions; Reasonable Best
Efforts. The Company shall use its reasonable best efforts to cause all
conditions precedent to the obligations of the Company and the Holders to be
satisfied. Upon the terms and subject to the conditions of this Agreement, the
Company will use its reasonable best efforts to take, or cause to be taken, all
action, and to do, or cause to be done, all things necessary, proper or
advisable consistent with Applicable Law to consummate and make effective in the
most expeditious manner practicable the transactions contemplated hereby.
SECTION 5.4. HSR Act Notification. To the extent required by
the HSR Act, the Company shall, to the extent it has not already done so, (a)
file or cause to be filed, as promptly as practicable after the execution and
delivery of this Agreement, with the United States Federal Trade Commission and
the Antitrust Division of the United States Department of Justice, all reports
and other documents required to be filed by it under the HSR Act concerning the
transactions contemplated hereby and (b) promptly comply with or cause to be
complied with any requests by the United States Federal Trade Commission or the
Antitrust Division of the United States Department of Justice for additional
information concerning such transactions, in each case so that the waiting
period applicable to this Agreement and the transactions contemplated hereby
under the HSR Act shall expire as soon as practicable after the execution and
delivery of this
12
Agreement. The Company agrees to request, and to cooperate with the Holders in
requesting, early termination of any applicable waiting period under the HSR
Act.
SECTION 5.5. Consents and Approvals. The Company (a) shall use
its reasonable best efforts to obtain all necessary consents, waivers,
authorizations and approvals of all Governmental Authorities and of all other
Persons required in connection with the execution, delivery and performance of
this Agreement and the Supplementary Registration Rights Agreement and the
Supplementary Shareholders Agreement or the consummation of the Transactions and
(b) shall diligently assist and cooperate with the Holders in preparing and
filing all documents required to be submitted by the Holders to any Governmental
Authority in connection with such Transactions (which assistance and cooperation
shall include, without limitation, timely furnishing to the Holders all
information concerning the Company and its Subsidiaries that counsel to the
Holders reasonably determines is required to be included in such documents or
would be helpful in obtaining any such required consent, waiver, authorization
or approval).
SECTION 5.6. Stockholder Vote. The Company shall present a
proposal, in accordance with all Applicable Laws, at a special meeting of the
Company's stockholders for purposes of voting on the approval of the issuance of
the shares of Common Stock to be exchanged for the Shares in accordance with
this Agreement. A majority of the members of the Board of Directors of the
Company not affiliated with the Holders or their Affiliates and the Special
Committee shall, to the extent consistent with their fiduciary duties, recommend
approval of this issuance of Common Shares by the Company's stockholders. In
connection with any such meeting, the Company shall (a) use its reasonable best
efforts to file and have cleared by the Commission and will thereafter mail to
its stockholders as promptly as practicable all proxy materials for such meeting
and (b) will use its reasonable best efforts, subject to the fiduciary duties of
the Board of Directors of the Company (and the Special Committee), to obtain the
necessary approvals by its stockholders in accordance with Applicable Law.
SECTION 5.7. Listing of Shares. The Company shall use its
reasonable best efforts to cause the shares of Common Stock to be issued
pursuant to this Agreement to be listed or otherwise eligible for trading on
each principal trading market for the Common Stock.
SECTION 5.8. Tax Treatment of Shares. (a) The Company and the
Holders hereby agree not to treat the Series A Preferred Stock as "preferred
stock" within the meaning of Treasury regulation section 1.305-5(a), except to
the extent required by a "determination" (as defined below) to the contrary.
Except as otherwise required by a "determination," the Company and the Holders
shall prepare any and all returns, reports, and other statements (including, in
each case, any schedule or attachment thereto, or amendment thereof) filed for
United States federal, state, or local income tax purposes in a manner
consistent with such treatment. A "determination" shall mean a decision,
judgment, decree, or other order by any court of competent jurisdiction, which
decision,
13
judgment, decree, or other order has become final, a closing agreement entered
into under section 7121 (or any successor to such section) of the Code, or any
other settlement agreement entered into in connection with an administrative or
judicial proceeding.
(b) If any United States federal, state, or local governmental
authority with jurisdiction over matters relating to taxation (each, a "Tax
Authority") asserts to the Company that the Series A Preferred Stock should be
treated as "preferred stock" (within the meaning of Treasury regulation section
1.305-5(a)) or otherwise challenges the Company's treatment of the Series A
Preferred Stock in a manner, or having an effect, that would, directly or
indirectly, adversely affect any of the Holders (collectively, a "Tax
Challenge"), the Company shall provide written notice of such event (a "Tax
Challenge Notice") within ten days thereof to Apollo Management and Blackstone
and Apollo Management and Blackstone shall have the right to assume the defense
(at their expense) of any such Tax Challenge through counsel of their own
choosing by notifying the Company within thirty days of the receipt by Apollo
Management and Blackstone of the Tax Challenge Notice. If Apollo Management and
Blackstone assume the defense of a Tax Challenge, the Company shall have the
right to participate in such defense and to employ counsel, at its own expense,
separate from the counsel employed by Apollo Management and Blackstone;
provided, that Apollo Management and Blackstone shall control all aspects of the
defense, negotiation, and ultimate settlement or other disposition of the Tax
Challenge. If Apollo Management and Blackstone choose to control the defense of
any Tax Challenge, the Company shall cooperate in the defense thereof, which
cooperation shall include, to the extent reasonably requested by Apollo
Management or Blackstone, the retention and the provision to Apollo Management
and Blackstone, of records and information relevant to such defense, making
employees of the Company available on a mutually convenient basis to provide
additional information, explanation of any materials or other information, and
supplying any requested powers of attorney or other authorization requested by
Apollo Management and Blackstone relating to the defense of the Tax Challenge,
and the Holders shall reimburse the Company for all reasonable out of pocket
expenses (but not any internal allocated expenses) relating to such cooperation.
If Apollo Management and Blackstone choose not to assume the defense of any Tax
Challenge, the Company shall control the defense, negotiation and ultimate
settlement or other disposition of the Tax Challenge; provided, that (i) the
Company shall use its reasonable best efforts to defend the position that the
Series A Preferred Stock does not constitute "preferred stock" (within the
meaning of Treasury regulation section 1.305-5(a)) and; (ii) that the Company
shall not settle or otherwise resolve any Tax Challenge without the prior
written consent of Apollo Management and Blackstone, which consent shall not be
unreasonably withheld. In addition, notwithstanding any provision to the
contrary, the Company shall not take any action a purpose of which is to
prejudice the defense of any Tax Challenge.
(c) Except to the extent required by a "determination," the
Company shall not report to any Tax Authority, or to the holders of the Series A
Preferred Stock, as
14
a dividend payment, any amount received in the Transactions, the exchange of the
Series A Preferred Stock pursuant to this Agreement, any increases to the
Liquidation Preference, or any other amount, resulting from, or relating to, the
Company's failure to pay a dividend in cash on the Series A Preferred Stock on
any Dividend Payment Date (as such terms are defined in the Certificates of
Designation) or otherwise including, but not limited to, any reporting on
Internal Revenue Service Forms 1098, 1099-DIV, or any similar forms or
successors thereto.
SECTION 5.9. Periodic Information. For so long as the shares
of Common Stock issued under this Agreement are outstanding the Company shall
file all reports required to be filed by the Company under Section 13 or 15(d)
of the Exchange Act and shall provide the holders of such shares of Common Stock
and prospective purchasers of such shares with the information specified in Rule
144A(d) under the Securities Act.
SECTION 5.10. Legends. So long as applicable, each certificate
representing any portion of the shares of Common Stock issued under this
Agreement shall be stamped or otherwise imprinted with a legend in the following
form (in addition to any legend required under applicable state securities
laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. SUCH SHARES MAY
NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION PURSUANT TO AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS AND DELIVERY TO ALLIED
WASTE INDUSTRIES, INC. OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO IT TO THE EFFECT THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION
UNDER THOSE LAWS.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A SECOND AMENDED AND RESTATED SHAREHOLDERS AGREEMENT,
DATED AS OF JULY 30, 1999, AS AMENDED, BETWEEN ALLIED WASTE INDUSTRIES,
INC. ("ALLIED") AND CERTAIN SHAREHOLDERS OF ALLIED NAMED THEREIN AND
MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE THEREWITH. A COPY OF SAID
15
AGREEMENT IS ON FILE AT THE OFFICE OF THE CORPORATE SECRETARY OF
ALLIED."
ARTICLE VI
COVENANTS OF THE PURCHASERS
SECTION 6.1. Agreement to Take Necessary and Desirable
Actions. Each Holder shall (a) subject to the satisfaction of the conditions set
forth in Section 7.2, execute and deliver each of the Supplementary Shareholders
Agreement and the Supplementary Registration Rights Agreement and such other
documents, certificates, agreements and other writings and (b) take such other
actions as may be reasonably necessary, desirable or requested by the Company in
order to consummate or implement expeditiously the transactions contemplated
hereby.
SECTION 6.2. Compliance with Conditions; Reasonable Best Efforts. Each Holder
will use its reasonable best efforts to cause all of the obligations imposed
upon it in this Agreement to be duly complied with, and to cause all conditions
precedent to the obligations of the Company and the Holders to be satisfied.
Upon the terms and subject to the conditions of this Agreement, each Holder will
use its reasonable best efforts to take, or cause to be taken, all action, and
to do, or cause to be done, all things necessary, proper or advisable consistent
with applicable law to consummate and make effective in the most expeditious
manner practicable the Transactions.
SECTION 6.3. HSR Act Notification. To the extent required by
the HSR Act, each Holder shall, if it has not already done so, (a) file or cause
to be filed, as promptly as practicable after the execution and delivery of this
Agreement, with the United States Federal Trade Commission and the Antitrust
Division of the United States Department of Justice, all reports and other
documents required to be filed by it under the HSR Act concerning the
transactions contemplated hereby and (b) promptly comply with or cause to be
complied with any requests by the United States Federal Trade Commission or the
Antitrust Division of the United States Department of Justice for additional
information concerning such transactions, in each case so that the waiting
period applicable to this Agreement and the transactions contemplated hereby
under the HSR Act shall expire as soon as practicable after the execution and
delivery of this Agreement. Each Holder agrees to request, and to cooperate with
the Company in requesting, early termination of any applicable waiting period
under the HSR Act.
SECTION 6.4. Shareholder Vote. The Holders shall vote the
Shares and any shares of Common Stock beneficially owned (as such term is
defined in Rule 13d-3 under the Exchange Act) by them and their Affiliates for
any proposal contemplated by Section 5.6 submitted to stockholders by the
Company.
SECTION 6.5. Consents and Approvals. Each Holder (a) shall use
its reasonable best efforts to obtain all necessary consents, waivers,
authorizations and
16
approvals of all Governmental Authorities and of all other Persons required in
connection with the execution, delivery and performance of this Agreement and
the Supplementary Shareholders Agreement and the Supplementary Registration
Rights Agreement or the consummation of the Transactions and (b) shall
diligently assist and cooperate with the Company in preparing and filing all
documents required to be submitted by the Company to any Governmental Authority
in connection with such Transactions (which assistance and cooperation shall
include, without limitation, timely furnishing to the Company all information
concerning such Holder that counsel to the Company reasonably determines is
required to be included in such documents or would be helpful in obtaining any
such required consent, waiver, authorization or approval).
ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING
SECTION 7.1. Conditions to the Company's Obligations. The
obligations of the Company hereunder required to be performed on the Closing
Date shall be subject, at the election of the Company, to the satisfaction or
waiver, at or prior to the Closing, of the following conditions:
(a) The representations and warranties of each Holder
contained in this Agreement shall have been true and correct when made and, in
addition, shall be repeated and true and correct in all material respects on and
as of the Closing Date with the same force and effect as though made on and as
of the Closing Date.
(b) Each Holder shall have performed in all material
respects all obligations and agreements, and complied in all material respects
with all covenants contained in this Agreement to be performed and complied with
by such Holder at or prior to the Closing Date.
(c) Any applicable waiting period under the HSR Act shall
have expired or been terminated.
(d) The Company shall have received, on terms reasonably
satisfactory to the Company, Apollo Management and Blackstone, any consent or
waiver necessary under the Credit Agreement to permit the performance of this
Agreement and consummation of the Transactions.
(e) The stockholders of the Company shall have approved the
Issuance as required by Applicable Law.
(f) The Holders shall have entered into each of the
Supplementary Registration Rights Agreement and the Supplementary Shareholders
Agreement.
17
(g) The Holders shall have delivered certificates
representing their Shares to the Company.
(h) No provision of any Applicable Law, injunction, order
or decree of any Governmental Entity shall be in effect which has the effect of
making the Transactions illegal or shall otherwise restrain or prohibit the
consummation of the Transactions.
(i) The concurrent consummation of the Exchange by the
Apollo/Blackstone Shareholders (as defined in the Shareholders Agreement).
SECTION 7.2. Conditions to Holders' Obligations. The
obligations of each Holder hereunder required to be performed on the Closing
Date shall be subject, at the election of each Holder (as to itself only), to
the satisfaction or waiver, at or prior to the Closing, of the following
conditions:
(a) The representations and warranties of the Company
contained in this Agreement (i) shall have been true and correct when made and
(ii) shall be (A) in the case of representations and warranties that are
qualified as to materiality or Material Adverse Effect, true and correct and (B)
in all other cases, true and correct in all material respects, in the case of
clauses (A) and (B), as of the Closing Date with the same force and effect as
though made on and as of the Closing Date.
(b) The Company shall have performed in all material
respects all of its obligations, agreements and covenants contained in this
Agreement to be performed and complied with at or prior to the Closing Date.
(c) The Company shall have entered into each of the
Supplementary Registration Rights Agreement and the Supplementary Shareholders
Agreement.
(d) There has been no Material Adverse Effect (i) since
December 31, 2002, except as disclosed in the Commission Filings filed prior to
the date hereof, or (ii) since the date hereof.
(e) Any applicable waiting period under the HSR Act shall
have expired or been terminated; provided, that each Holder has used its
reasonable best efforts to obtain clearance under the HSR Act.
(f) The Company shall have delivered to the Holders a
certificate executed by it or on its behalf by a duly authorized representative,
dated the Closing Date, to the effect that each of the conditions specified in
paragraph (a) through (d) of this Section 7.2 has been satisfied.
(g) No provision of any Applicable Law, injunction, order
or decree of any Governmental Entity shall be in effect which has the effect of
making the
18
Transactions illegal or shall otherwise restrain or prohibit the consummation of
the Transactions.
(h) The Holders shall have received an opinion of counsel
to the Company, dated the Closing Date, and addressed to the Holders, in the
form attached hereto as Exhibit C.
(i) The Holders shall have received certificates
representing the shares of Common Stock to be issued in the Issuance.
(j) The Company shall have received, on terms reasonably
satisfactory to the Company, Apollo Management and Blackstone, any consent or
waiver necessary under the Credit Agreement to permit the performance of this
Agreement and consummation of the Transaction.
(k) The stockholders of the Company shall have approved the
Issuance as required by Applicable Law.
(l) The obligation of any Holder to consummate the
transactions contemplated hereby shall be conditioned upon the concurrent
consummation of the Issuance and Exchange by the Company and each of the
Apollo/Blackstone Shareholders not breaching its obligation to consummate the
Exchange (in accordance with the terms and subject to the conditions of this
Agreement) and, therefore, simultaneously consummating the Exchange if such
Holder is otherwise willing to consummate the Exchange. (Nothing herein shall
relieve any breaching Apollo/Blackstone Shareholder of liability to the Company
for its breach).
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Indemnification. (a) All representations,
warranties, covenants and agreements (except as to the extent covenants and
agreements are required to be performed after the Closing Date, which shall
survive indefinitely) contained in this Agreement shall survive the Closing for
two years, and except that the representations and warranties contained in
Sections 3.1, 3.2, 3.3, 3.6 and 3.7 shall survive without time limitation (but
subject to statutes of limitation of general application). Notwithstanding the
foregoing, with respect to claims asserted pursuant to this Section 8.1 before
the expiration of the applicable representation, warranty, covenant or
agreement, such claims shall survive until the date they are finally adjudicated
or otherwise resolved.
(b) The Company agrees to indemnify and hold harmless each
Holder, its Affiliates and partners, and the respective officers, directors,
members, employees, advisors and agents of each Holder, its Affiliates and
partners (each an "indemnified person"), from and against (and to reimburse each
indemnified person as
19
the same are incurred) any and all losses (including, but not limited to,
impairment of the value of the Shares), claims, damages, liabilities, costs and
expenses (collectively, "Losses") to which any indemnified person may become
subject or incur based upon, arising out of, or in connection with (A) a breach
of any representation, warranty or covenant of this Agreement or (B) claims by
third parties relating to this Agreement or the Transactions, any claim,
litigation, investigation or proceeding relating to any of the foregoing,
regardless of whether any indemnified person is a party thereto, and to
reimburse each indemnified person upon demand for any reasonable legal or other
reasonable out of pocket expenses incurred in connection with investigating or
defending any of the foregoing, provided that (x) the foregoing indemnity will
not, as to any indemnified person, apply to Losses to the extent they are found
by a final, non-appealable judgment of a court to arise from the willful
misconduct or gross negligence of such indemnified person, and (y) the maximum
amount indemnifable to each Holder (and its successors or assigns) under clause
(A) shall not exceed the purchase price of the Shares purchased by such Holder.
No person shall be liable for any indirect, consequential or punitive damages in
connection with this Agreement or the Transactions.
(c) If a person entitled to indemnity hereunder (an
"Indemnified Party") asserts that any party hereto (the "Indemnifying Party")
has become obligated to the Indemnified Party pursuant to Section 8.1(b), or if
any suit, action, investigation, claim or proceeding is begun, made or
instituted as a result of which the Indemnifying Party may become obligated to
the Indemnified Party hereunder, the Indemnified Party shall notify the
Indemnifying Party promptly and shall cooperate with the Indemnifying Party, at
the Indemnifying Party's expense, to the extent reasonably necessary for the
resolution of such claim or in the defense of such suit, action or proceedings,
including making available any information, documents and things in the
possession of the Indemnified Party which are reasonably necessary thereof.
Notwithstanding the foregoing notice requirement, the right to indemnification
hereunder shall not be affected by any failure to give, or delay in giving,
notice unless, and only to the extent that, the rights and remedies of the
Indemnifying Party shall have been materially prejudiced as a result of such
failure or delay.
(d) In fulfilling its obligations under this Section 8.1,
after the Indemnifying Party has provided each Indemnified Party with a written
notice of its acceptance of liability under this Section 8.1, as between such
Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have
the right to investigate, defend, settle or otherwise handle, with the aforesaid
cooperation, any claim, suit, action or proceeding brought by a third party in
such manner as the Indemnifying Party may in its sole discretion reasonably deem
appropriate; provided that (i) counsel retained by the Indemnifying Party is
reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party
will not consent to any settlement or entry of judgment imposing any obligations
on any other party hereto other than financial obligations for which such party
will be indemnified hereunder, unless such party has consented in writing to
such
20
settlement or judgment (which consent may be given or withheld in its sole
discretion). Notwithstanding the Indemnifying Party's election to assume the
defense or investigation of such claim, action or proceeding, the Indemnified
Party shall have the right to employ separate counsel and to participate in the
defense or investigation of such claim, action or proceeding, which
participation shall be at the expense of the Indemnifying Party, if (i) on the
advice of counsel to the Indemnified Party use of counsel of the Indemnifying
Party's choice could reasonably be expected to give rise to a material conflict
of interest, (ii) the Indemnifying Party shall not have employed counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified
Party within a reasonable time after notice of the assertion of any such claim
or institution of any such action or proceeding, (iii) if the Indemnifying Party
shall authorize the Indemnified Party to employ separate counsel at the
Indemnifying Party's expense or (iv) such action shall seek relief other than
monetary damages against the Indemnified Party.
SECTION 8.2. Notices. All notices, demands, requests,
consents, approvals or other communications (collectively, "Notices") required
or permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or transmission if
personally served or transmitted by telegram, telex or facsimile. Notice
otherwise sent as provided herein shall be deemed given on the next business day
following delivery of such notice to a reputable air courier service.
To the Company:
Allied Waste Industries, Inc.
00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxx
Vice President, Legal
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
To the Holders:
21
To the address specified on the signature page executed by
each such Holder, with a copy (which shall not constitute
notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
SECTION 8.3. Governing Law. This Agreement shall be governed
by, interpreted under, and construed in accordance with the laws of the State of
New York, including, without limitation, Sections 5-1401 and 5-1402 of the New
York General Obligations Law.
SECTION 8.4. Termination. This Agreement may be terminated (i)
at any time prior to the Closing Date by mutual agreement of the Company, Apollo
Management and Blackstone Management, on behalf of all purchasers, or (ii) if
the Closing shall not have occurred on or prior to December 31, 2003, by either
the Company, Apollo Management or Blackstone Management, at any time after
December 31, 2003. In addition, any Holder may terminate this Agreement (as to
itself only) at any time after December 31, 2003. Termination pursuant to the
foregoing sentences notwithstanding, Sections 8.1 and 8.10 hereof shall remain
in effect.
SECTION 8.5. Entire Agreement. This Agreement and the
Supplementary Shareholders Agreement and the Supplementary Registration Rights
Agreement (including all agreements entered into pursuant hereto and thereto and
all certificates and instruments delivered pursuant hereto and thereto)
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede all prior and contemporaneous agreements,
representations, understandings, negotiations and discussions between the
parties, whether oral or written, with respect to the subject matter hereof.
SECTION 8.6. Modifications and Amendments. No amendment,
22
modification or termination of this Agreement shall be binding upon any other
party unless executed in writing by the parties hereto intending to be bound
thereby. It is understood that members of the Company's board of directors
nominated by Apollo and Blackstone will recuse themselves from any consideration
by the Company of any amendment, modification or termination of this Agreement.
SECTION 8.7. Waivers and Extensions. Any party to this
Agreement may waive any right, breach or default which such party has the right
to waive, provided that such waiver will not be effective against the waiving
party unless it is in writing, is signed by such party, and specifically refers
to this Agreement. Waivers may be made in advance or after the right waived has
arisen or the breach or default waived has occurred. Any waiver may be
conditional. It is understood that members of the Company's board of directors
nominated by Apollo and Blackstone will recuse themselves from any consideration
by the Company of any waiver of the terms and conditions of this Agreement. No
waiver of any breach of any agreement or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof nor of any other
agreement or provision herein contained. No waiver or extension of time for
performance of any obligations or acts shall be deemed a waiver or extension of
the time for performance of any other obligations or acts.
SECTION 8.8. Titles and Headings. Titles and headings of
sections of this Agreement are for convenience only and shall not affect the
construction of any provision of this Agreement.
SECTION 8.9. Exhibits and Schedules. Each of the exhibits and
schedules referred to herein and attached hereto is an integral part of this
Agreement and is incorporated herein by reference.
SECTION 8.10. Expenses; Brokers. The Company shall pay or
cause to be paid, whether or not the Closing occurs hereunder, all reasonable
out-of-pocket fees and expenses incurred by the Company and by or on behalf of
the Holders and their Affiliates in connection with the Transactions (including,
without limitation, reasonable fees, charges and disbursements of counsel).
Other than the use of UBS Securities LLC by the Company and Xxxxxxx, Sachs by
the Special Committee, each of the parties represents to the others that neither
it nor any of its Affiliates has used a broker or other intermediary in
connection with the Transactions for whose fees or expenses any other party will
be liable. Each party agrees to indemnify and hold the other parties to this
Agreement harmless from and against any and all claims, liabilities or
obligations with respect to any such fees or expenses asserted by any Person on
the basis of any act or statement alleged to have been made by such party or any
of its Affiliates.
SECTION 8.11. Press Releases and Public Announcements. All
public announcements or disclosures relating to the transactions contemplated
hereby shall be made only if mutually agreed upon by the Company and the
Holders, except to the extent
23
such disclosure is, in the opinion of counsel, required by law or by stock
exchange regulation, provided that (a) any such required disclosure shall only
be made, to the extent consistent with law and stock exchange regulation, after
consultation with Apollo and Blackstone and (b) no such announcement or
disclosure (except as required by law or by stock exchange regulation) shall
identify any Holder without such Holder's prior consent.
SECTION 8.12. Assignment; No Third Party Beneficiaries. This
Agreement and the rights, duties and obligations hereunder may not be assigned
or delegated by the Company without the prior written consent of the Holders,
which may be withheld in their sole discretion and may not be assigned or
delegated by any Holder, without the Company's prior written consent, which
shall not be unconditionally withheld, except that in each case a Holder may
assign its rights hereunder to its Permitted Transferee (as that term is defined
in the Shareholders Agreement) without being itself relieved of its obligations
hereunder on or prior to the Closing. Any assignment or delegation of rights,
duties or obligations hereunder made by the Company without the prior written
consent of the Holders, shall be void and of no effect. This Agreement and the
provisions hereof shall be binding upon and shall inure to the benefit of each
of the parties and their respective successors and permitted assigns. This
Agreement is not intended to confer any rights or benefits on any Persons other
than as expressly set forth in Section 8.1 or this Section 8.12.
SECTION 8.13. Severability. This Agreement shall be deemed
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement or of
any other term or provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall be
added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable provision as may be possible and be valid and
enforceable.
SECTION 8.14. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
SECTION 8.15. Further Assurances. Each party hereto, upon the
request of any other party hereto, shall do all such further acts and execute,
acknowledge and deliver all such further instruments and documents as may be
necessary or desirable to carry out the transactions contemplated by this
Agreement, including, in the case of the Company, such acts, instruments and
documents as may be necessary or desirable to convey and transfer to each Holder
the shares of Common Stock to be acquired by it hereunder.
SECTION 8.16. Remedies Cumulative. The remedies provided
herein shall be cumulative and shall not preclude the assertion by any party
hereto of any other
24
rights or the seeking of any remedies against the other party hereto.
SECTION 8.17. Several Liability of the Holders. Nothing in
this Agreement shall be construed to impose on any Holder any liability for any
action or failure to act of any other Holder.
SECTION 8.18. No Duty to Other Holders. Each Holder confirms
with each other Holder that such Holder has conducted its own due diligence in
connection with its investment in the shares of Common Stock to be issued in the
Issuance and the other Holders may therefore have information different from, or
additional to, the information possessed by such Holder. In addition, although
certain of the other Holders (the "Supplying Holders") may have shared
information received by them (including information contained in third party
reports prepared for such other Holders) with such Holder, no representation or
warranty is being made with respect to such information by any Supplying Holder
or any such third party. Nothing in this Section 8.18 is meant to limit any
duty, obligation or liability the Company may have to any Holder under this
Agreement or otherwise.
SECTION 8.19. Specific Performance. Each party hereto
acknowledges and agrees that the other parties hereto could be irreparably
damaged in the event that its obligations contained in this Agreement are not
performed in accordance with their specific terms or are otherwise breached.
Accordingly, each party hereto agrees that the other parties will be entitled to
an injunction or injunctions to enforce specifically such covenants in any
action in any court having personal and subject matter jurisdiction, in addition
to any other remedy to which each such party may be entitled at law or in
equity.
25
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ALLIED WASTE INDUSTRIES, INC.
/s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
Number of Shares
being exchanged: 284,175
Number of shares of
Common Stock to be received: 31,401,337.5
APOLLO INVESTMENT FUND IV, L. P.
By: Apollo Advisors IV, L.P.
its General Partner
By: Apollo Capital Management IV, Inc.
its General Partner
By: /s/Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notice: c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 15,825
Number of shares of
Common Stock being received: 1,748,662.5
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors IV, L.P.
its Managing Partner
By: Apollo Capital Management IV, Inc.
its General Partner
By: /s/Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notice: c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 89,163
Number of shares of
Common Stock being received: 9,852,511.5
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.
its General Partner
By: Apollo Capital Management II, Inc.
its General Partner
By: /s/Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notice: c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 6,691
Number of shares of
Common Stock being received: 739,355.5
APOLLO OVERSEAS PARTNERS III, L.P.
c/o Apollo Advisors II, L.P.
its Managing Partner
By: Apollo Capital Management II, Inc.
its General Partner
By: /s/Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notice: c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 4,146
Number of shares of
Common Stock being received: 458,133
APOLLO (UK) PARTNERS III, L P.
By: Apollo Advisors II, L.P.
its Managing Partner
By: Apollo Capital Management II, Inc.
its General Partner
By: /s/Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notice: c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 40,000
Number of shares of
Common Stock to be received: 4,420,000
APOLLO/AW, LLC
By: Apollo Management IV, L.P.
its Manager
By: AIF IV Management, Inc.
its General Partner
By: /s/Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notice: c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 277,540.586
Number of shares of
Common Stock to be received: 3,065,334.753
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND L.P.,
By: Blackstone Management Associates III L.L.C.
its General Partner
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name:
Title:
Address for Notice: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 51,459.414
Number of shares of
Common Stock to be received: 5,686,265.247
BLACKSTONE OFFSHORE
CAPITAL PARTNERS III L.P.
By: Blackstone Management Associates III L.L.C.
its General Partner
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name:
Title:
Address for Notice: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 21,000
Number of shares of
Common Stock to be received: 2,320,500
BLACKSTONE FAMILY
INVESTMENT PARTNERSHIP III L.P.,
By: Blackstone Management Associates III L.L.C.
its General Partner
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name:
Title:
Address for Notice: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 89,434
Number of shares of
Common Stock to be received: 9,882,457
GREENWICH STREET CAPITAL PARTNERS II, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Address for Notice: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 3,030
Number of shares of
Common Stock to be received: 334,815
GSCP OFFSHORE FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Address for Notice: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 1,864
Number of shares of
Common Stock to be received: 205,972
GREENWICH FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Address for Notice: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 5,231
Number of shares of
Common Stock to be received: 578,025.5
GREENWICH STREET EMPLOYEES FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Address for Notice: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 441
Number of shares of
Common Stock to be received: 48,730.5
TRV EXECUTIVE FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Address for Notice: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 69,292
Number of shares of
Common Stock to be received: 7,656,766
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 2,760
Number of shares of
Common Stock to be received: 304,980
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 4,051
Number of shares of
Common Stock to be received: 447,635.5
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 1,504
Number of shares of
Common Stock to be received: 166,192
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 1,120
Number of shares of
Common Stock to be received: 123,760
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 219
Number of shares of
Common Stock to be received: 24,199.5
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 133
Number of shares of
Common Stock to be received: 14,696.5
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 3,407
Number of shares of
Common Stock to be received: 376,473.5
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 311
Number of shares of
Common Stock to be received: 34,365.5
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 14,705
Number of shares of
Common Stock to be received: 1,624,902.5
DLJ ESC II L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 9,148
Number of shares of
Common Stock to be received: 1,010,854
DLJMB FUNDING II, INC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 3,000
Number of shares of
Common Stock to be received: 33,150
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
Address for Notice: 0000 Xxxxxxxx Xx
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 100
Number of shares of
Common Stock to be received: 11,050
----------------------------------------
Xxxx Xxxxxxx
Address for Notice: Credit Suisse First Boston
2121 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (310) 712-
Number of Shares
being exchanged: 100
Number of shares of
Common Stock to be received: 11,050
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxx
Address for Notice: Credit Suisse First Boston Private Equity
2121 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Schedule 1
Shares of Shares of
Senior Preferred to be Common Stock
Exchanged to be Received
----------------------- ------------------
Apollo Investment Fund IV, L.P. 284,175.000 31,401,337.5
Apollo Overseas Partners IV, L.P. 15,825.000 1,748,662.5
Apollo Investment Fund III, L.P. 89,163.000 9,852,511.5
Apollo Overseas Partners III, L.P. 6,691.000 739,355.5
Apollo (UK) Partners III, L.P. 4,146.000 458,133
Apollo/AW LLC 40,000.000 4,420,000
Blackstone Capital Partners III Merchant Banking Fund L.P. 277,540.586 30,668,234.753
Blackstone Offshore Capital Partners III L.P. 51,459.414 5,686,265.247
Blackstone Family Investment Partnership III L.P. 21,000.000 2,320,500
Greenwich Street Capital Partners II, L.P. 89,434.000 9,882,457
GSCP Offshore Fund, L.P. 3,030.000 334,815
Greenwich Fund, L.P. 1,864.000 205,972
Greenwich Street Employees Fund, L.P. 5,231.000 578,025.5
TRV Executive Fund, L.P. 441.000 48,730.5
DLJMB Funding II, Inc. 9,148.000 1,010,854
DLJ Merchant Banking Partners II, L.P. 69,292.000 7,656,766
DLJ Merchant Banking Partners II-A, L.P. 2,760.000 304,980
DLJ Diversified Partners, L.P. 4,051.000 447,635.5
DLJ Diversified Partners-A, L.P. 1,504.000 166,192
DLJ Millennium Partners, L.P. 1,120.000 123,760
DLJ Millennium Partners-A, L.P. 219.000 24,199.5
DLJ First ESC L.P. 133.000 14,696.5
DLJ Offshore Partners II, C.V. 3,407.000 376,473.5
DLJ EAB Partners, L.P. 311.000 34,365.5
DLJ ESC II, L.P. 14,705.000 1,624,902.5
Xxxxxxx X. Xxxxxx 3,000.000 33,150
Xxxx Xxxxxxx 100.000 11,050
Xxxxx Xxxxxxxx 100.000 11,050
--------------- ----------------
Totals 1,000,000.000 110,483,425
=============== ================
