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Execution Copy
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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 3
SECTION 2.1. Agreement to Exchange Shares 3
SECTION 2.2. Closing 4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY 4
SECTION 3.1. Organization and Standing 4
SECTION 3.2. Capital Stock 5
SECTION 3.3. Authorization; Enforceability 5
SECTION 3.4. No Violation; Consents 5
SECTION 3.5. Commission Filings; Financial Statements 6
SECTION 3.6. Private Offering 6
SECTION 3.7. Antitakeover Laws 6
SECTION 3.8. Material Adverse Change 6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS 6
SECTION 4.1. Authorization 7
SECTION 4.2. Private Placement 7
SECTION 4.3. Authorization; Enforceability 7
SECTION 4.4. No Violation; Consents 7
SECTION 4.5. No Brokers 8
ARTICLE V COVENANTS OF THE COMPANY 8
SECTION 5.1. Operation of Business 8
SECTION 5.2. Agreement to Take Necessary and
Desirable Actions 8
SECTION 5.3. Compliance with Conditions;
Reasonable Best Efforts 8
SECTION 5.4. HSR Act Notification 8
SECTION 5.5. Consents and Approvals 9
SECTION 5.6. Stockholder Vote 9
SECTION 5.7. Listing of Shares 9
SECTION 5.8. Tax Treatment of Shares 9
SECTION 5.9. Periodic Information 10
SECTION 5.10. Legends 10
ARTICLE VI COVENANTS OF THE PURCHASERS 11
SECTION 6.1. Agreement to Take Necessary and
Desirable Actions 11
SECTION 6.2. Compliance with Conditions;
Reasonable Best Efforts 11
SECTION 6.3. HSR Act Notification 11
SECTION 6.4. Shareholder Vote 11
SECTION 6.5. Consents and Approvals 11
ARTICLE VII CONDITIONS PRECEDENT TO CLOSING 11
SECTION 7.1. Conditions to the Company's Obligations 11
SECTION 7.2. Conditions to Holders' Obligations 12
ARTICLE VIII MISCELLANEOUS 13
SECTION 8.1. Indemnification 13
SECTION 8.2. Notices 14
SECTION 8.3. Governing Law 16
SECTION 8.4. Termination 16
SECTION 8.5. Entire Agreement 16
SECTION 8.6. Modifications and Amendments 16
SECTION 8.7. Waivers and Extensions 16
SECTION 8.8. Titles and Headings 16
SECTION 8.9. Exhibits and Schedules 16
SECTION 8.10. Expenses; Brokers 16
SECTION 8.11. Press Releases and Public Announcements 16
SECTION 8.12. Assignment; No Third Party Beneficiaries 17
SECTION 8.13. Severability 17
SECTION 8.14. Counterparts 17
SECTION 8.15. Further Assurances 17
SECTION 8.16. Remedies Cumulative 17
SECTION 8.17. Several Liability of the Holders 17
SECTION 8.18. No Duty to Other Holders 17
SECTION 8.19. Specific Performance 17
SCHEDULES
Schedule 1 List of the Holders
EXHIBITS
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
Exhibit D Form of Secretary's Certificate
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.
DEFINITIONS
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.
"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.
"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 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.
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
EXCHANGE
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 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.
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: Each Holder shall deliver:
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;
an executed copy of the Supplementary Registration Rights Agreement;
and
an executed copy of the Supplementary Shareholders Agreement.
The Company shall deliver to each Holder:
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.
an opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel to the
Company, dated the Closing Date in the form of Exhibit C;
an officer's certificate of the Company as contemplated by Section
7.2(f);
a certificate of the secretary of the Company substantially in the
form attached hereto as Exhibit D:
a long-form good standing certificate of the Company, issued by the
Secretary of State of the State of Delaware;
an executed copy of the Supplementary Registration Rights Agreement;
and
an executed copy of the Supplementary Shareholders Agreement.
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:
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.
Capital Stock. 1. 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 & 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.
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.
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.
No Violation; Consents. 1.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 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.
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.
Commission Filings; Financial Statements. 1.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.
Each of the historical financial statements of the Company (including
any related notes or schedules) included in the Commission Filings was 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).
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.
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").
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.
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:
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.
Private Placement. 1. 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.
Such Holder is an "accredited investor" as such term is defined in
Rule 501(a) of Regulation D under the Securities Act.
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.
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.
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.
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.
No Violation; Consents. 1. The execution, delivery and performance by
such Holder of this Agreement and the Supplementary Shareholders 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.
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.
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.
COVENANTS OF THE COMPANY
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:
operate its business in all material respects in compliance with
Applicable Laws;
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
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.
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.
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.
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 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.
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).
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.
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.
Tax Treatment of Shares. 1.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, 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.
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.
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 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.
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.
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 AGREEMENT IS ON FILE AT THE OFFICE OF THE CORPORATE
SECRETARY OF ALLIED."
COVENANTS OF THE PURCHASERS
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.
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.
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.
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.
Consents and Approvals. Each Holder (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 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).
CONDITIONS PRECEDENT TO CLOSING
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:
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.
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.
Any applicable waiting period under the HSR Act shall have expired or
been terminated.
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.
The stockholders of the Company shall have approved the Issuance as
required by Applicable Law.
The Holders shall have entered into each of the Supplementary
Registration Rights Agreement and the Supplementary Shareholders Agreement. The
Holders shall have delivered certificates representing their Shares to the
Company.
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.
The concurrent consummation of the Exchange by the Apollo/Blackstone
Shareholders (as defined in the Shareholders Agreement).
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:
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.
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.
The Company shall have entered into each of the Supplementary
Registration Rights Agreement and the Supplementary Shareholders Agreement.
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.
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.
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.
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.
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.
The Holders shall have received certificates representing the shares
of Common Stock to be issued in the Issuance.
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.
The stockholders of the Company shall have approved the Issuance as
required by Applicable Law.
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).
MISCELLANEOUS
Indemnification. 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.
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 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.
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.
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
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.
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:
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
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.
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.
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.
Modifications and Amendments. No amendment, 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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
Remedies Cumulative. The remedies provided herein shall be cumulative
and shall not preclude the assertion by any party hereto of any other rights or
the seeking of any remedies against the other party hereto.
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.
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.
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ALLIED WASTE INDUSTRIES, INC.
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:
------------------------
Name:
Title:
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:
------------------------------
Name:
Title:
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:
------------------------------
Name:
Title:
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/oApollo Advisors II, L.P.
its Managing Partner
By: Apollo Capital Management II, Inc.
its General Partner
By:
------------------------------
Name:
Title:
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:
------------------------------
Name:
Title:
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:
------------------------------
Name:
Title:
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:
-----------------------
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:
---------------------
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:
---------------------
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:
-------------------------
Name:
Title:
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:
-------------------------
Name:
Title:
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:
--------------------
Name:
Title:
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:
---------------------
Name:
Title:
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:
-----------------------
Name:
Title:
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:
------------------
Name:
Title:
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:
------------------
Name:
Title:
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:
-----------------
Name:
Title:
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:
-----------------
Name:
Title:
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:
-----------------
Name:
Title:
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:
-----------------
Name:
Title:
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:
-----------------
Name:
Title:
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:
-----------------
Name:
Title:
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:
-----------------
Name:
Title:
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:
-----------------
Name:
Title:
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:
-----------------
Name:
Title:
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: 331,500
--------------------
Xxxxxxx X. Xxxxxx
Address for Notice:
Telephone: (212)
Telecopy:
Number of Shares
being exchanged: 100
Number of shares of
Common Stock to be received: 11,050
By:
---------------------
Name: 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: 150
Number of shares of
Common Stock to be received: 16,575
--------------------
Xxxxxxx Xxxxx
Address for Notice:
Telephone: (212)
Telecopy:
Number of Shares
being exchanged: 100
Number of shares of
Common Stock to be received: 11,050
--------------------
Xxxxx Xxxxxxxx
Address for Notice: Credit Suisse First Boston
2121 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (310) 712-
Schedule 1
Shares of Shares of
Senior Preferred to Common Stock
be 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 3,000.000 331,500
Xxxx Xxxxxxx 100.000 11,050
Xxxxxxx Xxxxx 150.000 16,575
Xxxxx Xxxxxxxx 100.000 11,050
--------------- --------------
Totals 1,000,000.000 110,500,000
Exhibit A
Supplementary Registration Rights Agreement
Execution Copy
SUPPLEMENTARY REGISTRATION RIGHTS AGREEMENT
Supplementary Registration Rights Agreement, dated as of July 31, 2003
(this "Agreement"), by and among Allied Waste Industries, Inc., a Delaware
corporation (the "Company") and each of the other parties signatory hereto.
Reference is made to the Amended and Restated Registration Rights
Agreement (the "Registration Rights Agreement"), dated as of July 30, 1999, by
and between the Company, on the one hand, and Apollo Investment Fund IV, L.P., a
Delaware limited partnership, Apollo Investment Fund III, L.P., a Delaware
limited partnership, Apollo Overseas Partners IV, L.P., a Delaware limited
partnership, Apollo Overseas Partners III, L.P., a Delaware limited partnership,
Apollo (U.K.) Partners III, L.P., an English limited partnership, Apollo/AW LLC,
a Delaware limited liability company, Blackstone Capital Partners II Merchant
Banking Fund L.P., a Delaware limited partnership, Blackstone Capital Partners
III Merchant Banking Fund L.P., a Delaware limited partnership, Blackstone
Offshore Capital Partners III L.P., a Cayman Islands limited partnership,
Blackstone Offshore Capital Partners II L.P., a Cayman Islands limited
partnership, Blackstone Family Investment Partnership III L.P., a Delaware
limited partnership and Blackstone Family Investment Partnership II L.P., a
Delaware limited partnership, Blackstone Capital Partners III Merchant Banking
Fund L.P., a Delaware limited partnership, Greenwich Street Capital Partners II,
L.P., a Delaware limited partnership, GSCP Offshore Fund, L.P., a Cayman Islands
exempted limited partnership, Greenwich Fund, L.P., a Delaware limited
partnership, Greenwich Street Employees Fund, L.P., a Delaware limited
partnership, TRV Executive Fund, L.P., a Delaware limited partnership, DLJMB
Funding II, Inc., a Delaware corporation, DLJ Merchant Banking Partners II,
L.P., a Delaware limited partnership, DLJ Merchant Banking Partners II-A, L.P.,
a Delaware limited partnership, DLJ Diversified Partners, L.P., a Delaware
limited partnership, DLJ Diversified Partners-A, L.P., a Delaware limited
partnership, DLJ Millenium Partners, L.P., a Delaware limited partnership, DLJ
Millenium Partners-A, L.P., a Delaware limited partnership, DLJ First ESC L.P.,
a Delaware limited partnership, DLJ Offshore Partners II, C.V., a Netherlands
Antilles limited partnership, DLJ EAB Partners, L.P., a Delaware limited
partnership and DLJ ESC II, L.P., a Delaware limited partnership (collectively,
the "Shareholders") on the other hand. (Capitalized terms not defined herein
shall have the meanings set forth in the Registration Rights Agreement.)
WHEREAS, the Company and the Shareholders have entered into an
Exchange Agreement, dated as of July 31, 2003 (the "Exchange Agreement"),
pursuant to which the Shareholders will exchange their shares of Senior
Preferred Stock for shares of Common Stock, par value $.01(the "Common Stock"),
of the Company.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
The Company agrees that all shares of Common Stock issued by the
Company in exchange for the Senior Preferred Stock pursuant to the Exchange
Agreement shall be treated, to the fullest extent permitted by the Registration
Rights Agreement, as "Registrable Securities" and "Additional Shares" under the
Registration Rights Agreement and, to the fullest extent permitted by the
Registration Rights Agreement, shall have the same rights as Registrable
Securities and Additional Shares in connection with any registration effected
pursuant to the Registration Rights Agreement. For the avoidance of doubt, when
used in this Agreement, the term "Registrable Securities" shall include all
shares of Common Stock issued by the Company pursuant to the Exchange Agreement.
(Nothing in this paragraph shall affect the relative rights of Registrable
Securities and other securities to participate in any registration pursuant to
the Registration Rights Agreement if all such securities cannot be registered.)
In addition to the other rights under the Registration Rights
Agreement of the Shareholders who are party to this Agreement, at any time after
the first anniversary of the acquisition of shares of Common Stock pursuant to
the Exchange Agreement, upon the written request of the Apollo/Blackstone
Shareholders (as defined in the Shareholders Agreement and the Supplementary
Shareholders Agreement, the form of which is attached as Exhibit B to the
Exchange Agreement), the Company shall prepare and file or cause to be prepared
and filed with the SEC as promptly as reasonably practicable a registration
statement for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 of the Securities Act (a
"Shelf Registration Statement") registering the resale from time to
time by the Shareholders and the Related Transferees (as defined in the
Shareholders Agreement) thereof of all of the Registrable Securities (the "Shelf
Registration Statement"). The Shelf Registration Statement shall be on Form S-3,
or another appropriate form permitting registration of such Registrable
Securities for resale by such Shareholders or the Related Transferees thereof in
accordance with the methods of distribution reasonably elected by the
Shareholders or Related Transferees thereof and set forth in the Shelf
Registration Statement. The Apollo/Blackstone Shareholders shall be entitled to
only one request for a Shelf Registration Statement pursuant to this Section.
The Company shall use reasonable efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act and to
keep the Shelf Registration Statement continuously effective under the
Securities Act for a period of four years following its being declared effective
(the "Effectiveness Termination Date"); provided, however, that such
Effectiveness Termination Date shall be increased by the number of days that the
Shelf Registration Statement is delayed or suspended pursuant to this Section 2.
In connection with any sales pursuant to the Shelf Registration
Statement, reasonable efforts shall be made not to knowingly sell to any single
buyer, acting individually or with others, who, after taking account of the
sales, will own more than 9% of the Total Voting Power (as defined in the
Shareholders Agreement).
The Company may delay the filing of the Shelf Registration Statement,
and any amendments or supplements thereto, or delay its effectiveness, for a
reasonable period (but not longer than 90 days) if, in the sole judgment of the
Company's Board of Directors, (i) delay is necessary in light of pending
financing transactions, corporate reorganizations, or other major events
involving the Company, or (ii) filing at the time requested would materially and
adversely affect the business or prospects of the Company in view of disclosure
that may be thereby required. Once the cause of the delay is eliminated, the
Company shall promptly notify the Shareholders and, promptly after Shareholders
notify the Company to proceed, the Company shall file a Shelf Registration
Statement or any amendments or supplements thereto and begin or resume
performance of its other obligations under this Agreement and the Registration
Rights Agreement.
Subject to the provisions of this Section 2, the Company shall have
the right at any time to require that the Shareholders suspend further open
market offers and sales of the Registrable Shares whenever, and for so long as,
in the reasonable judgment of the Company based upon the advice of legal
counsel, there is in existence material undisclosed information or events with
respect to the Company the disclosure of which would materially and adversely
affect the business or prospects of the Company or suspension is necessary in
light of pending financing transactions, corporate reorganizations, or other
major events involving the Company (the "Suspension Right"). In the event the
Company exercises the Suspension Right, such suspension will continue for the
period of time (the "Suspension Period") reasonably necessary for the disclosure
to occur at a time that is not materially detrimental to the Company and its
stockholders or until such time as the information or event is no longer
material, each as determined in good faith by the Company based upon the advice
of legal counsel, or for the transactions or other major events to be completed
or terminated. The period during which the availability of the Shelf
Registration Statement and any prospectus is suspended shall, without the
Company incurring any obligation to pay liquidated damages, not, in the
aggregate exceed 120 days in any twelve (12) month period. The Company will
reasonably promptly give the Shareholders notice of any such suspension and
will, as promptly as reasonably practicable after the Suspension Period
terminates, allow the resumption of the use of the Shelf Registration Statement
and, if required to reflect such material corporate development or major event,
prepare a supplement or amendment to the Shelf Registration Statement .
In the event that the Shareholders should elect to make an
underwritten offering or distribution of the Registrable Shares after the Shelf
Registration Statement has been declared effective, the number of requests for
registration permitted under Section 2.2 of the Registration Rights Agreement
shall be reduced by one (1) for each such underwritten offering.
If there has been filed an amendment to the Shelf Registration
Statement relating to an underwritten offering then either Apollo or Blackstone
may require the Company to delay the filing of any registration statement
relating to shares of Common Stock or delay its effectiveness, for a reasonable
period (but not longer than 90 days) if, in the sole judgment of either Apollo
Blackstone, a delay is necessary in order to avoid materially and adversely
affecting the disposition of Registrable Securities pursuant to the offering by
the Shareholders; provided that the foregoing shall not limit the Company's
right to file and have declared effective registration statements relating to
shares of Common Stock issuable pursuant to employee benefit plans of the
Company or any of its subsidiaries or issuable pursuant to a merger, acquisition
or similar transaction involving the Company or any of its subsidiaries. The
provisions of Section 2.4(a)(i),(ii), and (iii), 2.4(b), 2.4 (c), 2.4(d),
2.4(e), 2.4(f), 2.4(g), 2.4(h), 2.4(i), 2.4(j), Article III and Sections 4.1,
4.2, 4.3, and 4.4 of the Registration Rights Agreement shall apply to the
registration pursuant to this Section as if incorporated herein.
The Shareholders agree that this Agreement shall not give rise to any
additional registration rights (or modifications of existing rights) under
Section 4.5 of the Registration Rights Agreement.
All other terms of the Registration Rights Agreement shall remain in
full force and effect.
Accepted and Agreed to this _____ day of _________, 2003.
ALLIED WASTE INDUSTRIES, INC.
By: ____________________________
Name:
Title:
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: ____________________________
Name:
Title:
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: ____________________________
Name:
Title:
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: ____________________________
Name:
Title:
APOLLO OVERSEAS PARTNERS III, L.P.
c/oApollo Advisors II, L.P.
its Managing Partner
By: Apollo Capital Management II, Inc.
its General Partner
By: ____________________________
Name:
Title:
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: ____________________________
Name:
Title:
APOLLO/AW, LLC
By: Apollo Management IV, L.P.
its Manager
By: AIF IV Management, Inc.
its General Partner
By: ____________________________
Name:
Title:
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND L.P.,
By: Blackstone Management Associates III L.L.C.
its General Partner
By: ____________________________
Name:
Title:
BLACKSTONE OFFSHORE
CAPITAL PARTNERS III L.P.
By: Blackstone Management Associates III L.L.C.
its General Partner
By: ____________________________
Name:
Title:
BLACKSTONE FAMILY
INVESTMENT PARTNERSHIP III L.P.,
By: Blackstone Management Associates III L.L.C.
its General Partner
By: ____________________________
Name:
Title:
GREENWICH STREET CAPITAL PARTNERS II, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
GSCP OFFSHORE FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
GREENWICH FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
GREENWICH STREET EMPLOYEES FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
TRV EXECUTIVE FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: ____________________________
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: ____________________________
Name:
Title:
DLJ ESC II L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: ____________________________
Name:
Title:
DLJMB FUNDING II, INC.
By: ____________________________
Name:
Title:
_________________________________
Xxxxxxx X. Xxxxxx
_________________________________
Xxxx Xxxxxxx
_________________________________
Xxxxxxx Xxxxx
_________________________________
Xxxxx Xxxxxxxx
Exhibit B
Supplementary Shareholders Agreement
Execution Copy
Supplementary Shareholders Agreement
Supplementary Shareholders Agreement, dated as of July 31, 2003 (this
"Agreement") by and among Allied Waste Industries, Inc., a Delaware corporation
(the "Company"), and the other parties signatory hereto.
Reference is made to the Second Amended and Restated Shareholders
Agreement, dated as of July 30, 1999 (the "Shareholders Agreement"), by and
between the Company and certain holders (the "Shareholders") of the Common
Stock, par value $.01 per share (the "Common Stock") and Series A Senior
Convertible Preferred Stock, par value $.10 per share (the "Senior Preferred
Stock"), of the Company. (Capitalized terms not defined herein shall have the
meanings set forth in the Shareholders Agreement.)
WHEREAS, the Company and the Shareholders have entered into an
Exchange Agreement, dated as of July 31, 2003 (the "Exchange Agreement"),
pursuant to which the Shareholders will exchange their shares of Senior
Preferred Stock for shares of Common Stock.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
For purposes of determining the rights, restrictions and obligations of the
Shareholders receiving Common Stock pursuant to the Exchange Agreement under the
Shareholders Agreement, the parties hereto agree that (i) any and all shares of
Common Stock acquired by the Shareholders pursuant to the Exchange Agreement
shall be included in determining the Beneficial Ownership of Voting Securities
of the Shareholders and (ii) such shares of Common Stock shall be Voting
Securities subject to the Shareholders Agreement (whether or not such shares
would otherwise be subject to the Shareholders Agreement and whether or not the
Shareholders would otherwise have such rights and obligations or be subject to
such restrictions without this provision). In addition, the parties hereto agree
that they shall determine the rights and obligations of the Shareholders under
the Shareholders Agreement as if Section 1.3(c) of the Shareholders Agreement
had been amended by (x) deleting "to the extent such shares may be deemed to be
beneficially owned," in clause (ii) thereof and (y) inserting at the end thereof
the following: "and (iii) the shares of Common Stock which are the subject of
the Exchange Agreement, dated as of July 31, 2003, among the Company and the
Shareholders."
For purposes of determining the rights and obligations of the Shareholders under
the Shareholders Agreement, the parties hereto agree that they shall treat the
Shareholders Agreement as if it provides that the definition of
"Apollo/Blackstone Shares" for all purposes includes the TPG Group Block, the
Xxxxxxx Group Block and all 87,295,000 shares of Common Stock issued by the
Company to the Apollo/Blackstone Shareholders in exchange for the 790,000 shares
of Senior Preferred Stock currently held by the Apollo/Blackstone Shareholders
and no longer refers to any share of Senior Preferred or Common Stock or Junior
Preferred Stock issued upon the conversion of such shares of Senior Preferred
Stock. Accordingly, for example, the parties hereto agree that for purposes of
determining the duration of the Shareholder Designee Period and the number of
Shareholder Designees to be included in the slate of nominees recommended for
election to the Board of Directors at each annual meeting of shareholders of the
Company pursuant to Section 3.1 of the Shareholders Agreement, the calculations
involving the Apollo/Blackstone Shares required by that Section shall be based
upon the TPG Group Block, the Xxxxxxx Block and the shares of Common Stock
issued to the Apollo/Blackstone Shareholders pursuant to the Exchange Agreement.
The Company hereby consents to the acquisition of any and all shares of Common
Stock by the Shareholders pursuant to the Exchange Agreement and agrees that the
acquisition of such shares is in compliance with the terms of the Shareholders
Agreement so that no Shareholder shall become an "Acquiring Person" under the
Rights Agreement dated as of May 25, 2000 between the Company and American Stock
Transfer & Trust Company as a result of the consummation of the transactions
contemplated by the Exchange Agreement.
Notwithstanding anything in the Shareholders Agreement or Registration Rights
Agreement to the contrary, no Dispositions of any nature of the shares of Common
Stock acquired pursuant to the
Exchange Agreement may be made prior to the first anniversary of the acquisition
of shares of Common Stock pursuant to the Exchange Agreement except pursuant to
Sections 4.1(e) and 4.1(f) of the Shareholders Agreement. For the avoidance of
doubt, nothing in this Section shall impose limitation on Dispositions of the
TPG Group Block or the Xxxxxxx Block.
All references to the Shareholders Agreement and the Registration Rights
Agreement shall refer to such agreements, as amended.
All other terms of the Shareholders Agreement shall remain in full force and
effect.
Accepted and Agreed to this 31st day of July, 2003.
ALLIED WASTE INDUSTRIES, INC.
_________________________________
Name: Xxxxxx X. Xxxx
Title: Vice President
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: ____________________________
Name:
Title:
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: ____________________________
Name:
Title:
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: ____________________________
Name:
Title:
APOLLO OVERSEAS PARTNERS III, L.P.
c/oApollo Advisors II, L.P.
its Managing Partner
By: Apollo Capital Management II, Inc.
its General Partner
By: ____________________________
Name:
Title:
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: ____________________________
Name:
Title:
APOLLO/AW, LLC
By: Apollo Management IV, L.P.
its Manager
By: AIF IV Management, Inc.
its General Partner
By: ____________________________
Name:
Title:
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND L.P.,
By: Blackstone Management Associates III L.L.C.
its General Partner
By: ____________________________
Name:
Title:
BLACKSTONE OFFSHORE
CAPITAL PARTNERS III L.P.
By: Blackstone Management Associates III L.L.C.
its General Partner
By: ____________________________
Name:
Title:
BLACKSTONE FAMILY
INVESTMENT PARTNERSHIP III L.P.,
By: Blackstone Management Associates III L.L.C.
its General Partner
By: ____________________________
Name:
Title:
GREENWICH STREET CAPITAL PARTNERS II, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
GSCP OFFSHORE FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
GREENWICH FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
GREENWICH STREET EMPLOYEES FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
TRV EXECUTIVE FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: ____________________________
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: ____________________________
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: ____________________________
Name:
Title:
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: ____________________________
Name:
Title:
DLJ ESC II L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: ____________________________
Name:
Title:
DLJMB FUNDING II, INC.
By: ____________________________
Name:
Title:
_________________________________
Xxxxxxx X. Xxxxxx
_________________________________
Xxxx Xxxxxxx
_________________________________
Xxxxxxx Xxxxx
_________________________________
Xxxxx Xxxxxxxx
Exhibit C
Xxxxx Xxxxx Opinion
Exhibit D
Secretary's Certificate
--Exhibit A - Certified Charter
--Exhibit B - Bylaws
--Exhibit C - Resolutions
--Exhibit D - Specimen Common Stock Certificate
