EXHIBIT 99.8
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of April 21, 1997 (this
"AGREEMENT"), by and between Allied Waste Industries, Inc., a Delaware
corporation (the "COMPANY"), on the one hand, and Apollo Investment Fund III,
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, Blackstone Capital Partners II Merchant Banking Fund L.P.,
a Delaware limited partnership ("BCP"), Blackstone Offshore Capital Partners II
L.P., a Cayman Islands limited partnership, and Blackstone Family Investment
Partnership II L.P., a Delaware limited partnership (collectively,
"SHAREHOLDERS"), on the other hand.
W I T N E S S E T H:
WHEREAS, (i) prior to the date hereof, Shareholders have entered into an
agreement to purchase an aggregate of 11,776,765 shares (the "TPG GROUP BLOCK")
of the Company's common stock, par value $.01 per share (the "COMMON STOCK"),
from TPG Partners, L.P., a Delaware limited partnership, and TPG Parallel I,
L.P., a Delaware limited partnership and (ii) concurrently herewith,
Shareholders are entering into an agreement to purchase an aggregate of
14,600,000 shares (the "XXXXXXX BLOCK" and, together with the TPG Group Block,
the "SHARES") of Common Stock from Xxxxxxx, Inc., a Canadian corporation;
WHEREAS, concurrently herewith, Company and Shareholders are entering into
an Amended and Restated Shareholders Agreement (the "SHAREHOLDERS AGREEMENT")
granting Shareholders certain rights to designate directors and setting forth
certain restrictions on the acquisition and distribution of securities of the
Company by Shareholders and the conduct of Shareholders with respect to the
Company; and
WHEREAS, as part of establishing the relationship between Shareholders and
the Company, Shareholders and the Company have agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
Definitions
1.1. CERTAIN DEFINITIONS. In this Agreement:
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated under such Act.
"REGISTRABLE SECURITIES" means the Shares and any additional shares of
Common Stock acquired by Shareholders in compliance with the Shareholders
Agreement, and any shares of Common Stock issued in connection with any stock
dividend on, or any stock split, reclassification or reorganization of Shares or
such additional shares of Common Stock.
"SEC" means the United States Securities and Exchange Commission or any
successor agency.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated under such Act.
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ARTICLE II
REGISTRATION RIGHTS
2.1. INCIDENTAL RIGHTS. If at any time or from time to time after two
years following the date of the closing of the purchase of the Xxxxxxx Block,
Company proposes to file with the SEC a registration statement (whether on Form
X-0, X-0, or S-3, or any equivalent form then in effect) for the registration
under the Securities Act of any shares of Common Stock for sale, for cash
consideration, to the public by Company or on behalf of one or more shareholders
of Company (excluding any sale of securities convertible into or exercisable for
Common Stock, and any shares of Common Stock issuable by Company upon the
exercise of employee stock options, or to any employee stock ownership plan, or
in connection with any acquisition made by Company, any securities exchange
offer, dividend reinvestment plan, employee benefit plan, corporate
reorganization, or in connection with any amalgamation, merger or consolidation
of Company or any direct or indirect subsidiary of Company with one or more
other corporations if Company is the surviving corporation), Company shall give
Shareholders at least 20 days' prior written notice of the proposed filing (or
if 20 days' notice is not practicable, a reasonable shorter period to be not
less than 7 days), which notice shall outline the nature of the proposed
distribution and the jurisdictions in the United States in which Company
proposes to qualify and offer such securities (the "ELECTED JURISDICTIONS"). On
the written request of Shareholders received by Company within 15 days after the
date of Company's delivery to Shareholders of the notice of intended
registration (which request shall specify the Registrable Securities sought to
be disposed of by Shareholders and the intended method or methods by which
dispositions are intended to be made), Company shall, under the terms and
subject to the conditions of this ARTICLE II, at its own expense as provided in
SECTION 4.1, include in the coverage of such registration statement (or in a
separate registration statement concurrently filed) and
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qualify for sale under the blue sky or securities laws of the various states in
the Elected Jurisdictions the number of Registrable Securities (the "SPECIFIED
SECURITIES") held by Shareholders and which Shareholders have so requested to be
registered or qualified for distribution, to the extent requisite to permit the
distribution (in accordance with the intended method or methods thereof as
aforesaid) in the Elected Jurisdictions requested by Shareholders of such
Registrable Securities.
If the distribution proposed to be effected by Company involves an
underwritten offering of the securities being so distributed by or through one
or more underwriters, and if the managing underwriter of such underwritten
offering indicates in writing its reasonable belief that including all or part
of the Specified Securities in the coverage of such registration statement or in
the distribution to be effected by such prospectus will materially and adversely
affect the sale of securities proposed to be sold (which statement of the
managing underwriter shall also state the maximum number of shares, if any,
which can be sold by Shareholders requesting registration under this SECTION 2.1
without materially adversely affecting the sale of the shares proposed to be
sold), then the number of Specified Securities which Shareholders shall have the
right to include in such registration statement shall be reduced to the maximum
number of shares specified by the managing underwriter. In all cases, priority
shall be afforded to securities covered by a registration statement filed in
response to the exercise of a demand registration right by another holder of
Common Stock and no securities proposed to be sold by such other holder shall be
so reduced until all securities proposed to be sold by all other parties have
been entirely eliminated. As to all other proposed selling shareholders of
Common Stock, including Shareholders, any such reduction in the number of shares
of Common Stock proposed to be sold by the selling shareholders shall be
effected on a pro rata basis in accordance with the relationship which the
number of shares of Common
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Stock proposed to be sold by each selling shareholder bears to the number of
shares of Common Stock proposed to be sold by all selling shareholders.
Company shall have the sole right to select any underwriters, including the
managing underwriter, of any public offering of shares of Common Stock subject
to this SECTION 2.1. Nothing in this SECTION 2.1 shall create any liability on
the part of Company to Shareholders if Company for any reason decides not to
file or to delay or withdraw a registration statement (which Company may do in
its sole discretion).
Shareholders may request to have Common Stock included in an unlimited
number of registrations under this SECTION 2.1.
2.2. DEMAND RIGHTS. Upon written request of Shareholders made at any time
after two years following the date of the closing of the purchase of the Xxxxxxx
Block, Company shall, under the terms and subject to the conditions set forth in
this SECTION 2.2, and SECTIONS 2.3 and 2.4, file (and use its reasonable efforts
to cause to become effective) a registration statement covering, and use its
reasonable efforts to qualify for sale under the blue sky or securities laws of
the various states of the United States as may be requested by Shareholders
(except any such state in which, in the opinion of the managing underwriter of
the offering, the failure to so qualify would not materially and adversely
affect the proposed offering), in accordance with the intended method or methods
of disposition set forth in that notice, of such number of Registrable
Securities, as may be designated by Shareholders in their request, or that
portion thereof designated in said request for registration in each of the
Designated Jurisdictions (as defined below). A request for registration under
this SECTION 2.2 shall specify the number of shares to be registered, the
jurisdictions in the United States in which such registration is to be effected
(the "DESIGNATED JURISDICTIONS") and the proposed manner of sale, including the
name and address of any proposed underwriter; PROVIDED, that all offerings
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contemplated by a request for registration under this SECTION 2.2 shall be
underwritten offerings involving a distribution of Registrable Shares to the
public in which reasonable efforts are made not to knowingly sell to any single
buyer, acting individually or with others, who after such underwriting will own
more than 9% of the Total Voting Power (as defined in the Shareholders
Agreement) (any such buyer, "SIGNIFICANT STOCKHOLDER"), under circumstances in
which it would reasonably be expected to not result in any person becoming
Significant Stockholder. The principal underwriter or underwriters for any such
offering shall be selected by Shareholders, subject to Company's approval, which
may not be unreasonably withheld. Notwithstanding any other provision in this
Section, Shareholders shall not be permitted to make a demand for registration
pursuant to this Section unless the number of Registrable Securities covered by
such demand is at least five million shares (as such number may be appropriately
adjusted to reflect stock splits, reverse stock splits, dividends and any other
recapitalization or reorganization of Company).
If the distribution proposed to be effected pursuant to this SECTION 2.2
involves an underwritten offering of Registrable Securities and securities of
the Company other than Registrable Securities ("OTHER SECURITIES"), and if the
managing underwriter of such underwritten offering indicates in writing its
reasonable belief that including all or part of such securities in the coverage
of such registration statement will materially and adversely affect the sale of
the securities proposed to be sold, then the number of securities proposed to be
sold shall be reduced to the maximum number of securities specified by the
managing underwriter. In such a case, priority shall be afforded to Registrable
Securities, and such Other Securities shall be completely eliminated before the
number of Registrable Securities is reduced.
Company may delay the filing of any registration statement requested under
this SECTION 2.2, or delay its effectiveness, for a reasonable period (but not
longer than 90
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days) if, in the sole judgment of Company's Board of Directors, (i) a delay is
necessary in light of pending financing transactions, corporate reorganizations,
or other major events involving Company, or (ii) filing at the time requested
would materially and adversely affect the business or prospects of Company in
view of disclosures that may be thereby required. Once the cause of the delay
is eliminated, Company shall promptly notify Shareholders and, promptly after
Shareholders notify Company to proceed, Company shall file a registration
statement and begin performance of its other obligations under this SECTION 2.2.
Shareholders shall be entitled to request not more than three registrations
under this SECTION 2.2 (provided that the filing of a registration statement in
more than one Designated Jurisdiction in connection with a concurrent or
substantially concurrent distribution shall be deemed for the purposes of this
Agreement to be a single registration). However, if Shareholders request a
registration under this SECTION 2.2, but no registration statement becomes
effective with respect to the Registrable Securities covered by such request,
then such request shall not count as a request for purposes of determining the
number of requests for registration Shareholders may make under this
SECTION 2.2.
If there is an effective registration statement requested by the
Shareholders pursuant to this Section 2.2, the Shareholders 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 the Shareholders, a delay is necessary
in order to avoid materially and adversely affecting the disposition of Shares
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
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merger, acquisition or similar transaction involving the Company or any of its
subsidiaries.
2.3. REGISTRATION CONDITIONS. Notwithstanding any other provision of this
Agreement, Company shall not be required to effect a registration of any
securities under this ARTICLE II, or file any post-effective amendment to such a
registration statement relating to such a qualification:
(a) unless Shareholders agree to (x) sell and distribute a portion or
all of their Registrable Securities in accordance with the plan or plans of
distribution adopted by and through underwriters, if any, acting for
Company or any such other sellers of Common Stock, and (y) bear a pro rata
share of underwriter's discounts and commissions;
(b) if a registration requested under SECTION 2.2, or any post-
effective amendment to the registration statement filed in connection therewith,
requires, under applicable statutes and rules, a special audit (other than a
normal fiscal year-end audit) of any financial statements, unless Shareholders
agree to pay their proportionate share (determined by the number of shares to be
sold by Shareholders in the offering in proportion to the total number of shares
to be sold by Company and all other participants in such offering) of the
reasonable fees and expenses of accountants incurred in connection with the
special audit and which would otherwise not be incurred; PROVIDED that
Shareholders shall not be required to pay any share of such fees and expenses if
such audit would otherwise be required at substantially the same time to satisfy
the Company's reporting requirements under the Exchange Act absent such
registration;
(c) if, in the case of a request for registration under SECTION 2.2,
(x) any offering pursuant to a registration statement covering securities
regarding
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which Shareholders could have exercised registration rights under SECTION
2.1 of this Agreement has been completed within the prior 90 days, (y) a
registration statement requested by Shareholders pursuant to SECTION 2.2
has become effective under the Securities Act within the prior twelve
months, or (z) Company has given notice under SECTION 2.1 of its intention
to file a registration statement under the Securities Act and has not
completed or abandoned the proposed offering; and
(d) unless Company has received from Shareholders all information
Company has reasonably requested concerning Shareholders and their method
of distribution of Registrable Securities, so as to enable Company to
include in the registration statement all facts required to be disclosed in
it.
2.4. COVENANTS AND PROCEDURES. If Company becomes obligated under this
ARTICLE II to effect a registration of Registrable Securities on behalf of
Shareholders, then (as applicable to the jurisdictions for which such
registration is to be made):
(a) Company, at its expense as provided in SECTION 4.2, shall prepare
and file with the SEC a registration statement covering such securities and
such other related documents as may be necessary or appropriate relating to
the proposed distribution, and shall use reasonable efforts to cause the
registration statement to become effective. Company will also, with
respect to any registration statement, file such post-effective amendments
to the registration statement (and use reasonable efforts to cause them to
become effective) and such supplements as are necessary so that current
prospectuses are at all times available for a period of at least 90 days
after the effective date of the registration statement or for such longer
period, not to exceed 180 days, as may be required under the plan or plans
of distribution set forth in the registration statement. Shareholders
shall promptly provide Company with such information with respect to
Shareholders' Registrable
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Securities to be so registered and, if applicable, the proposed terms of
their offering, as is required for the registration. If the Registrable
Securities to be covered by the registration statement are not to be sold
to or through underwriters acting for Company, Company shall:
(i) deliver to Shareholders, as promptly as practicable, as
many copies of preliminary prospectuses as Shareholders may reasonably
request (in which case Shareholders shall keep a written record of the
distribution of the preliminary prospectuses and shall refrain from
delivery of the preliminary prospectuses in any manner or under any
circumstances which would violate the Securities Act or the securities
laws of any other jurisdiction, including the various states of the
United States);
(ii) deliver to Shareholders, as soon as practicable after the
effective date of the registration statement, and from time to time
thereafter during the applicable period described in SECTION 2.4, as
many copies of the relevant prospectuses as Shareholders may
reasonably request; and
(iii) in case of the happening, after the effective date of the
registration statement and during the applicable 90 or 180-day period
described in the second sentence of SECTION 2.4(A), of any event or
occurrence as a result of which the prospectus, as then in effect,
would include an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
any statement therein not misleading in the light of the circumstances
in which it was made, give Shareholders written notice of the event or
occurrence and prepare and furnish to Shareholders, in such quantities
as it may reasonably request, copies of an amendment of or a
supplement to such prospectus as may be
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necessary so that the prospectus, as so amended or supplemented and
thereafter delivered to purchasers of the securities, will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which it
was made, not misleading.
(b) Company will notify Shareholders of any action by the SEC or any
Commission to suspend the effectiveness of any registration statement filed
pursuant hereto or the initiation or threatened initiation of any
proceeding for such purpose or the receipt by Company of any notification
with respect to the suspension of the qualification of the securities for
sale in any jurisdiction. Immediately upon receipt of any such notice,
Shareholders shall cease to offer or sell any Registrable Securities
pursuant to the registration statement or prospectus in the jurisdiction to
which such order or suspension relates. Company will also notify
Shareholders promptly of the occurrence of any event or the existence of
any state of facts that, in the judgment of Company, should be set forth in
such registration statement or prospectus. Immediately upon receipt of
such notice, Shareholders shall cease to offer or sell any Registrable
Securities pursuant to such registration statement or prospectus, cease to
deliver or use such registration statement or prospectus and, if so
requested by Company, return to Company at Company's expense all copies of
such registration statement or prospectus. Company will as promptly as
practicable take such action as may be necessary to amend or supplement
such registration statement or prospectus in order to set forth or reflect
such event or state of facts and provide copies of such proposed amendment
or supplement to Shareholders.
(c) On or before the date on which the registration statement is
declared effective, Company shall use its reasonable efforts to:
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(i) register or qualify (and cooperate with Shareholders, the
underwriter or underwriters, if any, and their counsel, in connection
with the registration or qualification of) the securities covered by
the registration statement for offer and sale under the securities or
blue sky laws of each state and other jurisdiction as Shareholders or
any underwriter reasonably requests;
(ii) use its reasonable efforts to keep each such registration
or qualification effective, including through new filings, or
amendments or renewals, during the period the registration statement
or prospectus is required to be kept effective; and
(iii) do any and all other acts or things necessary or
advisable to enable the disposition in all such jurisdictions of the
Common Stock covered by the applicable registration statement,
provided that Company will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified.
(d) Company shall use its reasonable efforts to cause all Registrable
Securities of Shareholders included in the registration statement to be
listed, by the date of the first sale of such shares pursuant to such
registration statement, on each securities exchange on which the securities
is then listed or proposed to be listed, if any.
(e) Company shall make generally available to Shareholders and any
underwriter participating in the offering conducted pursuant to the
registration statement an earnings statement satisfying Section 11(a) of
the Securities Act no later than 45 days after the end of the 12-month
period beginning with the first day of Company's first fiscal quarter
commencing after the effective date of the
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registration statement. The earnings statement shall cover such 12-month
period. This requirement will be deemed to be satisfied if Company timely
files complete and accurate information on Forms 10-Q, 10-K, and 8-K under
the Exchange Act, and otherwise complies with Rule 158 under the Securities
Act as soon as feasible.
(f) Company shall cooperate with Shareholders and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legends)
representing Registrable Securities to be sold under the registration
statement, and to enable such securities to be in such denominations and
registered in such names as the managing underwriter or underwriters, if
any, or Shareholders, may request, subject to the underwriters' obligation
to return any certificates representing unsold securities.
(g) Company shall use its reasonable efforts to cause Registrable
Securities covered by the registration statement to be registered with or
approved by such other governmental agencies or authorities in the United
States (including the registration of Registrable Securities under the
Exchange Act) as may be necessary to enable Shareholders or the underwriter
or underwriters, if any, to consummate the disposition of such securities.
(h) Company shall, during normal business hours and upon reasonable
notice, make available for inspection by Shareholders, any underwriter
participating in any offering pursuant to the registration statement, and
any attorney, accountant or other agent retained by Shareholders or any
such underwriter (collectively, the "INSPECTORS"), all financial and other
records, pertinent corporate documents, and properties of Company
(including non-public information), as shall be reasonably necessary to
enable the Inspectors to exercise
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their due diligence responsibilities; PROVIDED that any Inspector receiving
non-public information shall have previously entered into an appropriate
confidentiality agreement in mutually satisfactory form and substance.
Company shall also cause its officers, directors, and employees to supply
all nonconfidential information reasonably requested by any Inspector in
connection with the registration statement.
(i) Company shall use its reasonable efforts to obtain a "cold
comfort" letter and, as applicable, a "long-form comfort letter" from
Company's independent public accountants, and an opinion of counsel for
Company, each in customary form and covering such matters of the type
customarily covered by cold comfort letters and long form comfort letters
and legal opinions in connection with public offerings of securities, as
Shareholders reasonably request.
(j) Company shall enter into such customary agreements (including an
underwriting agreement containing such representations and warranties by
Company and such other terms and provisions, as are customarily contained
in underwriting agreements for comparable offerings and are reasonably
satisfactory to the Company) and take all such other actions as
Shareholders or the underwriters participating in such offering and sale
may reasonably request in order to expedite or facilitate such offering and
sale (other than such actions which are disruptive to the Company or
require significant management availability).
ARTICLE III
INDEMNIFICATION
3.1. INDEMNIFICATION BY COMPANY. In the event of any registration under
the Securities Act by any registration statement pursuant to rights granted in
this
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Agreement of Registrable Securities held by Shareholders, Company will hold
harmless Shareholders and each underwriter of such securities and each other
person, if any, who controls any Shareholder or such underwriter within the
meaning of the Securities Act, against any losses, claims, damages, or
liabilities (including legal fees and costs of court), joint or several, to
which Shareholders or such underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages,
or liabilities (or any actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
(i) contained, on its effective date, in any registration statement under which
such securities were registered under the Securities Act or any amendment or
supplement to any of the foregoing, or which arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
(ii) contained in any preliminary prospectus, if used prior to the effective
date of such registration statement, or in the final prospectus (as amended or
supplemented if Company shall have filed with the SEC any amendment or
supplement to the final prospectus) if used within the period which Company is
required to keep the registration to which such registration statement or
prospectus relates current under SECTION 2.4, or which arise out of or are based
upon the omission or alleged omission (if so used) to state a material fact
required to be stated in such prospectus or necessary to make the statements in
such prospectus not misleading; and will reimburse Shareholders and each such
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, or liability; PROVIDED, HOWEVER, that Company shall
not be liable to any Shareholder or its underwriters or controlling persons in
any such case to the extent that any such loss, claim, damage, or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement or such
amendment or supplement, in reliance upon and in
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conformity with information furnished to Company through a written instrument
duly executed by Shareholders or such underwriter specifically for use in the
preparation thereof.
3.2. INDEMNIFICATION BY SHAREHOLDERS. It shall be a condition precedent to
the obligation of Company to include in any registration statement any
Registrable Securities of Shareholders that Company shall have received from
Shareholders an undertaking, reasonably satisfactory to Company and its counsel,
to indemnify and hold harmless (in the same manner and to the same extent as set
forth in SECTION 3.1) Company, each director of Company, each officer of Company
who shall sign the registration statement, and any person who controls Company
within the meaning of the Securities Act, (i) with respect to any statement or
omission from such registration statement, or any amendment or supplement to it,
if such statement or omission was made in reliance upon and in conformity with
information furnished to Company through a written instrument duly executed by
Shareholders specifically for use in the preparation of such registration
statement or amendment or supplement, and (ii) with respect to compliance by
Shareholders with applicable laws in effecting the sale or other disposition of
the securities covered by such registration statement.
3.3 INDEMNIFICATION PROCEDURES. Promptly after receipt by an indemnified
party of notice of the commencement of any action involving a claim referred to
in the preceding Sections of this ARTICLE III, the indemnified party will, if a
resulting claim is to be made or may be made against and indemnifying party,
give written notice to the indemnifying party of the commencement of the action.
If any such action is brought against an indemnified party, the indemnifying
party will be entitled to participate in and to assume the defense of the action
with counsel reasonably satisfactory to the indemnified party, and after notice
from the indemnifying party to such indemnified party of its election to assume
defense of the action, the indemnifying party
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will not be liable to such indemnified party for any legal or other expenses
incurred by the latter in connection with the action's defense. An indemnified
party shall have the right to employ separate counsel in any action or
proceeding and participate in the defense thereof, but the fees and expenses of
such counsel shall be at such indemnified party's expense unless (a) the
employment of such counsel has been specifically authorized in writing by the
indemnifying party, which authorization shall not be unreasonably withheld, (ii)
the indemnifying party has not assumed the defense and employed counsel
reasonably satisfactory to the indemnified party within 30 days after notice of
any such action or proceeding, or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include the indemnified party and
the indemnifying party and the indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to the
indemnified party that are different from or additional to those available to
the indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action or proceeding on behalf of the
indemnified party), it being understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to all local
counsel which is necessary, in the good faith opinion of both counsel for the
indemnifying party and counsel for the indemnified party in order to adequately
represent the indemnified parties) for the indemnified party and that all such
fees and expenses shall be reimbursed as they are incurred upon written request
and presentation of invoices. Whether or not a defense is assumed by the
indemnifying party, the indemnifying party will not be subject to any liability
for any settlement made without its consent. No indemnifying party will consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term the
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giving by the claimant or plaintiff, to the indemnified party, of a release from
all liability in respect of such claim or litigation.
3.4. CONTRIBUTION. If the indemnification required by this ARTICLE III
from the indemnifying party is unavailable to or insufficient to hold harmless
an indemnified party in respect of any indemnifiable losses, claims, damages,
liabilities, or expenses, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such losses,
claims, damages, liabilities, or expenses in such proportion as is appropriate
to reflect (i) the relative benefit of the indemnifying and indemnified parties
and (ii) if the allocation in clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect the relative benefit referred to in
clause (i) and also the relative fault of the indemnified and indemnifying
parties, in connection with the actions which resulted in such losses, claims,
damages, liabilities, or expenses, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and the
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact, has been made by, or relates to information supplied by,
such indemnifying party or parties, and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such action. The
amount paid or payable by a party as a result of the losses, claims, damage,
liabilities, and expenses referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
any investigation or proceeding. Company and Shareholders agree that it would
not be just and equitable if contribution pursuant to this SECTION 3.4 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the prior
provisions of this SECTION 3.4.
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Notwithstanding the provisions of this SECTION 3.4, no indemnifying party
shall be required to contribute any amount in excess of [the amount by which the
total price at which the securities were offered to the public by the
indemnifying party exceeds the amount of any damages which the indemnifying
party has otherwise been required to pay by reason of an untrue statement or
omission]. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such a fraudulent misrepresentation.
ARTICLE IV
OTHER AGREEMENTS
4.1. OTHER REGISTRATION RIGHTS. Company agrees that it will not grant to
any party registration rights which would allow such party to limit
Shareholders' priority for the sale or distribution of Registrable Securities
upon the exercise of a demand registration right pursuant to SECTION 2.2.
4.2. EXPENSES. All expenses incurred by Company in connection with any
registration statement covering Registrable Securities offered by Shareholders,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the National Association of Securities Dealers,
Inc.), printing expenses, fees and disbursements of counsel (except for the fees
and disbursements of counsel for Shareholders) and of the independent certified
public accountants (except, in the case of any special audits, if required in
connection with any such registration, Shareholders' proportionate share of
their expense as provided in SECTION 2.4), and the expense of qualifying such
shares under state blue sky laws, shall be borne by Company, including such
expenses of any registration delayed by the Company under the fourth paragraph
of SECTION 2.2; PROVIDED, HOWEVER, that Company shall not be required to pay
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for any expenses of any registration proceeding begun pursuant to SECTION 2.2 if
the registration request is subsequently withdrawn at the request of
Shareholders (in which case Shareholders shall bear such expenses), unless
Shareholders agrees to forfeit their right to one demand registration under
SECTION 2.2; PROVIDED FURTHER, however, that if at the time of such withdrawal,
Shareholders have learned of a material adverse change in the condition,
business, or prospects of the Company from that known at the time of its
request, then Shareholders shall not be required to pay any of such expenses and
shall retain their rights pursuant to SECTION 2.2. Company's obligations under
this SECTION 4.2 shall apply to each registration under the Securities Act or
state blue sky legislation pursuant to SECTION 2.2. However, all underwriting
expenses incurred by Shareholders, including underwriter's discounts and
commissions and legal, accounting and similar expenses, shall be borne by
Shareholders.
4.3. DISPOSITIONS DURING REGISTRATION. Each Shareholder agrees that,
without the consent of the managing underwriter(s) in an underwritten offering
in respect of Common Stock or securities convertible into Common Stock, it will
not effect any sale or distribution of Common Stock or securities convertible
into Common Stock (other than Registrable Securities included in such offering),
during the ten (10) day period prior to, and during the ninety (90) day period
beginning on, the effective date of the registration statement filed by the
Company in respect of such underwritten offering, or any shorter period as may
apply to the Company and its affiliates.
4.4. TRANSFER OF RIGHTS. All rights of Shareholders under this Agreement
shall be transferable by Shareholders to a Related Transferee (as defined in the
Shareholders Agreement) who acquires shares of Common Stock in compliance with
Section 4.1(f) of the Shareholders Agreement and who executes an instrument in
form and substance satisfactory to the Company in which it agrees to be bound by
the terms of this Agreement as if an original signatory hereto, in which case
such Related Transferee
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shall thereafter be a "Shareholder" for all purposes of this Agreement. The
incidental registration rights or benefits of this Agreement and the demand
registration rights, including indemnification by Company, shall be transferable
by Shareholders only in a transaction permitted under Section 4.1(c) or 4.1(d)
of the Shareholders Agreement to a transferee that is not an Affiliate of the
Company who receives at least an aggregate of 1,000,000 shares of Common Stock,
in the case of incidental registration rights, or 5,000,000 shares of Common
Stock for each right to demand registration, in the case of demand registration
rights. In the case of any assignment, the party or parties who have the rights
and benefits of Shareholders under this Agreement shall become parties to and be
subject to this Agreement, and shall not, as a group, have the right to request
any greater number of registrations than Shareholders would have had if no
assignment had occurred. Upon any transfer of the registration rights or
benefits of this Agreement, Shareholders shall give Company written notice prior
to or promptly following such transfer stating the name and address of the
transferee and identifying the securities with respect to which such rights are
being assigned. Such notice shall include or be accompanied by a written
undertaking by the transferee to comply with the obligations imposed hereunder.
In the event any registration rights are transferred in accordance with the
terms of this Agreement, any actions required to be taken by Shareholders will
be taken with the approval of the holders of such registration rights who hold a
majority of the Registrable Securities, whose actions shall bind all such
holders of such registration rights.
4.5. BEST REGISTRATION RIGHTS. If the Company grants to any Person with
respect to any security issued by the Company or any of its Affiliates
registration rights that provide for terms that are in any manner more favorable
to the holder of such registration rights than the terms granted to the
Shareholders other than the number of demand registrations or the minimum amount
of shares required to exercise demand
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registration rights (or if the Company amends or waives any provision of any
agreement providing registration rights of others or takes any other action
whatsoever to provide for terms that are more favorable to other holders than
the terms provided to the Shareholders other than the number of demand
registrations or the minimum amount of shares required to exercise demand
registration rights), then this Agreement shall immediately be deemed amended to
provide the Shareholders with any (or all) of such more favorable terms as
Shareholders shall elect to include herein.
ARTICLE V
MISCELLANEOUS
5.1. NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, fax or air courier guaranteeing delivery:
(a) If to the Company, to:
Allied Waste Industries, Inc.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
and to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
-00-
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx, Xx.
Fax: (000) 000-0000
or to such other person or address as the Company shall furnish to Shareholders
in writing;
(b) If to Shareholders, to:
Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
and:
The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
or to such other person or address as Shareholders shall furnish to the Company
in writing.
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All such notices, requests, demands and other communications shall be
deemed to have been duly given: at the time of delivery by hand, if personally
delivered; five (5) Business Days after being deposited in the mail, postage
prepaid, if mailed domestically in the United States (and seven (7) Business
Days if mailed internationally); when answered back, if telexed; when receipt
acknowledged, if telecopied; and on the Business Day for which delivery is
guaranteed, if timely delivered to an air courier guaranteeing such delivery.
5.2. SECTION HEADINGS. The article and section headings in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement. References in this Agreement to a designated
"Article" or "Section" refer to an Article or Section of this Agreement unless
otherwise specifically indicated.
5.3. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the law of Delaware, without regard to its
conflicts of laws principles.
5.4. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Any legal action or
proceeding with respect to this Agreement or any matters arising out of or in
connection with this Agreement (other than the Shareholders Agreement, which
shall be governed solely by the analogous provisions thereof), and any action
for enforcement of any judgment in respect thereof shall be brought exclusively
in the state of federal courts located in the State of Delaware, and, by
execution and delivery of this Agreement, the Company and Shareholder each
irrevocably consent to service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, or by recognized international
express carrier or delivery service, to the Company or Shareholder at their
respective
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addresses referred to in this Agreement. The Company and the Shareholder each
hereby irrevocably waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Agreement (other than the Shareholders Agreement,
which shall be governed solely by the analogous provisions thereof) brought in
the courts referred to above and hereby further irrevocably waives and agrees,
to the extent permitted by applicable law, not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum. Nothing in this Agreement shall affect the
right of any party hereto to serve process in any other manner permitted by law.
5.5. AMENDMENTS. This Agreement may be amended only by an instrument in
writing executed by all of its parties.
5.6. ENTIRE AGREEMENT. This Agreement and the Shareholders Agreement
constitute the entire agreement and understanding of the parties with respect to
the transactions contemplated hereby and thereby. The registration rights
granted under this Agreement supersede any registration, qualification or
similar rights with respect to any of the Shares granted under any other
agreement, and any of such preexisting registration rights are hereby
terminated. This Agreement may be amended only by a written instrument duly
executed by the parties or their respective successors or assigns; PROVIDED,
HOWEVER, that any amendment or waiver by the Company shall be made only with the
prior approval of a majority of the entire Board of Directors of the Company
other than Shareholder Designees (as defined in the Shareholders Agreement).
5.7. SEVERABILITY. The invalidity or unenforceability of any specific
provision of this Agreement shall not invalidate or render unenforceable any of
its other provisions. Any provision of this Agreement held invalid or
unenforceable shall be deemed reformed, if practicable, to the extent necessary
to render it valid and enforceable
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and to the extent permitted by law and consistent with the intent of the parties
to this Agreement.
5.8. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument.
5.9. SHAREHOLDER ACTION. The Company shall be entitled to rely upon any
written notice, designation, or instruction signed by Apollo Capital Management
II, Inc. and BCP (the "REPRESENTATIVES") as a notice, designation or instruction
of all Shareholders and the Company shall not be liable to any Shareholder if
the Company acts in accordance with and relies upon such writing. In that
regard, each of the Shareholders acknowledges that the Representatives have full
power and authority to act on their behalf.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ALLIED WASTE INDUSTRIES, INC.
By: /s/ Xxxxxx Xxx Xxxxxx
_________________________
Title: President
________________________
APOLLO INVESTMENT FUND III, L.P.
APOLLO OVERSEAS PARTNERS III, L.P.
APOLLO (U.K.) PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
By: Apollo Capital Management II, Inc.
By: /s/ Xxxxx X. Xxxxxx
_________________________
Title: Vice President
________________________
BLACKSTONE CAPITAL PARTNERS II
MERCHANT BANKING FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL
PARTNERS II X.X.
XXXXXXXXXX FAMILY INVESTMENT
PARTNERSHIP II L.P.
By: Blackstone Management Associates II L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
_________________________
Title: Sr. Managing Director
________________________
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