STOCKHOLDER’S AGREEMENT
Exhibit
3
STOCKHOLDER’S
AGREEMENT
This
Stockholder’s Agreement, dated as of July 27, 2006 (this “Agreement”),
by and
between WCA Waste Corporation, a Delaware corporation (the “Company”)
and
ARES CORPORATE OPPORTUNITY FUND II, L.P. (together with it the Related
Transferees pursuant to Section 4.1(e) collectively and singly the “Stockholder”).
WHEREAS,
on June 12, 2006, the Company and the Stockholder entered into (i) a Preferred
Stock Purchase Agreement (the “Stock
Purchase Agreement”)
pursuant to which the Stockholder purchased an aggregate of 750,000 shares
of
Senior Convertible Preferred Stock, par value $.01 per share, of the Company
(“Preferred
Stock”),
which
is convertible into shares of Common Stock, and (ii) a Registration Rights
Agreement (the “Registration
Rights Agreement”)
granting certain registration rights;
WHEREAS,
in connection with the transactions contemplated by the Stock Purchase Agreement
and the Registration Rights Agreement, the Stockholder has agreed to certain
terms and conditions on its stock ownership as set forth herein.
NOW,
THEREFORE, in consideration of the issuance of the Preferred Stock pursuant
to
the Stock Purchase Agreement and the other promises contained therein, and
in
consideration of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE
1
DEFINITIONS;
REPRESENTATIONS AND WARRANTIES
Section
1.1 Definitions.
Unless
otherwise specified all references to “days” shall be deemed to be references to
calendar days. For purposes of this Agreement, the following terms shall have
the following meanings:
“Affiliate”
of
a
Person shall have the meaning set forth in Rule 12b-2 of the Exchange Act as
in
effect on the date of this Agreement, but shall not include (i) any investment
fund in which a Person has invested if the Person (as the Affiliates alone
or
with others) does not otherwise control the investment fund or have, directly
or
indirectly, voting or dispositive power over any securities owned by such fund
or (ii) any investor or limited partner of any Person who does not (alone or
with others) otherwise have voting or dispositive power over securities owned
by
that Person and is not controlled by that Person. It is expressly intended
that
any Person who now or hereafter controls, directly or indirectly, the
Stockholder (other than in its capacity as Exempt Affiliate) shall be subject
to
the restrictions of Section 2.1 and the provisions of Articles 3 and 4 as if
it
were the Stockholder, including (without limitation) any management company,
advisory, and/or general partner of the Stockholder.
“Beneficial
Ownership”
by
a
Person of any Voting Securities shall be determined in accordance with the
term
“beneficial ownership” as defined in Rule 13d-3 under the Exchange Act as in
effect on the date of this Agreement and, in addition, “beneficial ownership”
shall include securities which such Person has the right to acquire
(irrespective of whether such right
is
exercisable immediately or only after the passage of time, including the passage
of time in excess of sixty (60) days) pursuant to any agreement, arrangement
or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise. For purposes of this Agreement, the
Stockholder shall be deemed to beneficially own any Voting Securities
Beneficially owned by its Affiliates or any Group of which the Stockholder
or
any such Affiliate is a member.
“Board
of Directors”
shall
mean the Board of Directors of the Company.
“Certificate
of Designations”
shall
mean the Certificate of Designations pursuant to which the Preferred Stock
has
been created, as amended in accordance with its terms.
“Commission”
shall
mean the Securities and Exchange Commission.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended.
“Group”
shall
mean a “group”
as
such
term is used in Section 13(d)(3) of the Exchange Act (as in effect, and based
on
legal interpretations thereof existing, on the date hereof).
“Laws”
shall
mean all applicable foreign, federal, state and local laws, statutes, rules,
regulations, codes and ordinances.
“Majority
Vote”
shall
mean (i) the affirmative vote of a majority of the entire Board of Directors,
including the affirmative vote of a majority of all of the Unaffiliated
Directors, voting separately or (ii) as regards matters within the authority
of
any committee of the Board of Directors consisting entirely of Unaffiliated
Directors, the affirmative vote of such committee (including for purposes of
clauses (i) and (ii), an action by unanimous written consent).
“Person”
shall
mean any individual, Group, corporation, general or limited partnership, limited
liability company, governmental entity, joint venture, estate, trust,
association, organization or other entity of any kind or nature.
“Related
Person”
means,
with respect to any Person, (i) any Affiliate of such Person, (ii) any
investment manager, investment advisor or partner of such Person or an Affiliate
of such Person or such investment manager, investment advisor or partner, (iii)
any investment fund, investment account or investment entity whose investment
manager, investment advisor or general partner is such Person or a Related
Person of such Person, and (iv) to the extent not covered by the foregoing,
as
to the Stockholder, a partner, employee, director, officer, affiliate or
associate (as defined in Rule 12b-2 under the Exchange Act) of the Stockholder
or any affiliate of the Stockholder or as to which the Stockholder or its
Affiliates own at least ten percent of the voting equity
securities.
“Reorganization
Transaction”
means:
(i) any merger, consolidation, recapitalization, liquidation or other business
combination transaction involving the Company; (ii) any tender offer or exchange
offer for any securities of the Company; or (iii) any sale or other disposition
of assets of the Company or any of its Subsidiaries in a single transaction
or
in a series of related transactions in each of the foregoing cases constituting
individually or in the aggregate 10% or more of the assets or Voting Securities
(as applicable) of the Company.
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“Securities
Act”
shall
mean the Securities Act of 1933, as amended.
“Shares”
means
the 750,000 shares of Preferred Stock to be issued to the Stockholder pursuant
to the Stock Purchase Agreement and any shares of Common Stock issuable upon
the
conversion of such Preferred Stock.
“Standstill
Period”
shall
mean the period beginning as of the first closing under the Purchase Agreement
and ending on the Standstill Termination Date.
“Stockholder
Designee”
shall
mean a person designated for election to the Board of Directors by the
Stockholder in accordance with the Certificate of Designations and in accordance
with Section 3.1.
“Total
Voting Power”
shall
mean the total combined Voting Power, on a fully diluted basis, of all the
Voting Securities then outstanding.
“Transfer”
shall
mean, whether or not capitalized and including such correlative terms as
“Transferring” or “Transferred,” means with respect to the Voting Securities or
any portion thereof, (i) a transaction by which the Stockholder or its Related
Person sells, assigns, grants, gives, pledges, grants an option with respect
to,
encumbers, hypothecates, mortgages, exchanges, distributes, disposes or
transfers to another Person, entity or group Voting Securities or any legal
or
beneficial, or direct or indirect, right or interest therein or with respect
thereto (including, without limitation, proxy, voting right, participation,
cash
flow, derivative, option, or hedge), (ii) a Change in Control of the Stockholder
or Related Person that, prior to the Change of Control Beneficially Owned Voting
Securities or (iii) entry into an agreement or understanding with respect to
the
foregoing.
“Unaffiliated
Directors”
shall
mean those Persons who are elected as directors of the Board of Directors (i)
who are not the Stockholder Designees and or affiliated with the Stockholder
or
its Related Persons (including an officer or an employee, consultant or advisor
(financial, legal or other) of the Stockholder or any Related Person of the
Stockholder, or any person who shall have served in any such capacity within
the
three-year period immediately preceding the date such determination is made)
and
(ii) who do not otherwise have a personal or conflicting interest in the
particular matter or proposal in question.
“Voting
Power”
shall
mean, as of the date of determination, the voting power in the general election
of directors of the Company, and shall be calculated for each Voting Security
by
reference to the maximum number of votes such Voting Security is or would be
entitled to cast in the general election of directors, and, in the case of
convertible (or exercisable or exchangeable) securities, by reference to the
maximum number of votes such Voting Security would be entitled to cast in
unconverted or converted (or exercised, unexercised, exchanged or unexchanged)
status. For purposes of determining Voting Power under this Agreement, a Voting
Security which is convertible into or exchangeable for a Voting Security shall
be counted as having the greater of (i) the number of votes to which such Voting
Security is entitled prior to conversion
or exchange and (ii) the number of votes to which the Voting Security into
which
such Voting Security is convertible or exchangeable is entitled.
-3-
“Voting
Securities”
shall
mean (i) any securities entitled, or which may be entitled, to vote generally
in
the election of directors of the Company (including, when issued, shares of
Common Stock issued upon conversion of the Preferred Stock), (ii) any securities
convertible or exercisable into or exchangeable for such securities (whether
or
not the right to convert, exercise or exchange is subject to the passage of
time
or contingencies or both), or (iii) any direct or indirect rights or options
to
acquire any such securities; provided that unexercised options granted pursuant
to any employment benefit or similar plan and rights issued pursuant to any
stockholder rights plan shall be deemed not to be “Voting Securities” (or to
have Voting Power).
Section
1.2 Representations
and Warranties of the Company and Stockholders.
The
representations and warranties of the Company and Stockholders, respectively,
with respect to this Agreement and the transactions contemplated hereby are
set
forth in the Stock Purchase Agreement.
ARTICLE
2
STANDSTILL
Section
2.1 Section
2.1 Standstill.
(a) As
of the
date of this Agreement, neither the Stockholder nor its Related Persons
Beneficially Own any Voting Securities except the Shares. Until the earliest
to
occur of (A) the seventh anniversary of the Stock Purchase Agreement, (B) 180
days after the date on which the Stockholder, its Affiliates and Related Persons
collectively own Voting Securities representing less than 10%
of the
Total Voting Power (as long as on such date and at all times during such 180
day
period, the Stockholder, its Affiliates and Related Persons collectively owned
Voting Securities representing less than 10% of the Total Voting Power) (the
“Standstill
Termination Date”),
unless
otherwise specifically approved by a Majority Vote of the Board of Directors
(after full disclosure by the Stockholder), the Stockholder will not, and will
cause each of its Related Persons not to, directly or indirectly:
(i) acquire,
offer to acquire, or agree to acquire, by purchase or otherwise, any Voting
Securities or voting rights or direct or indirect rights or options to acquire
any Voting Securities of the Company or any of its Affiliates other than (A)
an
acquisition as a result of a stock split, stock dividend or similar
recapitalization, (B) the acquisition of shares of Common Stock upon the
conversion of the Preferred Stock, (C) stock options or similar rights
granted by the Company to an Affiliate of the Stockholder as compensation for
performance as a director or officer of the Company or its subsidiaries (and
any
shares issuable upon exercise thereof), (D) transfers between Stockholder and
Related Transferees as permitted under Section 4.1(f); or (E) any rights which
are granted to all Stockholders of the Company (and any shares issuable upon
exercise thereof); provided, however, that the Stockholder may purchase up
to an
aggregate
of 1,000,000 shares of Common Stock from the Company upon approval by Majority
Vote.
(ii) make
or
cause to be made any proposal for a Reorganization Transaction; provided
that
the foregoing shall not prevent a Transfer in accordance with Article 4;
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(iii) take
any
action (including, without limitation, by forming, joining or in any way
participating) that would result in being deemed part of a Group with respect
to
any securities of the Company or its Affiliates;
(iv) acquire
any proxy with respect to any Voting Securities (other than the Shares) or
make,
or in any way cause or participate in, any “solicitation” of “proxies” to vote
(as those terms are defined in Regulation 14A under the Exchange Act) with
respect to the Company or its Affiliates, or communicate with, seek to advise,
encourage or influence any Person, in any manner, with respect to the voting
of,
securities of the Company or its Affiliates, or become a “participant” in any
“election contest” (as those terms are defined or used in Rule 14a-11 under the
Exchange Act) with respect to the Company or its Affiliates; provided that
the
Stockholder will not be precluded by the foregoing provision from (y) making
non-public communications with its Affiliates and Related Persons that would
not
require public disclosure by any Person and would not make the Stockholder
a
participant in an election contest as long as the Stockholder does not take
any
action that would be inconsistent with Section 3.1 and (z) soliciting proxies
in
support of the election of all of the Stockholder Designees, Management
Directors and Unaffiliated Directors nominated by the Board of Directors in
accordance with Section 3.1 hereof in circumstances in which a third party
is
soliciting parties for the election of nominees not nominated by the Board
of
Directors);
(v) take
action that would have the effect of increasing the number of directors except
as approved by a Majority Vote and except as to insure that a majority of the
Board of Directors consist of Unaffiliated Directors; initiate, propose or,
except with the prior approval of a Majority Vote, otherwise solicit
stockholders for the approval of one or more stockholder proposals with respect
to the Company or its Affiliates or induce or attempt to induce any other Person
to initiate any stockholder proposal; take any action that would have the effect
of placing, or otherwise to seek election to or seek to place, any Person on
the
Board of Directors of the Company (or its Affiliates) that is an Affiliate
or
Related Person of, or otherwise is a representative of or is affiliated with,
the Stockholders, its Affiliates, or Related Persons; or seek the removal of
any
member of the Board of Directors of the Company or its Affiliates; provided
however, that the last two clauses of this paragraph (v) shall not preclude
the
Stockholder from designating the Stockholder Designees (and replacing such
designees) in accordance with the Certificate of Designations and Section 3.1
of
this Agreement;
(vi) in
any
manner agree, attempt, seek or propose to deposit any securities of the Company
or its Affiliates in any voting trust or similar arrangement or subject any
securities of the company or its Affiliates to any other voting or proxy
agreement, arrangement or understanding;
(vii) offer,
sell or otherwise Transfer any Voting Securities or rights to receive Voting
Securities except for Transfers in accordance with Article 4;
(viii) disclose
any intention, plan or arrangement, or make any public announcement, or induce
any other Person to take any action, inconsistent with the
foregoing;
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(ix) enter
into
any negotiations, arrangements or understandings with any third party with
respect to any of the foregoing;
(x) advise,
assist or encourage or finance (or assist or arrange financing to or for) any
other Person in connection with any of the foregoing;
(xi) otherwise
act in concert with others, to seek to control or influence the management,
Board of Directors or policies of the Company or its Affiliates; provided,
that
the foregoing paragraph (xi) shall not prevent the Stockholder Designees from
acting in their capacity as directors of the Company and shall not prevent
the
Stockholder from exercising its voting rights to the extent provided in the
Certificate of Designations and provided in this Agreement; or
(xii) request
a
waiver of any of the provisions of any of paragraphs (i) through (xii) of this
Section 2.1.
ARTICLE
3
BOARD
REPRESENTATION, VOTING AND TRANSACTIONAL APPROVALS
Section
3.1 Board
Matters.
(a) Pursuant
to Section 9(b) of the Certificate of Designations creating the Preferred Stock,
the Stockholder is entitled to elect up to two directors in certain
circumstances (the “Stockholder
Designees”
whether
one or more)
and for
the period specified therein (the “Stockholder
Designee Period”).
The
Company agrees to take such actions as may be necessary or appropriate to permit
such election to be made to the extent provided in the Certificate of
Designations, subject to the provisions set forth in this Section 3.1.
Otherwise, the Company shall have no obligation to take any action to cause
a
designee or representative of the Stockholder (or its Related Persons) to become
a member of the Board of Directors. Upon termination of the Stockholder Designee
Period, the terms of the Stockholder Designees will cease and the Stockholder
shall cause the Stockholder Designees to offer to resign immediately from any
committees thereof, whether as observer or otherwise, (which offer to resign
may
be accepted or declined in the sole and absolute discretion of the Board of
Directors) and the Company’s obligations under this Section 3.1 shall terminate.
Notwithstanding
the provisions of this Section 3.1(a) or Section 9(b) of the Certificate of
Designation, the Stockholder agrees that
(i) the
Stockholder will give the Company at least ten (10) days prior written notice
of
the identity its Stockholder Designees prior to the election thereof pursuant
to
Section 9(b) of the Certificate of Designations and provide the Company with
such
information concerning the background of such Stockholder Designees as the
Nominating Committee may reasonably request;
(ii) subject
to
(iii) below, it will elect Xxxxxx X. Xxxxxxx as the Stockholder Designee
(or one
of the Stockholder Designees when the Stockholder is entitled to designate
more
than one Stockholder Designee) for as long as Xx. Xxxxxxx remains affiliated
with the Ares Management, Inc. or its Related Persons;
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(iii) it
will
not elect (and it agrees to withdraw the nomination of or cause the removal
of)
any Person to the Company’s Board of Directors that the Nominating Committee
determines in good faith that the proposed Stockholder Designee does not meet
the qualification requirements imposed with respect to other directors or
determines (upon written opinion of its outside counsel) that a proposed
Stockholder Designee would not be qualified under any applicable law, rule
or
regulation (including under any exchange or Nasdaq rules) to serve as a director
of the Company or if the Company objects to a Stockholder Designee because
such
Stockholder Designee has been involved in any of the events enumerated in Item
2(d) or (e) of Schedule 13D or such Person is currently the target of an
investigation by any governmental authority or agency relating to felonious
criminal activity or is subject to any order, decree, or judgment of any court
or agency prohibiting service as a director of any public company or providing
investment or financial advisory services. In such an event, the Stockholder
shall withdraw the designation of such proposed Stockholder Designee and
designate a replacement therefor (which replacement Stockholder Designee shall
also be subject to the requirements of this Section). The Company shall use
its
reasonable best efforts to notify the Stockholder of any objection to a
Stockholder Designee sufficiently in advance of the date on which proxy
materials are mailed by the Company in connection with such election of
directors to enable the Stockholder to propose a replacement Stockholder
Designee in accordance with the terms of this Agreement.
(iv) The
Stockholder also agrees that none of its Stockholder Designees shall be a
director, executive officer, or consultant to any solid waste company and that
it shall cause each such Stockholder Designee to resign from or terminate any
such affiliation prior to designation.
(b) The
parties intend that the Company’s Common Stock continue to meet the
qualification requirements applicable to Nasdaq National Market securities,
or
if the Company’s Voting Securities become listed on the New York Stock Exchange,
the listing requirements of the New York Stock Exchange. The Board of Directors
will be comprised according to such requirements.
(c) Subject
to
any requirements described in (b) above, the parties agree that the Unaffiliated
Directors will have the exclusive power to nominate directors on behalf of
the
Board of Directors (other than with respect to Stockholder Designees appointed
pursuant to the Certificate of Designations and in accordance with the
provisions hereof). In such capacity, the Unaffiliated Directors may be referred
to herein as the “Nominating
Committee”
regardless of whether a formal committee is formed.
(d) Each
Stockholder Designee serving on the Board of Directors shall be entitled
to all
insurance, indemnification, compensation, stock incentives granted to directors
who are not employees of the Company on the same terms provided to, and subject
to the same limitations applicable to, such directors.
(e) The
Company shall use its reasonable best efforts to ensure that
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(i) one
of the
Stockholder Designees is appointed as an observer to each committee of the
Board
of Directors other than a special committee appointed to consider any matter
involving the Stockholder or its Related Persons. The observer will
not
be a member of such committee or entitled to vote on any matter acted upon,
but
will be entitled to all notices of and to attend and participate in meetings
thereof, subject to the power of the committee chair to conduct executive
sessions of only the full members of the committee.
(ii) meetings
of the Board of Directors are held at least four times each year.
Section
3.2 Voting.
(a) The
Stockholder agrees that during the Standstill Period the Stockholder shall,
and
shall cause its Related Persons and any Person which is a member of any Group
of
which the Stockholder or any of its Related Persons is a member to, be present,
in person or represented by proxy, at all meetings of stockholders of the
Company so that all Voting Securities Beneficially Owned by the Stockholder
and
its Related Persons shall be counted for the purpose of determining the presence
of a quorum at such meetings. The Stockholder agrees on behalf of itself and
each of its Related Persons that during the Standstill Period:
(i) For
so
long as the Stockholder shall have the right to appoint at least one director
under Section
9(b) of the Certificate of Designations in connection with the election of
directors of the Company, to vote or cause to be voted all Voting Securities
Beneficially Owned by them to elect those Persons nominated in accordance with
the provisions of Section 3.1.
(ii) In
connection with any proposal for a Reorganization Transaction, Stockholder
shall
vote or cause to be voted, or consent with respect to, all Voting Securities
beneficially owned by the Stockholder in the manner recommended by a Majority
Vote.
(iii) In
connection with other proposals submitted to stockholders of the Company,
(A)
if the
proposal relates to an amendment of the Certificate of Designations, or if
the
proposal is otherwise not inconsistent with, and does not relate to matters
covered by, the provisions in this Agreement (including Articles 2 and 3),
the
Stockholder shall be free to vote or cause
to
be
voted, or consent with respect to, all Voting Securities beneficially owned
by
the Stockholder in its discretion; and
(B)
in all
other cases not covered by (i), (ii) or (iii)(A), Stockholder shall vote
or
cause to be voted, or consent with respect to, all Voting Securities
beneficially owned by the Stockholder in the manner recommended by a Majority
Vote.
Section
3.3 Management
of the Business.
-8-
Following
the Closing and
except
as provided in this Agreement, management of the Company will continue to have
full authority to operate the day-to-day business affairs of the Company to
the
same extent as prior to the Closing. In this regard, the Chief Executive Officer
of the Company shall continue to be in charge of all matters within his
authority on the date hereof, subject, as required by Delaware law, to the
requirement that the business and affairs of the Company shall be managed by
or
under the direction of the Board of Directors.
ARTICLE
4
TRANSFER
RESTRICTIONS
Section
4.1 Section
4.1 Restrictions on Transfers.
During
the Standstill Period, Stockholder shall not, and shall cause its Related
Persons not to, directly or indirectly (including, without limitation, through
the disposition or transfer of control of another Person) Transfer any of the
Voting Securities, except as provided in this Section 4.1. Without limiting
the
generality of the foregoing, any sale of securities held by Stockholder or
any
of its Related Persons which is currently (or following the passage of time,
the
occurrence of any event or the giving of notice), directly or indirectly,
exchangeable or exercisable for, or convertible into, any Voting Securities
shall constitute a Transfer of such Voting Securities. Transfers may be effected
by Stockholder during the Standstill Period as follows:
(a) With
respect to shares of Common Stock acquired upon conversion of the Preferred
Stock, Transfers may be made at any time in compliance with the Registration
Rights Agreement.
(b) With
respect to shares of Common Stock acquired upon conversion of the Preferred
Stock, Transfers may be made pursuant to sales effected in accordance with
Rule
144 under the Securities Act (a “Rule
144 Sale”).
(c) Transfers
of Common Stock upon conversion thereof, made two years after the date of this
Agreement by the Stockholder to Persons who are not Related Persons of the
Stockholder or any Affiliates of the Company that, in any 12 month period,
do
not, in the aggregate, exceed 7.5% of the outstanding Voting Securities;
provided that no such Transfers may be made to any Person (including such
Person's Affiliates and any Person or entities which are part of any Group
which
includes such transferee or any of its Affiliates) that, after giving effect
to
such Transfer, would Beneficially Own Voting Securities representing more than
7.5% of the Total Voting Power.
(d) Transfers
of Common Stock or Preferred Stock may be made pursuant to a Reorganization
Transaction (on the same terms as are available to the holders of Common
Stock
and subject to the terms of the Certificate of Designations) which is
recommended to the Stockholders of the Company by a Majority Vote that includes
the affirmative approval of at least a majority of the Unaffiliated
Directors.
(e) Except
as
provided in subsection (d) above, no Transfers of the Preferred Stock may
be
made, except that Transfers of the Preferred Stock or Common Stock acquired
upon
conversion thereof may be made by Stockholder to any Related Person of the
Stockholder
-9-
that
executes an instrument in form and substance satisfactory to the Company in
which it makes the representations and warranties set forth in the Purchase
Agreement as of the date of the execution of such instrument and agrees to
be
bound by the terms of this Agreement as if an original signatory to this
Agreement (such transferee, a “Related
Transferee”),
in
which case each of the Stockholder and each such Related Transferee shall
thereafter be a “Stockholder”
and
collectively the “Stockholders”
for
all
purposes of this Agreement.
ARTICLE
5
MISCELLANEOUS
Section
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:
|
If
to the Company:
|
WCA
WASTE CORPORATION
0
Xxxxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attn:
Xxx X. Xxxxx, III
Phone:
(000) 000-0000
Fax:
(000) 000-0000
|
|
With
a copy to:
|
XXXXXXX
XXXXX LLP
|
|
000
Xxxxxx
|
|
|
Xxxxx
0000
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Attn:
Xxxx X. Xxxx, Esq. and
|
|
|
Xxxx
Xxxxxxxxxxx, Esq.
|
|
|
Phone:
(000) 000-0000
|
|
|
Fax:
(000) 000-0000
|
or
to such
other person or address as the Company shall furnish to Stockholder in
writing;
-10-
|
If
to the Stockholder:
|
Ares
Corporate Opportunities Fund II, L.P.
C/O
Ares Management, Inc.
1999
Avenue of the Stars
Xxxxx
0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxx Xxxxxx
Phone:
(000) 000.0000
Fax:
(000) 000.0000
|
|
With
a copy to:
|
Xxxxxx
Xxxxxx & Xxxxxxx LLP
00
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxxxx Xxxxxxxxx, Esq. and
Xxxx
X. Xxxxxx, Esq.
Phone:
(000) 000-0000/3186
Fax:
(000) 000-0000
|
or
to such
other person or address as Stockholder shall furnish to the Company in writing.
If there shall be more than one Stockholder in accordance with this Agreement,
then the notice to the Stockholder named above shall be deemed notice to such
Stockholder itself and to such Stockholder as Representative.
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.
Section
5.2 Legends.
(a) If
requested in writing by the Company, a Stockholder shall present or cause to
be
presented promptly all certificates representing Voting Securities beneficially
owned by such Stockholder or any of its Affiliates, for the placement thereon
of
a legend substantially to the following effect, which legend will remain thereon
so long as such legend is required under applicable securities
laws:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED, 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 A
REGISTRATION THEREUNDER OTHER THAN PURSUANT TO AN EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS AND DELIVERY TO WCA WASTE CORPORATION OF
AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT TO THE EFFECT THAT SUCH
TRANSFER IS EXEMPT FROM REGISTRATION UNDER THOSE LAWS.”
(b) Each
Stockholder shall present or cause to be presented promptly all certificates
representing Voting Securities beneficially owned by such Stockholder or
any of
its Affiliates, for the placement thereon of a legend substantially to the
following effect, which legend will remain thereon during the Standstill
Period
as long as such Voting Securities are beneficially owned by any Stockholder
or
an Affiliate of any Stockholder:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF A
STOCKHOLDERS AGREEMENT, DATED AS OF _________,
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BETWEEN
WCA WASTE CORPORATION AND CERTAIN STOCKHOLDERS OF WCA WASTE CORPORATION 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 WCA WASTE
CORPORATION.”
(c) The
Company may enter a stop transfer order with the transfer agent or agents of
Voting Securities against any Disposition not in compliance with the provisions
of this Agreement.
Section
5.3 Enforcement.
Stockholders, on the one hand, and the Company, on the other hand, acknowledge
and agree that irreparable injury to the other party would occur in the event
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached and that such injury would
not
be adequately compensable in damages. It is accordingly agreed that, in addition
to any other remedies which may be available at law or in equity, each party
hereto (the “Moving
Party”)
shall
be entitled to specific enforcement of, and injunctive relief to prevent any
violation of, the terms of this Agreement, and the other parties hereto will
not
take action, directly or indirectly, in opposition to the Moving Party seeking
such relief on the grounds that any other remedy or relief is available at
law
or in equity. The parties further agree that no bond shall be required as a
condition to the granting of any such relief.
Section
5.4 Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
with
respect to the transactions contemplated hereby. 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
directors of the Company other than Stockholder Designees.
Section
5.5 Severability.
Whenever
possible, each provision or portion of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision or portion of any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law, rule or
regulation in any jurisdiction, such invalidity, illegality or unenforceability
will not affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision or
portion of any provision shall have been replaced with a provision which shall,
to the maximum extent permissible under such applicable law, rule or regulation,
give effect to the intention of the parties as expressed in such invalid,
illegal or unenforceable provision.
Section
5.6 Headings.
Descriptive headings contained in the Agreement are for convenience only
and
will not control or affect the meaning or construction of any provision of
this
Agreement.
Section
5.7 Counterparts.
For the
convenience of the parties, any number of counterparts of this Agreement
may be
executed by the parties, and each such executed counterpart will be an original
instrument.
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Section
5.8 No
Waiver.
Any
waiver by any party of a breach of any provision of this Agreement shall not
operate as or be construed to be a waiver of any other breach of such provision
or of any breach of any other provision of this Agreement. The failure of a
party to insist upon strict adherence to any term of this Agreement on one
or
more occasions shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other
term
of this Agreement.
Section
5.9 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the Company and
Stockholders, and to their respective successors and assigns other than, in
the
case of Stockholders, transferees that are not Related Transferees, including
any successors to the Company or Stockholders or their businesses or assets
as
the result of any merger, consolidation, reorganization, transfer of assets
or
otherwise, and any subsequent successor thereto, without the execution or filing
of any instrument or the performance of any act; provided that no party may
assign this Agreement without the other party’s prior written consent, except by
the Stockholders to a Stockholder or a Related Transferee as expressly provided
in this Agreement (and that nothing herein restricts the transfer of any of
the
rights of Stockholders under the Registration Rights Agreement in accordance
the
terms of the Registration Rights Agreement).
Section
5.10 Governing
Law.
This
Agreement will be governed by and construed and enforced in accordance with
the
internal laws of the State of Delaware, without giving effect to the conflict
of
laws principles thereof.
Section
5.11 Further
Assurances.
From
time to time on and after the date of this Agreement, the Company and
Stockholders, as the case may be, shall deliver or cause to be delivered to
the
other party hereto such further documents and instruments and shall do and
cause
to be done such further acts as the other parties hereto shall reasonably
request to carry out more effectively the provisions and purposes of this
Agreement, to evidence compliance herewith or to assure that it is protected
in
acting hereunder.
Section
5.12 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, and any action for enforcement
of
any judgment in respect thereof shall be brought exclusively in the state or
federal courts located in the State of Delaware, and, by execution and delivery
of this Agreement, the Company and Stockholders 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 Stockholders at their respective addresses referred
to in this Agreement. The Company and Stockholders 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 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.
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Section
5.13 Stockholder
Action.
If and
when there is more than one Stockholder in accordance with the provisions of
this Agreement, the Company shall be entitled to rely upon any written notice,
designation, or instruction signed by Ares Corporate Opportunity Fund II, L.P.
(the “Representative”)
as a
notice, designation or instruction of all Stockholders and the Company shall
not
be liable to any Stockholder if the Company acts in accordance with and relies
upon such writing. Each of the Stockholders acknowledges that the Representative
has full power and authority to act on their behalf.
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IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed as of
the
date first referred to above.
|
WCA
WASTE CORPORATION
By:
_____________________________
Name:
__________________________
Title:
___________________________
|
|
ARES
CORPORATE OPPORTUNITIES FUND II, L.P.
ACOF
MANAGEMENT II, L.P.,
Its
General Partner
|
|
By:
ACOF OPERATING MANAGER II, L.P.,
Its
General Partner
|
|
By:
ARES MANAGEMENT, INC.,
Its
General Partner
|
|
By:
_____________________________
|
| Name: __________________________ |
| Title: ___________________________ |
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