EXHIBIT 99.3
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT dated as of April 21, 1997 (this
"AGREEMENT") is made and entered into by and between Apollo Investment Fund III,
L.P., a Delaware limited partnership, Apollo Overseas Partners III, L.P., a
Delaware limited partnership, and Apollo (U.K.) Partners III, L.P., an English
limited partnership (collectively, the "APOLLO PURCHASERS"), and Blackstone
Capital Partners II Merchant Banking Fund L.P., a Delaware limited partnership,
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, the "BLACKSTONE PURCHASERS" and, together
with the Apollo Purchasers, "PURCHASERS"), Xxxxxxx Inc., a Canadian corporation
("XXXXXXX") and Xxxxxxx Transportation, Inc., a Delaware corporation and a
wholly-owned subsidiary of Xxxxxxx ("LTI" and, together with Xxxxxxx,
"SELLERS"), and Allied Waste Industries, Inc., a Delaware corporation (the
"COMPANY"). Capitalized terms not otherwise defined herein have the meanings
set forth in SECTION 6.1.
WHEREAS, LTI owns (a) 14,600,000 shares of common stock, par value
$.01 per share, of the Company, constituting approximately 19.3% of the issued
and outstanding shares of capital stock of the Company as of the date hereof
(such shares being referred to herein as the "SHARES") and (b) Warrants to
purchase 20,400,000 shares of the Company's common stock (the "WARRANTS");
WHEREAS, Xxxxxxx owns (a) $150,000,000 aggregate principal amount of
the 7% Junior Subordinated Debentures of Allied Waste Finance (Canada) Ltd., a
Canadian corporation and a wholly-owned subsidiary of the Company ("ALLIED
FINANCE") (the "7% DEBENTURES") and (b) $168,300,000 aggregate principal amount
of the Zero Coupon Junior Subordinated Debentures of Allied Finance (the "ZERO
COUPON DEBENTURES" and, together with the 7% Debentures, the "DEBENTURES");
WHEREAS, LTI desires to sell, and Purchasers desire to purchase, the
Shares on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, LTI desires to sell the Warrants, and the Company desires to
purchase, the Warrants on the terms and subject to the conditions set forth in
this Agreement;
WHEREAS, Xxxxxxx desires to sell the Debentures, and the Company
desires to purchase, the Debentures on the terms and subject to the conditions
set forth in this Agreement;
WHEREAS, in connection with the agreement to purchase certain shares
of the Company's common stock (including the assignment of certain related
registration rights (the "TPG REGISTRATION RIGHTS")) pursuant to a Stock
Purchase Agreement dated April 14, 1997 between the Purchasers, TPG Partners,
L.P. and TPG Parallel I, L.P., the Company and Purchasers have entered into a
Shareholders Agreement, dated April 14, 1997 (the "TPG SHAREHOLDERS AGREEMENT");
WHEREAS, in connection with this Agreement, the Company and the
Purchasers have entered into (i) an amended and restated Shareholders Agreement,
dated the date hereof (the "SHAREHOLDERS AGREEMENT"), and (ii) a Registration
Rights Agreement (the "REGISTRATION RIGHTS AGREEMENT"), each effective upon the
Closing Date (which Shareholders Agreement and Registration Rights Agreement
shall supersede and replace the TPG Shareholders Agreement and the TPG
Registration Rights on the Closing Date);
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
SALE OF SHARES AND CLOSING
1.1 PURCHASE AND SALE. At the Closing, on the terms and subject to
the conditions set forth in this Agreement, (i) LTI agrees to sell to Purchasers
all of the right, title and interest of LTI in and to the Shares, and Purchasers
jointly and severally agree to purchase from LTI all of the Shares and (ii) LTI
agrees to sell to the Company all of the right, title and interest of LTI in and
to the Warrants, and the Company agrees to purchase from LTI all of the
Warrants, and (iii) Xxxxxxx agrees to sell to the Company all of the right,
title and interest of Xxxxxxx in and to the Debentures, and the Company agrees
to purchase from Xxxxxxx all of the Debentures.
1.2 PURCHASE PRICE.
(a) SHARES. Subject to adjustment as provided in SECTION
5.1(B), the purchase price per share for the Shares is $10.00 per share, or
$146,000,000 in the aggregate (the
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"SHARES PURCHASE PRICE"), payable in immediately available United States
funds at the Closing in the manner provided in SECTION 1.3.
(b) OTHER SECURITIES. Subject to adjustment as provided in
SECTION 5.1(B), the purchase price for the Debentures and the Warrants,
(collectively, the "OTHER SECURITIES") shall be $230,000,000 (the "OTHER
SECURITIES PURCHASE PRICE"), payable in immediately available United States
funds at the Closing in the manner provided in SECTION 1.3.
1.3 CLOSING. The Closing will take place at the offices of Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx, One New York Plaza, New York, New York, or at
such other place as Purchasers, Sellers and the Company mutually agree, at 10:00
A.M. local time, on the Closing Date; PROVIDED, that the parties hereto will use
commercially reasonable efforts to cause the Closing to occur by May 31, 1997.
At the Closing, Purchasers will pay the Shares Purchase Price and the Company
will pay the Other Securities Purchase Price by wire transfer of immediately
available funds to such account or accounts as Xxxxxxx may reasonably direct by
written notice delivered to Purchasers and the Company at least one (1) Business
Day before the Closing Date (Xxxxxxx shall accept delivery of the Securities
Purchase Price on behalf of itself and LTI, which hereby appoints Xxxxxxx as its
agent for such purpose). Simultaneously, (i) LTI will assign and transfer to
Purchasers all of LTI's right, title and interest in and to the Shares by
delivering to Purchasers one or more certificates representing such Shares, in
genuine and unaltered form, duly endorsed in blank or accompanied by duly
executed stock powers endorsed in blank, with requisite transfer tax stamps, if
any, attached, and (ii) each of Xxxxxxx and LTI will assign and transfer to the
Company all of Xxxxxxx'x and LTI's respective right, title and interest in and
to the Others Securities by delivering to the Company one or more Notes,
Warrants or other certificates representing such Other Securities, in genuine
and unaltered form, duly endorsed in blank or accompanied by duly executed bond
or stock powers endorsed in blank, with requisite transfer tax stamps, if any,
attached.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF SELLERS. Xxxxxxx and LTI,
jointly and severally, hereby represent and warrant to Purchasers and the
Company as follows:
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(a) ORGANIZATION. Each of Xxxxxxx and LTI is a corporation duly
organized, validly existing and in good standing under the laws of Canada
and Delaware, respectively. Each of Xxxxxxx and LTI has full corporate
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder and to consummate the transactions contemplated
hereby, including without limitation to own, hold, sell and transfer
(pursuant to this Agreement) the Shares and the Other Securities owned by
such Seller.
(b) TITLE TO SHARES. The Shares represent all of the common
stock and any other equity equivalents (other than the Warrants and options
held by Company directors who are affiliates of Sellers) of the Company
owned directly or indirectly by Sellers or any of their affiliates, and LTI
is the sole record and beneficial owner of such Shares, free and clear of
all Liens. The delivery of one or more certificates at the Closing
representing the Shares in the manner provided in SECTION 1.3 will transfer
to Purchasers good and valid title to the Shares, free and clear of all
Liens (except such as may be imposed on the Shares by the Purchasers).
(c) TITLE TO OTHER SECURITIES. The Other Securities represent
all of the securities (other than the Shares and options held by Company
directors who are affiliates of Sellers) of the Company owned directly or
indirectly by Sellers or any of their affiliates. Xxxxxxx is the sole
record and beneficial owner of the Debentures, and, LTI is the sole record
and beneficial owner of the Warrants, in each case, free and clear of all
Liens. The delivery of one or more Notes, Warrants or other certificates
at the Closing representing the Other Securities in the manner provided in
SECTION 1.3 will transfer to the Company good and valid title to the Other
Securities, free and clear of all Liens (except such as may be imposed on
the Other Securities by the Company).
(d) AUTHORITY. The execution and delivery by each of Xxxxxxx
and LTI of this Agreement and the performance by each of Xxxxxxx and LTI of
its obligations hereunder have been duly and validly authorized, no other
action on the part of Xxxxxxx, LTI or their stockholders being necessary.
This Agreement has been duly and validly executed and delivered by each of
Xxxxxxx and LTI and constitutes a legal, valid and binding obligation of
each of Xxxxxxx and LTI enforceable against each of Xxxxxxx and LTI in
accordance with its terms, except to the extent such enforceability may be
limited by (i) bankruptcy, insolvency,
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reorganization, moratorium or other similar laws relating to or affecting
generally the enforcement of creditors' rights and (ii) the availability of
equitable remedies (whether in a proceeding in equity or at law).
(e) NO CONFLICTS. The execution and delivery by each of Xxxxxxx
and LTI of this Agreement do not, and the performance by each of Xxxxxxx
and LTI of its obligations under this Agreement and the consummation of the
transactions contemplated hereby will not:
(i) conflict with or result in a violation or breach of any
of the terms, conditions or provisions of the certificate or articles
of incorporation or by-laws (or other comparable charter documents) of
Xxxxxxx or LTI;
(ii) subject to making all filings, giving all notices and
obtaining all approvals required under the HSR Act, conflict with or
result in a violation or breach of any term or provision of any Law or
Order applicable to Xxxxxxx or LTI, the Shares or the Other
Securities; or
(iii)(A) conflict with or result in a violation or breach
of, (B) constitute (with or without notice or lapse of time or both) a
default under, (C) require Xxxxxxx or LTI to obtain any consent from
any Person as a result or under the terms of, or (D) result in the
creation or imposition of any Lien (other than such Liens as may be
created by this Agreement) upon Xxxxxxx or LTI, the Shares or the
Other Securities under, any Contract to which Xxxxxxx or LTI is a
party.
(f) GOVERNMENTAL APPROVALS AND FILINGS. Other than the filing
of a Schedule 13D and applicable forms under Section 16 as required under
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), no
consent, approval or action of, filing with or notice to any Governmental
or Regulatory Authority on the part of Xxxxxxx or LTI is required in
connection with the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby.
(g) LEGAL PROCEEDINGS. As of the date of this Agreement, there
are no Actions or Proceedings pending or, to the knowledge of Xxxxxxx or
LTI, threatened against, relating to or affecting Xxxxxxx or LTI (or to the
knowledge of Xxxxxxx or LTI, the Company) which could reasonably be
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expected to result in the issuance of an Order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement.
(h) BROKERS. All negotiations relative to this Agreement and
the transactions contemplated hereby have been carried out by Xxxxxxx and
LTI directly with Purchasers and the Company without the intervention of
any Person on behalf of such Seller in such manner as to give rise to any
valid claim by any Person against Purchasers or the Company for a finder's
fee, brokerage commission or similar payment, except for Xxxxxxx, Xxxxx &
Co., whose fees (i) with respect to the purchase of the Shares shall be
payable by Purchasers and (ii) with respect to the Financing (as defined
herein) shall be payable by the Company.
(i) AGREEMENTS RELATING TO SHARES. Other than the documents
listed on SCHEDULE 2.1(I) (the "SELLERS AGREEMENTS"), true and complete
copies of which have been filed with the Securities and Exchange Commission
by the Company and made available to Purchasers, neither Xxxxxxx nor LTI is
a party to (i) any Contracts or other arrangements concerning the
acquisition, disposition or the voting of the Shares or the Other
Securities, (ii) any options with respect to the Shares or the Other
Securities, including without limitation any form of preemptive rights or
claims of third parties or (iii) any outstanding proxies, shareholder
agreements, voting trusts, powers of attorney or comparable delegations of
authority concerning the Shares or the Other Securities. Each Sellers
Agreement is valid, binding and in full force and effect.
2.2 REPRESENTATIONS AND WARRANTIES OF PURCHASERS. Each Purchaser,
severally but not jointly, hereby represents and warrants to Sellers and the
Company as follows:
(a) ORGANIZATION. Purchaser is a limited partnership duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization. Purchaser has full power and authority to
execute and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby.
(b) AUTHORITY. The execution and delivery by Purchaser of this
Agreement, and the performance by Purchaser of its obligations hereunder,
have been duly and validly authorized, no other action on the part of
Purchaser, its general partner or their respective partners and
stockholders being necessary. This Agreement has been
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duly and validly executed and delivered by Purchaser and constitutes a
legal, valid and binding obligation of Purchaser enforceable against
Purchaser in accordance with its terms, except to the extent such
enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
generally the enforcement of creditors' rights and (ii) the availability of
equitable remedies (whether in a proceeding in equity or at law).
(c) NO CONFLICTS. The execution and delivery by Purchaser of
this Agreement do not, and the performance by Purchaser of its obligations
under this Agreement and the consummation of the transactions contemplated
hereby will not:
(i) conflict with or result in a violation or breach of any
of the terms, conditions or provisions of the partnership agreement,
certificate or articles of incorporation or by-laws (or other
comparable organizational documents) of Purchaser or its general
partner;
(ii) subject to making all filings, giving all notices and
obtaining all approvals required under the HSR Act, conflict with or
result in a violation or breach of any term or provision of any Law or
Order applicable to Purchaser;
(iii)(A) conflict with or result in a violation or breach
of, (B) constitute (with or without notice or lapse of time or both) a
default under, or (C) require Purchaser to obtain any consent from any
Person as a result or under the terms of, any Contract to which
Purchaser is a party.
(d) GOVERNMENTAL APPROVALS AND FILINGS. Other than filings,
notices and approvals required under the HSR Act and the Exchange Act, no
consent, approval or action of, filing with or notice to any Governmental
or Regulatory Authority on the part of Purchaser is required in connection
with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
(e) LEGAL PROCEEDINGS. As of the date hereof, there are no
Actions or Proceedings pending or, to the knowledge of Purchaser,
threatened against, relating to or affecting Purchaser which could
reasonably be expected to result in the issuance of an Order restraining,
enjoining or
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otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement.
(f) PURCHASE FOR INVESTMENT. The Shares will be acquired by
Purchaser (or, if applicable, its permitted assigns hereunder) for its own
account for the purpose of investment, it being understood that the right
to dispose of such Shares shall be entirely within the discretion of
Purchaser (or such assignee, as the case may be).
(g) BROKERS. All negotiations relative to this Agreement and
the transactions contemplated hereby have been carried out by Purchaser
directly with Sellers and the Company without the intervention of any
Person on behalf of such Purchaser in such manner as to give rise to any
valid claim by any Person against Sellers or the Company for a finder's
fee, brokerage commission or similar payment, except for Xxxxxxx, Xxxxx &
Co., whose fees (i) with respect to the purchase of the Shares shall be
payable by Purchasers and (ii) with respect to the Financing shall be
payable by the Company.
2.3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Purchasers and Sellers as follows:
(a) ORGANIZATION. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. The Company has full corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby, including without
limitation to purchase (pursuant to this Agreement) the Other Securities.
(b) AUTHORITY. The execution and delivery by the Company of
this Agreement and the performance by the Company of its obligations
hereunder have been duly and validly authorized, no other action on the
part of the Company or its stockholders being necessary. This Agreement
has been duly and validly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except to the
extent such enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
generally the enforcement of creditors' rights and (ii) the availability of
equitable remedies (whether in a proceeding in equity or at law).
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(c) NO CONFLICTS. The execution and delivery by the Company of
this Agreement do not, and the performance by the Company of its
obligations under this Agreement and the consummation of the transactions
contemplated hereby will not:
(i) conflict with or result in a violation or breach of any
of the terms, conditions or provisions of the certificate or by-laws
of the Company;
(ii) subject to making all filings, giving all notices and
obtaining all approvals required under the HSR Act and the Exchange
Act, conflict with or result in a violation or breach of any term or
provision of any Law or Order applicable to the Company, the Shares or
the Other Securities, except as would not, and in the aggregate have a
material adverse effect on the Business or Condition of the Company or
the consummation of the transactions contemplated hereby;
(iii)(A) conflict with or result in a violation or breach
of, (B) constitute (with or without notice or lapse of time or both) a
default under, or (C) require the Company to obtain any consent from
any Person as a result or under the terms of, any Contract to which
the Company is a party, except as would not, in the aggregate have a
material adverse effect on the Business or Condition of the Company or
the consummation of the transactions contemplated hereby.
(d) GOVERNMENTAL APPROVALS AND FILINGS. Other than filings,
notices and approvals required under the HSR Act and the Exchange Act, no
consent, approval or action of, filing with or notice to any Governmental
or Regulatory Authority on the part of the Company is required in
connection with the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby.
(e) LEGAL PROCEEDINGS. As of the date of this Agreement, there
are no Actions or Proceedings pending or, to the knowledge of the Company,
threatened against, relating to or affecting the Company which could
reasonably be expected to result in the issuance of an Order restraining,
enjoining or otherwise prohibiting or making illegal the consummation of
any of the transactions contemplated by this Agreement.
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(f) BROKERS. All negotiations relative to this Agreement and
the transactions contemplated hereby have been carried out by the Company
directly with Purchasers and Sellers without the intervention of any Person
on behalf of the Company in such manner as to give rise to any valid claim
by any Person against Purchasers, Sellers or the Company for a finder's
fee, brokerage commission or similar payment, except for Xxxxxxx, Sachs &
Co., whose fees (i) with respect to the purchase of the Shares shall be
payable by Purchasers and (ii) with respect to the Financing shall be
payable by the Company.
(g) USRPHC STATUS. None of the Company and its subsidiaries is
a United States real property holding company within the meaning of Section
897(c)(2) of the Internal Revenue Code of 1986, as amended (the "CODE")
during the applicable period specified in Code Section 897(c)(1)(A)(ii).
ARTICLE III
COVENANTS
3.1 COVENANTS OF SELLERS. Each Seller, jointly and severally,
covenants and agrees with Purchasers and the Company that:
(a) NO SOLICITATIONS. From and after the date hereof, Seller
will not take, nor will it permit any affiliate of Seller (or authorize or
permit any investment banker, financial advisor, attorney, accountant or
other Person retained by or acting for or on behalf of Seller or any such
affiliate) to take, directly or indirectly, any action to solicit,
encourage, receive, negotiate, assist or otherwise facilitate any offer or
inquiry from any Person concerning a transfer of the Shares or the Other
Securities (other than the sale pursuant to this Agreement). If Seller or
any such affiliate (or any such Person acting for or on their behalf)
receives from any Person any offer, inquiry or informational request
referred to above, Seller will promptly advise such Person, by written
notice, of the terms of this Section and will promptly, orally and in
writing, advise Purchasers and the Company of such offer, inquiry or
request and deliver a copy of such notice to Purchasers and the Company.
(b) CERTAIN RESTRICTIONS. Seller will not vote the Shares in
any manner that would have a material adverse effect on the Business or
Condition of the Company or vote
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for any material transaction not otherwise in the ordinary course of
business of the Company.
(c) NOTICE AND CURE. Seller will notify Purchasers and the
Company in writing of, and contemporaneously will provide Purchasers and
the Company with true and complete copies of any and all information or
documents relating to, and will use all commercially reasonable efforts to
cure before the Closing, any event, transaction or circumstance, as soon as
practicable after it becomes known to Seller, occurring after the date of
this Agreement that causes or will cause any covenant or agreement of
Seller under this Agreement to be breached or that renders or will render
untrue any representation or warranty of Seller contained in this Agreement
as if the same were made on or as of the date of such event, transaction or
circumstance.
(d) BOARD RESIGNATIONS. Seller shall cause each of Xxxxx X.
Xxxxxxx and Xxxx X. Xxxxxx (or any other person who shall replace or
succeed such person as a member of the Board of Directors of the Company),
representing all of Sellers' designees or affiliates on the Board of
Director of the Company, to have resigned from the Board of Directors of
the Company on or prior to the Closing Date.
(e) AMENDMENTS AND ASSIGNMENTS. From the date hereof until the
earlier to occur of the Closing or the termination of this Agreement,
without the consent of Purchasers, Sellers will not materially amend the
Sellers Agreements or assign any of their rights under this Agreement.
3.2 COVENANTS OF PURCHASER. Each Purchaser, severally but not
jointly, covenants and agrees with Sellers and the Company that:
(a) HSR. Purchaser will promptly take all reasonable actions to
obtain all approvals required under the HSR Act in connection with the
transactions contemplated by this Agreement.
(b) NOTICE AND CURE. Purchaser will notify Sellers and the
Company in writing of, and contemporaneously will provide Sellers and the
Company with true and complete copies of any and all information or
documents relating to, and will use all commercially reasonable efforts to
cure before the Closing, any event, transaction or circumstance, as soon as
practicable after it becomes known to Purchaser,
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occurring after the date of this Agreement that causes or will cause any
covenant or agreement of Purchaser under this Agreement to be breached or
that renders or will render untrue any representation or warranty of
Purchaser contained in this Agreement as if the same were made on or as of
the date of such event, transaction or circumstance. No notice given
pursuant to this Section shall have any effect on the representations,
warranties, covenants or agreements contained in this Agreement for
purposes of determining satisfaction of any condition contained herein.
(c) AMENDMENTS AND ASSIGNMENTS. From the date hereof until the
earlier to occur of the Closing or the termination of this Agreement,
without the consent of Sellers, Purchasers will not materially amend the
TPG Shareholders Agreement or assign any of their rights under this
Agreement; PROVIDED, that the Purchasers may assign this Agreement to any
Person who is a Related Transferee (as such term is defined in the TPG
Shareholders Agreement).
3.3 COVENANTS OF THE COMPANY. The Company covenants and agrees with
Sellers and Purchasers that:
(a) HSR. The Company will promptly take all reasonable actions
to obtain all approvals required under the HSR Act in connection with the
transactions contemplated by this Agreement.
(b) CONDUCT OF BUSINESS. Until the Closing, the Company will
conduct business only in the ordinary course consistent with past practice,
except with the written consent of Purchasers or as otherwise contemplated
by this Agreement (including the Financing) or the TPG Shareholders
Agreement.
(c) CERTAIN RESTRICTIONS. Until the Closing, the Company will
not without the written consent of Purchasers:
(i) amend its certificate of incorporation or by-laws,
except as contemplated by the TPG Shareholders Agreement, or take any
action with respect to any such amendment or any recapitalization,
reorganization, liquidation or dissolution of the Company;
(ii) authorize, issue, sell or otherwise dispose of any
shares of capital stock of or any option with respect to the Company
(other than (x) grants of stock or stock options pursuant to the
Company's benefit plans and (y) issuances of shares of common
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stock upon the exercise of such options, the conversion of
currently outstanding securities or, in lieu of cash,
acquisitions permitted in the ordinary course of business
under SECTION 3.3(B)), or modify or amend any right of any
holder of outstanding shares of capital stock of or option
with respect to the Company;
(iii) declare, set aside or pay any dividend or other
distribution in respect of the capital stock of the Company, or
directly or indirectly redeem, purchase or otherwise acquire any
capital stock of or any option with respect to the Company (except
with respect to the payment of regular dividends on shares of
preferred stock); or
(iv) enter into any Contract to do or engage in any of the
foregoing.
(d) NOTICE AND CURE. The Company will notify Sellers and
Purchasers in writing of, and contemporaneously will provide Sellers and
Purchasers with true and complete copies of any and all information or
documents relating to, and will use all commercially reasonable efforts to
cure before the Closing, any event, transaction or circumstance, as soon as
practicable after it becomes known to the Company, occurring after the date
of this Agreement that causes or will cause any covenant or agreement of
the Company under this Agreement to be breached or that renders or will
render untrue any representation or warranty of the Company contained in
this Agreement as if the same were made on or as of the date of such event,
transaction or circumstance. No notice given pursuant to this Section
shall have any effect on the representations, warranties, covenants or
agreements contained in this Agreement for purposes of determining
satisfaction of any condition contained herein.
(e) FINANCING. The Company will use commercially reasonable
efforts to obtain the financing (the "FINANCING") for the Company's
purchase of the Other Securities from Sellers on such terms as are
satisfactory to Purchasers and the Company, and to obtain on the Closing
Date the funds contemplated to be raised by such Financing.
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ARTICLE IV
CONDITIONS
4.1 SELLERS' CONDITIONS. The obligation of Sellers hereunder to sell
the Shares and the Other Securities are subject to the fulfillment, at or before
the Closing, of each of the following conditions (all or any of which may be
waived in whole or in part by Sellers in their sole discretion):
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by Purchasers and the Company in this Agreement shall
be true and correct in all material respects on and as of the Closing Date
as though such representation or warranty was made on and as of the Closing
Date.
(b) PERFORMANCE. Purchasers and the Company shall have
performed and complied with, in all material respects, each agreement,
covenant and obligation required by this Agreement to be so performed or
complied with by Purchasers and the Company at or before the Closing.
(c) REGULATORY CONSENTS AND APPROVALS. All approvals (or
terminations or expirations of waiting periods) required under the HSR Act
necessary for the consummation of the transactions contemplated by this
Agreement shall have been obtained (or terminated or expired).
(d) NO ORDERS. There shall not be in effect on the Closing Date
any Order restraining, enjoining or otherwise prohibiting or making illegal
the consummation of any of the transactions contemplated by this Agreement.
(e) PURCHASE OF SHARES AND OTHER SECURITIES. The Purchasers
shall have paid to Sellers the Shares Purchase Price for the Shares and the
Company shall have paid to Sellers the Other Securities Purchase Price for
the Other Securities.
4.2 PURCHASERS' CONDITIONS. The obligations of Purchasers hereunder
to purchase the Shares is subject to the fulfillment, at or before the Closing,
of each of the following conditions (all or any of which may be waived in whole
or in part only by Purchasers in their sole discretion, except that Purchasers
shall not waive the conditions in SECTION 4.2(G) without the Company's consent):
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(a) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by Sellers and the Company in this Agreement shall be
true and correct in all material respects on and as of the Closing Date as
though such representation or warranty was made on and as of the Closing
Date.
(b) PERFORMANCE. Sellers and the Company shall have performed
and complied with, in all material respects, each agreement, covenant and
obligation required by this Agreement to be so performed or complied with
by Sellers and the Company at or before the Closing.
(c) REGULATORY CONSENTS AND APPROVALS. All approvals (or
terminations or expirations of waiting periods) required under the HSR Act
necessary for the consummation of the transactions contemplated by this
Agreement shall have been obtained (or terminated or expired).
(d) NO ORDERS. There shall not be in effect on the Closing Date
any Order restraining, enjoining or otherwise prohibiting or making illegal
the consummation of any of the transactions contemplated by this Agreement.
(e) DELIVERY OF SHARES. All of the Shares, and not just a
portion thereof, shall have been delivered for sale by Xxxxxxx.
(f) PURCHASE OF OTHER SECURITIES. All of the Other Securities,
and not just a portion thereof, shall have been delivered for sale by
Sellers, and the Company shall have completed the Financing and purchased
the Other Securities for the Other Securities Purchase Price.
(g) BOARD RESIGNATIONS. Each of Xxxxx X. Xxxxxxx and Xxxx X.
Xxxxxx (or any other person who shall replace or succeed such person as a
member of the Board of Directors of the Company), representing all of
Sellers' designees or affiliates on the Board of Director of the Company,
shall have resigned from the Board of Directors of the Company.
(h) USRPHC AFFIDAVIT. The Company shall have delivered to
Purchasers an affidavit of an authorized officer in form and substance
reasonably satisfactory to Purchasers indicating that none of the Company
or the Company's subsidiaries is a United States real property holding
company within the meaning of Code Section 897(c)(2) during the applicable
period specified in Code Section 897(c)(1)(A)(ii).
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4.3 THE COMPANY'S CONDITIONS. The obligation of Company hereunder to
purchase the Other Securities is subject to the fulfillment, at or before the
Closing, of each of the following conditions (all or any of which may be waived
in whole or in part by the Company in its sole discretion):
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by Sellers and Purchasers in this Agreement shall be
true and correct in all material respects on and as of the Closing Date as
though such representation or warranty was made on and as of the Closing
Date.
(b) PERFORMANCE. Sellers and Purchasers shall have performed
and complied with, in all material respects, each agreement, covenant and
obligation required by this Agreement to be so performed or complied with
by Sellers and Purchasers at or before the Closing.
(c) REGULATORY CONSENTS AND APPROVALS. All approvals (or
terminations or expirations of waiting periods) required under the HSR Act
necessary for the consummation of the transactions contemplated by this
Agreement shall have been obtained (or terminated or expired).
(d) NO ORDERS. There shall not be in effect on the Closing Date
any Order restraining, enjoining or otherwise prohibiting or making illegal
the consummation of any of the transactions contemplated by this Agreement.
(e) FINANCING. The Company shall have consummated the
Financing.
(f) DELIVERY OF OTHER SECURITIES. All of the Other Securities,
and not just a portion thereof, shall have been delivered for sale by
Sellers.
(g) PURCHASE OF SHARES. All of the Shares, and not just a
portion thereof, shall have been delivered for sale by Xxxxxxx and
purchased by Purchasers.
(h) BOARD RESIGNATIONS. Each of Xxxxx X. Xxxxxxx and Xxxx X.
Xxxxxx (or any other person who shall replace or succeed such person as a
member of the Board of Directors of the Company), representing all of
Sellers' designees or affiliates on the Board of Director of the Company,
shall have resigned from the Board of Directors of the Company.
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ARTICLE V
TERMINATION
5.1 TERMINATION. This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned:
(a) at any time before the Closing, by mutual written agreement
of Sellers, Purchasers and the Company; or
(b) at any time after May 31, 1997, by Sellers, Purchasers or the
Company, upon notification to the non-terminating parties by the
terminating party if the Closing shall not have occurred on or before such
date and such failure to consummate is not caused by a breach of this
Agreement by the terminating party; PROVIDED, that Purchasers shall have
the right from time to time to extend such date for up to an additional 10
days upon written notice to Sellers on or prior to such date. For each day
that Purchasers and the Company extend the termination date by written
notification pursuant to the foregoing provision, $25,000 shall be added to
the Shares Purchase Price and $75,000 shall be added to the Other
Securities Purchase Price, with the payment of such additional amounts
being subject to the same terms and conditions hereunder as the payment of
such Purchase Prices.
5.2 EFFECT OF TERMINATION. If this Agreement is validly terminated
pursuant to SECTION 5.1, this Agreement will forthwith become null and void, and
there will be no liability or obligation on the part of Sellers, Purchasers or
the Company (or any of their respective officers, directors, employees, agents
or other representatives or affiliates), except as provided in the next
succeeding sentence and except that the provisions with respect to
confidentiality in SECTION 7.1 will continue to apply following any such
termination. Notwithstanding any other provision in this Agreement to the
contrary, upon termination of this Agreement pursuant to SECTION 5.1(B), each
party will remain liable to the other parties for any willful breach of this
Agreement by such party existing at the time of such termination, and such other
parties may seek such remedies, including damages and fees of attorneys, against
the other with respect to any such breach as are provided in this Agreement or
as are otherwise available at Law or in equity.
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ARTICLE VI
DEFINITIONS
6.1 DEFINITIONS. (a) DEFINED TERMS. As used in this Agreement, the
following defined terms have the meanings indicated below:
"ACTIONS OR PROCEEDINGS" means any action, suit, proceeding,
arbitration or Governmental or Regulatory Authority investigation or audit.
"BUSINESS OR CONDITION OF THE COMPANY" means the business, condition
(financial or otherwise), results of operations, assets and properties and
prospects of the Company taken as a whole.
"BUSINESS DAY" means a day other than Saturday, Sunday or any other
day on which banks located in the States of New York or California are
authorized or obligated to close.
"CLOSING" means the closing of the transactions contemplated by
SECTION 1.3.
"CLOSING DATE" means (a) the later of (i) the first Business Day after
the day on which the last of the approval or waiting period described in SECTION
4.1(C), SECTION 4.2(C) and SECTION 4.3(C) has been obtained or has expired, as
applicable, or (ii) the date of the consummation of the Financing or (b) such
other date as Purchasers, Sellers and the Company mutually agree upon in
writing.
"COMPANY" means Allied Waste Industries, Inc., a Delaware corporation.
Unless the context requires otherwise, all references to the Company herein
shall be deemed to include all of the consolidated subsidiaries of the Company.
"CONTRACT" means any agreement, lease, license, evidence of
indebtedness, mortgage, indenture, security agreement or other contract (whether
written or oral).
"FINANCING" shall have the meaning set forth in SECTION 3.3(E).
"GOVERNMENTAL OR REGULATORY AUTHORITY" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision.
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"XXX XXX" means Section 7A of the Xxxxxxx Act (Title II of the Xxxx-
Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended) and the rules and
regulations promulgated thereunder.
"LAWS" means all laws, statutes, rules, regulations, ordinances and
other pronouncements having the effect of law of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision or of any Governmental or Regulatory Authority.
"LIENS" means any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind, or
any conditional sale Contract, title retention Contract or other Contract to
give any of the foregoing.
"ORDER" means any writ, judgment, decree, injunction or similar order
of any Governmental or Regulatory Authority (in each such case whether
preliminary or final).
"PERSON" means any natural person, corporation, general partnership,
limited partnership, proprietorship, other business organization, trust, union,
association or Governmental or Regulatory Authority.
ARTICLE VII
MISCELLANEOUS
7.1 CONFIDENTIALITY. Until this Agreement is publicly disclosed, no
party to this Agreement will, and each party will cause its respective
representatives not to, make any release to the press or other public disclosure
with respect to the existence or contents of this Agreement or the transactions
contemplated by this Agreement, except for such public disclosure as may be
necessary for the party proposing to make the disclosure not to be in violation
of or default under any applicable law, regulation or governmental order. If
any party proposes to make any such disclosure, such party will in good faith
consult with and consider the suggestions of the other parties concerning the
nature and scope of the information it proposes to disclose.
7.2 FURTHER ASSURANCES. The parties hereto will execute and deliver
at or prior to the Closing each agreement and other document that such party is
required hereby to execute and deliver as a condition to the Closing, and will
take all commercially reasonable steps necessary or desirable and proceed
diligently and in good faith to satisfy each condition to the
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obligations of such party contained in this Agreement and will not take or fail
to take any action that could reasonably be expected to result in the
nonfulfillment of any such condition. At the Closing and from time to time
thereafter, the parties hereto shall execute and deliver such other documents
and instruments (including officers' certificates and opinions of counsel),
provide such materials and information and take such other actions as may be
reasonably requested to cause such party to fulfill its obligations under this
Agreement.
7.3 ENTIRE AGREEMENT. This Agreement, the TPG Shareholders Agreement,
the Shareholders Agreement and the Registration Rights Agreement supersede all
prior discussions and agreements between the parties with respect to the subject
matter hereof and thereof, and this Agreement contains the sole and entire
agreement between the parties hereto with respect to the subject matter hereof.
7.4 AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
7.5 REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity. Notwithstanding the foregoing, the parties acknowledge that
it will be impossible to measure in money the damage caused by any failure of
either party to comply with its agreements set forth herein, that each such
agreement is material, and that in the event of any such failure, the other
party will not have an adequate remedy at law or in damages. Therefore, each
party consents to the issuance of an injunction or the enforcement of other
equitable remedies against such party at the suit of the other party, without
bond or other security, to compel performance of all of the terms hereof, and
each party hereby waives the defense of availability of relief in damages.
7.6 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to a Contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
7.7 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Each Seller
hereby irrevocably appoints Xxxx X. Xxxxxx, at its office at 0000 Xxxxx Xxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxx, Xxxxxx, and each Apollo Purchaser hereby irrevocably
appoints Xxxxx Xxxxxx, at its offices at 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000,
Xxx Xxxxxxx, Xxxxxxxxxx, and each Blackstone Purchaser hereby irrevocably
appoints Xxxxxx Xxxxxx, at its offices at 000 Xxxx
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Xxxxxx, Xxx Xxxx, Xxx Xxxx, and the Company hereby irrevocably appoints Xxxxx
Xxxx, at its offices at 00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Arizona, its lawful agent and attorney to accept and acknowledge service of any
and all process against it in any action, suit or proceeding arising out of or
relating to this Agreement or any of the transactions contemplated hereby and
upon whom such process may be served, with the same effect as if such party were
a resident of the State of Delaware and had been lawfully served with such
process in such jurisdiction, and waives all claims of error by reason of such
service, PROVIDED that in the case of any service upon such agent and attorney,
the party effecting such service shall also deliver a copy thereof to the other
parties. Sellers, Purchasers and the Company will enter into such agreements
with such agents as may be necessary to constitute and continue the appointment
of such agents hereunder. In the event that such agent and attorney resigns or
otherwise becomes incapable of acting as such, such party will appoint a
successor agent and attorney, reasonably satisfactory to the other parties, with
like powers. Each party hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court for the Southern District of
New York or any court of the State of New York located in the Borough of
Manhattan in the City of New York in any action, suit or proceeding arising out
of or relating to this Agreement or any of the transactions contemplated hereby,
and agrees that any such action, suit or proceeding shall be brought only in
such court, PROVIDED, HOWEVER, that such consent to jurisdiction is solely for
the purpose referred to in this SECTION 7.7 and shall not be deemed to be a
general submission to the jurisdiction of said courts or in the State of
Delaware other than for such purpose. Each party hereby irrevocably waives, to
the fullest extent permitted by Law, any objection that it may now or hereafter
have to the laying of the venue of any such action, suit or proceeding brought
in such a court and any claim that any such action, suit or proceeding brought
in such a court has been brought in an inconvenient forum.
7.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
7.9 MISCELLANEOUS. The Company shall have the right to assign its
right to purchase the Other Securities to any of its wholly-owned subsidiaries,
PROVIDED that no such assignment shall relieve the Company of any of its
obligations hereunder.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
XXXXXXX INC.
By: \s\ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and General Counsel
XXXXXXX TRANSPORTATION, INC.
By: \s\ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and General Counsel
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
-----------------------------------
Name: 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
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
ALLIED WASTE INDUSTRIES, INC.
By: \s\ Xxxxxx Xxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: President and Chief Operating Officer
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Schedule 2.1(i)
- Stock Purchase Agreement, dated September 17, 1996, as amended on December
30, 1996
- $150 million 7% Junior Subordinated Debenture due 2008, dated December 30,
1996
- Zero Coupon Junior Subordinated Debenture due 2008, dated December 30, 1996
- Warrant (to purchase 20,400,000 shares of Allied common stock), dated
December 30, 1996
- Subscription Agreement, dated December 30, 1996
- Registration Rights Agreement, dated December 30, 1996
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