VOTING AGREEMENT
THIS VOTING AGREEMENT (this
“Agreement”)
is made and entered into as of December 9, 2009, by and among WCA Waste
Corporation, a Delaware corporation (“WCA”), and
the holders of shares of common stock of WCA set forth on Schedule A hereto
(each, a “Stockholder”
and together, the “Stockholders”). Capitalized
terms used but not otherwise defined in this Agreement shall have the meanings
ascribed to such terms in the Purchase Agreement (as defined
below). WCA and WCA Subs (defined below) are collectively referred to
as the “WCA
Parties.” The WCA Parties and Stockholders are collectively
referred to as the “Parties.”
RECITALS
WHEREAS, WCA and the
Stockholders are entering into this Agreement in connection with the execution
of the Equity Interest and Asset Purchase Agreement dated December 9, 2009 (the
“Purchase
Agreement”), by and among WCA, WCA of Massachusetts, LLC, a Delaware
limited liability company and an indirect wholly-owned subsidiary of WCA (“WCA
Massachusetts”), WCA of Ohio, LLC, a Delaware limited liability company
and an indirect wholly-owned subsidiary of WCA (“WCA Ohio,”
together with WCA Massachusetts, the “WCA
Subs,”), Live Earth LLC, an Ohio limited liability company (“Live
Earth”), Champion City Recovery, LLC, a Massachusetts limited liability
company (“CC”),
Boxer Realty Redevelopment, LLC, a Massachusetts limited liability company
(“BR”),
Sunny Farms Landfill, LLC, an Ohio limited liability company (“SF”) and
New Amsterdam & Seneca Railroad Company, LLC, an Ohio limited liability
company (“NA,” and
together with Live Earth, CC, BR and SF, the “Live Earth
Parties”) and pursuant to which the WCA Subs will acquire (the “Acquisition”)
the Equity Interests (as defined in the Purchase Agreement) and the Transferred
Assets (as defined in the Purchase Agreement);
WHEREAS, the Stockholders hold
the number of shares of WCA common stock (the “WCA
Shares”) set forth opposite each Stockholder’s name on Schedule A
hereto;
WHEREAS, the Stockholders are
the beneficial owners of the number of issued and outstanding limited liability
company interests of Live Earth (the “Interests”)
set forth opposite each Stockholder’s name on Schedule A hereto
(such limited liability company interests, together with any limited liability
company interests of Live Earth in the future owned beneficially or of record by
each Stockholder, including any and all securities having voting rights issued
or issuable in respect thereof, which each Stockholder is entitled to vote, the
“Covered
Interests”);
WHEREAS, WCA will file a proxy
statement with the Securities and Exchange Commission in connection with its
Special Meeting of Stockholders (along with any adjournment thereof, the “WCA Stockholders
Meeting”) to be held for the purpose of voting on the issuance of the
Securities (the “WCA
Approval”), and Live Earth has obtained the approval of the holders of at
least 51% of its limited liability company interests of the Acquisition (the
“Acquisition
Consent”); and
WHEREAS, as a condition to its
willingness to enter into the Purchase Agreement, the WCA Parties have requested
that the Stockholders enter into this Agreement and agree to vote their WCA
Shares in favor of the WCA Approval at the WCA Stockholders Meeting and agree
not to revoke the Acquisition Consent with respect to their Covered Interests,
upon the terms and subject to the conditions hereof.
AGREEMENT
NOW, THEREFORE, in order to
induce the WCA Parties to enter into the Purchase Agreement and in consideration
of the representations, warranties, covenants and agreements set forth herein
and in the Purchase Agreement (including the benefits that the Parties expect to
derive from the Acquisition), the receipt and sufficiency of all of which are
hereby acknowledged by the Parties, the Parties agree as follows:
ARTICLE
1
1.1 Agreement Regarding Covered
Interests. Each Stockholder hereby agrees that it will (a) not
revoke the consent it has provided with respect to the Covered Interests owned
or controlled by it pursuant to the Acquisition Consent, and (b) vote all of the
Covered Interests owned or controlled by it (whether at a meeting of the members
of Live Earth or by written consent in lieu thereof) to reject any proposal made
in opposition to the Acquisition or any other action or transaction which is
intended to or could frustrate or impair the right or ability of the WCA Parties
and the Live Earth Parties to consummate the Acquisition, including without
limitation any competing proposal to acquire all or a substantial part of the
business or assets of Live Earth or any or its subsidiaries or any equity
interests of Live Earth or any of its subsidiaries, whether by acquisition,
tender offer, exchange offer, sale of assets or other transaction involving Live
Earth, any of its subsidiaries or the Live Earth members; provided, however,
that the foregoing covenant and agreement shall not prohibit the Stockholder
from taking or omitting to take any action in his capacity as a director or
officer of Live Earth pursuant to any fiduciary duty imposed upon him by
applicable law, even though such action or omission is inconsistent with any
action required to be taken by the Stockholder in his capacity as a holder of
the Covered Interests under this Section
1.1.
1.2 Agreement by Stockholders to
Vote WCA Shares. Each Stockholder hereby covenants and agrees
to vote all the WCA Shares owned or controlled by them at the WCA Stockholders
Meeting (a) in favor of WCA Approval and (b) rejecting any proposal made in
opposition to the WCA Approval or any other action or transaction which is
intended to or could frustrate or impair the ability of the WCA Parties and the
Live Earth Parties to consummate the Acquisition.
2
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF EACH STOCKHOLDER
Each
Stockholder represents and warrants to WCA Parent that:
(a) the
Stockholder has full power and authority to enter into this Agreement and to
perform the Stockholder’s obligations hereunder;
(b) this
Agreement has been duly executed and delivered by, and (assuming due
authorization, execution and delivery by the WCA Parties) constitutes a valid
and binding obligation of, the Stockholder, enforceable against such Stockholder
in accordance with its terms;
(c) as
of the date hereof, the WCA Shares and the Covered Interests are beneficially
owned, and as of the Closing, the WCA Shares will be beneficially owned, by the
Stockholder;
(d) as
of the Closing, the Covered Interests collectively beneficially owned by the
Stockholders will not represent less than 42% of limited liability company
interests in Live Earth;
(e) the
Covered Interests are all of the securities of Live Earth owned beneficially or
of record by the Stockholder on the date hereof that are issued and
outstanding;
(f) the
WCA Shares are all of the securities of WCA owned beneficially or of record by
the Stockholder on the date hereof that are issued and outstanding;
(g) if
the Stockholder acquires any additional equity securities of Live Earth after
the date hereof, such securities will, without further action of the Stockholder
or WCA, be deemed to be Covered Interests hereunder;
(h) the
Stockholder will not sell, assign, transfer, gift or otherwise dispose of any
WCA Shares from the date hereof through the Closing, and if the Stockholder
acquires any additional equity securities of WCA after the date hereof, such
securities will, without further action of the Stockholder or WCA, be deemed to
be WCA Shares hereunder;
(i) the
Stockholder will not deposit the Covered Interests or the WCA Shares into a
voting trust or enter into a voting agreement or arrangement with respect to the
Covered Interests or WCA Shares or grant any proxy or power of attorney that is
inconsistent with this Agreement;
(j) the
Stockholder owns the Covered Interests and WCA Shares free and clear of all
liens, charges, claims, encumbrances and security interests of any nature
whatsoever; and
3
(k) the
execution and delivery of this Agreement by the Stockholder and the consummation
by the Stockholder of the transactions contemplated hereby do not require the
consent, approval or authorization of, or filing with, any person or public
authority.
ARTICLE
3
DISPUTE
RESOLUTION
3.1 Mediation. If
a dispute arises out of or relates to this Agreement, the relationships that
result from the Agreement or the breach of the Agreement or the validity or
application of any of the provisions of this Section 3.1, and, if
the dispute cannot be settled through negotiation, the Parties agree to submit
the dispute to mediation prior to commencing litigation. The Parties
will attempt in good faith to agree on a neutral mediator to resolve the
dispute. The mediation will follow the procedures set forth in the
American Arbitration Association Commercial Mediation Rules. If the
Parties cannot agree on a mediator within 20 days after mediation has been
demanded, they will submit the dispute for mediation to be administered by the
American Arbitration Association under the Commercial Mediation Rules before
resorting to litigation. No Party may commence or pursue litigation
until this non-binding mediation has been conducted and
concluded. However, the mediation shall occur in consecutive days and
shall not, unless the Parties otherwise agree, extend beyond two
weekends. The Parties agree that, upon initiating mediation, they
will agree with the mediator on a time at least five days before the mediation
to submit and exchange with one another detailed position papers. The
position papers shall include a factual recitation of the dispute, each Party’s
position on the facts and the law, the Party’s assessment of the likely outcome
and its/their position on settlement. Each Party will bear its own
expenses incurred (including attorneys’ fees) in connection with the mediation,
and will equally share the mediator’s fees and expenses.
3.2 Litigation. If
the Parties are unable to resolve their dispute by mediation, after the
unsuccessful conclusion of any such mediation, any Party may pursue the remedies
available to it at law or equity.
3.3 Attorneys’
Fees. Should any litigation be commenced under this Agreement,
the successful Party in such litigation shall be entitled to recover, in
addition to such other relief as the court may award, its reasonable attorneys’
fees, expert witness fees, litigation related expenses, and court or other costs
incurred in such litigation or proceeding. For purposes of this
clause, the term “successful party” means the net winner of the dispute, taking
into account the claims pursued, the claims on which the pursuing party was
successful, the amount of money sought, the amount of money awarded, and offsets
or counterclaims pursued (successfully or unsuccessfully) by the other
Party. If a written settlement offer is rejected and the judgment or
award finally obtained is equal to or more favorable to the offer or than an
offer made in writing to settle, the offer or is deemed to be the successful
Party from the date of the offer forward.
4
ARTICLE
4
GENERAL
4.1 Notices. All
notices or other communications required or permitted under this Agreement shall
be in writing and may be given by depositing the same in the United States mail,
addressed to the Party to be notified, postage prepaid and registered or
certified with return receipt requested, by overnight courier, or by delivering
the same in person to such Party, addressed as follows:
If to
WCA:
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
Phone: (000)
000-0000
Fax:
(000)
000-0000
or to
such other person or address as WCA shall furnish to the Stockholders in
writing;
If to the
Stockholders, to the address listed opposite such Stockholder’s name on Exhibit A hereto, or
to such other person or address as a Stockholder shall furnish to WCA in
writing.
Notice
shall be deemed given and effective (i) the day personally delivered, (ii) the
day received if sent by overnight courier, subject to signature verification,
and (iii) the earlier of three days after the date on which a certified mail
with return receipt requested is deposited in the U.S. mails or the date on
which a return receipt is signed for or on behalf of the Party. Any
Party may change the address for notice by notifying the other Parties of such
change in accordance with this Section
4.1.
4.2 Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Delaware or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
4.3 Successors;
Assignment. The terms and provisions of this Agreement shall
be binding upon, inure to the benefit of, and be enforceable by the heirs,
personal representatives, successors and permitted assigns of the
Parties. This Agreement and the rights hereunder may not be assigned
or transferred by the WCA Parties, except with the prior written consent of the
Stockholders.
5
4.4 Termination. The
obligations set forth in Article 1 of this
Agreement shall terminate at the earliest of (a) the Closing, (b) the date of
the termination of the Purchase Agreement in accordance with its terms or (c)
the date upon which written notice of termination of this Agreement is given by
WCA to the Stockholders expressly referring to this Section
4.4. The remaining provisions of this Agreement shall
terminate at the earliest of: (a) the date of termination of the
Purchase Agreement in accordance with its terms, or (b) the date that all
obligations of the Stockholders are fully satisfied. Each Stockholder
acknowledges that the WCA Parties will enter into the Purchase Agreement in
reliance upon this Agreement, and that agreement of the Stockholders hereunder
is granted in consideration for the execution and delivery of the Purchase
Agreement by the WCA Parties.
4.5 Specific
Performance. The Parties acknowledge and agree that
performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will result in
irreparable harm to the other and will not be compensable by money
damages. The Parties therefore agree that this Agreement shall be
specifically enforceable and that specific enforcement and injunctive relief
shall be a remedy properly available to each Party for any breach of any
agreement, covenant or representation of any other Party hereunder.
4.6 Further
Assurances. Each Stockholder will, upon request, execute and
deliver any additional documents and take such further actions as may reasonably
be deemed by WCA to be necessary or desirable to carry out the provisions
hereof. In addition, the Stockholder agrees to cooperate with WCA, a
WCA’s expense, in furnishing to WCA information, evidence, testimony and other
assistance reasonably requested by WCA in connection with obtaining permits and
approvals and in connection with any actions, proceedings, arrangements or
disputes pertaining to periods prior to the Closing Date.
4.7 Severability. If
any term, provision, covenant or restriction of this Agreement, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
or the application thereof to any other circumstance, shall remain in full force
and effect, shall not in any way be affected, impaired or invalidated and shall
be enforced to the fullest extent permitted by law.
4.8 Entire
Agreement. This Agreement contains the entire agreement
between the Parties with respect to the subject matter hereof.
4.9 Amendment. This
Agreement may not be changed, amended or modified orally, but only by an
agreement in writing signed by the Party against whom any waiver, change,
amendment, modification or discharge may be sought.
4.10 Gender;
Interpretation. The words “herein,” “hereof” and “hereunder”
and other words of similar import refer to this Agreement as a whole and not to
any particular paragraph or other subdivision. The word “include” or
“including” means include or including, without limitation. No
provision of this Agreement shall be interpreted or construed against either
Party solely because that Party or its legal representative drafted such
provision.
4.11
Time of
the Essence. Time is of the essence of this
Agreement.
6
4.12 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original but all of which together shall constitute one and the same
document.
[SIGNATURE
PAGE FOLLOWS]
7
IN
WITNESS WHEREOF, WCA, WCA Sub and the Stockholders have duly executed this
Agreement or caused this Agreement to be duly executed as of the date first
above written.
WCA
WASTE CORPORATION
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By:
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/s/ Xxxxxxx X. Xxx
|
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Name:
|
Xxxxxxx X. Xxx
|
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Title:
|
Vice President and General
Counsel
|
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STOCKHOLDERS:
|
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/s/ Xxxxxx X. XxXxxxx
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Xxxxxx
X. XxXxxxx
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/s/ Xxxxxx X. Xxxxx
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Xxxxxx
X. Xxxxx
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/s/ Xxxxxxx X. Skoda
|
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Xxxxxxx
X. Skoda
|
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XXXXXXXX
X. SKODA REVOCABLE TRUST
|
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/s/ Xxxxxxxx X. Skoda
|
||
Xxxxxxxx
X. Skoda, its
Trustee
|
8
Schedule
A
List
of Stockholders
Stockholder
|
WCA Shares
|
Covered Interests
|
||||||
Xxxxxx
X. XxXxxxx
Tower
1 Partnership LLC
0000
Xxxxxxxx Xxxx.
Xxxxxxxx
Xxxxxxx, XX 00000
|
1,361,386
Shares
|
15.38 | % | |||||
Xxxxxx
X. Xxxxx
00000
Xxxxxxx Xxxxx
Xxxxx,
XX 00000
|
301,813
Shares
|
19.24 | % | |||||
Xxxxxxx
X. Skoda
00000
Xxxxxxxxxx Xxxx
Xxxxxxx
Xxxxx, XX 00000
|
56,622
Shares
|
1.31 | % | |||||
Xxxxxxxx
X. Skoda, Trustee of
the
Xxxxxxxx X. Skoda Revocable Trust
00000
Xxxxxxxxxx Xxxx
Xxxxxxx
Xxxxx, XX 00000
|
115,146
Shares*
|
11.77 | % | |||||
TOTAL:
|
1,778,345 Shares
|
47.7 | % |
*
Includes Xxxx Skoda’s Shares.