EXHIBIT 10.14
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made and entered into
as of the 15th day of June, 2004, but effective as of the Effective Time (as
defined in the Merger Agreement (as defined below)), by and among WCA Waste
Corporation (the "Company") and the holders of the Common Stock listed on the
signature page attached hereto (each a "Holder" and collectively the "Holders").
For good and valuable consideration, the parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:
Board: The Board of Directors of the Company.
Common Stock: The common stock, $.01 par value, of the Company.
IPO: An initial public offering of the Company's common stock.
Merger: The merger of WCA Merger II Corporation, a Delaware corporation
and a wholly-owned subsidiary of the Company, with and into the Company pursuant
to the Merger Agreement.
Merger Agreement: The Agreement and Plan of Merger, dated May 20, 2004, by
and between the Company and WCA Merger II Corporation.
Misstatement: An untrue statement of a material fact or an omission to
state a material fact required to be stated in a Registration Statement or
Prospectus or necessary to make the statements in a Registration Statement or
Prospectus not misleading.
Person: A natural person, partnership, corporation, business trust,
association, joint venture or other entity or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in any Registration Statement, as
supplemented by any and all prospectus supplements and as amended by any and all
post-effective amendments and including all material incorporated by reference
in such prospectus.
Registration: A Piggyback Registration described in Section 2(b) hereof.
Registration Expenses: The out-of-pocket expenses of a Registration,
including:
(1) all registration and filing fees (including fees with respect
to filings required to be made with the National Association of Securities
Dealers, Inc.) and any securities exchange on which the Common Stock is
then listed;
(2) fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities);
(3) printing, messenger, telephone and delivery expenses;
(4) reasonable fees and disbursements of counsel for the Company;
and
(5) reasonable fees and disbursements of all independent certified
public accountants of the Company incurred specifically in connection with
such Registration.
Registrable Securities: (a) The shares of Common Stock acquired by the
Holders or their permitted assigns upon consummation of the Merger pursuant to
the Merger Agreement and (b) any securities issued or issuable with respect to
such Common Stock by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or
reorganization; provided that any such share or security shall be deemed to be
Registrable Securities only if and so long as it is a Transfer Restricted
Security.
Registration Statement: Any registration statement which covers
Registrable Securities pursuant to the provisions of this Agreement, including
the Prospectus included in such registration statement, amendments (including
post-effective amendments) and supplements to such registration statement, and
all exhibits to and all material incorporated by reference in such registration
statement.
Securities Act: The Securities Act of 1933, as from time to time amended.
SEC: The Securities and Exchange Commission.
Transfer Restricted Security: A security that has not been sold to or
through a broker, dealer or underwriter in a public distribution or other public
securities transaction or sold in a transaction exempt from the registration and
prospectus delivery requirements of the Securities Act under Rule 144(k)
promulgated thereunder (or any successor rule other than Rule 144A). A security
shall cease being a Transfer Restricted Security if (i) all stop transfer
instructions or notations and restrictive legends with respect to such security
are eligible to be removed, and (ii) the holder of such security has received an
opinion of counsel to the Company, to the effect that such shares in such
holder's hands are freely transferable in any public or private transaction
without registration under the Securities Act (or such holder has waived receipt
of such opinion).
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for distribution to
the public.
2. Registrations.
(a) [Intentionally Omitted].
(b) Piggyback Registration. Each time the Company decides to file
a Registration Statement under the Securities Act (other than the
Registration Statement on Form S-1 the Company originally filed with the
SEC on March 9, 2004, as amended from time to time thereafter, and other
than on Forms S-4 or S-8 or any successor form for the registration of
securities issued or to be issued in connection with a merger or
acquisition or employee benefit plan), the Company shall give written
notice thereof to the Holders. The Company shall include in such
Registration Statement such shares of Registrable
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Securities for which it has received written requests to register such
shares within 30 days after such written notice has been given. If in the
good faith judgment of the managing underwriter in any Underwritten
Offering, the inclusion of all of the shares of Registrable Securities and
any other Common Stock requested to be registered by third parties holding
similar registration rights would interfere with the successful marketing
of a smaller number of such shares, then the number of shares of
Registrable Securities and other Common Stock to be included in the
offering (except for shares to be issued by the Company in an offering
initiated by the Company) shall be reduced as provided herein. The Company
shall advise all holders of securities requesting registration of the
underwriters' decision, and the number of shares of securities that are
entitled to be included in the Underwritten Registration shall be
allocated first to the Company for securities being sold for its own
account and thereafter as set forth in paragraph (c) below. If any person
does not agree to the terms of any such underwriting, he shall be excluded
therefrom by written notice from the Company or the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration. If shares are so
withdrawn from the registration or if the number of shares of Registrable
Securities to be included in such registration was previously reduced as a
result of marketing factors, the Company shall then offer to all persons
who have retained the right to include securities in the registration the
right to include additional securities in the registration in an aggregate
amount equal to the number of shares so withdrawn, with such shares to be
allocated among the persons, requesting additional inclusion in accordance
with paragraph (c) below.
(c) In any circumstance in which all of the Registrable Securities
and other shares of Common Stock of the Company (including shares of
Common Stock issued or issuable upon conversion of shares of any currently
unissued series of preferred stock of the Company) with registration
rights (the "Other Shares") requested to be included in a registration on
behalf of the Holders or other selling stockholders cannot be so included
as a result of limitations of the aggregate number of shares of
Registrable Securities and Other Shares that may be so included, the
number of shares of Registrable Securities and Other Shares that may be so
included shall be allocated among the Holders and other selling
stockholders requesting inclusion of shares pro rata on the basis of the
number of shares Registrable Securities and Other Shares that would be
held by such Holders and other selling stockholders, assuming conversion.
If any Holder or other selling stockholder does not request inclusion of
the maximum number of shares of Registrable Securities and Other Shares
allocated to him pursuant to the above-described procedure, the remaining
portion of his allocation shall be reallocated among those requesting
Holders and other selling stockholders whose allocations did not satisfy
their requests pro rata on the basis of the number of Registrable
Securities and Other Shares which would be held by such Holders and other
selling stockholders, assuming conversion, and this procedure shall be
repeated until all of the shares of Registrable Securities and Other
Shares which may be included in the registration on behalf of Holders and
other selling stockholders have been so allocated.
3. Registration Procedures. If and whenever the Company is required to
register Registrable Securities, the Company will use its best efforts to effect
such registration to permit
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the sale of such Registrable Securities in accordance with the intended plan of
distribution thereof, and pursuant thereto the Company will as expeditiously as
possible:
(a) prepare and file with the SEC as soon as practicable a
Registration Statement with respect to such Registrable Securities and use
its best efforts to cause such Registration Statement to become effective
and remain effective until the Registrable Securities covered by such
Registration Statement have been sold;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement, and such
supplements to the Prospectus, as may be requested by the Holders or any
underwriter of Registrable Securities or as may be required by the rules,
regulations or instructions applicable to the registration form used by
the Company or by the Securities Act or rules and regulations thereunder
to keep the Registration Statement effective until all Registrable
Securities covered by such Registration Statement are sold in accordance
with the intended plan of distribution set forth in such Registration
Statement or supplement to the Prospectus;
(c) deliver to the Holders and the underwriters, if any, without
charge, as many copies of each Prospectus (and each preliminary
prospectus) as such Persons may reasonably request (the Company hereby
consenting to the use of each such Prospectus (or preliminary prospectus)
by the selling Holders and the underwriters, if any, in connection with
the offering and sale of the Registrable Securities covered by such
Prospectus (or preliminary prospectus) and a reasonable number of copies
of the then-effective Registration Statement and any post-effective
amendments thereto and any supplements to the Prospectus, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(d) prior to any public offering of Registrable Securities,
register or qualify or cooperate with the Holders, the underwriters, if
any, and their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as such selling Holders
or underwriters may designate in writing and do anything else necessary or
advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement; provided
that the Company shall not be required to qualify generally to do business
in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(e) cause all such Registrable Securities to be listed on each
securities exchange or automated quotation system on which similar
securities issued by the Company are then listed;
(f) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
Registration Statement;
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(g) advise each seller of such Registrable Securities, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance
of any stop order by the SEC suspending the effectiveness of such
Registration Statement or the initiation or threatening of any proceeding
for such purpose and promptly use its reasonable best efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such stop
order should be issued;
(h) at least three days prior to the filing of any Registration
Statement or prospectus or any amendment or supplement to such
Registration Statement or prospectus or any document that is to be
incorporated by reference into such Registration Statement or prospectus,
furnish a copy thereof to each seller of such Registrable Securities or
their counsel;
(i) notify the Holders at any time when a prospectus relating to
such Registration Statement is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such Registration Statement, as then in effect,
includes a Misstatement, and then to correct such Misstatement as set
forth in Section 7; and
(j) permit a representative of the Holders, the underwriters, if
any, and any attorney or accountant retained by such Holders or
underwriter to participate, at each such Person's own expense, in the
preparation of the Registration Statement, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such representative, underwriter, attorney or accountant
in connection with the Registration; provided, however, that such
representatives, underwriters, attorneys or accountants enter into a
confidentiality agreement, in form and substance reasonably satisfactory
to the Company, prior to the release or disclosure of any such
information.
4. Registration Expenses. The Registration Expenses of all
Registrations shall be borne by the Company. It is acknowledged by the Holders
that the Holders will bear all incremental selling expenses relating to the sale
of the Registrable Securities, such as underwriters' commissions and discounts,
brokerage fees, underwriter marketing costs and fees and expenses of counsel to
the Holders.
5. Requirements for Participation in Underwritten Offerings. No person
may participate in any Underwritten Offering for equity securities of the
Company pursuant to a Registration initiated by the Company hereunder unless
such Person (a) agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the Company and (b) completes and
executes all questionnaires, powers of attorney, indemnities, lock-up
agreements, underwriting agreements and other documents required under the terms
of such underwriting arrangements.
6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by
law, the holder of Registrable Securities, its officers and directors and
each Person who controls
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such holder (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses (including attorneys' fees)
caused by any untrue or alleged untrue statement of material fact
contained in any Registration Statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as
the same are caused by or contained in any information furnished in
writing to the Company by such holder expressly for use therein or by such
holder's failure to deliver a copy of the Registration Statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. The
Company will indemnify the underwriters, their officers and directors and
each Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the holder.
(b) In connection with any Registration Statement in which a
holder of Registrable Securities is participating, such holder will
furnish to the Company in writing such information and affidavits as the
Company reasonably requests for use in connection with any such
Registration Statement or prospectus and, to the extent permitted by law,
will indemnify the Company, its directors and officers and agents and each
Person who controls the Company (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses (including
without limitation reasonable attorneys' fees) resulting from any untrue
statement of material fact contained in the Registration Statement,
prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading,
but only to the extent that such untrue statement or omission is contained
in any information or affidavit so furnished in writing by such holder
expressly for use therein; provided that the obligation to indemnify will
be several, not joint and several, among such holders of Registrable
Securities, and the liability of each such holder of Registrable
Securities will be in proportion to and limited to the gross amount
received by such holder from the sale or Registrable Securities pursuant
to such Registration Statement. The holders of Registrable Securities will
indemnify the underwriters, their officers, directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to
the same extent as provided above with respect to indemnification of the
Company.
(c) Any person entitled to indemnification herein will (i) give
prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense
is assumed, the indemnifying party will not be subject to any liability
for any settlement made by the indemnified party without its consent (but
such consent will not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim will
not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party a
conflict of
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interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
person of such indemnified party and will survive the transfer of
securities. The Company and each holder of Registrable Securities
participating in the offering also agrees to make such provisions as are
reasonably requested by any indemnified party for contribution to such
party in the event the Company's or such holder's indemnification is
unavailable for any reason.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with an Underwritten
Offering are in conflict with the foregoing provisions, the provisions of
the underwriting agreement shall control.
7. Suspension of Sales. Upon receipt of written notice from the Company
that a Registration Statement or Prospectus contains a Misstatement, each of the
Holders shall forthwith discontinue disposition of Registrable Securities until
it has received copies of a supplemented or amended Prospectus correcting the
Misstatement (it being understood that the Company hereby covenants to prepare
and file such supplement or amendment as soon as practicable after the time of
such notice), or until it is advised in writing by the Company that the use of
the Prospectus may be resumed.
8. Termination of Prior Registration Rights Agreements. Each of the
parties to this Agreement hereby agrees that, upon the effectiveness of this
Agreement, that certain Registration Rights Agreement, dated as of January 20,
1999, by and among Waste Corporation of America, Inc., WCA Partners, L. P. and
EFO Co-Investment Partners, and that certain Registration Rights Agreement,
dated as of September 28, 2000, by and between Waste Corporation of America,
Inc. and WCA Partners, L.P., are terminated, and no party to either such
registration rights agreement shall thereafter have any further rights or
obligations with respect to such registration rights agreements.
9. Miscellaneous.
(a) Notices. All notices and other communications provided for or
permitted hereunder shall be made in accordance with the notice provisions
contained in the Purchase Agreement.
(b) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Company.
No rights under this Agreement may be assigned by any Holder without the
prior written consent of the Company.
(c) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
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(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
(e) Amendment. This Agreement may be amended only by a written
instrument executed by the Company and Holders who hold a majority of the
Registrable Securities.
(f) Termination. This Agreement shall terminate and the
registration rights granted hereunder shall expire on the date that is
four (4) years and six (6) months after the effective date of the
Company's IPO; provided that such termination and expiration shall not
affect registration rights exercised prior to such date.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WCA WASTE CORPORATION
By: /s/ J. Xxxxxx Xxxxxx
------------------------------------
Name: J. Xxxxxx Xxxxxx
Title: Vice President
HOLDERS:
WCA PARTNERS, L.P.
a Texas limited partnership
By: Opportunity Capital GenPar
Its: General Partner
By: EFO GenPar, Inc.
Its: General Partner
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
EFO CO-INVESTMENT PARTNERS,
a Texas general partnership
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing General Partner
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