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Exhibit 4.9
SECURITIES AGREEMENT
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THIS SECURITIES AGREEMENT is made as of the 31st day of July, 1996, by
and between WASTEQUIP, INC., an Ohio corporation ("Wastequip"), and XXXXX X.
MAY, SR. (the "Holder").
WITNESSETH:
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WHEREAS, Wastequip and the Holder are parties to a Stock Purchase
Agreement dated the same date herewith (the "Stock Purchase Agreement") pursuant
to which the Holder is being issued a 7% Convertible Subordinated Promissory
Note in the principal amount of $1,250,000 (the "Note") which is convertible
into Class A Common Shares, without par value, of Wastequip ("Wastequip
Shares");
WHEREAS, Wastequip and the Holder have agreed that the issuance of any
Wastequip Shares upon the conversion of the Note shall be pursuant to the
"private offering" exemption from registration provided by Section 4(2) of the
Securities Act of 1933, as amended (the "Act"); and
WHEREAS, Wastequip and the Holder have agreed further that the Holder
shall have, under the terms and conditions herein set forth, certain rights to
participate in the registration of the Wastequip Shares under the Act;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein and in the Stock Purchase Agreement
and the Note, Wastequip and the Holder hereby agree as follows:
1. EXEMPTION FROM REGISTRATION UNDER SECTION 4(2)
In connection with the Holder's investment in the Note and, upon any
conversion of the Note, the Wastequip Shares, the Holder hereby represents,
warrants and agrees as follows:
1.1 STATUS OF HOLDER. The Holder has such knowledge and experience in
financial and business matters in general, and financial and business matters of
the type in which Wastequip is engaged in particular, that the Holder is capable
of evaluating the merits and risks of an investment in the Note and, upon any
conversion of the Note, the Wastequip Shares.
1.2 INFORMATION RECEIVED. The Holder has received copies of (i) the
audited consolidated balance sheets of Wastequip and its subsidiaries as of
March 31, 1995 and 1996 and the related consolidated statements of operations,
shareholders' equity and cash flows for each of the three fiscal years in the
period ended March 31, 1996 (including in each case the notes thereto) and (ii)
such other information concerning Wastequip's business and financial condition
as the Holder has requested. The Holder has had, at a reasonable time prior to
the date of this Agreement, the opportunity to ask questions of and to receive
answers from Wastequip concerning the
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Wastequip Shares and the business of Wastequip and to obtain any additional
information which Wastequip possesses or can acquire without unreasonable effort
or expense that the Holder has deemed necessary or desirable to make the
investment decision to acquire the Note and, upon any conversion thereof, the
Wastequip Shares.
1.3 LIMITATIONS ON RESALE. The Holder is aware that (a) the Note and,
upon any conversion thereof, the Wastequip Shares, have not been registered
under the Act and that he must hold any Wastequip Shares indefinitely unless
they are subsequently registered under the Act or an exemption from such
registration is available, and (b) there is no market for the Note or the
Wastequip Shares. The Holder is acquiring the Note and, upon any conversion
thereof, will acquire the Wastequip Shares for his own account, for investment
and not with a view to the distribution thereof and will not sell, transfer or
otherwise dispose of the Note or the Wastequip Shares unless a registration
statement filed with the Securities and Exchange Commission pursuant to the Act
with respect thereto is in effect or Wastequip shall have received an opinion of
counsel reasonably satisfactory to it to the effect that such registration is
not required. The Holder acknowledges and agrees that the certificates
representing the Wastequip Shares to be received by him upon any conversion of
the Note shall bear a legend stating the substance of such restrictions.
1.4 INVESTMENT DECISION. Based upon the information delivered to the
Holder pursuant to this Section 1, a thorough review of this Agreement, the
Stock Purchase Agreement, the Note and the other agreements and documents
delivered in connection therewith (including without limitation the Exhibits to
the Stock Purchase Agreement), the Holder understands the terms and conditions
of the Stock Purchase Agreement and the Note, and understands the risks inherent
in an investment in the Wastequip Shares, in each case to the extent necessary
to make the investment decision contemplated by the Stock Purchase Agreement and
the Note.
2. PIGGYBACK REGISTRATION RIGHTS.
Reference is hereby made to the Amended and Restated Shareholders
Agreement dated as of February 16, 1996, by and among Wastequip and certain
security holders of Wastequip (the "Wastequip Shareholders Agreement"), a copy
of which is attached hereto as Exhibit A and incorporated herein by reference.
Section 5.2 of the Wastequip Shareholders Agreement provides that each time
Wastequip shall determine to proceed with the actual preparation and filing of a
registration statement under the Act in connection with the proposed offer and
sale of any of its securities by Wastequip or by any of Wastequip's security
holders (other than on Form S-4 or Form S-8 or any successor or similar forms),
Wastequip will give written notice of such determination to all of the holders
of its securities which are issued and outstanding as of February 16, 1996.
Section 5.2 of the Wastequip Shareholders Agreement further provides that upon
the written request of any such security holder given to Wastequip within 20
days after the mailing of any such notice by Wastequip, that Wastequip will,
except as otherwise provided in the Wastequip Shareholders Agreement, cause all
of the Wastequip Shares which such holders have requested to be registered to be
included in such registration statement, subject to the reasonable request of
any underwriters selected by Wastequip that all or any portion of such Wastequip
Shares be excluded from such registration statement, pro rata among the holders
thereof. Wastequip hereby grants to the Holder the same piggyback registration
rights as are granted to the security holders of Wastequip as of February 16,
1996 who are not Schedule I Shareholders (as such term is
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defined in the Wastequip Shareholders Agreement), under Section 5.2 of the
Wastequip Shareholders Agreement, regardless of the date or dates upon which the
Holder converts all or any portion of the Note into Wastequip Shares. For
purposes of calculating the pro rata rights of the Holder to participate in any
registration statement under Section 5.2 of the Wastequip Shareholders
Agreement, the Holder shall be deemed to hold the number of Wastequip Shares
which the Holder would own upon the complete conversion of the remaining
principal amount of the Note into Wastequip Shares, determined as of the
effective date of the registration statement. All of the rights and obligations
of the security holders of Wastequip who are granted piggyback registration
rights under Section 5.2 shall apply equally to the Holder as if he were a
non-Schedule I Shareholder as of February 16, 1996, including the
indemnification rights and obligations contained in Section 5.6 of the Wastequip
Shareholders Agreement, subject in each case to any conditions or limitations
contained in the Wastequip Shareholders Agreement.
3. REGISTRATION PROCEDURES.
3.1 HOLDER'S OBLIGATION TO FURNISH INFORMATION. It shall be a condition
precedent to the obligations of Wastequip to take any action pursuant to Section
2 hereof that the Holder shall furnish to Wastequip such information regarding
him, the Note, any Wastequip Shares held by him, and the intended method of
disposition of such securities as Wastequip shall reasonably request and as
shall be required in connection with any action to be taken by Wastequip.
3.2 NO DELAY OF REGISTRATION. The Holder shall not have any right to
take any action to restrain, enjoin or otherwise delay any registration
statement filed by Wastequip as the result of any controversy that might arise
with respect to the interpretation or implementation of this Agreement.
3.3 TRANSFER OF REGISTRATION RIGHTS. The Holder shall not give, sell,
assign, transfer (by operation of law or otherwise, including transfers pursuant
to divorce or separation, but excluding testamentary disposition), pledge,
mortgage, hypothecate or otherwise dispose of this Agreement or the registration
rights granted to the Holder hereunder, without the prior written approval of
Wastequip.
4. MISCELLANEOUS.
5.1 NOTICES.
All notices shall be in writing and delivered as follows:
(a) If to Wastequip, to:
Wastequip, Inc.
00000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
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With a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxx
0000 XxXxxxxx Xxxxxxxxxx Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxx X. XxXxxxx, Esq.
(b) If to the Holder to:
Xx. Xxxxx X. May, Sr.
00000 Xxxx Xxxx Xxxxxx #00
Xxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxx, Esq.
000 Xxxxxx Xxxxxx, #000
Xxxxxx, Xxxxxxxx 00000
or to such other address as may have been designated in a prior notice. Notices
sent by registered or certified mail, postage prepaid, return receipt requested,
shall be deemed to have been given two business days after being mailed, and
otherwise notices shall be deemed to have been given when received by the person
to whom the notice is addressed or any other person with apparent authority to
accept notices on behalf of the person to whom the notice is addressed.
4.2 GOVERNING LAW. The validity, enforceability and construction of
this Agreement shall be governed by the laws of the State of Ohio, without
giving effect to the conflict of law principles thereof.
4.3 AMENDMENTS; SUCCESSORS. This Agreement may be amended only by an
agreement signed by all of the parties hereto and shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. No subsequent amendment of the Wastequip Shareholders
Agreement shall in any way affect the rights or obligations of the parties
hereunder, which in all cases shall be determined in accordance with the terms
of this Agreement and the terms of the Wastequip Shareholders Agreement as of
the date hereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
WASTEQUIP, INC.
("Wastequip")
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Chief Financial Officer
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/s/ Xxxxx X. May, Sr.
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Xxxxx X. May, Sr.
(the "Holder")
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