Exhibit 99.17
Execution Copy
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EXCHANGE AGREEMENT
BY AND AMONG
ALLIED WASTE INDUSTRIES, INC.
AND
THE PARTIES LISTED ON SCHEDULE 1 HERETO
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Dated as of
July 31, 2003
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TABLE OF CONTENTS
(Not Part of Agreement)
Article Page
ARTICLE I DEFINITIONS................................................1
ARTICLE II EXCHANGE...................................................4
SECTION 2.1. Agreement to Exchange Shares.................4
SECTION 2.2. Closing......................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY.............6
SECTION 3.1. Organization and Standing....................6
SECTION 3.2. Capital Stock................................6
SECTION 3.3. Authorization; Enforceability................7
SECTION 3.4. No Violation; Consents.......................7
SECTION 3.5. Commission Filings; Financial Statements.....8
SECTION 3.6. Private Offering.............................9
SECTION 3.7. Antitakeover Laws............................9
SECTION 3.8. Material Adverse Change......................9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS...........9
SECTION 4.1. Authorization................................9
SECTION 4.2. Private Placement............................9
SECTION 4.3. Authorization; Enforceability...............10
SECTION 4.4. No Violation; Consents......................10
SECTION 4.5. No Brokers..................................11
ARTICLE V COVENANTS OF THE COMPANY..................................11
SECTION 5.1. Operation of Business.......................11
SECTION 5.2. Agreement to Take Necessary and Desirable
Actions...................................12
SECTION 5.3. Compliance with Conditions; Reasonable
Best Efforts..............................12
SECTION 5.4. HSR Act Notification........................12
SECTION 5.5. Consents and Approvals......................13
SECTION 5.6. Stockholder Vote............................13
SECTION 5.7. Listing of Shares...........................13
SECTION 5.8. Tax Treatment of Shares.....................13
SECTION 5.9. Periodic Information........................15
SECTION 5.10. Legends.....................................15
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ARTICLE VI COVENANTS OF THE PURCHASERS...............................16
SECTION 6.1. Agreement to Take Necessary and Desirable
Actions....................................16
SECTION 6.2. Compliance with Conditions; Reasonable
Best Efforts...............................16
SECTION 6.3. HSR Act Notification........................16
SECTION 6.4. Shareholder Vote............................16
SECTION 6.5. Consents and Approvals......................16
ARTICLE VII CONDITIONS PRECEDENT TO CLOSING...........................17
SECTION 7.1. Conditions to the Company's Obligations.....17
SECTION 7.2. Conditions to Holders' Obligations..........18
ARTICLE VIII MISCELLANEOUS.............................................19
SECTION 8.1. Indemnification.............................19
SECTION 8.2. Notices.....................................21
SECTION 8.3. Governing Law...............................22
SECTION 8.4. Termination.................................22
SECTION 8.5. Entire Agreement............................22
SECTION 8.6. Modifications and Amendments................22
SECTION 8.7. Waivers and Extensions......................23
SECTION 8.8. Titles and Headings.........................23
SECTION 8.9. Exhibits and Schedules......................23
SECTION 8.10. Expenses; Brokers..........................23
SECTION 8.11. Press Releases and Public Announcements....23
SECTION 8.12. Assignment; No Third Party Beneficiaries...24
SECTION 8.13. Severability...............................24
SECTION 8.14. Counterparts...............................24
SECTION 8.15. Further Assurances.........................24
SECTION 8.16. Remedies Cumulative........................24
SECTION 8.17. Several Liability of the Holders...........25
SECTION 8.18. No Duty to Other Holders...................25
SECTION 8.19. Specific Performance.......................25
SCHEDULES
Schedule 1 List of the Holders
EXHIBITS
Exhibit A Form of Supplementary Registration Rights Agreement
Exhibit B Form of Supplementary Shareholders Agreement
Exhibit C Form of Opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
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Exhibit D Form of Secretary's Certificate
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EXCHANGE AGREEMENT
EXCHANGE AGREEMENT, dated as of July 31, 2003 (this "Agreement"), by and
among Allied Waste Industries, Inc., a Delaware corporation (together with its
predecessors and successors, the "Company"), and each of the parties listed on
Schedule 1 hereto (the "Holders").
WHEREAS, the Holders and the Company desire that the Series A Preferred
Stock (as defined) owned by the Holders be exchanged for shares of Common
Stock (as defined) to be issued by the Company, upon the terms and subject to
the conditions set forth in this Agreement;
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows.
ARTICLE I
DEFINITIONS
(a) As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means, with respect to any person, any other person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such person. For the purposes of this definition, "control" when
used with respect to any person means the power to direct the management and
policies of such person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Apollo" means Apollo Advisors II, L.P., a Delaware limited partnership,
on behalf of one or more managed funds.
"Apollo Management" means Apollo Management IV, L.P., a Delaware limited
partnership.
"Applicable Law" means (a) any United States federal, state, local or
foreign law, statute, rule, regulation, order, writ, injunction, judgment,
decree or permit of any Governmental Authority and (b) any rule or listing
requirement of any stock exchange or listing requirement of any stock exchange
or Commission recognized trading market on which securities issued by the
Company or any of the Subsidiaries are listed or quoted (an "Exchange
Requirement").
"Blackstone" means Blackstone Capital Partners III Merchant Banking Fund
L.P., a Delaware limited partnership, on behalf of one or more managed funds.
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"Blackstone Management" means Blackstone Management Partners III LLC, a
Delaware limited liability company.
"Business Day" means any day other than a Saturday, a Sunday or a day
when banks in The City of New York are authorized by Applicable Law to be
closed.
"Capital Stock" means, (i) with respect to any Person that is a
corporation, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, and (ii) with respect to
any other Person, any and all partnership or other equity interests of such
Person.
"Commission" means the United States Securities and Exchange Commission.
"Commission Filings" means all reports, registration statements and other
filings filed by the Company with the Commission since December 31, 2001 (and
all notes, exhibits and schedules thereto and documents incorporated by
reference therein).
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Contract" means any contract, lease, loan agreement, mortgage, security
agreement, trust indenture, note, bond, or other agreement (whether written or
oral) or instrument.
"Credit Agreement" means the Credit Agreement dated as of July 21, 1999
among the Company, Allied Waste North America, Inc., the lenders named therein
and certain other parties, as such agreement has been amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder.
"GAAP" means United States generally accepted accounting principles,
consistently applied.
"Governmental Authority" means (i) any foreign, Federal, state or local
court or governmental or regulatory agency or authority, (ii) any arbitration
board, tribunal or mediator and (iii) any stock exchange or Commission
recognized trading market on which securities issued by the Company or any of
the Subsidiaries are listed or quoted.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, and applicable rules and regulations and any similar state acts.
"Lien" means any mortgage, pledge, lien, security interest, claim,
restriction, charge or encumbrance of any kind.
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"Material Adverse Effect" means, (i) a material adverse effect on the
business, condition (financial or otherwise), operations, performance or
properties of the Company and the Subsidiaries, taken as a whole, in each case
(x) after giving effect to the projections presented to the Board of Directors
on July 28, 2003 for the year ending December 31, 2003 and (y) excluding any
changes resulting from or arising in connection with (A) changes or conditions
generally affecting the waste management industry, or (B) changes in general
economic, regulatory or political conditions, including acts of war or
terrorism (other than in the case of clauses (A) and (B) changes or conditions
that materially disproportionately affect the Company and its Subsidiaries,
taken as a whole, compared with other companies in the waste management
industry), (ii) a material impairment of the ability of the Company to perform
its obligations under this Agreement, the Registration Rights Agreement or the
Shareholders Agreement, or (iii) a material impairment of the rights of the
Holders under or enforceability by the Holders of this Agreement, the
Registration Rights Agreement, the Supplementary Registration Rights
Agreement, (the form of which is attached as Exhibit A hereto), the
Shareholders Agreement, or the Supplementary Shareholders Agreement (the form
of which is attached as Exhibit B hereto).
"Person" means any individual, partnership, corporation, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof, or other entity.
"Preferred Stock" means the Preferred Stock, par value $.10 per share, of
the Company.
"Registration Rights Agreement" means the Amended and Restated
Registration Rights Agreement, dated as of July 30, 1999, by and among the
Company, the Holders and others.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder.
"Series A Preferred Stock" means the Series A Senior Convertible
Preferred Stock of the Company.
"Shareholders Agreement" means the Second Amended and Restated
Shareholders Agreement, dated as of July 30, 1999, by and among the Company,
the Holders and others.
"Shares" means the shares of Series A Preferred Stock owned by the
Holders.
"subsidiary" means, with respect to any Person (i) a corporation a
majority of whose capital stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly,
owned by such Person, by a subsidiary of such
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Person, or by such Person and one or more subsidiaries of such Person, (ii) a
partnership in which such Person or a subsidiary of such Person is, at the
date of determination, a general partner of such partnership and has the power
to direct the policies and management of such partnership, or (iii) any other
Person (other than a corporation) in which such Person, a subsidiary of such
Person or such Person and one or more subsidiaries of such Person, directly or
indirectly, at the date of determination thereof, has (A) at least a majority
ownership interest or (B) the power to elect or direct the election of the
directors or other governing body of such Person.
"Subsidiary" means a subsidiary of the Company.
"Transactions" means the transactions contemplated by this Agreement, the
Supplementary Registration Rights Agreement and the Supplementary Shareholders
Agreement, forms of which are attached hereto as Exhibits A and B,
respectively.
(b) As used in this Agreement, the following terms shall have the
meanings given thereto in the Sections set forth opposite such terms:
Term Section
---- -------
Agreement Preamble
BFI Preamble
Closing 2.2
Closing Date 2.2
Company Preamble
DGCL 3.8
Xxxxxxx Xxxxx 3.3
Holders Preamble
indemnified person 8.1
Information 3.9
Issuance 2.1
Losses 8.1
Nonperforming Holder 8.4(a)
Notices 8.2
Performing Holders 8.4(b)
Substitute Holder Undertaking 8.4(b)
Supplying Holders 8.18
ARTICLE II
EXCHANGE
SECTION 2.1. Agreement to Exchange Shares. On the Closing Date, and upon
the terms and subject to the conditions set forth in this Agreement, the
Company shall issue to each Holder, and each Holder, severally and not
jointly, shall accept from
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the Company, such number of shares of Common Stock as is indicated on such
Holder's signature page attached hereto (the "Issuance"), in exchange for each
Holder surrendering to the Company certificates for the number of Shares as
indicated on such Holder's signature page (the "Exchange"). The exchange rate
shall be 110.5 shares of Common Stock for each Share.
SECTION 2.2. Closing. The closing of the Issuance and Exchange (the
"Closing") shall take place as promptly as reasonably practicable after the
time as of which all of the conditions set forth in Article VII hereof shall
have been satisfied or at such other time and date as the parties hereto shall
agree in writing (such date and time, the "Closing Date"), at the offices of
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 or at such other place as the parties hereto shall agree in
writing.
At the Closing:
(a) Each Holder shall deliver:
(i) against delivery of a certificate or certificates
representing the shares being acquired by such Holder pursuant to Section
2.1, certificates for Shares, duly endorsed for transfer, to be
surrendered to the Company by such Holder pursuant to Section 2.1;
(ii) an executed copy of the Supplementary Registration Rights
Agreement; and
(iii) an executed copy of the Supplementary Shareholders
Agreement.
(b) The Company shall deliver to each Holder:
(i) against surrender by such Holder of certificates
representing the Shares to be surrendered to the Company pursuant to
Section 2.1, a certificate or certificates representing the shares of
Common Stock being acquired by such Holder pursuant to Section 2.1, which
shall be in definitive form and registered in the name of such Holder or
its nominee or designee (to the extent permitted by the Shareholders
Agreement) and in a single certificate or in such other denominations as
such Holder shall request not later than one Business Day prior to the
Closing Date.
(ii) an opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx,
counsel to the Company, dated the Closing Date in the form of Exhibit C;
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(iii) an officer's certificate of the Company as contemplated
by Section 7.2(f);
(iv) a certificate of the secretary of the Company substantially
in the form attached hereto as Exhibit D:
(v) a long-form good standing certificate of the Company, issued
by the Secretary of State of the State of Delaware;
(vi) an executed copy of the Supplementary Registration Rights
Agreement; and
(vii) an executed copy of the Supplementary Shareholders
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company hereby represents and warrants to each Holder that, except as
set forth in the Disclosure Schedule to this Agreement, on the date hereof and
on the Closing Date as follows:
SECTION 3.1. Organization and Standing. The Company is duly incorporated,
validly existing and in good standing as a domestic corporation under the laws
of the State of Delaware and has all requisite corporate power and authority
to own its properties and assets and to carry on its business as it is now
being conducted and as proposed to be conducted. The Company is duly qualified
to transact business as a foreign corporation and is in good standing in each
jurisdiction in which the character of the properties owned or leased by it or
the nature of its business makes such qualification necessary, except for any
such failures to so qualify or be in good standing that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 3.2. Capital Stock. (a) As of June 30, 2003, (i) the authorized
Capital Stock of the Company consisted solely of 525,000,000 shares of Common
Stock, of which 209,092,579 were issued and outstanding, and 10,000,000 shares
of Preferred Stock, of which 1,000,000 shares are designated as Series A
Senior Convertible Preferred Stock and all 1,000,000 shares are issued and
outstanding, 500,000 shares are designated as Series B Junior Participating
Preferred Stock and none are issued and outstanding, and 6,900,000 shares are
designated as Series C Senior Mandatory Convertible Stock of which 6,900,000
shares are issued and outstanding. Associated with each outstanding share of
Common Stock is a preferred stock purchase right issued pursuant to a Rights
Agreement dated May 18, 2000 between the Company and American Stock Transfer &
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Trust Company, as Rights Agent. As of June 30, 2003, there were 19,465,812
shares of Common Stock reserved for issuance upon exercise of outstanding
options issued under the Company's stock option and incentive plans. Each
share of Capital Stock of the Company that is issued and outstanding
immediately following the Closing, including without limitation the shares of
Common Stock to be acquired by the Holders pursuant to this Agreement, will be
duly authorized and validly issued and fully paid and nonassessable, and the
issuance thereof will not have been subject to any preemptive rights or made
in violation of any Applicable Law. Since June 30, 2003, the Company has not
issued any shares of Capital Stock except upon the exercise or conversion of
securities outstanding on June 30, 2003 and securities whose aggregate
proceeds have been less than $50 million.
(b) Except as set forth above as of June 30, 2003, there are (i) no
outstanding options, warrants, agreements, conversion rights, exchange rights,
preemptive rights or other rights (whether contingent or not) to subscribe
for, purchase or acquire any issued or unissued shares of Capital Stock of the
Company or any Subsidiary, and (ii) no restrictions upon, or Contracts or
understandings of the Company or any Subsidiary with respect to, the voting or
transfer of any shares of Capital Stock of the Company or any Subsidiary other
than the Shareholders Agreement.
SECTION 3.3. Authorization; Enforceability. The Company has the power and
authority to execute, deliver and perform, subject to the receipt of
stockholder approval, the terms and provisions of this Agreement and the
Supplementary Shareholder Agreement and the Supplementary Registration Rights
Agreement, and has taken all action necessary to authorize the execution,
delivery and performance by it of each of such agreements and to consummate
each of the Transactions. The Transactions have been approved by a Special
Committee of the Board of Directors of the Company (the "Special Committee")
and a majority of the members of the Company's Board of Directors who are not
affiliated with the Holders, and the Special Committee has received a letter
from Xxxxxxx, Sachs & Co. ("Xxxxxxx Xxxxx") expressing the view that, as of
the date of such letter, the exchange ratio of 110,500,000 shares of Common
Stock for an aggregate of 1,000,000 Shares falls within a range of exchange
ratios that reasonably could have been expected to be achieved in an
arm's-length transaction between the Company and an unaffiliated third party.
Other than receipt of stockholder approval of the issuance of shares of Common
Stock, no other corporate proceeding on the part of the Company is necessary
for such authorization, execution, delivery and consummation. The Company has
duly executed and delivered this Agreement and, at the Closing, the Company
will have duly executed and delivered each of the other agreements to be
executed and delivered at or prior to Closing. This Agreement constitutes, and
each of the other agreements, when executed and delivered by the Company, will
constitute, a legal, valid and binding obligation of the Company.
SECTION 3.4. No Violation; Consents. (a) The execution, delivery and
performance by the Company of each of this Agreement and the Supplementary
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Shareholders Agreements and Supplementary Registration Rights Agreement and
the consummation of the Transactions do not and will not contravene any
Applicable Law, except for any such contravention that would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Subject only to receiving stockholder approval of the issuance of shares of
Common Stock pursuant to this Agreement and the receipt of any waiver or
consent required under the Credit Agreement to permit the consummation of the
Transactions, the execution, delivery and performance by the Company of each
of this Agreement and the Supplementary Shareholders Agreements and
Supplementary Registration Rights Agreement and the consummation of the
Transactions (i) will not (A) violate, result in a breach of or constitute
(with or without due notice or lapse of time or both) a default (or give rise
to any right of termination, cancellation or acceleration) under any Contract
to which the Company or any Subsidiary is a party or by which the Company or
any Subsidiary is bound or to which any of their respective assets is subject,
or (B), result in the creation or imposition of any Lien upon any of the
assets of the Company or any Subsidiary, except for any such violations,
breaches, defaults or Liens that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and (ii) will not
conflict with or violate any provision of the certificate of incorporation or
bylaws or other governing documents of the Company or any Subsidiary.
(b) Except for (i) the filings, if any, by the Company required by
the HSR Act, and (ii) applicable filings, if any, with the Commission pursuant
to the Exchange Act, no consent, authorization or order of, or filing or
registration with, any Governmental Authority or other Person is required to
be obtained or made by the Company or any Subsidiary for the execution,
delivery and performance of this Agreement, the Supplementary Shareholders
Agreement and the Supplementary Registration Rights Agreement or the
consummation of any of the Transactions, except where the failure to obtain
such consents, authorizations or orders, or make such filings or
registrations, would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
SECTION 3.5. Commission Filings; Financial Statements. (a) Since December
31, 2001, the Company has filed all reports, registration statements and other
filings, together with any amendments or supplements required to be made with
respect thereto, that it has been required to file with the Commission under
the Securities Act and the Exchange Act. As of the respective dates of their
filing with the Commission, the Commission Filings complied in all material
respects with the applicable provisions of the Securities Act and the Exchange
Act and did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements made therein, in the light of the circumstances under which they
were made, not misleading.
(b) Each of the historical financial statements of the Company
(including any related notes or schedules) included in the Commission Filings
was
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prepared in accordance with GAAP (except as may be disclosed therein) and
complied in all material respects with the rules and regulations of the
Commission. Such financial statements fairly present the consolidated
financial position of the Company and the Subsidiaries as of the dates thereof
and the results of operations, cash flows and changes in stockholders' equity
for the periods then ended (subject, in the case of the unaudited interim
financial statements, to normal year-end audit adjustments on a basis
comparable with past periods).
SECTION 3.6. Private Offering. Based, in part, on the Holders'
representations in Section 4.2, the issuance of the shares of Common Stock to
the Holders is exempt from the registration and prospectus delivery
requirements of the Securities Act. None of the Company and the Subsidiaries,
nor anyone acting on behalf of any of them, has offered or sold or will offer
or sell any securities, or has taken or will take any other action, which
would subject any of the Transactions to the registration provisions of the
Securities Act.
SECTION 3.7. Antitakeover Laws. The Company and the Board of Directors of
the Company have each taken all action required to be taken by it in order to
exempt the execution, delivery, and performance of the Issuance and the
Exchange from, and each of the foregoing hereby is exempt from, the
requirements of any "moratorium," "control share," "fair price," "affiliate
transaction," "business combination" or other antitakeover laws and
regulations of any state, including, without limitation, the State of
Delaware, and Section 203 of the General Corporation Law of the State of
Delaware (the "DGCL").
SECTION 3.8. Material Adverse Change. Except as disclosed in the
Commission Filings, since December 31, 2002, there has not been any change or
condition which has resulted in a Material Adverse Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Holder severally as to itself only, and not jointly, hereby
represents and warrants to the Company as follows:
SECTION 4.1. Authorization. Such Holder is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has all requisite power and authority to own its properties
and assets and to carry on its business as it is now being conducted and as
currently proposed to be conducted.
SECTION 4.2. Private Placement. (a) Such Holder understands that the
offering and sale of the shares of Common Stock in the Issuance by the Company
is intended to be exempt from registration under the Securities Act pursuant
to Section 4(2) thereof.
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(b) Such Holder is an "accredited investor" as such term is defined
in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Holder is acquiring the shares of Common Stock to be
acquired hereunder for its own account (or for accounts over which it
exercises investment authority), for investment and not with a view to the
public resale or distribution thereof, in violation of any securities law.
(d) Each Holder understands that the shares of Common Stock will be
issued in a transaction exempt from the registration or qualification
requirements of the Securities Act and applicable state securities laws, and
that such securities must be held indefinitely unless a subsequent disposition
thereof is registered or qualified under the Securities Act and such laws or
is exempt from such registration or qualification.
(e) Each Holder (A) has been furnished with or has had full access to
all of the information that it considers necessary or appropriate to make an
informed investment decision with respect to the shares of Common Stock to be
issued in the Issuance and that it has requested from the Company, (B) has had
an opportunity to discuss with management of the Company the intended business
and financial affairs of the Company and to obtain information (to the extent
the Company possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any information furnished
to it or to which had access, and (C) can bear the economic risk of such
investment in the shares of Common Stock to be issued in the Issuance, has
such knowledge and experience in business and financial matters so as to
enable it to understand and evaluate the risks of and form an investment
decision with respect to its investment in the Shares and to protect its own
interest in connection with such investment.
SECTION 4.3. Authorization; Enforceability. Each Holder has the power and
authority to execute, deliver and perform the terms and provisions of each of
this Agreement and the Supplementary Shareholders Agreement and the
Supplementary Registration Rights Agreement to which it is a party, and has
taken all action necessary to authorize the execution, delivery and
performance by it of each of such agreements and to consummate each of the
Transactions contemplated thereby. All requisite proceedings (corporate or
other) on the part of such Holder necessary for such authorization, execution,
delivery and consummation has been taken or made. Such Holder has duly
executed and delivered this Agreement and, at the Closing, such Holder will
have duly executed and delivered each of the other agreements to be executed
and delivered at or prior to Closing. This Agreement constitutes, and each of
the other agreements, when executed and delivered by such Holder, will
constitute, a legal, valid and binding obligation of such Holder.
SECTION 4.4. No Violation; Consents. (a) The execution, delivery and
performance by such Holder of this Agreement and the Supplementary
Shareholders
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Agreement and the Supplementary Registration Rights Agreement and the
consummation of the Transactions do not and will not contravene any Applicable
Law except for such contraventions as would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
ability of such Holder to timely perform its obligations under this Agreement.
The execution, delivery and performance by such Holder of each of such
agreements and the consummation of the Transactions (i) will not (A) violate,
result in a breach of or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under any Contract to which such Holder is party
or by which such Holder is bound or to which any of its assets is subject, or
(B) result in the creation or imposition of any Lien upon any of the assets of
such Holder, except for any such violations, breaches, defaults or Liens that
would not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the ability of such Holder to timely perform its
obligations under this Agreement, and (ii) will not conflict with or violate
any provision of the certificate of incorporation or bylaws or other governing
documents of such Holder.
(b) Except for filings, if any, required under the HSR Act, no
consent, authorization or order of, or filing or registration with, any
Governmental Authority or other Person is required to be obtained or made by
such Holder for the execution, delivery and performance of any of such
agreements referred to in Section 4.4(a) or the consummation of any of the
Transactions, except (i) for those filings which have been made and (ii) where
the failure to obtain such consents, authorizations or orders, or make such
filings or registrations, would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the ability of such
Holder to timely perform its obligations under this Agreement.
SECTION 4.5. No Brokers. No Holder has engaged any Person as a broker,
finder or other agent who would be entitled to a fee relating to the
consummation by such Holder of the Transactions to be contemplated by such
Holder.
ARTICLE V
COVENANTS OF THE COMPANY
SECTION 5.1. Operation of Business. From the date hereof until the
Closing Date, except as contemplated by this Agreement, the Company shall, and
shall cause each of the Subsidiaries to:
(i) operate its business in all material respects in compliance with
Applicable Laws;
(ii) not adopt any amendment to the Company's charter or by-laws or
comparable organizational documents that have or could reasonably be
expected to have an adverse effect on the Holders or their ownership or
control of the shares of Common Stock to be issued in the Issuance; and
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(iii) except for issuances of Capital Stock of the Subsidiaries to
the Company or a wholly-owned Subsidiary (or on a proportionate basis to
all of such Subsidiary's stockholders) and issuance of Common Stock or
options to acquire Common Stock pursuant to employee benefit plans
disclosed in the Commission Filings, as in effect on the date hereof, or
as consented to in writing by Apollo Management and Blackstone (which
consent shall not be unreasonably withheld), not issue, reissue, sell,
pledge, dispose of or encumber or authorize the issuance, reissuance,
sale, pledge, disposition or encumbrance of additional shares of Capital
Stock of any class, or securities convertible into Capital Stock or any
rights, warrants or options or other rights of any kind to acquire any
convertible securities or Capital Stock or any other ownership interest
(including, but not limited to, stock appreciation rights or phantom
stock) of the Company or any of its Subsidiaries in excess of shares of
Common Stock whose aggregate market value is less than $25 million, other
than the Issuance and the issuance of preferred stock purchase rights
associated with shares of Common Stock issued in compliance with this
provision.
SECTION 5.2. Agreement to Take Necessary and Desirable Actions. The
Company shall (a) subject to the satisfaction of the conditions set forth in
Section 7.1, execute and deliver the Supplementary Shareholders Agreement and
the Supplementary Registration Rights Agreement and such other documents,
certificates, agreements and other writings and (b) take such other actions,
in each case, as may be necessary or reasonably requested by any of the
Holders in order to consummate or implement expeditiously the Transactions in
accordance with the terms of this Agreement.
SECTION 5.3. Compliance with Conditions; Reasonable Best Efforts. The
Company shall use its reasonable best efforts to cause all conditions
precedent to the obligations of the Company and the Holders to be satisfied.
Upon the terms and subject to the conditions of this Agreement, the Company
will use its reasonable best efforts to take, or cause to be taken, all
action, and to do, or cause to be done, all things necessary, proper or
advisable consistent with Applicable Law to consummate and make effective in
the most expeditious manner practicable the transactions contemplated hereby.
SECTION 5.4. HSR Act Notification. To the extent required by the HSR Act,
the Company shall, to the extent it has not already done so, (a) file or cause
to be filed, as promptly as practicable after the execution and delivery of
this Agreement, with the United States Federal Trade Commission and the
Antitrust Division of the United States Department of Justice, all reports and
other documents required to be filed by it under the HSR Act concerning the
transactions contemplated hereby and (b) promptly comply with or cause to be
complied with any requests by the United States Federal Trade Commission or
the Antitrust Division of the United States Department of Justice for
additional information concerning such transactions, in each case so that the
waiting period applicable to this Agreement and the transactions contemplated
hereby under the HSR Act shall expire as soon as practicable after the
execution and delivery of this
12
Agreement. The Company agrees to request, and to cooperate with the Holders in
requesting, early termination of any applicable waiting period under the HSR
Act.
SECTION 5.5. Consents and Approvals. The Company (a) shall use its
reasonable best efforts to obtain all necessary consents, waivers,
authorizations and approvals of all Governmental Authorities and of all other
Persons required in connection with the execution, delivery and performance of
this Agreement and the Supplementary Registration Rights Agreement and the
Supplementary Shareholders Agreement or the consummation of the Transactions
and (b) shall diligently assist and cooperate with the Holders in preparing
and filing all documents required to be submitted by the Holders to any
Governmental Authority in connection with such Transactions (which assistance
and cooperation shall include, without limitation, timely furnishing to the
Holders all information concerning the Company and its Subsidiaries that
counsel to the Holders reasonably determines is required to be included in
such documents or would be helpful in obtaining any such required consent,
waiver, authorization or approval).
SECTION 5.6. Stockholder Vote. The Company shall present a proposal, in
accordance with all Applicable Laws, at a special meeting of the Company's
stockholders for purposes of voting on the approval of the issuance of the
shares of Common Stock to be exchanged for the Shares in accordance with this
Agreement. A majority of the members of the Board of Directors of the Company
not affiliated with the Holders or their Affiliates and the Special Committee
shall, to the extent consistent with their fiduciary duties, recommend
approval of this issuance of Common Shares by the Company's stockholders. In
connection with any such meeting, the Company shall (a) use its reasonable
best efforts to file and have cleared by the Commission and will thereafter
mail to its stockholders as promptly as practicable all proxy materials for
such meeting and (b) will use its reasonable best efforts, subject to the
fiduciary duties of the Board of Directors of the Company (and the Special
Committee), to obtain the necessary approvals by its stockholders in
accordance with Applicable Law.
SECTION 5.7. Listing of Shares. The Company shall use its reasonable best
efforts to cause the shares of Common Stock to be issued pursuant to this
Agreement to be listed or otherwise eligible for trading on each principal
trading market for the Common Stock.
SECTION 5.8. Tax Treatment of Shares. (a) The Company and the Holders
hereby agree not to treat the Series A Preferred Stock as "preferred stock"
within the meaning of Treasury regulation section 1.305-5(a), except to the
extent required by a "determination" (as defined below) to the contrary.
Except as otherwise required by a "determination," the Company and the Holders
shall prepare any and all returns, reports, and other statements (including,
in each case, any schedule or attachment thereto, or amendment thereof) filed
for United States federal, state, or local income tax purposes in a manner
consistent with such treatment. A "determination" shall mean a decision,
judgment, decree, or other order by any court of competent jurisdiction, which
decision,
13
judgment, decree, or other order has become final, a closing agreement entered
into under section 7121 (or any successor to such section) of the Code, or any
other settlement agreement entered into in connection with an administrative
or judicial proceeding.
(b) If any United States federal, state, or local governmental
authority with jurisdiction over matters relating to taxation (each, a "Tax
Authority") asserts to the Company that the Series A Preferred Stock should be
treated as "preferred stock" (within the meaning of Treasury regulation section
1.305-5(a)) or otherwise challenges the Company's treatment of the Series A
Preferred Stock in a manner, or having an effect, that would, directly or
indirectly, adversely affect any of the Holders (collectively, a "Tax
Challenge"), the Company shall provide written notice of such event (a "Tax
Challenge Notice") within ten days thereof to Apollo Management and Blackstone
and Apollo Management and Blackstone shall have the right to assume the
defense (at their expense) of any such Tax Challenge through counsel of their
own choosing by notifying the Company within thirty days of the receipt by
Apollo Management and Blackstone of the Tax Challenge Notice. If Apollo
Management and Blackstone assume the defense of a Tax Challenge, the Company
shall have the right to participate in such defense and to employ counsel, at
its own expense, separate from the counsel employed by Apollo Management and
Blackstone; provided, that Apollo Management and Blackstone shall control all
aspects of the defense, negotiation, and ultimate settlement or other
disposition of the Tax Challenge. If Apollo Management and Blackstone choose
to control the defense of any Tax Challenge, the Company shall cooperate in
the defense thereof, which cooperation shall include, to the extent reasonably
requested by Apollo Management or Blackstone, the retention and the provision
to Apollo Management and Blackstone, of records and information relevant to
such defense, making employees of the Company available on a mutually
convenient basis to provide additional information, explanation of any
materials or other information, and supplying any requested powers of attorney
or other authorization requested by Apollo Management and Blackstone relating
to the defense of the Tax Challenge, and the Holders shall reimburse the
Company for all reasonable out of pocket expenses (but not any internal
allocated expenses) relating to such cooperation. If Apollo Management and
Blackstone choose not to assume the defense of any Tax Challenge, the Company
shall control the defense, negotiation and ultimate settlement or other
disposition of the Tax Challenge; provided, that (i) the Company shall use its
reasonable best efforts to defend the position that the Series A Preferred
Stock does not constitute "preferred stock" (within the meaning of Treasury
regulation section 1.305-5(a)) and; (ii) that the Company shall not settle or
otherwise resolve any Tax Challenge without the prior written consent of
Apollo Management and Blackstone, which consent shall not be unreasonably
withheld. In addition, notwithstanding any provision to the contrary, the
Company shall not take any action a purpose of which is to prejudice the
defense of any Tax Challenge.
(c) Except to the extent required by a "determination," the Company
shall not report to any Tax Authority, or to the holders of the Series A
Preferred Stock, as
14
a dividend payment, any amount received in the Transactions, the exchange of
the Series A Preferred Stock pursuant to this Agreement, any increases to the
Liquidation Preference, or any other amount, resulting from, or relating to,
the Company's failure to pay a dividend in cash on the Series A Preferred
Stock on any Dividend Payment Date (as such terms are defined in the
Certificates of Designation) or otherwise including, but not limited to, any
reporting on Internal Revenue Service Forms 1098, 1099-DIV, or any similar
forms or successors thereto.
SECTION 5.9. Periodic Information. For so long as the shares of Common
Stock issued under this Agreement are outstanding the Company shall file all
reports required to be filed by the Company under Section 13 or 15(d) of the
Exchange Act and shall provide the holders of such shares of Common Stock and
prospective purchasers of such shares with the information specified in Rule
144A(d) under the Securities Act.
SECTION 5.10. Legends. So long as applicable, each certificate
representing any portion of the shares of Common Stock issued under this
Agreement shall be stamped or otherwise imprinted with a legend in the
following form (in addition to any legend required under applicable state
securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. SUCH SHARES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION PURSUANT TO AN EXEMPTION FROM
SUCH REGISTRATION REQUIREMENTS AND DELIVERY TO ALLIED WASTE
INDUSTRIES, INC. OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO IT TO THE EFFECT THAT SUCH TRANSFER IS EXEMPT
FROM REGISTRATION UNDER THOSE LAWS.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A SECOND AMENDED AND RESTATED SHAREHOLDERS
AGREEMENT, DATED AS OF JULY 30, 1999, AS AMENDED, BETWEEN
ALLIED WASTE INDUSTRIES, INC. ("ALLIED") AND CERTAIN
SHAREHOLDERS OF ALLIED NAMED THEREIN AND MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF EXCEPT IN ACCORDANCE THEREWITH. A COPY OF SAID
15
AGREEMENT IS ON FILE AT THE OFFICE OF THE CORPORATE SECRETARY
OF ALLIED."
ARTICLE VI
COVENANTS OF THE PURCHASERS
SECTION 6.1. Agreement to Take Necessary and Desirable Actions. Each
Holder shall (a) subject to the satisfaction of the conditions set forth in
Section 7.2, execute and deliver each of the Supplementary Shareholders
Agreement and the Supplementary Registration Rights Agreement and such other
documents, certificates, agreements and other writings and (b) take such other
actions as may be reasonably necessary, desirable or requested by the Company
in order to consummate or implement expeditiously the transactions
contemplated hereby.
SECTION 6.2. Compliance with Conditions; Reasonable Best Efforts. Each
Holder will use its reasonable best efforts to cause all of the obligations
imposed upon it in this Agreement to be duly complied with, and to cause all
conditions precedent to the obligations of the Company and the Holders to be
satisfied. Upon the terms and subject to the conditions of this Agreement,
each Holder will use its reasonable best efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary,
proper or advisable consistent with applicable law to consummate and make
effective in the most expeditious manner practicable the Transactions.
SECTION 6.3. HSR Act Notification. To the extent required by the HSR Act,
each Holder shall, if it has not already done so, (a) file or cause to be
filed, as promptly as practicable after the execution and delivery of this
Agreement, with the United States Federal Trade Commission and the Antitrust
Division of the United States Department of Justice, all reports and other
documents required to be filed by it under the HSR Act concerning the
transactions contemplated hereby and (b) promptly comply with or cause to be
complied with any requests by the United States Federal Trade Commission or
the Antitrust Division of the United States Department of Justice for
additional information concerning such transactions, in each case so that the
waiting period applicable to this Agreement and the transactions contemplated
hereby under the HSR Act shall expire as soon as practicable after the
execution and delivery of this Agreement. Each Holder agrees to request, and
to cooperate with the Company in requesting, early termination of any
applicable waiting period under the HSR Act.
SECTION 6.4. Shareholder Vote. The Holders shall vote the Shares and any
shares of Common Stock beneficially owned (as such term is defined in Rule
13d-3 under the Exchange Act) by them and their Affiliates for any proposal
contemplated by Section 5.6 submitted to stockholders by the Company.
SECTION 6.5. Consents and Approvals. Each Holder (a) shall use its
reasonable best efforts to obtain all necessary consents, waivers,
authorizations and
16
approvals of all Governmental Authorities and of all other Persons required in
connection with the execution, delivery and performance of this Agreement and
the Supplementary Shareholders Agreement and the Supplementary Registration
Rights Agreement or the consummation of the Transactions and (b) shall
diligently assist and cooperate with the Company in preparing and filing all
documents required to be submitted by the Company to any Governmental
Authority in connection with such Transactions (which assistance and
cooperation shall include, without limitation, timely furnishing to the
Company all information concerning such Holder that counsel to the Company
reasonably determines is required to be included in such documents or would be
helpful in obtaining any such required consent, waiver, authorization or
approval).
ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING
SECTION 7.1. Conditions to the Company's Obligations. The obligations of
the Company hereunder required to be performed on the Closing Date shall be
subject, at the election of the Company, to the satisfaction or waiver, at or
prior to the Closing, of the following conditions:
(a) The representations and warranties of each Holder contained in
this Agreement shall have been true and correct when made and, in addition,
shall be repeated and true and correct in all material respects on and as of
the Closing Date with the same force and effect as though made on and as of
the Closing Date.
(b) Each Holder shall have performed in all material respects all
obligations and agreements, and complied in all material respects with all
covenants contained in this Agreement to be performed and complied with by
such Holder at or prior to the Closing Date.
(c) Any applicable waiting period under the HSR Act shall have
expired or been terminated.
(d) The Company shall have received, on terms reasonably satisfactory
to the Company, Apollo Management and Blackstone, any consent or waiver
necessary under the Credit Agreement to permit the performance of this
Agreement and consummation of the Transactions.
(e) The stockholders of the Company shall have approved the Issuance
as required by Applicable Law.
(f) The Holders shall have entered into each of the Supplementary
Registration Rights Agreement and the Supplementary Shareholders Agreement.
17
(g) The Holders shall have delivered certificates representing their
Shares to the Company.
(h) No provision of any Applicable Law, injunction, order or decree
of any Governmental Entity shall be in effect which has the effect of making
the Transactions illegal or shall otherwise restrain or prohibit the
consummation of the Transactions.
(i) The concurrent consummation of the Exchange by the
Apollo/Blackstone Shareholders (as defined in the Shareholders Agreement).
SECTION 7.2. Conditions to Holders' Obligations. The obligations of each
Holder hereunder required to be performed on the Closing Date shall be
subject, at the election of each Holder (as to itself only), to the
satisfaction or waiver, at or prior to the Closing, of the following
conditions:
(a) The representations and warranties of the Company contained in
this Agreement (i) shall have been true and correct when made and (ii) shall be
(A) in the case of representations and warranties that are qualified as to
materiality or Material Adverse Effect, true and correct and (B) in all other
cases, true and correct in all material respects, in the case of clauses (A)
and (B), as of the Closing Date with the same force and effect as though made
on and as of the Closing Date.
(b) The Company shall have performed in all material respects all of
its obligations, agreements and covenants contained in this Agreement to be
performed and complied with at or prior to the Closing Date.
(c) The Company shall have entered into each of the Supplementary
Registration Rights Agreement and the Supplementary Shareholders Agreement.
(d) There has been no Material Adverse Effect (i) since December 31,
2002, except as disclosed in the Commission Filings filed prior to the date
hereof, or (ii) since the date hereof.
(e) Any applicable waiting period under the HSR Act shall have
expired or been terminated; provided, that each Holder has used its reasonable
best efforts to obtain clearance under the HSR Act.
(f) The Company shall have delivered to the Holders a certificate
executed by it or on its behalf by a duly authorized representative, dated the
Closing Date, to the effect that each of the conditions specified in paragraph
(a) through (d) of this Section 7.2 has been satisfied.
(g) No provision of any Applicable Law, injunction, order or decree
of any Governmental Entity shall be in effect which has the effect of making
the
18
Transactions illegal or shall otherwise restrain or prohibit the consummation
of the Transactions.
(h) The Holders shall have received an opinion of counsel to the
Company, dated the Closing Date, and addressed to the Holders, in the form
attached hereto as Exhibit C.
(i) The Holders shall have received certificates representing the
shares of Common Stock to be issued in the Issuance.
(j) The Company shall have received, on terms reasonably satisfactory
to the Company, Apollo Management and Blackstone, any consent or waiver
necessary under the Credit Agreement to permit the performance of this
Agreement and consummation of the Transaction.
(k) The stockholders of the Company shall have approved the Issuance
as required by Applicable Law.
(l) The obligation of any Holder to consummate the transactions
contemplated hereby shall be conditioned upon the concurrent consummation of
the Issuance and Exchange by the Company and each of the Apollo/Blackstone
Shareholders not breaching its obligation to consummate the Exchange (in
accordance with the terms and subject to the conditions of this Agreement)
and, therefore, simultaneously consummating the Exchange if such Holder is
otherwise willing to consummate the Exchange. (Nothing herein shall relieve
any breaching Apollo/Blackstone Shareholder of liability to the Company for
its breach).
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Indemnification. (a) All representations, warranties,
covenants and agreements (except as to the extent covenants and agreements are
required to be performed after the Closing Date, which shall survive
indefinitely) contained in this Agreement shall survive the Closing for two
years, and except that the representations and warranties contained in
Sections 3.1, 3.2, 3.3, 3.6 and 3.7 shall survive without time limitation (but
subject to statutes of limitation of general application). Notwithstanding the
foregoing, with respect to claims asserted pursuant to this Section 8.1 before
the expiration of the applicable representation, warranty, covenant or
agreement, such claims shall survive until the date they are finally
adjudicated or otherwise resolved.
(b) The Company agrees to indemnify and hold harmless each Holder,
its Affiliates and partners, and the respective officers, directors, members,
employees, advisors and agents of each Holder, its Affiliates and partners
(each an "indemnified person"), from and against (and to reimburse each
indemnified person as
19
the same are incurred) any and all losses (including, but not limited to,
impairment of the value of the Shares), claims, damages, liabilities, costs
and expenses (collectively, "Losses") to which any indemnified person may
become subject or incur based upon, arising out of, or in connection with (A)
a breach of any representation, warranty or covenant of this Agreement or (B)
claims by third parties relating to this Agreement or the Transactions, any
claim, litigation, investigation or proceeding relating to any of the
foregoing, regardless of whether any indemnified person is a party thereto,
and to reimburse each indemnified person upon demand for any reasonable legal
or other reasonable out of pocket expenses incurred in connection with
investigating or defending any of the foregoing, provided that (x) the
foregoing indemnity will not, as to any indemnified person, apply to Losses to
the extent they are found by a final, non-appealable judgment of a court to
arise from the willful misconduct or gross negligence of such indemnified
person, and (y) the maximum amount indemnifable to each Holder (and its
successors or assigns) under clause (A) shall not exceed the purchase price of
the Shares purchased by such Holder. No person shall be liable for any
indirect, consequential or punitive damages in connection with this Agreement
or the Transactions.
(c) If a person entitled to indemnity hereunder (an "Indemnified
Party") asserts that any party hereto (the "Indemnifying Party") has become
obligated to the Indemnified Party pursuant to Section 8.1(b), or if any suit,
action, investigation, claim or proceeding is begun, made or instituted as a
result of which the Indemnifying Party may become obligated to the Indemnified
Party hereunder, the Indemnified Party shall notify the Indemnifying Party
promptly and shall cooperate with the Indemnifying Party, at the Indemnifying
Party's expense, to the extent reasonably necessary for the resolution of such
claim or in the defense of such suit, action or proceedings, including making
available any information, documents and things in the possession of the
Indemnified Party which are reasonably necessary thereof. Notwithstanding the
foregoing notice requirement, the right to indemnification hereunder shall not
be affected by any failure to give, or delay in giving, notice unless, and
only to the extent that, the rights and remedies of the Indemnifying Party
shall have been materially prejudiced as a result of such failure or delay.
(d) In fulfilling its obligations under this Section 8.1, after the
Indemnifying Party has provided each Indemnified Party with a written notice
of its acceptance of liability under this Section 8.1, as between such
Indemnified Party and the Indemnifying Party, the Indemnifying Party shall
have the right to investigate, defend, settle or otherwise handle, with the
aforesaid cooperation, any claim, suit, action or proceeding brought by a
third party in such manner as the Indemnifying Party may in its sole
discretion reasonably deem appropriate; provided that (i) counsel retained by
the Indemnifying Party is reasonably satisfactory to the Indemnified Party and
(ii) the Indemnifying Party will not consent to any settlement or entry of
judgment imposing any obligations on any other party hereto other than
financial obligations for which such party will be indemnified hereunder,
unless such party has consented in writing to such
20
settlement or judgment (which consent may be given or withheld in its sole
discretion). Notwithstanding the Indemnifying Party's election to assume the
defense or investigation of such claim, action or proceeding, the Indemnified
Party shall have the right to employ separate counsel and to participate in
the defense or investigation of such claim, action or proceeding, which
participation shall be at the expense of the Indemnifying Party, if (i) on the
advice of counsel to the Indemnified Party use of counsel of the Indemnifying
Party's choice could reasonably be expected to give rise to a material
conflict of interest, (ii) the Indemnifying Party shall not have employed
counsel reasonably satisfactory to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of the assertion of
any such claim or institution of any such action or proceeding, (iii) if the
Indemnifying Party shall authorize the Indemnified Party to employ separate
counsel at the Indemnifying Party's expense or (iv) such action shall seek
relief other than monetary damages against the Indemnified Party.
SECTION 8.2. Notices. All notices, demands, requests, consents, approvals
or other communications (collectively, "Notices") required or permitted to be
given hereunder or which are given with respect to this Agreement shall be in
writing and shall be personally served, delivered by reputable air courier
service with charges prepaid, or transmitted by hand delivery, telegram, telex
or facsimile, addressed as set forth below, or to such other address as such
party shall have specified most recently by written notice. Notice shall be
deemed given on the date of service or transmission if personally served or
transmitted by telegram, telex or facsimile. Notice otherwise sent as provided
herein shall be deemed given on the next business day following delivery of
such notice to a reputable air courier service.
To the Company:
Allied Waste Industries, Inc.
00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxx
Vice President, Legal
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
To the Holders:
21
To the address specified on the signature page executed by each such
Holder, with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
SECTION 8.3. Governing Law. This Agreement shall be governed by,
interpreted under, and construed in accordance with the laws of the State of
New York, including, without limitation, Sections 5-1401 and 5-1402 of the New
York General Obligations Law.
SECTION 8.4. Termination. This Agreement may be terminated (i) at any
time prior to the Closing Date by mutual agreement of the Company, Apollo
Management and Blackstone Management, on behalf of all purchasers, or (ii) if
the Closing shall not have occurred on or prior to December 31, 2003, by
either the Company, Apollo Management or Blackstone Management, at any time
after December 31, 2003. In addition, any Holder may terminate this Agreement
(as to itself only) at any time after December 31, 2003. Termination pursuant
to the foregoing sentences notwithstanding, Sections 8.1 and 8.10 hereof shall
remain in effect.
SECTION 8.5. Entire Agreement. This Agreement and the Supplementary
Shareholders Agreement and the Supplementary Registration Rights Agreement
(including all agreements entered into pursuant hereto and thereto and all
certificates and instruments delivered pursuant hereto and thereto) constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties, whether oral
or written, with respect to the subject matter hereof.
SECTION 8.6. Modifications and Amendments. No amendment,
22
modification or termination of this Agreement shall be binding upon any other
party unless executed in writing by the parties hereto intending to be bound
thereby. It is understood that members of the Company's board of directors
nominated by Apollo and Blackstone will recuse themselves from any
consideration by the Company of any amendment, modification or termination of
this Agreement.
SECTION 8.7. Waivers and Extensions. Any party to this Agreement may
waive any right, breach or default which such party has the right to waive,
provided that such waiver will not be effective against the waiving party
unless it is in writing, is signed by such party, and specifically refers to
this Agreement. Waivers may be made in advance or after the right waived has
arisen or the breach or default waived has occurred. Any waiver may be
conditional. It is understood that members of the Company's board of directors
nominated by Apollo and Blackstone will recuse themselves from any
consideration by the Company of any waiver of the terms and conditions of this
Agreement. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof nor of any other agreement or provision herein contained. No waiver or
extension of time for performance of any obligations or acts shall be deemed a
waiver or extension of the time for performance of any other obligations or
acts.
SECTION 8.8. Titles and Headings. Titles and headings of sections of this
Agreement are for convenience only and shall not affect the construction of
any provision of this Agreement.
SECTION 8.9. Exhibits and Schedules. Each of the exhibits and schedules
referred to herein and attached hereto is an integral part of this Agreement
and is incorporated herein by reference.
SECTION 8.10. Expenses; Brokers. The Company shall pay or cause to be
paid, whether or not the Closing occurs hereunder, all reasonable
out-of-pocket fees and expenses incurred by the Company and by or on behalf of
the Holders and their Affiliates in connection with the Transactions
(including, without limitation, reasonable fees, charges and disbursements of
counsel). Other than the use of UBS Securities LLC by the Company and Xxxxxxx,
Sachs by the Special Committee, each of the parties represents to the others
that neither it nor any of its Affiliates has used a broker or other
intermediary in connection with the Transactions for whose fees or expenses
any other party will be liable. Each party agrees to indemnify and hold the
other parties to this Agreement harmless from and against any and all claims,
liabilities or obligations with respect to any such fees or expenses asserted
by any Person on the basis of any act or statement alleged to have been made
by such party or any of its Affiliates.
SECTION 8.11. Press Releases and Public Announcements. All public
announcements or disclosures relating to the transactions contemplated hereby
shall be made only if mutually agreed upon by the Company and the Holders,
except to the extent
23
such disclosure is, in the opinion of counsel, required by law or by stock
exchange regulation, provided that (a) any such required disclosure shall only
be made, to the extent consistent with law and stock exchange regulation,
after consultation with Apollo and Blackstone and (b) no such announcement or
disclosure (except as required by law or by stock exchange regulation) shall
identify any Holder without such Holder's prior consent.
SECTION 8.12. Assignment; No Third Party Beneficiaries. This Agreement
and the rights, duties and obligations hereunder may not be assigned or
delegated by the Company without the prior written consent of the Holders,
which may be withheld in their sole discretion and may not be assigned or
delegated by any Holder, without the Company's prior written consent, which
shall not be unconditionally withheld, except that in each case a Holder may
assign its rights hereunder to its Permitted Transferee (as that term is
defined in the Shareholders Agreement) without being itself relieved of its
obligations hereunder on or prior to the Closing. Any assignment or delegation
of rights, duties or obligations hereunder made by the Company without the
prior written consent of the Holders, shall be void and of no effect. This
Agreement and the provisions hereof shall be binding upon and shall inure to
the benefit of each of the parties and their respective successors and
permitted assigns. This Agreement is not intended to confer any rights or
benefits on any Persons other than as expressly set forth in Section 8.1 or
this Section 8.12.
SECTION 8.13. Severability. This Agreement shall be deemed severable, and
the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term
or provision hereof. Furthermore, in lieu of any such invalid or unenforceable
term or provision, the parties hereto intend that there shall be added as a
part of this Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and enforceable.
SECTION 8.14. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
SECTION 8.15. Further Assurances. Each party hereto, upon the request of
any other party hereto, shall do all such further acts and execute,
acknowledge and deliver all such further instruments and documents as may be
necessary or desirable to carry out the transactions contemplated by this
Agreement, including, in the case of the Company, such acts, instruments and
documents as may be necessary or desirable to convey and transfer to each
Holder the shares of Common Stock to be acquired by it hereunder.
SECTION 8.16. Remedies Cumulative. The remedies provided herein shall be
cumulative and shall not preclude the assertion by any party hereto of any
other
24
rights or the seeking of any remedies against the other party hereto.
SECTION 8.17. Several Liability of the Holders. Nothing in this Agreement
shall be construed to impose on any Holder any liability for any action or
failure to act of any other Holder.
SECTION 8.18. No Duty to Other Holders. Each Holder confirms with each
other Holder that such Holder has conducted its own due diligence in
connection with its investment in the shares of Common Stock to be issued in
the Issuance and the other Holders may therefore have information different
from, or additional to, the information possessed by such Holder. In addition,
although certain of the other Holders (the "Supplying Holders") may have
shared information received by them (including information contained in third
party reports prepared for such other Holders) with such Holder, no
representation or warranty is being made with respect to such information by
any Supplying Holder or any such third party. Nothing in this Section 8.18 is
meant to limit any duty, obligation or liability the Company may have to any
Holder under this Agreement or otherwise.
SECTION 8.19. Specific Performance. Each party hereto acknowledges and
agrees that the other parties hereto could be irreparably damaged in the event
that its obligations contained in this Agreement are not performed in
accordance with their specific terms or are otherwise breached. Accordingly,
each party hereto agrees that the other parties will be entitled to an
injunction or injunctions to enforce specifically such covenants in any action
in any court having personal and subject matter jurisdiction, in addition to
any other remedy to which each such party may be entitled at law or in equity.
25
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ALLIED WASTE INDUSTRIES, INC.
/s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
Number of Shares
being exchanged: 284,175
Number of shares of
Common Stock to be received: 31,401,337.5
APOLLO INVESTMENT FUND IV, L. P.
By: Apollo Advisors IV, L.P.
its General Partner
By: Apollo Capital Management IV, Inc.
its General Partner
By: /S/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notice: c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 15,825
Number of shares of
Common Stock being received: 1,748,662.5
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors IV, L.P.
its Managing Partner
By: Apollo Capital Management IV, Inc.
its General Partner
By: /S/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notice: c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 89,163
Number of shares of
Common Stock being received: 9,852,511.5
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.
its General Partner
By: Apollo Capital Management II, Inc.
its General Partner
By: /S/ Xxxxx Xxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notice: c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 6,691
Number of shares of
Common Stock being received: 739,355.5
APOLLO OVERSEAS PARTNERS III, L.P.
c/o Apollo Advisors II, L.P.
its Managing Partner
By: Apollo Capital Management II, Inc.
its General Partner
By: /S/ Xxxxx Xxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notice: c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 4,146
Number of shares of
Common Stock being received: 458,133
APOLLO (UK) PARTNERS III, L P.
By: Apollo Advisors II, L.P.
its Managing Partner
By: Apollo Capital Management II, Inc.
its General Partner
By: /S/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notice: c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 40,000
Number of shares of
Common Stock to be received: 4,420,000
APOLLO/AW, LLC
By: Apollo Management IV, L.P.
its Manager
By: AIF IV Management, Inc.
its General Partner
By: /S/ Xxxxx Xxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Address for Notice: c/o Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 277,540.586
Number of shares of
Common Stock to be received: 3,065,334.753
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND L.P.,
By: Blackstone Management Associates III L.L.C.
its General Partner
By: /S/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: Sr. Managing Director
Address for Notice: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 51,459.414
Number of shares of
Common Stock to be received: 5,686,265.247
BLACKSTONE OFFSHORE
CAPITAL PARTNERS III L.P.
By: Blackstone Management Associates III L.L.C.
its General Partner
By: /S/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Sr. Managing Director
Address for Notice: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 21,000
Number of shares of
Common Stock to be received: 2,320,500
BLACKSTONE FAMILY
INVESTMENT PARTNERSHIP III L.P.,
By: Blackstone Management Associates III L.L.C.
its General Partner
By: /S/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Sr. Managing Director
Address for Notice: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 89,434
Number of shares of
Common Stock to be received: 9,882,457
GREENWICH STREET CAPITAL PARTNERS II, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: /S/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Address for Notice: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 3,030
Number of shares of
Common Stock to be received: 334,815
GSCP OFFSHORE FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: /S/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Address for Notice: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 1,864
Number of shares of
Common Stock to be received: 205,972
GREENWICH FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: /S/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Address for Notice: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 5,231
Number of shares of
Common Stock to be received: 578,025.5
GREENWICH STREET EMPLOYEES FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: /S/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Address for Notice: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 441
Number of shares of
Common Stock to be received: 48,730.5
TRV EXECUTIVE FUND, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C.,
its General Partner
By: /S/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Address for Notice: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 69,292
Number of shares of
Common Stock to be received: 7,656,766
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /S/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 2,760
Number of shares of
Common Stock to be received: 304,980
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /S/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 4,051
Number of shares of
Common Stock to be received: 447,635.5
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /S/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 1,504
Number of shares of
Common Stock to be received: 166,192
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /S/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 1,120
Number of shares of
Common Stock to be received: 123,760
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /S/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 219
Number of shares of
Common Stock to be received: 24,199.5
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /S/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 133
Number of shares of
Common Stock to be received: 14,696.5
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /S/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 3,407
Number of shares of
Common Stock to be received: 376,473.5
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /S/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 311
Number of shares of
Common Stock to be received: 34,365.5
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /S/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 14,705
Number of shares of
Common Stock to be received: 1,624,902.5
DLJ ESC II L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /S/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 9,148
Number of shares of
Common Stock to be received: 1,010,854
DLJMB FUNDING II, INC.
By: /S/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notice: 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 3,000
Number of shares of
Common Stock to be received: 331,500
/S/ Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
Address for Notice:
Telephone: (212)
Telecopy:
Number of Shares
being exchanged: 100
Number of shares of
Common Stock to be received: 11,050
By: /S/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Address for Notice: Credit Suisse First Boston
2121 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Number of Shares
being exchanged: 150
Number of shares of
Common Stock to be received: 16,575
/S/ Xxxxxxx Xxxxx
-------------------------------
Xxxxxxx Xxxxx
Address for Notice:
Telephone: (212)
Telecopy:
Number of Shares
being exchanged: 100
Number of shares of
Common Stock to be received: 11,050
/S/ Xxxxx Xxxxxxxx
-------------------------------
Xxxxx Xxxxxxxx
Address for Notice: Credit Suisse First Boston
2121 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (310) 712-
Schedule 1
Shares of Shares of
Senior Preferred to be Common Stock
Exchanged to be Received
Apollo Investment Fund IV, L.P. 284,175.000 31,401,337.5
Apollo Overseas Partners IV, L.P. 15,825.000 1,748,662.5
Apollo Investment Fund III, L.P. 89,163.000 9,852,511.5
Apollo Overseas Partners III, L.P. 6,691.000 739,355.5
Apollo (UK) Partners III, L.P. 4,146.000 458,133
Apollo/AW LLC 40,000.000 4,420,000
Blackstone Capital Partners III Merchant Banking Fund L.P. 277,540.586 30,668,234.753
Blackstone Offshore Capital Partners III L.P. 51,459.414 5,686,265.247
Blackstone Family Investment Partnership III L.P. 21,000.000 2,320,500
Greenwich Street Capital Partners II, L.P. 89,434.000 9,882,457
GSCP Offshore Fund, L.P. 3,030.000 334,815
Greenwich Fund, L.P. 1,864.000 205,972
Greenwich Street Employees Fund, L.P. 5,231.000 578,025.5
TRV Executive Fund, L.P. 441.000 48,730.5
DLJMB Funding II, Inc. 9,148.000 1,010,854
DLJ Merchant Banking Partners II, L.P. 69,292.000 7,656,766
DLJ Merchant Banking Partners II-A, L.P. 2,760.000 304,980
DLJ Diversified Partners, L.P. 4,051.000 447,635.5
DLJ Diversified Partners-A, L.P. 1,504.000 166,192
DLJ Millennium Partners, L.P. 1,120.000 123,760
DLJ Millennium Partners-A, L.P. 219.000 24,199.5
DLJ First ESC L.P. 133.000 14,696.5
DLJ Offshore Partners II, C.V. 3,407.000 376,473.5
DLJ EAB Partners, L.P. 311.000 34,365.5
DLJ ESC II, L.P. 14,705.000 1,624,902.5
Xxxxxxx X. Xxxxxx 3,000.000 331,500
Xxxx Xxxxxxx 100.000 11,050
Xxxxxxx Xxxxx 150.000 16,575
Xxxxx Xxxxxxxx 100.000 11,050
-------------- -------------
Totals 1,000,000.000 110,500,000
============== =============
Exhibit A
Form of Supplementary Registration Rights Agreement
Exhibit B
Form of Supplementary Shareholders Agreement
Exhibit C
Form of Xxxxx Xxxxx Opinion
Exhibit D
Form of Secretary's Certificate
-- Exhibit A - Certified Charter
-- Exhibit B - Bylaws
-- Exhibit C - Resolutions
-- Exhibit D - Specimen Common Stock Certificate
