Execution Copy
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Second Amended and Restated Registration Rights Agreement, dated as of
December 18, 2003 (this "Agreement"), by and between Allied Waste Industries,
Inc., a Delaware corporation (the "Company"), on the one hand, and Apollo
Investment Fund IV, L.P., a Delaware limited partnership, Apollo Investment Fund
III, L.P., a Delaware limited partnership, Apollo Overseas Partners IV, L.P., a
Delaware limited partnership, Apollo Overseas Partners III, L.P., a Delaware
limited partnership, Apollo (U.K.) Partners III, L.P., an English limited
partnership, Apollo/AW LLC, a Delaware limited liability company, Blackstone
Capital Partners II Merchant Banking Fund L.P., a Delaware limited partnership,
Blackstone Capital Partners III Merchant Banking Fund L.P., a Delaware limited
partnership ("BCP"), Blackstone Offshore Capital Partners II L.P., a Cayman
Islands limited partnership, Blackstone Offshore Capital Partners III L.P., a
Cayman Islands limited partnership, Blackstone Family Investment Partnership II
L.P., a Delaware limited partnership, Blackstone Family Investment Partnership
III L.P., a Delaware limited partnership, Greenwich Street Capital Partners II,
L.P., a Delaware limited partnership, GSCP Offshore Fund, L.P., a Cayman Islands
exempted limited partnership, Greenwich Fund, L.P., a Delaware limited
partnership, Greenwich Street Employees Fund, L.P., a Delaware limited
partnership, TRV Executive Fund, L.P., a Delaware limited partnership, DLJMB
Funding II, Inc., a Delaware corporation, DLJ Merchant Banking Partners II,
L.P., a Delaware limited partnership, DLJ Merchant Banking Partners II-A, L.P.,
a Delaware limited partnership, DLJ Diversified Partners, L.P., a Delaware
limited partnership, DLJ Diversified Partners-A, L.P., a Delaware limited
partnership, DLJ Millenium Partners, L.P., a Delaware limited partnership, DLJ
Millenium Partners-A, L.P., a Delaware limited partnership, DLJ First ESC L.P.,
a Delaware limited partnership, DLJ Offshore Partners II, C.V., a Netherlands
Antilles limited partnership, DLJ EAB Partners, L.P., a Delaware limited
partnership, and DLJ ESC II L.P., a Delaware limited partnership, Xxxxxxx X.
Xxxxxx, Xxxx Xxxxxxx, Xxxxxxx Xxxxx and Xxxxx Xxxxxxxx (collectively, the
"Shareholders"), on the other hand, amending and restating in its entirety the
Amended and Restated Registration Rights Agreement dated as of July 30, 1999
(the "Original Agreement"), by and between the Company, on the one hand, and
certain of the Shareholders, on the other hand.
W I T N E S S E T H:
WHEREAS, on July 30, 1999, the Company and certain of the Shareholders
entered into a Preferred Stock Purchase Agreement (the "Purchase Agreement")
pursuant to which certain of the Shareholders purchased an aggregate of
1,000,000 shares of Senior Convertible Preferred Stock, par value $.10 per
share, of the Company ("Senior Preferred Stock"), which is convertible into
shares of common stock, par value $.01 per share, of the Company (the "Common
Stock");
WHEREAS, the Company and the Shareholders have entered into an Exchange
Agreement, dated as of July 31, 2003 (the "Exchange Agreement"), pursuant to
which, upon the terms and subject to the conditions set forth in the Exchange
Agreement, the Shareholders will exchange their shares of Senior Preferred Stock
for shares of Common Stock to be issued by the Company (the "Exchange");
WHEREAS, concurrently herewith, the Company and Shareholders are entering
into a Third Amended and Restated Shareholders Agreement (the "Shareholders
Agreement"), which shall become effective at the time of the closing of the
Exchange; and
WHEREAS, a condition to closing the Exchange is that the Company and the
Shareholders enter into a Supplementary Registration Rights Agreement and the
Company and the Shareholders agree that this Agreement fully incorporates the
terms of the Supplementary Registration Rights Agreement and the execution and
delivery of this Agreement by the Company and the Shareholders satisfies the
conditions in the Exchange Agreement relating to entry into the Supplementary
Registration Rights Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree to
amend and restate the Original Agreement in its entirety as follows, effective
upon the closing of the purchase of the Exchange:
ARTICLE I
Definitions
1.1. Certain Definitions. In this Agreement:
"Apollo" means Apollo Advisors II, L.P., a Delaware limited partnership, on
behalf of one or more managed funds.
"Apollo/Blackstone Shareholders" shall have the meaning set forth in the
Shareholders Agreement.
"Blackstone" means Blackstone Capital Partners III Merchant Banking Fund
L.P., a Delaware limited partnership, on behalf of one or more managed funds.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated under such Act.
"Non-Apollo/Blackstone Shareholders" means all of the Shareholders other
than the Apollo/Blackstone Shareholders.
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"Registrable Securities" means the 11,776,765 shares of Common Stock
acquired by certain of the Shareholders from TPG Partners, L.P. and TPG Parallel
I, L.P. (the "TPG Block"), the 14,600,000 shares of Common Stock acquired by
certain of the Shareholders from Xxxxxxx, Inc. (the "Xxxxxxx Block" and,
together with the TPG Block, the "Original Shares"), any shares of Common Stock
received in exchange for the Senior Preferred Stock pursuant to the Exchange
Agreement (such shares, the "Additional Shares", together with the Original
Shares, the "Shares"), and any additional shares of Common Stock acquired by
Shareholders in compliance with the Shareholders Agreement or otherwise acquired
by the Shareholders prior to the date hereof in compliance with their agreements
with the Company, and any additional shares of Common Stock issued in connection
with any stock dividend on, or any stock split, reclassification or
reorganization of any of the Shares or such additional shares.
"SEC" means the United States Securities and Exchange Commission or any
successor agency.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated under such Act.
"Subject Securities" means shares of Senior Preferred Stock, Junior
Preferred Stock, Common Stock or other equity securities of the Company
convertible into or exchangeable for shares of Common Stock.
ARTICLE II
REGISTRATION RIGHTS
2.1. Incidental Rights. If at any time or from time to time (but subject to
the limitations on sales of Registrable Securities in the Shareholders
Agreement) the Company proposes to file with the SEC a registration statement
(whether on Form X-0, X-0, or S-3, or any equivalent form then in effect) for
the registration under the Securities Act of any shares of Subject Securities
for sale, for cash consideration, to the public by Company or on behalf of one
or more shareholders of Company (excluding any sale of securities upon
conversion into or exchange or exercise for shares of Common Stock, and any
shares of Common Stock issuable by Company upon the exercise of employee stock
options, or to any employee stock ownership plan, or in connection with any
acquisition made by Company, any securities exchange offer, dividend
reinvestment plan, employee benefit plan, corporate reorganization, or in
connection with any amalgamation, merger or consolidation of Company or any
direct or indirect subsidiary of Company with one or more other corporations if
Company is the surviving corporation), Company shall give Shareholders at least
20 days' prior written notice of the proposed filing (or if 20 days' notice is
not practicable, a reasonable shorter period to be not less than 7 days), which
notice shall outline the nature of the proposed distribution and the
jurisdictions in the
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United States in which Company proposes to qualify and offer such securities
(the "Elected Jurisdictions"). On the written request of Shareholders received
by Company within 15 days after the date of Company's delivery to Shareholders
of the notice of intended registration (which request shall specify the
Registrable Securities sought to be disposed of by Shareholders and the intended
method or methods by which dispositions are intended to be made), Company shall,
under the terms and subject to the conditions of this Article II, at its own
expense as provided in Section 4.1, include in the coverage of such registration
statement (or in a separate registration statement concurrently filed) and
qualify for sale under the blue sky or securities laws of the various states in
the Elected Jurisdictions the number of Registrable Securities of the kind being
registered (the "Specified Securities") held by Shareholders or into which the
Registrable Securities are convertible, as the case may be, and which
Shareholders have so requested to be registered or qualified for distribution,
to the extent required to permit the distribution (in accordance with the
intended method or methods thereof as aforesaid) in the Elected Jurisdictions
requested by Shareholders of such Registrable Securities.
Notwithstanding anything else contained in this Section 2.1, if the
registration statement to be filed by the Company is a registration filed in
response to any of the first three demands made by the Apollo/Blackstone
Shareholders pursuant to Section 2.2 (the "First Three Demands"), then the
Non-Apollo/Blackstone Shareholders shall not be entitled to have their
Registrable Securities included in the coverage of such a registration
statement, provided, however, that if the First Three Demands include Additional
Shares (or shares into which Additional Shares have been converted), then the
Non-Apollo/Blackstone Shareholders shall be entitled to have their Registrable
Securities included in the coverage of such registration statement, on the terms
and conditions set forth in this Section 2.1.
If the distribution proposed to be effected by Company involves an
underwritten offering of the securities being so distributed by or through one
or more underwriters, and if the managing underwriter of such underwritten
offering indicates in writing its reasonable belief that including all or part
of the Specified Securities in the coverage of such registration statement or in
the distribution to be effected by such prospectus will materially and adversely
affect the sale of securities proposed to be sold (which statement of the
managing underwriter shall also state the maximum number of shares, if any,
which can be sold by Shareholders requesting registration under this Section 2.1
without materially adversely affecting the sale of the shares proposed to be
sold), then the number of Specified Securities which Shareholders shall have the
right to include in such registration statement shall be reduced to the maximum
number of shares specified by the managing underwriter. In the case of a
registration statement filed in response to any of the First Three Demands
covering both Original Shares and Additional Shares (or shares into which
Additional Shares have been converted), first priority shall be afforded to the
Original Shares, with all other securities to be completely eliminated
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before the number of such Original Shares is reduced and second priority shall
be given to the other Registrable Securities of both the Apollo/Blackstone
Shareholders and the Non-Apollo/Blackstone Shareholders, with all other
securities to be completely eliminated before the number of such Registrable
Securities is reduced; provided; however, that if the number of Registrable
Securities is to be reduced, then reductions will respect to the Registrable
Securities shall be made among the Shareholders on a pro-rata basis in
accordance with the relationship which the number of the Registrable Securities
held by each Shareholder bears to the number of Registrable Securities held by
all Shareholders (the "Additional Shares Pro-Rata Reduction").
In all other cases, first priority shall be afforded to securities covered
by a registration statement filed in response to the exercise of a demand
registration right by another holder of Common Stock, including the
Apollo/Blackstone Shareholders, and no securities proposed to be sold by such
holders shall be so reduced until all securities proposed to be sold by all
other parties have been entirely eliminated and second priority shall be
afforded to the Original Shares; provided, however, that in the case of a
registration statement filed in response to a demand from the Apollo/Blackstone
Shareholders (other than any of the First Three Demands) (the "Other Demands"),
first priority shall be afforded to the Original Shares, with all other
securities to be completely eliminated before the number of such Original Shares
is reduced and second priority shall be given to the other Registrable
Securities of both the Apollo/Blackstone Shareholders and the
Non-Apollo/Blackstone Shareholders, with all other securities to be completely
eliminated before the number of such Registrable Securities is reduced. As to
any reductions to be made to the Registrable Securities (other than the Original
Shares) proposed to be sold by the Shareholders pursuant to a registration
statement filed in response to the Other Demands, such reductions to be made
among the Shareholders shall be made on a pro-rata basis in accordance with the
relationship which the number of Registrable Securities (other than the Original
Shares) held by each Shareholder bears to the number of Registrable Securities
(other than the Original Shares) held by all Shareholders (the "Pro-Rata
Reduction"). As to all other proposed selling shareholders of Securities,
including Shareholders, any such reduction in the number of Securities proposed
to be sold by the selling shareholders shall be effected on a pro rata basis in
accordance with the relationship which the number of such Securities of the
class proposed to be sold by each selling shareholder bears to the number of
such Securities of that class proposed to be sold by all selling shareholders.
Company shall have the sole right to select any underwriters, including the
managing underwriter, of any public offering of securities made other than as a
result of the rights granted in Section 2.2. Nothing in this Section 2.1 shall
create any liability on the part of Company to Shareholders if Company for any
reason decides not to file or to delay or withdraw a registration statement
(which Company may do in its sole discretion).
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Shareholders may request to have Registrable Securities included in an
unlimited number of registrations under this Section 2.1.
2.2. Demand Rights. Upon written request of the Apollo/Blackstone
Shareholders made at any time (but subject to the limitations on sales of
Registrable Securities in the Shareholders Agreement), the Company shall, under
the terms and subject to the conditions set forth in this Section 2.2, and
Sections 2.4 and 2.5, file (and use its reasonable efforts to cause to become
effective) a registration statement covering, and use its reasonable efforts to
qualify for sale under the blue sky or securities laws of the various states of
the United States as may be requested by the Apollo/Blackstone Shareholders
(except any such state in which, in the opinion of the managing underwriter of
the offering, the failure to so qualify would not materially and adversely
affect the proposed offering), in accordance with the intended method or methods
of disposition set forth in that notice, of such number of Registrable
Securities, as may be designated by the Apollo/Blackstone Shareholders in their
request, or that portion thereof designated in said request for registration in
each of the Designated Jurisdictions (as defined below). A request for
registration under this Section 2.2 shall specify the number of shares to be
registered, the jurisdictions in the United States in which such registration is
to be effected (the "Designated Jurisdictions") and the proposed manner of sale,
including the name and address of any proposed underwriter; provided, that all
offerings contemplated by a request for registration under this Section 2.2
shall be underwritten offerings involving a distribution of Registrable Shares
to the public in which reasonable efforts are made not to knowingly sell to any
single buyer, acting individually or with others, who after such underwriting
will own more than 9% of the Total Voting Power (as defined in the Shareholders
Agreement) (any such buyer, "Significant Stockholder"), under circumstances in
which it would reasonably be expected to not result in any person becoming a
Significant Stockholder. The principal underwriter or underwriters for any such
offering shall be selected by the Apollo/Blackstone Shareholders, subject to
Company's approval, which may not be unreasonably withheld. Notwithstanding any
other provision in this Section, the Apollo/Blackstone Shareholders shall not be
permitted to make a demand for registration pursuant to this Section unless the
number of Registrable Securities covered by such demand is at least 2,500,000
shares of Common Stock (as such number may be appropriately adjusted to reflect
stock splits, reverse stock splits, dividends and any other recapitalization or
reorganization of Company) or such lesser number of shares as would yield gross
proceeds of not less than $50 million based on the average closing price of the
Common Stock over the ten trading day period immediately preceding the date of
the written request hereunder. No Shareholders other than the Apollo/Blackstone
Shareholders and their Related Transferees shall have demand registration
rights.
If the distribution proposed to be effected pursuant to this Section 2.2
involves an underwritten offering of Registrable Securities and securities of
the Company
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other than Registrable Securities ("Other Securities"), and if the managing
underwriter of such underwritten offering indicates in writing its reasonable
belief that including all or part of such securities in the coverage of such
registration statement will materially and adversely affect the sale of the
securities proposed to be sold, then the number of securities proposed to be
sold shall be reduced to the maximum number of securities specified by the
managing underwriter. In such a case, first priority shall be afforded to
Registrable Securities in accordance with the third and fourth paragraph of
Section 2.1, and such Other Securities, subject to the limitations set forth in
such third and fourth paragraphs.
Company may delay the filing of any registration statement requested under
this Section 2.2, or delay its effectiveness, for a reasonable period (but not
longer than 90 days) if, in the sole judgment of Company's Board of Directors,
(i) a delay is necessary in light of pending financing transactions, corporate
reorganizations, or other major events involving Company, or (ii) filing at the
time requested would materially and adversely affect the business or prospects
of Company in view of disclosures that may be thereby required. Once the cause
of the delay is eliminated, Company shall promptly notify the Apollo/Blackstone
Shareholders and, promptly after Shareholders notify Company to proceed, Company
shall file a registration statement and begin performance of its other
obligations under this Section 2.2.
The Apollo/Blackstone Shareholders shall be entitled to request not more
than nine registrations under this Section 2.2 (provided that the filing of a
registration statement in more than one Designated Jurisdiction in connection
with a concurrent or substantially concurrent distribution shall be deemed for
the purposes of this Agreement to be a single registration). However, if the
Apollo/Blackstone Shareholders request a registration under this Section 2.2,
but no registration statement becomes effective with respect to the Registrable
Securities covered by such request, then such request shall not count as a
request for purposes of determining the number of requests for registration the
Apollo/Blackstone Shareholders may make under this Section 2.2.
If there is an effective registration statement requested by the
Apollo/Blackstone Shareholders pursuant to this Section 2.2, the
Apollo/Blackstone Shareholders may require the Company to delay the filing of
any registration statement relating to shares of Common Stock or delay its
effectiveness, for a reasonable period (but not longer than 90 days) if, in the
sole judgment of the Apollo/Blackstone Shareholders, a delay is necessary in
order to avoid materially and adversely affecting the disposition of Registrable
Securities pursuant to the offering by the Shareholders; provided that the
foregoing shall not limit the Company's right to file and have declared
effective registration statements relating to shares of Common Stock issuable
pursuant to employee benefit plans of the Company or any of its subsidiaries or
issuable pursuant to a
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merger, acquisition or similar transaction involving the Company or any of its
subsidiaries.
2.3. Shelf Registration Rights. In addition to the other rights under this
Agreement of the Shareholders who are party to this Agreement, at any time after
the first anniversary of the acquisition of shares of Common Stock pursuant to
the Exchange Agreement, upon the written request of the Apollo/Blackstone
Shareholders, the Company shall prepare and file or cause to be prepared and
filed with the SEC as promptly as reasonably practicable a registration
statement for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 of the Securities Act (a "Shelf Registration Statement") registering
the resale from time to time by the Shareholders and the Related Transferees (as
defined in the Shareholders Agreement) thereof of all of the Registrable
Securities (the "Shelf Registration Statement"). The Shelf Registration
Statement shall be on Form S-3, or another appropriate form permitting
registration of such Registrable Securities for resale by such Shareholders or
the Related Transferees thereof in accordance with the methods of distribution
reasonably elected by the Shareholders or Related Transferees thereof and set
forth in the Shelf Registration Statement. The Apollo/Blackstone Shareholders
shall be entitled to only one request for a Shelf Registration Statement
pursuant to this Section.
The Company shall use reasonable efforts to cause the Shelf Registration
Statement to be declared effective under the Securities Act and to keep the
Shelf Registration Statement continuously effective under the Securities Act for
a period of four years following its being declared effective (the
"Effectiveness Termination Date"); provided, however, that such Effectiveness
Termination Date shall be increased by the number of days that the Shelf
Registration Statement is delayed or suspended pursuant to this Section 2.3.
In connection with any sales pursuant to the Shelf Registration Statement,
reasonable efforts shall be made not to knowingly sell to any single buyer,
acting individually or with others, who, after taking account of the sales, will
own more than 9% of the Total Voting Power (as defined in the Shareholders
Agreement).
The Company may delay the filing of the Shelf Registration Statement, and
any amendments or supplements thereto, or delay its effectiveness, for a
reasonable period (but not longer than 90 days) if, in the sole judgment of the
Company's Board of Directors, (i) delay is necessary in light of pending
financing transactions, corporate reorganizations, or other major events
involving the Company, or (ii) filing at the time requested would materially and
adversely affect the business or prospects of the Company in view of disclosure
that may be thereby required. Once the cause of the delay is eliminated, the
Company shall promptly notify the Shareholders and, promptly after Shareholders
notify the Company to proceed, the Company shall file a Shelf Registration
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Statement or any amendments or supplements thereto and begin or resume
performance of its other obligations under this Agreement and the Registration
Rights Agreement.
Subject to the provisions of this Section 2.3, the Company shall have the
right at any time to require that the Shareholders suspend further open market
offers and sales of the Registrable Shares whenever, and for so long as, in the
reasonable judgment of the Company based upon the advice of legal counsel, there
is in existence material undisclosed information or events with respect to the
Company the disclosure of which would materially and adversely affect the
business or prospects of the Company or suspension is necessary in light of
pending financing transactions, corporate reorganizations, or other major events
involving the Company (the "Suspension Right"). In the event the Company
exercises the Suspension Right, such suspension will continue for the period of
time (the "Suspension Period") reasonably necessary for the disclosure to occur
at a time that is not materially detrimental to the Company and its stockholders
or until such time as the information or event is no longer material, each as
determined in good faith by the Company based upon the advice of legal counsel,
or for the transactions or other major events to be completed or terminated. The
period during which the availability of the Shelf Registration Statement and any
prospectus is suspended shall, without the Company incurring any obligation to
pay liquidated damages, not, in the aggregate exceed 120 days in any twelve (12)
month period. The Company will reasonably promptly give the Shareholders notice
of any such suspension and will, as promptly as reasonably practicable after the
Suspension Period terminates, allow the resumption of the use of the Shelf
Registration Statement and, if required to reflect such material corporate
development or major event, prepare a supplement or amendment to the Shelf
Registration Statement .
In the event that the Shareholders should elect to make an underwritten
offering or distribution of the Registrable Shares after the Shelf Registration
Statement has been declared effective, the number of requests for registration
permitted under Section 2.2 of this Agreement shall be reduced by one (1) for
each such underwritten offering.
If there has been filed an amendment to the Shelf Registration Statement
relating to an underwritten offering then either Apollo or Blackstone may
require the Company to delay the filing of any registration statement relating
to shares of Common Stock or delay its effectiveness, for a reasonable period
(but not longer than 90 days) if, in the sole judgment of either Apollo or
Blackstone, a delay is necessary in order to avoid materially and adversely
affecting the disposition of Registrable Securities pursuant to the offering by
the Shareholders; provided that the foregoing shall not limit the Company's
right to file and have declared effective registration statements relating to
shares of Common Stock issuable pursuant to employee benefit plans of the
Company or any of its
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subsidiaries or issuable pursuant to a merger, acquisition or similar
transaction involving the Company or any of its subsidiaries.
2.4. Registration Conditions. Notwithstanding any other provision of this
Agreement, Company shall not be required to effect a registration of any
securities under either Section 2.1 or Section 2.2 of this Agreement, or file
any post-effective amendment to such a registration statement relating to such a
qualification:
(a) unless Shareholders agree to (x) sell and distribute a portion or
all of their Registrable Securities in accordance with the plan or plans of
distribution adopted by and through underwriters, if any, acting for
Company or any such other sellers of Common Stock, and (y) bear a pro rata
share of underwriter's discounts and commissions;
(b) if a registration requested under Section 2.2, or any
post-effective amendment to the registration statement filed in connection
therewith, requires, under applicable statutes and rules, a special audit
(other than a normal fiscal year-end audit) of any financial statements,
unless Shareholders agree to pay their proportionate share (determined by
the number of shares to be sold by Shareholders in the offering in
proportion to the total number of shares to be sold by Company and all
other participants in such offering) of the reasonable fees and expenses of
accountants incurred in connection with the special audit and which would
otherwise not be incurred; provided that Shareholders shall not be required
to pay any share of such fees and expenses if such audit would otherwise be
required at substantially the same time to satisfy the Company's reporting
requirements under the Exchange Act absent such registration;
(c) if, in the case of a request for registration under Section 2.2,
(x) any offering pursuant to a registration statement covering securities
of the same kind otherwise sought to be registered regarding which
Shareholders could have exercised registration rights under Section 2.1 of
this Agreement has been completed within the prior 90 days, (y) a
registration statement requested by Shareholders pursuant to Section 2.2
has become effective under the Securities Act within the prior six months,
or (z) Company has given notice under Section 2.1 of its intention to file
a registration statement under the Securities Act and has not completed or
abandoned the proposed offering (for so long as the Company continues in
good faith to pursue the proposed offering); and
(d) unless Company has received from Shareholders all information
Company has reasonably requested concerning Shareholders and their method
of distribution of Registrable Securities, so as to enable Company to
include in the registration statement all facts required to be disclosed in
it.
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2.5. Covenants and Procedures. If Company becomes obligated under this
Article II to effect a registration of Registrable Securities on behalf of
Shareholders, then (as applicable to the jurisdictions for which such
registration is to be made):
(a) With respect to registrations pursuant to either Section 2.1 or
Section 2.2, Company, at its expense as provided in Section 4.2, shall
prepare and file with the SEC a registration statement covering such
securities and such other related documents as may be necessary or
appropriate relating to the proposed distribution, and shall use reasonable
efforts to cause the registration statement to become effective. Company
will also, with respect to any registration statement, file such
post-effective amendments to the registration statement (and use reasonable
efforts to cause them to become effective) and such supplements as are
necessary so that current prospectuses are at all times available for a
period of at least 90 days after the effective date of the registration
statement or for such longer period, not to exceed 180 days, as may be
required under the plan or plans of distribution set forth in the
registration statement. Shareholders shall promptly provide Company with
such information with respect to Shareholders' Registrable Securities to be
so registered and, if applicable, the proposed terms of their offering, as
is required for the registration. With respect to any registration under
this Article II, if the Registrable Securities to be covered by the
registration statement are not to be sold to or through underwriters acting
for Company, Company shall:
(i) deliver to Shareholders, as promptly as practicable, as many
copies of preliminary prospectuses as Shareholders may reasonably
request (in which case Shareholders shall keep a written record of the
distribution of the preliminary prospectuses and shall refrain from
delivery of the preliminary prospectuses in any manner or under any
circumstances which would violate the Securities Act or the securities
laws of any other jurisdiction, including the various states of the
United States);
(ii) deliver to Shareholders, as soon as practicable after the
effective date of the registration statement, and from time to time
thereafter during the applicable period described in Section 2.5, as
many copies of the relevant prospectuses as Shareholders may
reasonably request; and
(iii) in case of the happening, after the effective date of the
registration statement and during the applicable 90 or 180-day period
described in the second sentence of Section 2.5(a), of any event or
occurrence as a result of which the prospectus, as then in effect,
would include an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
any statement therein not misleading in the light of the circumstances
in which it was made, give
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Shareholders written notice of the event or occurrence and prepare and
furnish to Shareholders, in such quantities as it may reasonably
request, copies of an amendment of or a supplement to such prospectus
as may be necessary so that the prospectus, as so amended or
supplemented and thereafter delivered to purchasers of the securities,
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which it was made, not misleading.
(b) Company will notify Shareholders of any action by the SEC or any
Commission to suspend the effectiveness of any registration statement filed
pursuant hereto or the initiation or threatened initiation of any
proceeding for such purpose or the receipt by Company of any notification
with respect to the suspension of the qualification of the securities for
sale in any jurisdiction. Immediately upon receipt of any such notice,
Shareholders shall cease to offer or sell any Registrable Securities
pursuant to the registration statement or prospectus in the jurisdiction to
which such order or suspension relates. Company will also notify
Shareholders promptly of the occurrence of any event or the existence of
any state of facts that, in the judgment of Company, should be set forth in
such registration statement or prospectus. Immediately upon receipt of such
notice, Shareholders shall cease to offer or sell any Registrable
Securities pursuant to such registration statement or prospectus, cease to
deliver or use such registration statement or prospectus and, if so
requested by Company, return to Company at Company's expense all copies of
such registration statement or prospectus. Company will as promptly as
practicable take such action as may be necessary to amend or supplement
such registration statement or prospectus in order to set forth or reflect
such event or state of facts and provide copies of such proposed amendment
or supplement to Shareholders.
(c) On or before the date on which the registration statement is
declared effective, Company shall use its reasonable efforts to:
(i) register or qualify (and cooperate with Shareholders, the
underwriter or underwriters, if any, and their counsel, in connection
with the registration or qualification of) the securities covered by
the registration statement for offer and sale under the securities or
blue sky laws of each state and other jurisdiction as Shareholders or
any underwriter reasonably requests;
(ii) keep each such registration or qualification effective,
including through new filings, or amendments or renewals, during the
period the registration statement or prospectus is required to be kept
effective; and
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(iii) do any and all other acts or things necessary or advisable
to enable the disposition in all such jurisdictions of the Registrable
Securities covered by the applicable registration statement, provided
that Company will not be required to qualify generally to do business
in any jurisdiction where it is not then so qualified.
(d) Company shall use its reasonable efforts to cause all Registrable
Securities of Shareholders included in the registration statement to be
listed, by the date of the first sale of such shares pursuant to such
registration statement, on each securities exchange on which the securities
are then listed or proposed to be listed, if any, as directed by the
Apollo/Blackstone Shareholders (subject to the Company's consent, which
consent shall not be unreasonably withheld).
(e) Company shall make generally available to Shareholders and any
underwriter participating in the offering conducted pursuant to the
registration statement an earnings statement satisfying Section 11(a) of
the Securities Act no later than 45 days after the end of the 12-month
period beginning with the first day of Company's first fiscal quarter
commencing after the effective date of the registration statement. The
earnings statement shall cover such 12-month period. This requirement will
be deemed to be satisfied if Company timely files complete and accurate
information on Forms 10-Q, 10-K, and 8-K under the Exchange Act, and
otherwise complies with Rule 158 under the Securities Act as soon as
feasible.
(f) Company shall cooperate with Shareholders and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legends)
representing Registrable Securities to be sold under the registration
statement, and to enable such securities to be in such denominations and
registered in such names as the managing underwriter or underwriters, if
any, or Shareholders, may request, subject to the underwriters' obligation
to return any certificates representing unsold securities.
(g) Company shall use its reasonable efforts to cause Registrable
Securities covered by the registration statement to be registered with or
approved by such other governmental agencies or authorities in the United
States (including the registration of Registrable Securities under the
Exchange Act) as may be necessary to enable Shareholders or the underwriter
or underwriters, if any, to consummate the disposition of such securities.
(h) Company shall, during normal business hours and upon reasonable
notice, make available for inspection by Shareholders, any underwriter
participating in any offering pursuant to the registration statement, and
any attorney, accountant or other agent retained by Shareholders or any
such
-13-
underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents, and properties of Company
(including non-public information), as shall be reasonably necessary to
enable the Inspectors to exercise their due diligence responsibilities;
provided that any Inspector receiving non-public information shall have
previously entered into an appropriate confidentiality agreement in
mutually satisfactory form and substance. Company shall also cause its
officers, directors, and employees to supply all nonconfidential
information reasonably requested by any Inspector in connection with the
registration statement.
(i) Company shall use its reasonable efforts to obtain a "cold
comfort" letter and, as applicable, a "long-form comfort letter" from
Company's independent public accountants, and an opinion of counsel for
Company, each in customary form and covering such matters of the type
customarily covered by cold comfort letters and long form comfort letters
and legal opinions in connection with public offerings of securities, as
Shareholders reasonably request.
(j) Company shall enter into such customary agreements (including an
underwriting agreement containing such representations and warranties by
Company and such other terms and provisions, as are customarily contained
in underwriting agreements for comparable offerings and are reasonably
satisfactory to the Company) and take all such other actions as
Shareholders or the underwriters participating in such offering and sale
may reasonably request in order to expedite or facilitate such offering and
sale (other than such actions which are disruptive to the Company or
require significant management availability), including providing
reasonable availability of appropriate members of senior management of the
Company to provide customary due diligence assistance in connection with
any offering and to participate in customary "road show" presentations in
connection with any underwritten offerings in substantially the same manner
as they would in an underwritten primary registered public offering by the
Company of its Common Stock, after taking into account the reasonable
business requirements of the Company in determining the scheduling and
duration of any road show.
ARTICLE III
INDEMNIFICATION
3.1. Indemnification by Company. In the event of any registration under the
Securities Act by any registration statement pursuant to rights granted in this
Agreement of Registrable Securities held by Shareholders, Company will hold
harmless Shareholders and each underwriter of such securities and each other
person, if any, who controls any Shareholder or such underwriter within the
meaning of the Securities Act,
-14-
against any losses, claims, damages, or liabilities (including legal fees and
costs of court), joint or several, to which Shareholders or such underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, or liabilities (or any actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact (i) contained, on its effective date, in
any registration statement under which such securities were registered under the
Securities Act or any amendment or supplement to any of the foregoing, or which
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) contained in any preliminary prospectus, if used
prior to the effective date of such registration statement, or in the final
prospectus (as amended or supplemented if Company shall have filed with the SEC
any amendment or supplement to the final prospectus) if used within the period
which Company is required to keep the registration to which such registration
statement or prospectus relates current under Section 2.5, or which arise out of
or are based upon the omission or alleged omission (if so used) to state a
material fact required to be stated in such prospectus or necessary to make the
statements in such prospectus not misleading; and will reimburse Shareholders
and each such underwriter and each such controlling person for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, or liability; provided, however, that
Company shall not be liable to any Shareholder or its underwriters or
controlling persons in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or such amendment or supplement, in reliance upon and in
conformity with information furnished to Company through a written instrument
duly executed by Shareholders or such underwriter specifically for use in the
preparation thereof.
3.2. Indemnification by Shareholders. It shall be a condition precedent to
the obligation of Company to include in any registration statement any
Registrable Securities of Shareholders that Company shall have received from
Shareholders an undertaking, reasonably satisfactory to Company and its counsel,
to indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 3.1) Company, each director of Company, each officer of Company
who shall sign the registration statement, and any person who controls Company
within the meaning of the Securities Act, (i) with respect to any statement or
omission from such registration statement, or any amendment or supplement to it,
if such statement or omission was made in reliance upon and in conformity with
information furnished to Company through a written instrument duly executed by
Shareholders specifically for use in the preparation of such registration
statement or amendment or supplement, and (ii) with respect to compliance by
Shareholders with applicable laws in effecting the sale or other disposition of
the securities covered by such registration statement.
-15-
3.3 Indemnification Procedures. Promptly after receipt by an indemnified
party of notice of the commencement of any action involving a claim referred to
in the preceding Sections of this Article III, the indemnified party will, if a
resulting claim is to be made or may be made against and indemnifying party,
give written notice to the indemnifying party of the commencement of the action.
If any such action is brought against an indemnified party, the indemnifying
party will be entitled to participate in and to assume the defense of the action
with counsel reasonably satisfactory to the indemnified party, and after notice
from the indemnifying party to such indemnified party of its election to assume
defense of the action, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses incurred by the latter in
connection with the action's defense. An indemnified party shall have the right
to employ separate counsel in any action or proceeding and participate in the
defense thereof, but the fees and expenses of such counsel shall be at such
indemnified party's expense unless (a) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, which
authorization shall not be unreasonably withheld, (ii) the indemnifying party
has not assumed the defense and employed counsel reasonably satisfactory to the
indemnified party within 30 days after notice of any such action or proceeding,
or (iii) the named parties to any such action or proceeding (including any
impleaded parties) include the indemnified party and the indemnifying party and
the indemnified party shall have been advised by such counsel that there may be
one or more legal defenses available to the indemnified party that are different
from or additional to those available to the indemnifying party (in which case
the indemnifying party shall not have the right to assume the defense of such
action or proceeding on behalf of the indemnified party), it being understood,
however, that the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to all local counsel which is necessary, in the good
faith opinion of both counsel for the indemnifying party and counsel for the
indemnified party in order to adequately represent the indemnified parties) for
the indemnified party and that all such fees and expenses shall be reimbursed as
they are incurred upon written request and presentation of invoices. Whether or
not a defense is assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent. No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term the giving by the
claimant or plaintiff, to the indemnified party, of a release from all liability
in respect of such claim or litigation.
3.4. Contribution. If the indemnification required by this Article III from
the indemnifying party is unavailable to or insufficient to hold harmless an
indemnified party in respect of any indemnifiable losses, claims, damages,
liabilities, or expenses, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified
-16-
party as a result of such losses, claims, damages, liabilities, or expenses in
such proportion as is appropriate to reflect (i) the relative benefit of the
indemnifying and indemnified parties and (ii) if the allocation in clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
the relative benefit referred to in clause (i) and also the relative fault of
the indemnified and indemnifying parties, in connection with the actions which
resulted in such losses, claims, damages, liabilities, or expenses, as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party and the indemnified party shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact, has been made by, or relates to
information supplied by, such indemnifying party or parties, and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damage, liabilities, and expenses referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding. Company and
Shareholders agree that it would not be just and equitable if contribution
pursuant to this Section 3.4 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the prior provisions of this Section 3.4.
Notwithstanding the provisions of this Section 3.4, no indemnifying party
shall be required to contribute any amount in excess of the amount by which the
total price at which the securities were offered to the public by the
indemnifying party exceeds the amount of any damages which the indemnifying
party has otherwise been required to pay by reason of an untrue statement or
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such a fraudulent misrepresentation.
ARTICLE IV
OTHER AGREEMENTS
4.1. Other Registration Rights. Company agrees that it will not grant to
any party registration rights which would allow such party to limit
Shareholders' priority for the sale or distribution of Registrable Securities
upon the exercise of a demand registration right pursuant to Section 2.2 or a
registration pursuant to Section 2.3.
4.2. Expenses. All expenses incurred by Company in connection with any
registration statement covering Registrable Securities offered by Shareholders,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the National Association of Securities Dealers,
Inc.), printing expenses, fees and disbursements of counsel (except for the fees
and disbursements of
-17-
counsel for Shareholders) and of the independent certified public accountants
(except, in the case of any special audits, if required in connection with any
such registration, Shareholders' proportionate share of their expense as
provided in Section 2.5), and the expense of qualifying such shares under state
blue sky laws, shall be borne by Company, including such expenses of any
registration delayed by the Company under the fourth paragraph of Section 2.2;
provided, however, that Company shall not be required to pay for any expenses of
any registration proceeding begun pursuant to Section 2.2 or an underwritten
offering under the Shelf Registration Statement if the registration request is
subsequently withdrawn at the request of the Apollo/Blackstone Shareholders (in
which case the Apollo/Blackstone Shareholders shall bear such expenses, each
such Shareholder to bear its pro rata share of the expense based on the number
of Registrable Securities such Apollo/Blackstone Shareholder intended to include
in such registration compared to the total number of Registrable Securities all
of such Apollo/Blackstone Shareholders intended to include in such
registration), unless the Apollo/Blackstone Shareholders agree to forfeit their
right to one demand registration under Section 2.2; provided further, however,
that if at the time of such withdrawal, the Apollo/Blackstone Shareholders have
learned of a material adverse change in the condition, business, or prospects of
the Company from that known at the time of its request, then the
Apollo/Blackstone Shareholders shall not be required to pay any of such expenses
and shall retain their rights pursuant to Section 2.2. Company's obligations
under this Section 4.2 shall apply to each registration under the Securities Act
or state blue sky legislation pursuant to Section 2.2 or pursuant to Section
2.3. However, all underwriting expenses incurred by Shareholders, including
underwriter's discounts and commissions and legal, accounting and similar
expenses, shall be borne by Shareholders.
4.3. Dispositions During Registration. Each Shareholder agrees that,
without the consent of the managing underwriter(s) in an underwritten offering
in respect of Common Stock or other Subject Securities, it will not effect any
sale or distribution of Common Stock or other Subject Securities (other than
Registrable Securities included in such offering), during the ten (10) day
period prior to, and during the ninety (90) day period beginning on, the
effective date of the registration statement filed by the Company in respect of
such underwritten offering, or any shorter period as may apply to the Company
and its affiliates.
4.4. Transfer of Rights. All rights of Shareholders under this Agreement
shall be transferable by Shareholders to a Related Transferee (as defined in the
Shareholders Agreement) who acquires Registrable Securities in compliance with
Section 4.1(f) of the Shareholders Agreement and who executes an instrument in
form and substance satisfactory to the Company in which it agrees to be bound by
the terms of this Agreement as if an original signatory hereto, in which case
such Related Transferee shall thereafter be a "Shareholder" for all purposes of
this Agreement. The incidental registration rights or benefits of this Agreement
and the demand registration rights,
-18-
including indemnification by Company, shall be transferable by Shareholders only
in a transaction permitted under Section 4.1(c) or 4.1(d) of the Shareholders
Agreement to a transferee that is not an Affiliate of the Company who receives
at least an aggregate of 1,000,000 shares of Common Stock, in the case of
incidental registration rights, or 2,500,000 shares of Common Stock or such
lesser number of shares as would yield gross proceeds of not less than $50
million (as calculated in accordance with the first paragraph of Section 2.2)
for each right to demand registration, in the case of demand registration
rights. In the case of any assignment, the party or parties who have the rights
and benefits of Shareholders under this Agreement shall become parties to and be
subject to this Agreement, and shall not, as a group, have the right to request
any greater number of registrations than Shareholders would have had if no
assignment had occurred. Upon any transfer of the registration rights or
benefits of this Agreement, Shareholders shall give Company written notice prior
to or promptly following such transfer stating the name and address of the
transferee and identifying the securities with respect to which such rights are
being assigned. Such notice shall include or be accompanied by a written
undertaking by the transferee to comply with the obligations imposed hereunder.
In the event any registration rights are transferred in accordance with the
terms of this Agreement, any actions required to be taken by Shareholders will
be taken with the approval of the holders of such registration rights who hold a
majority of the Registrable Securities, whose actions shall bind all such
holders of such registration rights provided that, any actions required to be
taken by the Apollo/Blackstone Shareholders will be taken with the approval of
the holders of such registration rights who hold a majority of the Registrable
Securities originally held by the Apollo/Blackstone Shareholders or in such
other manner as the Apollo/Blackstone Shareholders shall agree, whose actions
shall bind all holders (including all non-Apollo/Blackstone Shareholders) of
such registration rights.
4.5. Best Registration Rights. If the Company grants to any Person with
respect to any security issued by the Company or any of its Affiliates
registration rights that provide for terms that are in any manner more favorable
to the holder of such registration rights than the terms granted to the
Shareholders other than the number of demand registrations or the minimum amount
of shares required to exercise demand registration rights (or if the Company
amends or waives any provision of any agreement providing registration rights of
others or takes any other action whatsoever to provide for terms that are more
favorable to other holders than the terms provided to the Shareholders other
than the number of demand registrations or the minimum amount of shares required
to exercise demand registration rights), then this Agreement shall immediately
be deemed amended to provide the Shareholders with any (or all) of such more
favorable terms as Shareholders shall elect to include herein. The Company shall
promptly give notice to the Shareholders of the granting of any such
registration rights to another Person.
-19-
ARTICLE V
MISCELLANEOUS
5.1. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, fax or air courier guaranteeing delivery:
(a) If to the Company, to:
Allied Waste Industries, Inc.
00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxx, Esq.
Fax: (000) 000-0000
with copies to:
Xxxxxxxxx Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. XxXxxxxxx, Esq.
Fax: (000) 000-0000
and to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
or to such other person or address as the Company shall furnish to Shareholders
in writing;
(b) If to Shareholders, to:
Apollo Management, L.P.
1301 Avenue of the Americas
` Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
and:
-20-
The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
-21-
and:
Greenwich Street Investments II, L.L.C.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
and:
DLJ Merchant Banking II, Inc.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
or to such other person or address as Shareholders shall furnish to the Company
in writing.
All such notices, requests, demands and other communications shall be
deemed to have been duly given: at the time of delivery by hand, if personally
delivered; five (5) Business Days after being deposited in the mail, postage
prepaid, if mailed domestically in the United States (and seven (7) Business
Days if mailed internationally); when answered back, if telexed; when receipt
acknowledged, if telecopied; and on the Business Day for which delivery is
guaranteed, if timely delivered to an air courier guaranteeing such delivery.
-22-
5.2. Section Headings. The article and section headings in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement. References in this Agreement to a designated
"Article" or "Section" refer to an Article or Section of this Agreement unless
otherwise specifically indicated.
5.3. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the law of Delaware, without regard to its
conflicts of laws principles.
5.4. Consent to Jurisdiction and Service of Process. Any legal action or
proceeding with respect to this Agreement or any matters arising out of or in
connection with this Agreement (other than the Shareholders Agreement, which
shall be governed solely by the analogous provisions thereof), and any action
for enforcement of any judgment in respect thereof shall be brought exclusively
in the state of federal courts located in the State of Delaware, and, by
execution and delivery of this Agreement, the Company and Shareholders each
irrevocably consent to service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, or by recognized international
express carrier or delivery service, to the Company or Shareholders at their
respective addresses referred to in this Agreement. The Company and the
Shareholders each hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement (other than the
Shareholders Agreement, which shall be governed solely by the analogous
provisions thereof) brought in the courts referred to above and hereby further
irrevocably waives and agrees, to the extent permitted by applicable law, not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing in this
Agreement shall affect the right of any party hereto to serve process in any
other manner permitted by law.
5.5. Amendments. This Agreement may be amended only by an instrument in
writing executed by all of its parties.
5.6. Entire Agreement. This Agreement and the Shareholders Agreement
constitute the entire agreement and understanding of the parties with respect to
the transactions contemplated hereby and thereby. The registration rights
granted under this Agreement supersede any registration, qualification or
similar rights with respect to any of the Shares granted under any other
agreement, and any of such preexisting registration rights are hereby
terminated. This Agreement may be amended only by a written instrument duly
executed by the parties or their respective successors or assigns; provided,
however, that any amendment or waiver by the Company shall be made only with the
prior approval of a majority of the entire Board of Directors of the Company
other than Shareholder Designees (as defined in the Shareholders Agreement).
-23-
5.7. Severability. The invalidity or unenforceability of any specific
provision of this Agreement shall not invalidate or render unenforceable any of
its other provisions. Any provision of this Agreement held invalid or
unenforceable shall be deemed reformed, if practicable, to the extent necessary
to render it valid and enforceable and to the extent permitted by law and
consistent with the intent of the parties to this Agreement.
5.8. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together shall
constitute the same instrument.
5.9. Shareholder Action. The Company shall be entitled to rely upon any
written notice, designation, or instruction signed by Apollo Capital Management
IV, L.P. or Apollo Capital Management II, Inc, as the case may be, and BCP (the
"Representatives") as a notice, designation or instruction of all Shareholders
and the Company shall not be liable to any Shareholder if the Company acts in
accordance with and relies upon such writing; provided, however, that any such
notice, designation or instruction shall not (in the sole good faith
determination of the Company) have a disproportionate effect upon any of the
Shareholders. Notwithstanding the foregoing, however, the Company shall not be
entitled to rely upon any notice, designation or instruction signed by the
Representatives as a notice, designation or instruction of the DLJ Shareholder,
the Greenwich Street Stockholder if such notice, designation or instruction
relates to Section 2.1, 4.4 or 5.5 of this Agreement (the "Specific Rights"). In
that regard, each of the Shareholders acknowledges that the Representatives have
full power and authority to act on their behalf provided, however, that none of
the DLJ Shareholders and the Greenwich Street Stockholders acknowledge the power
or authority of the Representatives to act on their behalf with respect to the
Specific Rights.
-24-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ALLIED WASTE INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
APOLLO INVESTMENT FUND IV, L.P.
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors IV, L.P.
its General Partner
By: Apollo Capital Management IV, Inc.
its General Partner
By:
-----------------------------
Name:
Title:
-25-
APOLLO/AW LLC
By: Apollo Management IV, L.P.
its Manager
By: AIF IV Management, Inc.
its General Partner
By:
-----------------------------
Name:
Title:
APOLLO INVESTMENT FUND III, L.P.
APOLLO OVERSEAS PARTNERS III, L.P.
APOLLO (UK) PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
its General Partner
By: Apollo Capital Management II, Inc.
its General Partner
By:
-----------------------------
Name:
Title:
-26-
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS III X.X.
XXXXXXXXXX FAMILY INVESTMENT PARTNERSHIP III L.P.
BY: Blackstone Management Associates III L.L.C.
its General Partner
By:
-----------------------------
Name:
Title:
GREENWICH STREET CAPITAL PARTNERS II, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By:
-----------------------------
Name:
Title:
GSCP OFFSHORE FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By:
-----------------------------
Name:
Title:
-00-
XXXXXXXXX XXXX, X.X.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By:
-----------------------------
Name:
Title:
GREENWICH STREET EMPLOYEES FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By:
-----------------------------
Name:
Title:
TRV EXECUTIVE FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By:
-----------------------------
Name:
Title:
-28-
DLJMB FUNDING II, INC.
By:
-----------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:
-----------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:
-----------------------------
Name:
Title:
-29-
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By:
-----------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By:
-----------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:
-----------------------------
Name:
Title:
-30-
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:
-----------------------------
Name:
Title:
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By:
-----------------------------
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:
-----------------------------
Name:
Title:
-31-
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By:
-----------------------------
Name:
Title:
-32-
DLJ ESC II L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By:
-----------------------------
Name:
Title:
---------------------------------------
Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxx Xxxxxxx
---------------------------------------
Xxxxxxx Xxxxx
---------------------------------------
Xxxxx Xxxxxxxx
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BLACKSTONE CAPITAL PARTNERS II
MERCHANT BANKING FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS II X.X.
XXXXXXXXXX FAMILY INVESTMENT PARTNERSHIP II L.P.
By: Blackstone Management Associates II L.L.C.
its General Partner
By:
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Name:
Title:
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