VOTING AGREEMENT
Exhibit 99.2
EXECUTION VERSION
VOTING
AGREEMENT, dated as of November 11, 2009 (the
“Agreement”), by and among
IESI-BFC LTD., a corporation organized under the laws xx Xxxxxxx, Xxxxxx (“Parent”), and
each of those shareholders of WASTE SERVICES, INC., a Delaware corporation (the “Company”),
listed as a “Shareholder” on the signature pages hereof (each, a “Shareholder” and,
collectively, the “Shareholders”).
RECITALS
WHEREAS, as of the date hereof, each Shareholder is the record and beneficial owner of
the number of shares (the “Shares”) of common stock, par value $.01 per share, of the
Company (the “Common Stock”) set forth opposite such Shareholder’s name on Schedule I
attached hereto (such Shares, together with any other shares of capital stock acquired by
such Shareholder after the date hereof and during the term of this Agreement (including
through the exercise of any stock options, warrants, convertible preferred stock, or any
other convertible or exchangeable securities or similar instruments of the Company), being
collectively referred to herein as such Shareholder’s “Subject Shares”);
WHEREAS, contemporaneously with the execution of this Agreement, Parent, IESI-BFC
Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger
Sub”), and the Company, have entered into an Agreement and Plan of Merger, dated as of
November 11, 2009 (as it may be amended or supplemented from time to time, the “Merger
Agreement”), pursuant to which, upon the terms and subject to the conditions thereof,
Merger Sub will be merged with and into the Company, and the Company will be the surviving
entity (the “Merger”) and a wholly-owned subsidiary of Parent;
WHEREAS, Parent and Merger Sub, as a condition to its willingness to enter into the
Merger Agreement, have required assurances from the Shareholders regarding such
Shareholder’s support for the transactions contemplated by the Merger Agreement and
agreement as to the matters set forth in this Agreement, and the Shareholders have agreed
to provide such assurances by entering into this Agreement; and
WHEREAS, the Company has approved the entry by Parent, Merger Sub and the
Shareholders into this Agreement for purposes of Section 203 of the Delaware Law.
NOW, THEREFORE, in consideration of the foregoing and the respective representatives,
warranties, covenants and agreements set forth in this Agreement and in the Merger
Agreement, and intending to be legally bound hereby, the
parties hereto agree as follows:
Section 1. Defined Terms. Capitalized terms used but not defined herein have the
meanings set forth in the Merger Agreement.
Section 2. Voting of Shares.
(a) Voting. For so long as this Agreement is in effect, each Shareholder hereby
agrees to vote (or cause to be voted) all of such Shareholder’s Subject Shares, at every
annual, special or other meeting of the shareholders of the Company, and at any adjournment
or adjournments thereof, or pursuant to any consent in lieu of a meeting or otherwise:
(i) in favor of the Merger and the Merger Agreement and adoption of the Plan of Merger
in the form that is in economic and all other material respects as attached hereto as
Exhibit A (the “Plan of Merger”), and the approval of the other transactions contemplated
thereby, and any actions required in furtherance thereof; and
(ii) against (A) any extraordinary corporate transaction, such as a merger, rights
offering, reorganization, recapitalization or liquidation involving the Company or any of
its subsidiaries (other than the Merger), (B) a sale or transfer of a material amount of
assets or capital stock of the Company or any of its subsidiaries or (C) any action that is
intended, or would reasonably be expected, to prevent or materially delay or otherwise
interfere with the Merger and the other transactions contemplated by the Merger Agreement.
(b) Grant of Irrevocable Proxy to Parent. Each Shareholder hereby irrevocably grants
to, and appoints, Parent and any individual who shall hereafter be designated by Parent,
and each of them, such Shareholder’s proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Shareholder, to vote, or cause
to be voted, such Shareholder’s Subject Shares, or grant a consent or approval in respect
of such Shareholder’s Subject Shares, at every annual, special or other meeting of the
shareholders of the Company, and at any adjournment or adjournments thereof, or pursuant to
any consent in lieu of a meeting or otherwise, with respect to the matters and in the
manner specified in Section 2(a) hereof; provided that the foregoing proxy shall terminate
immediately upon termination of this Agreement in accordance with its terms. Each
Shareholder understands and acknowledges that Parent is entering into the Merger Agreement
in reliance upon the Shareholders’ execution and delivery of this Agreement. Each
Shareholder hereby affirms that the irrevocable proxy set forth in this Section 2(b) is
given in connection with the execution of the Merger Agreement, and that such irrevocable
proxy is given to secure the performance of the duties of such Shareholder under this
Agreement. Subject to this Section 2(b), this grant of proxy is coupled with an interest
and may under no circumstances be revoked. Each Shareholder hereby ratifies and confirms
all actions that any proxy appointed or designated pursuant to this Section 2(b) may
lawfully do or cause to be done in accordance herewith. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of Section
212 of the Delaware General Corporation Law provided that the such proxy shall terminate
immediately upon termination of this Agreement in accordance with its terms. Upon the
execution hereof, all prior proxies given by each Shareholder with respect to the Shares
are hereby revoked and, for so long as this Agreement is in effect, no subsequent proxies
will be given. If for any reason the proxy granted herein is not irrevocable, each
Shareholder agrees to vote such Shareholder’s Subject Share in accordance with Section 2(a)
hereof.
Section 3. Waiver of Appraisal and Dissenters’ Rights and Actions. Each Shareholder
hereby (i) waives and agrees not to exercise any rights of appraisal or rights to dissent
from the Merger that such Shareholder may have and (ii) agrees not to commence or
participate in, and to take all actions necessary to opt out of any class in any class
action with
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respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Company or any of
their respective successors relating to the negotiation, execution or delivery of this Agreement or
the Merger Agreement or the consummation of the Merger, including any claim (x) challenging the
validity of, seeking to enjoin the operation of, any provision of this Agreement or (y) alleging a
breach of any fiduciary duty of the Board of Directors of the Company in connection with the Merger
Agreement or the transactions contemplated thereby.
Section 4. Fiduciary Responsibilities. No Shareholder executing this Agreement who is
or becomes during the term hereof a director or officer of the Company makes (or shall be
deemed to have made) any agreement or understanding herein in his or her capacity as such
director or officer. Without limiting the generality of the foregoing, each Shareholder
signs solely in his, her or its capacity as the record and/or beneficial owner, as
applicable, of such Shareholder’s Subject Shares and nothing herein shall limit or affect
any actions taken by such Shareholder (or a designee of such Shareholder) in his or her
capacity as an officer or director of the Company in exercising his or her or the Company’s
or the Company Board’s rights in connection with the Merger Agreement or otherwise and such
actions shall not be deemed to be a breach of this Agreement.
Section 5. Representations and Warranties of Shareholder. Each Shareholder, severally
and not jointly, represents and warrants to Parent as follows:
(a) Binding Agreement. Such Shareholder has the capacity to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. Such Shareholder has duly
and validly executed and delivered this Agreement and this Agreement constitutes a legal,
valid and binding obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting
creditors’ rights generally and by general
equitable principles (regardless of whether enforceability is considered in a proceeding in
equity or at law).
(b) No Conflict. Neither the execution and delivery of this Agreement by such
Shareholder, nor the performance by such Shareholder of its obligations hereunder will, (i)
require any consent, approval, authorization or permit of, registration, declaration or
filing (except for such filings as may be required under the federal securities laws or as
would not reasonably be expected to prevent, materially delay or otherwise materially
impair such Shareholder’s ability to perform its obligations hereunder) with, or
notification to, any governmental entity, (ii) if such Shareholder is an entity, result in
a violation of, or default under, or conflict with any provision of its certificate of
incorporation, bylaws, partnership agreement, limited liability company agreement or
similar organizational documents, (iii) result in a violation or 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, trust, agreement,
instrument, commitment, arrangement or understanding applicable to such Shareholder or such
Shareholder’s Subject Shares, or result in the creation of a security interest, lien,
charge, encumbrance, equity or claim with respect to any of such Shareholder’s Subject
Shares, except, in the case of clause (iii), as would not reasonably be expected to
prevent, materially delay or otherwise materially impair such Shareholder’s ability to
perform its obligations hereunder, (iv) require any consent, authorization or approval of
any Person other
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than a governmental entity, except, in the case of clause (iv), as would not reasonably be expected
to prevent, materially delay or otherwise materially impair such Shareholder’s ability to perform
its obligations hereunder or (v) violate or conflict with any order, writ, injunction, decree,
rule, regulation or law applicable to such Shareholder or such Shareholder’s Subject Shares. If
such Shareholder is a married individual and such Shareholder’s Subject Shares constitute community
property or otherwise need spousal approval in order for this Agreement to be a legal, valid and
binding obligation of such Shareholder, this Agreement has been duly authorized, executed and
delivered by, and constitutes a legal, valid and binding obligation of, such Shareholder’s spouse,
enforceable against such spouse in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting
creditors’ rights generally and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(c) Ownership of Shares. Such Shareholder is the record and beneficial owner of, and
has good and valid title to, the Shares set forth opposite such Shareholder’s name on
Schedule I attached hereto free and clear of any security interests, liens, charges,
encumbrances, equities, claims, options or limitations of
whatever nature and free of any other limitation or restriction (including any
restriction on the right to vote, sell or otherwise dispose of such Shares). There are no
outstanding options or other rights to acquire from such Shareholder, or obligations of
such Shareholder to sell or to dispose of, any of such Shareholder’s Shares, and none of
such Shareholder’s Shares are subject to vesting. Such Shareholder holds exclusive power to
vote the Shares set forth opposite such Shareholder’s name on Schedule I attached hereto.
As of the date of this Agreement, the Shares set forth opposite such Shareholder’s name on
such Schedule I attached hereto represent all of the shares of capital stock of the Company
owned (beneficially or of record) by such Shareholder, except shares of Company Common
Stock which may be acquired by such Shareholder upon exercise of options, if any, held by
such Shareholder as set forth in such Schedule.
(d) Broker Fees. No broker, investment banker, financial advisor or other person is
entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission
based upon arrangements made by or on behalf of such Shareholder in connection with its
entering into this Agreement that would be payable by the Company or the Parent.
Section 6. Representations and Warranties of Parent. Parent represents and warrants
to the Shareholders as follows:
(a) Binding Agreement. Parent is a corporation duly incorporated, validly existing
and in good standing under the laws of Ontario, Canada and has full corporate power and
authority to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Parent and the
consummation of the transactions contemplated hereby have been duly and validly authorized
by the Board of Directors of Parent, and no other corporate proceedings on the part of
Parent are necessary to authorize the execution, delivery and performance of this Agreement
by Parent and the consummation of the transactions contemplated hereby. Parent has duly and
validly executed this Agreement and this Agreement constitutes a legal, valid and binding
obligation of Parent, enforceable against Parent in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting
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creditors’ rights generally and by general equitable principles (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(b) No Conflict. Neither the execution and delivery by Parent of this Agreement, nor
the performance by Parent of its obligations hereunder will, (i) require any consent,
approval, authorization or permit of, registration, declaration or filing (except for such
filings as may be required under the federal securities laws or as would not reasonably be
expected to prevent, materially delay or otherwise materially impair Parent’s ability to
perform its obligations hereunder)
with, or notification to, any governmental entity, (ii) result in a violation of, or
default under, or conflict with any provision of its charter and bylaws, (iii) result in a
violation or 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, trust, agreement, instrument, commitment, arrangement or understanding
applicable to Parent, except, in the case of clause (iii), as would not reasonably be
expected to prevent, materially delay or otherwise materially impair Parent’s ability to
perform its obligations hereunder, (iv) require any consent, authorization or approval of
any Person other than a governmental entity, except, in the case of clause (iv), as would
not prevent, materially delay or otherwise materially impair such Parent’s ability to
perform its obligations hereunder or (v) violate or conflict with any order, writ,
injunction, decree, rule, regulation or law applicable to Parent.
Section 7. Transfer and Other Restrictions. For so long as this Agreement is in
effect:
(a) Certain Prohibited Transfers and Purchases. Prior to the Effective Date, each
Shareholder agrees not to:
(i) sell, transfer, exchange, pledge, encumber, assign or otherwise dispose
(collectively, the “Transfer”) of, or enter into any contract, option or other arrangement
or understanding with respect to the Transfer of, such Shareholder’s Subject Shares or any
interest contained therein (other than, if the transactions contemplated by the Merger
Agreement are consummated, by operation of law in the Merger);
(ii) grant any proxies or powers of attorney or enter into a voting agreement or other
arrangement with respect to such Shareholder’s Subject Shares, other than this Agreement;
(iii) enter into, or deposit such Shareholder’s Subject Shares into, a voting trust or
take any other action which would, or could reasonably be expected to, result in a
diminution of the voting power represented by any of such Shareholder’s Subject Shares;
(iv) purchase, acquire or accept any shares of capital stock or other equity
securities of the Company or other securities exercisable for or convertible into shares of
capital stock or equity securities of the Company; or
(v) commit or agree to take any of the foregoing actions.
(b) Consideration. Each Shareholder hereby acknowledges and agrees that the only
consideration payable in respect of such Shareholder’s Subject Shares shall be as set forth
in the Plan of Merger.
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(c) Efforts. For so long as this Agreement is in effect, each Shareholder
agrees not to take any action which would make any representation or warranty of such
Shareholder herein untrue or incorrect in any material respect or knowingly take any action
that would have the effect of preventing or disabling it from performing its obligations
under this Agreement. Subject to Section 4 hereof, for so long as this Agreement is in
effect, each Shareholder shall use such Shareholder’s reasonable efforts to take, or cause
to be taken, all actions (including executing and delivering such additional documents) and
do, or cause to be done, and to assist and cooperate with the other parties hereto in
doing, all things, in each case, as may reasonably be deemed by Parent to be necessary or
desirable to carry out the provisions of this Agreement.
(d) Additional Shares. In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital stock of
the Company on, of or affecting any Shareholder’s Subject Shares or (ii) any Shareholder
becomes the beneficial owner of any additional shares of capital stock of the Company or
other securities entitling the holder thereof to vote or give consent with respect to the
matters set forth in Section 2(a) hereof, then the terms of this Agreement shall apply to
the shares of capital stock or other securities of the Company held by such Shareholder
immediately following the effectiveness of the events described in clause (i) or such
Shareholder becoming the beneficial owner thereof, as described in clause (ii), as though
they were such Shareholder’s Subject Shares hereunder. Each Shareholder hereby agrees,
while this Agreement is in effect, to notify Parent of the number of any new shares of
capital stock of the Company acquired by such Shareholder, if any, after the date hereof.
Section 8. No Solicitation. For so long as this Agreement is in effect, no
Shareholder shall, nor shall such Shareholder permit any investment banker, attorney or
other advisor or representative of such Shareholder to, directly or indirectly through
another Person, solicit, initiate or encourage, or take any other action to facilitate, any
inquiries or the making of any proposal that constitutes, or may reasonably be expected to
lead to, any Acquisition Proposal; provided that any action which is permitted by the
Merger Agreement to be taken by a Shareholder or one of its partners or other personnel in
his or her capacity as a director or officer or which is permitted by Section 4 hereof
shall not be prohibited by the foregoing.
Section 9. No Communications. Unless required by applicable law, each Shareholder
shall not, and shall cause its representatives not to, make any press release, public
announcement or other public communication that criticizes or disparages this Agreement and
the Merger Agreement and the transactions contemplated hereby and thereby, without the
prior written consent of Parent. Each Shareholder hereby (i) consents to and authorizes the
publication and disclosure by Parent of such Shareholder’s identity and holding of Subject
Shares, and the nature of such Shareholder’s commitments, arrangements and understandings
under this Agreement, in any disclosure document in connection with the Merger or any other
transactions contemplated by the Merger Agreement and (ii) agrees as promptly as
practicable to notify Parent of any required
corrections with respect to any written information supplied by it specifically for
use in any such disclosure document.
Section 10. Specific Enforcement. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not performed in
accordance with the terms hereof or were otherwise breached and that the non-breaching
party
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shall be entitled to specific performance of the terms hereof in addition to any other remedy which
may be available at law or in equity. It is accordingly agreed that the non-breaching party will be
entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court located in Ontario, Canada,
the foregoing being in addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) consents to submit itself to the exclusive jurisdiction
of any court located in Bermuda, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court, and (iii) agrees
that it will not bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than a court located in Bermuda. EACH OF THE
PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
Section 11. Termination. This Agreement shall terminate and cease to have any force
or effect on the earlier of (i) the termination of the Merger Agreement in accordance with
its terms, (ii) the written agreement of the parties hereto to terminate this Agreement, or
(iii) at the option of any Shareholder, the execution or granting of any amendment,
modification, change or waiver with respect to the Merger Agreement or the Plan of Merger
subsequent to the date of this Agreement that results in a decrease in the price to be paid
with respect to such Shareholder’s Subject Shares as set forth in the Plan of Merger or
that otherwise constitutes a material modification to such Plan of Merger; provided,
however, that (x) Sections 12 (Notices), 14 (Entire Agreement), 15 (Amendment), 16
(Successors and Assigns), 17 (Execution in Counterparts; Effectiveness), 18 (Governing
Law), 19 (Severability), 20 (Interpretation) and 21 (Shareholder Obligations Several and
Not Joint) shall survive any termination of this Agreement and (y) termination of this
Agreement shall not relieve any party from liability for any breach of its obligations
hereunder committed prior to such termination.
Section 12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally, mailed by
certified mail (return receipt requested) or sent by overnight
carrier or by telecopier (upon confirmation of receipt) to the parties at the
following addresses or at such other as shall be specified by the parties by like notice:
(i) if to Parent or the Company, to the appropriate address set forth in Section 7.6 of the
Merger Agreement; and (ii) if to a Shareholder, to the appropriate address set forth on
Schedule I hereto.
Section 13. Certain Events. Each Shareholder agrees that this Agreement and the
obligations hereunder shall attach to such Shareholder’s Subject Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shareholder’s Subject Shares shall pass, whether by operation of law or otherwise,
including such Shareholder’s heirs, guardians, administrators or successors.
Section 14. Entire Agreement. This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement and supersedes all other prior
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agreements and understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof.
Section 15. Amendment. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement executed by
Parent, the Shareholders and (with respect to any provisions setting forth rights or
obligations of the Company only) the Company; provided that, with respect to the
obligations of any individual Shareholder under this Agreement, this Agreement may be
amended with the approval of such Shareholder and Parent notwithstanding the failure to
obtain the approval of other Shareholders.
Section 16. Successors and Assigns. This Agreement shall not be assigned by operation
of law or otherwise without the prior written consent of the other parties hereto. This
Agreement will be binding upon, inure to the benefit of and be enforceable by each party
and such party’s heirs, beneficiaries, executors, successors, representatives and permitted
assigns.
Section 17. Execution in Counterparts; Effectiveness. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate counterparts, and
delivered by means of facsimile transmission or otherwise, each of which when so executed
and delivered shall be deemed to be an original and all of which when taken together shall
constitute one and the same agreement. This Agreement shall become effective when
counterparts hereof executed by, or on behalf of, each of the parties hereto shall have
been received by Parent.
Section 18. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF BERMUDA.
Section 19. Severability. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable under any applicable law, then such contravention or
invalidity shall not invalidate the entire Agreement. Such provision shall be deemed to be
modified to the extent necessary to render it legal, valid and enforceable, and if no such
modification shall render it legal, valid and enforceable, then this Agreement shall be
construed as if not containing the provision held to be invalid, and the rights and
obligations of the parties shall be construed and enforced accordingly.
Section 20. Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. This Agreement has been freely and fairly negotiated among the parties. If
an ambiguity or question of intent or interpretation arises, this Agreement will be
construed as if drafted jointly by the parties and no presumption or burden of proof will
arise favoring or disfavoring any party because of the authorship of any provision of this
Agreement. Any reference to any applicable law will be deemed to refer to such law as in
effect on the date hereof and all rules and regulations promulgated thereunder, unless the
context requires otherwise. The words “include,” “includes,” and “including” will be deemed
to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders
will be construed to include any other gender, and words in the singular form will be
construed to include the plural and vice versa, unless the context otherwise requires. The
words “this Agreement,” “herein,” “hereof,”
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“hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to
any particular subdivision unless expressly so limited.
Section 21. Shareholder Obligations Several and Not Joint. The obligations of each
Shareholder hereunder shall be several and not joint and no Shareholder shall be liable for
any breach of the terms of this Agreement by any other Shareholder.
* * * *
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IN WITNESS WHEREOF, Parent and the Shareholders have caused this Agreement to be
signed, individually or by its respective officer thereunto duly authorized, as of the date
first written above.
| PARENT: IESI-BFC LTD. |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Vice President & General Counsel | |||
| SHAREHOLDERS: WESTBURY (BERMUDA) LTD. By: WESTBURY TRUST |
||||
| By: | /s/ Xxxxx X. Wait | |||
| Name: | Xxxxx X. Wait | |||
| Title: | Trustee | |||
[Signature page to Voting Agreement]
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SCHEDULE I
| No. of Shares of Common | ||||
| Name and Contact Information for Shareholder | Beneficially Owned | |||
WESTBURY
(BERMUDA) LTD. Xxxxxxxx Xxxx 00 Xxxxxxxx Xx. P.O. Box HM 1065 Hamilton, Bermuda HMEX |
12,607,365 | |||
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EXHIBIT A
AGREEMENT AND PLAN OF MERGER
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