EXHIBIT 10.4
EXECUTION COPY
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Dated June 30, 1999
by and between
IESI CORPORATION,
and
THE STOCKHOLDERS
TABLE OF CONTENTS
PAGE
1. DEFINITIONS.................................................1
(a) "Act"................................................1
(c) "Common Stock".......................................2
(d) "Commission".........................................2
(e) "Exchange Act".......................................2
(f) "Initiating Holder"..................................2
(g) "Preferred Stock"....................................2
(h) "Registrable Common Stock"...........................2
(i) "Registration Right Effective Date"..................2
(j) "Register"...........................................2
(k) "Registration Expenses"..............................3
(l) "Selling Expenses"...................................3
(m) "Selling Stockholder"................................3
(n) "Series A Preferred Stock"...........................3
(o) "Series B Preferred Stock"...........................3
2. REQUESTED REGISTRATIONS.....................................3
3. PIGGYBACK REGISTRATION RIGHTS...............................5
(a) Piggyback Registration Rights........................5
(b) Priority on Registrations............................5
(c) Other Registrations..................................6
4. RESTRICTIONS ON PUBLIC SALE BY PURCHASER....................6
5. REGISTRATION PROCEDURES.....................................6
6. REGISTRATION EXPENSES.......................................9
7. INDEMNIFICATION; CONTRIBUTION...............................9
(a) Indemnification by the Company.......................9
(b) Indemnification by the Selling Stockholders.........10
(c) Conduct of Indemnification Proceedings..............10
(d) Contribution........................................11
8. RULE 144 SALES.............................................11
9. MISCELLANEOUS..............................................12
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TABLE OF CONTENTS
(CONTINUED)
(a) Listing Application.................................12
(b) Damages.............................................12
(c) Amendments and Waivers..............................12
(d) Notices.............................................12
(e) Successors and Assigns..............................12
(f) Counterparts........................................12
(g) Headings............................................12
(h) Governing Law.......................................12
(i) Severability........................................13
(j) Entire Agreement....................................13
(k) Attorneys' Fees.....................................13
(l) No Inconsistent Agreements..........................13
(m) Enforcement.........................................13
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT")
is made and entered into this June 30, 1999 (the "EFFECTIVE DATE"), by and among
IESI Corporation, a Delaware corporation (the "COMPANY"), and the stockholders
named on the signature pages hereto (collectively, the "STOCKHOLDERS").
WITNESSETH:
WHEREAS, the parties hereto entered into a
Registration Rights
Agreement, dated as of May 22, 1998 (the "ORIGINAL AGREEMENT"), which was made
in connection with the Amended and Restated Stockholders' Agreement dated as of
even date therewith by and between the Company and the stockholders of the
Company (the "AMENDED STOCKHOLDERS AGREEMENT"), and the Stock Purchase Agreement
of even date therewith between the Company and the purchasers named therein (the
"FIRST PURCHASE AGREEMENT");
WHEREAS, the parties hereto entered into an Amended and Restated
Registration Rights Agreement, dated as of December 15, 1998 (the "AMENDED
AGREEMENT"), which was made in connection with the Second Amended and Restated
Stockholders' Agreement dated as of even date therewith by and between the
Company and the stockholders of the Company (the "SECOND AMENDED STOCKHOLDERS
AGREEMENT"), and the Stock Purchase Agreement of even date therewith between the
Company and the purchasers named therein (the "SECOND PURCHASE AGREEMENT");
WHEREAS, the Company has entered into a Stock Purchase Agreement,
dated June 30, 1999 (the "THIRD PURCHASE AGREEMENT"), with certain parties
hereto, pursuant to which on the Closing Date (as defined in the Third Purchase
Agreement), the Company shall issue and deliver shares of Series C Convertible
Preferred Stock to each purchaser thereof on the terms and conditions provided
in the Third Purchase Agreement;
WHEREAS, the Stockholders and the Company desire to amend and restate
the Amended Agreement in its entirety as set forth below;
WHEREAS, the parties hereto intend that this Agreement shall supersede
and replace the Original Agreement and the Amended Agreement;
NOW THEREFORE, in consideration of the mutual agreements set forth
herein, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. DEFINITIONS.
Except as set forth below, or as otherwise defined in this Agreement,
all capitalized terms shall have the meanings ascribed to them below:
(a) "ACT" means the Securities Act of 1933, as amended, or any other
federal statute in effect from time to time corresponding to such Act, and the
rules and regulations promulgated thereunder, all as the same shall be in effect
at the time.
(b) "CLASS B STOCK" means the Class B Nonvoting Common Stock, par value
$.01 per share, of the Company.
(c) "COMMON STOCK" means the shares of the Class A Voting Common Stock,
par value $.01 per share, of the Company.
(d) "COMMISSION" means the Securities and Exchange Commission or any other
federal agency at the time administering the Act.
(e) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute in effect from time to time corresponding to such
Exchange Act, and the rules and regulations promulgated thereunder, all as the
same shall be in effect at the time.
(f) "INITIATING HOLDER" means any Stockholder, group of Stockholders, or
their assignees who in the aggregate own beneficially at least fifteen percent
(15%) of the Registrable Common Stock.
(g) "PREFERRED STOCK" shall mean the Series A Preferred Stock, the Series
B Preferred Stock and the Series C Preferred Stock.
(h) "REGISTRABLE COMMON STOCK" means the Common Stock presently owned by
each Stockholder, and any additional shares of Common Stock acquired by any
Stockholder after the Effective Date, including Common Stock received upon any
conversion of shares of Preferred Stock into shares of Common Stock, any shares
of Common Stock received upon exercise of any warrants to purchase Common Stock,
any Common Stock issued in respect of shares of Common Stock upon any stock
split, stock dividend, recapitalization or other similar events and any shares
of Class B Stock of the Company, PROVIDED, that the holder of the Class B Stock
requesting registration shall agree to convert such Class B Stock requested to
be registered into Common Stock immediately upon effectiveness of the requested
registration statement; and PROVIDED FURTHER, that Common Stock held by a
Stockholder shall cease to be Registrable Common Stock, when (i) such Common
Stock is sold pursuant to a registration statement filed under the Act or
pursuant to Rule 144 under the Act, or (ii) the Company delivers to such
Stockholder an opinion of counsel satisfactory to such Stockholder, to the
effect that such Common Stock may be publicly offered without registration under
the Act without restriction under Rule 144 or otherwise. For purposes of this
Agreement, a Person shall be deemed to be a holder of Registrable Common Stock
whenever such Person has the right to acquire Registrable Common Stock (upon
conversion or exercise) other than pursuant to Section 1.4 of the First Purchase
Agreement, whether or not such acquisition has actually been effected.
(i) "REGISTRATION RIGHT EFFECTIVE DATE" means the first date after the
date of closing of the first public offering of Common Stock registered with the
Commission under the Act that Stockholders or the Company can sell Common Stock
without violating or requesting a waiver of any agreements entered into by the
Company and/or any Stockholder and the underwriter(s) for such first public
offering of Common Stock.
(j) "REGISTER" means to register under the Act and applicable state
securities laws for the purpose of effecting a public sale of securities.
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(k) "REGISTRATION EXPENSES" means all expenses incurred by the Company
hereunder as set forth in Section 6.
(l) "SELLING EXPENSES" means all underwriting discounts and selling
commissions applicable to the sale of the Registrable Common Stock.
(m) "SELLING STOCKHOLDER" means a Stockholder requesting registration of
Common Stock under this Agreement.
(n) "SERIES A PREFERRED STOCK" shall mean shares of the Series A preferred
stock of the Company, par value $1.00 per share.
(o) "SERIES B PREFERRED STOCK" shall mean shares of the Series B preferred
stock of the Company, par value $1.00 per share.
(p) "SERIES C PREFERRED STOCK" shall mean shares of the Series C preferred
stock of the Company, par value $1.00 per share.
2. REQUESTED REGISTRATIONS.
(a) If on any three occasions on or after the earlier of the date of the
Company's initial public offering or June 25, 2002, the Company shall receive
from one or more Initiating Holders a written request that the Company effect
the registration of Registrable Common Stock representing at least fifteen
percent (15%) of the Registrable Common Stock then outstanding or issuable (or
any lesser percentage if the reasonably anticipated aggregate price to the
public of the Registrable Common Stock to be included in such registration would
exceed $5 million), in connection with a firm commitment underwriting managed by
a nationally recognized underwriter, the Company will:
(i) promptly give written notice of the proposed registration to all
other Stockholders; and
(ii) as soon as practicable, use all commercially reasonable efforts
to effect such registration as may be so requested and as would permit or
facilitate the sale and distribution of such portion of such Registrable Common
Stock as are specified in such request, together with such portion of the
Registrable Common Stock of any Stockholder or Stockholders joining in such
request as are specified in a written request given within thirty days after
receipt of such written notice from the Company. If the underwriter managing the
offering advises the Stockholders who have requested inclusion of their
Registrable Common Stock in such registration that marketing considerations
require a limitation on the number of shares offered, such limitation shall be
imposed PRO RATA among such Stockholders who requested inclusion of Registrable
Common Stock in such registration according to the number of Registrable Common
Stock owned by each of such Stockholders. Neither the Company nor any other
person (excluding Stockholders) may include shares in a registration effected
under this Section 2 without the consent of the Stockholders holding a majority
of the shares of Registrable Common Stock sought to be included in such
registration if the inclusion of shares by the Company or the other persons
would, in the judgment of the managing underwriter, limit the number of shares
of Registrable Common Stock sought to be included by the Stockholders or reduce
the offering
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price thereof. No registration initiated by Initiating Holders hereunder shall
count as a registration under this Section 2: (1) unless and until it shall have
been declared effective, and (2) if such Initiating Holders fail to register and
sell at least 67% of the Registrable Common Stock requested to be included in
such registration by such Initiating Holders in their initial registration
request relating to such registration.
(b) Notwithstanding the provisions of subparagraph (a) of this Section 2,
the Company shall not be obligated to take any action to effect any registration
pursuant thereto:
(i) Within the 120-day period immediately following the effective
date of the registration statement pertaining to the first underwritten public
offering of securities of the Company for its own account (other than a
registration relating solely to a transaction under Rule 145 under the Act or a
registration relating solely to employee benefit plans);
(ii) After the Company has effected three registrations pursuant to
this Section 2, and such registrations have been declared or ordered effective
and have not been withdrawn or suspended during the first 90 days after such
registrations have been declared or ordered effective; or
(iii) If at the time of the request, the Initiating Holders could sell
all of the Registrable Common Stock requested to be registered under Rule 144
without restrictions.
(c) SELECTION OF UNDERWRITER. The holders of a majority of the Common
Stock included in any Registration requesting registration under this Section 2
shall have the right to select the investment banker(s) and manager(s) to
administer the offering, subject to the Company's approval, which shall not be
unreasonably withheld, provided that, unless the Company otherwise consents, the
lead investment banker shall be from one of the ten firms, which in the
immediately preceding calendar year managed the ten highest volumes of equity
security offerings or a firm that has previously managed or administered (alone
or with others) an equity security offering for the Company.
(d) OTHER REGISTRATION RIGHTS. The Company shall not grant to any Persons
any rights to request the Company to register any equity securities of the
Company, or any securities convertible or exchangeable into or exercisable for
such securities, unless such rights are expressly designated as subordinate and
junior to (including, without limitation, rights with respect to underwriter
cutbacks or similar limitations) those granted hereunder.
(e) In the event any holder of Registrable Common Stock is participating
in an underwritten offering pursuant to a registration effected pursuant to
Section 2 or 3 hereof, such holder shall be party to the applicable underwriting
agreement and shall provide customary representations, warranties and other
agreements, and shall be responsible for its pro rata share of any underwriting
fees, commissions or discounts payable to the underwriters.
(f) If the Company (i) shall furnish to the Initiating Holders a
certificate, signed by the President of the Company, stating that the Board of
Directors has in good faith adopted a resolution stating that it would be
inimical to the best interests of the stockholders for a public offering to
proceed, (ii) desires to postpone filing a registration statement in order to be
able to include in such filing audited year-end financing statements prepared in
the ordinary course of
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preparing its Annual Report to stockholders (including on form 10-K or such
other applicable form), or (iii) gives notice to the Initiating Holders, within
thirty (30) days of the receipt of a request given pursuant to Section 2(a),
that it is engaged or has fixed plans to engage in an initial firmly
underwritten registered public offering within thirty (30) days of the notice
date, then the Company may delay a requested registration for not more than 90
days, provided that such delay may be invoked on not more than two occasions and
on not more than one occasion within any twelve-month period.
3. PIGGYBACK REGISTRATION RIGHTS
(a) PIGGYBACK REGISTRATION RIGHTS. If at any time after the Registration
Right Effective Date the Company proposes to register any of the Common Stock
under the Act for sale, either for its own account or the account of a
Stockholder, for cash including a registration pursuant to Section 2 hereof
(other than a registration on Form X-0, X-0 or any similar form), it will serve
written notice of such proposed registration to the Stockholders at least 30
days before the anticipated filing date, which notice shall include the number
of shares of Common Stock the Company or other security holder proposes to
register and, if known, the proposed underwriter. Written notices served by the
Company pursuant to the preceding sentence of this Section 3(a) shall be
referred to hereinafter as "NOTICES." Subject to the restrictions and in
accordance with the procedures set forth below, the Company will use its best
efforts to include in any registration to which a Notice relates all Registrable
Common Stock with respect to which the Company has received written requests for
inclusion therein within 20 days after the receipt of the Notice. Nothing set
forth in this Section 3 shall obligate the Company to file any registration
statement unless the Board of Directors approves such filing.
(b) PRIORITY ON REGISTRATIONS.
(i) Notwithstanding the provisions of Section 3(a) hereof, in the
case of an underwritten offering, the managing underwriter or underwriters of
the registration may limit the number of shares of Common Stock included in the
underwritten offering if, in its or their opinion, the number of shares of
Common Stock requested to be sold in such underwritten offering exceeds the
number that can be sold without materially adversely affecting the price at
which such securities could be sold. In the event the number is to be so limited
in the underwritten offering, a sufficient number of shares of Common Stock
shall be eliminated to reduce the total amount of shares of Common Stock to be
included in such underwritten offering to the amount recommended by such
underwriter. In reducing the amount of shares of Common Stock to be included in
such underwritten offering, the Company will include in such underwritten
offering (A) first, all shares of Common Stock the Company proposes to sell, (B)
second, all Registrable Common Stock beneficially owned by any Stockholder
requested to be included in the underwritten offering and shares of Common Stock
requested to be included by other holders of Common Stock who are stockholders
on the date hereof and who have registration rights in respect thereof PARI
PASSU with the registration rights granted hereby reduced PRO RATA according to
the number of shares of Registrable Common Stock requested to be included in
such registration in good faith with the bona fide intention of selling the
same; and (C) third, other shares of Common Stock requested to be included in
such registration.
(ii) The Company shall use its best efforts to enable the Registrable
Common Stock of the Stockholder, if inclusion in an underwritten offering is
properly requested, to be
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included in such underwritten offering; PROVIDED, HOWEVER, the Company will not
be required to pay any Selling Expenses with respect to the sale of such
Registrable Common Stock. If such Selling Stockholder's Registrable Common Stock
is not included in the underwritten offering, the Company shall nonetheless use
its best efforts to enable such Selling Stockholder's Registrable Common Stock
to be sold in accordance with the intended methods of distribution without
inclusion in the underwriting, subject to the provision contained in the
preceding sentence. The Company may impose stop-transfer instructions with
respect to Common Stock subject to the restrictions provided for in this Section
3 until the end of such 90-day period.
(c) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Common Stock pursuant to
Section 2, and if such previous registration has not been withdrawn or
abandoned, the Company shall not announce, file or cause to be effected any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-8 or any successor form), whether on its own behalf or at
the request of any holder or holders of such securities, until a period of at
least 90 days has elapsed from the effective date of such previous registration.
4. RESTRICTIONS ON PUBLIC SALE BY PURCHASER.
To the extent not inconsistent with applicable law, the Selling
Stockholders agree not to effect any public sale or distribution of Common Stock
or a similar security of the Company or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to,
and during the 90-day period beginning on, the effective date of such
registration statement (except as part of such registration), if and to the
extent requested in writing (with reasonable prior notice), by (i) the Company
in the case of a non-underwritten public offering by the Company, (ii) or the
managing underwriter or underwriters in the case of an underwritten public
offering. The Company may impose stop-transfer instructions with respect to its
Common Stock subject to the restrictions in this Section 4 until the end of such
90-day period.
5. REGISTRATION PROCEDURES.
Whenever any Registrable Common Stock is to be registered pursuant to
Sections 2 or 3 hereof, the Company will use its best efforts to effect the
registration and the sale of such Registrable Common Stock in accordance with
the intended method of disposition of the Selling Stockholders as quickly as
practicable, and in connection with any such request, the Company will as
expeditiously as possible:
(a) prepare and file with the Commission a registration statement which
includes the Registrable Common Stock and use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company shall furnish to the counsel selected by the holders of a majority
of the Registrable Common Stock covered by such registration statement copies of
all such documents proposed to be filed, which documents shall be subject to the
review and comments of such counsel);
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(b) prepare and file with the Commission such amendments and
post-effective amendments to the registration statement and prospectus used in
connection therewith as may be necessary to keep the registration statement
effective for a period of not less than 120 days (or such shorter period as
shall be necessary to permit the Selling Stockholders to complete the
distribution of the Registrable Common Stock to which such registration
statement relates in accordance with their intended methods of distribution) and
to comply with the provisions of the Act and the rules and regulations
thereunder with respect to the disposition of all Registrable Common Stock
covered by the registration statement for the period required to effect the
distribution thereof, but in no event shall the Company be required to do so for
a period of more than 120 days following the effective date of such registration
statement;
(c) furnish to the Selling Stockholders and the underwriter or
underwriters, if any, and to counsel to the Selling Stockholders and
underwriters, without charge, such number of conformed copies of the
registration statement and any post-effective amendment thereto, upon request,
and such number of copies of the prospectus (including each preliminary
prospectus) and any amendments or supplements thereto, and any documents
incorporated by reference therein, as the Selling Stockholders or such
underwriter(s) may reasonably request in order to facilitate the disposition of
the Registrable Common Stock being sold by the Selling Stockholders (it being
understood that the Company consents to the use of the prospectus and any
amendment or supplement thereto by the Selling Stockholders and the underwriter
or underwriters, if any, in connection with the offering and sale of the
Registrable Common Stock covered by the prospectus or any amendment or
supplement thereto);
(d) notify the Selling Stockholders and the underwriters, if any, at any
time when a prospectus relating thereto is required to be delivered under the
Act, when the Company becomes aware of the happening of any event as a result of
which any prospectus included in such registration statement (as then in effect)
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and, as promptly as possible
thereafter, prepare and file with the Commission and furnish a supplement or
amendment to such prospectus so that, as thereafter delivered to the Selling
Stockholders of such Registrable Common Stock, such prospectus will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(e) on or prior to the date on which the registration statement is
declared effective, use its best efforts to register or qualify the Registrable
Common Stock covered by the registration statement for offer and sale under the
securities or blue sky laws of each state and other jurisdiction of the United
States as the Selling Stockholders or underwriter requests in writing, and to
cooperate with the Selling Stockholders, the underwriter or underwriters, if
any, and their counsel, in connection therewith; to use its best efforts to keep
each such registration or qualification effective, including through new
filings, or amendments or renewals, during the period such registration
statement is required to be kept effective and to do any and all other acts or
things necessary or advisable to enable the disposition in all such
jurisdictions of the Registrable Common Stock covered by the applicable
registration statement; provided that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process in
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suits other than those arising out of such registration in any such jurisdiction
where it is not then so subject;
(f) cooperate with the Selling Stockholders and the managing underwriter
or underwriters, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing the Common Stock
to be sold under the registration statement, and enable such Common Stock to be
in such denominations and registered in such names as the managing underwriter
or underwriters, if any, or the Selling Stockholders may request;
(g) enter into such customary agreements (including an underwriting
agreement in customary form which, if requested by an underwriter, will contain
customary contribution provisions on the part of the Company) and take all such
other actions (including, without limitation, delivery of customary legal
opinions and officers' certificates) as the Selling Stockholders reasonably
request in order to expedite or facilitate the disposition of such Registrable
Common Stock;
(h) make available for inspection and copying by any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by any such underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement, as shall be reasonably necessary to enable it to exercise its due
diligence responsibility; and
(i) use its best efforts to obtain a "cold comfort" letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters as the Selling
Stockholders or the underwriter reasonably request.
(j) otherwise use its best efforts to comply with all applicable rules and
regulations of the Securities and Exchange Commission, and make generally
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Common Stock which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement; and
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts to obtain the withdrawal of
such order.
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The Selling Stockholders, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 5(d) hereof, will
immediately discontinue disposition of the Registrable Common Stock until the
Selling Stockholders' receipt of the copies of the supplemented or amended
prospectus contemplated by Section 5(d) of this Section 5 and copies of any
additional or supplemental filings which are incorporated by reference in the
prospectus, or until it is advised in writing (the "Advice") by the Company that
the use of the prospectus may be resumed, and, if so directed by the Company,
the Selling Stockholders will, or will request the managing underwriter or
underwriters if any to, deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in the Selling Stockholders'
possession, of the prospectus covering such Registrable Common Stock current at
the time of receipt of such notice. In the event the Company shall give any such
notice, the time periods mentioned in Section 5(b) shall be extended by the
number of days during the period from and including the date of the giving of
such notice to and including the date when the Selling Stockholders shall have
received (x) the copies of the supplemented or amended prospectus contemplated
by Section 5(d) and copies of any additional or supplemental filings which are
incorporated by reference in the prospectus, or (y) the Advice.
6. REGISTRATION EXPENSES.
(a) The Company will bear all expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
all Commission and securities exchange or National Association of Securities
Dealers, Inc. registration and filing fees, fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with determination of eligibility for investment and blue
sky qualifications of the Registrable Common Stock), printing expenses,
messenger and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), fees and disbursements of counsel for the Company
and its independent certified public accountants (including the expenses of any
special audit or "cold comfort" letters required by or incident to such
performance), reasonable fees and disbursements of counsel for the Selling
Stockholders, securities acts liability insurance (if the Company elects to
obtain such insurance), the reasonable fees and expenses of any special experts
retained by the Company in connection with such registration, fees and expenses
of other persons retained by the Company (all such expenses being referred to
herein as "Registration Expenses").
(b) In connection with up to three demand registrations pursuant to
Section 2 hereof, the Company shall reimburse the holders of Registrable Common
Stock included in such registration for the reasonable fees (not exceeding
$15,000 for each registration) and disbursements of one counsel chosen by the
holders of a majority of the Registrable Common Stock included in such
registration.
7. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify,
protect and hold harmless, to the full extent permitted by law, the Selling
Stockholders, its officers, directors, partners, employees and agents, and any
agent or investment adviser of any thereof, and each person who controls any
such person (within the meaning of the Act), against all losses, claims,
damages, liabilities and expenses arising out of or based on any untrue or
allegedly untrue
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statement of material fact contained in any registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made, not misleading, or any violation by
the Company of the Act or the Exchange Act or securities act of any state or any
rule or regulation thereunder applicable to the Company and relating to action
or inaction required of the Company in connection with the registration of
Registrable Common Stock hereunder, except to the extent, and only to the
extent, that the same are caused by or contained in any information which the
Selling Stockholder furnished in writing to the Company expressly for use
therein or by a Selling Stockholder's failure to deliver to a purchaser of
securities a copy of the registration statement, prospectus or preliminary
prospectus or any amendments thereof or supplements thereto at a time when such
Selling Stockholder is required by the Act to do so after the Company has
furnished such Selling Stockholder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company will indemnify,
protect and hold harmless the underwriters thereof, selling brokers, dealer
managers, and similar securities industries professionals, their officers,
directors, employees, agents and each person who controls any such person
(within the meaning of the Act) to the same extent as provided above with
respect to the indemnification of the Selling Stockholder.
(b) INDEMNIFICATION BY THE SELLING STOCKHOLDERS. In connection with any
registration statement in which a Selling Stockholder is participating, such
Selling Stockholder will furnish to the Company in writing such customary
information with respect to such Selling Stockholder as the Company reasonably
requests for use in connection with any such registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto and
agrees to indemnify, to the extent permitted by law, the Company, its directors,
employees, agents, officers, and each person who controls the Company (within
the meaning of the Act) against all losses, claims, damages, liabilities and
expenses arising out of or based on any untrue or allegedly untrue statement of
a material fact contained in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, to the extent, but
only to the extent, that such untrue statement or omission is caused by or
contained in any information which such Selling Stockholder furnished in writing
to the Company expressly for use therein or by such Selling Stockholder's
failure to deliver to a purchaser of securities a copy of the registration
statement, prospectus, or preliminary prospectus or any amendments thereof or
supplements thereto at a time when such Selling Stockholder is required by the
Act to do so after the Company has furnished such Selling Stockholder with a
sufficient number of copies of the same. In no event shall the liability of such
Selling Stockholder hereunder be greater in amount than the dollar amount of the
net proceeds received by such Selling Stockholder upon the sale of the
Registrable Common Stock giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person entitled to
indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such person of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which such person will claim indemnification or contribution
pursuant to this Agreement, but the failure to give such notice shall not
relieve
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the indemnifying party of its obligations hereunder except to the extent the
indemnifying party has been prejudiced as a consequence, and, unless in the
reasonable judgment of such indemnified party a conflict of interest may exist
between such indemnified party and the indemnifying party with respect to such
claim, permit the indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to such indemnified party. Whether or not such
defense is assumed by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its consent (but such
consent will not be unreasonably withheld or delayed). No indemnifying party
will consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
of such claim or litigation. If the indemnifying party is not entitled to, or
elects not to, assume the defense of a claim, it will not be obligated to pay
the fees and expenses with respect to such claim of more than one counsel for
the indemnified party with respect to which a claim has been asserted (which
fees and expenses will be paid as they are billed to the indemnified party)
unless in the reasonable judgment of such indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of such additional counsel
or counsels as shall be necessary to eliminate such conflicts in connection with
the representation of indemnified parties, such fees and expenses to be paid as
they are billed to the indemnified party.
(d) CONTRIBUTION. In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in this Section 7 is
for any reason held to be unenforceable although applicable in accordance with
its terms, the Company and the Selling Stockholders, shall contribute to the
losses, claims, damages, liabilities and expenses described herein, in such
proportions so that the portion thereof for which such Selling Stockholder shall
be responsible shall be limited to the portion determined by a court or the
parties to any settlement to arise out of or to be based on any untrue statement
of material fact contained in a registration statement, prospectus, or
preliminary prospectus, or any amendment thereof or supplement thereto or any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading, caused by or contained in any
information which such Selling Stockholder furnished in writing to the Company
expressly for use therein or by Selling Stockholder's failure to deliver to a
purchaser of securities a copy of the registration statement, prospectus or
preliminary prospectus or any amendments or supplements thereto at a time when
such Selling Stockholder is required by the Act to do so after the Company has
furnished such Selling Stockholder with a sufficient number of copies of the
same, and the Company shall be responsible for the balance (subject to any other
rights the Company may have against any other selling holder the securities of
which were included in such registration statement, preliminary prospectus,
prospectus, amendment or supplement); PROVIDED, that the liability of such
Selling Stockholder shall in no event exceed the net proceeds from the
Registrable Common Stock sold by it thereunder. The Company and the Selling
Stockholder agree that it would not be just and equitable if their respective
obligations to contribute were to be determined by pro rata allocation, by
reference to the proceeds realized by them or in any manner which does not take
into account the equitable considerations set forth in this Section 7(d).
8. RULE 144 SALES.
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The Company shall file the reports required to be filed by it under
the Exchange Act and the rules and regulations promulgated thereunder, and will
take such further action as any Stockholder may reasonably request, all to the
extent required from time to time to enable such Stockholder to sell Registrable
Common Stock (subject to Section 2(a)(ii)) without registration under the Act
within the limitation of the exemptions provided by Rule 144, provided that
nothing contained in this Section 8 shall require the Company to file or make
available any reports or information that it is not otherwise required to file
or make available under the Exchange Act. Upon the written request of any
Stockholder, the Company shall deliver to such Stockholder a written statement
as to whether it has complied with such requirements.
9. MISCELLANEOUS.
(a) LISTING APPLICATION. If shares of Common Stock shall be listed on a
national securities exchange or NASDAQ, the Company shall, at its expense,
include in its listing application all of the shares of the Common Stock then
owned by any Stockholder.
(b) DAMAGES. The Company recognizes and agrees that the holder of
Registrable Common Stock shall not have an adequate remedy if the Company fails
to comply with the provisions of this Agreement, and that damages will not be
readily ascertainable, and the Company expressly agrees that in the event of
such failure, any Holder of Registrable Common Stock shall be entitled to seek
specific performance of the Company's obligations hereunder and that the Company
will not oppose an application seeking such specific performance.
(c) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Company has obtained the written consent of the Stockholders.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by telecopier, registered or certified
mail (return receipt requested), postage prepaid to the parties at their
respective addresses as reflected in the Company's records. Notices sent by mail
shall be effective five days after mailing; notices sent by telecopier shall be
effective when receipt is acknowledged; and notices sent by courier guaranteeing
next day delivery shall be effective on the next business day after timely
delivery to the courier.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties; provided,
that, no person, other than the Stockholders, who acquire shares of Registrable
Common Stock in a transaction registered under the Securities Act or effected
without registration pursuant to Rule 144 under the Securities Act shall have
any rights or be entitled to any benefit hereunder in respect of such
Registrable Common Stock.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of
New York.
(i) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the
Stockholders shall be enforceable to the fullest extent permitted by law.
(j) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties, and supersedes all prior agreements or understandings,
whether written or oral, among the parties, with respect to the subject matter
hereof, including but not limited to those certain
Registration Rights
Agreements, dated as of December 15, 1998, May 22, 1998, July 22, 1997, and June
24, 1997.
(k) ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof or thereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
(l) NO INCONSISTENT AGREEMENTS. Neither the Company nor any Stockholder
will on or after the date of this Agreement enter into any agreement with
respect to the Common Stock which is inconsistent with the rights granted to the
Stockholders in this Agreement or otherwise conflicts with the provisions
hereof.
(m) ENFORCEMENT. It is specifically agreed and understood that monetary
damages would not adequately compensate the non-breaching parties for the breach
of this Agreement and this Agreement shall therefore be specifically
enforceable, and any breach or threatened breach of this Agreement shall be the
proper subject of a temporary or permanent injunction or restraining order,
without necessity of bond or other security.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
ADDRESSES: COMPANY:
0000 Xxxxx Xxxxx Xxxxxx IESI CORPORATION
Xxxxxx Xxxx, Xxxxx 00000 a Delaware corporation
Attn: President
Tel: (000) 000-0000
Fax: (000) 000-0000 By:
-------------------------------------
Name:
-----------------------------------
with a copy to Title:
----------------------------------
0 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
STOCKHOLDERS:
0 Xxxxxxxx Xxxxxx IESI CAPITAL LLC,
Bayonne, New Jersey 07002 a Mississippi limited liability company
Attn: Xxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000 By:
-------------------------------------
Xxxxxxx X. Xxxxxx
Managing Member
0 Xxxxxxxx Xxxxxx IESI CAPITAL II LLC,
Bayonne, New Jersey 07002 a Delaware limited partnership
Attn: Xxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000 By:
-------------------------------------
Xxxxxxx X. Xxxxxx
Managing Member
0 Xxxxxxxx Xxxxxx IESI CAPITAL III LLC,
Bayonne, New Jersey 07002 a Mississippi limited liability company
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
By:
-------------------------------------
Xxxxxxx X. Xxxxxx
Managing Member
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0 Xxxxxxxx Xxxxxx IESI CAPITAL IV LLC,
Bayonne, New Jersey 07002 a Mississippi limited liability company
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
By:
-------------------------------------
Xxxxxxx X. Xxxxxx
Managing Member
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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0000 XxXxxxxx Xxxxxx XXX XXXXXX CONSTRUCTION CO., INC.,
Xxxxxx, Xxxxx 00000 a Texas corporation
Attn: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
000 Xxxxxxxx Xxxxxx, Xxxxx 0000 ----------------------------------------
Xxxx Xxxxx, Xxxxx 00000 XXXXXXX X. XXXXXXXX
0000 Xxxxx Xxxxx Xxxxxx ----------------------------------------
Xxxxxx Xxxx, Xxxxx 00000 XXXXXXX X. XXXXX
16909 Xxxxxxx Drive ----------------------------------------
Xxxxxx Xxxx, Xxxxxxxx 00000 XXXXXX X. XXXXXXXXXX
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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c/x Xxxxxxx Xxxxxx Xxxxx Inc. ENVIRONMENTAL OPPORTUNITIES
0000 Xxxxx Xxxxx XXXX XX, X.X.,
Xxxxxxx, Xxxxx 00000 a Delaware limited partnership
Attn: Xxxxx X. XxXxxxx By: Fund II Mgt. Co., LLC, its General
Fax: (000) 000-0000 Partner
By:
------------------------------------
Xxxxxxx Ch'uan-k'xx Xxxxx
Managing Director
c/x Xxxxxxx Xxxxxx Xxxxx, Inc. ENVIRONMENTAL OPPORTUNITIES
3100 Chase Tower FUND II (INSTITUTIONAL), L.P.,
Xxxxxxx, Xxxxx 00000 a Delaware limited partnership
Attn: Xxxxx X. XxXxxxx By: Fund II Mgt. Co., LLC, its General
Fax: (000) 000-0000 Partner
By:
------------------------------------
Xxxxxxx Ch'uan-k'xx Xxxxx
Managing Director
40 Citco Fund Services ENVIRONMENTAL OPPORTUNITIES FUND
(Cayman Islands) Limited (CAYMAN), L.P.,
X.X. Xxx 00000 SMB a Cayman Islands limited partnership
Grand Cayman, By: Environmental Opportunities
Cayman Islands, B.W.I. Management Co., LLC, its General
Attn: Xxxxxxxx Forward Partner
Fax: (000) 000-0000
By:
------------------------------------
Xxxxxxx Ch'uan-k'xx Xxxxx
Manager
c/x Xxxxxxx Xxxxxx Xxxxx, Inc. ENVIRONMENTAL OPPORTUNITIES FUND, L.P.,
3100 Chase Tower a Delaware limited partnership
Xxxxxxx, Xxxxx 00000 By: Environmental Opportunities
Attn: Xxxxx X. XxXxxxx Management Co., LLC, its General
Fax: (000) 000-0000 Partner
By:
------------------------------------
Xxxxxxx Ch'uan-k'xx Xxxxx
Manager
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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c/o Xxxxxx X. Xxxxxx MANHATTAN GROUP FUNDING,
00 Xxxxxxxx Xxxx a New Jersey limited partnership
Tenafly, Xxx Xxxxxx 00000
By:
-------------------------------------
Printed Name:
---------------------------
Title:
----------------------------------
000 Xxxxxxx Xxxxxx XXXXXXXXXX INVESTMENTS INC.,
Xxxxxx, Xxxxxxxxxxxxx 00000 a Massachusetts corporation
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
By:
-------------------------------------
Printed Name:
---------------------------
Title:
----------------------------------
1211 Avenue of the Americas SUEZ EQUITY INVESTORS, L.P.,
Xxx Xxxx, Xxx Xxxx 00000 a Delaware limited partnership
Attention: Xxxxxxx xx Xxxxxxx By SEI Capital, L.L.C., its General
Fax: (000) 000-0000 Partner,
By:
-------------------------------------
Xxxxxxx X. Xxxxx
Member
1211 Avenue of the Americas SEI ASSOCIATES,
Xxx Xxxx, Xxx Xxxx 00000 a Delaware partnership
Attention: Xxxxxxx xx Xxxxxxx
Fax: (000) 000-0000
By:
-------------------------------------
Xxxxxxx X. Xxxxx
Partner
0000 Xxxxxxxxxxxx Xxxxxx, X.X. TC CARTING, L.L.C.,
Suite 350 a Delaware limited liability company
Xxxxxxxxxx, X.X. 00000
Fax: 000-000-0000 By: Xxxxxx Equity Investors III, L.P.,
its Managing Member
By:
-------------------------------------
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0000 Xxxxxxxxxxxx Xxxxxx, X.X. XXXXXX EQUITY INVESTORS IV, L.P.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000 By: Xxxxxx Equity Partners IV, L.L.C.,
Fax: 000-000-0000 its General Partner
By:
-------------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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000 Xxxxx Xxxxxx ----------------------------------------
Xxxxxxx, Xxx Xxxxxx 00000 XXXX XXXXXXXXXX
0 Xxxxxx Xxxxx ----------------------------------------
Xxxxxxx, Xxx Xxxxxx 00000 XXXXXXXXX XXXXXXXXXX
58 Windsor Oval ----------------------------------------
Xxx Xxxxxxxx, Xxx Xxxx 00000 XXXX X. XXXXXXXX
00 Xxxx Xxxxx ----------------------------------------
Xxx Xxxxxxxx, Xxx Xxxx 00000 XXXXXX XXXXXXXX
0000 Xxxxxxxx Xxxxx ----------------------------------------
Xxxxxxxx, Xxx Xxxx 00000 XXXXX XXXXXXXXX
0 Xxxxx Xxxxx ----------------------------------------
Xxxxxxxx, Xxx Xxxx 00000 MAURO DELL'OLIO
00 Xxxx Xxxxxx ----------------------------------------
Xxxxxxxxxx, Xxxxxxxxxxx 00000 J. XXXXX XXXXXXXX
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