EXHIBIT 1.01
ALLIED WASTE INDUSTRIES, INC.
[ ] Shares
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
, 2005
UNDERWRITING AGREEMENT
Citigroup Global Markets Inc.
UBS Securities LLC
as Representatives of the several Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Allied Waste Industries, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the underwriters named in Schedule A
annexed hereto (the "UNDERWRITERS"), for whom Citigroup Global Markets Inc. and
UBS Securities LLC are acting as representative(s) (together, the
"REPRESENTATIVES"), an aggregate of [ ] shares (the "FIRM SHARES") of common
stock, $0.01 par value (the "COMMON Stock"), of the Company. In addition, solely
for the purpose of covering over-allotments, the Company proposes to grant to
the Underwriters the option to purchase from the Company up to an additional
[ ] shares of Common Stock upon the terms and conditions set forth below (the
"ADDITIONAL SHARES"). The Firm Shares and the Additional Shares are hereinafter
collectively sometimes referred to as the "SHARES." The Shares are described in
the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "ACT"), with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3, as amended (File No.
333-115329), including a prospectus, relating to the Shares, which incorporates
by reference documents which the Company has filed or will file in accordance
with the provisions of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (collectively, the "EXCHANGE ACT"). The Company
has furnished to you, for use by the Underwriters and by dealers, copies of a
preliminary prospectus and the documents incorporated by reference therein
(together, a "PRELIMINARY PROSPECTUS") relating to the Shares. Except where the
context otherwise requires, the registration statement, as amended at the time
of this Agreement, including all documents filed as a part thereof or
incorporated by reference therein, and including any information contained in a
prospectus subsequently filed with the Commission pursuant to Rule 424(b) under
the Act and deemed to be part of the registration statement and also including
any registration statement filed pursuant to Rule 462(b) under the Act, is
herein called the "REGISTRATION STATEMENT," and the prospectus, including all
documents incorporated therein by reference, in the form filed by the Company
with the Commission pursuant to Rule 424(b) under the Act on or before the
second business day after the date hereof (or such earlier time as may be
required under the Act) or, if no such filing is required, the form of final
prospectus included in the Registration Statement at the time it
became effective, is herein called the "PROSPECTUS." As used herein, "business
day" shall mean a day on which the New York Stock Exchange is open for trading.
1. AGREEMENTS TO SELL AND PURCHASE.
On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions contained
herein, the Company agrees to issue and sell to the Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company the
aggregate number of Firm Shares set forth opposite the name of such Underwriter
on Schedule A hereto, subject to adjustment in accordance with Section 7 hereof,
at a purchase price of $[ ] per share. The Company is advised by you that the
Underwriters intend (i) to make a public offering of their respective portions
of the Firm Shares as soon after the date hereof as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, the Company hereby grants to the several Underwriters
the option to purchase, and upon the basis of the representations, warranties
and covenants, and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Company, ratably in accordance with the number of Firm Shares to be
purchased by each of them, all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters
to the Company for the Firm Shares. This option may be exercised by the
Representatives together, on behalf of the several Underwriters, at any time and
from time to time on or before the thirtieth day following the date hereof, by
written notice to the Company. Such notice shall set forth the aggregate number
of Additional Shares as to which the option is being exercised, and the date and
time when the Additional Shares are to be delivered (such date and time being
herein referred to as the "additional time of purchase"); provided, however,
that the additional time of purchase shall not be earlier than the time of
purchase (as defined below) nor earlier than the second business day after the
date on which the option shall have been exercised nor later than the tenth
business day after the date on which the option shall have been exercised. The
number of Additional Shares to be sold to each Underwriter shall be the number
which bears the same proportion to the aggregate number of Additional Shares
being purchased as the number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total number of Firm Shares
(subject, in each case, to such adjustment as you may determine to eliminate
fractional shares), subject to adjustment in accordance with Section 7 hereof.
2. DELIVERY AND PAYMENT.
(a) Delivery of the documents described in Section 6 hereof with
respect to the purchase of the Shares shall be made at the offices of Xxxxxx &
Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other location
as may be mutually
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acceptable, at 9:00 A.M., New York City time, on the date of the closing of the
purchase of the Firm Shares or the Additional Shares, as the case may be.
(b) Payment of the purchase price for the Firm Shares shall be made
to the Company by Federal Funds wire transfer, against delivery of the
certificates for the Firm Shares to you through the facilities of The Depository
Trust Company ("DTC") for the respective accounts of the Underwriters. Such
delivery and payment shall be made at 9:00 A.M., New York City time, on March [
], 2005 (or at such other time on the same date or such other date as agreed
upon by you and the Company in writing or unless postponed in accordance with
the provisions of Section 7 hereof). The time at which such delivery and payment
are to be made is hereinafter sometimes called "the time of purchase."
Electronic transfer of the Firm Shares shall be made to you at the time of
purchase in such names and in such denominations as you shall specify.
(c) Payment of the purchase price for the Additional Shares shall be
made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Electronic transfer of the Additional
Shares shall be made to you at the additional time of purchase in such names and
in such denominations as you shall specify.
3. AGREEMENTS OF THE COMPANY.
The Company hereby agrees with the Underwriters as follows:
(a) To file the Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second business day
following the date of determination of the offering price of the Securities or,
if applicable, such earlier time as may be required by Rule 424(b).
(b) To advise the Representatives promptly and, if requested by the
Representatives, confirm such advice in writing, (i) of the issuance by any
state securities commission of any stop order suspending the qualification or
exemption from qualification of the Shares for offering or sale in any
jurisdiction designated by the Representatives pursuant to Section 3(h) hereof,
or the initiation of any proceeding by any state securities commission or any
other federal or state regulatory authority for such purpose, and (ii) of the
happening of any event during the period referred to in Section 3(f) below that
makes any statement of a material fact made in the Registration Statement or the
Prospectus untrue or that requires any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements therein
not misleading. The Company shall use its best efforts to prevent the issuance
of any stop order or order suspending the qualification or exemption of the
Shares under any state securities or Blue Sky laws and, if at any time any state
securities commission or other federal or state regulatory authority shall issue
an order suspending the qualification or exemption of the Shares under any state
securities or Blue Sky laws, the Company shall use its best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time.
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(c) To furnish the Underwriters, and those persons identified by the
Underwriters to the Company, as many copies of the Prospectus, and any
amendments or supplements thereto, as the Underwriters may from time to time
reasonably request for the time period specified in Section 3(f); in case any
Underwriter is required to deliver a prospectus after the nine-month period
referred to in Section 10(a)(3) of the Act in connection with the sale of the
Shares, the Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the Prospectus as may
be necessary to permit compliance with the requirements of Section 10(a)(3) of
the Act. The Company consents to the use of the Prospectus, and any amendments
and supplements thereto required pursuant hereto, by the Underwriters in
connection with the offering and sale of the Shares.
(d) If it is necessary for any post-effective amendment to the
Registration Statement to be declared effective before the offering of the
Shares may commence, the Company will endeavor to cause such post-effective
amendment to become effective as soon as possible and the Company will advise
you promptly and, if requested by you, will confirm such advice in writing, when
such post-effective amendment to the Registration Statement has become
effective.
(e) To advise you promptly and, if requested by you, to confirm such
advice in writing, of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for additional
information with respect thereto, or of notice of institution of proceedings
for, or the entry of a stop order, suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to use its best
efforts to obtain the lifting or removal of such order as soon as possible.
(f) During such period as a prospectus is required to be delivered
under the Act in connection with the offering and sale of the Shares by the
Underwriters, (i) to advise you promptly, and if requested by you, to confirm
such advice in writing, of any proposal to amend or supplement the Registration
Statement or the Prospectus, including by filing any documents that would be
incorporated therein by reference, and to provide you and Underwriters' counsel
copies of any such documents for review and comment a reasonable amount of time
prior to any proposed filing and to file no such amendment or supplement to
which you shall reasonably object in writing and (ii) to prepare promptly upon
the reasonable request of any of the Representatives, any amendment or
supplement to the Registration Statement or the Prospectus which in the
reasonable opinion of the counsel for the Underwriters is believed to be
necessary under the Act.
(g) To advise you promptly, during the period referred to in Section
3(f) above, if any event shall occur or condition shall exist as a result of
which, it becomes necessary to amend or supplement the Registration Statement or
the Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or, if it is necessary
to amend or supplement the Registration Statement or the Prospectus to comply
with the Act, and forthwith to prepare and file with the Commission an
appropriate amendment or supplement to such Registration Statement or Prospectus
so that the statements therein, as so amended or supplemented,
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will not, in the light of the circumstances when it is so delivered, be
misleading, or so that such Registration Statement or Prospectus will comply
with applicable law, and to furnish to the Underwriters and such other persons
as the Underwriters may designate such number of copies thereof as the
Underwriters may reasonably request.
(h) Prior to the sale of the Shares as contemplated hereby, to
cooperate with the Underwriters and counsel to the Underwriters in connection
with the registration or qualification of the Shares for offer and sale to the
Underwriters under the securities or Blue Sky laws of such jurisdictions as the
Representatives may request and to continue such registration or qualification
in effect so long as required and to file such consents to service of process or
other documents as may be necessary in order to effect such registration or
qualification; provided, however, that the Company shall not be required in
connection therewith to qualify as a foreign corporation in any jurisdiction in
which it is not now so qualified or to take any action that would subject it to
general consent to service of process or taxation other than as to matters and
transactions relating to the offering and sale of the Shares, in any
jurisdiction in which it is not now so subject.
(i) Subject to Section 3(f) hereof, to file promptly all reports and
any definitive proxy or information statement required to be filed by the
Company with the Commission in order to comply with the Exchange Act subsequent
to the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares.
(j) If necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act.
(k) To make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy the
provisions of Section 11(a) of the Act) covering a period of twelve months
beginning after the effective date of the Registration Statement (as defined in
Rule 158(c) of the Act) as soon as is reasonably practicable after the
termination of such twelve-month period.
(l) To furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (including a consolidated balance sheet
and statements of income, shareholders' equity and cash flow of the Company and
its subsidiaries for such fiscal year, accompanied by a copy of the certificate
or report thereon of nationally recognized independent certified public
accountants).
(m) If requested by you, to furnish to you one copy of the
Registration Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto and documents incorporated by
reference therein) and sufficient copies of the foregoing (other than exhibits)
for distribution of a copy to each of the other Underwriters.
(n) To the extent not otherwise available on XXXXX (as defined in
Regulation S-T), to furnish to you promptly and, upon request, to each of the
other Underwriters (i) for a period of five years from the date of this
Agreement (x) copies of
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any reports or other communications which the Company shall send to its
stockholders or shall from time to time publish or publicly disseminate, (y)
copies of all annual, quarterly and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission and (z) copies of documents or reports filed with any national
securities exchange on which any class of securities of the Company is listed
and (ii) for the period referenced in Section 3(f) above, such other information
as you may reasonably request regarding the Company or it subsidiaries.
(o) To apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus.
(p) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the obligations of the Company under
this Agreement, including: (i) the fees, disbursements and expenses of counsel
to the Company and accountants of the Company in connection with the sale and
delivery of the Shares to the Underwriters and all other fees and expenses in
connection with the preparation, printing, filing and distribution of the
Registration Statement, the Preliminary Prospectus, the Prospectus, and all
amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Underwriters and persons designated by it in the quantities specified herein,
(ii) all costs and expenses related to the transfer and delivery of the Shares
to the Underwriters, including any transfer or other taxes payable thereon,
(iii) all costs of printing or producing this Agreement and any other agreements
or documents in connection with the offering, purchase, sale or delivery of the
Shares, (iv) all expenses in connection with the registration or qualification
of the Shares for offer and sale under the securities or Blue Sky laws of the
several states and all costs of printing or producing any Blue Sky memoranda in
connection therewith (including the filing fees and reasonable fees and
disbursements of counsel for the Underwriters in connection with such
registration or qualification and memoranda relating thereto), (v) the cost of
printing certificates representing the Shares, (vi) all expenses and listing
fees in connection with the listing of the Shares on any securities exchange or
qualification of the Shares for listing on the New York Stock Exchange and any
registration thereof under the Exchange Act, (vii) the costs and charges of any
transfer agent, registrar and/or depositary (including DTC), and (viii) all
other costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this Section. It
is understood, however, that, except as specifically provided in this Section,
and Sections 5 and 9 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Shares by them and any advertising expenses connected with any offers
they may make.
(q) Not to sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, any Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or warrants or
other rights to purchase Common Stock or any other securities of the Company
that are substantially similar to Common Stock, or file or cause to be declared
effective a registration statement under the Act relating to the
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offer and sale of any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock or other rights to purchase Common
Stock or any other securities of the Company that are substantially similar to
Common Stock for a period of 90 days after the date hereof (the "LOCK-UP
PERIOD"), without the prior written consent of the Representatives, except for
(i) the registration of the Shares and the sales to the Underwriters pursuant to
this Agreement, (ii) issuances of Common Stock (x) upon the exercise of
outstanding options or warrants or pursuant to existing compensation plans, in
each case, as described in the Registration Statement and the Prospectus and (y)
upon the optional conversion by a holder of Series C senior mandatory
convertible preferred stock or 4-1/4% senior subordinated convertible debentures
due 2034, (iii) the issuance of employee stock options not exercisable during
the Lock-Up Period pursuant to stock option plans described in the Registration
Statement and the Prospectus, (iv) the registration of or sale to the
Underwriters of shares of Series D Senior Mandatory Convertible Preferred Stock
pursuant to the proposed underwriting agreement (the "PREFERRED STOCK
UNDERWRITING AGREEMENT") to be entered into by the Company, Citigroup and X.X.
Xxxxxx Securities Inc., as representatives of the several underwriters named
therein (for purposes of this clause (iv) only, "Series D Senior Mandatory
Convertible Preferred Stock" and "Underwriters" are used as defined in the
Preferred Stock Underwriting Agreement), (v) issuances of Common Stock to
non-employee directors in an aggregate amount not to exceed $1,000,000 for all
such issuances pursuant to this clause (v), so long as such non-employee
director shall be restricted from transferring any shares of such Common Stock
until the expiration of the 90-day period described in this paragraph, and (vi)
any issuance of Common Stock in connection with a bona fide acquisition of
assets or an entity, in each case, useful in the business of the Company and its
subsidiaries, not to exceed $60 million in the aggregate (valued at the time of
issuance) for all such issuances pursuant to this clause (vi), so long as any
transferee or recipient of such shares of Common Stock shall be restricted from
transferring any shares of such Common Stock until the expiration of the 90-day
period described in this paragraph. Notwithstanding the foregoing, if (1) during
the last 17 days of the 90-day restricted period the Company issues an earnings
release or material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the 90-day restricted period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the 90-day period, the restrictions imposed by this
paragraph shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event.
(r) To use its best efforts to cause the Shares to be listed on the
New York Stock Exchange.
(s) To maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the Common Stock.
(t) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by it prior to the time
of purchase and to satisfy all conditions precedent to the delivery of the
Shares.
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4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
As of the date hereof, the Company represents and warrants to, and
agrees with, the Underwriters that:
(a) The Registration Statement has been declared effective under the
Act; no stop order of the Commission preventing or suspending the use of the
Preliminary Prospectus or the effectiveness of the Registration Statement has
been issued and no proceedings for such purpose have been instituted or, to the
Company's knowledge after due inquiry, are threatened by the Commission; the
Preliminary Prospectus, at the time of filing thereof, complied in all material
respects to the requirements of the Act; the Registration Statement complied
when it became effective, complies and will comply, at the time of purchase and
any additional time of purchase, in all material respects with the requirements
of the Act and the Prospectus will comply, as of its date and at the time of
purchase and any additional times of purchase, in all material respects with the
requirements of the Act; the conditions to the use of Form S-3 have been
satisfied; the Registration Statement did not when it became effective, does not
and will not, at the time of purchase and any additional time of purchase,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and the Prospectus will not, as of its date and at the time of
purchase and any additional time of purchase, contain an untrue statement of a
material fact or omit to state 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; provided, however, that the Company makes
no warranty or representation with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in conformity with
information concerning an Underwriter and furnished in writing by or on behalf
of such Underwriter through you to the Company expressly for use in the
Registration Statement or the Prospectus; the documents incorporated by
reference in the Preliminary Prospectus, the Registration Statement and the
Prospectus, at the time they became effective or were filed with the Commission,
complied in all material respects with the requirements of the Act or the
Exchange Act, as applicable; and the Company has not distributed and will not
distribute any offering material in connection with the offering or sale of the
Shares other than the Registration Statement, the Preliminary Prospectus and the
Prospectus.
(b) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Registration Statement
and the Prospectus and to own, lease and operate its properties, and each is
duly qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
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(c) As of the date of this Agreement, the Company has an authorized
and outstanding capitalization as set forth under the heading "Actual" in the
section of the Registration Statement and the Prospectus entitled
"Capitalization" and, as of the time of purchase the Company shall have an
authorized and outstanding capitalization as set forth under the heading "As
adjusted for this offering" in the section of the Registration Statement and the
Prospectus entitled "Capitalization"; all outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(d) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of the Company. All of the outstanding shares
of capital stock of each of the subsidiaries of the Company have been duly
authorized and validly issued and are fully paid and non-assessable, and are
owned by the Company, directly or indirectly through one or more subsidiaries,
free and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature (each, a "LIEN"), except for (i) Liens disclosed in the
Registration Statement or the Prospectus and (ii) such other Liens which could
not reasonably be expected to have a Material Adverse Effect.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The Shares have been duly authorized and, when issued and
delivered against payment therefor as provided herein, will have been duly and
validly issued, fully paid and non-assessable and free of statutory and
contractual preemptive rights, resale rights, rights of first refusal and
similar rights. The capital stock of the Company, including the Shares, will
conform in all material respects to the description thereof contained in the
Registration Statement and the Prospectus.
(g) Neither the Company nor any of its subsidiaries is (x) in
violation of its respective charter or by-laws or (y) in default in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound, which
violation or default, in the case of this clause (y), could reasonably be
expected to have a Material Adverse Effect.
(h) The execution, delivery and performance of this Agreement by the
Company, compliance by the Company with all provisions hereof, the issuance and
sale of the Shares and the consummation of the transactions contemplated hereby
and by the Registration Statement and the Prospectus (including the related
financing transactions) will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (other than registration of the Shares under the
Act, which has been or will be effected, and except such as may be required
under the securities or Blue Sky laws of the various states or under the rules
and regulations of the NASD), (ii) conflict with or constitute a breach of any
of the terms or provisions of, or a default under, the charter or by-laws of the
Company or any of its subsidiaries, (iii) conflict with or constitute a breach
of any of the terms or provisions of,
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or a default under any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or their respective
property is bound, which violation or default could reasonably be expected to
have a Material Adverse Effect, (iv) violate or conflict with any applicable law
or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any of its
subsidiaries or their respective property, which violation or conflict could
reasonably be expected to have a Material Adverse Effect, (v) result in the
imposition or creation of (or the obligation to create or impose) a Lien under,
any agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or their respective
property is bound which Lien could reasonably be expected to have a Material
Adverse Effect, or (vi) result in the termination, suspension or revocation of
any Authorization (as defined below) of the Company or any of its subsidiaries
or result in any other impairment of the rights of the holder of any such
Authorization which termination, suspension or revocation could reasonably be
expected to have a Material Adverse Effect.
(i) Except as set forth in the Registration Statement and the
Prospectus, (i) no person has the right, contractual or otherwise, to cause the
Company to issue or sell to it any shares of Common Stock or shares of any other
capital stock or other equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or other rights to
purchase any shares of Common Stock or shares of any other capital stock or
other equity interests of the Company, and (iii) no person has the right to act
as an underwriter or as a financial advisor to the Company in connection with
the offer and sale of the Shares, in the case of each of the foregoing clauses
(i), (ii) and (iii), whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby or
otherwise; no person has the right, contractual or otherwise, to cause the
Company to register under the Act any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, or to include any
such shares or interests in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby or
otherwise.
(j) Except as set forth in the Registration Statement and the
Prospectus, there are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is or could be a party or to
which any of their respective property is or could be subject, which might
result, singly or in the aggregate, in a Material Adverse Effect. All legal or
governmental proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses, agreements, leases or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have been
so described or filed as required.
(k) Except as set forth in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants
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("ENVIRONMENTAL LAWS"), or any provisions of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder, except for such
violations which, singly or in the aggregate, would not have a Material Adverse
Effect.
(l) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any Authorization, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect.
(m) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Company and
its subsidiaries is in compliance with all the terms and conditions thereof and
with the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; except where such failure to be valid and
in full force and effect or to be in compliance, the occurrence of any such
event or the presence of any such restriction would not, singly or in the
aggregate, have a Material Adverse Effect.
(n) The accountants, PricewaterhouseCoopers LLP, who have certified
the consolidated financial statements and supporting schedules as of December
31, 2004 and December 31, 2003 and for each of the three years in the period
ended December 31, 2004, included and incorporated by reference in the
Registration Statement and the Prospectus, are independent public accountants
with respect to the Company, as required by the Act and the Exchange Act.
(o) The historical financial statements, together with related
schedules and notes forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated in the
Registration Statement and the Prospectus at the respective dates or for the
respective periods to which they apply; such statements and related schedules
and notes have been prepared in compliance with the requirements of the Act and
in accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; the other
financial and statistical information and data set forth in the Registration
Statement and the
11
Prospectus (and any amendment or supplement thereto) are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company; there are no
financial statements that are required to be included in the Registration
Statement and the Prospectus that are not included as required; and the Company
and its subsidiaries do not have any liabilities or obligations, direct or
contingent (including any off-balance sheet obligations) that would result in a
Material Adverse Effect, not disclosed in the Registration Statement and the
Prospectus.
(p) The Company is not, and, after giving effect to the offering and
sale of the Shares and the application of the net proceeds thereof as described
in the Prospectus, will not be, an "investment company," as such term is defined
in the Investment Company Act of 1940, as amended.
(q) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act has imposed
(or has informed the Company that it is considering imposing) any condition
(financial or otherwise), other than any condition requiring the consummation of
the Refinancing Plan (as described in the Prospectus) or any component thereof,
on the Company's retaining any rating assigned to the Company or any securities
of the Company.
(r) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
other than as set forth in the Registration Statement or the Prospectus, (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not occurred any transaction
which is material to the Company and its subsidiaries, taken as a whole, (iii)
there has not been any change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries, (iv) there has not been any dividend or
distribution of any kind declared, paid or made on the capital stock of the
Company and (v) neither the Company nor any of its subsidiaries has incurred any
material liability or obligation, direct or contingent.
(s) The Company has obtained for the benefit of the Underwriters the
agreement (a "LOCK-UP AGREEMENT"), in the form previously agreed upon by the
Company and the Representatives, of each of its directors and officers and each
stockholder named in Exhibit A hereto.
(t) The Company and each of its subsidiaries has good and marketable
title to all property (real and personal) described in the Registration
Statement and in the Prospectus as being owned by each of them, free and clear
of all Liens, except for (i) Liens disclosed in the Registration Statement or
the Prospectus and (ii) such other Liens which could not reasonably be expected
to have a Material Adverse Effect; all the material property described in the
Registration Statement and the Prospectus as being
12
held under lease by the Company or a subsidiary is held thereby under valid,
subsisting and enforceable leases with such exceptions as would not have a
Material Adverse Effect.
(u) Neither the Company nor any of its subsidiaries is engaged in
any unfair labor practice; except for matters which would not, individually or
in the aggregate, have a Material Adverse Effect, (i) there is (A) no unfair
labor practice complaint pending or, to the Company's knowledge after due
inquiry, threatened against the Company or any of its subsidiaries before the
National Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under collective bargaining agreements is pending or
threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to
the Company's knowledge after due inquiry, threatened against the Company or any
of its subsidiaries and (C) no union representation dispute currently existing
concerning the employees of the Company or any of its subsidiaries, and (ii) to
the Company's knowledge after due inquiry, (A) no union organizing activities
are currently taking place concerning the employees of the Company or any of its
subsidiaries and (B) there has been no violation of any federal, state, local or
foreign law relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws or any provision of the Employee
Retirement Income Security Act of 1974 ("ERISA") or the rules and regulations
promulgated thereunder concerning the employees of the Company or any of its
subsidiaries.
(v) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(w) The Company has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-14 and 15d-14 under the
Exchange Act); such disclosure controls and procedures are designed to ensure
that material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company's Chief Executive Officer and its
Chief Financial Officer by others within those entities; the Company's auditors
and the Audit Committee of the Board of Directors have been advised of: (i) any
significant deficiencies in the design or operation of internal controls which
could adversely affect the Company's ability to record, process, summarize, and
report financial data; and (ii) any fraud, whether or not material, that
involves management or other employees who have a role in the Company's internal
controls; any material weaknesses in internal controls have been identified for
the Company's auditors; and since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses.
13
(x) The operations of the Company and its subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the "MONEY LAUNDERING LAWS") and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened that would have a Material Adverse
Effect.
(y) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate
(as defined in Rule 405 of Regulation C of the Act) of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department ("OFAC"); and
the Company will not directly or indirectly use the proceeds of the Offering, or
lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(z) Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge after due inquiry, any employee or agent of the Company or
its subsidiaries has made any payment of funds of the Company or its
subsidiaries or received or retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a character
required to be disclosed in the Registration Statement or the Prospectus.
(aa) Neither the Company nor any of its subsidiaries nor, to the
best knowledge of the Company, any of their respective directors, officers,
affiliates or controlling persons has taken, directly or indirectly, any action
designed, or which has constituted or might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares.
(bb) To the Company's knowledge after due inquiry, there are no
affiliations or associations between any member of the NASD and any of the
Company's officers, directors or 5% or greater securityholders, except as set
forth in the Registration Statement and the Prospectus.
(cc) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be deemed to
be a representation and warranty by the Company to the Underwriters as to the
matters covered thereby.
(dd) No action has been taken and no law, statute, rule or
regulation or order has been enacted, adopted or issued by any governmental
agency or body which
14
prevents the execution, delivery and performance of this Agreement, the issuance
of the Shares, or suspends the sale of the Shares in any jurisdiction referred
to in Section 3(h); and no injunction, restraining order or other order or
relief of any nature by a federal or state court or other tribunal of competent
jurisdiction has been issued with respect to the Company or any of its
subsidiaries which would prevent or suspend the issuance or sale of the Shares
in any jurisdiction referred to in Section 3(h).
The Company acknowledges that the Underwriters and, for purposes of
the opinions to be delivered to the Underwriters pursuant to Section 6 hereof,
counsel to the Company and counsel to the Underwriters, will rely upon the
accuracy and truth of the foregoing representations and hereby consents to such
reliance.
5. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, its officers, affiliates and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any
reasonable legal or other expenses incurred in connection with investigating or
defending any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company becoming effective after the
date of this Agreement) or in a Prospectus (the term Prospectus for the purpose
of this Section 5 being deemed to include any Preliminary Prospectus, the
Prospectus and the Prospectus as amended or supplemented by the Company) or
caused by any omission or alleged omission to state a material fact required to
be stated in either such Registration Statement or such Prospectus or necessary
to make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to such Underwriter furnished in writing to the Company by
such Underwriter for use in such Registration Statement or such Prospectus.
(b) The Underwriters, severally and not jointly, agree to indemnify
and hold harmless the Company and its directors and officers who have signed the
Registration Statement and each person, if any, who controls (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) the Company, to the
same extent as the foregoing indemnity from the Company to each Underwriter but
only with reference to information relating to such Underwriter furnished in
writing to the Company by such Underwriter expressly for use in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or a Prospectus. The Company acknowledges that
the statements set forth in (i) the last paragraph of the cover page of the
Prospectus regarding delivery of the Shares and (ii) under the heading
"Underwriting," (A) the third paragraph with respect to commissions and
discounts, (B) the tenth, eleventh and twelfth paragraphs with respect to price
stabilization and short positions and (C) the fifteenth paragraph with respect
to a
15
prospectus in electronic format and Internet distributions, in the Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the Prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 5(a) or 5(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all reasonable fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 5(a) and 5(b), the Underwriters shall not be
required to assume the defense of such action pursuant to this Section 5(c), but
may employ separate counsel and participate in the defense thereof, but the fees
and expenses of such counsel, except as provided below, shall be at the expense
of the Underwriters). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both 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 it which 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 on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
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 fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such
reasonable fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by the Representatives, in the case of the
parties indemnified pursuant to Section 5(a), and by the Company, in the case of
parties indemnified pursuant to Section 5(b). The indemnifying party shall not
be obligated to indemnify and hold harmless any indemnified party from and
against any and all losses, claims, damages, liabilities and judgments by reason
of any settlement of any action effected without the indemnifying party's
written consent. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement or compromise of, or consent to
the entry of judgment with respect to, any pending or threatened action in
respect of which the indemnified party is or could have been a party and
indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
16
(d) To the extent the indemnification provided for in this Section 5
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters on the other hand, from the
offering of the Shares or (ii) if the allocation provided by clause 5(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 5(d)(i) above
but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares (after underwriting discounts and commissions,
but before deducting expenses) received by the Company, and the total
underwriting discounts and commissions received by the Underwriters bear to the
aggregate public offering price of the Shares, in each case as set forth in this
Agreement. The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 5(d) were determined by pro
rata allocation even if the Underwriters were treated as one entity for such
purpose or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 5, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total discounts and commissions received by such Underwriter exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 5(d) are several in
proportion to their respective underwriting commitments and not joint.
17
(e) The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
6. CONDITIONS OF UNDERWRITER'S OBLIGATIONS.
The obligations of the Underwriters to purchase the Shares under
this Agreement are subject to the satisfaction of each of the following
conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct at the time of purchase and, if
applicable, at the additional time of purchase, with the same force and effect
as if made at the time of purchase and, if applicable, at the additional time of
purchase.
(b) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal of, or
of any review (or of any potential or intended review) for a possible change
that does not indicate the direction of the possible change in, any rating of
the Company or any securities of the Company (including, without limitation, the
placing of any of the foregoing ratings on credit watch with negative or
developing implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term is defined
for purposes of Rule 436(g)(2) under the Act and (ii) there shall not have
occurred any change, nor shall any notice have been given of any potential or
intended negative change, in the outlook for any rating of the Company or any
securities of the Company by any such rating organization.
(c) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 3(a) of this
Agreement and no amendment or supplement to the Registration Statement or the
Prospectus, including documents deemed to be incorporated by reference therein,
shall have been filed to which you object in writing.
(d) Prior to the time of purchase, and, if applicable, the
additional time of purchase, (i) no stop order with respect to the effectiveness
of the Registration Statement shall have been issued under the Act or
proceedings initiated under Section 8(d) or 8(e) of the Act.
(e) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, other than as
set forth in the Registration Statement or the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any
18
of its subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 6(e)(i),
6(e)(ii) or 6(e)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Registration Statement and the Prospectus.
(f) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, a certificate dated the time of
purchase or the additional time of purchase, as the case may be, signed by the
Chief Financial Officer and the Treasurer of the Company, confirming the matters
set forth in Sections 6(a) and 6(b) of this Agreement and stating that (i) they
have reviewed the Registration Statement and the Prospectus and (ii) the Company
has complied with all the agreements and satisfied all of the conditions herein
contained and required to be complied with or satisfied on or prior to the time
of purchase or the additional time of purchase as the case may be.
(g) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, an opinion (satisfactory to you
and counsel for the Underwriters), dated the time of purchase or the additional
time of purchase, as the case may be, of Xxxxxx & Xxxxxxx LLP, counsel for the
Company, in the form previously agreed to by Xxxxxx & Xxxxxxx LLP and counsel
for the Underwriters and an opinion of Xxxxxx Xxxx, Executive Vice President,
General Counsel and Corporate Secretary of the Company, in the form previously
agreed to by the Company and counsel for the Underwriters.
The opinion of Xxxxxx & Xxxxxxx LLP described in Section 6(g) above
shall be rendered to you at the request of the Company and shall so state
therein.
(h) The Underwriters shall have received at the time of purchase
and, if applicable, at the additional time of purchase, an opinion, dated the
time of purchase or the additional time of purchase, as the case may be, of
Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, in form and substance
reasonably satisfactory to the Underwriters.
(i) The Underwriters shall have received, at the time this Agreement
is executed and at the time of purchase and, if applicable, the additional time
of purchase, letters dated, respectively, the date hereof, the time of purchase
and, if applicable, the additional time of purchase, in form and substance
satisfactory to the Underwriters from PricewaterhouseCoopers LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to the Underwriters with
respect to the financial statements and certain financial information contained
and incorporated by reference in the Registration Statement and the Prospectus.
(j) The Shares shall have been approved for listing on the New York
Stock Exchange, subject only to notice of issuance at or prior to the time of
purchase or the additional time of purchase, as the case may be.
19
(k) You shall have received signed Lock-up Agreements referred to in
Section 4(s) hereof.
(l) The Company shall not have failed at or prior to the time of
purchase or the additional time of purchase, as the case may be, to perform or
comply with any of the agreements herein contained and required to be performed
or complied with by the Company at or prior to the time of purchase or the
additional time of purchase, as the case may be.
7. EFFECTIVENESS OF AGREEMENT AND TERMINATION.
This Agreement shall become effective upon the execution and
delivery of this Agreement by the parties hereto.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of the Representatives if (x)
since the time of the execution of this Agreement or the earlier respective
dates as of which information is given in the Registration Statement and the
Prospectus (exclusive of any amendments or supplements thereto), there has been
any material adverse change or any development involving a prospective material
adverse change in the business, properties, management, financial condition or
results of operation of the Company and its subsidiaries taken as a whole, which
would, in each of the Representatives' judgment, make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Registration Statement and the
Prospectus (exclusive of any amendments or supplements thereto), or (y) there
shall have occurred: (i) any attack on, outbreak or escalation of hostilities or
act of terrorism involving the United States, any declaration of war by Congress
or any other national or international calamity or emergency if, in each of the
Representatives' judgment, the effect of any such attack, outbreak, escalation,
act, declaration, calamity or emergency makes it impractical or inadvisable to
proceed with the public offering or the delivery of the Shares, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in each of the Representatives'
judgment materially and adversely affects, or will materially and adversely
affect, the business, prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, (v) the declaration of a
banking moratorium by either federal or New York State authorities, (vi) any
change in United States or international financial, political or economic
conditions or currency exchange rates or exchange controls as would, in each of
the Representatives' judgment, be likely to prejudice materially the success of
the proposed issue, sale or distribution of the Shares, whether in the primary
market or in respect of dealings in the secondary market
20
or (vii) any major disruption of settlements of securities or clearance services
in the United States.
Subject to Section 6 hereof and the second paragraph of this Section
7, if any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares which it or they have agreed to purchase hereunder on such date and
the aggregate number of the Firm Shares which such defaulting Underwriter or
Underwriters, as the case may be, agreed but failed or refused to purchase is
not more than one-tenth of the aggregate number of Firm Shares to be purchased
on such date by all Underwriters, each non-defaulting Underwriter shall be
obligated severally, in the proportion which the number of Firm Shares set forth
opposite its name in Schedule A bears to the aggregate number of Firm Shares
which all the non-defaulting Underwriters have agreed to purchase, or in such
other proportion as you may specify, to purchase the Firm Shares which such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed or
refused to purchase on such date; provided that in no event shall the aggregate
number of Firm Shares which any Underwriter has agreed to purchase pursuant to
Section 1 hereof be increased pursuant to this Section 7 by an amount in excess
of one-ninth of such number of Firm Shares without the written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or refuse to purchase
the Firm Shares and the aggregate number of Firm Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased by all Underwriters and arrangements satisfactory to the
Underwriters and the Company for purchase of such the Firm Shares are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter and the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the time of purchase, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 7 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
8. NOTICES.
Notices given pursuant to any provision of this Agreement shall be
addressed as follows: (i) if to the Company, to 00000 Xxxxx Xxxxxxxx-Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, (000) 000-0000, Attention: Xxxxxx Xxxx
and (ii) if to the Underwriters, c/o Citigroup Global Markets Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention: General Counsel, or in
any case to such other address as the person to be notified may have requested
in writing.
21
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS.
The respective indemnities, contribution agreements, representations
and warranties and agreements of the Company and the Underwriters set forth in
or made pursuant to this Agreement shall remain operative and in full force and
effect, and will survive the issuance and delivery of the Shares, regardless of
(i) any investigation, or statement as to the results thereof, made by or on
behalf of the Underwriters, the officers, directors or affiliates of the
Underwriters, any person who controls the Underwriters within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of
the Company, the officers who have signed the Registration Statement, directors
of the Company, or any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, (ii) acceptance of the
Shares and payment for them hereunder and (iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 7), the Company agrees to reimburse the
Underwriters for all reasonable out-of-pocket expenses (including the reasonable
fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 3(p) hereof. The Company also
agrees to reimburse the Underwriters and its officers, directors and each
person, if any, who controls the Underwriters within the meaning of Section 15
of the Act or Section 20 of the Exchange Act for any and all reasonable fees and
expenses (including without limitation the reasonable fees and expenses of
counsel) incurred by them in connection with enforcing their rights under this
Agreement (including without limitation its rights under Section 5).
10. SUCCESSORS AND ASSIGNS.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the directors of the Company and their respective successors
and assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include a purchaser of any of the Shares
from the Underwriters merely because of such purchase.
11. GOVERNING LAW.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
12. SUBMISSION TO JURISDICTION.
The Company hereby submits to the non-exclusive jurisdiction of any
court of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York with
respect to any
22
claim, counterclaim or dispute of any kind or nature whatsoever arising out of
or in any way relating to this Agreement, directly or indirectly (a "CLAIM"),
which courts shall have jurisdiction over the adjudication of such matters, and
the Company consents to personal service with respect thereto. The Company
hereby consents to personal jurisdiction, service and venue in any court in
which any Claim is brought by any third party against the Representatives, the
other Underwriters or any indemnified party. Each of the Representatives, the
other Underwriters and the Company (on its behalf and, to the extent permitted
by applicable law, on behalf of its stockholders and affiliates) waives all
right to trial by jury in any action, proceeding or counterclaim (whether based
upon contract, tort or otherwise) in any way arising out of or relating to this
Agreement. The Company agrees that a final judgment in any such action,
proceeding or counterclaim brought in any such court shall be conclusive and
binding upon the Company and may be enforced in any other courts to the
jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
13. COUNTERPARTS.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
14. MISCELLANEOUS.
UBS, an indirect, wholly owned subsidiary of UBS AG, is not a bank
and is separate from any affiliated bank, including any U.S. branch or agency of
UBS AG. Because UBS is a separately incorporated entity, it is solely
responsible for its own contractual obligations and commitments, including
obligations with respect to sales and purchases of securities. Securities sold,
offered or recommended by UBS are not deposits, are not insured by the Federal
Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are
not otherwise an obligation or responsibility of a branch or agency.
A lending affiliate of UBS may have lending relationships with
issuers of securities underwritten or privately placed by UBS. To the extent
required under the securities laws, prospectuses and other disclosure documents
for securities underwritten or privately placed by UBS will disclose the
existence of any such lending relationships and whether the proceeds of the
issue will be used to repay debts owed to affiliates of UBS.
23
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the Underwriters.
Very truly yours,
ALLIED WASTE INDUSTRIES, INC.
By:__________________________________
[SIGNATURES CONTINUE ON NEXT PAGE]
The foregoing Underwriting
Agreement is hereby confirmed and
accepted as of the date first above
written by Citigroup Global Markets
Inc. and UBS Securities LLC on
behalf of the Underwriters.
CITIGROUP GLOBAL MARKETS INC.
By:_____________________________
Name:
Title:
UBS SECURITIES LLC
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
SCHEDULE A
UNDERWRITERS
Number of
Underwriter Firm Shares
----------------------------------- -----------
Citigroup Global Markets Inc. [ ]
UBS Securities LLC [ ]
Banc of America Securities LLC [ ]
BNP Paribas Securities Corp. [ ]
Calyon Securities (USA) [ ]
Scotia Capital [ ]
Wachovia Capital Markets LLC [ ]
Total ............................. [ ]
SCHEDULE B
SUBSIDIARIES(1)
"-" Indicates Equity Interest Only
3003304 Nova Scotia Company
572060 B.C. Ltd.
AAWI, Inc.
Abilene Landfill TX, LP
Action Disposal, Inc.
Xxxxxx Landfill, Inc.
ADS of Illinois, Inc.
ADS, Inc.
Agri-tech, Inc. of Oregon
Alabama Recycling Services, Inc.
Alaska Street Associates, Inc.
Albany-Lebanon Sanitation, Inc.
Allied Acquisition Pennsylvania, Inc.
Allied Acquisition Two, Inc.
Allied Enviro Engineering, Inc. (TX corp.)
Allied Enviroengineering, Inc. (DE corp.)
Allied Gas Recovery Systems, L.L.C.
Allied Nova Scotia, Inc.
Allied Services, LLC
Allied Transfer Systems of New Jersey, LLC
Allied Waste Alabama, Inc.
Allied Waste Company, Inc.
Allied Waste Hauling of Georgia, Inc.
Allied Waste Holdings (Canada) Ltd.
Allied Waste Industries (Arizona), Inc.
Allied Waste Industries (New Mexico), Inc.
Allied Waste Industries (Southwest), Inc.
Allied Waste Industries of Georgia, Inc.
Allied Waste Industries of Illinois, Inc.
Allied Waste Industries of Northwest Indiana, Inc.
Allied Waste Industries of Tennessee, Inc.
Allied Waste Landfill Holdings, Inc.
Allied Waste North America, Inc. *
Allied Waste of California, Inc.
Allied Waste of Long Island, Inc.
Allied Waste of New Jersey, Inc.
Allied Waste of New Jersey-New York, LLC
Allied Waste Rural Sanitation, Inc.
Allied Waste Services, Inc. (TX corp.)
Allied Waste Sycamore Landfill, LLC
Allied Waste Systems (Texas) Inc.
Allied Waste Systems Holdings, Inc.
Allied Waste Systems of New Jersey, LLC
Allied Waste Systems, Inc. (DE corp.) *
Allied Waste Transportation, Inc. *
American Disposal Services of Illinois, Inc.
American Disposal Services of Kansas, Inc.
American Disposal Services of Missouri, Inc.
American Disposal Services of New Jersey, Inc.
American Disposal Services of West Virginia, Inc.
American Disposal Services, Inc.
American Disposal Transfer Services of Illinois, Inc.
American Materials Recycling Corp.
American Sanitation, Inc.
American Transfer Company, Inc.
Xxxxxxxx Regional Landfill, LLC
Anson County Landfill NC, LLC
Apache Junction Landfill Corporation
Arbor Hills Holdings L.L.C. -
Area Disposal Inc.
Atlantic Waste Holding Company, Inc.
Attwoods Holdings GmbH
Attwoods of North America, Inc.
Attwoods Umweltschutz GmbH
---------------------
(1) Any updates since April 2003?
Automated Modular Systems, Inc.
Autoshred, Inc.
AWIN Leasing Company, Inc.
AWIN Leasing II, LLC
AWIN Management, Inc.
Belleville Landfill, Inc.
BFGSI Series 1997-A Trust -
BFGSI, LLC -
BFI Argentina, S.A.
BFI Atlantic GmbH
BFI Atlantic, Inc.
BFI Energie Inc.
BFI Energy Systems of Albany, Inc.
BFI Energy Systems of Boston, Inc.
BFI Energy Systems of Delaware County, Inc.
BFI Energy Systems of Essex County, Inc.
BFI Energy Systems of Hempstead, Inc.
BFI Energy Systems of Niagara II, Inc.
BFI Energy Systems of Niagara, Inc.
BFI Energy Systems of Plymouth, Inc.
BFI Energy Systems of SEMASS, Inc.
BFI Energy Systems of Southeastern Connecticut, Inc.
BFI Energy Systems of Southeastern Connecticut, L.P.
BFI International, Inc.
BFI of Xxxxx, Inc.
BFI Ref-Fuel, Inc.
BFI Services Group, Inc.
BFI Trans River (GP), Inc.
BFI Trans River (LP), Inc.
BFI Transfer Systems of Alabama, LLC
BFI Transfer Systems of DC, LLC
BFI Transfer Systems of Georgia, LLC
BFI Transfer Systems of Maryland, LLC
BFI Transfer Systems of Massachusetts, LLC
BFI Transfer Systems of Mississippi, LLC
BFI Transfer Systems of New Jersey, Inc.
BFI Transfer Systems of Pennsylvania, LLC
BFI Transfer Systems of Texas, LP
BFI Transfer Systems of Virginia, LLC
BFI Waste Services of Indiana, LP
BFI Waste Services of Massachusetts, LLC
BFI Waste Services of Pennsylvania, LLC
BFI Waste Services of Tennessee, LLC
BFI Waste Services of Texas, LP
BFI Waste Services, LLC
BFI Waste Systems of Alabama, LLC
BFI Waste Systems of Arkansas, LLC
BFI Waste Systems of Georgia, LLC
BFI Waste Systems of Indiana, LP
BFI Waste Systems of Kentucky, LLC
BFI Waste Systems of Louisiana, LLC
BFI Waste Systems of Massachusetts, LLC
BFI Waste Systems of Mississippi, LLC
BFI Waste Systems of Missouri, LLC
BFI Waste Systems of New Jersey, Inc.
BFI Waste Systems of North America, Inc.
BFI Waste Systems of North Carolina, LLC
BFI Waste Systems of Oklahoma, LLC
BFI Waste Systems of Pennsylvania, LLC
BFI Waste Systems of South Carolina, LLC
BFI Waste Systems of Tennessee, LLC
BFI Waste Systems of Texas, LP
BFI Waste Systems of Virginia, LLC
Bio-Med of Oregon, Inc.
Blue Ridge Landfill General Partnership
Xxxxxxx Landfill, Inc.
Brenham Total Roll-Offs, LP
Brickyard Disposal & Recycling, Inc.
Bridgeton Landfill, LLC
Xxxxxxxx-Xxxxxx Financial Services, Inc.
Xxxxxxxx-Xxxxxx Industries Argentina, X.X.
Xxxxxxxx-Xxxxxx Industries Asia Pacific, Inc.
Xxxxxxxx-Xxxxxx Industries Chemical Services, Inc.
Xxxxxxxx-Xxxxxx Industries de Mexico, S.A. de X.X.
Xxxxxxxx-Xxxxxx Industries Europe, Inc.
Xxxxxxxx-Xxxxxx Industries Ltd.
Xxxxxxxx-Xxxxxx Industries of California, Inc.
Xxxxxxxx-Xxxxxx Industries of Florida, Inc.
Xxxxxxxx-Xxxxxx Industries of Illinois, Inc.
Xxxxxxxx-Xxxxxx Industries of New Jersey, Inc.
Xxxxxxxx-Xxxxxx Industries of New York, Inc.
Xxxxxxxx-Xxxxxx Industries of Ohio, Inc.
Xxxxxxxx-Xxxxxx Industries of Puerto Rico, Inc.
Xxxxxxxx-Xxxxxx Industries of Tennessee, Inc.
Xxxxxxxx-Xxxxxx Industries, Inc. (DE) *
Xxxxxxxx-Xxxxxx Industries, Inc. (MA)
Xxxxxxxx-Xxxxxx Services, Inc.
Xxxxxxxx-Xxxxxx, Inc.
Xxxxxxxxx Landfill, LLC
Brunswick Waste Management Facility, LLC
Xxxxxxx Trash Service, Inc.
Xxxxxx County Landfill, LLC
X.X. Xxxxx & Sons, Inc.
Camelot Landfill TX, LP
Capitol Recycling and Disposal, Inc.
CC Landfill, Inc.
CCAI, Inc.
CDF Consolidated Corporation
CECOS International, Inc.
Celina Landfill, Inc.
Central Sanitary Landfill, Inc.
Xxxxxxxx Development of North Carolina, Inc.
Champion Recycling, Inc.
Charter Evaporation Resource Recovery Systems
Cherokee Run Landfill, Inc.
Chestnut Equipment Leasing Corp.
Xxxxxxx Landfill, LLC
Citizens Disposal, Inc.
City Garbage, Inc.
City-Star Services, Inc.
Clarkston Disposal, Inc.
Cocopah Landfill, Inc.
Commercial Reassurance Limited
Congress Development Co. -
Consolidated Processing, Inc.
Containerized, Inc. of Texas
Copper Mountain Landfill, Inc.
Corvallis Disposal Co.
County Disposal (Ohio), Inc.
County Disposal, Inc.
County Landfill, Inc.
County Line Landfill Partnership
Xxxxxxxx Xxxxx Landfill, LLC
Crow Landfill TX L.P.
D & D Garage Services, Inc.
D & L Disposal L.L.C.
Dallas Disposal Co.
Delta Container Corporation
Delta Dade Recycling Corp.
Delta Paper Stock, Co.
Delta Recycling Corp.
Delta Resources Corp.
Delta Site Development Corp.
Delta Tall Pines Corp.
Delta Transfer Corp.
Delta Waste Corp.
Xxxxxxx Waste Systems II, Inc.
Denver RL North, Inc.
Xxxxxxxx, Inc.
Xxxxxxx Industries, Inc.
DTC Management, Inc.
E Leasing Company, LLC
Eagle Industries Leasing, Inc.
Eastern Disposal, Inc.
ECDC Environmental of Humbolt County, Inc.
ECDC Environmental, L.C.
ECDC Holdings, Inc.
ECDC Logistics, LLC
Ecosort, L.L.C. -
Elder Creek Transfer & Recovery, Inc.
Xxxxx County Landfill TX, L.P.
Xxxxx Xxxxx Landfill MO, LLC
Environmental Development Corp. (DE)
Environmental Development Corp. (P.R.)
Environmental Reclamation Company
Environtech, Inc.
Envotech-Illinois, L.L.C.
EOS Environmental, Inc.
Evergreen Scavenger Service, Inc.
Evergreen Scavenger Service, L.L.C.
F. P. XxXxxxxx Rubbish Removal, Inc.
Flint Hill Road, LLC
Foothills Sanitary Landfill, Inc. -
Forest View Landfill, LLC
Fort Worth Landfill TX, LP
Forward, Inc.
Xxxx Xxxxxxx Trucking Co., Inc.
Frontier Waste Services (Colorado), LLC
Frontier Waste Services (Utah), LLC
Frontier Waste Services of Louisiana, L.L.C.
Frontier Waste Services, L.P.
G. Xxx Xxxxx Disposal Inc.
Galveston County Landfill TX, XX
Xxxxxxxx Brothers, Inc.
Xxxxxxxx Recycling and Transfer Station Co., Inc.
Gateway Landfill, LLC
GEK, Inc.
General Refuse Rolloff Corp.
General Refuse Service of Ohio, LLC
Georgia Recycling Services, Inc.
Xxxxxxxx Recycling Corp.
Global Indemnity Assurance Company
Golden Triangle Landfill TX, LP
Golden Waste Disposal, Inc.
Grants Pass Sanitation, Inc.
Great Lakes Disposal Services, Inc.
Great Plains Landfill OK, LLC
Green Valley Landfill General Partnership
Greenridge Reclamation, LLC
Greenridge Waste Services, LLC
Greenwood Landfill TX, LP
Gulf West Landfill TX, LP
Gulfcoast Waste Service, Inc.
H Leasing Company, LLC
Harland's Sanitary Landfill, Inc.
Hollister Landfill, Inc.
Houston Towers TX, LP
Illiana Disposal Partnership
Illinois Landfill, Inc.
Illinois Recycling Services, Inc.
Imperial Landfill, Inc.
Independent Trucking Company
Xxxxxx Waste Disposal, Inc.
International Disposal Corp. of California
Itasca Landfill TX, XX
Xxxxxxx County Landfill, LLC
Jefferson City Landfill, LLC
Xxxxxx Disposal, Inc.
Xxx Xx Xxxx & Sons, Inc.
Xxxxx Road Landfill and Recycling, Ltd.
Kankeekee RDF Landfill, Inc.
Xxxxxx Canyon Landfill Company
Xxxxxx Drop Box, Inc.
Kent-Meridian Disposal Company -
Kerrville Landfill TX, LP
Key Waste Indiana Partnership
La Canada Disposal Company, Inc.
Lake County C & D Development Partnership
Lake Xxxxxx Landfill, Inc.
Xxxxxxx Sunrise Sanitation Corporation
Xxx County Landfill SC, LLC
Xxx County Landfill, Inc.
Lemons Landfill, LLC
Lewisville Landfill TX, LP
Liberty Waste Holdings, Inc.
Liberty Waste Services Limited , L.L.C.
Liberty Waste Services of Illinois, L.L.C.
Liberty Waste Services of XxXxxx, L.L.C.
Local Sanitation of Rowan County, L.L.C.
Loop Recycling, Inc.
Loop Transfer, Incorporated
Xxxxx Xxxxx & Son, Inc., Sanitation Contractors
Macomb Landfill, Inc.
Mamaroneck Truck Repair, Inc.
Manumit of Florida, Inc.
Xxxxxx Resource Recovery, LLC -
Mars Road TX, XX
XxXxxxx Road Landfill TX, XX
XxXxxxx Waste Systems, Inc.
Medical Disposal Services, Inc.
Mesa Disposal, Inc.
Mesquite Landfill TX, LP
Metro Enviro Transfer, LLC
Mexia Landfill TX, LP
Minneapolis Refuse, Inc. -
Mirror Nova Scotia Limited
Mississippi Waste Paper Company
MJS Associates, Inc.
Xxxxxxxx Landfill General Partnership
Mountain Home Disposal, Inc.
N Leasing Company, LLC
NationsWaste Catawba Regional Landfill, Inc.
NationsWaste, Inc.
Ncorp, Inc.
New Xxxxxx Landfill Company, Inc.
New York Waste Services, LLC
Newco Waste Systems of New Jersey, Inc.
Xxxxxx County Landfill Partnership
Noble Road Landfill, Inc.
Northeast Landfill, LLC
Northwest Waste Industries, Inc.
Oakland Heights Development, Inc.
Oklahoma City Landfill, LLC
Omaha Hauling Company, Inc.
Omega Holdings GmbH
Organized Sanitary Collectors and Recyclers, Inc.
Oscar's Collection System of Fremont, Inc.
Otay Landfill, Inc.
Ottawa County Landfill, Inc.
Packerton Land Company, LLC
Palomar Transfer Station, Inc.
Panama Road Landfill, TX, L.P.
Paper Fibers, Inc.
Paper Fibres Company
Paper Recycling Systems, Inc.
Xxxxxxx Real Estate Company
Pinal County Landfill Corp.
Pine Bend Holdings L.L.C. -
Pinecrest Landfill OK, LLC
Pinehill Landfill TX, LP
Pittsburg County Landfill, Inc.
Pleasant Oaks Landfill TX, XX
Xxxx County Landfill, LLC
Portable Storage, Inc.
Xxxxxx County Landfill, Inc.
Price & Sons Recycling Company
Prime Carting, Inc.
PSI Waste Systems, Inc.
R. 18, Inc.
X.X. Xxxxxx Enterprises, Inc.
X.X. Xxxxxx Refuse Service, Inc.
Rabanco Companies
Rabanco Connections International, Inc.
Rabanco Intermodal/B.C., Inc.
Rabanco Recycling, Inc.
Rabanco Regional Landfill Company
Rabanco, Ltd.
Xxxxxx Landfill, Inc.
RCS, Inc.
Recycle Seattle II
Recycling Associates Inc.
Recycling Industries Corp.
Ref-Fuel Canada Ltd.
Regional Disposal Company
Resource Recovery, Inc.
Rio Grande Valley Landfill TX, LP
Risk Services, Inc.
Roosevelt Associates -
Xxxx Bros. Waste & Recycling Co.
Xxxxxxx Sanitary Service, Inc.
Xxxxxx Landfill, Inc.
Royal Holdings, Inc.
Royal Oaks Landfill TX, LP
S & L, Inc.
S & S Recycling, Inc
S Leasing Company, LLC
Saguaro National Insurance Company
Saline County Landfill, Inc.
San Marcos NCRRF, Inc.
Sand Valley Holdings, L.L.C.
Sangamon Valley Landfill, Inc.
Sanitary Disposal Service, Inc.
Sauk Trail Development, Inc.
Seattle Disposal Company, Inc.
Selas Enterprises LTD
Show-Me Landfill, LLC
Shred-All Recycling Systems, Inc.
SITA S.A. -
Source Recycling, Inc.
Southeast Landfill, LLC
Southwest Landfill TX, LP
Southwest Regional Landfill, Inc.
Southwest Waste, Inc.
Springfield Environmental General Partnership
SSWI, Inc.
Standard Disposal Services, Inc.
Standard Environmental Services, Inc.
Standard Waste, Inc.
Star Services Group, Inc.
Streator Area Landfill, Inc.
Suburban Carting Corp.
Suburban Transfer, Inc.
Suburban Warehouse, Inc.
Summit Waste Systems, Inc.
Sunrise Sanitation Service, Inc.
Sunset Disposal Service Inc. (CA corp.)
Sunset Disposal, Inc. (KS corp.)
Super Services Waste Management, Inc.
Sycamore Landfill, Inc.
Xxxx'x Transfer Systems, Inc.
Xxxxxx Ridge Landfill, Inc.
Tennessee Union County Landfill, Inc.
The Ecology Group, Inc.
Xxx Xxxxxxx'x Disposal Service, Inc.
Total Roll-Offs, LLC
Total Solid Waste Recyclers, Inc.
Tricil (N.Y.), Inc.
Tri-State Recycling Services, Inc.
Tri-State Refuse Corporation
Trottown Transfer, Inc.
Turkey Creek Landfill TX, LP
U.S. Disposal II
United Disposal Service, Inc.
United Waste Control Corp.
Upper Rock Island County Landfill, Inc.
USA Waste of Illinois, Inc.
Usine de Triage Lachenaie Inc.
Valley Landfills, Inc.
VHG, Inc.
Victoria Landfill TX, XX
Xxxxxx Disposal Service, Inc.
Xxxxxx Xxxx Development Company
Waste Associates, Inc.
Waste Control Systems, Inc.
Waste Services of New York, Inc.
Wastehaul, Inc.
Xxxxx County Landfill IL, Inc.
WDTR, Inc.
Webster Parish Landfill, L.L.C.
Whispering Pines Landfill TX, LP
Willamette Resources, Inc.
Xxxxxxxx County Landfill, Inc.
Willow Ridge Landfill, LLC
WJR Environmental, Inc.
Woodlake Sanitary Service, Inc.
EXHIBIT A
DIRECTORS, OFFICERS AND SHAREHOLDERS
SUBJECT TO THE LOCK-UP LETTER AGREEMENT
Directors
- Xxxxxxx X. Xxxxxx
- Xxxxxx Xxxxx
- Xxxx X. Xxxxx
- Xxxxx X. Xxxxxxxxx
- Xxxxxxx Xxxxx
- Xxxxxx Xxxxxxx
- X. Xxxxxxxxx Hill
- Xxxxxxxx X. Xxxxxxx
- Xxxxx Xxxxxxx
- Xxxxxx X. Xxxxxx
- Xxxxxx X. Xxxxxxx
- Xxxxxx X. Xxxxxx
Officers
- Xxxxxxx X. Xxxxxx
- Xxxxx X. Xxxxxxxx
- Xxxxxx X. Xxxxxx
- Xxxxxx X. Xxxx
- Xxxxxx X. Xxxxxxxxx
- Xxxxx X. Xxxx
Shareholders
- Apollo Investment Fund III, L.P.
- Apollo Overseas Partners III, L.P.
- Apollo Overseas Partners IV, L.P.
- Apollo (U.K.) Partners III, L.P.
- Apollo/AW LLC
- Blackstone Capital Partners II Merchant Banking Fund L.P.
- Blackstone Capital Partners III Merchant Banking Fund L.P.
- Blackstone Offshore Capital Partners II L.P.
- Blackstone Offshore Capital Partners III L.P.
- Blackstone Family Investment Partnership II L.P.
- Blackstone Family Investment Partnership III L.P.
C-1
