EXHIBIT 99.4
INVESTMENT AGREEMENT
This Investment Agreement (the "Agreement"), dated as of April 14,
1997, is made and entered into by and among Apollo Investment Fund III, L.P., a
Delaware limited partnership, Apollo Overseas Partners III, L.P., a Delaware
limited partnership, and Apollo (UK) Partners III, L.P., an English limited
partnership, (collectively, and together with their Affiliated Transferees (as
defined herein), the "Apollo Stockholders"), and Blackstone Capital Partners II
Merchant Banking Fund L.P., a Delaware limited partnership, Blackstone Offshore
Capital Partners II L.P., a Cayman Islands limited partnership, and Blackstone
Family Investment Partnership II L.P., a Delaware limited partnership
(collectively, and together with their Affiliated Transferees, the "Blackstone
Stockholders" and, together with the Apollo Stockholders, the "Stockholders").
WHEREAS, the Stockholders have entered into this Agreement for the
purpose of allocating and administering among themselves certain rights and
obligations with respect to their ownership of the common stock, par value $.01
per share (the "Common Stock"), of Allied Waste Industries, Inc., a Delaware
corporation (the "Company"), and certain other matters as set forth herein;
WHEREAS, the Stockholders have entered into a Stock Purchase Agreement
with TPG Partners, L.P. and TPG Parallel I, L.P., each a Delaware limited
partnership (collectively "TPG"), dated April 14, 1997 (the "TPG Purchase
Agreement"), providing for the purchase by the Stockholders of an aggregate of
11,776,765 shares of the Common Stock (the "TPG Shares") from TPG, subject to
the terms and conditions set forth therein, and may enter into additional
agreements (such additional agreements, together with the TPG Purchase
Agreement, the "Purchase Agreements") providing for the purchase by one or more
of the Stockholders of additional shares of Common Stock (such additional
shares, together with the TPG Shares, the "Shares"); and
WHEREAS, the Stockholders have entered into a Shareholders Agreement
with the Company, dated April 14, 1997, concerning certain governance rights,
registration rights and other matters set forth therein, subject to the terms
and conditions set forth therein (the "TPG Shareholders Agreement"), and may
enter into additional agreements or amendments with respect thereto (such
additional agreements and amendments, together with the TPG Shareholders
Agreement, the "Shareholders Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, covenants and provisions contained herein,
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
The following terms shall have the definitions set forth below:
"Affiliate" has the meaning given such term in Rule 12b-2 under the
Exchange Act.
"Business Day" means any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York.
"Closing Dates" shall mean collectively, the closing date of the
purchase of the TPG Shares pursuant to the TPG Purchase Agreement, together with
the closing of the sale of Common Stock under any other Purchase Agreement as
provided under such Purchase Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Losses" shall mean any and all damages, fines, fees, penalties,
deficiencies, losses and expenses (including without limitation interest, court
costs, fees of attorneys, accountants and other experts or other expenses of
litigation or other proceedings or of any claim, default or assessment).
"Majority Decision" shall mean approval by Stockholders holding a
majority of the Shares then held by all Stockholders; provided, however, that if
a dissenting Stockholder reasonably determines that the decision will materially
adversely affect its ownership of the Shares, then the decision must be approved
by all Stockholders.
"Permitted Transferees" shall mean:
(a) any Affiliate of, or investment fund sponsored by, a Stockholder
(an "Affiliated Transferee");
(b) with respect to any Stockholder which is a limited partnership,
any partners (or a liquidating trust for the benefit of the partners) of
such limited partnership in accordance with the provisions of the limited
partnership agreement of such Stockholder as then in effect; or
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(c) solely with respect to bona fide pledges of shares of Common
Stock to a financial institution to secure indebtedness for borrowed money
to finance the purchase of shares of Common Stock, such financial
institution;
PROVIDED that with respect to clause (a), the Affiliated Transferee agrees in a
writing provided to each of the other Stockholders to be bound by the terms of
this Agreement; PROVIDED, FURTHER, that with respect to clause (c), the pledge
agreement gives the other Stockholders the right to purchase the pledged shares
from the financial institution on substantially the same terms as those provided
in Section 5.2 in connection with any foreclosure on such pledged shares. For
purposes hereof, the Permitted Transferees of a Stockholder shall include the
Permitted Transferees of such Stockholder's Permitted Transferees.
"Person" means any natural person, corporation, general partnership,
limited partnership, proprietorship, other business organization, trust, union
or association or governmental or regulatory authority.
"Registration Percentage" shall mean the quotient of (a) the total
number of shares of Common Stock owned directly by a Stockholder immediately
prior to an offering divided by (b) the total number of shares of Common Stock
beneficially owned by the Stockholders as a group immediately prior to such
offering.
"Rule 144" means Rule 144 promulgated under the Securities Act, and
any successor provision thereto.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Transfer" shall mean with respect to any security, any sale,
assignment, donation, pledge, hypothecation, grant or other transfer of, or the
grant of any option with respect to, such security (or the entering into of any
agreement or understanding with respect to the foregoing).
ARTICLE II
REPRESENTATIONS AND WARRANTIES
A. Each Apollo Stockholder hereby severally (and not jointly)
represents and warrants to the Blackstone Stockholders with respect to itself
and the Shares to be acquired by such Apollo Stockholder pursuant to the
Purchase Agreements, and not with respect to any other Apollo Stockholder or any
other Shares as follows:
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Section 2.A.1. ORGANIZATION; AUTHORIZATION. Such Apollo Stockholder
is a limited partnership duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization. Such Apollo Stockholder is
duly authorized to execute and deliver, to perform its obligations under and to
consummate the transactions contemplated by this Agreement, the TPG Purchase
Agreement and the Shareholders Agreement. This Agreement, the TPG Purchase
Agreement and the Shareholders Agreement are valid and legally binding
agreements of such Apollo Stockholder, enforceable against such Apollo
Stockholder in accordance with their terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting creditors'
rights generally and, as to enforceability, general equitable principles.
Section 2.A.2. ACQUISITION FOR INVESTMENT. (a) Such Apollo
Stockholder is acquiring the Shares for its own account for the purpose of
investment and not with a view to or for sale in connection with any
distribution thereof, and such Apollo Stockholder has no present intention or
plan to effect any distribution of the Shares.
B. Each Blackstone Stockholder hereby severally (and not jointly)
represents and warrants to the Apollo Stockholders with respect to itself and
the Shares to be acquired by such Blackstone Stockholder pursuant to the
Purchase Agreements, and not with respect to any other Blackstone Stockholder or
any other Shares as follows:
Section 2.B.1. ORGANIZATION; AUTHORIZATION. Such Blackstone
Stockholder is a limited partnership duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization. Such
Blackstone Stockholder is duly authorized to execute and deliver, to perform its
obligations under and to consummate the transactions contemplated by this
Agreement, the TPG Purchase Agreement and the Shareholders Agreement. This
Agreement, the TPG Purchase Agreement and the Shareholders Agreement are valid
and legally binding agreements of such Blackstone Stockholder, enforceable
against such Blackstone Stockholder in accordance with their terms, subject to
applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting creditors' rights generally and, as to enforceability, general
equitable principles.
Section 2.B.2. ACQUISITION FOR INVESTMENT. (a) Such Blackstone
Stockholder is acquiring the Shares for its own account for the purpose of
investment and not with a view to or for sale in connection with any
distribution thereof, and such Blackstone Stockholder has no present intention
or plan to effect any distribution of the Shares.
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C. RELIANCE ON REPRESENTATIONS AND WARRANTIES IN PURCHASE
AGREEMENTS. In addition to the foregoing representations and warranties, each
of the Stockholders shall be entitled to rely upon the representations and
warranties of each other Stockholder contained in any Purchase Agreement.
ARTICLE III
PURCHASE OF THE SHARES
Section 3.1. ALLOCATION OF PURCHASE PRICE. (a) On the Closing Date
with respect to the purchase of any Shares from TPG or Xxxxxxx, Inc., a Canadian
corporation ("Xxxxxxx") or its Affiliates, (i) the Apollo Stockholders hereby
agree to purchase 65% of the Shares by paying 65% of the total purchase price
for the Shares in the manner provided in the applicable Purchase Agreement and
(ii) the Blackstone Stockholders hereby agree to purchase 35% of the Shares by
paying 35% of the total purchase price for the Shares in the manner provided in
the applicable Purchase Agreement. Prior to such Closing Date, in their sole
discretion, (x) the Apollo Stockholders may allocate their rights and
obligations under this Section among themselves and (y) the Blackstone
Stockholders may allocate their rights and obligations under this Section among
themselves. Except for purchases of Shares from TPG or Xxxxxxx which shall be
subject to and allocated in accordance with this Section, all purchases of
Shares shall be subject to and allocated in accordance with the provisions of
Section 5.3.
(b) If a Stockholder fails for any reason to make a purchase or
payment as required under clause (a) of this Section 3.1, each of the non-
failing Stockholders shall have the irrevocable and exclusive option to purchase
up to that percentage of such failing Stockholder's shares, determined by
dividing the number of Shares such non-failing Stockholder is then entitled to
purchase by the total number of Shares that all Stockholders are then entitled
to purchase (without reference to either the Shares such failing Stockholder was
entitled to purchase or the number of Shares entitled to be purchased by a
Stockholder who elects not to purchase such failing Stockholder's Shares). If a
Stockholder's failure to purchase Shares constitutes a breach of the applicable
Purchase Agreement, such failing Stockholder shall indemnify and hold harmless
the non-failing Stockholders for any Losses incurred by them due to such breach;
PROVIDED, HOWEVER, the maximum aggregate liability of a failing Stockholder
under this Section 3.1 (including liability to the seller of the Shares) shall
not exceed the amount that such failing Stockholder would have been required to
pay had it not been in breach of such Purchase Agreement.
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ARTICLE IV
BOARD OF DIRECTORS
The Stockholders agree among themselves as follows:
Section 4.1. ALLOCATION OF AFFILIATE DIRECTOR DESIGNEES. If the
number of persons the Stockholders are entitled to designate to serve on the
Board of Directors of the Company (the "Board") pursuant to the Shareholders
Agreement, without restriction as to the affiliation of such person ("Affiliate
Designees"), is:
(a) four (4), then the Apollo Stockholders shall be entitled to
designate three (3) Affiliate Designees and the Blackstone Stockholders
shall be entitled to designate one (1) Affiliate Designee;
(b) three (3), then the Apollo Stockholders shall be entitled to
designate two (2) Affiliate Designees and the Blackstone Stockholders shall
be entitled to designate one (1) Affiliate Designee;
(c) two (2), then the Apollo Stockholders shall be entitled to
designate one (1) Affiliate Designee and the Blackstone Stockholders shall
be entitled to designate one (1) Affiliate Designee; and
(d) one (1), then the Apollo Stockholders shall be entitled to
designate that Affiliate Designee; PROVIDED, HOWEVER, that if the
Blackstone Stockholders own more shares of Common Stock than the Apollo
Stockholders at the time of such designation, then the Blackstone
Stockholders shall be entitled to designate that Affiliate Designee.
Section 4.2. ALLOCATION OF NON-AFFILIATE DESIGNEES. If the
Stockholders are entitled pursuant to the Shareholders Agreement to designate
persons to serve on the Board in addition to the Affiliate Designees, such
designations shall be allocated between the Apollo Stockholders and Blackstone
Stockholders in the same proportions as the allocation of Affiliate Designees;
provided, however, that any designation must be reasonably acceptable to the
non-designating Stockholders.
Section 4.3. EXERCISE OF VETO RIGHTS FOR THIRD PARTY DESIGNEES. If
the Stockholders are entitled pursuant to the Shareholders Agreement to approve
or reject a person designated by a third party to serve on the Board or any
committee thereof, such approval or rejection may be exercised by either the
Blackstone Stockholders or the Apollo Stockholders.
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Section 4.4. AGREEMENT TO VOTE FOR DIRECTORS. The Stockholders agree
to vote all shares of Common Stock held by them in favor of the persons
designated pursuant to Sections 4.1 and 4.2 hereof. The failure of any
Stockholder entitled to designate nominees pursuant to Sections 4.1 or 4.2
hereof to fully exercise its respective designation rights shall not constitute
a waiver or diminution of such rights, nor shall it prevent such Stockholder
from fully exercising such rights prospectively. Should a person designated
pursuant to Section 4.1 or 4.2 hereof be unwilling or unable to serve, or
otherwise cease to serve (including by means of removal in accordance with the
following sentence), the Stockholders who originally nominated such director
pursuant to Sections 4.1 or 4.2 shall be entitled to designate any replacement
director. If the Apollo Stockholders propose to remove any director designated
by them, or if the Blackstone Stockholders propose to remove any director
designated by them, the Stockholders agree to cooperate in, and vote all shares
of Common Stock held by them in support of, such removal and any resulting
vacancy shall be filled in accordance with the preceding sentence. The
Stockholders agree not to take any action to remove, with or without cause, any
director other than in accordance with the foregoing.
Section 4.5. COMMITTEES OF THE BOARD OF DIRECTORS. If the
Stockholders are entitled pursuant to the Shareholders Agreement to designate
directors to serve on the executive committee or any other committee established
by the Board, such designation shall be allocated among the Stockholders based
on the same proportions as the allocation provisions set forth in this Article
IV for designating persons to serve as a director on the Board.
Section 4.6. FURTHER ASSURANCES. Each Stockholder shall vote, in
person or by proxy, all of the shares of Common Stock owned by such Stockholder,
at any annual or special meeting of stockholders of the Company called for the
purpose of voting on the election of directors or by consensual action of
stockholders without a meeting with respect to the election of directors, in
favor of the election of the directors designated in accordance with this
Article IV. Each Stockholder shall vote the shares of Common Stock owned by
such Stockholder and shall take all other actions necessary to ensure that the
Certificate of Incorporation and By-laws of the Company do not at any time
conflict with the provisions of this Agreement.
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ARTICLE V
TRANSFERS OF COMMON STOCK
Section 5.1. RESTRICTIONS ON TRANSFERS; PERMITTED TRANSFEREES. (a)
Except as otherwise provided in Section 5.1(b) and 5.1(c) of this Agreement,
each Stockholder agrees and acknowledges that such Stockholder will not:
(i) directly or indirectly, Transfer or offer to Transfer any shares
of Common Stock or solicit any offers to purchase or otherwise acquire or
make a pledge of any shares of Common Stock;
(ii) grant any proxy or enter into or agree to be bound by any voting
trust with respect to any shares of Common Stock;
(iii) enter into any stockholder agreements or arrangements of any
kind (other than agreements entered into by all of the Stockholders) with
any Person with respect to any shares of Common Stock (whether or not such
agreements and arrangements are with other Stockholders hereto or holders
of shares of Common Stock who are not parties to this Agreement), including
but not limited to, agreements or arrangements with respect to the
acquisition, disposition or voting of shares of Common Stock; or
(iv) act, for any reason, as a member of a group or in concert with
any other Persons (other than Permitted Transferees) in connection with the
Transfer or voting of shares of Common Stock.
(b) Except as provided in Section 5.1(c), none of the restrictions
contained in Section 5.1(a) shall apply to any Transfers:
(i) to a Permitted Transferee of the transferor (whereupon the
transferor hereby agrees to provide written notice thereof, together with
such transferee's written undertaking to assume the transferor's
obligations hereunder) to the other Stockholders within 30 days after such
Transfer); or
(ii) to any Person, provided the transferor has first complied with
the provisions of Sections 5.2 and 5.3.
(c) Notwithstanding anything in this Agreement to the contrary,
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(i) no Transfer of shares of Common Stock may be made by a
Stockholder if such Transfer would violate any of the provisions of the
Shareholders Agreement (unless such provision is waived by the Company);
and
(ii) until such time as any Apollo Stockholder Transfers any of its
Shares to a Person who is not a Permitted Transferee, no Transfer of shares
of Common Stock may be made by any of the Blackstone Stockholders that
would result in the Stockholders losing any rights to designate persons to
serve on the Board or any committee thereof.
Section 5.2. RIGHT OF FIRST NEGOTIATION WITH RESPECT TO CERTAIN SHARE
TRANSFERS. (a) Except for Transfers permitted pursuant to Sections 5.1(b)(i),
if any Apollo Stockholder or Blackstone Stockholder desires to Transfer any
shares of Common Stock (a "Selling Stockholder"), such Selling Stockholder shall
first give written notice (the "Sellers Notice") to the Apollo Stockholders (if
a Blackstone Stockholder is the Selling Stockholder") and to the Blackstone
Stockholders (if an Apollo Stockholder is the Selling Stockholder) (the "Offeree
Stockholders") stating the Selling Stockholders' desire to make such Transfer
and the number of shares of Common Stock proposed to be transferred (the
"Offered Shares").
(b) Upon receipt of the Sellers Notice, each of the Offeree
Stockholders shall have a 15-day exclusive right to negotiate to purchase the
Offered Shares. The Selling Stockholders and the Offeree Stockholders agree to
negotiate in good faith.
(c) If the Sellers Notice shall be duly given, and if the Offeree
Stockholders shall not purchase the Offered Shares within such 15-day period or
shall have otherwise declined to purchase the Offered Shares, then the Selling
Stockholders shall be free to sell the Offered Shares to any third party
transferee; PROVIDED, that such sale complies with the provisions of Section 5.1
of this Agreement.
Section 5.3. PRO RATA RIGHT TO PARTICIPATE IN CERTAIN SHARE
PURCHASES. (a) Until an aggregate of 3,000,000 shares shall have been
purchased by the Stockholders and their Affiliates from Persons other than the
Stockholders, TPG and Xxxxxxx and their respective Affiliates (such other
Persons, "Exempt Sellers"):
(i) until the Apollo Stockholders and their Affiliates (the "Apollo
Purchasers") purchase in aggregate 1,000,000 or more shares of Common Stock
from Persons other than the Exempt Sellers: If any Blackstone Stockholder
or any of their Affiliates (the "Blackstone Purchasers"), pursuant to
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a single transaction or series of related transactions, proposes to
purchase shares of Common Stock from a Person who is not an Exempt Seller,
the Apollo Stockholders shall have the exclusive option to purchase up to
65% of the total number of shares proposed to be purchased by the
Blackstone Purchasers, upon the same terms and conditions applicable to the
Blackstone Purchasers.
(ii) If any Apollo Purchaser, pursuant to a single transaction or
series of related transactions, proposes to purchase shares of Common Stock
from a Person who is not an Exempt Seller, the Blackstone Stockholders
shall have the exclusive option to purchase up to 35% of the total number
of shares proposed to be purchased by the Apollo Purchaser, upon the same
terms and conditions applicable to the Apollo Purchaser; PROVIDED, HOWEVER,
if the Apollo Purchasers have purchased in the aggregate 1,000,000 or more
shares of Common Stock from persons other than the Exempt Sellers, the
foregoing percentage shall be 100%.
(b) After an aggregate of 3,000,000 shares shall have been purchased
by the Stockholders and their Affiliates from Persons other than Exempt Sellers
in accordance with Section 5.3(a) above:
(i) If any Apollo Purchaser, pursuant to a single transaction or
series of related transactions, proposes to purchase shares of Common Stock
from a Person who is not an Exempt Seller, the Blackstone Stockholders
shall have the exclusive option to purchase up to 50% of the total number
of shares proposed to be purchased by the Apollo Purchaser, upon the same
terms and conditions applicable to such Apollo Purchaser.
(ii) If any Blackstone Purchaser, pursuant to a single transaction or
series of related transactions, proposes to purchase shares of Common Stock
from a Person who is not an Exempt Seller, the Apollo Stockholders shall
have the exclusive option to purchase up to 50% of the total number of
shares proposed to be purchased by the Blackstone Purchaser, upon the same
terms and conditions applicable to such Blackstone Purchaser.
(c) Any Apollo Purchaser or Blackstone Purchaser proposing to
purchase of any shares of Common Stock subject to this SECTION 5.3 shall use its
best efforts to keep the other Stockholders informed and shall cooperate with
the other Stockholders with respect to such proposed purchase so as to allow the
other Stockholders a reasonable opportunity to exercise their purchase option
hereunder. Without limiting the foregoing, the Apollo Purchaser or Blackstone
Purchaser shall provide a
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written notice (an "OPTION NOTICE") to the other Stockholders describing the
proposed purchase, including the price and the proposed closing date, promptly
after the proposed purchase price has been determined; PROVIDED that the Apollo
Purchaser or Blackstone Purchaser shall endeavor to provide such notice
sufficiently in advance of the proposed closing date so as to allow the other
Stockholders a reasonable opportunity to make a "capital call" or otherwise
arrange funding for their purchase option. A Stockholder may exercise its
purchase option by giving written notice (an "EXERCISE NOTICE") to the Apollo
Purchaser or Blackstone Purchaser, as the case may be, specifying the number of
shares such Stockholder desires to purchase, within one (1) Business Day after
receiving the Option Notice. If such Option Notice shall be duly given by an
Apollo Purchaser or Blackstone Purchaser, and if the Exercise Notice shall not
have been received by such Apollo Purchaser or Blackstone Purchaser within one
(1) Business Day thereafter or the other Stockholders shall have otherwise
declined to exercise such option, then such Apollo Purchaser or Blackstone
Purchaser shall be free to purchase and own all of the subject shares.
ARTICLE VI
ALLOCATION OF REGISTRATION RIGHTS
Section 6.1. SHELF REGISTRATION RIGHTS. (a) If the Stockholders are
entitled pursuant to any registration rights agreement with the Company (a
"Registration Rights Agreement") to require that the Company cause to be filed
pursuant to Rule 415 of the Securities Act a shelf registration statement with
respect to resales of shares beneficially owned by the Stockholders, the number
of demands to require the filing of a shelf registration statement shall be
divided between the Apollo Stockholders and Blackstone Stockholders in the same
proportions as the allocation of the number of Affiliate Designees in Section
4.1.
Section 6.2. UNDERWRITTEN OFFERINGS. If the Stockholders are
entitled pursuant to any Registration Rights Agreement to require that the
Company cause to be filed a registration statement under the Securities Act with
respect to a firm commitment underwritten offering of shares beneficially owned
by the Stockholders, the number of demands to require the filing of a
registration statement shall be divided between the Apollo Stockholders and
Blackstone Stockholders in the same proportions as the allocation of the number
of Affiliate Designees in Section 4.1; provided that the allocation of demand
rights pursuant to this Section shall be determined on the date such demand
rights are granted, and shall not be affected by subsequent changes in the
allocation of the number of Affiliate Designees resulting from changes in the
relative Share ownership of the Stockholders.
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Section 6.3. SHARES INCLUDED. In connection with any offering made
pursuant to a registration statement in which the Stockholders are entitled to
include shares of Common Stock beneficially owned by them, whether pursuant to
shelf, demand or "piggyback" registration rights, each Stockholder shall have
the right to include a number of shares owned by it in the offering in an amount
up to the product of (A) the aggregate number of shares the Stockholders as a
group are entitled to include in such offering multiplied by (B) such
Stockholder's Registration Percentage; PROVIDED, that the Stockholders shall be
entitled to increase on a pro rata basis the number of Shares they can include
in such offer to the extent any Stockholder includes less than the full number
of shares it has a right to include in such offering. For the purposes of this
clause, the Apollo Stockholders and the Blackstone Stockholders may allocate
their rights to include shares in an offering among their respective Affiliates
in their sole discretion. The Stockholders shall give each other reasonable
notice in advance of the exercise of any shelf, demand or piggy-back rights
pursuant to any Registration Rights Agreement.
Section 6.4. CUTBACKS. If in connection with any underwritten
offering the total number of shares that the Stockholders seek to have included
in such offering is limited by the underwriters (a "Cutback"), and following
such Cutback, the Apollo Stockholders include more shares in such registration
statement filed upon the demand of the Blackstone Stockholders, or the
Blackstone Stockholders include more shares in such registration statement filed
upon the demand of the Apollo Stockholders, such demand shall be deemed
exercised by the Stockholder that included more shares in such registration
statement (regardless of which Stockholder initially exercised such demand
right).
Section 6.5. UNDERWRITERS. If the Stockholders have the right to
designate a managing underwriter in connection with any firm commitment
underwriting, whichever of the Apollo Stockholders or the Blackstone
Stockholders made the demand for such registration shall be entitled to choose
such managing underwriter, otherwise the decision shall be made by Majority
Decision.
ARTICLE VII
OTHER AGREEMENTS
Section 7.1. DISPUTE RESOLUTION. Any allocation of rights or
obligations not specifically provided for herein shall be allocated first by
Majority Decision. The parties hereby
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waive any rights to a jury trial in connection with any disputes to be decided
pursuant to the provisions of this Section.
Section 7.2. EXPENSES. Unless specifically provided for otherwise
herein, each party shall bear its own expenses in connection with the matters
covered by this Agreement, except that in connection with any registered
offering of shares of Common Stock, any counsel and fees and offering expenses
(other than underwriting discounts) charged to the Stockholders shall be
allocated based on each Stockholder's proportionate number of shares included in
such offering. Notwithstanding the foregoing, Apollo Stockholders agree to bear
65%, and the Blackstone Stockholders agree to bear 35%, of all fees and expenses
(including without limitation the fees and expenses of Milbank, Tweed, Xxxxxx &
XxXxxx, Xxxxxxx Xxxxxxx & Xxxxxxxx and any other legal counsel, Deloitte &
Touche and any other accounting or financial advisor, and Xxxxxxx, Sachs & Co.
or any other broker) incurred by such Stockholders in connection with their due
diligence investigation or negotiation and purchase of Shares from TPG and
Xxxxxxx.
Section 7.3. REQUIRED FILINGS; PUBLICITY. (a) Each of the
Stockholders shall (and shall cause each of its Affiliates to) (i) take all
actions necessary to comply promptly with all legal requirements which may be
imposed on such Stockholder (or its Affiliates) as a result of this Agreement or
any of the transactions contemplated hereby and (ii) without limiting the
foregoing, make all required filings pursuant to the Securities Act and the
Exchange Act.
(b) To the extent reasonably practicable, the Stockholders shall
consult with each other prior to all public statement or filings to be issued or
made by any of them or their Affiliates with respect to this Agreement and the
transactions contemplated hereby.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. TERMINATION. This Agreement shall terminate on the
earlier of (a) solely with respect to Article IV, upon termination of the
Shareholders Agreement, (b) solely with respect to Article VI, upon termination
of all Registration Rights Agreements and (c) with respect to all other
provisions of this Agreement, on the date when either the Apollo Stockholders or
the Blackstone Stockholders cease to own any shares of Common Stock.
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Section 8.2. NOTICES. All notices to be given by any Stockholder
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by first class or registered mail, three (3) Business Days after deposit
in the United States Mail, or if telexed or telecopied, sent by telegram, or
delivered by hand or reputable overnight courier, when confirmation is received,
at the addresses set forth below, or in the case of any transferee of a
Stockholder, at the address set forth in the stock ledger of the Company:
in the case of the Apollo Stockholders (or any of them), to:
Apollo Investment Fund III, L.P.
Apollo Overseas Partner III, L.P.
Apollo (UK) Partners, III, L.P.
C/O Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
30th Floor
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
In the case of the Blackstone Stockholders (or any of them), to:
Blackstone Capital Partners II
Merchant Banking Fund X.X.
Xxxxxxxxxx Offshore Capital Partners II X.X.
Xxxxxxxxxx Family Investment Partnership II L.P.
C/O The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
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with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
The parties may change their respective addresses for purposes of notice
hereunder by giving notice of such change to all other parties in the manner
provided in this Section 8.2.
Section 8.3. BINDING EFFECT. This Agreement supersedes all prior
negotiations, statements and agreements of the parties hereto with respect to
the subject matter of this Agreement, and shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto. If any
transferee of any Stockholder shall acquire any shares of Common Stock in any
manner, whether by operation of law or otherwise, such shares of Common Stock
shall be held subject to all of the terms of this Agreement, and by taking and
holding such shares of Common Stock such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, PROVIDED, HOWEVER, that shares of Common Stock which have been
transferred in accordance with this Agreement to any person other than a
Stockholder or an Affiliated Transferee shall no longer be subject to this
Agreement.
Section 8.4. COMPLETE AGREEMENT. This Agreement represents the
entire agreement among the Stockholders with respect to the matters set forth
herein, and the parties hereto acknowledge that there have been no
representations, warranties, covenants or agreements made by any party hereto
other than those contained in this Agreement.
Section 8.5. COUNTERPARTS. This Agreement may be executed in
counterparts and all of which are deemed to be one and the same agreement
binding upon each of the Stockholders.
Section 8.6. HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
Section 8.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to its conflicts of law doctrine, except for matters of corporate law, which
shall be governed by and construed in accordance with the General Corporation
Law of the State of Delaware. By execution and delivery of this Agreement, each
of the Stockholders accepts,
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generally and unconditionally, the nonexclusive jurisdiction of the state or
federal courts in New York.
Section 8.8. INJUNCTIVE RELIEF. It is hereby agreed and acknowledged
that it will be impossible to measure in money the damages that would be
suffered if the parties to this Agreement fail to comply with any of the
obligations imposed on them by this Agreement and that in the event of any such
failure, an aggrieved person will be irreparably damaged and will not have an
adequate remedy at law. Any such person shall, therefore, be entitled to
injunctive relief, including specific performance, to enforce such obligations,
and if any action should be brought in equity to enforce any of the provisions
of this Agreement, none of the parties hereto shall raise the defense that there
is an adequate remedy at law.
Section 8.9. SEVERABILITY. The invalidity or unenforceability of any
provisions of this Agreement in any jurisdiction shall not affect the validity,
legality or enforceability of the remainder of this Agreement in such
jurisdiction or the validity, legality or enforceability of any provision of
this Agreement in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent
permitted by law.
Section 8.10. RECAPITALIZATION, ETC. In the event that any capital
stock or other securities are issued in respect of, in exchange for, or in
substitution of, any shares of Common Stock by reason of any reorganization,
recapitalization, reclassification, merger, consolidation, spin-off, partial or
complete liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the shares of Common Stock or any other change in
the Company's capital structure, appropriate adjustments shall be made to the
provisions of this Agreement so as to fairly and equitably preserve, as far as
practicable, the original rights and obligations of the parties hereto under
this Agreement.
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IN WITNESS WHEREOF, the undersigned, thereunto duly authorized, have
hereunto set their respective hands as of the day and year first above written.
APOLLO INVESTMENT FUND III, L.P.
APOLLO OVERSEAS PARTNERS III, L.P.
APOLLO (UK) PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
By: Apollo Capital Management II, Inc.
By: \s\ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BLACKSTONE CAPITAL PARTNERS II
MERCHANT BANKING FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS II X.X.
XXXXXXXXXX FAMILY INVESTMENT
PARTNERSHIP II L.P.
By: Blackstone Management Associates II L.L.C.
By: \s\ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
