AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement, dated
as of July 30, 1999 (this "Agreement"), by and between Allied Waste Industries,
Inc., a Delaware corporation (the "Company"), on the one hand, and Apollo
Investment Fund IV, L.P., a Delaware limited partnership, Apollo Investment Fund
III, L.P., a Delaware limited partnership, Apollo Overseas Partners IV, L.P., a
Delaware limited partnership, Apollo Overseas Partners III, L.P., a Delaware
limited partnership, Apollo (U.K.) Partners III, L.P., an English limited
partnership, Apollo/AW LLC, a Delaware limited liability company, Blackstone
Capital Partners II Merchant Banking Fund L.P., a Delaware limited partnership,
Blackstone Capital Partners III Merchant Banking Fund L.P., a Delaware limited
partnership ("BCP"), Blackstone Offshore Capital Partners III L.P., a Cayman
Islands limited partnership, Blackstone Offshore Capital Partners II L.P., a
Cayman Islands limited partnership, Blackstone Family Investment Partnership III
L.P., a Delaware limited partnership, and Blackstone Family Investment
Partnership II L.P., a Delaware limited partnership, Blackstone Capital Partners
III Merchant Banking Fund L.P., a Delaware limited partnership, Greenwich Street
Capital Partners II, L.P., a Delware limited partnership, GSCP Offshore Fund,
L.P., a Cayman Islands exempted limited partnership, Greenwich Fund, L.P., a
Delaware limited partnership, Greenwich Street Employees Fund, L.P., a Delaware
limited partnership, TRV Executive Fund, L.P., a Delaware limited partnership,
DLJMB Funding II, Inc., a Delaware corporation, DLJ Merchant Banking Partners
II, L.P., a Delaware limited partnership, DLJ Merchant Banking Partners II-A,
L.P., a Delaware limited partnership, DLJ Diversified Partners, L.P., a Delaware
limited partnership, DLJ Diversified Partners-A, L.P., a Delaware limited
partnership, DLJ Millenium Partners, L.P., a Delaware limited partnership, DLJ
Millenium Partners-A, L.P., a Delaware limited partnership, DLJ First ESC L.P.,
a Delaware limited partnership, DLJ Offshore Partners II, C.V., a Netherlands
Antilles limited partnership, DLJ EAB Partners, L.P., a Delaware limited
partnership, and DLJ ESC II L.P., a Delaware limited partnership (collectively,
the "Shareholders"), on the other hand, amending and restating in its entirety
the Registration Rights Agreement dated as of April 21, 1997 (the "Original
Agreement"), by and between the Company, on the one hand, and certain of the
Shareholders, on the other hand.
W I T N E S S E T H:
WHEREAS, concurrently herewith, the Company and certain of the
Shareholders are entering into a Preferred Stock Purchase Agreement (the
"Purchase Agreement") pursuant to which, upon the terms and subject to the
conditions set forth in the Purchase Agreement, certain of the Shareholders
shall purchase an aggregate of 1,000,000 shares of Senior Convertible Preferred
Stock, par value $.10 per share, of the Company ("Senior Preferred Stock"),
which shall be convertible into either shares of Series A Junior Preferred
Stock, par value $.10 per share, of the Company ("Junior Preferred Stock"), or
shares of common stock, par value $.01 per share, of the Company (the "Common
Stock");
WHEREAS, concurrently herewith, the Company and Shareholders
are entering into a Second Amended and Restated Shareholders Agreement (the
"Shareholders Agreement"), which shall become effective at the time the shares
of Senior Preferred Stock are purchased by the Shareholders (the "Effective
Time"), granting Shareholders certain rights to designate directors and setting
forth certain restrictions on the acquisition and distribution of securities of
the Company by Shareholders and the conduct of Shareholders with respect to the
Company; and
WHEREAS, as part of establishing the relationship between
Shareholders and the Company, Shareholders and the Company have agreed to enter
into this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained in this Agreement, the Purchase
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows, effective upon
the closing of the purchase of the Senior Preferred Stock pursuant to the
Purchase Agreement:
ARTICLE I
Definitions
1.1. Certain Definitions. In this Agreement:
"Apollo/Blackstone Shareholders" shall have the meaning set
forth in the Shareholders Agreement.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended, and the rules and regulations of the SEC promulgated under
such Act.
"Non-Apollo/Blackstone Shareholders" means all of the
Shareholders other than the Apollo/Blackstone Shareholders.
"Registrable Securities" means the 11,776,765 shares of Common
Stock acquired by certain of the Shareholders from TPG Partners, L.P. and TPG
Parallel I, L.P. (the "TPG Block"), the 14,600,000 shares of Common Stock
acquired by certain of the Shareholders from Xxxxxxx, Inc. (the "Xxxxxxx Block"
and, together with the TPG Block, the "Original Shares"), the 1,000,000 shares
of Senior Preferred Stock, any shares of Junior Preferred Stock or Common Stock
issued upon conversion of the Senior Preferred Stock (such shares, the
"Additional Shares", together with the Original Shares and the Senior Preferred
Stock, the "Shares"), and any additional shares of Common Stock acquired by
Shareholders in compliance with the Shareholders Agreement, and any additional
shares of Common Stock, Senior Preferred Stock or Junior Preferred Stock issued
in connection with any stock dividend on, or any stock split, reclassification
or reorganization of any of the Shares or such additional shares; provided,
however, that shares of Junior Preferred Stock shall not be Registrable
Securities at any time on or prior to June 30, 2001.
"SEC" means the United States Securities and Exchange
Commission or any successor agency.
"Securities Act" means the United States Securities Act of
1933, as amended, and the rules and regulations of the SEC promulgated under
such Act.
"Subject Securities" means shares of Senior Preferred Stock,
Junior Preferred Stock, Common Stock or other equity securities of the Company
convertible into or exchangeable for shares of Common Stock.
ARTICLE II
REGISTRATION RIGHTS
2.1. Incidental Rights. If at any time or from time to time
(but subject to the limitations on sales of Registrable Securities in the
Shareholders Agreement) the Company proposes to file with the SEC a registration
statement (whether on Form X-0, X-0, or S-3, or any equivalent form then in
effect) for the registration under the Securities Act of any shares of Subject
Securities for sale, for cash consideration, to the public by Company or on
behalf of one or more shareholders of Company (excluding any sale of securities
upon conversion into or exchange or exercise for shares of Common Stock, and any
shares of Common Stock issuable by Company upon the exercise of employee stock
options, or to any employee stock ownership plan, or in connection with any
acquisition made by Company, any securities exchange offer, dividend
reinvestment plan, employee benefit plan, corporate reorganization, or in
connection with any amalgamation, merger or consolidation of Company or any
direct or indirect subsidiary of Company with one or more other corporations if
Company is the surviving corporation), Company shall give Shareholders at least
20 days' prior written notice of the proposed filing (or if 20 days' notice is
not practicable, a reasonable shorter period to be not less than 7 days), which
notice shall outline the nature of the proposed distribution and the
jurisdictions in the United States in which Company proposes to qualify and
offer such securities (the "Elected Jurisdictions"). On the written request of
Shareholders received by Company within 15 days after the date of Company's
delivery to Shareholders of the notice of intended registration (which request
shall specify the Registrable Securities sought to be disposed of by
Shareholders and the intended method or methods by which dispositions are
intended to be made), Company shall, under the terms and subject to the
conditions of this Article II, at its own expense as provided in Section 4.1,
include in the coverage of such registration statement (or in a separate
registration statement concurrently filed) and qualify for sale under the blue
sky or securities laws of the various states in the Elected Jurisdictions the
number of Registrable Securities of the kind being registered (the "Specified
Securities") held by Shareholders or into which the Registrable Securities are
convertible, as the case may be, and which Shareholders have so requested to be
registered or qualified for distribution, to the extent required to permit the
distribution (in accordance with the intended method or methods thereof as
aforesaid) in the Elected Jurisdictions requested by Shareholders of such
Registrable Securities.
Notwithstanding anything else contained in this Section 2.1,
if the registration statement to be filed by the Company is a registration filed
in response to any of the first three demands made by the Apollo/Blackstone
Shareholders pursuant to Section 2.2 (the "First Three Demands"), then the
Non-Apollo/Blackstone Shareholders shall not be entitled to have their
Registrable Securities included in the coverage of such a registration
statement, provided, however, that if the First Three Demands include Additional
Shares (or shares into which Additional Shares have been converted), then the
Non-Apollo/Blackstone Shareholders shall be entitled to have their Registrable
Securities included in the coverage of such registration statement, on the terms
and conditions set forth in this Section 2.1.
If the distribution proposed to be effected by Company
involves an underwritten offering of the securities being so distributed by or
through one or more underwriters, and if the managing underwriter of such
underwritten offering indicates in writing its reasonable belief that including
all or part of the Specified Securities in the coverage of such registration
statement or in the distribution to be effected by such prospectus will
materially and adversely affect the sale of securities proposed to be sold
(which statement of the managing underwriter shall also state the maximum number
of shares, if any, which can be sold by Shareholders requesting registration
under this Section 2.1 without materially adversely affecting the sale of the
shares proposed to be sold), then the number of Specified Securities which
Shareholders shall have the right to include in such registration statement
shall be reduced to the maximum number of shares specified by the managing
underwriter. In the case of a registration statement filed in response to any of
the First Three Demands covering both Original Shares and Additional Shares (or
shares into which Additional Shares have been converted), first priority shall
be afforded to the Original Shares, with all other securities to be completely
eliminated before the number of such Original Shares is reduced and second
priority shall be given to the other Registrable Securities of both the
Apollo/Blackstone Shareholders and the Non-Apollo/Blackstone Shareholders, with
all other securities to be completely eliminated before the number of such
Registrable Securities is reduced; provided; however, that if the number of
Registrable Securities is to be reduced, then reductions will respect to the
Registrable Securities shall be made among the Shareholders on a pro-rata basis
in accordance with the relationship which the number of the Registrable
Securities held by each Shareholder bears to the number of Registrable
Securities held by all Shareholders (the "Additional Shares Pro-Rata
Reduction").
In all other cases, first priority shall be afforded to
securities covered by a registration statement filed in response to the exercise
of a demand registration right by another holder of Common Stock, Senior
Preferred Stock or Junior Preferred Stock, including the Apollo/Blackstone
Shareholders, and no securities proposed to be sold by such holders shall be so
reduced until all securities proposed to be sold by all other parties have been
entirely eliminated and second priority shall be afforded to the Original
Shares; provided, however, that in the case of a registration statement filed in
response to a demand from the Apollo/Blackstone Shareholders (other than any of
the First Three Demands) (the "Other Demands"), first priority shall be afforded
to the Original Shares, with all other securities to be completely eliminated
before the number of such Original Shares is reduced and second priority shall
be given to the other Registrable Securities of both the Apollo/Blackstone
Shareholders and the Non-Apollo/Blackstone Shareholders, with all other
securities to be completely eliminated before the number of such Registrable
Securities is reduced. As to any reductions to be made to the Registrable
Securities (other than the Original Shares) proposed to be sold by the
Shareholders pursuant to a registration statement filed in response to the Other
Demands, such reductions to be made among the Shareholders shall be made on a
pro-rata basis in accordance with the relationship which the number of
Registrable Securities (other than the Original Shares) held by each Shareholder
bears to the number of Registrable Securities (other than the Original Shares)
held by all Shareholders (the "Pro-Rata Reduction"). As to all other proposed
selling shareholders of Securities, including Shareholders, any such reduction
in the number of Securities proposed to be sold by the selling shareholders
shall be effected on a pro rata basis in accordance with the relationship which
the number of such Securities of the class proposed to be sold by each selling
shareholder bears to the number of such Securities of that class proposed to be
sold by all selling shareholders.
For purposes of calculating the Additional Shares Pro-Rata
Reduction and the Pro-Rata Reduction, each share of Preferred Stock shall be
counted as the number of shares of Common Stock into which such Preferred Share
would be convertible as of the date of determination, assuming Stockholder
Approval (as defined in the Purchase Agreement) , and each share of Junior
Preferred Stock shall be counted as the number of shares of Common Stock that
would have been issued in lieu of such share of Junior Preferred Stock, as of
the date of determination.
Company shall have the sole right to select any underwriters,
including the managing underwriter, of any public offering of securities made
other than as a result of the rights granted in Section 2.2. Nothing in this
Section 2.1 shall create any liability on the part of Company to Shareholders if
Company for any reason decides not to file or to delay or withdraw a
registration statement (which Company may do in its sole discretion).
Shareholders may request to have Registrable Securities
included in an unlimited number of registrations under this Section 2.1.
2.2. Demand Rights. Upon written request of the
Apollo/Blackstone Shareholders made at any time (but subject to the limitations
on sales of Registrable Securities in the Shareholders Agreement), the Company
shall, under the terms and subject to the conditions set forth in this Section
2.2, and Sections 2.3 and 2.4, file (and use its reasonable efforts to cause to
become effective) a registration statement covering, and use its reasonable
efforts to qualify for sale under the blue sky or securities laws of the various
states of the United States as may be requested by the Apollo/Blackstone
Shareholders (except any such state in which, in the opinion of the managing
underwriter of the offering, the failure to so qualify would not materially and
adversely affect the proposed offering), in accordance with the intended method
or methods of disposition set forth in that notice, of such number of
Registrable Securities, as may be designated by the Apollo/Blackstone
Shareholders in their request, or that portion thereof designated in said
request for registration in each of the Designated Jurisdictions (as defined
below). A request for registration under this Section 2.2 shall specify the
number of shares to be registered, the jurisdictions in the United States in
which such registration is to be effected (the "Designated Jurisdictions") and
the proposed manner of sale, including the name and address of any proposed
underwriter; provided, that all offerings contemplated by a request for
registration under this Section 2.2 shall be underwritten offerings involving a
distribution of Registrable Shares to the public in which reasonable efforts are
made not to knowingly sell to any single buyer, acting individually or with
others, who after such underwriting will own more than 9% of the Total Voting
Power (as defined in the Shareholders Agreement) (any such buyer, "Significant
Stockholder"), under circumstances in which it would reasonably be expected to
not result in any person becoming a Significant Stockholder. The principal
underwriter or underwriters for any such offering shall be selected by the
Apollo/Blackstone Shareholders, subject to Company's approval, which may not be
unreasonably withheld. Notwithstanding any other provision in this Section, the
Apollo/Blackstone Shareholders shall not be permitted to make a demand for
registration pursuant to this Section unless the number of Registrable
Securities covered by such demand is at least 2,500,000 shares of Common Stock
(or securities convertible into such number of shares of Common Stock) (as such
number may be appropriately adjusted to reflect stock splits, reverse stock
splits, dividends and any other recapitalization or reorganization of Company)
or such lesser number of shares as would yield gross proceeds of not less than
$50 million based on the average closing price of the Common Stock (and assuming
that the market price of shares of Junior Preferred Stock was equal to the
market price of the shares of Common Stock into which such shares would then be
convertible) over the ten trading day period immediately preceding the date of
the written request hereunder (with the gross proceeds of Senior Preferred Stock
deemed to be its liquidation preference on the date of such demand). No
Shareholders other than the Apollo/Blackstone Shareholders and their Related
Transferees shall have demand registration rights.
If the distribution proposed to be effected pursuant to this
Section 2.2 involves an underwritten offering of Registrable Securities and
securities of the Company other than Registrable Securities ("Other
Securities"), and if the managing underwriter of such underwritten offering
indicates in writing its reasonable belief that including all or part of such
securities in the coverage of such registration statement will materially and
adversely affect the sale of the securities proposed to be sold, then the number
of securities proposed to be sold shall be reduced to the maximum number of
securities specified by the managing underwriter. In such a case, first priority
shall be afforded to Registrable Securities in accordance with the third and
fourth paragraph of Section 2.1, and such Other Securities, subject to the
limitations set forth in such third and fourth paragraphs.
Company may delay the filing of any registration statement
requested under this Section 2.2, or delay its effectiveness, for a reasonable
period (but not longer than 90 days) if, in the sole judgment of Company's Board
of Directors, (i) a delay is necessary in light of pending financing
transactions, corporate reorganizations, or other major events involving
Company, or (ii) filing at the time requested would materially and adversely
affect the business or prospects of Company in view of disclosures that may be
thereby required. Once the cause of the delay is eliminated, Company shall
promptly notify the Apollo/Blackstone Shareholders and, promptly after
Shareholders notify Company to proceed, Company shall file a registration
statement and begin performance of its other obligations under this Section 2.2.
The Apollo/Blackstone Shareholders shall be entitled to
request not more than nine registrations under this Section 2.2 (provided that
the filing of a registration statement in more than one Designated Jurisdiction
in connection with a concurrent or substantially concurrent distribution shall
be deemed for the purposes of this Agreement to be a single registration).
However, if the Apollo/Blackstone Shareholders request a registration under this
Section 2.2, but no registration statement becomes effective with respect to the
Registrable Securities covered by such request, then such request shall not
count as a request for purposes of determining the number of requests for
registration the Apollo/Blackstone Shareholders may make under this Section 2.2.
If there is an effective registration statement requested by
the Apollo/Blackstone Shareholders pursuant to this Section 2.2, the
Apollo/Blackstone Shareholders may require the Company to delay the filing of
any registration statement relating to shares of Common Stock or delay its
effectiveness, for a reasonable period (but not longer than 90 days) if, in the
sole judgment of the Apollo/Blackstone Shareholders, a delay is necessary in
order to avoid materially and adversely affecting the disposition of Registrable
Securities pursuant to the offering by the Shareholders; provided that the
foregoing shall not limit the Company's right to file and have declared
effective registration statements relating to shares of Common Stock issuable
pursuant to employee benefit plans of the Company or any of its subsidiaries or
issuable pursuant to a merger, acquisition or similar transaction involving the
Company or any of its subsidiaries.
2.3. Registration Conditions. Notwithstanding any other
provision of this Agreement, Company shall not be required to effect a
registration of any securities under this Article II, or file any post-effective
amendment to such a registration statement relating to such a qualification:
(a) unless Shareholders agree to (x) sell and distribute a portion or all
of their Registrable Securities in accordance with the plan or plans of
distribution adopted by and through underwriters, if any, acting for
Company or any such other sellers of Common Stock, Senior Preferred
Stock or Junior Preferred Stock, and (y) bear a pro rata share of
underwriter's discounts and commissions;
(b) if a registration requested under Section 2.2, or any post-effective
amendment to the registration statement filed in connection
therewith, requires, under applicable statutes and rules, a special
audit (other than a normal fiscal year-end audit) of any financial
statements, unless Shareholders agree to pay their proportionate share
(determined by the number of shares to be sold by Shareholders in the
offering in proportion to the total number of shares to be sold by
Company and all other participants in such offering) of the
reasonable fees and expenses of accountants incurred in connection
with the special audit and which would otherwise not be incurred;
provided that Shareholders shall not be required to pay any share of
such fees and expenses if such audit would otherwise be required at
substantially the same time to satisfy the Company's reporting
requirements under the Exchange Act absent such registration;
(c) if, in the case of a request for registration under Section 2.2,(x)any
offering pursuant to a registration statement covering securities of
the same kind otherwise sought to be registered regarding which
Shareholders could have exercised registration rights under Section 2.1
of this Agreement has been completed within the prior 90 days, (y) a
registration statement requested by Shareholders pursuant to Section
2.2 has become effective under the Securities Act within the prior six
months, or (z) Company has given notice under Section 2.1 of its
intention to file a registration statement under the Securities Act and
has not completed or abandoned the proposed offering (for so long as
the Company continues in good faith to pursue the proposed offering);
and
(d) unless Company has received from Shareholders all information Company
has reasonably requested concerning Shareholders and their method of
distribution of Registrable Securities, so as to enable Company to
include in the registration statement all facts required to be
disclosed in it.
2.4. Covenants and Procedures. If Company becomes obligated
under this Article II to effect a registration of Registrable Securities on
behalf of Shareholders, then (as applicable to the jurisdictions for which such
registration is to be made):
(a) Company, at its expense as provided in Section 4.2, shall prepare and
file with the SEC a registration statement covering such securities and
such other related documents as may be necessary or appropriate
relating to the proposed distribution, and shall use reasonable efforts
to cause the registration statement to become effective. Company will
also, with respect to any registration statement, file such post-
effective amendments to the registration statement (and use reasonable
efforts to cause them to become effective) and such supplements as are
necessary so that current prospectuses are at all times available for
a period of at least 90 days after the effective date of the
registration statement or for such longer period, not to exceed 180
days, as may be required under the plan or plans of distribution set
forth in the registration statement. Shareholders shall promptly
provide Company with such information with respect to Shareholders'
Registrable Securities to be so registered and, if applicable, the
proposed terms of their offering, as is required for the registration.
If the Registrable Securities to be covered by the registration
statement are not to be sold to or through underwriters acting for
Company, Company shall:
(i) deliver to Shareholders, as promptly as
practicable, as many copies of preliminary prospectuses as
Shareholders may reasonably request (in which case
Shareholders shall keep a written record of the distribution
of the preliminary prospectuses and shall refrain from
delivery of the preliminary prospectuses in any manner or
under any circumstances which would violate the Securities Act
or the securities laws of any other jurisdiction, including
the various states of the United States);
(ii) deliver to Shareholders, as soon as
practicable after the effective date of the registration
statement, and from time to time thereafter during the
applicable period described in Section 2.4, as many copies of
the relevant prospectuses as Shareholders may reasonably
request; and
(iii) in case of the happening, after the
effective date of the registration statement and during the
applicable 90 or 180-day period described in the second
sentence of Section 2.4(a), of any event or occurrence as a
result of which the prospectus, as then in effect, would
include an untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make any statement therein not misleading in the
light of the circumstances in which it was made, give
Shareholders written notice of the event or occurrence and
prepare and furnish to Shareholders, in such quantities as it
may reasonably request, copies of an amendment of or a
supplement to such prospectus as may be necessary so that the
prospectus, as so amended or supplemented and thereafter
delivered to purchasers of the securities, will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which it was made, not misleading.
(b) Company will notify Shareholders of any action by
the SEC or any Commission to suspend the effectiveness of any
registration statement filed pursuant hereto or the initiation or
threatened initiation of any proceeding for such purpose or the receipt
by Company of any notification with respect to the suspension of the
qualification of the securities for sale in any jurisdiction.
Immediately upon receipt of any such notice, Shareholders shall cease
to offer or sell any Registrable Securities pursuant to the
registration statement or prospectus in the jurisdiction to which such
order or suspension relates. Company will also notify Shareholders
promptly of the occurrence of any event or the existence of any state
of facts that, in the judgment of Company, should be set forth in such
registration statement or prospectus. Immediately upon receipt of such
notice, Shareholders shall cease to offer or sell any Registrable
Securities pursuant to such registration statement or prospectus, cease
to deliver or use such registration statement or prospectus and, if so
requested by Company, return to Company at Company's expense all copies
of such registration statement or prospectus. Company will as promptly
as practicable take such action as may be necessary to amend or
supplement such registration statement or prospectus in order to set
forth or reflect such event or state of facts and provide copies of
such proposed amendment or supplement to Shareholders.
(c) On or before the date on which the registration
statement is declared effective, Company shall use its reasonable
efforts to:
(i) register or qualify (and cooperate with
Shareholders, the underwriter or underwriters, if any, and
their counsel, in connection with the registration or
qualification of) the securities covered by the registration
statement for offer and sale under the securities or blue sky
laws of each state and other jurisdiction as Shareholders or
any underwriter reasonably requests;
(ii) keep each such registration or
qualification effective, including through new filings, or
amendments or renewals, during the period the registration
statement or prospectus is required to be kept effective; and
(iii) do any and all other acts or things
necessary or advisable to enable the disposition in all such
jurisdictions of the Registrable Securities covered by the
applicable registration statement, provided that Company will
not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified.
(d) Company shall use its reasonable efforts to cause
all Registrable Securities of Shareholders included in the registration
statement to be listed, by the date of the first sale of such shares
pursuant to such registration statement, on each securities exchange on
which the securities are then listed or proposed to be listed, if any,
as directed by the Apollo/Blackstone Shareholders (subject to the
Company's consent, which consent shall not be unreasonably withheld).
(e) Company shall make generally available to
Shareholders and any underwriter participating in the offering
conducted pursuant to the registration statement an earnings statement
satisfying Section 11(a) of the Securities Act no later than 45 days
after the end of the 12-month period beginning with the first day of
Company's first fiscal quarter commencing after the effective date of
the registration statement. The earnings statement shall cover such
12-month period. This requirement will be deemed to be satisfied if
Company timely files complete and accurate information on Forms 10-Q,
10-K, and 8-K under the Exchange Act, and otherwise complies with Rule
158 under the Securities Act as soon as feasible.
(f) Company shall cooperate with Shareholders and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legends) representing Registrable Securities to be sold under the
registration statement, and to enable such securities to be in such
denominations and registered in such names as the managing underwriter
or underwriters, if any, or Shareholders, may request, subject to the
underwriters' obligation to return any certificates representing unsold
securities.
(g) Company shall use its reasonable efforts to cause
Registrable Securities covered by the registration statement to be
registered with or approved by such other governmental agencies or
authorities in the United States (including the registration of
Registrable Securities under the Exchange Act) as may be necessary to
enable Shareholders or the underwriter or underwriters, if any, to
consummate the disposition of such securities.
(h) Company shall, during normal business hours and
upon reasonable notice, make available for inspection by Shareholders,
any underwriter participating in any offering pursuant to the
registration statement, and any attorney, accountant or other agent
retained by Shareholders or any such underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate
documents, and properties of Company (including non-public
information), as shall be reasonably necessary to enable the Inspectors
to exercise their due diligence responsibilities; provided that any
Inspector receiving non-public information shall have previously
entered into an appropriate confidentiality agreement in mutually
satisfactory form and substance. Company shall also cause its officers,
directors, and employees to supply all nonconfidential information
reasonably requested by any Inspector in connection with the
registration statement.
(i) Company shall use its reasonable efforts to
obtain a "cold comfort" letter and, as applicable, a "long-form comfort
letter" from Company's independent public accountants, and an opinion
of counsel for Company, each in customary form and covering such
matters of the type customarily covered by cold comfort letters and
long form comfort letters and legal opinions in connection with public
offerings of securities, as Shareholders reasonably request.
(j) Company shall enter into such customary
agreements (including an underwriting agreement containing such
representations and warranties by Company and such other terms and
provisions, as are customarily contained in underwriting agreements for
comparable offerings and are reasonably satisfactory to the Company)
and take all such other actions as Shareholders or the underwriters
participating in such offering and sale may reasonably request in order
to expedite or facilitate such offering and sale (other than such
actions which are disruptive to the Company or require significant
management availability), including providing reasonable availability
of appropriate members of senior management of the Company to provide
customary due diligence assistance in connection with any offering and
to participate in customary "road show" presentations in connection
with any underwritten offerings in substantially the same manner as
they would in an underwritten primary registered public offering by the
Company of its Common Stock, after taking into account the reasonable
business requirements of the Company in determining the scheduling and
duration of any road show.
ARTICLE III
INDEMNIFICATION
3.1. Indemnification by Company. In the event of any
registration under the Securities Act by any registration statement pursuant to
rights granted in this Agreement of Registrable Securities held by Shareholders,
Company will hold harmless Shareholders and each underwriter of such securities
and each other person, if any, who controls any Shareholder or such underwriter
within the meaning of the Securities Act, against any losses, claims, damages,
or liabilities (including legal fees and costs of court), joint or several, to
which Shareholders or such underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages,
or liabilities (or any actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact (i)
contained, on its effective date, in any registration statement under which such
securities were registered under the Securities Act or any amendment or
supplement to any of the foregoing, or which arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii)
contained in any preliminary prospectus, if used prior to the effective date of
such registration statement, or in the final prospectus (as amended or
supplemented if Company shall have filed with the SEC any amendment or
supplement to the final prospectus) if used within the period which Company is
required to keep the registration to which such registration statement or
prospectus relates current under Section 2.4, or which arise out of or are based
upon the omission or alleged omission (if so used) to state a material fact
required to be stated in such prospectus or necessary to make the statements in
such prospectus not misleading; and will reimburse Shareholders and each such
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, or liability; provided, however, that Company shall
not be liable to any Shareholder or its underwriters or controlling persons in
any such case to the extent that any such loss, claim, damage, or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement or such
amendment or supplement, in reliance upon and in conformity with information
furnished to Company through a written instrument duly executed by Shareholders
or such underwriter specifically for use in the preparation thereof.
3.2. Indemnification by Shareholders. It shall be a condition
precedent to the obligation of Company to include in any registration statement
any Registrable Securities of Shareholders that Company shall have received from
Shareholders an undertaking, reasonably satisfactory to Company and its counsel,
to indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 3.1) Company, each director of Company, each officer of Company
who shall sign the registration statement, and any person who controls Company
within the meaning of the Securities Act, (i) with respect to any statement or
omission from such registration statement, or any amendment or supplement to it,
if such statement or omission was made in reliance upon and in conformity with
information furnished to Company through a written instrument duly executed by
Shareholders specifically for use in the preparation of such registration
statement or amendment or supplement, and (ii) with respect to compliance by
Shareholders with applicable laws in effecting the sale or other disposition of
the securities covered by such registration statement.
3.3 Indemnification Procedures. Promptly after receipt by an
indemnified party of notice of the commencement of any action involving a claim
referred to in the preceding Sections of this Article III, the indemnified party
will, if a resulting claim is to be made or may be made against and indemnifying
party, give written notice to the indemnifying party of the commencement of the
action. If any such action is brought against an indemnified party, the
indemnifying party will be entitled to participate in and to assume the defense
of the action with counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume defense of the action, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses incurred by the
latter in connection with the action's defense. An indemnified party shall have
the right to employ separate counsel in any action or proceeding and participate
in the defense thereof, but the fees and expenses of such counsel shall be at
such indemnified party's expense unless (a) the employment of such counsel has
been specifically authorized in writing by the indemnifying party, which
authorization shall not be unreasonably withheld, (ii) the indemnifying party
has not assumed the defense and employed counsel reasonably satisfactory to the
indemnified party within 30 days after notice of any such action or proceeding,
or (iii) the named parties to any such action or proceeding (including any
impleaded parties) include the indemnified party and the indemnifying party and
the indemnified party shall have been advised by such counsel that there may be
one or more legal defenses available to the indemnified party that are different
from or additional to those available to the indemnifying party (in which case
the indemnifying party shall not have the right to assume the defense of such
action or proceeding on behalf of the indemnified party), it being understood,
however, that the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to all local counsel which is necessary, in the good
faith opinion of both counsel for the indemnifying party and counsel for the
indemnified party in order to adequately represent the indemnified parties) for
the indemnified party and that all such fees and expenses shall be reimbursed as
they are incurred upon written request and presentation of invoices. Whether or
not a defense is assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent. No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term the giving by the
claimant or plaintiff, to the indemnified party, of a release from all liability
in respect of such claim or litigation.
3.4. Contribution. If the indemnification required by this
Article III from the indemnifying party is unavailable to or insufficient to
hold harmless an indemnified party in respect of any indemnifiable losses,
claims, damages, liabilities, or expenses, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result of
such losses, claims, damages, liabilities, or expenses in such proportion as is
appropriate to reflect (i) the relative benefit of the indemnifying and
indemnified parties and (ii) if the allocation in clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect the relative
benefit referred to in clause (i) and also the relative fault of the indemnified
and indemnifying parties, in connection with the actions which resulted in such
losses, claims, damages, liabilities, or expenses, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and the
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact, has been made by, or relates to information supplied by,
such indemnifying party or parties, and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such action. The
amount paid or payable by a party as a result of the losses, claims, damage,
liabilities, and expenses referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
any investigation or proceeding. Company and Shareholders agree that it would
not be just and equitable if contribution pursuant to this Section 3.4 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the prior
provisions of this Section 3.4.
Notwithstanding the provisions of this Section 3.4, no
indemnifying party shall be required to contribute any amount in excess of the
amount by which the total price at which the securities were offered to the
public by the indemnifying party exceeds the amount of any damages which the
indemnifying party has otherwise been required to pay by reason of an untrue
statement or omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such a fraudulent
misrepresentation.
ARTICLE IV
OTHER AGREEMENTS
4.1. Other Registration Rights. Company agrees that it will
not grant to any party registration rights which would allow such party to limit
Shareholders' priority for the sale or distribution of Registrable Securities
upon the exercise of a demand registration right pursuant to Section 2.2.
4.2. Expenses. All expenses incurred by Company in connection
with any registration statement covering Registrable Securities offered by
Shareholders, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National Association of
Securities Dealers, Inc.), printing expenses, fees and disbursements of counsel
(except for the fees and disbursements of counsel for Shareholders) and of the
independent certified public accountants (except, in the case of any special
audits, if required in connection with any such registration, Shareholders'
proportionate share of their expense as provided in Section 2.4), and the
expense of qualifying such shares under state blue sky laws, shall be borne by
Company, including such expenses of any registration delayed by the Company
under the fourth paragraph of Section 2.2; provided, however, that Company shall
not be required to pay for any expenses of any registration proceeding begun
pursuant to Section 2.2 if the registration request is subsequently withdrawn at
the request of the Apollo/Blackstone Shareholders (in which case the
Apollo/Blackstone Shareholders shall bear such expenses, each such Shareholder
to bear its pro rata share of the expense based on the number of Registrable
Securities such Apollo/Blackstone Shareholder intended to include in such
registration compared to the total number of Registrable Securities all of such
Apollo/Blackstone Shareholders intended to include in such registration), unless
the Apollo/Blackstone Shareholders agree to forfeit their right to one demand
registration under Section 2.2; provided further, however, that if at the time
of such withdrawal, the Apollo/Blackstone Shareholders have learned of a
material adverse change in the condition, business, or prospects of the Company
from that known at the time of its request, then the Apollo/Blackstone
Shareholders shall not be required to pay any of such expenses and shall retain
their rights pursuant to Section 2.2. Company's obligations under this Section
4.2 shall apply to each registration under the Securities Act or state blue sky
legislation pursuant to Section 2.2. However, all underwriting expenses incurred
by Shareholders, including underwriter's discounts and commissions and legal,
accounting and similar expenses, shall be borne by Shareholders.
4.3. Dispositions During Registration. Each Shareholder agrees
that, without the consent of the managing underwriter(s) in an underwritten
offering in respect of Common Stock or other Subject Securities, it will not
effect any sale or distribution of Common Stock or other Subject Securities
(other than Registrable Securities included in such offering), during the ten
(10) day period prior to, and during the ninety (90) day period beginning on,
the effective date of the registration statement filed by the Company in respect
of such underwritten offering, or any shorter period as may apply to the Company
and its affiliates.
4.4. Transfer of Rights. All rights of Shareholders under this
Agreement shall be transferable by Shareholders to a Related Transferee (as
defined in the Shareholders Agreement) who acquires Registrable Securities in
compliance with Section 4.1(f) of the Shareholders Agreement and who executes an
instrument in form and substance satisfactory to the Company in which it agrees
to be bound by the terms of this Agreement as if an original signatory hereto,
in which case such Related Transferee shall thereafter be a "Shareholder" for
all purposes of this Agreement. The incidental registration rights or benefits
of this Agreement and the demand registration rights, including indemnification
by Company, shall be transferable by Shareholders only in a transaction
permitted under Section 4.1(c) or 4.1(d) of the Shareholders Agreement to a
transferee that is not an Affiliate of the Company who receives at least an
aggregate of 1,000,000 shares of Common Stock, in the case of incidental
registration rights, or 2,500,000 shares of Common Stock (or securities
convertible into such number of shares of Common Stock) or such lesser number of
shares as would yield gross proceeds of not less than $50 million (as calculated
in accordance with the first paragraph of Section 2.2) for each right to demand
registration, in the case of demand registration rights. In the case of any
assignment, the party or parties who have the rights and benefits of
Shareholders under this Agreement shall become parties to and be subject to this
Agreement, and shall not, as a group, have the right to request any greater
number of registrations than Shareholders would have had if no assignment had
occurred. Upon any transfer of the registration rights or benefits of this
Agreement, Shareholders shall give Company written notice prior to or promptly
following such transfer stating the name and address of the transferee and
identifying the securities with respect to which such rights are being assigned.
Such notice shall include or be accompanied by a written undertaking by the
transferee to comply with the obligations imposed hereunder. In the event any
registration rights are transferred in accordance with the terms of this
Agreement, any actions required to be taken by Shareholders will be taken with
the approval of the holders of such registration rights who hold a majority of
the Registrable Securities, whose actions shall bind all such holders of such
registration rights provided that, any actions required to be taken by the
Apollo/Blackstone Shareholders will be taken with the approval of the holders of
such registration rights who hold a majority of the Registrable Securities
originally held by the Apollo/Blackstone Shareholders or in such other manner as
the Apollo/Blackstone Shareholders shall agree, whose actions shall bind all
holders (including all non-Apollo/Blackstone Shareholders) of such registration
rights..
4.5. Best Registration Rights. If the Company grants to any
Person with respect to any security issued by the Company or any of its
Affiliates registration rights that provide for terms that are in any manner
more favorable to the holder of such registration rights than the terms granted
to the Shareholders other than the number of demand registrations or the minimum
amount of shares required to exercise demand registration rights (or if the
Company amends or waives any provision of any agreement providing registration
rights of others or takes any other action whatsoever to provide for terms that
are more favorable to other holders than the terms provided to the Shareholders
other than the number of demand registrations or the minimum amount of shares
required to exercise demand registration rights), then this Agreement shall
immediately be deemed amended to provide the Shareholders with any (or all) of
such more favorable terms as Shareholders shall elect to include herein. The
Company shall promptly give notice to the Shareholders of the granting of any
such registration rights to another Person.
ARTICLE V
MISCELLANEOUS
5.1. Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, fax or air courier
guaranteeing delivery:
(a) If to the Company, to:
Allied Waste Industries, Inc.
00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxx, Esq.
Fax: (000) 000-0000
with copies to:
Xxxxxxxxx Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. XxXxxxxxx, Esq.
Fax: (000) 000-0000
and to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
or to such other person or address as the Company shall furnish to Shareholders
in writing;
(b) If to Shareholders, to:
Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
and:
The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
and:
Greenwich Street Investments II, L.L.C.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Nissan
Fax: (000) 000-0000
and:
DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxxxxxx
Fax: (000) 000-0000
and
Attn: Xxx Xxxxx
Fax: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
or to such other person or address as Shareholders shall furnish to the Company
in writing.
All such notices, requests, demands and other communications
shall be deemed to have been duly given: at the time of delivery by hand, if
personally delivered; five (5) Business Days after being deposited in the mail,
postage prepaid, if mailed domestically in the United States (and seven (7)
Business Days if mailed internationally); when answered back, if telexed; when
receipt acknowledged, if telecopied; and on the Business Day for which delivery
is guaranteed, if timely delivered to an air courier guaranteeing such delivery.
5.2. Section Headings. The article and section headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement. References in this Agreement to a
designated "Article" or "Section" refer to an Article or Section of this
Agreement unless otherwise specifically indicated.
5.3. Governing Law. This Agreement shall be construed and
enforced in accordance with and governed by the law of Delaware, without regard
to its conflicts of laws principles.
5.4. Consent to Jurisdiction and Service of Process. Any legal
action or proceeding with respect to this Agreement or any matters arising out
of or in connection with this Agreement (other than the Shareholders Agreement,
which shall be governed solely by the analogous provisions thereof), and any
action for enforcement of any judgment in respect thereof shall be brought
exclusively in the state of federal courts located in the State of Delaware,
and, by execution and delivery of this Agreement, the Company and Shareholders
each irrevocably consent to service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, or by recognized international
express carrier or delivery service, to the Company or Shareholders at their
respective addresses referred to in this Agreement. The Company and the
Shareholders each hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement (other than the
Shareholders Agreement, which shall be governed solely by the analogous
provisions thereof) brought in the courts referred to above and hereby further
irrevocably waives and agrees, to the extent permitted by applicable law, not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing in this
Agreement shall affect the right of any party hereto to serve process in any
other manner permitted by law.
5.5. Amendments. This Agreement may be amended only by an
instrument in writing executed by all of its parties.
5.6. Entire Agreement. This Agreement and the Shareholders
Agreement constitute the entire agreement and understanding of the parties with
respect to the transactions contemplated hereby and thereby. The registration
rights granted under this Agreement supersede any registration, qualification or
similar rights with respect to any of the Shares granted under any other
agreement, and any of such preexisting registration rights are hereby
terminated. This Agreement may be amended only by a written instrument duly
executed by the parties or their respective successors or assigns; provided,
however, that any amendment or waiver by the Company shall be made only with the
prior approval of a majority of the entire Board of Directors of the Company
other than Shareholder Designees (as defined in the Shareholders Agreement).
5.7. Severability. The invalidity or unenforceability of any
specific provision of this Agreement shall not invalidate or render
unenforceable any of its other provisions. Any provision of this Agreement held
invalid or unenforceable shall be deemed reformed, if practicable, to the extent
necessary to render it valid and enforceable and to the extent permitted by law
and consistent with the intent of the parties to this Agreement.
5.8. Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute the same instrument.
5.9. Shareholder Action. The Company shall be entitled to rely
upon any written notice, designation, or instruction signed by Apollo Capital
Management IV, L.P. or Apollo Capital Management II, Inc, as the case may be,
and BCP (the "Representatives") as a notice, designation or instruction of all
Shareholders and the Company shall not be liable to any Shareholder if the
Company acts in accordance with and relies upon such writing; provided, however,
that any such notice, designation or instruction shall not (in the sole good
faith determination of the Company) have a disproportionate effect upon any of
the Shareholders. Notwithstanding the foregoing, however, the Company shall not
be entitled to rely upon any notice, designation or instruction signed by the
Representatives as a notice, designation or instruction of the DLJ Shareholder,
the Greenwich Street Stockholder if such notice, designation or instruction
relates to Section 2.1, 4.4 or 5.5 of this Agreement (the "Specific Rights"). In
that regard, each of the Shareholders acknowledges that the Representatives have
full power and authority to act on their behalf provided, however, that none of
the DLJ Shareholders and the Greenwich Street Stockholders acknowledge the power
or authority of the Representatives to act on their behalf with respect to the
Specific Rights.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
ALLIED WASTE INDUSTRIES, INC.
By:___________________________
Name:
Title:
APOLLO INVESTMENT FUND IV, L.P.
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors IV, L.P.
its General Partner
By: Apollo Capital Management IV, Inc.
its General Partner
By:__________________________
Name:
Title:
APOLLO/AW LLC
By: Apollo Management IV, L.P.
its Manager
By: AIF IV Management, Inc.
its General Partner
By:__________________________
Name:
Title:
APOLLO INVESTMENT FUND III, L.P.
APOLLO OVERSEAS PARTNERS III, L.P.
APOLLO (UK) PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
its General Partner
By: Apollo Capital Management II, Inc.
its General Partner
By:__________________________
Name:
Title:
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS III X.X.
XXXXXXXXXX FAMILY INVESTMENT PARTNERSHIP III L.P.
BY: Blackstone Management Associates III L.L.C.
its General Partner
By:__________________________
Name:
Title:
BLACKSTONE CAPITAL PARTNERS II MERCHANT
BANKING FUND, X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS II, X.X.
XXXXXXXXXX FAMILY INVESTMENT PARTNERSHIP II, L.P.
By: Blackstone Management Associates II L.L.C.
its General Partner
By:_________________________
Name:
Title:
GREENWICH STREET CAPITAL PARTNERS II, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By:_________________________
Name:
Title:
GSCP OFFSHORE FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By:_________________________
Name:
Title:
GREENWICH FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By:________________________
Name:
Title:
GREENWICH STREET EMPLOYEES FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By:_________________________
Name:
Title:
TRV EXECUTIVE FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By:_________________________
Name:
Title:
DLJMB FUNDING II, INC.
By:________________________
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:_________________________
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:___________________________
Name:
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By:___________________________
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By:__________________________
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:__________________________
Name:
Title:
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:___________________________
Name:
Title:
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By:____________________________
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:___________________________
Name:
Title:
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By:___________________________
Name:
Title:
DLJ ESC II L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By:___________________________
Name:
Title:
