EXHIBIT 10.60
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Second Amended and Restated Registration Rights
Agreement, dated as of December 18, 2003 (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 II L.P., a Cayman Islands limited partnership, Blackstone Offshore
Capital Partners III L.P., a Cayman Islands limited partnership, Blackstone
Family Investment Partnership II L.P., a Delaware limited partnership,
Blackstone Family Investment Partnership III L.P., a Delaware limited
partnership, Greenwich Street Capital Partners II, L.P., a Delaware 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, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (collectively, the "Shareholders"), on the
other hand, amending and restating in its entirety the Amended and Restated
Registration Rights Agreement dated as of July 30, 1999 (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, on July 30, 1999, the Company and certain of the
Shareholders entered into a Preferred Stock Purchase Agreement (the "Purchase
Agreement") pursuant to which certain of the Shareholders purchased an aggregate
of 1,000,000 shares of Senior Convertible Preferred Stock, par value $.10 per
share, of the Company ("Senior Preferred Stock"), which is convertible into
shares of common stock, par value $.01 per share, of the Company (the "Common
Stock");
WHEREAS, the Company and the Shareholders have entered into an
Exchange Agreement, dated as of July 31, 2003 (the "Exchange Agreement"),
pursuant to which, upon the terms and subject to the conditions set forth in the
Exchange Agreement, the Shareholders will exchange their shares of Senior
Preferred Stock for shares of Common Stock to be issued by the Company (the
"Exchange");
WHEREAS, concurrently herewith, the Company and Shareholders
are entering into a Third Amended and Restated Shareholders Agreement (the
"Shareholders Agreement"), which shall become effective at the time of the
closing of the Exchange; and
WHEREAS, a condition to closing the Exchange is that the
Company and the Shareholders enter into a Supplementary Registration Rights
Agreement and the Company and the Shareholders agree that this Agreement fully
incorporates the terms of the Supplementary Registration Rights Agreement and
the execution and delivery of this Agreement by the Company and the Shareholders
satisfies the conditions in the Exchange Agreement relating to entry into the
Supplementary Registration Rights Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, agree to amend and restate the Original Agreement in its entirety as
follows, effective upon the closing of the purchase of the Exchange:
ARTICLE I
Definitions
1.1. Certain Definitions. In this Agreement:
"Apollo" means Apollo Advisors II, L.P., a Delaware limited
partnership, on behalf of one or more managed funds.
"Apollo/Blackstone Shareholders" shall have the meaning set
forth in the Shareholders Agreement.
- 2 -
"Blackstone" means Blackstone Capital Partners III Merchant
Banking Fund L.P., a Delaware limited partnership, on behalf of one or more
managed funds.
"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 ▇▇▇▇▇▇▇, Inc. (the "▇▇▇▇▇▇▇ Block"
and, together with the TPG Block, the "Original Shares"), any shares of Common
Stock received in exchange for the Senior Preferred Stock pursuant to the
Exchange Agreement (such shares, the "Additional Shares", together with the
Original Shares, the "Shares"), and any additional shares of Common Stock
acquired by Shareholders in compliance with the Shareholders Agreement or
otherwise acquired by the Shareholders prior to the date hereof in compliance
with their agreements with the Company, and any additional shares of Common
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.
"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 ▇-▇, ▇-▇, 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
- 3 -
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
- 4 -
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, 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
- 5 -
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.
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 2.4 and 2.5, 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
(as such number may be appropriately adjusted to reflect stock splits, reverse
stock
- 6 -
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 over the ten
trading day period immediately preceding the date of the written request
hereunder. 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
- 7 -
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. Shelf Registration Rights. In addition to the other
rights under this Agreement of the Shareholders who are party to this Agreement,
at any time after the first anniversary of the acquisition of shares of Common
Stock pursuant to the Exchange Agreement, upon the written request of the
Apollo/Blackstone Shareholders, the Company shall prepare and file or cause to
be prepared and filed with the SEC as promptly as reasonably practicable a
registration statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act (a "Shelf Registration
Statement") registering the resale from time to time by the Shareholders and the
Related Transferees (as defined in the Shareholders Agreement) thereof of all of
the Registrable Securities (the "Shelf Registration Statement"). The Shelf
Registration Statement shall be on Form S-3, or another appropriate form
permitting registration of such Registrable Securities for resale by such
Shareholders or the Related Transferees thereof in accordance with the methods
of distribution reasonably elected by the Shareholders or Related Transferees
thereof and set forth in the Shelf Registration Statement. The Apollo/Blackstone
Shareholders shall be entitled to only one request for a Shelf Registration
Statement pursuant to this Section.
The Company shall use reasonable efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act and to
keep the Shelf Registration Statement continuously effective under the
Securities Act for a period of four years following its being declared effective
(the "Effectiveness Termination Date"); provided, however, that such
Effectiveness Termination Date shall be increased by the number of days that the
Shelf Registration Statement is delayed or suspended pursuant to this Section
2.3.
In connection with any sales pursuant to the Shelf
Registration Statement, reasonable efforts shall be made not to knowingly sell
to any single buyer, acting individually or with others, who, after taking
account of the sales, will own more than 9% of the Total Voting Power (as
defined in the Shareholders Agreement).
The Company may delay the filing of the Shelf Registration
Statement, and any amendments or supplements thereto, or delay its
effectiveness, for a reasonable period (but not longer than 90 days) if, in the
sole judgment of the Company's Board of
- 8 -
Directors, (i) delay is necessary in light of pending financing transactions,
corporate reorganizations, or other major events involving the Company, or (ii)
filing at the time requested would materially and adversely affect the business
or prospects of the Company in view of disclosure that may be thereby required.
Once the cause of the delay is eliminated, the Company shall promptly notify the
Shareholders and, promptly after Shareholders notify the Company to proceed, the
Company shall file a Shelf Registration Statement or any amendments or
supplements thereto and begin or resume performance of its other obligations
under this Agreement and the Registration Rights Agreement.
Subject to the provisions of this Section 2.3, the Company
shall have the right at any time to require that the Shareholders suspend
further open market offers and sales of the Registrable Shares whenever, and for
so long as, in the reasonable judgment of the Company based upon the advice of
legal counsel, there is in existence material undisclosed information or events
with respect to the Company the disclosure of which would materially and
adversely affect the business or prospects of the Company or suspension is
necessary in light of pending financing transactions, corporate reorganizations,
or other major events involving the Company (the "Suspension Right"). In the
event the Company exercises the Suspension Right, such suspension will continue
for the period of time (the "Suspension Period") reasonably necessary for the
disclosure to occur at a time that is not materially detrimental to the Company
and its stockholders or until such time as the information or event is no longer
material, each as determined in good faith by the Company based upon the advice
of legal counsel, or for the transactions or other major events to be completed
or terminated. The period during which the availability of the Shelf
Registration Statement and any prospectus is suspended shall, without the
Company incurring any obligation to pay liquidated damages, not, in the
aggregate exceed 120 days in any twelve (12) month period. The Company will
reasonably promptly give the Shareholders notice of any such suspension and
will, as promptly as reasonably practicable after the Suspension Period
terminates, allow the resumption of the use of the Shelf Registration Statement
and, if required to reflect such material corporate development or major event,
prepare a supplement or amendment to the Shelf Registration Statement .
In the event that the Shareholders should elect to make an
underwritten offering or distribution of the Registrable Shares after the Shelf
Registration Statement has been declared effective, the number of requests for
registration permitted under Section 2.2 of this Agreement shall be reduced by
one (1) for each such underwritten offering.
If there has been filed an amendment to the Shelf Registration
Statement relating to an underwritten offering then either Apollo or Blackstone
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
- 9 -
the sole judgment of either Apollo or Blackstone, 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.
2.4. Registration Conditions. Notwithstanding any other
provision of this Agreement, Company shall not be required to effect a
registration of any securities under either Section 2.1 or Section 2.2 of this
Agreement, 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, 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
- 10 -
(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.
2.5. 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) With respect to registrations pursuant to
either Section 2.1 or Section 2.2, 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. With respect to any registration under
this Article II, 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 2.5, 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
- 11 -
described in the second sentence of Section 2.5(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
- 12 -
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
- 13 -
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.
- 14 -
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 2.5, 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)
- 15 -
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
- 16 -
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.
- 17 -
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 or a registration pursuant to Section 2.3.
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 2.5), 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 or an underwritten
offering under the Shelf Registration Statement 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 or pursuant to Section
2.3. 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
- 18 -
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 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
- 19 -
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.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
- 20 -
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.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and:
The Blackstone Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
- 21 -
and:
Greenwich Street Investments II, L.L.C.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Stroock & Stroock & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and:
DLJ Merchant Banking II, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Shearman & Sterling LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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.
- 22 -
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).
- 23 -
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.
- 24 -
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:
- 25 -
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:
- 26 -
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND ▇.▇.
▇▇▇▇▇▇▇▇▇▇ OFFSHORE CAPITAL PARTNERS III ▇.▇.
▇▇▇▇▇▇▇▇▇▇ FAMILY INVESTMENT PARTNERSHIP III L.P.
BY: Blackstone Management Associates III 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:
- 27 -
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:
- 28 -
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
- 29 -
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:
- 30 -
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:
- 31 -
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By:____________________________________________
Name:
Title:
- 32 -
DLJ ESC II L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By:____________________________________________
Name:
Title:
_______________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________________________
▇▇▇▇ ▇▇▇▇▇▇▇
_______________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
- 33 -
BLACKSTONE CAPITAL PARTNERS II
MERCHANT BANKING FUND ▇.▇.
▇▇▇▇▇▇▇▇▇▇ OFFSHORE CAPITAL PARTNERS II ▇.▇.
▇▇▇▇▇▇▇▇▇▇ FAMILY INVESTMENT PARTNERSHIP II L.P.
By: Blackstone Management Associates II L.L.C.
its General Partner
By:___________________________________________
Name:
Title:
- 34 -
