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IESI CORPORATION
A DELAWARE CORPORATION
STOCK PURCHASE AGREEMENT
Dated as of October 10, 2003
Series E Convertible Preferred Stock
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ARTICLE I PURCHASE AND SALE OF THE STOCK...........................1
1.1 Stockholder Approval.........................................1
1.2 Purchase and Sale............................................1
1.3 Purchase Price...............................................1
1.4 Closing Fee..................................................2
1.5 Time and Place of Transaction................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY............2
2.1 Due Organization and Qualification; Subsidiaries; Due
Authorization................................................2
2.2 No Conflicts or Defaults.....................................3
2.3 Capitalization...............................................4
2.4 Subsidiaries; Investments....................................5
2.5 Financial Statements.........................................5
2.6 Further Financial Matters....................................5
2.7 Taxes........................................................6
2.8 Indebtedness; Contracts; No Defaults.........................7
2.9 Personal Property............................................8
2.10 Real Property................................................9
2.11 Compliance with Law.........................................10
2.12 Permits and Licenses........................................10
2.13 Environmental, Health, and Safety Matters...................11
2.14 No Adverse Changes..........................................12
2.15 Litigation..................................................12
2.16 Insurance...................................................13
2.17 Authorizations..............................................13
2.18 Certificate of Incorporation and By-laws; Minute Books......13
2.19 Employee Benefit Plans......................................13
2.20 Intellectual Property.......................................15
2.21 Transactions with Affiliates................................15
2.22 Brokers.....................................................15
2.23 Securities Matters..........................................15
2.24 Miscellaneous...............................................16
ARTICLE III REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER........16
3.1 Due Authorization; Valid Obligation.........................16
3.2 No Conflicts................................................16
3.3 Authorizations..............................................17
3.4 Purchase for Investment.....................................17
3.5 Investment Experience.......................................17
3.6 Information; Projections....................................17
3.7 Restricted Securities.......................................18
3.8 Miscellaneous...............................................18
ARTICLE IV ADDITIONAL AGREEMENTS...................................18
4.1 Further Investigation.......................................18
4.2 Confidentiality.............................................19
4.4 Preserve Accuracy of Representations and Warranties
of the Company..............................................19
4.5 Consents and Waivers........................................20
4.6 Waiver of Preemptive Rights.................................20
ARTICLE V CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS.........20
5.1 Due Performance.............................................20
5.2 Accuracy of Representations and Warranties..................20
5.3 Stockholders' Agreement.....................................20
5.4 Registration Rights Agreement...............................21
5.5 Amended Charter.............................................21
5.6 Securities Law Compliance...................................21
5.7 Closing Documents...........................................21
5.8 No Claims...................................................22
5.9 Approvals, Consents and Waivers.............................22
5.10 No New Law or Regulation....................................22
5.11 Compliance with Applicable Laws.............................22
5.12 No Material Adverse Change..................................23
5.13 Opinion.....................................................23
5.14 Warrant Holder Waivers......................................23
5.15 Employment Agreement Waivers................................23
5.16 Other Matters...............................................23
5.17 Satisfaction of Counsel.....................................24
ARTICLE VI CONDITIONS TO THE OBLIGATIONS OF THE COMPANY............24
6.1 Due Performance.............................................24
6.2 Accuracy of Representations and Warranties..................24
ii
6.3 Amended Charter.............................................24
6.4 Certificate.................................................24
6.5 No Claims...................................................24
6.6 Approvals, Consents and Waivers.............................25
6.7 Certain Agreements..........................................25
6.8 No New Law or Regulation....................................25
6.9 Satisfaction of Counsel.....................................25
ARTICLE VII INDEMNIFICATION.........................................25
7.1 Indemnity of Purchasers.....................................25
7.2 Indemnification Procedure...................................26
ARTICLE VIII AFFIRMATIVE COVENANTS OF THE COMPANY....................26
8.1 Financial Statements and Other Information..................26
8.2 Rights of Inspection........................................28
8.3 Reservation of Common Stock.................................28
8.4 Use of Proceeds.............................................28
ARTICLE IX TERMINATION.............................................28
9.1 Termination.................................................28
9.2 Procedure and Effect of Termination.........................29
ARTICLE X MISCELLANEOUS...........................................29
10.1 Survival of Representations, Warranties and Agreements......29
10.2 Expenses....................................................30
10.4 Notice......................................................30
10.5 Entire Agreement............................................31
10.6 Successors and Assigns......................................31
10.7 Governing Law; Submission to Jurisdiction...................31
10.8 Counterparts................................................32
10.9 Knowledge...................................................32
10.10 Construction................................................32
10.11 Severability................................................32
ARTICLE XI DEFINITIONS.............................................32
11.1 Defined Terms...............................................32
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EXHIBITS
Exhibit A Amended Charter
Exhibit B Stockholders' Agreement
Exhibit C Registration Rights Agreements
Exhibit D Fourth Amended and Restated By-laws
SCHEDULES
Schedule 2.1 Subsidiaries
Schedule 2.2 Conflicts
Schedule 2.3 Capitalization and Stockholder List
Schedule 2.4 Subsidiaries; Investments
Schedule 2.5 Financial Statements
Schedule 2.6 Projections and Certain Liabilities
Schedule 2.7 Taxes
Schedule 2.8 Operating Agreements
Schedule 2.9 Personal Property
Schedule 2.10 Real Property
Schedule 2.11 Compliance with Law
Schedule 2.12 Permits and Licenses
Schedule 2.13 Environmental, Health and Safety Matters
Schedule 2.15 Litigation
Schedule 2.16 Insurance
Schedule 2.19 Employee Benefit Plans
Schedule 2.20 Intellectual Property
Schedule 2.21 Affiliate Transactions
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STOCK PURCHASE AGREEMENT
------------------------
STOCK PURCHASE AGREEMENT, dated as of October 10, 2003, by and
among IESI Corporation, a Delaware corporation (the "Company") and the parties
listed on the signature pages annexed hereto (each individually, a "Purchaser"
and collectively, the "Purchasers").
W I T N E S S E T H:
WHEREAS, each Purchaser desires to acquire from the Company,
and the Company desires to sell to such Purchasers, that number of shares of the
Company's Series E Preferred Stock set forth on such Purchaser's signature page
annexed hereto, on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and of the
mutual representations, warranties and agreements set forth herein, the parties
hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE STOCK
------------------------------
1.1 Stockholder Approval
--------------------
Subject to the terms and conditions of this Agreement, the
Company shall authorize and seek (a) as soon as practicable after the date
hereof, the requisite approval of its stockholders, in accordance with
applicable law and its certificate of incorporation, to effect the authorization
and issuance of new Series E Preferred Stock and the adoption of the Fifth
Amended and Restated Certificate of Incorporation substantially in the form set
forth on Exhibit A hereto (the "Amended Charter"), (b) the exercise or waivers
of existing preemptive rights in connection with the issuance of the Series E
Preferred Stock to the Purchasers, and (c) the approval of all other
transactions contemplated by this Agreement. Following stockholder approval of
the Amended Charter under applicable law, and prior to the Closing, the Company
shall file the Amended Charter.
1.2 Purchase and Sale
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Subject to the terms and conditions of this Agreement, on the
Closing Date, the Company shall issue and deliver to each Purchaser, and each
Purchaser agrees to purchase from the Company on the Closing Date, that number
of authorized but unissued shares of Series E Preferred Stock set forth on such
Purchaser's signature page annexed hereto (all such shares of Series E Preferred
Stock, the "Shares").
1.3 Purchase Price
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The purchase price for each Share is One Thousand Dollars
($1,000) and the aggregate purchase price for all the Shares is up to Fifty-Five
Million Dollars ($55,000,000), payable on the Closing Date by wire transfer of
immediately available funds to the Company
against the issuance and delivery to each Purchaser of a fully-executed stock
certificate in due form evidencing the Shares being purchased by such Purchaser
on the Closing Date.
1.4 Closing Fee
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The Company shall pay to each Purchaser, or such Person as the
Purchaser shall designate in writing to the Company not less than three (3) days
prior to the Closing Date, on the Closing Date relating to the purchase and sale
of the Shares being purchased by such Purchaser as additional consideration for
the purchase of such Shares hereunder, a fee (the "Closing Fee") equal to three
percent (3%) of the aggregate purchase price for the Shares purchased by such
Purchaser on the Closing Date payable by wire transfer of immediately available
funds on the Closing Date.
1.5 Time and Place of Transaction
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The consummation of the purchase and sale of the Shares by
each Purchaser (the "Closing") shall take place at the offices of XxXxxxxxx,
Will & Xxxxx, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on a date and time
as the Company and each Purchaser may mutually agree, but the Closing shall not
occur later than October 31, 2003 (the "Closing Date").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
As a material inducement to the Purchasers to enter into this
Agreement and purchase the Shares, the Company represents and warrants to each
Purchaser, as of the date hereof and as of the Closing Date, that:
2.1 Due Organization and Qualification; Subsidiaries; Due
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Authorization
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(a) Except as set forth in Item 2.1 of the Disclosure
Schedule, the Company and each Subsidiary are corporations duly incorporated,
validly existing and in good standing under the laws of their respective
jurisdictions of formation, with full corporate power and authority to own,
lease and operate their respective businesses and properties and to carry on
their respective businesses in the places and in the manner as presently
conducted and as presently proposed to be conducted. The Company and each
Subsidiary are in good standing as foreign corporations in each jurisdiction in
which the properties owned, leased or operated, or the businesses conducted, by
them requires such qualification except for any such failure, which when taken
together with all other failures, does not have and is not likely to have a
material adverse effect on the results of operations, financial condition,
assets or business of the Company and its Subsidiaries taken as a whole (a
"Material Adverse Effect").
(b) The Company does not own, directly or indirectly, any
capital stock, equity or interest in any corporation, firm, partnership, joint
venture or other entity, other than those (each, a "Subsidiary" and together,
the "Subsidiaries") set forth in Item 2.1 of the Disclosure Schedule of even
date herewith, which accompanies this Agreement and is incorporated herein by
reference (the "Disclosure Schedule"). Except as set forth in Item 2.1 of the
Disclosure Schedule, each Subsidiary is wholly-owned by the Company, all the
outstanding shares of capital
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stock of each Subsidiary are owned free and clear of all Liens, there is no
contract, agreement, arrangement, option, warrant, call, commitment or other
right of any character obligating any Subsidiary to issue, sell, redeem or
repurchase any of its securities, and there is no outstanding security of any
kind convertible into or exchangeable for securities of any Subsidiary.
(c) The Company has all requisite corporate power and
authority to execute and deliver this Agreement, the Second Amended and Restated
Stockholders' Agreement attached hereto as Exhibit B (the "Stockholders'
Agreement"), the Amended and Restated Subordinate Registration Rights Agreement
(the "Amended Subordinate Rights Agreement") and the form of Second Amended and
Restated Registration Rights Agreement (the "Second Amended Registration Rights
Agreement"), each attached hereto as Exhibit C (the Amended Subordinate Rights
Agreement and the Second Amended Registration Rights Agreement together, the
"Registration Rights Agreements") and, subject to the requisite stockholder
approval and the waivers referred to in Section 1.1 hereof (all of which shall
have been obtained on or prior to Closing), to consummate the transactions and
actions, including the adoption of the Amended Charter, contemplated hereby and
thereby. The Company has taken all corporate action necessary for the execution
and delivery of this Agreement, the Stockholders' Agreement, the Registration
Rights Agreements and, subject to the requisite stockholder approval and the
waivers and/or exercise of the preemptive rights referred to in Section 1.1
hereof (all of which approvals and waivers shall have been validly obtained on
or prior to Closing), the consummation of the transactions contemplated hereby
and thereby. This Agreement constitutes, and, when executed and delivered by the
Company, each of the Additional Agreements will constitute, the valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as may be affected by bankruptcy,
insolvency, moratoria or other similar laws affecting the enforcement of
creditors' rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefor may be brought.
2.2 No Conflicts or Defaults
------------------------
Except as set forth in Item 2.2 of the Disclosure Schedule,
the execution and delivery of this Agreement and the Additional Agreements by
the Company and the consummation of the transactions contemplated hereby and
thereby do not and will not (a) contravene the Amended Charter or by-laws of the
Company or (b) with or without the giving of notice or the passage of time and
subject to obtaining such consents prior to the Closing as are set forth in Item
2.2 of the Disclosure Schedule (i) violate, conflict with, or result in a breach
of, or a default or loss of rights under, any covenant, agreement, mortgage,
indenture, lease, instrument, permit or license to which the Company or any of
the Subsidiaries is a party or by which the Company or any of the Subsidiaries
or any of their respective assets are bound, or any judgment, order or decree,
or any law, rule or regulation to which the Company or any of the Subsidiaries
or any of their respective assets are subject, (ii) result in the creation of,
or give any party the right to create, any lien, charge, security interest,
encumbrance or any other right or adverse interest ("Liens") upon any of the
capital stock or assets of the Company or any of the Subsidiaries, (iii)
terminate or give any party the right to terminate, amend, abandon or refuse to
perform, any agreement, arrangement or commitment to which the Company or any of
the Subsidiaries is a party or by which the Company or any of the Subsidiaries
or any of their respective assets are bound, (iv) accelerate or modify, or give
any party the right to accelerate or
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modify, the time within which, or the terms under which, the Company or any of
the Subsidiaries is to perform any duties or obligations or receive any rights
or benefits hereunder, or (v) result in a violation of, or require any
authorization, consent, approval, exemption or other action by or notice or
declaration to, or filing with, any court or administrative or governmental body
or agency pursuant to, the certificate of incorporation or by-laws of the
Company or any Subsidiary, or any law, statute, rule or regulation to which the
Company or any Subsidiary is subject, or any agreement, instrument, order,
judgment or decree to which the Company or any Subsidiary is subject, except in
each case, for such violations, conflicts, breaches, defaults, terminations or
other events that would not, singly or in the aggregate, result in a Material
Adverse Effect. Except as set forth on Item 2.2 of the Disclosure Schedule, none
of the Subsidiaries is subject to any restrictions upon making loans or advances
or paying dividends to, transferring property to, or repaying any Indebtedness
owed to, the Company or another Subsidiary.
2.3 Capitalization
--------------
As of the date hereof, the authorized capital stock of the
Company consists of 3,600,000 shares of Class A Stock, of which 142,000 shares
are issued and outstanding, 450,000 shares of Class B Stock, of which 112,980.18
shares are issued and outstanding, 32,000 shares of the Series A Convertible
Preferred Stock (the "Series A Preferred Stock"), of which 32,000 shares are
issued and outstanding, 20,100 shares of Series B Convertible Preferred Stock
(the "Series B Preferred Stock"), of which 20,100 shares are issued and
outstanding, 55,000 shares of Series C Convertible Preferred Stock (the "Series
C Preferred Stock") of which 55,000 shares are issued and outstanding, and
145,000 shares of Series D Convertible Preferred Stock (the "Series D Preferred
Stock" and, collectively, together with the Series A Preferred Stock, the Series
B Preferred Stock and the Series C Preferred Stock, the "Existing Preferred
Stock") of which 48,500 shares are issued and outstanding. Set forth in Item 2.3
of the Disclosure Schedule is a list that accurately sets forth all of the
stockholders of the Company, their names, addresses and the number of shares of
each class and series of the Company's capital stock owned by each such
stockholder. All of the outstanding shares of Common Stock and Existing
Preferred Stock are, and the Shares when issued in accordance with the terms
hereof and the Amended Charter, will be, duly authorized, validly issued, fully
paid and nonassessable, and have not been or, with respect to the Shares, will
not be, issued in violation of any preemptive right of any stockholder of the
Company. Except as set forth in Item 2.3 of the Disclosure Schedule, none of the
Common Stock or the Existing Preferred Stock is, and none of the Shares will be,
subject to any preemptive or subscription right, any voting trust agreement or
other contract, agreement, arrangement, option, warrant, call, commitment or
other right of any character obligating or entitling the Company to issue, sell,
redeem or repurchase any of its securities, and there is no outstanding security
of any kind convertible into or exercisable or exchangeable for Common Stock.
The offer, issuance and sale of all of the outstanding shares of Common Stock
and Existing Preferred Stock issued prior to the date hereof were exempt from
registration under the Securities Act and applicable state securities laws.
Assuming the accuracy and completeness of the Purchasers' representations and
warranties contained in Article III hereof, the offer, sale and issuance of the
Shares pursuant to Section 1.2 of this Agreement, and the Common Stock upon
conversion of the Shares, do not and will not, as the case may be, require
registration under the Securities Act or any applicable state securities laws.
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2.4 Subsidiaries; Investments
-------------------------
Item 2.1 of the Disclosure Schedule accurately sets forth the
name of each Subsidiary, the jurisdiction of its incorporation and the Persons
owning the outstanding capital stock of such Subsidiary. Except as set forth in
Item 2.1 of the Disclosure Schedule, each Subsidiary is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, possesses all requisite corporate power and authority and all
material licenses, permits and authorizations necessary to own its properties
and to carry on its businesses as now being conducted and as presently proposed
to be conducted and is qualified to do business in every jurisdiction in which
its ownership of property or the conduct of its business requires it to qualify,
except when the failure to be so qualified would not, singly or in the
aggregate, have a Material Adverse Effect. All of the outstanding shares of
capital stock of each Subsidiary are validly issued, fully paid and
nonassessable, and except as set forth in Item 2.1 of the Disclosure Schedule,
all such shares are owned by the Company or another Subsidiary free and clear of
any Lien and not subject to any option or right to purchase any such shares.
Except as set forth on Item 2.4 of the Disclosure Schedule, neither the Company
nor any Subsidiary owns, or holds the right or has an obligation to acquire, any
shares of stock or any other Investment in any other Persons.
2.5 Financial Statements
--------------------
Item 2.5 to the Disclosure Schedule contains copies of the
consolidated balance sheets of the Company at December 31, 2002, March 31, 2003,
June 30, 2003 and August 31, 2003, and the related statements of operations,
stockholders' equity and cash flows for the respective fiscal year, three, six
and eight month periods then ended, including with respect to the Financial
Statements for the 2002 fiscal year, the notes thereto, as audited by Ernst &
Young LLP, certified public accountants ("E&Y") (all such statements being the
"Financial Statements"). Except as set forth in Item 2.5 to the Disclosure
Schedule or the notes to the Financial Statements, the Financial Statements,
together with the notes to the Financial Statements for the 2002 fiscal year,
have been prepared in accordance with U.S. generally accepted accounting
principles applied on a basis consistent throughout all periods presented. Such
statements present the financial position of the Company as of the dates and for
the periods indicated. The books of account and other financial records of the
Company have been maintained in accordance with good business practices.
2.6 Further Financial Matters
-------------------------
(a) Except as set forth in Item 2.6(a) of the Disclosure
Schedule, neither the Company nor any of the Subsidiaries has any material
liabilities or obligations, whether secured or unsecured, accrued, determined,
absolute or contingent, asserted or unasserted or otherwise, which are required
to be reflected or reserved in a balance sheet or the notes thereto under
generally accepted accounting principles, but which are not reflected in the
Financial Statements. As of the date hereof, the Company has no dividends
declared but not paid or in arrears.
(b) The forecasted balance sheet, operations statements and
cash flow statements for the years 2003 - 2005, dated August 26, 2003, of the
Company (the "Projections"), true and complete copies of which have been
delivered to the Purchasers and which are listed in Item
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2.6(b) of the Disclosure Schedule and attached as Exhibit 2 to the Disclosure
Schedule, were prepared in good faith on the assumptions stated therein, which
assumptions were believed and presently are believed to be fair and reasonable
in light of conditions existing at the time of delivery of such forecasts and
those presently existing, and represented, at the time of delivery, and continue
to represent the Company's reasonable estimate of its future financial
performance, it being recognized that such forecasts do not constitute a
warranty as to the future performance of the Company and that actual results may
vary from forecasted results.
(c) Except as set forth in Item 2.6(c) of the Disclosure
Schedule, since December 31, 2002, each of the Company and the Subsidiaries have
conducted their respective businesses, maintained their respective real property
and equipment and kept their respective books of account, records and files,
substantially in the same manner as previously conducted, maintained or kept and
solely in the ordinary course.
2.7 Taxes
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Except as indicated in Item 2.7 of the Disclosure Schedule,
each of the Company and each Subsidiary has timely filed all Tax Returns
required to be filed by it, and has paid all Taxes which have become due and
payable, or, with respect to Taxes which have accrued and are not yet due and
payable, the same have been properly reflected as a liability on the books and
records of the Company and adequate reserves therefor have been established. All
such Tax Returns have been properly prepared and are true, correct (and to the
extent such Tax Returns reflect judgments made by the Company or a Subsidiary,
as the case may be, such judgments were reasonable under the circumstances) and
complete in all material respects. Except as indicated in Item 2.7 of the
Disclosure Schedule, no extension for the filing of any Tax Return is currently
in effect. Except as indicated in Item 2.7 of the Disclosure Schedule, no Tax
Return or Tax Return liability of the Company or any Subsidiary has been audited
or is presently under audit or to the knowledge of the Company and its
Subsidiaries is proposed to be audited. All Taxes and any penalties, fines and
interest which have been asserted to be payable as a result of any audits have
been paid. Except as indicated in Item 2.7 of the Disclosure Schedule, neither
the Company nor any Subsidiary has given or been requested to give waivers of
any statute of limitations relating to the assessment of any Taxes (or any
related penalties, fines and interest). There are no claims, actions, suits or
taxing authority proceedings, or audits pending or, to the knowledge of the
Company, threatened, against the Company or any Subsidiary for Taxes. Except as
indicated in Item 2.7 of the Disclosure Schedule, all payments for withholding
Taxes, unemployment insurance and other amounts required to be paid for any Tax
periods (or portions thereof) ending on or prior to the Closing Date to any
governmental authority in respect of employment obligations of the Company and
each Subsidiary, including, without limitation, amounts payable pursuant to the
Federal Insurance Contributions Act, have been paid or shall be paid prior to
the Closing Date and have been duly provided for on the books and records of the
Company and in the Financial Statements. Except as indicated in Item 2.7 of the
Disclosure Schedule, no claim has ever been made by a Taxing authority in a
jurisdiction where the Company or any Subsidiary does not file Tax Returns that
the Company or Subsidiary is or may be subject to Taxes assessed by such
jurisdiction. Neither the Company nor any Subsidiary has been a member of an
Affiliated Group other than one consisting solely of two or more of the Company
and any of the Subsidiaries, or filed or been included in a combined,
consolidated or
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unitary income Tax Return, other than one filed by a group consisting solely of
two or more of the Company and any of the Subsidiaries.
2.8 Indebtedness; Contracts; No Defaults
------------------------------------
(a) Item 2.8 of the Disclosure Schedule sets forth a true,
complete and correct list of all material instruments, agreements, indentures,
mortgages, guarantees, notes, commitments, accommodations, letters of credit or
other arrangements or understandings, whether written or oral, to which the
Company or any Subsidiary is a party (collectively, the "Operating Agreements").
An agreement shall not be considered material for the purposes of this Section
2.8 or the definition of Operating Agreements if the agreement has a term of
less than one year, and if it (together with all related agreements) provides
for expenditures or receipts of less than $300,000 and has been entered into by
the Company or a Subsidiary in the ordinary course of business. In addition, set
forth in Item 2.8 of the Disclosure Schedule is an indication whether any
contract with any governmental body contains a renegotiation provision. To the
Company's knowledge, it is not party to any oral Operating Agreements.
Notwithstanding the foregoing, Item 2.8 of the Disclosure Schedule and Items
2.10 and 2.19 of the Disclosure Schedule name or describe, and the term
"Operating Agreement" shall include, each of the following to which the Company
or a Subsidiary is a party:
(i) each pension, profit sharing, stock option, employee
stock purchase or other plan or arrangement providing
for deferred or other compensation to employees or
any other employee benefit plan or arrangement, or
any collective bargaining agreement or any other
contract with any labor union, or severance
agreements, programs, policies or arrangements;
(ii) each contract for the employment of any officer,
individual employee or other Person on a full-time,
part-time, consulting or other basis providing annual
compensation in excess of $150,000 or providing for
any severance or other payment on or after
termination, or any contract relating to loans to
officers, directors or Affiliates ("Employment
Agreements");
(iii) each contract under which the Company or a Subsidiary
has advanced or loaned any other Person amounts in
the aggregate exceeding $300,000;
(iv) each agreement or indenture relating to borrowed
money or other Indebtedness or the mortgaging,
pledging or otherwise placing a Lien on any material
asset or material group of assets of the Company or a
Subsidiary;
(v) each guarantee of any obligation in excess of
$300,000 (other than by the Company of a Wholly-Owned
Subsidiary's debts or a guarantee by a Subsidiary of
the Company's debts or another Subsidiary's debts);
(vi) each lease or agreement under which the Company or
any Subsidiary is lessor of, or permits any third
party to hold or operate, any property, real or
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personal, owned or controlled by the Company or any
Subsidiary providing for annual rental payments in
excess of $300,000;
(vii) each agreement under which it has granted any Person
any registration rights (including, without
limitation, demand and piggyback registration
rights);
(viii) each contract or agreement prohibiting it from freely
engaging in any business or competing anywhere in the
world; and
(ix) any contract or agreement executed by the Company or
any Subsidiary relating to the acquisition of the
Seneca Xxxxxxx Landfill, including without
limitation, the Stock Purchase Agreement by and among
IESI NY Corporation, as buyer, and Xxxxx XxXxxx, as
seller, Seneca Xxxxxxx, Inc. and Macedon Homes
Incorporated, dated May 22, 2003 (the "Seneca Xxxxxxx
Purchase Agreement") and the contracts and agreements
contemplated thereby.
The Operating Agreements constitute all of the material contracts, agreements,
understandings and arrangements required for the operation of the business of
the Company and the Subsidiaries or which have a material effect thereon. True
and complete copies of all written Operating Agreements without schedules and
exhibits have previously been delivered or otherwise made available to the
Purchasers. Such schedules and exhibits contain no information which is material
to the provisions of the Operating Agreements.
(b) Except as disclosed in Item 2.8 of the Disclosure
Schedule, neither the Company, any Subsidiary, nor, to the Company's knowledge,
any other Person or entity is in breach in any material respect of, or in
default in any material respect under, any Operating Agreement and no event or
action has occurred, is pending or is threatened, which, after the giving of
notice, passage of time or otherwise, would constitute or result in such a
material breach or material default by the Company or any Subsidiary or, to the
knowledge of the Company, any other Person or entity except for such breaches as
would not have a Material Adverse Effect. Neither the Company nor any Subsidiary
has received any notice of default under any Operating Agreement to which it is
a party, which default has not been cured to the satisfaction of, or duly waived
by, the party claiming such default on or before the date hereof. All of the
Operating Agreements on Item 2.8 of the Disclosure Schedule are in all material
respects, valid, binding and enforceable in accordance with their respective
terms. Neither the Company nor any Subsidiary has any present expectation or
intention of not fully performing its obligations under any Operating Agreement;
and, neither the Company nor any Subsidiary has knowledge of any anticipated
breach by the other parties to any Operating Agreement except for such breaches
or anticipated breaches as would not, singly or in the aggregate, have a
Material Adverse Effect.
2.9 Personal Property
-----------------
Except as set forth in Item 2.9 of the Disclosure Schedule,
each of the Company and the Subsidiaries has good and marketable title to all of
its tangible personal property and
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assets, including, without limitation, all of the assets reflected in the
Financial Statements (except for assets that have been disposed of in the
ordinary course of business since December 31, 2002), free and clear of all
Liens or mortgages, except for (a) any Lien for current taxes not yet due and
payable, (b) restrictions, if any, on the disposition of securities as may be
imposed by federal or applicable state securities laws and (c) failures of title
or Liens as do not materially affect the value, marketability, operation or the
Company's and the Subsidiaries' use of such assets or as would not, singly or in
the aggregate, have a Material Adverse Effect.
2.10 Real Property
-------------
(a) Item 2.10(a) of the Disclosure Schedule sets forth a true
and complete list of all real property owned by the Company or any Subsidiary
(the "Owned Real Property"). Either the Company or a Subsidiary is the owner of
good and marketable title to such Owned Real Property and to all of the
structures located thereon, free and clear of all Liens, mortgages,
encroachments, restrictions on the use thereof, or other defects in title
(collectively, "Encumbrances"), except matters of record which do not reduce the
value or marketability, or interfere in any material way with use or occupancy
of the Owned Real Property or as would not, singly or in the aggregate, have a
Material Adverse Effect.
(b) Item 2.10(b)(i) of the Disclosure Schedule sets forth a
true, correct and complete list of all leases, subleases, licenses and other
agreements (collectively, the "Real Property Leases") under which the Company or
any Subsidiary uses or occupies, has the right to use or occupy, or leases the
right to use or occupy, now or in the future, any real property where the annual
rental obligation exceeds $300,000 (the land, buildings, and other improvements
covered by the Real Property Leases being herein called the "Leased Real
Property" and together with the Owned Real Property, the "Real Property").
Except as set forth in Items 2.10(b)(i) and (ii) of the Disclosure Schedule, (i)
the Company or a Subsidiary has a valid leasehold interest in the Leased Real
Property and (ii) each Real Property Lease is valid, binding and in full force
and effect with respect to the Company or a Subsidiary, as the case may be, and,
to the knowledge of the Company, to all other parties thereto; no notice of
default or termination under any Real Property Lease is outstanding; no
termination event or condition or uncured default on the part of the Company or
a Subsidiary, as the case may be, exists under any Real Property Lease, and no
event has occurred and no condition exists which, with the giving of notice or
the lapse of time or both, would constitute such a default or termination event
or condition with respect to the Company or a Subsidiary, as the case may be,
or, to the knowledge of the Company or any Subsidiary, any other party thereto,
in each case except for such defaults, terminations, events or conditions as
would not, singly or in the aggregate, have a Material Adverse Effect. The
Company and the Subsidiaries hold their respective leasehold estates under, and
any other interest in each applicable Real Property Lease, free and clear of all
Encumbrances except as set forth in Item 2.10(b)(ii) of the Disclosure Schedule.
The Company has previously delivered or otherwise made available to the
Purchasers true and complete copies of all the Real Property Leases involving
annual rental payments in excess of $300,000. Except as described in Item
2.10(b)(iii) of the Disclosure Schedule, no consent, waiver, approval or
authorization is required from the landlord under any Real Property Lease as a
result of the execution of this Agreement or the consummation of the
transactions contemplated hereby.
-9-
(c) The Real Property constitutes all of the material real
property owned, leased, occupied or otherwise utilized in connection with the
business of the Company and the Subsidiaries. Except as set forth in Item
2.10(c) of the Disclosure Schedule, other than the Company and the Subsidiaries,
there are no parties in possession or parties having any current or future right
to occupy any of the Real Property. Except as set forth in Item 2.10(c) of the
Disclosure Schedule, the Real Property is, in all material respects, in good
condition and repair and is sufficient and appropriate for the conduct of the
business of the Company and its Subsidiaries as currently conducted or as
currently contemplated to be conducted. Except as set forth in Item 2.10(c) of
the Disclosure Schedule, to the knowledge of the Company and its Subsidiaries,
the Real Property and, with respect to the Owned Real Property, all plants,
buildings and improvements located thereon conform in all material respects to
all applicable building, zoning and other laws, ordinances, rules and
regulations, except where the failure to do so would not reasonably be expected
to have a Material Adverse Effect. There exists no material violation of any
covenant, condition, restriction, easement, agreement or order affecting any
portion of the Real Property. Except as set forth in Item 2.10(c) of the
Disclosure Schedule, all improvements located on the Real Property have direct
access to a public road adjoining such Real Property except where the failure to
do so would not reasonably be expected to have a Material Adverse Effect. No
such improvements or accessways encroach on land not included in the Real
Property and no such improvement is dependent for its access, operation or
utility on any land, building or other improvement not included in the Real
Property. There is no pending or, to the knowledge of the Company or any
Subsidiary, threatened condemnation proceeding affecting any portion of the Real
Property.
(d) There are no outstanding options or rights of first
refusal with respect to the purchase or use of any of the Real Property, any
portion thereof or interest therein, except as set forth in Item 2.10(d) of the
Disclosure Schedule. Neither the Company nor any Subsidiary is obligated to
purchase or lease any real property, except as set forth in Item 2.10(d) of the
Disclosure Schedule.
2.11 Compliance with Law
-------------------
Except as set forth in Item 2.11 of the Disclosure Schedule,
neither the Company nor any Subsidiary has been or is conducting its respective
business or affairs in material violation of any applicable federal, state or
local law, ordinance, rule, regulation, court or administrative order, decree or
process. Neither the Company nor any Subsidiary has received any notice of
material violation or claimed material violation of any such law, ordinance,
rule, regulation, order, decree, process or requirement.
2.12 Permits and Licenses
--------------------
Except as set forth in Item 2.12 of the Disclosure Schedule,
each of the Company and the Subsidiaries have all certificates of occupancy,
rights, permits, certificates, licenses, franchises, approvals and other
authorizations as are reasonably necessary to conduct their respective
businesses and to own, lease, use, operate and occupy their respective assets
(including without limitation the Real Property), at the places and in the
manner now conducted and operated, except those the absence of which would not
have a Material Adverse Effect and all of the foregoing are in full force and
effect and have not been violated, except where the
-10-
failure to do so would not reasonably be expected to have a Material Adverse
Effect. Except as set forth in Item 2.12 of the Disclosure Schedule, as of the
date hereof, neither the Company nor any Subsidiary has received any written or
oral notice or claim pertaining to the failure to obtain, or the violation of,
any material permit, certificate, license, approval or other authorization
required by any federal, state or local agency or other regulatory body, the
violation of or failure of which to obtain would have a Material Adverse Effect.
2.13 Environmental, Health, and Safety Matters
-----------------------------------------
Except as set forth in Item 2.13 of the Disclosure Schedule:
(a) Without limiting the generality of Section 2.11, the
Company and the Subsidiaries have complied in all material respects and are in
compliance in all material respects with all Environmental, Health, and Safety
Requirements.
(b) Without limiting the generality of Section 2.11, the
Company and the Subsidiaries have obtained and complied in all material respects
with, and are, and immediately after the consummation of the transactions
contemplated by the Seneca Xxxxxxx Purchase Agreement shall be, in compliance in
all material respects, with, all material permits, licenses and other
authorizations that are required pursuant to Environmental, Health, and Safety
Requirements for the occupation of their facilities and the operation of their
business; and a list of all such material permits, licenses and other
authorizations is set forth in Item 2.13 of the Disclosure Schedule.
(c) Neither the Company nor any Subsidiary has received any
written or oral notice, report or other information regarding any actual or
alleged material violation of Environmental, Health, and Safety Requirements, or
any material liabilities or potential liabilities (whether accrued, absolute,
contingent, unliquidated or otherwise), including any investigatory, remedial or
corrective obligations, relating to any of them or its facilities arising under
Environmental, Health, and Safety Requirements.
(d) Neither the Company nor any Subsidiary has treated,
stored, disposed of, arranged for or permitted the disposal of, transported,
handled, or released any substance, including without limitation any hazardous
substance, or owned or operated any property or facility, in each case or in the
aggregate, in a manner that has given or would give rise to material liabilities
under Environmental, Health and Safety Requirements, including any liability for
response costs, corrective action costs, personal injury, property damage,
natural resources damages or attorney fees.
(e) Neither the execution nor the delivery of this Agreement,
nor the execution or delivery of the Seneca Xxxxxxx Purchase Agreement, will
result in any obligations for site investigation or cleanup, or notification to
or consent of government agencies or third parties, pursuant to any of the
so-called "transaction-triggered" or "responsible property transfer"
Environmental, Health, and Safety Requirements.
(f) Except as set forth in Item 2.13(f) of the Disclosure
Schedule, neither the Company nor any Subsidiary has expressly assumed or
undertaken any liability, including
-11-
without limitation, any obligation for material corrective or remedial action,
of any other Person relating to Environmental, Health, and Safety Requirements.
(g) No facts, events or conditions relating to the present
facilities, properties or operations of the Company or the Subsidiaries will
prevent, hinder or limit continued compliance with Environmental, Health, and
Safety Requirements, give rise to any investigatory, remedial or corrective
obligations pursuant to Environmental, Health, and Safety Requirements, or give
rise to any other material liabilities (whether accrued, absolute, contingent,
unliquidated or otherwise) pursuant to Environmental, Health, and Safety
Requirements, including without limitation, any relating to onsite or offsite
releases or threatened releases of hazardous materials, substances or wastes,
personal injury, property damage or natural resources damage except as would
not, singly or in the aggregate, have a Material Adverse Effect.
2.14 No Adverse Changes
------------------
Since December 31, 2002, there has not been (a) any material
adverse change in the business, prospects, the financial or other condition, or
the respective assets or liabilities of the Company and the Subsidiaries as
reflected in the Financial Statements, (b) any material loss sustained by the
Company or any Subsidiary, including, but not limited to any loss on account of
theft, fire, flood, explosion, accident or other calamity, whether or not
insured, which has materially and adversely interfered, or may materially and
adversely interfere, with the operation of the Company's or any Subsidiary's
business, or (c) to the best knowledge of the Company, any event, condition or
state of facts, including, without limitation, the enactment, adoption or
promulgation of any law, rule or regulation, the occurrence of which would have
a Material Adverse Effect.
2.15 Litigation
----------
(a) Except as set forth in Item 2.15 of the Disclosure
Schedule, there is no claim, dispute, action, suit, proceeding or investigation
pending or, to the knowledge of the Company, threatened, against or affecting
the business of the Company or any Subsidiary, or challenging the validity or
propriety of the transactions contemplated by this Agreement and the Additional
Agreements, at law or in equity or before any federal, state, local, foreign or
other governmental authority, board, agency, commission or instrumentality, nor
to the knowledge of the Company, has any such claim, dispute, action, suit,
proceeding or investigation been pending or threatened, during the twenty-four
(24) month period preceding the date hereof; (b) there is no outstanding
judgment, order, writ, ruling, injunction, stipulation or decree of any court,
arbitrator or federal, state, local, foreign or other governmental authority,
board, agency, commission or instrumentality, against or materially affecting
the business of the Company or any Subsidiary; (c) neither the Company nor any
Subsidiary is subject to any arbitration proceedings under collective bargaining
agreements or otherwise or, to the best of the Company's knowledge, and except
for inquiries and investigations by the New York City Trade Waste Commission,
any governmental investigations or inquiries (including, without limitation,
inquiries as to the qualification to hold or receive any license or permit) and,
to the best of the Company's knowledge, there is no basis for any of the
foregoing; (d) neither the Company nor any Subsidiary has received any written
or verbal inquiry from any federal, state, local, foreign or
-12-
other governmental authority, board, agency, commission or instrumentality
concerning the possible violation of any law, rule or regulation or any matter
disclosed in respect of its business.
2.16 Insurance
---------
Neither the Company nor any Subsidiary is in default with
respect to its obligations under any insurance policy maintained by it, and
neither the Company nor any Subsidiary has within the past twelve (12) months
been denied insurance coverage. The insurance coverage of the Company and its
Subsidiaries is customary for companies of similar size engaged in similar lines
of business. Except as set forth in Item 2.16 of the Disclosure Schedule, the
Company and the Subsidiaries do not have any self-insurance or co-insurance
programs, and the reserves set forth on the latest balance sheet are adequate to
cover all anticipated liabilities with respect to any such self-insurance or
co-insurance programs.
2.17 Authorizations
--------------
Any authorization, approval, order, license, permit, franchise
or consent of, declaration to, or filing or registration with, any court,
governmental authority or any other Person or entity which is not a party to
this Agreement or any Additional Agreement which is required in connection with
the execution, delivery and performance by the Company of this Agreement and the
Additional Agreements has been obtained or shall be obtained as of the Closing
Date. There is no pending or threatened claim, action, suit, investigation or
proceeding against the Company before any court, arbitrator or governmental
authority which, if determined adversely to the Company, would have a Material
Adverse Effect on the ability of the Company to perform its obligations under
this Agreement or the Additional Agreements.
2.18 Certificate of Incorporation and By-laws; Minute Books
------------------------------------------------------
The copies of the certificate of incorporation and by-laws (or
similar governing documents) of the Company and each Subsidiary, and all
amendments to each, access to which has been provided to counsel for the
Purchasers are true, correct and complete as of the date hereof. The minute
books of the Company and each Subsidiary contain true and complete records of
all meetings and consents in lieu of meetings of their respective board of
directors (and any committees thereof), or similar governing bodies, since the
time of their respective organization. The stock books of the Company and each
Subsidiary are true, correct and complete.
2.19 Employee Benefit Plans
----------------------
(a) Except as set forth in Item 2.19 of the Disclosure
Schedule, neither the Company nor any Subsidiary maintains or contributes or is
required to contribute to any employee benefit plan (as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")),
or any plans, programs, policies, practices, arrangements or contracts (whether
group or individual) providing for payments, benefits or reimbursements to
employees or former employees (or their beneficiaries and dependents) of the
Company or any Subsidiary. Each item listed on Item 2.19 of the Disclosure
Schedule is a "Benefit Plan."
-13-
(b) Each Benefit Plan that is intended to be qualified within
the meaning of Section 401(a) of the Code has received a determination from the
Internal Revenue Service (the "IRS") that such Benefit Plan is qualified under
Section 401(a) of the Code, and to the knowledge of the Company, nothing has
occurred since the date of such determination that could adversely affect the
qualification of such Benefit Plan.
(c) Except as set forth in Item 2.19 of the Disclosure
Schedule, neither the Company nor any Subsidiary has liability that exceeds
$500,000 with respect to any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA) that is subject to Section 302 of ERISA or
Section 412 of the Code or any "multiemployer plan" (as such term is defined in
Section 3(37) of ERISA).
(d) None of the Benefit Plans obligates the Company or any
Subsidiary to pay any separation, severance, termination or similar benefit
solely as a result of any transaction contemplated by this Agreement or solely
as a result of a change in control or ownership within the meaning of Section
280G of the Code.
(e) Except as set forth in Item 2.19 of the Disclosure
Schedule, each Benefit Plan and any related trust, insurance contract or fund
has been maintained, funded and administered in substantial compliance with its
respective terms and the terms of any applicable collective bargaining
agreements and in substantial compliance with all applicable laws and
regulations, including, but not limited to, ERISA and the Code. No asset of the
Company or any Subsidiary is subject to any lien under ERISA or the Code, and
neither the Company nor any Subsidiary has incurred any liability under Title IV
of ERISA or to the Pension Benefit Guaranty Corporation. There are no pending or
threatened actions, suits, investigations or claims with respect to any Benefit
Plan.
(f) The Company and each Subsidiary has complied with the
health care continuation requirements of Part 6 of Subtitle B of Title I of
ERISA; and neither the Company nor any Subsidiary has any obligation under any
Benefit Plan or otherwise to provide health or life insurance benefits to former
employees of the Company or Subsidiary or any other person, except as
specifically required by Part 6 of Subtitle B of Title I of ERISA.
(g) To the knowledge of the Company, neither the Company nor
any Subsidiary nor any other "disqualified person" (within the meaning of
Section 4975 of the Code) or "party in interest" (within the meaning of Section
3(14) of ERISA) has taken any action with respect to any of the Benefit Plans
which could subject any such Benefit Plan (or its related trust) or the Company
or any Subsidiary or any officer, director or employee of any of the foregoing
to any penalty or tax under Section 502(i) of ERISA or Section 4975 of the Code.
(h) Neither the Company nor any Subsidiary has any liability
with respect to any "employee benefit plan" (as defined in Section 3(3) of
ERISA) solely by reason of being treated as a single employer under Section 414
of the Code with any trade, business or entity other than the Company and the
Subsidiaries.
(i) With respect to each Benefit Plan, the Company has
provided the Purchasers with true, complete and correct copies of (to the extent
applicable) (i) all documents pursuant
-14-
to which the Benefit Plan is maintained, funded and administered, (ii) the most
recent annual report (Form 5500 series) filed with the IRS (with applicable
attachments), (iii) the most recent financial statement, (iv) the most recent
summary plan description provided to participants, and (v) the most recent
determination letter received from the IRS.
2.20 Intellectual Property
---------------------
Item 2.20 of the Disclosure Schedule sets forth a true and
complete list of all Intellectual Property owned by the Company and each of the
Subsidiaries. Each of the Company and the Subsidiaries owns or possesses
sufficient legal rights to use all patents, patent applications, trademarks,
trademark applications, service marks, trade names, copyrights, trade secrets,
licenses, information, proprietary rights and processes ("Intellectual
Property") listed in Item 2.20 of the Disclosure Schedule, and all Intellectual
Property necessary for each of the Company's and each of the Subsidiaries'
business as now conducted without any conflict with or infringement of the
Intellectual Property rights of any other Person or entity. There are no
outstanding options, licenses or agreements of any kind relating to the
Intellectual Property, and neither the Company nor any Subsidiary is bound by,
or a party to, any options, licenses or agreements of any kind with respect to
the Intellectual Property of any other Person or entity.
2.21 Transactions with Affiliates
----------------------------
Except as set forth in Item 2.21 of the Disclosure Schedule
and except for Employment Agreements which are set forth in Item 2.8 of the
Disclosure Schedule, no officer, director, employee, stockholder or Affiliate of
the Company or any Subsidiary or any individual related by blood, marriage or
adoption to any such individual or any entity in which any such Person or
individual owns any beneficial interest, is a party to any agreement, contract,
commitment or transaction with the Company or any Subsidiary or has any material
interest in any material property used by the Company or any Subsidiary.
2.22 Brokers
-------
All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by the Company directly
with the Purchasers without the intervention of any Person on behalf of the
Company in such a manner as to give rise to any valid claim by any Person
against any Purchaser for a finder's fee, brokerage commission or similar
payment (other than the Closing Fees payable pursuant to Section 1.5 hereof).
The Company shall pay, and hold the Purchasers harmless against, any liability,
loss or expense (including, without limitation, reasonable attorneys' fees and
out-of-pocket expenses) arising in connection with any such claim.
2.23 Securities Matters
------------------
The Company is not a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of a "holding company," as
such terms are defined in the Public Utility Holding Company Act of 1935, and
the Company is not a "registered investment company" or "an affiliated Person"
or a "principal underwriter" of a "registered investment company," as such terms
are defined in the Investment Company Act of 1940, as amended.
-15-
2.24 Miscellaneous
-------------
(a) The representations and warranties made by the Company in
this Agreement and the Additional Agreements and the statements made by or on
behalf of the Company in any certificate, document or exhibit furnished in
connection with the transactions contemplated hereby or thereby, when taken
together, do not and will not as of the Closing contain any untrue statement of
a material fact or omit to state any material fact necessary in order to make
such representations or warranties or other such statements, in light of the
circumstances under, and at the time at, which they were made, not false or
misleading.
(b) Disclosure of any fact or item in any Item of the
Disclosure Schedule referenced by a particular paragraph or Section in this
Agreement shall, should the existence of the fact or item or its contents be
reasonably responsive to any other Item of the Disclosure Schedule or paragraph
or Section of this Agreement, be deemed to be disclosed with respect to that
other Item or Section if an explicit cross-reference appears.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER
------------------------------------------------
Each Purchaser represents and warrants on behalf of itself and
not any other Purchaser, severally and not jointly, to the Company that:
3.1 Due Authorization; Valid Obligation
-----------------------------------
Such Purchaser has taken all corporate or other action
necessary to authorize it to execute and deliver this Agreement and each
Additional Agreement to which it is a party, and to consummate the transactions
contemplated hereby and thereby, and this Agreement and each Additional
Agreement to which it is a party, constitute the valid and binding obligations
of such Purchaser, enforceable in accordance with their respective terms, except
as may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefor may be brought.
3.2 No Conflicts
------------
The execution and delivery by such Purchaser of this Agreement
and each Additional Agreement to which it is a party and the consummation of the
transactions contemplated hereby and thereby do not and shall not (a) contravene
the certificate of incorporation or by-laws (or similar governing instruments),
or (b) with or without the giving of notice or the passage of time, violate,
conflict with, or result in a breach of, or a default or loss of rights under,
any covenant, agreement, mortgage, indenture, lease or instrument to which such
Purchaser is a party or by which such Purchaser or any of its assets is bound or
any judgment, order, decree, law, rule or regulation to which such Purchaser or
any of its assets are subject.
-16-
3.3 Authorizations
--------------
Any authorization, approval, order, license, permit, franchise
or consent of, declaration to, or filing or registration with, any court,
governmental authority or any other Person or entity which is not a party to
this Agreement or the Additional Agreements which is required in connection with
the execution, delivery and performance of this Agreement and the applicable
Additional Agreements by such Purchaser has been obtained or shall be obtained
as of the Closing Date. There is no pending or threatened claim, action, suit,
investigation or proceeding against such Purchaser before any court, arbitrator
or governmental authority which, if determined adversely to such Purchaser,
would have a Material Adverse Effect on such Purchaser or on the ability of such
Purchaser to perform its obligations under this Agreement or the applicable
Additional Agreements.
3.4 Purchase for Investment
-----------------------
(a) Such Purchaser is acquiring the Shares being purchased by
such Purchaser for investment for such Purchaser's own account and not as a
nominee or agent, and not with a view to the resale or distribution of any part
thereof, and such Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the same; provided, however, it is
acknowledged that TCCIII may transfer Shares pursuant to Section 8.2 hereof.
Such Purchaser further represents that it does not have any contract,
undertaking, agreement or arrangement with any Person to sell, transfer or grant
a participation to such Person or to any third Person, with respect to any of
the Shares, except with respect to TCCIII in connection with a transfer pursuant
to Section 8.2 hereof.
(b) Such Purchaser understands that the Shares are not
registered under the Securities Act on the ground that the sale and the issuance
of securities hereunder is exempt from registration under the Securities Act
pursuant to Section 4(2) thereof and Rule 506 of Regulation D promulgated
thereunder, and that the Company's reliance on such exemption is predicated on
such Purchaser's representations set forth herein. Such Purchaser is an
"accredited investor" as that term is defined in Rule 501(a) of Regulation D
under the Securities Act.
3.5 Investment Experience
---------------------
Such Purchaser acknowledges that it can bear the economic risk
of its Investment in the Shares, and has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the Investment in the Shares.
3.6 Information; Projections
------------------------
Such Purchaser has been furnished and has carefully reviewed
the Projections, and such other information as such Purchaser deemed necessary
to evaluate an investment in the Shares. To the full satisfaction of such
Purchaser, it has been furnished all materials that it has requested relating to
the Company and the offering of the Shares, and such Purchaser has been afforded
the opportunity to ask questions of representatives of the Company concerning
the terms and conditions of the offering to verify the information in the
Projections provided to it and to obtain any additional information necessary to
verify the accuracy of any representations or information made or given to such
Purchaser. Notwithstanding the foregoing, nothing herein
-17-
shall derogate from or otherwise modify the representations and warranties of
the Company set forth in this Agreement, all of which representations and
warranties such Purchaser has relied on in making an investment in the Shares.
3.7 Restricted Securities
---------------------
Such Purchaser understands that the Shares may not be sold,
transferred, or otherwise disposed of without registration under the Securities
Act or an exemption therefrom, and that in the absence of an effective
registration statement covering the Shares or any available exemption from
registration under the Securities Act, the Shares must be held indefinitely.
Such Purchaser is aware that the Shares may not be sold pursuant to Rule 144
promulgated under the Securities Act unless all of the conditions of that Rule
are met. Among the conditions for use of Rule 144 may be the availability of
current information to the public about the Company. Such information is not now
available, and the Company has no present plans to make such information
available. Such Purchaser is aware that the Shares are subject to the terms and
conditions of the Stockholders' Agreement and that the certificates evidencing
the Shares will bear the legend contemplated by the Stockholders' Agreement.
3.8 Miscellaneous
-------------
The representations and warranties made by such Purchaser in
this Agreement and the applicable Additional Agreements and the statements made
by or on behalf of the Purchaser in any certificate, document or exhibit
furnished in connection with the transactions contemplated hereby and thereby do
not and will not as of the Closing contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make such
representations or warranties or other such statement, in light of the
circumstances under, and at the time at, which they were made, not false or
misleading.
ARTICLE IV
ADDITIONAL AGREEMENTS
---------------------
4.1 Further Investigation
---------------------
The Company shall give to each Purchaser and its
representatives between the date of this Agreement and the Closing Date, full
access during normal business hours to all of the premises, files, books and
records of the Company and the Subsidiaries and cause the officers of the
Company to furnish such financial and operating data and other information with
respect to the Company and the Subsidiaries as each such Purchaser shall from
time to time reasonably request; provided, however, that any such investigation
(a) shall be conducted in such manner as not to interfere unreasonably with the
operation of the business of the Company and the Subsidiaries, and (b) shall not
affect any of the representations and warranties hereunder. During such
investigation, each such Purchaser and its representatives shall have the right
to make copies of, or excerpts from, such files, books and records as they may
deem advisable. If this Agreement is not consummated, each Purchaser shall
return to the Company all such copies of materials belonging to the Company made
by or furnished to any Purchaser except for such materials as the Purchasers are
entitled to hereunder or under the Stockholders' Agreement.
-18-
4.2 Confidentiality
---------------
At all times prior to the Closing or, if the transactions
contemplated by this Agreement are not consummated and this Agreement shall be
terminated, each Purchaser shall, and shall cause its Affiliates, officers,
directors, employees, agents and representatives to, keep secret and not divulge
to any third party or otherwise use for such Purchaser's benefit (other than in
connection with the transactions contemplated by this Agreement) any
confidential or proprietary information of the Company to which such Purchaser
obtains access pursuant to Section 4.1; provided, however, that such obligation
shall not apply to any information to the extent that (a) it is or becomes part
of public or industry knowledge or literature as a result of causes other than
the acts or omissions of the Purchasers or their Affiliates, officers,
directors, employees, agents or representatives, (b) can be demonstrated to have
been known to such Purchaser prior to its receipt from the Company, (c) is
received by such Purchaser in good faith from a third party or (d) disclosure
shall be required by applicable law, regulation or court order provided that
prior to such disclosure, such Purchaser shall promptly notify the Company with
respect to such requirement in recognition of the fact that the Company may
elect to obtain relief from such disclosure requirement. Notwithstanding
anything herein to the contrary, any party to this Agreement (and any employee,
representative or other agent of any party to this Agreement) may disclose to
any and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are provided to it
relating to such tax treatment and tax structure; provided however, that such
disclosure may not be made to the extent required to be kept confidential to
comply with any applicable federal or state securities laws; and provided
further that (to the extent not inconsistent with the foregoing) such disclosure
shall be made without disclosing the names or other identifying information of
any party.
4.3 Preserve Business
-----------------
Between the date of this Agreement and the Closing Date, the
Company shall use commercially reasonable efforts to preserve substantially
intact its and each Subsidiary's business organization, keep available the
services of the present officers and employees of the Company and each
Subsidiary, preserve the present relationships with Persons having significant
business relationships therewith and conduct its and each Subsidiary's business
only in the ordinary course, except as otherwise contemplated hereby or set
forth in the Disclosure Schedule.
4.4 Preserve Accuracy of Representations and Warranties of the
----------------------------------------------------------
Company
-------
Between the date of this Agreement and the Closing Date, the
Company shall, and shall cause each Subsidiary to, refrain from taking any
action which would render any of the representations or warranties set forth in
Article II hereof materially inaccurate as of the Closing Date. The Company
shall notify the Purchasers promptly of the occurrence of any matter, event or
change in circumstances after the date hereof and prior to the Closing that
would have been required to be disclosed in the Disclosure Schedule if it had
occurred prior to the date hereof, but such notification shall not affect any of
the Purchasers' rights under this Agreement.
-19-
4.5 Consents and Waivers
--------------------
The parties hereto shall cooperate with each other and use
their reasonable best efforts to (a) obtain all consents (including voting, and
causing their respective Affiliates that are stockholders of the Company to
vote, in favor of the Amended Charter, the Second Amended Registration Rights
Agreement, the Amended Subordinate Rights Agreement, the Stockholders' Agreement
and the transactions contemplated by this Agreement) and waivers to the
transactions contemplated hereby required under all agreements, mortgages,
indentures, contracts, licenses, franchises, permits, leases or other
instruments, the withholding of which consents or waivers could have a Material
Adverse Affect and (b) satisfy the conditions to closing required to be
satisfied by them, including, with respect to the Company, the submission of the
Amended Charter to its stockholders.
4.6 Waiver of Preemptive Rights
---------------------------
By entering into this Agreement, each Purchaser that is a
party to the Amended and Restated Stockholders' Agreement dated September 10,
2001 by and among the Company, the stockholders party thereto and J. Xxxxx
Xxxxxxxx (the "Existing Stockholders' Agreement") hereby waives, on its behalf
and on behalf of its successors and assigns, any and all preemptive rights that
such Purchaser may have under Section 6.01 of the Existing Stockholders'
Agreement with respect to any Shares issued pursuant to this Agreement or as a
result of the exercise of any preemptive rights arising in connection with the
issuance pursuant to this Agreement.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS
-----------------------------------------------
The obligations of each Purchaser under this Agreement are
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions, any of which may be waived in whole or in part by such Purchaser:
5.1 Due Performance
---------------
The Company and each other Purchaser shall have performed and
complied in all material respects with all agreements and conditions required by
this Agreement to be performed or complied with by the Company and each other
Purchaser on or prior to the Closing Date.
5.2 Accuracy of Representations and Warranties
------------------------------------------
All representations and warranties of the Company set forth in
this Agreement shall be true and correct in all material respects on and as of
the date hereof and on and as of the Closing Date, as though made on and as of
the Closing Date.
5.3 Stockholders' Agreement
-----------------------
The Company, each Purchaser other than such Purchaser, and
Existing Stockholders collectively holding not less than seventy (70%) percent
of the Paid-In Shares (as
-20-
defined in the Stockholders' Agreement), shall have executed and delivered the
Stockholders' Agreement in the form and substance set forth in Exhibit B
attached hereto.
5.4 Registration Rights Agreements
------------------------------
The Company, each signatory to the Subordinate Registration
Rights Agreement, dated as of September 10, 2001, by and among the Company and
the parties thereto (the "Subordinate Agreement"), and each signatory to that
certain Amended and Restated Registration Rights Agreement, dated as of
September 10, 2001, by and among the Company and the parties thereto, and each
Purchaser, shall have executed and delivered the Amended Subordinate Rights
Agreement and the form of Second Amended Registration Rights Agreement attached
hereto as Exhibit C.
5.5 Amended Charter
---------------
The requisite vote of stockholders of the Company under the
Delaware General Corporation Law and the Company's certificate of incorporation
and by-laws required to approve the Amended Charter shall have been obtained,
and the Company shall have duly adopted, executed and filed with the Secretary
of State of Delaware the Amended Charter establishing the terms and the relative
rights and preferences of the Series E Preferred Stock, the Existing Preferred
Stock and the Common Stock in the form set forth in Exhibit A hereto, and the
Company shall not have adopted or filed any other document designating terms,
relative rights or preferences of the Series E Preferred Stock, the Existing
Preferred Stock and the Common Stock. The Amended Charter shall be in full force
and effect as of the Closing Date under the laws of the State of Delaware and
shall not have been amended or modified.
5.6 Securities Law Compliance
-------------------------
The Company shall have made all filings under all applicable
federal and state securities laws necessary, prior to, or concurrently with the
sale, to consummate the issuance of the Series E Preferred Stock pursuant to
this Agreement in compliance with such laws.
5.7 Closing Documents
-----------------
On the Closing Date, the Company shall have delivered to each
Purchaser all of the following documents:
(a) an Officer's Certificate, dated the date of the Closing
executed by the President of the Company, to the effect that the conditions set
forth in Sections 5.1, 5.2, 5.9 and 5.12 hereto (in the case of Sections 5.1 and
5.2 hereof insofar as they relate to the representations and warranties set
forth in Article II hereof and the due performance and satisfaction of the
obligations and conditions hereunder to be performed and satisfied by the
Company) have been satisfied in all respects;
(b) certified copies of the resolutions duly adopted by the
Company's board of directors (the "Board") authorizing the execution, delivery
and performance of this Agreement, the Stockholders' Agreement, the Registration
Rights Agreements, and each of the other agreements contemplated hereby, the
-21-
filing of the Amended Charter, the issuance and sale of Series E Preferred Stock
and the consummation of all the other transactions contemplated by this
Agreement;
(c) copies of the Amended Charter and the Company's by-laws,
each as in effect at the Closing Date certified by the Secretary of the Company,
and certificates as to (i) the good standing of each of the Company and IESI NY
Corporation in their respective states of formation, and (ii) the authority of
IESI NY Corporation to do business as a foreign corporation in the State of New
York; and
(d) such other documents relating, to the transactions
contemplated by this Agreement as the Purchasers or their counsel may reasonably
request.
5.8 No Claims
---------
No claim, action, suit, investigation or proceeding shall be
pending or threatened by any Person against any of the parties hereto or any of
their respective affiliates which, if adversely determined, could (a) prevent,
hinder or enjoin consummation of the transactions contemplated by this Agreement
or the Additional Agreements or (b) have a Material Adverse Effect. No party to
this Agreement shall have received written notice from any court or governmental
authority, board, agency, commission or instrumentality of its intention to (i)
institute any action or proceeding to restrain, enjoin, nullify or render
ineffective this Agreement, any Additional Agreement or the transactions
contemplated hereby or thereby, if consummated, or (ii) commence any
investigation (other than a routine letter of inquiry, including a routine Civil
Investigation Demand) into this Agreement, any Additional Agreement or the
transactions contemplated hereby or thereby, which, in the reasonable opinion of
such Purchaser, would make it inadvisable to consummate such transactions.
5.9 Approvals, Consents and Waivers
-------------------------------
The Company shall have received all approvals, consents and
waivers (including the waivers of preemptive rights referred to in Section 1.1
hereof) to the transactions contemplated hereby required under all agreements,
mortgages, indentures, contracts, licenses, franchises, permits, leases or other
instruments, laws, rules or regulations applicable to the Company or any
Subsidiary, which are necessary to consummate the transactions contemplated
hereby and to preserve the business of the Company or any Subsidiary.
5.10 No New Law or Regulation
------------------------
There shall not have been enacted between the date hereof and
the Closing Date any law or regulation which would have a Material Adverse
Effect or prevent or hinder the consummation of the transactions contemplated by
this Agreement or the Additional Agreements.
5.11 Compliance with Applicable Laws
-------------------------------
The purchase of Series E Preferred Stock by such Purchaser
hereunder shall not be prohibited by any applicable law or governmental rule or
regulation and shall not subject such Purchaser to any penalty or liability, and
the purchase of the Series E Preferred Stock by such
-22-
Purchaser hereunder shall be permitted by laws, rules and regulations of the
jurisdictions and governmental authorities and agencies to which such Purchaser
is subject.
5.12 No Material Adverse Change
--------------------------
There shall not have occurred a material adverse change in the
business or business prospects of the Company and its Subsidiaries taken as a
whole between December 31, 2002 and the Closing Date.
5.13 Opinion
-------
The Purchasers shall have received an opinion of counsel for
the Company, dated as of the Closing Date, reasonably satisfactory in form and
substance to counsel to the Purchasers. TC Carting III, L.L.C. ("TCCIII") shall
have received an opinion of counsel for the Company, dated as of the Closing
Date, in form and substance reasonably satisfactory to counsel to TCCIII to the
effect that no pre-merger notification under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 is required.
5.14 Warrant Holder Waivers
----------------------
The Company shall deliver resolutions of the Board, certified
by its secretary or assistant secretary as being in full force and effect, that
the issuance of the Series E Preferred Stock is for Fair Market Value (as such
term is defined in the warrant issued to the holders thereof (each a "Warrant
Holder") listed in Item 2.3 of the Disclosure Schedule), together with a written
consent, executed by such Warrant Holder(s) (whose consent is required) to the
effect that such Warrant Holder(s) do(es) not dispute, and waive(s) any right to
dispute, the determination of the Board that issuance of the Series E Preferred
Stock is for Fair Market Value [except with respect to Xxx X. Xxxxxx
Construction Co., Inc., for which indemnification is being provided by the
Company].
5.15 Employment Agreement Waivers
----------------------------
The Company shall deliver waivers, executed by each of Xxxxxxx
X. Xxxxx and Xxxxxx X. Xxxxx, to the effect that neither the transactions
contemplated by this Agreement nor the conversion of the Series E Preferred
Stock in accordance with the terms of the Amended Charter shall constitute a
"Change of Control" as such term is used in Section 5(e)(ii)(4) of the
Employment Agreement with each such individual.
5.16 Other Matters
-------------
Prior to or as of the Closing Date, the Company shall have (i)
refinanced, with a lender reasonably acceptable to TCCIII, all of the Company's
outstanding indebtedness under its Credit Agreement on terms reasonably
acceptable to TCCIII, and (ii) consummated the acquisition of the Seneca Xxxxxxx
Landfill on terms reasonably acceptable to TCCIII. The aggregate purchase price
for all the Shares agreed to be purchased hereunder shall be not less than
Forty-Seven Million Five Hundred Thousand Dollars ($47,500,000) nor more than
Fifty-Five Million Dollars ($55,000,000), and TCCIII and/or one or more of its
Affiliates, Indosuez Capital Partners 2001, L.P. and/or one or more of its
Affiliates, IESI Capital VI LLC and/or one
-23-
or more of its Affiliates, United Company and/or one or more of its Affiliates,
existing equity holders of the Company exercising their preemptive rights
pursuant to and in accordance with the Existing Stockholders' Agreement, and/or
other Purchasers approved in writing by TCCIII (such approval not to be
unreasonably withheld) shall be the only Purchasers.
5.17 Satisfaction of Counsel
-----------------------
All actions, proceedings, instruments, documents and other
relevant legal matters in connection with the transactions contemplated by this
Agreement shall be reasonably satisfactory in all respects to counsel for the
Purchasers.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF THE COMPANY
--------------------------------------------
The obligations of the Company under this Agreement to issue
and deliver Shares to a Purchaser are subject to the satisfaction, on or prior
to the Closing Date, of the following conditions, any of which may be waived in
whole or in part by the Company:
6.1 Due Performance
---------------
Such Purchaser shall have fully performed and complied with
all agreements and conditions required by this Agreement to be performed or
complied with by it on or prior to the Closing Date.
6.2 Accuracy of Representations and Warranties
------------------------------------------
All representations and warranties of such Purchaser set forth
in this Agreement shall be true and correct on and as of the Closing Date in all
material respects, as though made on and as of the date hereof and on and as of
the Closing Date.
6.3 Amended Charter
---------------
The requisite vote of stockholders of the Company under the
Delaware General Corporation Law and the Company's certificate of incorporation
and by-laws required to approve the Amended Charter shall have been obtained.
6.4 Certificate
-----------
The Company shall have received a certificate executed by such
Purchaser, in the case of a Purchaser who is a natural person, or an authorized
officer of such Purchaser, in the case of a Purchaser which is not a natural
person, to the effect that the conditions set forth in Sections 6.1 and 6.2
hereof have been satisfied in all respects.
6.5 No Claims
---------
No claim, action, suit, investigation or proceeding shall be
pending or threatened by any Person against any of the parties hereto or any of
their respective Affiliates which, if
-24-
adversely determined, would (a) prevent or hinder consummation of the
transactions contemplated by this Agreement or the Additional Agreements, or (b)
result in the payment by the Company or a Subsidiary of substantial damages as a
result of the transactions contemplated hereby which would have a Material
Adverse Effect. No party to this Agreement shall have received written notice
from any court or governmental authority, commission or instrumentality of its
intention to (i) institute any action or proceeding to restrain, enjoin, nullify
or render ineffective this Agreement, any Additional Agreement or the
transactions contemplated hereby or thereby, if consummated, or (ii) commence
any investigation (other than a routine letter of inquiry, including a routine
Civil Investigation Demand) into this Agreement, any Additional Agreement or the
transactions contemplated hereby or thereby, which, in the reasonable opinion of
the Company, would make it inadvisable to consummate such transactions.
6.6 Approvals, Consents and Waivers
-------------------------------
The Company shall have received all approvals, consents and
waivers (including the waivers of preemptive rights referred to in Section 1.1
hereof) to the transactions contemplated hereby required under all agreements,
mortgages, indentures, contracts, licenses, franchises, permits, leases or other
instruments, laws, rules or regulations applicable to the Company or any
Subsidiary, which are necessary to consummate the transactions contemplated
hereby and to preserve the business of the Company or any Subsidiary.
6.7 Certain Agreements
------------------
Such Purchaser shall have entered into the Stockholders'
Agreement and shall have executed and delivered the Stockholders' Agreement and
the Amended Registration Rights Agreement.
6.8 No New Law or Regulation
------------------------
There shall not have been enacted between the date hereof and
the Closing Date any law or regulation which would have a Material Adverse
Effect or prevent or hinder the consummation of the transactions contemplated by
this Agreement or the Additional Agreements.
6.9 Satisfaction of Counsel
-----------------------
All actions, proceedings, instruments, documents and other
relevant legal matters in connection with the transactions contemplated by this
Agreement and the Additional Agreements, shall be reasonably satisfactory in all
respects to counsel for the Company.
ARTICLE VII
INDEMNIFICATION
---------------
7.1 Indemnity of Purchasers
-----------------------
The Company agrees to defend, indemnify and hold harmless each
Purchaser from and against, and to reimburse such Purchaser with respect to, all
liabilities, losses, costs and
-25-
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, asserted against or incurred by such Purchaser by reason of,
arising out of, or in connection with:
(a) any material breach of any representation or warranty
(provided, however, that if any such representation and warranty is already
qualified in any respect by materiality or as to Material Adverse Effect, for
purposes of this Section 7.1(a), such materiality or Material Adverse Effect
qualification will be in all respects ignored and such representation shall be
true and correct in all material respects without regard to such qualification)
contained in this Agreement and made by the Company or in any document or
certificate delivered by the Company pursuant to the provisions of this
Agreement or in connection with the transactions contemplated thereby;
(b) any material failure by the Company to perform any
agreement required by this Agreement to be performed thereby; or
(c) any claim, demand, action, suit, proceeding or
investigation involving the Company or any Subsidiary arising at any time and
not disclosed in the Disclosure Schedule (including the exhibits thereto) and
required to be so disclosed relating to a state of facts, action or omission to
act arising on or prior to the Closing Date or the allegation by any third party
of the existence of any state of facts which, if existing, would constitute a
material breach of any representation or warranty referred to in this Section
7.1(a).
7.2 Indemnification Procedure
-------------------------
A Purchaser shall give prompt notice to the Company of any
claim for indemnification arising under Section 7.1. The Company shall have the
right to assume and to control the defense of any such claim with counsel
reasonably acceptable to such Purchaser, at the Company's own cost and expense,
including the cost and expense of reasonable attorneys' fees and disbursements
in connection with such defense, in which event the Company shall not be
obligated to pay the fees and disbursements of separate counsel for such
Purchaser in such action. In the event, however, that such Purchaser's legal
counsel shall determine that defenses may be available to such Purchaser that
are different from or in addition to those available to the Company, in that
there could reasonably be expected to be a conflict of interest if such
Purchaser and the Company have common counsel in any such proceeding, or if the
Company has not assumed the defense of the action or proceedings, then such
Purchaser may employ separate counsel to represent or defend such Purchaser, and
the Company shall pay the reasonable fees and disbursements of such counsel. No
settlement of any such claim or payment in connection with any such settlement
shall be made without the prior consent of the Company which consent shall not
be unreasonably withheld.
-26-
ARTICLE VIII
AFFIRMATIVE COVENANTS OF THE COMPANY
------------------------------------
8.1 Company Covenants. The Company covenants and agrees that
until the date on which the Company shall be obligated to file periodic reports
under the Securities Exchange Act of 1934 by reason of its registration of
Common Stock thereunder if any Shares are outstanding:
(a) Financial Statements and Other Information
The Company shall deliver to the Purchasers:
(i) as soon as available but in any event within thirty
(30) days after the end of each monthly accounting
period in each fiscal year, unaudited consolidated
statements of income and cash flows of the Company
and the Subsidiaries for such monthly period and for
the period from the beginning of the fiscal year to
the end of such month, and unaudited consolidated
balance sheets of the Company and the Subsidiaries as
of the end of such monthly period, setting forth in
each case comparisons to the Company's annual budget
and to the corresponding period in the preceding
fiscal year, and all such statements shall be
prepared in accordance with generally accepted
accounting principles, consistently applied and shall
be certified by the Company's chief financial
officer;
(ii) within one hundred twenty (120) days after the end of
each fiscal year, consolidating and consolidated
statements of income and cash flows of the Company
and the Subsidiaries for such fiscal year, and
consolidating and consolidated balance sheets of the
Company and the Subsidiaries as of the end of such
fiscal year, setting forth in each case comparisons
to the Company's annual budget and to the preceding
fiscal year, all prepared in accordance with
generally accepted accounting principles,
consistently applied, and accompanied by (A) with
respect to the consolidated portions of such
statements, an opinion of an independent accounting
firm of recognized national standing acceptable to
the holders of a majority of the outstanding Series E
Preferred Stock, (B) a certificate from such
accounting firm, addressed to the Board, stating that
in the course of its examination nothing came to its
attention that caused it to believe that there was
any default by the Company or any Subsidiary in the
fulfillment of or compliance with any of the terms,
covenants, provisions or conditions of any material
agreement to which the Company or any Subsidiary is a
party or, if such accountants have reason to believe
any such default by the Company or any Subsidiary
exists, a certificate specifying the nature and
period of existence thereof, and (C) a copy of such
firm's annual management letter to the board of
directors;
(iii) promptly upon receipt thereof, any additional
reports, management letters or other detailed
information concerning significant aspects of the
-27-
Company's operations or financial affairs given to
the Company by its independent accountants (and not
otherwise contained in other materials provided
hereunder);
(iv) at least thirty (30) days, but not more than ninety
(90) days, prior to the beginning of each fiscal
year, an annual budget prepared on a monthly basis
for the Company and the Subsidiaries for such fiscal
year (displaying anticipated statements of income and
cash flows and balance sheets), and promptly upon
preparation thereof any other significant budgets
prepared by the Company or any Subsidiary and any
revisions of such annual or other budgets;
(v) with reasonable promptness, such other information
and financial data concerning the Company and the
Subsidiaries as any Person entitled to receive
information under this Section 8.1(a) may reasonably
request.
Each of the financial statements referred to in Section
8.1(a)(i) and 8.1(a)(ii) hereof shall present fairly the financial position of
the Company and the Subsidiaries in all material respects as of the dates and
for the periods stated therein, subject in the case of the unaudited financial
statements to changes resulting from year-end adjustments.
(b) Rights of Inspection
The Company will permit any representatives designated by the
Purchasers to visit and inspect the property of the Company and the Subsidiaries
and to make copies and extracts therefrom and to discuss the affairs, finances
and accounts of the Company and the Subsidiaries with their respective officers,
all during reasonable business hours, upon reasonable notice and as often as the
Purchasers may reasonably request, subject, in the case of any proprietary or
confidential material, to appropriate measures to ensure the confidentiality
thereof, provided, however, that any such investigation shall be conducted in
such manner as not to interfere unreasonably with (a) the operation of the
business of the Company and the Subsidiaries or (b) the performance by the
officers of the Company and the Subsidiaries of their respective duties to the
Company and the Subsidiary. The presentation of an executed copy of this
Agreement by a Purchaser to the Company's independent accountants shall
constitute the Company's permission to its independent accountants to
participate in discussions with such Persons.
(c) Reservation of Common Stock
The Company shall at all times reserve and keep available out
of its authorized but unissued shares of Common Stock, solely for the purpose of
issuance upon the conversion of the Series E Preferred Stock, such number of
shares of Common Stock issuable upon the conversion of all outstanding Series E
Preferred Stock. All shares of Common Stock which are so issuable shall, when
issued, be duly and validly issued, fully paid and nonassessable and free from
all taxes, liens and charges. The Company shall take all such actions as may be
necessary to assure that all such shares of Common Stock may be so issued
without violation of any applicable law or governmental regulation or any
requirements of any domestic securities
-28-
exchange upon which shares of Common Stock may be listed (except for official
notice of issuance which shall be immediately transmitted by the Company upon
issuance).
(d) Use of Proceeds
The Company shall use the net proceeds (after payment of the
Closing Fee and other expenses related to the offering and sale of the Shares)
from the sale of the Shares to fund the acquisition of the Seneca Xxxxxxx
Landfill in New York State and related expenses (the "Seneca Xxxxxxx Landfill")
pursuant to the Seneca Xxxxxxx Purchase Agreement.
8.2 Subsequent Transfers
--------------------
Anything to the contrary herein notwithstanding, the Company
and the Purchasers agree that, following the Closing Date, TCCIII shall have the
right to sell Shares to any person reasonably acceptable to the Company that (i)
can make the representations contained in Article III hereof, and (ii) agrees to
be bound by the terms hereof and the Additional Agreements. Each such subsequent
purchaser of TCCIII's Shares under this Section 8.2 shall assume all rights
associated with such Shares under this Agreement and shall be deemed to be a
Purchaser hereunder and entitled to all rights and benefits and be subject to
all obligations of, a Purchaser hereunder. Such subsequent sale by TCCIII shall
not be subject to any preemptive or other rights. The Company shall reasonably
cooperate in effecting such sales, including by entering into customary
management rights letters with such purchasers that require their investment in
the Company to be a "venture capital operating company" qualified investment (as
provided for in ERISA and the regulations thereunder) and granting up to one
such purchaser observer rights on the Company's Board of Directors.
8.3 Sale of Additional Shares.
--------------------------
Following the Closing Date, the Company shall have the right
to sell up to that number of shares of Series E Preferred Stock that is equal to
the difference between 55,000 and all Shares previously sold pursuant to this
Agreement (including under this Section 8.3). Notwithstanding the foregoing,
from and after the date that the Company has sold 2,500 Shares pursuant to this
Section 8.3, the Company shall not effect any further sales pursuant to this
Section 8.3 until the earlier of (i) the date that TCCIII has sold in the
aggregate 15,000 Shares pursuant to Section 8.2, and (ii) the date that TCCIII
informs the Company that it no longer desires to sell any Shares pursuant to
Section 8.2. All sales pursuant to this Section 8.3 shall be made (a) pursuant
to this Agreement (by having purchasers elect to become a party hereto with such
changes as are necessary to reflect the delayed closing of such sale), (b) on
terms no less favorable to the Company as are contained herein, and (c) to
purchasers reasonably acceptable to TCCIII. Purchasers of TCCIII's Shares
pursuant to this Section 8.3 shall assume all rights associated with such Shares
under this Agreement and shall be deemed to be Purchasers hereunder and entitled
to all rights and benefits and be subject to all obligations of, a Purchaser
hereunder, except for such changes as are necessary to reflect the delayed
closing of such sale. The Company and TCCIII acknowledge that they will
cooperate in the operation of Sections 8.2 and 8.3, including, where
practicable, having potential purchasers of additional Shares from the Company
pursuant to this Section 8.3 elect to purchase Shares from TCCIII pursuant to
Section 8.2.
-29-
ARTICLE IX
TERMINATION
-----------
9.1 Termination
-----------
This Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing:
(a) By mutual written consent of a majority-in-interest of the
Purchasers and the Company;
(b) By either a majority-in-interest of the Purchasers or the
Company, if the transactions shall not have occurred on or before October 31,
2003 and the party seeking termination is not at such time in material breach of
this Agreement;
(c) By the Company, if any condition specified in Article VI
hereof has not been met or waived by the Company at such time as such condition
can no longer be satisfied;
(d) By a majority-in-interest of the Purchasers, if any
condition specified in Article V hereof has not been met or waived by the
Purchasers at such time as such condition can no longer be satisfied; or
(e) By either a majority-in-interest of the Purchasers or the
Company, if a court of competent jurisdiction or other governmental authority
shall have issued a final, non-appealable order, decree or ruling or taken any
other action (which order, decree or ruling the parties hereto shall use their
best efforts to lift), in each case permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated hereby.
9.2 Procedure and Effect of Termination
-----------------------------------
In the event of termination of this Agreement pursuant to
Section 9.1 hereof, written notice thereof shall forthwith be given by the
terminating party or parties to the other party or parties hereto, and this
Agreement shall thereupon terminate and become void and have no effect and the
transactions contemplated hereby shall be abandoned without further action by
the parties hereto, except that the provisions of Sections 4.2 and 10.7 hereof
shall survive such termination; provided, however, that such termination shall
not relieve any party hereto of any liability for any breach of this Agreement.
ARTICLE X
MISCELLANEOUS
-------------
10.1 Survival of Representations, Warranties and Agreements
------------------------------------------------------
All representations and warranties and statements made in this
Agreement or in any document or certificate delivered pursuant hereto shall
survive the Closing Date for one (1)
-30-
year from the Closing or, with respect to the Company, if later, until 120 days
after delivery to the Purchasers of the Company's 2003 fiscal year audited
financial statements, regardless of any investigation made by any party or on
its behalf; provided, however, that the representations and warranties and
statements made by the Company in Section 2.7 of this Agreement entitled "Taxes"
shall survive until the end of the applicable statute of limitations period
(giving effect to any extensions or waivers thereof), plus six (6) months. The
representations and warranties set forth in Section 2.3 entitled
"Capitalization" shall survive the Closing Date without any time limitation. All
covenants and agreements made herein shall survive Closing in accordance with
their terms.
10.2 Expenses
--------
(a) The Company agrees that, whether or not the transactions
contemplated by this Agreement are consummated, it shall pay all reasonable fees
of, and out-of-pocket expenses incurred by, TCCIII, not to exceed $150,000 in
the aggregate, including, without limitation, the fees and expenses of
McGuireWoods LLP, counsel to TCCIII, in connection with this Agreement and the
transactions contemplated hereby, including, without limitation, the cost and
expenses of preparing and negotiating this Agreement and the Additional
Agreements and consummating the transactions contemplated hereby.
(b) The costs and expenses (including reasonable attorneys
fees) associated with any filings with any governmental body and any approvals
of any governmental authority (including with respect to the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended) required under the Amended
Charter in connection with the conversion or redemption of any capital stock of
the Company shall be paid by the Company.
10.3 Consent to Amendments
---------------------
Except as otherwise expressly provided herein, the provisions
of this Agreement may be amended and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the Company has obtained the written consent of the holders of a
majority of the Common Stock issued upon conversion of the Series E Preferred
Stock (determined as if all then outstanding Series E Preferred Stock were
converted in accordance with its terms). No other course of dealing between the
Company and the holder of any Preferred Stock or Common Stock or any delay in
exercising any rights hereunder or under the Amended Charter shall operate as a
waiver of any rights of any such holders.
10.4 Notice
------
All communications, notices, requests, consents or demands
given or required under this Agreement shall be in writing and shall be deemed
to have been duly given when delivered to, or received by prepaid registered or
certified mail or recognized overnight courier addressed to, or upon receipt of
a facsimile sent to, the party for whom intended, as follows, or to such other
address or facsimile number as may be furnished by such party by notice in the
manner provided herein:
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If to the Company:
IESI Corporation
0000 Xxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: President
Tel: (000) 000-0000
Fax: (000) 000-0000
in each case with a copy (which shall not constitute notice)
to:
XxXxxxxxx, Will & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
If to a Purchaser, to such Purchaser's address set forth on
such Purchaser's signature page hereto,
in each case with a copy (which shall not constitute notice)
to:
XxXxxxx Xxxxx LLP
0000 Xxxxxx Xxxxxxxxx
Xxxxx 0000
XxXxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
10.5 Entire Agreement
----------------
This Agreement, the Disclosure Schedule and the exhibits
thereto, the Additional Agreements and the instruments and agreements to be
executed pursuant hereto or thereto, set forth the entire understanding of the
parties hereto with respect to the transactions contemplated hereby and thereby,
merges and supersedes all prior and contemporaneous understandings with respect
to such subject matter and may not be waived or modified, in whole or in part,
except by a writing signed by each of the parties hereto. No waiver of any
provision of this Agreement in any instance shall be deemed to be a waiver of
the same or any other provision in any other instance. Failure of any party to
enforce any provision of this Agreement shall not be construed as a waiver of
its rights under such provision.
10.6 Successors and Assigns
----------------------
This Agreement shall be binding upon, enforceable against and
inure to the benefit of, the parties hereto and their respective heirs,
administrators, executors, personal
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representatives, successors and assigns, and nothing herein is intended to
confer any right, remedy or benefit upon any other Person. This Agreement shall
be assignable to any successor or permitted assign of a holder of Series E
Preferred Stock.
10.7 Governing Law; Submission to Jurisdiction
-----------------------------------------
This Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and fully to be performed in such state, without giving effect
to conflicts of law rules or provisions (whether of the State of New York or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York. The parties hereto agree to
submit to the jurisdiction of the State and Federal courts in the State of New
York with respect to any claim or matter arising under this Agreement, and
hereby consent that service of process with respect to all courts in and of the
State of New York may be made by registered mail to such Person at the address
of such Person set forth herein.
10.8 Counterparts
------------
This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10.9 Knowledge
---------
As used in Article II hereof, the term "knowledge" shall mean
and include the actual knowledge or awareness, after inquiry, of the Company or
the Subsidiaries (which shall include the actual knowledge or awareness of the
officers, directors and key employees of the Company or the Subsidiaries and the
general managers of each facility of the Company and the Subsidiaries), and
without limiting the foregoing, the knowledge or awareness, after reasonable
inquiry, of Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxx and Xxxx
Xxxxxxx shall be imputed to the Company.
10.10 Construction
------------
Headings contained in this Agreement are for convenience only
and shall not be used in the interpretation of this Agreement. References herein
to Articles, Sections and Exhibits are to the articles, sections and exhibits,
respectively, of this Agreement, unless specifically noted otherwise. The
Disclosure Schedule is hereby incorporated herein by reference and made a part
of this Agreement. As used herein, the singular includes the plural, and the
masculine, feminine and neuter gender each includes the others where the context
so indicates. When used herein, the term "including" shall mean "including,
without limitation".
10.11 Severability
------------
If any provision of this Agreement is held to be invalid or
unenforceable by a court of competent jurisdiction, this Agreement shall be
interpreted and enforceable as if such provision were severed or limited, but
only to the extent necessary to render such provision and this Agreement
enforceable.
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ARTICLE XI
DEFINITIONS
-----------
11.1 Defined Terms
-------------
As used in this Agreement, and unless the context requires a
different meaning, the following terms have the meanings indicated:
"Additional Agreements" shall mean the Amended Charter, the
Stockholders' Agreement and the Registration Rights Agreements.
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise; provided that TC Carting, L.L.C., TC
Carting II, L.L.C., TCCIII and Xxxxxx Equity Investors IV, L.P. and their
respective affiliates shall not be deemed "Affiliates" of the Company.
"Affiliated Group" means an affiliated group as defined in
Section 1504 of the Code (or any analogous combined, consolidated or unitary
group defined under state, local or foreign income Tax law) of which the Company
or any Subsidiary is or has been a member.
"Agreement" shall mean this Stock Purchase Agreement, as the
same may be amended, supplemented or modified from time to time in accordance
with the terms hereof.
"Amended Subordinated Rights Agreement" is defined in Section
2.1(c).
"Amended Charter" shall mean the Fifth Amended and Restated
Certificate of Incorporation of the Company.
"Benefit Plan" is defined in Section 2.19(a).
"Board" is defined in Section 5.7(b).
"Class A Stock" shall mean the Class A Voting Common Stock of
the Company, par value $.01 per share.
"Class B Stock" shall mean the Class B Nonvoting Common Stock
of the Company, par value $.01 per share.
"Closing" is defined in Section 1.5.
"Closing Date" is defined in Section 1.5.
"Closing Fee" is defined in Section 1.4.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
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"Common Stock" shall mean the Class A Stock and the Class B
Stock.
"Company" is defined in the preamble.
"Credit Agreement" shall mean that certain Amended and
Restated Revolving Credit and Term Loan Agreement, among IESI Corporation and
its subsidiaries (other than De Minimis Subsidiaries), the Lenders, Fleet
National Bank as Administrative Agent and LaSalle Bank National Association as
Syndication Agent.
"Disclosure Schedule" is defined in Section 2.1(b).
"E&Y" is defined in Section 2.5.
"Employment Agreements" is defined in Section 2.8(a)(ii).
"Encumbrances" is defined in Section 2.10(a).
"Environmental, Health and Safety Requirements" shall mean all
federal, state, local and foreign statutes, regulations, ordinances and other
provisions having the force or effect of law, all judicial and administrative
orders and determinations, all contractual obligations and all common law
concerning public health and safety, worker health and safety, and pollution or
protection of the environment, including without limitation all those relating
to the presence, use, production, generation, handling, transportation,
treatment, storage, disposal, distribution, labeling, testing, processing,
discharge, release, threatened release, control, or cleanup of any hazardous
materials, substances or wastes, chemical substances or mixtures, pesticides,
pollutants, contaminants, toxic chemicals, petroleum products or byproducts,
asbestos, polychlorinated biphenyls, noise or radiation, each as amended and as
now or hereafter in effect.
"ERISA" is defined in Section 2.19(a).
"Existing Preferred Stock" is defined in Section 2.3.
"Existing Stockholders" shall mean the stockholders of the
Company on the Closing Date immediately prior to the Closing.
"Existing Stockholders' Agreement" is defined in Section 4.6.
"Financial Statements" is defined in Section 2.5.
"Indebtedness" means at a particular time, without
duplication, (A) any indebtedness for borrowed money or issued in substitution
for or exchange of indebtedness for borrowed money, (B) any indebtedness
evidenced by any note, bond, debenture or other debt security, (C) any
indebtedness for the deferred purchase price of property or services with
respect to which a Person is liable, contingently or otherwise, as obligor or
otherwise (other than trade payables and other current liabilities incurred in
the ordinary course of business which are not more than six months past due),
(D) any commitment by which a Person assures a creditor against loss (including,
-35-
without limitation, contingent reimbursement obligations with respect to letters
of credit), (E) any indebtedness guaranteed in any manner by a Person
(including, without limitation, guarantees in the form of an agreement to
repurchase or reimburse), (F) any obligations under capitalized leases with
respect to which a Person is liable, contingently or otherwise, as obligor,
guarantor or otherwise, or with respect to which obligations a Person assures a
creditor against loss, (G) any indebtedness secured by a Lien on a Person's
assets and (H) any unsatisfied obligation for "withdrawal liability" to a
"multiemployer plan" as such terms are defined under ERISA.
"Intellectual Property" is defined in Section 2.20.
"Investment" as applied to any Person means (A) any direct or
indirect purchase or other acquisition by such Person of any notes, obligations,
instruments, stock, securities or ownership interest (including partnership
interests and joint venture interests) of any other Person and (B) any capital
contribution by such Person to any other Person.
"IRS" is defined in Section 2.19(b).
"knowledge" is defined in Section 10.9.
"Leased Real Property" is defined in Section 2.10(b).
"Liens" is defined in Section 2.2.
"Material Adverse Effect" is defined in Section 2.1(a).
"Operating Agreements" is defined in Section 2.8(a).
"Owned Real Property" is defined in Section 2.10(a).
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Preferred Stock" is defined in Section 2.3.
"Projections" is defined in Section 2.6(b).
"Purchasers" is defined in the preamble.
"Real Property" is defined in Section 2.10(b).
"Real Property Leases" is defined in Section 2.10(b).
"Registration Rights Agreement" is defined in Section 2.1(c).
"Second Amended Registration Rights Agreements" is defined in
Section 2.1(c).
"Securities Act" shall mean the Securities Act of 1933, as
amended.
-00-
"Xxxxxx Xxxxxxx Xxxxxxxx" is defined in Section 8.1(d).
"Seneca Xxxxxxx Purchase Agreement" is defined in Section
2.8(a)(ix).
"Series A Preferred Stock" is defined in Section 2.3.
"Series B Preferred Stock" is defined in Section 2.3.
"Series C Preferred Stock" is defined in Section 2.3.
"Series D Preferred Stock" is defined in Section 2.3.
"Series E Preferred Stock" shall mean the Series E Convertible
Preferred Stock of the Company, par value $1.00 per share, to be issued by the
Company pursuant to this Agreement.
"Shares" is defined in Section 1.2.
"Stockholders' Agreement" is defined in Section 2.1(c).
"Subordinate Agreement" is defined in Section 5.4.
"Subsidiary" is defined in Section 2.1(b).
"Tax" or "Taxes" means any (A) federal, state, local or
foreign income, gross receipts, franchise, estimated, alternative minimum,
add-on minimum, sales, use, transfer, registration, value added, excise, natural
resources, severance, stamp, occupation, premium, windfall profit,
environmental, disability, payroll, license, employee or other withholding, or
other tax, of any kind whatsoever, including any interest, penalties or
additions to tax or additional amounts in respect of the foregoing; (B)
liability of the Company or any Subsidiary for the payment of any amounts of the
type described in clause (A) arising as a result of being (or ceasing to be) a
member of any Affiliated Group (or being included (or required to be included)
in any Tax Return relating thereto); and (C) liability of the Company or any
Subsidiary for the payment of any amounts of the type described in clause (A) as
a result of any express or implied obligation to indemnify or otherwise assume
or succeed to the liability of any other person.
"Tax Returns" means returns, declarations, reports, claims for
refund, information returns or other documents (including any related or
supporting schedules, statements or information) filed or required to be filed
in connection with the determination, assessment or collection of Taxes of any
party or the administration of any laws, regulations or administrative
requirements relating to any Taxes.
"Warrant Holder" is defined in Section 5.14.
"Wholly-Owned Subsidiary" means, with respect to any Person, a
Subsidiary of which all of the outstanding capital stock or other ownership
interests are owned by such Person or another Wholly-Owned Subsidiary of such
Person.
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Agreement as of the date first set forth above.
COMPANY:
IESI CORPORATION
a Delaware corporation
By:________________________________
Name:
Title:
PURCHASER:
TC CARTING III, L.L.C.
a Delaware limited liability company
By: Xxxxxx Equity Investors IV, L.P,
Its Managing Member
By: TC Equity Partners IV, L.L.C.,
Its General Partner
_______________________________
Name:
Title:
Address:
________________________________
________________________________
________________________________
Number of Shares being purchased:
40,000
PURCHASER:
IESI CAPITAL VI LLC,
a Mississippi limited liability company
By:________________________________
Xxxxxxx X. Xxxxxx
Managing Member
Address:
c/o The United Company
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Number of Shares being purchased:
5,500
PURCHASER:
________________________________
Xxx X. Xxxxxxx, individually
Address: c/o Sanders Xxxxxx Xxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxx X. Xxxxxxx
Fax: (000) 000-0000
Number of Shares being purchased:
1,000
XXXXXXX OPPORTUNITY FUND
(INSTITUTIONAL), L.P
a Delaware limited partnership
by: SOF Management, LLC, its General
Partner
By:________________________________
Name: Xxx X. Xxxxxxx
Title: Manager
Address:c/o Sanders Xxxxxx Xxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxx X. Xxxxxxx
Fax: (000) 000-0000
Number of Shares being purchased:
753
PURCHASER:
XXXXXXX OPPORTUNITY FUND, L.P.
a Delaware limited partnership
by: SOF Management, LLC, its General
Partner
By:________________________________
Name: Xxx X. Xxxxxxx
Title: Manager
Address: c/o Sanders Xxxxxx Xxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxx X. Xxxxxxx
Fax: (000) 000-0000
Number of Shares being purchased:
247
Exhibit A
---------
AMENDED CHARTER
Exhibit B
---------
STOCKHOLDERS' AGREEMENT
Exhibit C
---------
REGISTRATION RIGHTS AGREEMENTS
Exhibit D
---------
FOURTH AMENDED AND RESTATED BY-LAWS
