Exhibit 3.2
[Bylaw Amendments]
RESOLVED, that effective upon the closing of the Preferred
Stock Purchase Agreement, the following amendments to the Bylaws of the Company
shall take effect:
1. Section II.2 of the Bylaws is deleted and replaced in
its entirety with the following:
Section II.2. As of the closing of the purchase of
shares of Senior Convertible Preferred Stock (as defined in the Second
Amended and Restated Shareholders Agreement (the "Shareholders
Agreement"), dated as of July 30, 1999, by and between Allied Waste
Industries, Inc., a Delaware corporation (the "Company"), on the one
hand, and Apollo Investment Fund IV, L.P., a Delaware limited
partnership, Apollo Investment Fund III, L.P., a Delaware limited
partnership, Apollo Overseas Partners IV, L.P., a Delaware limited
partnership, Apollo Overseas Partners III, L.P., a Delaware limited
partnership, Apollo (U.K.) Partners III, L.P., an English limited
partnership, Apollo/AW LLC, a Delaware limited liability company,
Blackstone Capital Partners II Merchant Banking Fund L.P., a Delaware
limited partnership, Blackstone Capital Partners III Merchant Banking
Fund L.P., a Delaware limited partnership ("BCP"), Blackstone Offshore
Capital Partners II L.P., a Cayman Islands limited partnership,
Blackstone Family Investment Partnership II L.P., a Delaware limited
partnership, Blackstone Offshore Capital Partners III L.P., a Cayman
Islands limited partnership, Blackstone Family Investment Partnership
III L.P., a Delaware limited partnership, Greenwich Street Capital
Partners II, L.P., a Delaware limited partnership, GSCP Offshore Fund,
L.P., a Cayman Islands exempted limited partnership, Greenwich Fund,
L.P., a Delaware limited partnership, Greenwich Street Employees Fund,
L.P., a Delaware limited partnership, TRV Executive Fund, L.P., a
Delaware limited partnership, DLJMB Funding II, Inc., a Delaware
corporation, DLJ Merchant Banking Partners II, L.P., a Delaware limited
partnership, DLJ Merchant Banking Partners II-A, L.P., a Delaware
limited partnership, DLJ Diversified Partners, L.P., a Delaware limited
partnership, DLJ Diversified Partners-A, L.P., a Delaware limited
partnership, DLJ Millennium Partners, L.P., a Delaware limited
partnership, DLJ Millennium Partners-A, L.P., a Delaware limited
partnership, DLJ First ESC L.P., a Delaware limited partnership, DLJ
Offshore Partners II, C.V., a Netherlands Antilles limited partnership,
DLJ EAB Partners, L.P., a Delaware limited partnership, and DLJ ESC II
L.P., a Delaware limited partnership, or any other entities (other than
the Company) party to the Shareholders Agreement (collectively, the
"Shareholders"), on the other hand) pursuant to the Preferred Stock
Purchase Agreement (as defined in the Shareholders Agreement) and
until the earlier to occur of the tenth anniversary of the purchase
of shares of Senior Preferred Stock pursuant to the Preferred
Stock Purchase and the date on which the Apollo/Blackstone Shareholders
(as defined in the Shareholders Agreement) own, collectively, less than
20% of the Apollo/Blackstone Shares (as defined in the Shareholders
agreement) (the "Shareholder Designee Period"), the board of directors
shall consist of no more than thirteen (13) directors during the
Shareholder Designee Period.
2. Section II.3 of the Bylaws is amended to delete the
second paragraph and to add a new paragraph as follows:
At all times during the Shareholder Designee Period,
the Company agrees, subject to Section 3.1(d), to support the
nomination of, and the Company's Nominating Committee (as defined
herein) shall recommend to the Board of Directors the inclusion in the
slate of nominees recommended by the Board of Directors to shareholders
for election as directors at each annual meeting of shareholders of the
Company: (i) no more than two persons who are executive officers of the
Company ("Management Directors"), (ii) (A) five Shareholder Designees,
so long as the Apollo/Blackstone Shareholders beneficially own 80% or
more of the Apollo/Blackstone Shares, (B) four Shareholder Designees,
so long as the Apollo/Blackstone Shareholders beneficially own 60% or
more but less than 80% of the Apollo/Blackstone Shares, (C) three
Shareholder Designees, so long as the Apollo/Blackstone Shareholders
beneficially own 40% or more but less than 60% of the Apollo/Blackstone
Shares, (D) two Shareholder Designees, so long as the Apollo/Blackstone
Shareholders beneficially own 20% or more but less than 40% of the
Apollo/Blackstone Shares, and (E) one Shareholder Designee, so long as
the Apollo/Blackstone Shareholders beneficially own 10% or more but
less than 20% of the Apollo/Blackstone Shares (each a "Beneficial
Ownership Threshold"); provided, however, that if at any time as a
result of the Company's issuance of Voting Securities the Shareholders
beneficially own 9% or less of the Actual Voting Power (the "Actual
Voting Power Threshold"), the Apollo/Blackstone Shareholders shall be
entitled to no more than three Shareholder Designees (even if the
Apollo/Blackstone Shareholders would otherwise be entitled to a greater
number of Shareholder Designees pursuant to clauses (A) through (E)
above), and (iii) such other persons, each of whom is (A) recommended
by the Nominating Committee and (B) not an employee or officer of or
outside counsel to the Company or a partner, employee, director,
officer, affiliate or associate (as defined in Rule 12b-2 under the
Exchange Act) of any Shareholder or any affiliate of a Shareholder or
as to which the Shareholders or their affiliates own at least ten
percent of the voting equity securities ("Unaffiliated Directors"). If
any vacancy (whether by death, retirement, disqualification, removal
from office or other cause, or by increase in number of directors)
occurs prior to a meeting of the Company's stockholders, the Board (i)
may appoint a member of management to fill a vacancy caused by a
Management Director ceasing to serve as a director, (ii) shall appoint,
subject to Section 3.1(d), a person designated by the Apollo/Blackstone
Shareholders to fill a vacancy created by a Shareholder Designee
ceasing to serve as a director (except as a result of the reduction of
the number of Shareholder Designees entitled to be included on the
Board of Directors by reason of a decrease in the Apollo/Blackstone
Shareholders' beneficial ownership of Apollo/Blackstone Shares below
any Beneficial Ownership Threshold or by reasons of a decrease in the
Shareholders' beneficial ownership of Voting Securities below the
Actual Voting Power Threshold), and (iii) may appoint a person who
qualifies as an Unaffiliated Director and is recommended by the
Nominating Committee pursuant to the procedures set forth in the
following paragraph to fill a vacancy created by an Unaffiliated
Director ceasing to serve as a director (provided, however, that in the
case of a vacancy relating to an Unaffiliated Director, if a majority
of the Nominating Committee is unable to recommend a replacement, then
the directorship with respect to this vacancy shall remain vacant), and
each such person shall be a Management Designee, Shareholder Designee
or Unaffiliated Director, as the case may be, for purposes of this
Agreement. Upon any decrease in the Apollo/Blackstone Shareholders'
beneficial ownership of Apollo/Blackstone Shares below any Beneficial
Ownership Threshold or Voting Securities below the Actual Voting Power
Threshold, the Apollo/Blackstone Shareholders shall cause a number of
Shareholder Designees to offer to immediately resign from the Board of
Directors such that the number of Shareholder Designees serving on the
Board of Directors immediately thereafter will be equal to the number
of Shareholder Designees which the Apollo/Blackstone Shareholders would
then be entitled to designate under Section 3.1(b) of the Shareholders
Agreement. Upon termination of the Shareholder Designee Period, the
Apollo/Blackstone Shareholders shall promptly cause all of the
Shareholder Designees to offer to resign immediately from the Board of
Directors and any committees thereof.
3. The following provision shall replace Section III.3
of the Bylaws in its entirety:
Section III.3. For so long as the Apollo/Blackstone
Shareholders are entitled to at least two Shareholder Designees under
the Shareholders Agreement, the Apollo/Blackstone Shareholders shall be
entitled to have one Shareholder Designee serve on each committee of
the board of directors other than any committee formed for the purpose
of considering matters relating to the Shareholders. At all times
during the Shareholder Designee Period, Unaffiliated Directors shall be
designated exclusively by a majority of a nominating committee (the
"Nominating Committee"), which shall at all times during the
Shareholder Designee Period consist of not more than four persons, two
of whom shall be Shareholder Designees (or such lesser number of
Shareholder Designees as then serves on the Board of Directors) and two
of whom shall be either Management Directors or Unaffiliated Directors.
If the Nominating Committee is unable to recommend one or more persons
to serve as Unaffiliated Directors (except with respect to any vacancy
created by an Unaffiliated Director ceasing to serve as such), then the
Board of Directors shall nominate and recommend for election by
stockholders an Unaffiliated Director then serving on the Board of
Directors. Notwithstanding the foregoing, if the Apollo/Blackstone
Shareholders beneficially own less than 50% of the Apollo/Blackstone
Shares, the Nominating Committee shall be comprised of individuals only
one of whom is a Shareholder Designee.
