Exhibit D
Registration Rights Agreement
This Agreement is entered into as of November 12, 1999 by Stericycle, Inc., a
Delaware corporation (the "Company"), and the Persons whose names are set forth
on the attached Schedule I (collectively, the "Investors").
A. The Company and the Investors are concurrently closing an Amended and
Restated Series A Convertible Preferred Stock Purchase Agreement, dated
September 26, 1999 (the "Purchase Agreement"), pursuant to the terms and
conditions of which the Company is issuing and selling to the Investors, and the
Investors are purchasing from the Company, 75,000 of Series A Convertible
Preferred Stock (the "Preferred Shares").
B. The Parties' execution and delivery of this Agreement is a condition of
their respective obligations to close the Purchase Agreement.
The Parties agree as follows:
Capitalized terms which are used in this Agreement without being defined have
the same meanings that they are given in the Purchase Agreement. Certain
capitalized terms used in this Agreement are defined in the attached Schedule A.
1. Demand Registrations.
1A. General. On or at any time after the first anniversary of Closing,
holders of a majority of the Registrable Securities then outstanding may request
registration under the Securities Act of all or any portion of their Registrable
Securities in connection with a public offering of those securities. All
registrations requested pursuant to this Section 1 are referred to in this
Agreement as "Demand Registrations." Holders of Registrable Securities shall be
limited to three Demand Registrations. All Demand Registrations (other than a
Demand Registration that consists of a Shelf Registration Statement (as defined
below)) shall be a firm commitment underwritten offering. In regard to Demand
Registrations:
(1) Each request for a Demand Registration shall specify the approximate
number of Registrable Securities requested to be registered. Within 10 days
after receipt of any request for a Demand Registration, the Company shall
give written notice of the requested registration to all other holders of
Registrable Securities, and shall include in the registration all Registrable
Securities with respect to which the Company has received written requests
for inclusion within 15 days after receipt of the Company's notice.
(2) A Demand Registration shall not be counted as one of the three
permitted Demand Registrations unless (i) it has become effective and (ii)
the Persons making the request are able to register and sell at least 75% of
the Registrable Securities requested to be included in the registration.
(3) The Company shall pay all Registration Expenses in connection with
any Demand Registration whether or not it is counted as one of the three
permitted Demand Registrations; provided, however, that the holders of
Registrable Securities included in the third Demand Registration shall pay
all Registration Expenses (other than as set forth in Section 5A) in
connection with such Demand Registration if such Demand Registration consists
of the Shelf Registration Statement; and provided further that, if the second
Demand Registration consisted of a Shelf Registration Statement, the holders
of Registrable Securities included in the third Demand Registration shall
reimburse the Company for all Registration Expenses (other than as set forth
in Section 5A) in connection with the previous Shelf Registration Statement
(i.e., the second Demand Registration).
(4) Demand Registrations shall be on Form S-2 or Form S-3 or any similar
short-form registration statement, if available.
(5) The Company shall have the right to select the managing underwriter
in connection with any firm commitment underwritten offering, subject to the
approval of a majority of the holders of the Registrable Securities
requesting registration, and holders of a majority of the Registrable
Securities requesting registration shall have the right to select a co-
managing underwriter, subject to the Company's approval.
1B. Limit on Registrable Securities. In the case of any firm commitment
underwritten offering, if the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities requested to
be included in the offering exceeds the number of Registrable Securities that
can be sold without adversely affecting the marketability of the offering, the
Company shall include in the registration the number of Registrable Securities
requested to be included which in the opinion of the underwriters can be sold
without adversely affecting the marketability of the offering, pro rata among
the respective holders on the basis of the number of Registrable Securities
owned by each holder.
1C. Restrictions. The Company shall not be obligated to effect any Demand
Registration within 180 days after the effective date of a previous Demand
Registration or a previous registration in which the holders of Registrable
Securities were given piggyback rights pursuant to Section 2. The Company may
postpone for up to 180 days the filing or the effectiveness of a registration
statement for a Demand Registration if the Company's board of directors in good
faith reasonably determines that the Demand Registration would reasonably be
expected to have a material adverse effect on any proposal or plan by the
Company to engage in any acquisition of assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer, reorganization
or similar transaction. In this event, the holders of Registrable Securities
initially requesting the Demand Registration shall be entitled to withdraw their
request. If their request is withdrawn, the Demand Registration shall not count
as one of the three permitted Demand Registrations, and the Company shall pay
all Registration Expenses in connection with the registration. The Company may
delay a Demand Registration pursuant to this Section 1C only once in any 12-
month period.
1D. Shelf Registration. At the request of the holders of a majority of the
Registrable Securities then outstanding, one Demand Registration (other than the
first Demand Registration) may consist of a shelf registration statement (as
amended and supplemented from time to time, the "Shelf Registration Statement")
in accordance with Rule 415 under the Securities Act (or any similar rule that
may be adopted by the Securities and Exchange Commission). In the event of any
such request, the Company shall promptly prepare and file the Shelf Registration
Statement and cause it to be declared effective as soon as reasonably
practicable (and in any event within 90 days) after such request and will keep
such Shelf Registration Statement continuously effective and in compliance with
the Securities Act and usable for resale or other disposition of such
Registrable Securities, subject to clauses (1) and (2) below, for the period
(the "Effective Period") commencing on the date on which the Securities and
Exchange Commission declares such Shelf Registration Statement effective and
ending on the earlier of (x) the first anniversary date of the date such Shelf
Registration Statement is declared effective (or, in the event the Company has
exercised its right under clause (1) below to refuse use of the Shelf
Registration for a Delay Period, the eighteen-month anniversary date of the date
such Shelf Registration Statement is declared effective) and (y) the first date
on which there are no longer any Registrable Securities. The Effective Period
shall be automatically extended by the number of days that the second Delay
Period, if any, is in effect during the final thirty days of the Effective
Period prior to any such extension. In regard to the Shelf Registration
Statement:
(1) The Company shall have the right to refuse use of an effective Shelf
Registration Statement (a "Delay Period") for a length of time not to exceed
45 days if the Company's board of directors reasonably determines, with
respect to the advisability (as determined in good faith) of deferring public
disclosure of material corporate developments, that use of the Shelf
Registration Statement and the disclosure required to be made therein would
not be in the best interests of the Company at such time; provided, however,
that there shall not be more than two Delay Periods during the Effective
Period. The Company shall use reasonable efforts to minimize the length of
any Delay Period and shall provide prompt written notice to the holders of
Registrable Securities of the beginning and end of each Delay Period.
(2) The Company shall promptly notify the holders of Registrable
Securities, at any time when a prospectus relating to the sale of the
Registrable Securities is required by law to be delivered in connection with
sales by an underwriter or dealer, of the occurrence of any event requiring
the preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading and shall (subject to any Delay Period) promptly
make available to holders of Registrable Securities and to the underwriters
any such supplement or amendment. Holders of Registrable Securities agree
that, upon receipt
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of any notice from the Company of the occurrence of any event of the kind
described in the preceding sentence, holders of Registrable Securities will
forthwith discontinue the offer and sale of Registrable Securities pursuant
to the Shelf Registration Statement until receipt by holders of Registrable
Securities and the underwriters of the copies of such supplemented or amended
prospectus.
2. Piggyback Registrations.
2A. Right To Piggyback. Whenever the Company proposes to register any of its
securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
shall give prompt written notice to all holders of Registrable Securities of its
intention to effect such a registration and shall include in the registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion within 20 days after receipt of the Company's
notice. Holders of Registrable Securities shall be entitled to unlimited
Piggyback Registrations for their Registrable Securities.
2B. Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
2C. Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in the registration exceeds the number that
can be sold without adversely affecting the marketability of the offering, the
Company shall include in the registration (i) first, the securities that the
Company proposes to sell, (ii) second, the Registrable Securities requested to
be included in the registration, pro rata among the holders of the Registrable
Securities on the basis of the number of Registrable Securities owned by each
holder, and (iii) third, any other securities requested to be included in the
registration.
2D. Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in the
registration exceeds the number that can be sold without adversely affecting the
marketability of the offering, the Company shall include in the registration (i)
first, the Registrable Securities requested to be included in the registration,
pro rata among the holders of the Registrable Securities on the basis of the
number of Registrable Securities owned by each holder, and (ii) second, the
other securities requested to be included in the registration.
2E. Other Registrations. If the Company has previously filed a registration
statement with respect to Registrable Securities pursuant to Section 1 or
pursuant to this Section 2, and if the previous registration has not been
withdrawn or abandoned, the Company shall not file or cause to be effected any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-8 or any successor form), whether on its own behalf or at
the request of any holder or holders of its securities, until a period of at
least 180 days has elapsed from the effective date of the previous registration.
3. Holdback Agreements.
3A. Holders of Registrable Securities. Each holder of Registrable Securities
shall not effect any public sale or distribution (including sales pursuant to
Rule 144) of equity securities of the Company, or any securities convertible
into or exchangeable or exercisable for equity securities of the Company, during
the 30 days prior to and the 120-day period (or such lesser period as the
managing underwriters may agree to) beginning on the effective date of any
Demand Registration or any underwritten Piggyback Registration in which
Registrable Securities are included (except as part of such Demand Registration
or underwritten Piggyback Registration), unless the underwriters managing the
offering otherwise agree.
3B. Company. The Company shall not effect any public sale or distribution of
its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during such period prior to and following the
effective date of any Demand Registration or any underwritten Piggyback
Registration as the Company and the underwriters managing the offering may
agree.
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4. Registration Procedures.
Whenever holders of Registrable Securities have requested that any
Registrable Securities be registered pursuant to this Agreement, the Company
shall use its reasonable best efforts to effect the registration and the sale of
the Registrable Securities in accordance with the intended method of
disposition, In this regard, the Company shall:
(1) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use
its reasonable best efforts to cause the registration statement to become
effective;
(2) notify each holder of Registrable Securities of the effectiveness of
each registration statement filed under this Agreement and prepare and file
with the Securities and Exchange Commission any amendments and supplements to
the registration statement and the prospectus that may be necessary to keep
the registration statement effective for a period of not less than 180 days
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the registration statement during
this 180-day period in accordance with the intended methods of disposition by
the sellers described in the registration statement;
(3) furnish to each seller of Registrable Securities the number of copies
of the registration statement, each amendment and supplement, the prospectus
included in the registration statement ( including each preliminary
prospectus) and any other documents that each seller may reasonably request
in order to facilitate the disposition of the seller's Registrable
Securities;
(4) use its best efforts to register or qualify the Registrable
Securities under such other securities or blue sky laws of such jurisdictions
as any seller reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable the seller to
consummate the disposition in those jurisdictions of the Registrable
Securities owned by the seller (but the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction);
(5) notify each seller of Registrable Securities, at any time when a
prospectus relating to those securities is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in the registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements in the prospectus not misleading; and, at the request of any
seller, the Company shall prepare a supplement or amendment to the prospectus
so that, when delivered to purchasers of the Registrable Securities, the
prospectus, as supplemented or amended, does not contain an untrue statement
of a material fact or omit to state any fact necessary to make the statements
in the prospectus not misleading;
(6) cause all Registrable Securities to be quoted on the Nasdaq National
Market System;
(7) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of the registration statement;
(8) enter into such customary agreements (including underwriting
agreements in customary form) and take all other actions that holders of a
majority of the Registrable Securities being sold or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
the Registrable Securities;
(9) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to the
registration statement and any attorney, accountant or other agent retained
by any seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with the registration statement;
(10) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months beginning with the
first day of the Company's first full
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calendar quarter after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158; and
(11) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification
of any Common Stock included in the registration statement for sale in any
jurisdiction, use its best efforts promptly to obtain the withdrawal of such
order.
5. Registration Expenses.
5A. Payment by Company. All Registration Expenses shall be borne as provided
in this Agreement, except that the Company shall, in any event, pay its internal
expenses (including all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review and the expenses and fees for listing the securities to be
registered on the Nasdaq National Market System.
5B. Fees of Counsel. In connection with each Demand Registration and each
Piggyback Registration, the Company shall reimburse the holders of Registrable
Securities included in the registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the
Registrable Securities included in the registration and for the reasonable fees
of one special counsel retained by the holders of Registrable Securities to
render any required legal opinions in connection with an underwritten
registration which the first counsel is unable or unwilling to render.
5C. Payment by Holders. To the extent that Registration Expenses are not
required to be paid by the Company, each holder of securities included in any
registration under this Agreement shall pay those Registration Expenses
allocable to the registration of the holder's securities so included, and any
Registration Expenses not so allocable shall be borne by all sellers of
securities included in the registration in proportion to the aggregate selling
price of the securities to be so registered.
6. Indemnification.
6A. Indemnification by Company. The Company agrees to indemnify, to the
extent permitted by law, each holder of Registrable Securities, its officers and
directors and each Person who controls such holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
caused by any Violation, except insofar as the Violation is caused by or
contained in any information furnished in writing to the Company by the holder
expressly for use in a registration statement, prospectus, amendment, supplement
or related document or is caused by the holder's failure to deliver a copy of
the registration statement or prospectus or any amendment or supplements after
the Company has furnished the holder with a sufficient number of copies. In
connection with an underwritten offering, the Company shall indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent
provided in this Section 6(a) with respect to the indemnification of holders of
Registrable Securities.
6B. Indemnification by Holder. In connection with any registration statement
in which a holder of Registrable Securities is participating, the holder shall
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with the registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any Violation to the extent that the Violation is
caused by or contained in any information furnished in writing to the Company by
the holder expressly for use in a registration statement, prospectus, amendment,
supplement or related document. This obligation to indemnify shall be
individual, not joint and several, for each holder and shall be limited to the
net amount of proceeds received by the holder from the sale of Registrable
Securities pursuant to the registration statement.
6C. Procedures. Any Person entitled to indemnification under this Section 6
shall give prompt written notice to the indemnifying party of any claim with
respect to which the Person seeks indemnification (provided that the failure to
give prompt notice shall not impair any Person's right to indemnification to the
extent that the failure has not prejudiced the indemnifying party). Unless in
the indemnified party's reasonable judgment a conflict of interest between the
indemnified and indemnifying parties may exist with respect to the claim for
indemnification, the indemnified party shall
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permit the indemnifying party to assume the defense of the claim with counsel
reasonably satisfactory to the indemnified party. If the defense of the claim is
assumed by the indemnifying party, the indemnifying party shall not be subject
to any liability for any settlement made by the indemnified party without its
consent (but the indemnifying party shall not unreasonably withhold its
consent). An indemnifying party who is not entitled to, or who elects not to,
assume the defense of a claim for indemnification shall not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified by
the indemnifying party with respect to the claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between the
indemnified party and any of the other indemnified parties with respect to the
claim.
6D. Survival. The indemnification under this Section 6 shall remain in full
force and effect regardless of any investigation made by or on behalf of the
indemnified party or any officer, director or controlling Person of the
indemnified party and shall survive the transfer of securities. The Company also
agrees to make such provisions as are reasonably requested by any indemnified
party for contribution to the indemnified party in the event that the Company's
indemnification is unavailable for any reason.
7. Participation in Underwritten Registration.
No Person may participate in any underwritten registration pursuant to this
Agreement unless the Person (i) agrees to sell securities on the basis provided
in the underwriting arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of the underwriting arrangements. In
any event, however, no holder of Registrable Securities included in any
underwritten registration shall be required to make any representations or
warranties to the Company or the underwriters (other than representations and
warranties regarding the holder and the holder's intended method of
distribution) or to undertake any indemnification obligations to the Company or
the underwriters except as otherwise provided in Section 6.
8. Miscellaneous.
8A. No Inconsistent Agreements. The Company shall not enter into any
agreement with respect to its securities which is inconsistent with or violates
the rights granted to the holders of Registrable Securities in this Agreement.
Without limiting the generality of the foregoing, until the initial holders of
Registrable Securities cease to hold at least 25% of the number of Registrable
Securities initially acquired by such holders, the Company shall not grant to
any Person the right to request the Company to register any equity securities of
the Company, or any securities convertible or exchangeable into or exercisable
for such securities, without the prior written consent of the holders of a
majority of the Registrable Securities. The Company may grant rights to other
Persons to participate in Piggyback Registrations, however, so long as such
rights are subordinate to the rights of the holders of Registrable Securities
with respect to such Piggyback Registrations as set forth in Sections 2C and 2D
of this Agreement. The Company represents and warrants that, except as set forth
on the attached Schedule II, the Company is not a party to or otherwise subject
to any other agreement granting registration rights to any other Person with
respect to securities of the Company.
8B. Notices. All Notices under this Agreement shall be in writing and sent
by certified or registered mail, overnight messenger service, telecopier or
personal delivery, as follows:
(a) if to Stericycle, to: Stericycle, Inc.
00000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx
President and Chief Executive Officer
Telecopier: (000) 000-0000
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with a required copy to: Xxxxxxx and Colmar
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
(b) if to the Bain Investors, in care of: Xxxx Capital, Inc.
Two Xxxxxx Place
Boston, Massachusetts 02116
Attention: Xx. Xxxxxxx X. Xxxxxxxx
Mr. Xxxxxx Xxx
Xx. Xxxx X. Xxxxxxxxxxx
Xx. Xxx Xxxxxxx
Telecopier: (000) 000-0000
with a required copy to: Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, P.C.
Telecopier: (000) 000-0000
(c) if to the MDP Investors, in care of: Madison Dearborn Partners, Inc.
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
with a required copy to: Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, P.C.
Telecopier: (000) 000-0000
All Notices sent by certified or registered mail shall be considered to have
been given three business days after being deposited in the mail. All Notices
sent by overnight courier service, telecopier or personal delivery shall be
considered to have been given when actually received by the intended recipient.
A Party may change its address for purposes of this Agreement by Notice in
accordance with this Section 8B.
8C. Waiver. The rights and remedies of the Company and holders of
Registrable Securities are cumulative and not alternative. Neither the failure
nor any delay by the Company or any holder of Registrable Securities in
exercising any right, power or privilege under this Agreement shall operate as a
waiver of that right, power or privilege, and no single or partial exercise of
any right, power or privilege shall preclude any other or further exercise of
that right, power or privilege or the exercise of any other right, power or
privilege. All waivers shall be in writing signed by the party to be charged
with the waiver, and no waiver that may be given by a party shall be applicable
except in the specific instance for which it is given.
8D. Amendment. This Agreement may not be amended except by a written
agreement signed by the Company and holders of a majority of the Registrable
Securities.
8E. Severability. If any provision of this Agreement is held invalid or
unenforceable by a court of competent jurisdiction, the other provisions of this
Agreement shall remain in full force and effect. Any provision of this Agreement
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which is held invalid or unenforceable only in part shall remain in full force
and effect to the extent not held invalid or unenforceable.
8F. Captions. The captions of sections of this Agreement are for convenience
only and shall not affect this the construction or interpretation of this
Agreement.
8G. Construction. All references in this Agreement to "Section" or
"Sections" refer to the corresponding section or sections of this Agreement. All
words used in this Agreement shall be construed to be of the appropriate gender
or number as the context requires. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms.
8H. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be considered an original copy of this
Agreement and all of which, when taken together, shall be considered to
constitute one and the same agreement.
8I. Governing Law. This Agreement shall be governed by the Laws of the State
of Illinois without regard to conflicts of laws principles.
8J. Binding Effect. This Agreement shall apply to, be binding in all
respects upon and inure to the benefit of Parties and their respective
successors and permitted assigns.
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In witness, the Parties have executed this Agreement.
STERICYCLE, INC.
By: /s/ Xxxxx ten Xxxxx
--------------------------------------------
Name: Xxxxx ten Brink
Title: Chief Financial Officer
XXXX CAPITAL FUND VI, L.P.
By: Xxxx Capital Partners VI, L.P.
Its. General Partner
By: Xxxx Capital Investors VI, Inc.
Its: General Partner
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------------
A Managing Director
BCIP ASSOCIATES II
By: Xxxx Capital, Inc.
Its: Managing Partner
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------------
A Managing Director
BCIP ASSOCIATES II-B
By: Xxxx Capital, Inc.
Its: Managing Partner
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------------
A Managing Director
BCIP ASSOCIATES II-C
By: Xxxx Capital, Inc.
Its: Managing Partner
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------------
A Managing Director
BCIP TRUST ASSOCIATES II
By: Xxxx Capital, Inc.
Its: Managing Partner
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------------
A Managing Director
BCIP TRUST ASSOCIATES II-B
By: Xxxx Capital, Inc.
Its: Managing Partner
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------------
A Managing Director
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------------
A Managing Director
PEP INVESTMENTS PTY. LIMITED
By: Xxxx Capital, Inc.
Its: Attorney-in-Fact
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------------
A Managing Director
BROOKSIDE CAPITAL PARTNERS FUND, L.P.
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------------
A Managing Director
XXXXXXXX STREET PARTNERS II
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------------
A General Partner
MADISON DEARBORN CAPITAL PARTNERS III, L.P.
By: Madison Dearborn Partners III, L.P.
Its: General Partner
By: Madison Dearborn Partners, LLC
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
A Managing Director
MADISON DEARBORN SPECIAL EQUITY III, L.P.
By: Madison Dearborn Partners III, L.P.
Its: General Partner
By: Madison Dearborn Partners, LLC
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
A Managing Director
SPECIAL ADVISORS FUND I, LLC
By: Madison Dearborn Partners III, L.P.
Its: Manager
By: Madison Dearborn Partners, LLC
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
A Managing Director
SCHEDULE I
Investors
Name and Address Number of Shares Purchased Purchase Price
Xxxx Capital Fund VI, L.P. 25,403.76 $25,403,759.00
x/x Xxxx Xxxxxxx, Xxx.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
BCIP Associates II 4,491.38 $ 4,491,378.00
x/x Xxxx Xxxxxxx, Xxx.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
BCIP Associates II-B 615.62 $ 615,619.00
x/x Xxxx Xxxxxxx, Xxx.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
BCIP Associates II-C 1,319.76 $ 1,319,760.00
x/x Xxxx Xxxxxxx, Xxx.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Brookside Capital Partners Fund, L.P. 1,856.25 $ 1,856,250.00
x/x Xxxx Xxxxxxx, Xxx.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
BCIP Trust Associates II 1,291.22 $ 1,291,222.00
x/x Xxxx Xxxxxxx, Xxx.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
BCIP Trust Associates II-B 206.08 $ 206,084.00
x/x Xxxx Xxxxxxx, Xxx.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Sankaty High Yield Asset Partners, L.P. 1,856.25 $ 1,856,250.00
x/x Xxxx Xxxxxxx, Xxx.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
PEP Investments Pty. Limited 84.68 $ 84,678.00
c/o Bain Capital, Inc.
Two Xxxxxx Place
Boston, Massachusetts 02116
Xxxxxxxx Street Partners II 375.00 $ 375,000.00
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Madison Dearborn Capital Partners III, L.P. 36,538.68 $36,538,683.00
c/o Madison Dearborn Partners, Inc.
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Madison Dearborn Special Equity III, L.P. 811.32 $ 811,317.00
c/o Madison Dearborn Partners, Inc.
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Special Advisors Fund I, LLC 150.00 $ 150,000.00
c/o Madison Dearborn Partners, Inc.
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
SCHEDULE A
Defined Terms
Exchange Act means the Securities Exchange Act of 1934, as amended.
Person means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or other entity.
Registrable Securities means (i) any shares of Common Stock issued or
issuable upon conversion of the Preferred Shares and (ii) any shares of Common
Stock issued or issuable (A) as a dividend or distribution in respect of, or (B)
in exchange for or replacement of, or (C) upon conversion or exercise of any
warrant or other security issued or issuable as a dividend or distribution in
respect of or in exchange for or replacement of, the Preferred Shares and any
shares of Common Stock issued or issuable upon conversion of the Preferred
Shares. Any Registrable Securities shall cease to be Registrable Securities if
and when they (or, in respect of issuable but not yet issued Registrable
Securities, the underlying Preferred Stock or Common Stock) cease to be held by
an Investor or a Permitted Transferee (as "Permitted Transferee" is defined in
the Corporate Governance Agreement). In addition, in the case of a distribution
of Registrable Securities by an Investor to a partner of the Investor (and thus
a Permitted Transferee), the distributed securities shall cease to be
Registrable Securities when so distributed if, prior to or concurrently with the
distribution, the Investor has notified the Company in writing of the Investor's
election to terminate the status of the distributed securities as Registrable
Securities.
Registration Expenses means all expenses incident to the Company's
performance of or compliance with this Agreement, including all registration and
filing fees, fees and expenses of compliance with securities or blue sky laws,
printing expenses, messenger and delivery expenses, fees and disbursements of
custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts,
commissions and underwriters' counsel fees) and other Persons retained by the
Company.
Securities Act means the Securities Act of 1933, as amended.
Violation means any of the following statements, omissions or violations: (i)
any untrue statement or alleged untrue statement of a material fact contained in
a registration statement under this Agreement, including any related preliminary
or final prospectus, any amendment or supplement, or any document filed under
state securities or "blue sky" laws, (ii) the omission or alleged omission to
state a material fact required to be stated in any such registration statement,
prospectus, amendment, supplement or document or necessary to make the
statements in any such registration statement, prospectus, amendment, supplement
or document not misleading, or (iii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state securities law, or
any rule or regulation promulgated under the Securities Act, the Exchange Act or
any state securities law.
