Exhibit 10.2
XXXXXXX WASTE SYSTEMS, INC.
REGISTRATION RIGHTS AGREEMENT
This Agreement dated as of August 11, 2000 is entered into by and among
Xxxxxxx Waste Systems, Inc., a Delaware corporation (the "Company"), and the
entities listed on Exhibit A attached hereto (the "Purchasers").
Recitals
WHEREAS, the Company and the Purchasers have entered into a Preferred
Stock Purchase Agreement of even date herewith (the "Purchase Agreement"); and
WHEREAS, the Company and the Purchasers desire to provide for certain
arrangements with respect to the registration of shares of capital stock of the
Company under the Securities Act of 1933;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" means the Class A common stock, $.01 par value per
share, of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"Initiating Holders" means the Stockholders initiating a request for
registration pursuant to Section 2.1(a).
"Other Holders" shall have the meaning set forth in Section 2.1(c).
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by an amendment or prospectus supplement,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
"Registration Expenses" means the expenses described in Section 2.4.
"Registrable Shares" means (i) the shares of Common Stock issued or
issuable upon conversion of the Shares, and (ii) any other shares of Common
Stock issued in respect of such shares (because of stock splits, stock
dividends, reclassifications, recapitalizations, or similar events); provided,
however, that shares of Common Stock which are Registrable Shares shall cease to
be Registrable Shares upon (i) any public sale pursuant to a Registration
Statement or Rule 144 under the Securities Act or (ii) any sale in any manner to
a person or entity which, by virtue of Section 3 of this Agreement, is not
entitled to the rights provided by this Agreement. Wherever reference is made in
this Agreement to a request or consent of holders of a certain percentage of
Registrable Shares, the determination of such percentage shall include shares of
Common Stock issuable upon conversion of the Shares even if such conversion has
not been effected.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Secondary Public Offering" means an underwritten public offering of
shares of Common Stock on behalf of Selling Stockholders pursuant to an
effective Registration Statement.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Selling Stockholder" means any Stockholder owning Registrable
Shares included in a Registration Statement.
"Shares" means the Shares of the Company's Series A Convertible
Preferred Stock which were purchased by the Purchasers pursuant to the Purchase
Agreement.
"Stockholders" means the Purchasers and any persons or entities to
whom the rights granted under this Agreement are transferred by any Purchasers,
their successors or assigns pursuant to Section 3 hereof.
2. Registration Rights
2.1 Required Registrations.
(a) A Stockholder or Stockholders holding in the aggregate at
least 20% of the Registrable Shares then outstanding may request, in writing,
that the Company effect the registration of Registrable Shares owned by the
Stockholder or Stockholders having an aggregate value of at least $5,000,000
(based on the then current public market price).
(b) Upon receipt of any request for registration pursuant to
this Section 2, the Company shall promptly give written notice of such proposed
registration to all other Stockholders. Such Stockholders shall have the right,
by giving written notice to the
-2-
Company within 30 days after the Company provides its notice, to elect to have
included in such registration such of their Registrable Shares as such
Stockholders may request in such notice of election, subject in the case of an
underwritten offering to the approval of the managing underwriter as provided in
Section 2.1(c) below. Thereupon, the Company shall, as expeditiously as
possible, use its best efforts to effect the registration on Form S-1 or, if
available, S-3 (or in each case any successor form) of all Registrable Shares
which the Company has been requested to so register.
(c) If the Initiating Holders intend to distribute the
Registrable Shares covered by their request by means of an underwriting, they
shall so advise the Company as a part of their request made pursuant to Section
2.1(a) and the Company shall include such information in its written notice
referred to in Section 2.1(b). The right of any other Stockholder to include its
Registrable Shares in such registration pursuant to Section 2.1(a) shall be
conditioned upon such other Stockholder's participation in such underwriting on
the terms set forth herein. If the Company desires that any officers or
directors of the Company holding securities of the Company be included in any
registration for an underwritten offering requested pursuant to this Section
2.1(c) or if other holders of securities of the Company who are entitled, by
contract with the Company, to have securities included in such a registration
(the "Other Holders") request such inclusion, the Company may include the
securities of such officers, directors and Other Holders in such registration
and underwriting on the terms set forth herein. The Company shall (together with
all Stockholders, officers, directors and Other Holders proposing to distribute
their securities through such underwriting) enter into an underwriting agreement
in customary form (including, without limitation, customary indemnification and
contribution provisions on the part of the Company) with the managing
underwriter; provided that such underwriting agreement shall not provide for
indemnification or contribution obligations on the part of Stockholders
materially greater than the obligations of the Stockholders pursuant to Section
2.5. Notwithstanding any other provision of this Section 2.1(c), if the managing
underwriter advises the Company that the inclusion of all shares requested to be
registered would adversely affect the offering (including without limitation the
price at which such shares will be offered to the public), the securities of the
Company held by officers or directors of the Company (other than Registrable
Shares) and the securities held by Other Holders (other than Registrable Shares)
shall be excluded from such registration and underwriting to the extent deemed
advisable by the managing underwriter, and if a further limitation of the number
of shares is required, the number of shares that may be included in such
registration and underwriting shall be allocated among all holders of
Registrable Shares requesting registration in proportion, as nearly as
practicable, to the respective number of Common Stock (on an as-converted basis)
which they held at the time the Company gives the notice specified in Section
2.2(b). If any holder of Registrable Shares, officer, director or Other Holder
who has requested inclusion in such registration as provided above disapproves
of the terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Company, and the securities so withdrawn shall also be
withdrawn from registration. If the managing underwriter has not limited the
number of Registrable Shares or other securities to be underwritten, the Company
may include securities for its own account in such registration if the managing
underwriter so agrees and if the number of Registrable Shares and other
securities which would otherwise have been included in such registration and
underwriting will not thereby be limited.
-3-
(d) The Company shall have the right to select the managing
underwriter(s) for any underwritten offering requested pursuant to Section
2.1(a), subject to the approval of the Initiating Holders, which approval will
not be unreasonably withheld.
(e) The Company shall not be required to effect more than
three registrations pursuant to Section 2.1(a). For purposes of this Section
2.1(e), a Registration Statement shall not be counted until such time as such
Registration Statement has been declared effective by the Commission (unless the
Initiating Holders withdraw their request for such registration (other than as a
result of information concerning the business or financial condition of the
Company which is made known to the Stockholders after the date on which such
registration was requested) and elect not to pay the Registration Expenses
therefor pursuant to Section 2.4). Notwithstanding the foregoing, (i) on one
occasion in the event that the holders of Registrable Securities have not sold
at least 75% of the shares registered pursuant to such registration they may
elect, within 30 days of the termination thereof, by written notice to the
Company to pay the Registration Expenses relating to the registration in which
case such Registration Statement shall not be counted pursuant to this Section
2.1(e), (ii) in the event that the Company withdraws a Registration Statement
after it has become effective or such Registration Statement otherwise ceases to
be effective for the period described in Section 2.3(a)(ii) (which 180 days need
not be contiguous ) and the holders of Registrable Securities have not sold at
least 75% of the shares registered pursuant to such registration, such
Registration Statement shall not be counted pursuant to this Section 2.1(e) and
(iii) on one occasion, in the event that the managing underwriter advises the
Company pursuant to Section 2.1(c) that the number of shares that is advisable
to be sold in such registration is less than 75% of the shares requested to be
sold by the Stockholders, then the Initiating Holders, acting by majority, may,
within two business days of such determination by the managing underwriter,
elect to withdraw their request pursuant to this Section 2.1 and not have the
registration counted as a registration pursuant to this Section 2.1(e).
(f) If at the time of any request to register Registrable
Shares by Initiating Holders pursuant to this Section 2.1, the Company is
engaged or has plans to engage in a registered public offering or is engaged in
any other activity which, in the good faith determination of the Company's Board
of Directors, would be adversely affected by the requested registration, then
the Company may at its option direct that such request be delayed for a period
not in excess of 90 days from the date of such request, such right to delay a
request to be exercised by the Company not more than twice in any 12-month
period.
2.2 Incidental Registration.
(a) Whenever the Company proposes to request the effectiveness
of a Registration Statement (other than a Registration Statement filed pursuant
to Section 2.1) at any time and from time to time, it will, prior to such
effectiveness, give written notice to all Stockholders of its intention to do
so; provided, that (i) no such notice need be given if no Registrable Shares are
to be included therein as a result of a determination of the managing
underwriter pursuant to Section 2.2(b) and (ii) no such notice need be given to
any Stockholder with respect to Registrable Shares that (A) can be sold pursuant
to Rule 144(k) under the Securities Act and (B) no longer bear a restrictive
legend on the certificate evidencing such Shares (however, in the case of clause
(ii) the Company shall provide notice to the Purchasers).
-4-
Upon the written request of a Stockholder or Stockholders given within 20 days
after the Company provides such notice (which request shall state the intended
method of disposition of such Registrable Shares), the Company shall use its
best efforts to cause all Registrable Shares which the Company has been
requested by such Stockholder or Stockholders to register to be registered under
the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified in
the request of such Stockholder or Stockholders; provided that the Company shall
have the right to postpone or withdraw any registration effected pursuant to
this Section 2.2 without obligation to any Stockholder.
(b) If the registration for which the Company gives notice
pursuant to Section 2.2(a) is a registered public offering involving an
underwriting, the Company shall so advise the Stockholders as a part of the
written notice given pursuant to Section 2.2(a). In such event, the right of any
Stockholder to include its Registrable Shares in such registration pursuant to
Section 2.2 shall be conditioned upon such Stockholder's participation in such
underwriting on the terms set forth herein. All Stockholders proposing to
distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for the underwriting by the Company, Notwithstanding any other
provision of this Section 2.2, if the managing underwriter determines that the
inclusion of all shares requested to be registered would adversely affect the
offering, the Company may limit the number of Registrable Shares to be included
in the registration and underwriting. The Company shall so advise all holders of
Registrable Shares requesting registration, and the number of shares that are
entitled to be included in the registration and underwriting shall be allocated
in the following manner. The securities of the Company held by holders other
than Stockholders and Other Holders shall be excluded from such registration and
underwriting to the extent deemed advisable by the managing underwriter, and, if
a further limitation on the number of shares is required, the number of shares
that may be included in such registration and underwriting shall be allocated
among all Stockholders and Other Holders requesting registration in proportion,
as nearly as practicable, to the respective number of shares of Common Stock (on
an as-converted basis) which they held at the time the Company gives the notice
specified in Section 2.2(a) except to the extent that the Company is obligated
under any contractual provision existing on the date hereof to allocate such
shares first to Other Holders. If any Stockholder or Other Holder would thus be
entitled to include more securities than such holder requested to be registered,
the excess shall be allocated among other requesting Stockholders and Other
Holders pro rata in the manner described in the preceding sentence. If any
holder of Registrable Shares or any officer, director or Other Holder
disapproves of the terms of any such underwriting, such person may elect to
withdraw therefrom by written notice to the Company, and any Registrable Shares
or other securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
(c) Notwithstanding the foregoing, the Company shall not be
required, pursuant to this Section 2.2, to include any Registrable Shares in a
Registration Statement if such Registrable Shares can then be sold pursuant to
Rule 144(k) under the Securities Act.
2.3 Registration Procedures.
-5-
(a) If and whenever the Company is required by the provisions
of this Agreement to use its best efforts to effect the registration of any
Registrable Shares under the Securities Act, the Company shall:
(i) file with the Commission a Registration Statement with
respect to such Registrable Shares for an offering to be made on a continuous or
delayed basis (a so-called "shelf registration statement") and use its best
efforts to cause that Registration Statement to become effective as soon as
possible;
(ii) as expeditiously as possible prepare and file with
the Commission any amendments and supplements to the Registration Statement and
the prospectus included in the Registration Statement as may be necessary to
comply with the provisions of the Securities Act (including the anti-fraud
provisions thereof) and to keep the Registration Statement effective for 180
days from the effective date or such lesser period until all such Registrable
Shares are sold;
(iii) as expeditiously as possible furnish to each Selling
Stockholder such reasonable numbers of copies of the Prospectus, including any
preliminary Prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such Selling Stockholder may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Shares owned by such Selling Stockholder;
(iv) as expeditiously as possible use its best efforts to
register or qualify the Registrable Shares covered by the Registration Statement
under the securities or Blue Sky laws of such states as the Selling Stockholders
shall reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the Selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the Selling Stockholder; provided, however, that the Company shall not be
required in connection with this paragraph (iv) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction;
(v) as expeditiously as possible, cause all such
Registrable Shares to be listed on each securities exchange or automated
quotation system on which similar securities issued by the Company are then
listed;
(vi) promptly provide a transfer agent and registrar for
all such Registrable Shares not later than the effective date of such
registration statement;
(vii) promptly make available for inspection by the
Selling Stockholders, any managing underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant or other
agent retained by any such underwriter or selected by the Selling Stockholders,
all financial and other records, pertinent corporate documents and properties of
the Company and cause the Company's officers, directors, employees and
independent accountants to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
Registration Statement;
-6-
(viii) as expeditiously as possible, notify each Selling
Stockholder, promptly after it shall receive notice thereof, of the time when
such Registration Statement has become effective or a supplement to any
Prospectus forming a part of such Registration Statement has been filed;
(ix) as expeditiously as possible following the
effectiveness of such Registration Statement, notify each seller of such
Registrable Shares of any request by the Commission for the amending or
supplementing of such Registration Statement or Prospectus; and
(x) use its reasonable efforts to cooperate with the
seller in the disposition of the Common Stock covered by such registration
statement, including without limitation in the case of an underwritten offering
causing key executives of the Company and its subsidiaries to participate on a
reasonable basis under the direction of the managing underwriter in a "road
show" scheduled by such managing underwriter in such locations and of such
duration as in the reasonable judgment of such managing underwriter are
appropriate for such underwritten offering.
(b) If the Company has delivered a Prospectus to the Selling
Stockholders and after having done so the Prospectus is amended to comply with
the requirements of the Securities Act, the Company shall promptly notify the
Selling Stockholders and, if requested, the Selling Stockholders shall
immediately cease making offers of Registrable Shares and return all
Prospectuses to the Company. The Company shall promptly provide the Selling
Stockholders with revised Prospectuses and, following receipt of the revised
Prospectuses, the Selling Stockholders shall be free to resume making offers of
the Registrable Shares.
(c) In the event that, in the judgment of the Company, it is
advisable to suspend use of a Prospectus included in a Registration Statement
due to pending material developments or other events that have not yet been
publicly disclosed and as to which the Company believes public disclosure would
be detrimental to the Company, the Company shall notify all Selling Stockholders
to such effect, and, upon receipt of such notice, each such Selling Stockholder
shall immediately discontinue any sales of Registrable Shares pursuant to such
Registration Statement until such Selling Stockholder has received copies of a
supplemented or amended Prospectus or until such Selling Stockholder is advised
in writing by the Company that the then current Prospectus may be used and has
received copies of any additional or supplemental filings that are incorporated
or deemed incorporated by reference in such Prospectus. Notwithstanding anything
to the contrary herein, the Company shall not exercise its rights under this
Section 2.3(c) to suspend sales of Registrable Shares for a period in excess of
90 days in any 365-day period.
2.4 Allocation of Expenses. The Company will pay all Registration
Expenses for all registrations under this Agreement; provided, however, that if
a registration under Section 2.1 is withdrawn at the request of the Initiating
Holders (other than as a result of information concerning the business or
financial condition of the Company which is made known to the Stockholders after
the date on which such registration was requested) and if the Initiating Holders
elect not to have such registration counted as a registration requested under
-7-
Section 2.1, the requesting Stockholders shall pay the Registration Expenses of
such registration pro rata in accordance with the number of their Registrable
Shares included in such registration. For purposes of this Section, the term
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with this Agreement, including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, fees and expenses of
counsel for the Company and the fees and expenses of one counsel selected by the
Selling Stockholders to represent the Selling Stockholders, state Blue Sky fees
and expenses, and the expense of any special audits incident to or required by
any such registration, but excluding underwriting discounts, selling commissions
and the fees and expenses of Selling Stockholders' own counsel (other than the
counsel selected to represent all Selling Stockholders).
2.5 Indemnification and Contribution.
(a) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless each Selling Stockholder, each underwriter of such
Registrable Shares, and each officer, director, manager, partner, employee of
such person and each other person, if any, who controls such Selling Stockholder
or underwriter within the meaning of the Securities Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such Selling Stockholder, underwriter or controlling person may become subject
under the Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement, (ii) the omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or (iii) any violation by the Company or its subsidiaries of any
federal or state securities law applicable to the Company or any of its
subsidiaries relating to any action or inaction by the Company or any of its
subsidiaries in connection with the registration effected by such Registration
Statement; and the Company will reimburse such Selling Stockholder, underwriter
and each such controlling person for any legal or any other expenses reasonably
incurred by such Selling Stockholder, underwriter or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case only to the extent that any such loss, claim, damage or liability
arises out of or is based upon (x) any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of such Selling
Stockholder, underwriter or controlling person specifically for use in the
preparation thereof or (y) any action or inaction of any Stockholder or
Indemnified Party (as defined below) in contradiction of the Company's
instructions or directions or any failure to follow any instructions or
directions of the Company, including without limitation those with respect to
prospectus delivery requirements or requirements to cease making offers of
Registrable Shares pursuant to Section 2.3(b) or Section 2.3(c).
(b) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, each Selling
Stockholder, severally and not
-8-
jointly, will indemnify and hold harmless the Company, each of its directors and
officers and each underwriter (if any) and each person, if any, who controls the
Company or any such underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages or liabilities, joint or
several, to which the Company, such directors and officers, underwriter or
controlling person may become subject under the Securities Act, Exchange Act,
state securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or are based upon any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, if the
statement or omission was made in reliance upon and in conformity with
information relating to such Selling Stockholder furnished in writing to the
Company by or on behalf of such Selling Stockholder specifically for use in
connection with the preparation of such Registration Statement, prospectus,
amendment or supplement; provided, however, that the obligations of a Selling
Stockholder hereunder shall be limited to an amount equal to the proceeds to
such Selling Stockholder of Registrable Shares sold in connection with such
registration.
(c) Each party entitled to indemnification under this Section
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section except to the extent that the Indemnifying Party
is adversely affected by such failure. The Indemnified Party may participate in
such defense at such party's expense; provided, however, that the Indemnifying
Party shall pay such expense if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding; provided further that in
no event shall the Indemnifying Party be required to pay the expenses of more
than one law firm per jurisdiction as counsel for the Indemnified Party. The
Indemnifying Party also shall be responsible for the expenses of such defense if
the Indemnifying Party does not elect to assume such defense. No Indemnifying
Party, in the defense of any such claim or litigation shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect of such claim or litigation, and no Indemnified Party
shall consent to entry of any judgment or settle such claim or litigation
without the prior written consent of the Indemnifying Party, which consent shall
not be unreasonably withheld.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 2.5 is
due in accordance
-9-
with its terms but for any reason is held to be unavailable to an Indemnified
Party in respect to any losses, claims, damages and liabilities referred to
herein, then the Indemnifying Party shall, in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by such Indemnified
Party as a result of such losses, claims, damages or liabilities to which such
party may be subject in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Selling Stockholders on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Selling Stockholders
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of material fact related to information supplied by the
Company or the Selling Stockholders and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Selling Stockholders agree that it would not be
just and equitable if contribution pursuant to this Section 2.5 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph of Section 2.5, (a) in no case shall any one
Selling Stockholder be liable or responsible for any amount in excess of the net
proceeds received by such Selling Stockholder from the offering of Registrable
Shares and (b) the Company shall be liable and responsible for any amount in
excess of such proceeds; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this Section, notify such party or
parties from whom contribution may be sought, but the omission so to notify such
party or parties from whom contribution may be sought shall not relieve such
party from any other obligation it or they may have thereunder or otherwise
under this Section. No party shall be liable for contribution with respect to
any action, suit, proceeding or claim settled without its prior written consent,
which consent shall not be unreasonably withheld.
2.6 Other Matters with Respect to Underwritten Offerings. In the
event that Registrable Shares are sold pursuant to a Registration Statement in
an underwritten offering pursuant to Section 2.1, the Company agrees to (a)
enter into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of the Company and
customary covenants and agreements to be performed by the Company, including
without limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering; (b) use its best efforts to cause
its legal counsel to render customary opinions to the underwriters with respect
to the Registration Statement; and (c) use its best efforts to cause its
independent public accounting firm to issue customary "cold comfort letters" and
auditors' consent to the underwriters with respect to the Registration Statement
and provide each seller of Registrable Securities a signed counterpart of such
legal opinion, addressed or confirmed to such seller.
2.7 Information by Holder. Each holder of Registrable Shares
included in any registration shall furnish to the Company such information
regarding such holder and the distribution proposed by such holder as the
Company may reasonably request in writing and as
-10-
shall be required in connection with any registration, qualification or
compliance referred to in this Agreement.
(a) "Stand-Off" Agreement; Confidentiality of Notices. Each
Stockholder, if requested by the Company and the managing underwriter of an
underwritten public offering by the Company of Common Stock, shall not sell or
otherwise transfer or dispose of any Registrable Shares or other securities of
the Company held by such Stockholder for a period of 90 days following the
effective date of a Registration Statement; provided, that all officers and
directors of the Company enter into similar agreements.
The Company may impose stop-transfer instructions with respect to the
Registrable Shares or other securities subject to the foregoing restriction
until the end of such 90-day period.
Any Stockholder receiving any written notice from the Company regarding
the Company's plans to file a Registration Statement shall treat such notice
confidentially and shall not disclose such information to any person other than
as necessary to exercise its rights under this Agreement.
2.8 Existing Registration Rights. As of the date hereof, except
with regard to certain registration rights granted pursuant to a certain 1995
Registration Rights Agreement dated as of December 22, 1995, there are no
existing rights with respect to registration or sale or resale under the
Securities Act or the securities or blue sky laws of any state or jurisdiction
of any securities of the Company.
2.9 Limitations on Subsequent Registration Rights. The Company
shall not, without the prior written consent of Stockholders holding at least
50% of the Registrable Shares then held by all Stockholders, enter into any
agreement (other than this Agreement) with any holder or prospective holder of
any securities of the Company which grants such holder or prospective holder
rights to include securities of the Company in any Registration Statement,
unless such rights to include securities in a registration initiated by the
Company or by Stockholders are not more favorable than the rights granted to
Other Holders under Sections 2.1 and 2.2 of this Agreement.
2.10 Rule 144 Requirements. The Company agrees to:
(a) make and keep current public information about the Company
available, as those terms are understood and defined in Rule 144;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
(c) furnish to any holder of Registrable Shares upon request
(i) a written statement by the Company as to its compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act (at any
time after it has become subject to such reporting requirements), (ii) a copy of
the most recent annual or quarterly report of the Company, and (iii) such other
reports and documents of the Company as such holder may
-11-
reasonably request to avail itself of any similar rule or regulation of the
Commission allowing it to sell any such securities without registration.
2.11 Termination. All of the Company's obligations to register
Registrable Shares under Sections 2.1 and 2.2 of this Agreement shall terminate
on the earlier of (a) fifteenth anniversary of the date of this Agreement, (b)
the date on which all of the Registrable Shares have been sold by the
Stockholders, or (c) the date on which all the Registrable Shares (in the
opinion of the Stockholders' counsel) may be immediately sold by the
Stockholders without registration and without restriction (including without
limitation as to volume by each holder thereof) as to the number of Registrable
Shares to be sold, pursuant to Rule 144(k) or otherwise.
3. Transfers of Rights. This Agreement, and the rights and obligations
of each Purchaser hereunder, may be assigned by such Purchaser to any person to
whom the Shares may be transferred under the Certificate of Designations
relating to the Shares, and such transferee shall be deemed a "Purchaser" for
purposes of this Agreement; provided that the transferee provides written notice
of such assignment to the Company and agrees in writing to be bound hereby.
4. General.
(a) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(b) Specific Performance. In addition to any and all other
remedies that may be available at law in the event of any breach of this
Agreement, each Purchaser shall be entitled to specific performance of the
agreements and obligations of the Company hereunder and to such other injunctive
or other equitable relief as may be granted by a court of competent
jurisdiction.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware (without
reference to the conflicts of law provisions thereof).
(d) Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be deemed
delivered (i) two business days after being sent by registered or certified
mail, return receipt requested, postage prepaid or (ii) one business day after
being sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient as set forth
below:
If to the Company, at 00 Xxxxxx Xxxx Xxxx, X.X. Xxx 000, Xxxxxxx, Xxxxxxx,
00000, Attention: President, or at such other address or addresses as may have
been furnished in writing by the Company to the Purchasers, with a copy to Xxxx
and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, Attention: Xxxxxxx
X. Xxxxx, Esq.; or
If to a Purchaser, at his or its address set forth on Exhibit A, or at
such other address or addresses as may have been furnished to the Company in
writing by such Purchaser, with a copy
-12-
to Ropes & Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000,
Attention: Xxxxx X. Xxxxxx, Esq.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
(e) Complete Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to
such subject matter.
(f) Amendments and Waivers. Any term of this Agreement may be
amended or terminated and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the holders of at
least 50% of the Registrable Shares held by all of the Stockholders; provided,
that this Agreement may be amended with the consent of the holders of less than
all Registrable Shares only in a manner which applies to all such holders in the
same fashion. Any such amendment, termination or waiver effected in accordance
with this Section 4(f) shall be binding on all parties hereto, even if they do
not execute such consent. No waivers of or exceptions to any term, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
(g) Future Changes in Registration Requirements. In the event
that the registration requirements under the Securities Act are amended or
eliminated to accommodate a "Company registration" or similar approach, this
Agreement shall be deemed amended to the extent necessary to reflect such
changes and the intent of the parties hereto with respect to the benefits and
obligations of the parties, and in such connection, the Company shall use
reasonable efforts to provide holders of Registrable Securities equivalent
benefits to those provided under this Agreement.
(h) Pronouns. Whenever the context may require, any pronouns
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural, and vice versa.
(i) Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same document.
This Agreement may be executed by facsimile signatures.
(j) Section Headings. The section headings are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
-13-
Executed as of the date first written above.
COMPANY:
XXXXXXX WASTE SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
PURCHASERS:
BERKSHIRE FUND V INVESTMENT CORP.
By: /s/ Xxxxx Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxx Xxxxxx
--------------------------------------
Title: Vice President
-------------------------------------
BERKSHIRE INVESTORS LLC
By: /s/ Xxxxx Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxx Xxxxxx
--------------------------------------
Title: Managing Director
-------------------------------------
BANCBOSTON CAPITAL INC.
By: /s/ Xxxx Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx Xxxxxx
--------------------------------------
Title: Director
-------------------------------------
-14-
RGIP, LLC
By: /s/ illegible
----------------------------------------
Name:_________________________________
Title:________________________________
SQUAM LAKE INVESTORS IV, L.P.
By: GPI, Inc.
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
--------------------------------------
Title: Vice President
-------------------------------------
-15-
Exhibit A
Purchasers
----------
Name and Address
----------------
Berkshire Fund V Investment Corp.
Berkshire Investors LLC
BancBoston Capital Inc.
RGIP, LLC
Squam Lake Investors IV, L.P.
-16-
