EXHIBIT 13
AMENDED AND RESTATED INVESTMENT AGREEMENT
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This Amended and Restated Investment Agreement (the "Agreement"),
dated as of July 30, 1999, is made and entered into by and among:
(i) Apollo Investment Fund III, L.P., a Delaware limited partnership
("AIF III"), Apollo Overseas Partners III, L.P., a Delaware limited partnership,
and Apollo (UK) Partners III, L..P., an English limited partnership
(collectively, the "Original Apollo Stockholders"),
(ii) Apollo Investment Fund IV, L.P., a Delaware limited partnership
("AIF IV"), Apollo Overseas Partners IV, L.P., a Delaware limited partnership,
and Apollo/AW LLC, a Delaware limited liability company (collectively, and
together with the Original Apollo Stockholders and their respective Affiliate
Transferees (as defined herein), the "Apollo Stockholders"),
(iii) Blackstone Capital Partners II Merchant Banking Fund L.P., a
Delaware limited partnership, Blackstone Offshore Capital Partners II L.P., a
Cayman Islands limited partnership, and Blackstone Family Investment Partnership
II L.P., a Delaware limited partnership (collectively, the "Original Blackstone
Stockholders"),
(iv) Blackstone Capital Partners III Merchant Banking Fund L.P., a
Delaware limited partnership, Blackstone Offshore Capital Partners III L.P., a
Cayman Islands limited partnership, and Blackstone Family Investment Partnership
III L.P., a Delaware limited partnership (together with the Original Blackstone
Stockholders and their respective Affiliate Transferees, the "Blackstone
Stockholders"),
(v) 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 (collectively, and together with their
respective Affiliate Transferees, the "Greenwich Stockholders"), and
(vi) 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 Partnership, L.P., a
Delaware limited partnership and DLJ ESC II L.P., a Delaware limited partnership
(collectively, and together with their respective Affiliate Transferees, the
"DLJ Stockholders").
The Apollo Stockholders, the Blackstone Stockholders, the Greenwich
Stockholders and the DLJ Stockholders are collectively referred to herein as the
"Stockholders;"
WHEREAS, the Original Apollo Stockholders and the Original Blackstone
Stockholders (together, the "Original Stockholders") entered into an Investment
Agreement, dated as of April 14, 1997 (the "Original Agreement"), for the
purpose of allocating and administering among themselves certain rights and
obligations with respect to their ownership of the common stock, par value $.01
per share (the "Common Stock"), of Allied Waste Industries, Inc., a Delaware
corporation (the "Company"), and certain other matters as set forth therein; and
WHEREAS, the Company, AWIN I Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company ("Merger Subsidiary"),
and Xxxxxxxx-Xxxxxx Industries, Inc., a Delaware corporation ("BFI"), have
entered into an Agreement and Plan of Merger, dated as of March 7, 1999, as
amended and restated as of May 21, 1999 (the "Merger Agreement"), pursuant to
which Merger Subsidiary will be merged with and into BFI (the "Merger"); and
WHEREAS, simultaneously with the execution of the Merger Agreement, certain
of the Stockholders or their affiliates and the Company executed an Equity
Commitment Letter, dated March 7, 1999 (such letter, including the exhibits
attached thereto, the "Equity Commitment Letter"), pursuant to which the Company
agreed to sell and certain of the Stockholders or their affiliates committed,
severally and not jointly, to purchase on the terms and subject to the
conditions set forth in the Equity Commitment Letter, shares of a newly created
Series A Senior Convertible Preferred Stock par value $.10 per share, of the
Company (the "Preferred Stock"); and
WHEREAS, the Company and certain of the Stockholders have entered into a
Purchase Agreement, dated as of July 30, 1999 (the "Purchase Agreement"), for
the purchase and sale of shares of the Preferred Stock (the "Additional
Shares"), and the execution and delivery of this Agreement is a condition to the
closing of the transactions contemplated by the Purchase Agreement; and
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company and the Shareholders are entering into a Second Amended and Restated
Shareholders Agreement (as such agreement may be amended, modified,
supplemented, or replaced, the "Shareholders Agreement") and an Amended and
Restated Registration Rights Agreement (the "Registration Rights Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
covenants and provisions contained herein, and other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
The following terms shall have the definitions set forth below:
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"Affiliate" has the meaning given such term in Rule 12b-2 under the
Exchange Act.
"Affiliate Transferee" means any Affiliate of, or investment fund
sponsored by, a Stockholder or an Affiliate of a Stockholder.
"Business Day" means any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York.
"Closing Dates" means collectively, the closing date of the purchase
of the Additional Shares pursuant to the Purchase Agreement.
"DLJ Parent Entities" means and includes Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, Xxxxxxxxx, Lufkin & Xxxxxxxx Inc., DLJdirect Inc.,
Pershing Trading, L.P., Autranet Inc. and any Person that, directly or
indirectly, controls Xxxxxxxxx, Xxxxxx & Xxxxxxxx Inc.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Greenwich Parent Entities" means and includes CitiGroup and Xxxxxxx
Xxxxx Barney and any Person or group that, directly or indirectly, controls
CitiGroup.
"Group" means a "group" as such term is used in Section 13(d)(3) of
the Exchange Act as in effect on the date of this Agreement.
"Junior Preferred Stock" means the Series B Junior Convertible
Preferred Stock, par value $.10 per share, of the Company.
"Losses" means any and all damages, fines, fees, penalties,
deficiencies, losses and expenses (including without limitation interest, court
costs, fees of attorneys, accountants and other experts or other expenses of
litigation or other proceedings or of any claim, default or assessment)
"Majority Decision" means approval by Stockholders holding a majority
of the Shares then held by all Stockholders (assuming the exercise of all
convertible and exchangeable securities); provided, that if a dissenting
Stockholder reasonably determines that the decision will materially adversely
affect its ownership of the Shares or rights or obligations under this
Agreement, then the decision must also be approved by such Stockholder.
"Original Shares" means the shares of Common Stock acquired by the
Original Apollo Stockholders and the Original Blackstone Stockholders prior to
the purchase of the Additional Shares.
"Permitted Transferees" means, with respect to any Stockholder,
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(a) any Affiliate Transferee of such Stockholder;
(b) if such Stockholder is a limited partnership, any partners (or a
liquidating trust for the benefit of the partners) of such limited
partnership in accordance with the provisions of the limited partnership
agreement of such Stockholder as then in effect;
(c) solely with respect to bona fide pledges by such Stockholder of
Shares to a financial institution to secure indebtedness for borrowed money
to finance the purchase of shares of Preferred Stock, Junior Preferred
Stock or Common Stock, respectively, such financial institution; or
(d) Permitted Transferees of such Stockholder's Permitted Transferees.
provided, that (i) with respect to clause (a), the Affiliate Transferee agrees
in a writing provided to each of the other Stockholders to be bound by the terms
of this Agreement; and (ii) with respect to clause (c), the pledge agreement
gives the other Stockholders the right to purchase the pledged shares from the
financial institution on substantially the same terms as those provided in
Section 4.2 in connection with any foreclosure on such pledged shares.
"Person" means any natural person, corporation, general partnership,
limited partnership, proprietorship, other business organization, trust, union
or association or governmental or regulatory authority.
"Registration Percentage" means the quotient of (a) the total number
of shares of the series or class proposed to be offered owned directly by a
Stockholder immediately prior to an offering divided by (b) the total number of
shares of the series or class proposed to be offered beneficially owned by the
Stockholders participating in such offering, as a group, immediately prior to
such offering.
"Rule 144" means Rule 144 promulgated under the Securities Act, and
any successor provision thereto.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Shares" means all shares of capital stock of the Company now owned or
hereafter acquired by any Stockholder.
"Transfer" shall mean with respect to any security, any sale,
assignment, donation, pledge, hypothecation, grant or other transfer of, or the
grant of any option with respect to, such security (or the entering into of any
agreement or understanding with respect to the foregoing).
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES
A. Each Apollo Stockholder hereby severally (and not jointly)
represents and warrants to the Blackstone Stockholders, the Greenwich
Stockholders and the DLJ Stockholders with respect to itself and the Shares to
be acquired by such Apollo Stockholder pursuant to the Purchase Agreement, and
not with respect to any other Apollo Stockholder or any other shares of capital
stock of the Company as follows:
Section 2.A.l. Organization; Authorization. Such Apollo Stockholder
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is a limited partnership duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization. Such Apollo Stockholder is
duly authorized to execute and deliver, to perform its obligations under and to
consummate the transactions contemplated by this Agreement, the Purchase
Agreement, the Shareholders Agreement and the Registration Rights Agreement.
This Agreement, the Purchase Agreement and the Shareholders Agreement are valid
and legally binding agreements of such Apollo Stockholder, enforceable against
such Apollo Stockholder in accordance with their terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium and other laws affecting
creditors' rights generally and, as to enforceability, general equitable
principles.
Section 2.A.2. Acquisition for Investment. Such Apollo Stockholder is
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acquiring the shares of Preferred Stock for its own account for the purpose of
investment and not with a view to or for sale in connection with any
distribution thereof, and such Apollo Stockholder has no present intention or
plan to effect any distribution of the shares of Preferred Stock.
B. Each Blackstone Stockholder hereby severally (and not jointly)
represents and warrants to the Apollo Stockholders, the Greenwich Stockholders
and the DLJ Stockholders with respect to itself and the shares of Preferred
Stock to be acquired by such Blackstone Stockholder pursuant to the Purchase
Agreement, and not with respect to any other Blackstone Stockholder or any other
shares of capital stock of the Company as follows:
Section 2.B.1. Organization; Authorization. Such Blackstone
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Stockholder is a limited partnership duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization. Such
Blackstone Stockholder is duly authorized to execute and deliver, to perform its
obligations under and to consummate the transactions contemplated by this
Agreement, the Purchase Agreement, the Shareholders Agreement and the
Registration Rights Agreement. This Agreement, the Purchase Agreement and the
Shareholders Agreement are valid and legally binding agreements of such
Blackstone Stockholder, enforceable against such Blackstone Stockholder in
accordance with their terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting creditors' rights generally and,
as to enforceability, general equitable principles.
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Section 2.B.2. Acquisition for Investment. Such Blackstone
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Stockholder is acquiring the shares of Preferred Stock for its own account for
the purpose of investment and not with a view to or for sale in connection with
any distribution thereof, and such Blackstone Stockholder has no present
intention or plan to effect any distribution of the shares of Preferred Stock.
C. Each Greenwich Stockholder hereby severally (and not jointly)
represent and warrants to the Apollo Stockholders, the Blackstone Stockholders
and the DLJ Stockholders with respect to itself and the shares of Preferred
Stock to be acquired by such Greenwich Stockholder pursuant to the Purchase
Agreement, and not with respect to any other Greenwich Stockholder or any other
shares of capital stock of capital stock of the Company follows:
Section 2.C.1. Organization; Authorization. Such Greenwich
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Stockholder is a limited partnership duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization. Such
Greenwich Stockholder is duly authorized to execute and deliver, to perform its
obligations under and to consummate the transactions contemplated by this
Agreement, the Purchase Agreement, the Shareholders Agreement and the
Registration Rights Agreement. This Agreement, the Purchase Agreement and the
Shareholders Agreement are valid and legally binding agreements of such
Greenwich Stockholder, enforceable against such Greenwich Stockholder in
accordance with their terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting creditors' rights generally and,
as to enforceability, general equitable principles.
Section 2.C.2. Acquisition for Investment. Such Greenwich Stockholder
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is acquiring the shares of Preferred Stock for its own account for the purpose
of investment and not with a view to or for sale in connection with any
distribution thereof, and such Greenwich Stockholder has no present intention or
plan to effect any distribution of the shares of Preferred Stock.
D. Each DLJ Stockholder hereby severally (and not jointly) represents
and warrants to the Apollo Stockholders, the Blackstone Stockholders and the
Greenwich Stockholders with respect to itself and the shares of Preferred Stock
to be acquired by such DLJ Stockholder pursuant to the Purchase Agreement, and
not with respect to any other DLJ Stockholder or any other shares of capital
stock of the Company as follows:
Section 2.D.1. Organization; Authorization. Such DLJ Stockholder is a
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corporation or limited partnership duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization. Such DLJ
Stockholder is duly authorized to execute and deliver, to perform its
obligations under and to consummate the transactions contemplated by this
Agreement, the Purchase Agreement, the Shareholders Agreement and the
Registration Rights Agreement. This Agreement, the Purchase Agreement and the
Shareholders Agreement are valid and legally binding agreements of such DLJ
Stockholder, enforceable against such DLJ Stockholder in accordance with
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their terms, subject to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting creditors' rights generally and, as to
enforceability, general equitable principles.
Section 2.D.2. Acquisition for Investment. Such DLJ Stockholder is
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acquiring the shares of Preferred Stock for its own account for the purpose of
investment and not with a view to or for sale in connection with any
distribution thereof, and such DLJ Stockholder has no present intention or plan
to effect any distribution of the shares of Preferred Stock.
E. Reliance on Representations and Warranties in Purchase Agreements.
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In addition to the foregoing representations and warranties, each of the
Stockholders shall be entitled to rely upon the representations and warranties
of each other Stockholder contained in the Purchase Agreement.
ARTICLE 3
BOARD OF DIRECTORS
The Stockholders agree among themselves as follows:
Section 3.1 Allocation of Affiliate Director Designees. If the
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number of persons the Stockholders are entitled to designate to serve on the
Board of Directors of the Company (the "Board") pursuant to the Shareholders
Agreement, without restriction as to the affiliation of such person ("Affiliate
Designees"), is:
(a) five (5), AIF III shall be entitled to designate one (1) Affiliate
Designee, AIF IV shall be entitled to designate two (2) Affiliate Designees,
Blackstone Capital Partners II Merchant Banking Fund L.P. ("BCP II") shall be
entitled to designate one (1) Affiliate Designee and Blackstone Capital Partners
III Merchant Banking Fund L.P. ("BCP III") shall be entitled to designate one
(1) Affiliate Designee;
(b) four (4), then AIF III shall be entitled to designate one (1)
Affiliate Designee, AIF IV shall be entitled to designate one (1) Affiliate
Designee, BCP II shall be entitled to designate one (1) Affiliate Designee and
BCP III shall be entitled to designate one (1) affiliate Designee;
(c) three (3), then AIF III shall be entitled to designate one (1)
Affiliate Designee, AIF IV shall be entitled to designate one (1) Affiliate
Designee and BCP III shall be entitled to designate one (1) Affiliate Designee;
(d) two (2), then AIF III shall be entitled to designate one (1)
Affiliate Designee and BCP III shall be entitled to designate one (1) Affiliate
Designee; and
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(e) one (l), then AIF III shall be entitled to designate that
Affiliate Designee; provided, however, that if the Blackstone Stockholders own
more shares of Common Stock (on an as if converted basis) than the Apollo
Stockholders at the time of such designation, then BCP III shall be entitled to
designate that Affiliate Designee.
Section 3.2 Allocation of Non-Affiliate Designees. If the
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Stockholders are entitled pursuant to the Shareholders Agreement to designate
persons to serve on the Board in addition to the Affiliate Designees, such
designations shall be allocated between the Apollo Stockholders and Blackstone
Stockholders in the same proportions as the allocation of Affiliate Designees;
provided, however, that any designation must be reasonably acceptable to the
non-designating Apollo Stockholders or Blackstone Stockholders, as the case may
be.
Section 3.3 Exercise of Veto Rights for Third Party Designees. If
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the Stockholders are entitled pursuant to the Shareholders Agreement to approve
or reject a person designated by a third party to serve on the Board or any
committee thereof, such rejection may be exercised by either the Blackstone
Stockholders or the Apollo Stockholders.
Section 3.4 Agreement to Vote. The Stockholders agree to vote all
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Shares held by them in favor of the persons designated pursuant to Sections 3.1
and 3.2 hereof. The failure of any Stockholder entitled to designate nominees
pursuant to Sections 3.1 or 3.2 hereof to fully exercise its respective
designation rights shall not constitute a waiver or diminution of such rights,
nor shall it prevent such Stockholder from fully exercising such rights
prospectively. Should a person designated pursuant to Section 3.1 or 3.2 hereof
be unwilling or unable to serve, or otherwise cease to serve (including by means
of removal in accordance with the following sentence), the Stockholders who
originally nominated such director pursuant to Sections 3.1 or 3.2 shall be
entitled to designate any replacement director. If the Apollo Stockholders
propose to remove any director designated by them, or if the Blackstone
Stockholders propose to remove any director designated by them, the Stockholders
agree to cooperate in, and vote all Shares held by them in support of, such
removal and any resulting vacancy shall be filled in accordance with the
preceding sentence. The Stockholders agree not to take any action to remove,
with or without cause, any director other than in accordance with the foregoing.
Section 3.5 Committees of the Board of Directors. If the
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Stockholders are entitled pursuant to the Shareholders Agreement to designate
directors to serve on the executive committee or any other committee established
by the Board, such designation shall be allocated among the Apollo Stockholders
and the Blackstone Stockholders based on the same proportions as the allocation
provisions set forth in this Article III for designating persons to serve as a
director on the Board.
Section 3.6 Further Assurances. Each Stockholder shall vote, in
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person or by proxy, all of the Shares owned by such Stockholder, at any annual
or special meeting of stockholders of the Company called for the purpose of
voting on the election of directors or by consensual action of stockholders
without a meeting with respect to the election of directors, in favor of the
election
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of the directors designated in accordance with this Article III. Each
Stockholder shall vote the Shares owned by such Stockholder and shall take all
other actions necessary to ensure that the certificate of incorporation and by-
laws of the Company do not at any time conflict with the provisions of this
Agreement.
ARTICLE 4
TRANSFERS OF COMMON STOCK
Section 4.1 Restrictions on Transfers; Permitted Transferees. (a)
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Except as otherwise provided in Sections 4.1(b) of this Agreement, each
Stockholder agrees and acknowledges that such Stockholder will not:
(i) directly or indirectly, Transfer or offer to Transfer any Shares
or solicit any offers to purchase or otherwise acquire or make a pledge of
any Shares;
(ii) grant any proxy or enter into or agree to be bound by any voting
trust with respect to any Shares (other than a revocable proxy granted in
response to a proxy solicitation by the Company, which proxy is to be voted
in accordance with this Agreement and the Shareholders Agreement);
(iii) enter into any stockholder agreements or arrangements of any
kind (other than agreements entered into by all of the Stockholders) with
any Person with respect to any Shares (whether or not such agreements and
arrangements are with other Stockholders hereto or holders of Shares who
are not parties to this Agreement), including but not limited to,
agreements or arrangements with respect to the acquisition, disposition or
voting of Shares; or
(iv) act, for any reason, as a member of a group or in concert with
any other Persons (other than Permitted Transferees) in connection with the
Transfer or voting of Shares.
(b) Except as provided in Section 4.1(c), none of the restrictions
contained in Section 4.1(a) shall apply to:
(i) Transfers to a Permitted Transferee of the transferor (whereupon
the transferor hereby agrees to provide written notice thereof, together
with such transferee's written undertaking to assume the transferor's
obligations hereunder) to the other Stockholders within 30 days after such
Transfer);
(ii) transactions and arrangements contemplated by Section 4.1(a)
(ii) and (iii), above, solely among a Stockholder and its Affiliate
Transferees; or
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(iii) Transfers to any Person; provided, that the transferor has first
complied with the provisions of Sections 4.2.
(c) Notwithstanding anything in this Agreement to the contrary,
(i) no Transfer of Shares may be made by a Stockholder if such
Transfer would violate any of the provisions of the Shareholders Agreement
(unless such provision is waived by the Company); and
(ii) until such time as any Apollo Stockholder Transfers any of its
Shares to a Person who is not a Permitted Transferee, no Transfer of Shares
may be made by any of the Blackstone Stockholders, the Greenwich
Stockholders or the DLJ Stockholders that would result in the Stockholders
losing any rights to designate persons to serve on the Board or any
committee thereof; provided, that the provisions of this clause (ii) shall
not apply to a sale by the Greenwich Stockholders or the DLJ Stockholders
if the Apollo/Blackstone Stockholders do not provide the notice
contemplated by Section 4.2(c)(ii)(B) in connection with such sale.
Section 4.2 Right of First Negotiation with Respect to Certain
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Share Transfers. (a) Except for Transfers permitted pursuant to Sections
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4.1(b)(i), if any Stockholder desires to Transfer any Shares (a "Selling
Stockholder"), such Selling Stockholder shall first give written notice (the
"Sellers Notice") to the Apollo Stockholders (unless the Selling Stockholder is
an Apollo Stockholder) and to the Blackstone Stockholders (unless the Selling
Stockholder is a Blackstone Stockholder) (the "Offeree Stockholders") stating
the Selling Stockholder's desire to make such Transfer and the number of shares
of Common Stock, Preferred Stock or Junior Preferred Stock proposed to be
transferred (the "Offered Shares").
(b) Upon receipt of the Sellers Notice, each of the Offeree
Stockholders shall (in proportion to their respective ownership, on an as if
converted basis, of the shares of Common Stock owned by all Offeree Stockholders
or as they may otherwise agree) have a 15-day exclusive right to negotiate to
purchase the Offered Shares. The Selling Stockholders and the Offeree
Stockholders agree to negotiate in good faith.
(c) If the Sellers Notice shall be duly given, and if the Offeree
Stockholders shall not purchase the Offered Shares within such 15-day period or
shall have otherwise declined to purchase the Offered Shares, then the Selling
Stockholders shall be free to sell the Offered Shares to any third party
transferee; provided, that (i) such sale complies with the provisions of Section
4.1(c) of this Agreement and (ii) if the Selling Stockholder is a Greenwich
Stockholder or a DLJ Stockholder, (A) such sale complies with the provisions of
Rule 144 promulgated under the Securities Act of 1933, as amended (or any
successor rule), applicable to an affiliate of the Company (other than the
requirement to make a filing with the Securities and Exchange Commission) and
(B) the Apollo/Blackstone Stockholders do not provide, within such 15 day
period, a notice stating that
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such sale would result in the loss of the right to elect one or more directors
to the Company's board of directors.
Section 4.3 Pro Rata Right to Participate in Certain Share
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Purchases. (a) If any Apollo Stockholder or any of its Affiliates (an "Apollo
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Purchaser), pursuant to a single transaction or series of related transactions,
proposes to purchase shares of capital stock of the Company from a Person other
than a Stockholder or an Affiliate Transferee of a Stockholder, the Blackstone
Stockholders shall have the exclusive option to purchase up to 50% of the total
number of shares proposed to be purchased by the Apollo Purchaser, upon the same
terms and conditions applicable to such Apollo Purchaser.
(b) If any Blackstone Stockholder or any of its Affiliates (a
"Blackstone Purchaser"), pursuant to a single transaction or series of related
transactions, proposes to purchase shares of capital stock of the Company from a
Person other than a Stockholder or an Affiliate Transferee of a Stockholder, the
Apollo Stockholders shall have the exclusive option to purchase up to 50% of the
total number of shares proposed to be purchased by the Blackstone Purchaser,
upon the same terms and conditions applicable to such Blackstone Purchaser.
(c) Any Apollo Purchaser or Blackstone Purchaser proposing to purchase
any shares of capital stock of the Company subject to this Section 4.3 shall use
its best efforts to keep the other Apollo Stockholders and Blackstone
Stockholders informed and shall cooperate with such other Stockholders with
respect to such proposed purchase so as to allow such other Stockholders a
reasonable opportunity to exercise their purchase option hereunder. Without
limiting the foregoing, the Apollo Purchaser or Blackstone Purchaser shall
provide a written notice (an "Option Notice") to such other Stockholders
describing the proposed purchase, including the price and the proposed closing
date, promptly after the proposed purchase price has been determined; provided
that the Apollo Purchaser or Blackstone Purchaser shall endeavor to provide such
notice sufficiently in advance of the proposed closing date so as to allow such
other Stockholders a reasonable opportunity to make a "capital call" or
otherwise arrange funding for their purchase option. Any such Stockholder may
exercise its purchase option by giving written notice (an "Exercise Notice") to
the Apollo Purchaser or Blackstone Purchaser, as the case may be, specifying the
number of shares such Stockholder desires to purchase, within one (1) Business
Day after receiving the Option Notice. If such Option Notice shall be duly
given by an Apollo Purchaser or Blackstone Purchaser, and if the Exercise Notice
shall not have been received by such Apollo Purchaser or Blackstone Purchaser
within one (1) Business Day thereafter or such other Stockholders shall have
otherwise declined to exercise such option, then such Apollo Purchaser or
Blackstone Purchaser shall be free to purchase and own all of the subject
shares.
(d) Each of the Greenwich Stockholders and the DLJ Stockholders shall
not, and shall cause their respective Affiliates (other than the DLJ Parent
Entities and the Greenwich Parent Entities) not to, purchase any shares of
capital stock other than from a Stockholder or an Affiliate Transferee of a
Stockholder.
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Section 4.4 Notice of Certain Sales. The Apollo Stockholders or
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the Blackstone Stockholders, as applicable, shall promptly provide notice to the
Greenwich Stockholders and the DLJ Stockholders following the sale of Additional
Shares by such Apollo Stockholders or Blackstone Stockholders, as applicable,
the net proceeds of which exceed $20 million in a calendar quarter (when taken
together will all prior sales in such calendar quarter by the Apollo
Stockholders or the Blackstone Stockholders, as applicable).
ARTICLE 5
ALLOCATION OF REGISTRATION RIGHTS
Section 5.1 Registration Rights. If any of the Stockholders are
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entitled pursuant to any registration rights agreement with the Company,
including, but not limited to the Amended Registration Rights Agreement (a
"Registration Rights Agreement"), to require that the Company cause to be filed
a registration statement with respect to resales of Shares beneficially owned by
any of the Stockholders, the number of demands to require the filing of a shelf
registration statement shall be divided 5/9 for the Apollo Stockholders and 4/9
for the Blackstone Stockholders; provided, that the Blackstone Stockholders may
not exercise more than one (1) of the First Three Demands (as defined in Section
5.2(b)).
Section 5.2 Shares Included.
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(a) Subject to Section 5.3(b) hereof, in connection with any offering
made pursuant to a registration statement in which the Stockholders are entitled
to include Shares beneficially owned by them, whether pursuant to shelf, demand
or "piggyback" registration rights, each Stockholder shall have the right to
include a number of shares owned by it in the offering in an amount up to the
product of (A) the aggregate number of shares the Stockholders as a group are
entitled to include in such offering multiplied by (B) such Stockholder's
Registration Percentage; provided, that the Stockholders shall be entitled to
increase on a pro rata basis the number of shares they can include in such offer
to the extent any Stockholder includes less than the full number of shares it
has a right to include in such offering. For the purposes of this clause, the
Stockholders may allocate their rights to include shares in an offering among
their respective Affiliates in their sole discretion. The Stockholders shall
give each other reasonable notice in advance of the exercise of any shelf,
demand or piggy-back rights pursuant to any Registration Rights Agreement.
(b) Notwithstanding anything else contained herein, if a registration
statement is filed in response to the first three demands made by the
Apollo/Blackstone Shareholders (the "First Three Demands") pursuant to Section
2.2 of the Restated Registration Rights Agreement, dated the date hereof, among
the Company and the Stockholders (the "Registration Rights Agreement"), then the
Non-Apollo/Blackstone Shareholders shall not be entitled to have their
Registerable Securities included in the coverage of such a registration
statement, provided, that if the First Three Demands include Additional Shares
(or shares into which Additional Shares have been or are to be converted),
12
then the Non-Apollo/Blackstone Shareholders shall be entitled to have their
Securities included in the coverage of such registration statement, on the terms
and conditions set forth in Section 2.1 of the Amended Registration Rights
Agreement. Capitalized terms used in this clause (b) shall have the meanings
given thereto in the Registration Rights Agreement.
Section 5.3 Cutbacks. (a) If in connection with any underwritten
--------
offering the total number of shares that the Stockholders seek to have included
in such offering is limited by the underwriters (a "Cutback"), and following
such Cutback, the Apollo Stockholders include more shares in such registration
statement filed upon the demand of the Blackstone Stockholders, or the
Blackstone Stockholders include more shares in such registration statement filed
upon the demand of the Apollo Stockholders, such demand shall be deemed
exercised by the Stockholder that included more shares in such registration
statement (regardless of which Stockholder initially exercised such demand
right).
(b) If a Cutback occurs in any offering relating to both Original
Shares and Additional Shares the Cutback shall reduce the Additional Shares of
all of the Stockholders on a pro-rata basis first and after all Additional
Shares are eliminated shall reduce the Original Shares.
Section 5.4 Underwriters. If the Stockholders have the right to
------------
designate a managing underwriter in connection with any firm commitment
underwriting, whichever of the Apollo Stockholders or the Blackstone
Stockholders made the demand for such registration shall be entitled to choose
such managing underwriter, otherwise the decision shall be made by Majority
Decision.
ARTICLE 6
OTHER AGREEMENTS
Section 6.1 Dispute Resolution. Any allocation of rights or
------------------
obligations not specifically provided for herein shall be allocated first by
Majority Decision. The parties hereby waive any rights to a jury trial in
connection with any disputes to be decided pursuant to the provisions of this
Section.
Section 6.2 Expenses. Unless specifically provided for otherwise
--------
herein, each party shall bear its own expenses in connection with the matters
covered by this Agreement, except that in connection with any registered
offering of Shares, any counsel and fees and offering expenses (other than
underwriting discounts) charged to the Stockholders shall be allocated based on
each Stockholder's proportionate number of shares included in such offering.
Section 6.3 Required Filings; Publicity. (a) Each of the
---------------------------
Stockholders shall (and shall cause each of its Affiliates to) (i) take all
actions necessary to comply promptly with all legal requirements which may be
imposed on such Stockholder (or its Affiliates) as a result of this
13
Agreement or any of the transactions contemplated hereby and (ii) without
limiting the foregoing, make all required filings pursuant to the Securities Act
and the Exchange Act.
(b) To the extent reasonably practicable, the Stockholders shall
consult with each other prior to all public statement or filings to be issued or
made by any of them or their Affiliates with respect to this Agreement and the
transactions contemplated hereby.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Termination. Article III of this Agreement shall
-----------
terminate on the earlier of (a) the termination of the Shareholders Agreement
and (b) the termination of all Registration Rights Agreements. All of the
provisions of this Agreement shall terminate with respect to any Stockholder, on
the date when such Stockholder ceases to own any Shares.
Section 7.2 Notices. All notices to be given by any Stockholder
-------
hereunder shall be in writing and shall be deemed have been duly given if
mailed, by first class or registered mail, three (3) Business Days after deposit
in the United States Mail, or if telexed or telecopied or delivered by hand or
reputable overnight courier, when confirmation is received, at the addresses set
forth below, or in the case of any transferee of a Stockholder, at the address
set forth in the stock ledger of the Company:
in the case of the Apollo Stockholders (or any of them), to:
c/o Apollo Management, L.P.
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
14
In the case of the Blackstone Stockholders (or any of them), to:
c/o The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
In the case of the Greenwich Stockholders (or any of them), to:
x/x Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX, X.X.X.
000 Xxxxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Nissan
Telecopy: (000) 000-0000
In the case of the DLJ Stockholders (or any of them), to:
x/x XXX Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxxxx
Telecopy: (000) 000-0000
and
Attention: Xxx Xxxxx
Telecopy: (000)000-0000
15
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
The parties may change their respective addresses for purposes of notice
hereunder by giving notice of such change to all other parties in the manner
provided in this Section 7.2.
Section 7.3 Binding Effect. This Agreement supersedes all prior
--------------
negotiations, statements and agreements of the parties hereto with respect to
the subject matter of this Agreement, and shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto. If any
transferee of any Stockholder shall acquire any Shares in any manner, whether by
operation of law or otherwise, such Shares shall be held subject to all of the
terms of this Agreement, and by taking and holding such Shares such person shall
be conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, provided, that Shares which have been
transferred in accordance with this Agreement to any person other than a
Stockholder or an Affiliate Transferee shall no longer be subject to this
Agreement.
Section 7.4 Complete Agreement. This Agreement represents the
------------------
entire agreement among the Stockholders with respect to the matters set forth
herein, and the parties hereto acknowledge that there have been no
representations, warranties, covenants or agreements made by any party hereto
other than those contained in this Agreement.
Section 7.5 Counterparts. This Agreement may be executed in
------------
counterparts and all of which are deemed to be one and the same agreement
binding upon each of the Stockholders.
Section 7.6 Headings. The headings of the various sections of this
--------
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
Section 7.7 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York, except for
matters of corporate law, which shall be governed by and construed in accordance
with the General Corporation Law of the State of Delaware. By execution and
delivery of this Agreement, each of the Stockholders accepts, generally and
unconditionally, the nonexclusive jurisdiction of the state or federal courts in
New York.
Section 7.8 Injunctive Relief. It is hereby agreed and
-----------------
acknowledged that it will be impossible to measure in money the damages that
would be suffered if the parties to this Agreement fail to comply with any of
the obligations imposed on them by this Agreement and that in the event of any
such failure, an aggrieved person will be irreparably damaged and will not have
16
an adequate remedy at law. Any such person shall, therefore, be entitled to
injunctive relief, including specific performance, to enforce such obligations,
and if any action should be brought in equity to enforce any of the provisions
of this Agreement, none of the parties hereto shall raise the defense that there
is an adequate remedy at law.
Section 7.9 Severability. The invalidity or unenforceability of
------------
any provisions of this Agreement in any jurisdiction shall not affect the
validity, legality or enforceability of the remainder of this Agreement in such
jurisdiction or the validity, legality or enforceability of any provision of
this Agreement in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent
permitted by law.
Section 7.1 Recapitalization, etc. In the event that any capital
----------------------
stock or other securities are issued in respect of, in exchange for, or in
substitution of, any Shares by reason of any reorganization, recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete
liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the Shares or any other change in the Company's
capital structure, appropriate adjustments shall be made to the provisions of
this Agreement so as to fairly and equitably preserve, as far as practicable,
the original rights and obligations of the parties hereto under this Agreement.
17
IN WITNESS WHEREOF, the undersigned, hereunto duly authorized, have
hereunto set their respective hands as or the day and year first above written.
APOLLO INVESTMENT FUND III, L.P.
APOLLO OVERSEAS PARTNERS III, L.P.
APOLLO (UK) PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
By: Apollo Capital Management II, Inc.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
Vice President
APOLLO INVESTMENT FUND IV, L.P.
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors IV, L.P.
By: Apollo Capital Management IV, Inc.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
Vice President
APOLLO/AW, LLC
By: Apollo Management IV, L.P.
By: AIF IV Management, Inc.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
Vice President
BLACKSTONE CAPITAL PARTNERS II
MERCHANT BANKING FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS II X.X.
XXXXXXXXXX FAMILY INVESTMENT
PARTNERSHIP II L.P.
By: Blackstone Management Associates II L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS III X.X.
XXXXXXXXXX FAMILY INVESTMENT
PARTNERSHIP III L.P.
By: Blackstone Management Associates III L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
GREENWICH STREET CAPITAL PARTNERS II, L.P.
GSCP OFFSHORE FUND, L.P.
GREENWICH FUND, L.P.
GREENWICH STREET EMPLOYEES FUND, L.P.
TRV EXECUTIVE FUND, L.P.
By: Greenwich Street Investments II, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
---------------------------------
Name: Xxx Xxxxxxxxxx
Title: Prinicipal
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
---------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
---------------------------------
Name: Xxx Xxxxxxxxxx
Title: Prinicipal
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
---------------------------------
Name: Xxx Xxxxxxxxxx
Title: Prinicipal
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Ari Benacerrat
-----------------------------
Name: Ari Benacerrat
Title: Principal
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Xxx Xxxxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
DLJ ESC II L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Xxx Xxxxx
---------------------------
Name: Xxx Xxxxx
Title: Vice President
