EXHIBIT 11
SECOND AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
This Second Amended and Restated Shareholders Agreement, dated as of
July 30, 1999 (this "Agreement"), by and between Allied Waste Industries, Inc.,
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a Delaware corporation (the "Company"), on the one hand, and Apollo Investment
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Fund IV, L.P., a Delaware limited partnership ("AIF IV"), Apollo Investment Fund
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III, L.P., a Delaware limited partnership ("AIF III"), Apollo Overseas Partners
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IV, L.P., a Delaware limited partnership ("AOP IV"), Apollo Overseas Partners
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III, L.P., a Delaware limited partnership ("AOP III"), Apollo (U.K.) Partners
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III, L.P., an English limited partnership ("AUK III"), Apollo/AW LLC, a Delaware
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limited liability company ("AAW"), Blackstone Capital Partners II Merchant
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Banking Fund L.P., a Delaware limited partnership ("BCP II"), Blackstone Capital
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Partners III Merchant Banking Fund L.P., a Delaware limited partnership ("BCP"),
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Blackstone Offshore Capital Partners III L.P., a Cayman Islands limited
partnership ("BOC III"), Blackstone Offshore Capital Partners II L.P., a Cayman
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Islands limited partnership ("BOC II"), Blackstone Family Investment Partnership
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III L.P., a Delaware limited partnership ("BFP III"), and Blackstone Family
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Investment Partnership II L.P., a Delaware limited partnership ("BFP II"),
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Greenwich Street Capital Partners II, L.P., a Delware limited partnership, GSCP
Offshore Fund, L.P., a Cayman Islands exempted limited partnership, Greenwich
Fund, L.P., a Delaware limited partnership, Greenwich Street Employees Fund,
L.P., a Delaware limited partnership, TRV Executive Fund, L.P., a Delaware
limited partnership, DLJMB Funding II, Inc., a Delaware corporation, DLJ
Merchant Banking Partners II, L.P., a Delaware limited partnership, DLJ Merchant
Banking Partners II-A, L.P., a Delaware limited partnership, DLJ Diversified
Partners, L.P., a Delaware limited partnership, DLJ Diversified Partners-A,
L.P., a Delaware limited partnership, DLJ Millennium Partners, L.P., a Delaware
limited partnership, DLJ Millennium Partners-A, L.P., a Delaware limited
partnership, DLJ First ESC L.P., a Delaware limited partnership, DLJ Offshore
Partners II, C.V., a Netherlands Antilles limited partnership, DLJ EAB Partners,
L.P., a Delaware limited partnership, and DLJ ESC II L.P., a Delaware limited
partnership (collectively, the "Shareholders"), on the other hand, amending and
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restating in its entirety the Amended and Restated Shareholders Agreement dated
as of April 21, 1997 (the "Original Agreement"), by and between the Company, on
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the one hand, and certain of the Shareholders, on the other hand.
WHEREAS, certain of the Shareholders purchased an aggregate of
11,776,765 shares (the "TPG Group Block") of the Company's common stock, par
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value $.01 per share (the "Common Stock"), from TPG Partners, L.P., a Delaware
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limited
partnership, and TPG Parallel I, L.P., a Delaware limited partnership, and an
aggregate of 14,600,000 shares of Common Stock (the "Xxxxxxx Block" and together
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with the TPG Group Block, the "Shares") from Xxxxxxx, Inc., a Canadian
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corporation;
WHEREAS, under the Original Agreement, the Company granted to certain
of the Shareholders the right as a group to appoint certain designees for
election to the Board of Directors of the Company and those Shareholders agreed
to certain restrictions on the acquisition and disposition of Common Stock and
the conduct of such Shareholders with respect to the Company;
WHEREAS, simultaneously with the execution of this Agreement, certain
of the Shareholders are entering into (i) a Preferred Stock Purchase Agreement
(the "Preferred Stock Purchase Agreement") pursuant to which, upon the terms and
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subject to the conditions set forth in the Purchase Agreement, certain of the
Shareholders shall purchase an aggregate of 1,000,000 shares of Senior
Convertible Preferred Stock, par value $.10 per share, of the Company ("Senior
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Preferred Stock"), which shall be convertible into either shares of Series A
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Junior Preferred Stock, par value $.10 per share, of the Company ("Junior
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Preferred Stock"), or shares of Common Stock, and (ii) an Amended and Restated
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Registration Rights Agreement (the "Registration Rights Agreement") granting
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certain registration rights; and
WHEREAS, in recognition of Shareholders' significant change in
ownership in the Company upon the closing of the purchase of the Senior
Preferred Stock pursuant to the Preferred Stock Purchase Agreement, the parties
desire to amend and restate the Original Agreement in its entirety (except as
may be otherwise set forth herein) as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement, the Preferred Stock Purchase Agreement,
and in the Amended and Restated Registration Rights Agreement and intending to
be legally bound hereby, the parties agree as follows, effective upon the
closing of the purchase of the Senior Preferred Stock pursuant to the Preferred
Stock Purchase Agreement:
ARTICLE 1
Definitions; Representations and Warranties
SECTION 1.1 Definitions. Unless otherwise specified all references to
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"days" shall be deemed to be references to calendar days. For purposes of this
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Agreement, the following terms shall have the following meanings:
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"Actual Voting Power" shall mean, as of the date of determination, the
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total voting power of all the then outstanding securities of the Company at the
time then entitled to vote for the general election of directors, without giving
effect to securities issuable upon exercise or conversion of such outstanding
securities. (When issued, shares of Senior Preferred Stock and Junior Preferred
Stock shall be deemed to be outstanding securities then entitled to vote for the
general election of directors and (i) each share of Senior Preferred Stock will
be deemed, as of the date of determination, to have the number of votes that
would be represented by the number of shares of Common Stock into which such
share of Senior Preferred Stock pursuant to its terms would otherwise be
convertible and (ii) each share of Junior Preferred Stock will be deemed, as of
the date of determination, to have the number of votes that would otherwise be
represented by the number of shares of Common Stock in lieu of whose issuance
such share of Junior Preferred Stock is issued.)
"Affiliate" of a Person shall have the meaning set forth in Rule 12b-2
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of the Exchange Act as in effect on the date of this Agreement, but shall not
include (i) any investment fund in which a Person has invested if the Person
does not otherwise control the investment fund or have, directly or indirectly,
voting or dispositive power over any securities owned by such fund or (ii) any
investor or limited partner of any Person who does not otherwise have voting or
dispositive power over securities owned by that Person and is not controlled by
that Person. It is expressly intended that any Person who now or hereafter
controls, directly or indirectly, any Shareholder (other than an Exempt
Affiliate) shall be subject to the restrictions of Section 2.1 as if it were a
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Shareholder.
"Apollo/Blackstone Shareholders" mean those Shareholders who are
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affiliated with either Apollo Advisors II, L.P., Apollo Management IV, L.P. or
Blackstone Management Associates II L.L.C., including, but not limited to, AIF
III, AOP III, AUK III, AIF IV, AOP IV, AAW, BCP, BOC III, BFP III, BCP II, BOC
II and BFP II.
"Apollo/Blackstone Shares" means the TPG Group Block, the Xxxxxxx
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Block, the 790,000 shares of Senior Preferred Stock to be sold to the
Apollo/Blackstone Shareholders pursuant to the Preferred Stock Purchase
Agreement and any shares of Common Stock or Junior Preferred Stock issued upon
conversion of such 790,000 shares of Senior Preferred Stock or of such Junior
Preferred Stock.
"Beneficial ownership" by a Person of any Voting Securities shall be
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determined in accordance with the term "beneficial ownership" as defined in Rule
13d-3 under the Exchange Act as in effect on the date of this Agreement and, in
addition, "beneficial ownership" shall include securities which such Person has
the right to acquire (irrespective of whether such right is exercisable
immediately or only after the passage of time, including the passage of time in
excess of sixty (60) days) pursuant to any
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agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise. For purposes of this
Agreement, a Shareholder shall be deemed to beneficially own any Voting
Securities beneficially owned by its Affiliates or any Group of which such
Shareholder or any such Affiliate is a member.
"Board of Directors" shall mean the Board of Directors of the Company.
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"Commission" shall mean the Securities and Exchange Commission.
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"Conversion Shares" shall mean the shares of Junior Preferred Stock or
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shares of Common Stock into which shares of Senior Preferred Stock or Junior
Preferred Stock have been converted.
"DLJ Parent Entities" mean and includes Xxxxxxxxx, Lufkin & Xxxxxxxx
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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.
"DLJ Shareholders" shall mean DLJMB Funding II, Inc., DLJ Merchant
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Banking Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ
Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium Partners-A, L.P., DLJ First ESC L.P., DLJ
Offshore Partners II, C.V., DJL EAB Partners, L.P. and DLJ ESC II L.P.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended.
"Greenwich Street Parent Entities" means and includes CitiGroup and
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Xxxxxxx Xxxxx Barneyand any Person or Group that, directly or indirectly,
controls CitiGroup.
"Greenwich Street Shareholders" shall mean Greenwich Street Capital
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Partners II, L.P., GSCP Offshore Fund, L.P., Greenwich Fund, L.P., Greenwich
Street Employees Fund, L.P. and TRV Executive Fund, L.P.
"Group" shall mean a "group" as such term is used in Section 13(d)(3)
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of the Exchange Act as in effect on the date of this Agreement.
"Laws" shall mean all applicable foreign, federal, state and local
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laws, statutes, rules, regulations, codes and ordinances.
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"Person" shall mean any individual, Group, corporation, general or
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limited partnership, limited liability company, governmental entity, joint
venture, estate, trust, association, organization or other entity of any kind or
nature.
"Related Person" means, with respect to any Person, (A) any Affiliate
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of such Person, (B) any investment manager, investment advisor or partner of
such Person or an Affiliate of such Person, and (C) any investment fund,
investment account or investment entity whose investment manager, investment
advisor or general partner is such Person or a Related Person of such Person;
provided, however, that "Related Person" shall mean with respect to any DLJ
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Shareholder, (I) any general or limited partner of such DLJ Shareholder (a "DLJ
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Partner"), (II) any corporation, partnership or other entity which is an
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Affiliate of such DLJ Shareholder or of any DLJ Partner (collectively, the "DLJ
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Affiliates"), (III) any managing director, general partner, director, limited
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partner, officer or employee of (x) such DLJ Shareholder, (y) such DLJ Partner
or (z) any DLJ Affiliate of such DLJ Partner or a DLJ Affiliate, or the heirs,
executors, administrators, testamentary trustees, legatees or beneficiaries of
any of the foregoing Persons referred to in this clause (III) (collectively,
"DLJ Associates"), (IV) any trust, the beneficiaries of which, or a corporation,
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limited liability company or partnership, the stockholders, members or general
or limited partners of which, include only such XXX Xxxxxxxxxxx, XXX Xxxxxxxxxx,
XXX Associates, their spouses or their lineal descendants, and (V) a voting
trustee for one or more DLJ Shareholders, DLJ Affiliates or DLJ Associates.
"Reorganization Transaction" means: (i) any merger, consolidation,
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recapitalization, liquidation or other business combination transaction
involving the Company; (ii) any tender offer or exchange offer for any
securities of the Company; or (iii) any sale or other disposition of assets of
the Company or any of its Subsidiaries in a single transaction or in a series of
related transactions in each of the foregoing cases constituting individually or
in the aggregate 10% or more of the assets or Voting Securities (as applicable)
of the Company.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Shareholder Designee" shall mean a person designated for election to
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the Board of Directors by the Apollo/Blackstone Shareholders as provided in
Section 3.1.
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"Total Voting Power" shall mean the total combined Voting Power, on a
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fully diluted basis, of all the Voting Securities then outstanding.
"Voting Power" shall mean, as of the date of determination, the voting
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power in the general election of directors of the Company, and shall be
calculated for
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each Voting Security by reference to the maximum number of votes such Voting
Security is or would be entitled to cast in the general election of directors,
and, in the case of convertible (or exercisable or exchangeable) securities, by
reference to the maximum number of votes such Voting Security would be entitled
to cast in unconverted or converted (or exercised, unexercised, exchanged or
unexchanged) status. For purposes of determining Voting Power under this
Agreement, a Voting Security which is convertible into or exchangeable for a
Voting Security shall be counted as having the greater of (i) the number of
votes to which such Voting Security is entitled prior to conversion or exchange
and (ii) the number of votes to which the Voting Security into which such Voting
Security is convertible or exchangeable is entitled. Notwithstanding anything
else to the contrary contained in this Agreement, there shall not be included in
calculating Voting Power any votes which a Person shall have upon and by reason
of the non-payment of dividends on preferred shares in accordance with the terms
of such preferred shares.
"Voting Securities" shall mean (x) any securities entitled, or which
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may be entitled, to vote generally in the election of directors of the Company
(including, when issued, shares of Senior Preferred Stock and Junior Preferred
Stock), (y) any securities convertible or exercisable into or exchangeable for
such securities (whether or not the right to convert, exercise or exchange is
subject to the passage of time or contingencies or both), or (z) any direct or
indirect rights or options to acquire any such securities; provided that
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unexercised options granted pursuant to any employment benefit or similar plan
and rights issued pursuant to any shareholder rights plan shall be deemed not to
be "Voting Securities" (or to have Voting Power).
In addition, the following terms have the definitions specified in the
Sections noted:
Term Section
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AIF IV recitals
AIF III recitals
AOP IV recitals
AOP III recitals
AUK III recitals
AAW recitals
Actual Voting Power Threshold 3.1(b)
Agreement recitals
BCP recitals
BCP II recitals
BOC III recitals
BOC II recitals
BFP III recitals
BFP II recitals
Beneficial Ownership Threshold 3.1(b)
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Common Stock recitals
Company recitals
Credit Agreement 1.2(e)
Disposition 4.1
Exempt Affiliate 2.1
Future Major Investor 2.3
HSR Act 1.2(c)
Information 3.4
Junior Preferred Stock recitals
Xxxxxxx Block recitals
Xxxxxxx recitals
Management Directors 3.1(b)
Material Adverse Effect 1.2(b)
Moving Party 5.3
Nominating Committee 3.1(b)
Original Agreement recitals
Preferred Stock Purchase Agreement recitals
Purchase Date 4.1(b)
Registration Rights Agreement recitals
Related Transferee 4.1(f)
Representatives 5.13
Rule 144 Sale 4.1(c)
Senior Preferred Stock recitals
Shareholder Designee Period 3.1(b)
Shareholders recitals
Shares recitals
Specific Rights 5.13
Standstill Period 2.1
TPG Group Block recitals
Unaffiliated Directors 3.1(b)
SECTION 1.2. Representations and Warranties of the Company. The
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Company represents and warrants to Shareholders as follows:
(a) The execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions contemplated
hereby are within its corporate powers and have been duly authorized by all
necessary corporate action on its part. This Agreement constitutes a legal,
valid and binding agreement of the Company enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy, and
insolvency, fraudulent transfer reorganization, moratorium and similar laws of
general applicability relating to or affecting creditor's rights and to general
equity principles.
(b) The execution, delivery and performance of this Agreement by the
Company does not and will not (i) contravene or conflict with or constitute a
default under the Company's Certificate of Incorporation or Bylaws, (ii)
contravene or conflict with or constitute a default under any agreement to which
the Company is a party or is
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bound, or result in a breach of or default under any instrument or agreement to
which the Company is a party or is bound, which violation, breach or default
would have a material adverse effect on the Company's business taken as a whole
or would adversely affect the consummation of the transactions contemplated by
this Agreement or the Preferred Stock Purchase Agreement (a "Material Adverse
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Effect"), (iii) violate any judgment, order, injunction, decree or award against
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or binding upon the Company as of the date of this Agreement, the violation of
which, individually or in the aggregate, would have a Material Adverse Effect,
(iv) violate any Law relating to the Company, the violation of which,
individually or in the aggregate, would have a Material Adverse Effect or (v)
constitute a "change of control," or result in the acceleration of rights, under
any material debt instrument to which the Company is a party.
(c) Except for applicable requirements of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act") and the Exchange
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Act or as disclosed in the Preferred Stock Purchase Agreement, the Company is
not required to make any filing or registration with, or obtain any permit,
authorization, consent or approval of, any governmental entity or any other
Person in connection with this Agreement, the Preferred Stock Purchase
Agreement, or any of the transactions contemplated hereby and thereby.
(d) As of the date of this Agreement, there is no action, suit or
proceeding pending or, to the knowledge of the Company, threatened against the
Company that relates to this Agreement, the Preferred Stock Purchase Agreement,
or any of the transactions contemplated hereby or thereby.
(e) As of the date hereof, the Company would be entitled to make at
least $1.00 in additional borrowings under the Credit Agreement (the "Credit
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Agreement") among the Company, Allied Waste North America, Inc., the lenders
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party thereto, The Chase Manhattan Bank, as Administrative Agent, Collateral
Agent and Collateral Trustee, Citicorp USA, Inc., as Syndication Agent, Credit
Suisse First Boston and DLJ Capital Funding, Inc., as Documentation Agents, and
the consummation of the transactions contemplated by the Amended and Restated
Agreement and Plan of Merger, dated as of May 21, 1999, among Xxxxxxxx - Xxxxxx
Industries, Inc., the Company and AWINI Acquisition Corporation and this
Agreement will not, by itself, limit the Company's ability to borrow under the
Credit Agreement.
(f) All documents which have been filed by the Company with the
Commission under the Exchange Act, at the time they were filed with the
Commission, conformed in all material respects with the requirements of Exchange
Act, and the rules and regulations of the Commission thereunder, and, as of the
date thereof and taken as a whole as of the date hereof do not contain an untrue
statement of a material fact or omit
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to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
SECTION 1.3. Representations and Warranties of Shareholder. Each
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Shareholder severally, but not jointly, represents and warrants to the Company
as follows:
(a) The execution, delivery and performance by such Shareholder of
this Agreement and the consummation by such Shareholder of the transactions
contemplated by this Agreement are within its powers and have been duly
authorized by all necessary action on its part. This Agreement constitutes a
legal, valid and binding agreement of such Shareholder enforceable against such
Shareholder in accordance with its terms, subject, as to enforcement, to
bankruptcy, and insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditor's rights
and to general equity principles.
(b) The execution, delivery and performance of this Agreement by such
Shareholder does not and will not contravene or conflict with or constitute a
default under such Shareholder's partnership agreement or similar governing
documents.
(c) As of the date of this Agreement, such Shareholder does not
beneficially own any Voting Securities except (i) any Voting Securities
beneficially owned on the date hereof in compliance with the Original Agreement
and (ii) to the extent such shares may be deemed to be beneficially owned, the
shares of Senior Preferred Stock which are subject to the Preferred Stock
Purchase Agreement.
ARTICLE 2
Standstill
SECTION 2.1. Standstill. (a) Until the earliest to occur of (A) the
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tenth anniversary of the purchase of the Senior Preferred Stock pursuant to the
Preferred Stock Purchase Agreement, (B) the date on which the Apollo/Blackstone
Shareholders own, collectively, Voting Securities which would represent (i) less
than 10% of the Total Voting Power, excluding voting securities beneficially
owned by the Shareholders other than the Apollo/Blackstone Shareholders and (ii)
less than 10% of the Actual Voting Power, excluding voting securities
beneficially owned by the Shareholders other than the Apollo/Blackstone
Shareholders; provided that the Shareholders at such time are entitled to
designate not more than one director pursuant to Article 3 hereof, and (C)
termination under Section 2.2 (such period, the "Standstill Period") (provided
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that the Standstill
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Period shall end (x) with respect to the DLJ Shareholders, on the date on which
the DLJ Shareholders no longer own any shares of Senior Preferred Stock or any
Conversion Shares, and (y) with respect to the Greenwich Street Shareholders, on
the date on which the Greenwich Street Shareholders no longer own any shares of
Senior Preferred Stock or any Conversion Shares), each Shareholder will not, and
will cause each of its Affiliates (other than Exempt Affiliates) not to,
directly or indirectly:
(i) acquire, offer to acquire, or agree to acquire, by purchase
or otherwise, any Voting Securities or voting rights or direct or indirect
rights or options to acquire any Voting Securities of the Company or any of
its Affiliates other than (A) the exercise of convertible securities
acquired in compliance with the terms of this Agreement (including the
acquisition of shares of Common Stock or Junior Preferred Stock upon
conversion of shares of Senior Preferred Stock), or an acquisition as a
result of a stock split, stock dividend or similar recapitalization, (B)
the acquisition of shares of Senior Preferred Stock which are subject to
the Preferred Stock Purchase Agreement, (C) with the prior written consent
of the chairman of the Board of Directors and the chief executive officer
of the Company, acquisitions by the Apollo/Blackstone Shareholders of up to
a collective aggregate amount of 3,000,000 shares (as such number may be
appropriately adjusted to reflect stock splits, reverse stock splits, stock
dividends or any other recapitalization of the Company) of Common Stock,
(D) stock options or similar rights granted by the Company to an Affiliate
of such Shareholder as compensation for performance as a director or
officer of the Company or its subsidiaries (and any shares issuable upon
exercise thereof), (E) transfers between such Shareholder and Related
Transferees as permitted under Section 4.1(f) or (F) any rights which are
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granted to all shareholders of the Company (and any shares issuable upon
exercise thereof); provided, however, that if the Shareholders or any of
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their Affiliates in good faith inadvertently acquire not more than 500,000
shares of Common Stock in violation of these provisions and within 15 days
after the first date on which the Shareholders have actual knowledge
(including by way of written notice given by the Company) that a violation
has occurred Shareholders or any of their Affiliates shall have transferred
any shares of Common Stock held in violation of these provisions to
unrelated third parties so that the Shareholders and their Affiliates no
longer beneficially own any such shares or have any agreement or
understanding relating to such shares, this Section 2.1 shall be deemed to
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not have been violated; and provided, further, that no violation of this
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provision shall be deemed to have occurred by reason of the indirect
acquisition of beneficial ownership of securities resulting from (x)
investments in investment funds as to which no Shareholder or Affiliate
thereof has control or power to control with respect to voting or
investment decisions or
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(y) acquisitions of securities by a limited partner in any Shareholder or
Affiliates thereof as to which limited partner no Shareholder or its
Affiliates has control or power to control;
(ii) make or cause to be made any proposal for a Reorganization
Transaction except for Dispositions in accordance with Article 4;
(iii) form, join or in any way participate in a Group
with respect to any securities of the Company or its Affiliates, other than
with other Shareholders or Affiliates of any Shareholder; provided,
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however, that in the case of securities other than Voting Securities,
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Shareholders may participate in a Group with respect thereto with the prior
approval of a majority of the entire Board of Directors (which approval is
requested in a manner which does not require disclosure publicly or to any
third party);
(iv) make, or in any way cause or participate in, any
"solicitation" of "proxies" to vote (as those terms are defined in
Regulation 14A under the Exchange Act) with respect to the Company or its
Affiliates, or communicate with, seek to advise, encourage or influence any
Person, in any manner, with respect to the voting of, securities of the
Company or its Affiliates, or become a "participant" in any "election
contest" (as those terms are defined or used in Rule 14a-11 under the
Exchange Act) with respect to the Company or its Affiliates (other than
non-public communications with other Shareholders or Affiliates of any
Shareholder which would not require public disclosure by any Person or
solicitation of proxies in support of the election of Shareholder
Designees, Management Directors and Unaffiliated Directors nominated by the
Board of Directors in accordance with Section 3.1 hereof in circumstances
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in which a third party is soliciting parties for the election of nominees
not nominated by the Board of Directors);
(v) initiate, propose or, except with the prior approval of a
majority of the entire Board of Directors (which approval is requested in a
manner which does not require disclosure publicly or to any third parties)
otherwise solicit stockholders for the approval of one or more stockholder
proposals with respect to the Company or its Affiliates or induce or
attempt to induce any other Person to initiate any stockholder proposal or
seek election to or seek to place a representative on the Board of
Directors of the Company (except pursuant to Section 3.1 of this Agreement)
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or its Affiliates or seek the removal of any member of the Board of
Directors of the Company or its Affiliates (for this purpose, the actions
of the Shareholder Designees in communicating (without public disclosure or
disclosure to third parties) with the Board of Directors in their capacity
as directors of the Company, and non-public communication by a Shareholder
with
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other Shareholders or Affiliates of any Shareholder which would not require
public disclosure by any Person, shall not be deemed to be in contravention
of this paragraph (v));
(vi) in any manner, agree, attempt, seek or propose (other than
making any request for permission with respect thereto which would not
require disclosure publicly or to any third party) to deposit any
securities of the Company or its Affiliates in any voting trust or similar
arrangement or to subject any securities of the Company or its Affiliates
to any other voting or proxy agreement, arrangement or understanding (other
than any such agreements or understandings with other Shareholders or
Affiliates of any Shareholder) ;
(vii) offer, sell or transfer any Voting Securities or rights to
receive Voting Securities except for Dispositions in accordance with
Article 4;
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(viii) disclose any intention, plan or arrangement, or make any
public announcement (or request permission to make any such announcement
other than making any request for permission which would not require
disclosure publicly or to any third party), or induce any other Person to
take any action, inconsistent with the foregoing;
(ix) enter into any negotiations, arrangements or
understandings with any third party with respect to any of the foregoing;
(x) advise, assist or encourage or finance (or assist or
arrange financing to or for) any other Person in connection with any of the
foregoing;
(xi) otherwise act in concert with others, to seek to control
or influence the management, Board of Directors or policies of the Company
or its Affiliates (for this purpose, the actions of the Shareholder
Designees in their capacity as directors of the Company shall not be deemed
to be in contravention of this paragraph (xi)); or
(xii) request a waiver of any of the provisions of any of
paragraphs (i) through (xii) of this Section 2.1 (except any request which
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would not require disclosure publicly or to any third party);
provided, that this Section 2.1 shall not restrict or inhibit the rights of a
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Shareholder to exercise its voting rights as a stockholder of the Company
(subject to Section 3.2).
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(b) Affiliates of Shareholders who (i) are not Apollo/Blackstone
Shareholders or their Affiliates, (ii) are not Related Transferees of any
Shareholder,
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(iii) are not in possession of any material non-public Information provided to
Shareholders by the Company, its subsidiaries or representatives pursuant to
Section 3.4 hereof or otherwise, and (iv) do not have voting or dispositive
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power over any shares of Senior Preferred Stock or any Conversion Shares (such
affiliates being "Exempt Affiliates") shall not be subject to this Section 2.1.
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(c) The DLJ Shareholders represent and warrant to the Company that the
DLJ Parent Entities are now, and at any time during the Standstill Period that
they take actions that would be otherwise prohibited by Section 2.1(a) will be,
Exempt Affiliates. The Greenwich Street Shareholders represent and warrant to
the Company that the Greenwich Street Parent Entities are now, and at all times
during the Standstill Period that they take actions that would be otherwise
prohibited by Section 2.1(a) will be, Exempt Affiliates. Based upon the
foregoing representations and warranties in this Section 2.1(c), the Company
--------------
will consider the DLJ Parent Entities and the Greenwich Street Parent Entities
to be Exempt Affiliates.
SECTION 2.2. Early Termination of Standstill. The obligations of
-------------------------------
Shareholders under Section 2.1 shall terminate early upon the occurrence of any
-----------
of the following events:
(a) At least $10,000,000 in indebtedness for monies borrowed by the
Company or its subsidiaries shall have been accelerated and payment therefor
shall not have been made within 20 days after such acceleration, and the Company
shall not in good faith be contesting whether such amount is owed.
(b) A final judgment or judgments (not subject to appeal) for the payment
of money shall have been entered against the Company or its subsidiaries in an
aggregate amount in excess of $10,000,000 (exclusive of any amounts fully
covered by insurance (less any applicable deductible) or indemnification) by a
court or courts of competent jurisdiction, which judgments remain unsatisfied,
undischarged, unstayed or unbonded for a period of 45 days after the entry of
such judgment or judgments.
(c) The Company shall file a petition in bankruptcy or for reorganization
or for an arrangement or any composition, readjustment, liquidation, dissolution
or similar relief pursuant to Title 11 of the United States Code or under any
similar present or future federal law or the law of any other jurisdiction or
shall be adjudicated a bankrupt or insolvent, or consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or for all or any
substantial part of its property, or shall make a general assignment for the
benefit of its creditors.
-13-
(d) A petition or answer shall be filed proposing the adjudication of the
Company as bankrupt or its reorganization or arrangement, or any composition,
readjustment, liquidation, dissolution or similar relief with respect to it
pursuant to Title 11 of the United States Code or under any similar present or
future federal law or the law of any other jurisdiction, and the Company shall
consent to or acquiesce in the filing thereof, or such petition or answer shall
not be discharged or denied within 60 days after the filing thereof.
(e) The Company shall be in material breach of its obligations to
Shareholders under the Registration Rights Agreement and such breach shall not
have been cured within 20 days after receipt by the Company from Shareholders of
a written notice specifying such breach and requiring it to be remedied, and the
Company shall not in good faith be contesting whether such breach has occurred.
(f) If the Company shall, in breach of its obligations under this
Agreement, fail to nominate for election to the Board of Directors any
Shareholder Designee who satisfies the requirements for designation to the Board
of Directors set forth in Section 3.1(d).
-------------
SECTION 2.3. Modification Upon Subsequent Agreement. If (a) the Company
--------------------------------------
enters into any agreement, understanding or arrangement with any other Person or
Group (each a "Future Major Investor") relating to the Company's obligation,
---------------------
whether absolute, contingent, current or future, to support or cause the
nomination of one or more Persons to the Board of Directors at the request of
the Future Major Investor, and (b) such agreement, understanding or arrangement
contains any terms with respect to the matters covered by this Article 2 that
---------
are more favorable to the Future Major Investor than those provided to the
Shareholders hereunder, then this Article 2 shall be automatically modified to
---------
include the more favorable terms and thereby provide the Shareholders with
rights at least as favorable and obligations no more burdensome as those given
to the Future Major Investor.
ARTICLE 3
Board Representation and Voting
SECTION 3.1. Board Representation. (a) Until the earlier to occur of the
--------------------
tenth anniversary of the purchase of shares of Senior Preferred Stock pursuant
to the Preferred Stock Purchase Agreement and the date on which the
Apollo/Blackstone Shareholders own, collectively, less than 20% of the
Apollo/Blackstone Shares (the "Shareholder Designee Period"), the Board of
---------------------------
Directors shall consist of no more than thirteen (13) directors during the
Shareholder Designee Period.
-14-
For so long as the Apollo/Blackstone Shareholders are entitled to at
least two Shareholder Designees under this Agreement, the Apollo/Blackstone
Shareholders shall be entitled to have one Shareholder Designee serve on each
committee of the Board of Directors other than any committee formed for the
purpose of considering matters relating to the Shareholders and as set forth
below with respect to the Nominating Committee.
(b) Immediately following the purchase of shares of Senior Preferred
Stock pursuant to the Preferred Stock Purchase Agreement, the Company will cause
Xxxxx Xxxxxxx to be elected or appointed to the Board of Directors. At all
times during the Shareholder Designee Period, the Company agrees, subject to
Section 3.1(d), to support the nomination of, and the Company's Nominating
--------------
Committee (as defined herein) shall recommend to the Board of Directors the
inclusion in the slate of nominees recommended by the Board of Directors to
shareholders for election as directors at each annual meeting of shareholders of
the Company: (i) no more than two persons who are executive officers of the
Company ("Management Directors"), (ii) (A) five Shareholder Designees, so long
--------------------
as the Apollo/Blackstone Shareholders beneficially own 80% or more of the
Apollo/Blackstone Shares, (B) four Shareholder Designees, so long as the
Apollo/Blackstone Shareholders beneficially own 60% or more but less than 80% of
the Apollo/Blackstone Shares, (C) three Shareholder Designees, so long as the
Apollo/Blackstone Shareholders beneficially own 40% or more but less than 60% of
the Apollo/Blackstone Shares, (D) two Shareholder Designees, so long as the
Apollo/Blackstone Shareholders beneficially own 20% or more but less than 40% of
the Apollo/Blackstone Shares, and (E) one Shareholder Designee, so long as the
Apollo/Blackstone Shareholders beneficially own 10% or more but less than 20% of
the Apollo/Blackstone Shares (each a "Beneficial Ownership Threshold");
------------------------------
provided, however, that if at any time as a result of the Company's issuance of
-------- -------
Voting Securities the Shareholders beneficially own 9% or less of the Actual
Voting Power (the "Actual Voting Power Threshold"), the Apollo/Blackstone
-----------------------------
Shareholders shall be entitled to no more than three Shareholder Designees (even
if the Apollo/Blackstone Shareholders would otherwise be entitled to a greater
number of Shareholder Designees pursuant to clauses (A) through (E) above), and
(iii) such other persons, each of whom is (A) recommended by the Nominating
Committee and (B) not an employee or officer of or outside counsel to the
Company or a partner, employee, director, officer, affiliate or associate (as
defined in Rule 12b-2 under the Exchange Act) of any Shareholder or any
affiliate of a Shareholder or as to which the Shareholders or their affiliates
own at least ten percent of the voting equity securities ("Unaffiliated
------------
Directors"). If any vacancy (whether by death, retirement, disqualification,
---------
removal from office or other cause, or by increase in number of directors)
occurs prior to a meeting of the Company's stockholders, the Board (i) may
appoint a member of management to fill a vacancy caused by a
-15-
Management Director ceasing to serve as a director, (ii) shall appoint, subject
to Section 3.1(d), a person designated by the Apollo/Blackstone Shareholders to
--------------
fill a vacancy created by a Shareholder Designee ceasing to serve as a director
(except as a result of the reduction of the number of Shareholder Designees
entitled to be included on the Board of Directors by reason of a decrease in the
Apollo/Blackstone Shareholders' beneficial ownership of Apollo/Blackstone Shares
below any Beneficial Ownership Threshold or by reasons of a decrease in the
Shareholders' beneficial ownership of Voting Securities below the Actual Voting
Power Threshold), and (iii) may appoint a person who qualifies as an
Unaffiliated Director and is recommended by the Nominating Committee pursuant to
the procedures set forth in the following paragraph to fill a vacancy created by
an Unaffiliated Director ceasing to serve as a director (provided, however, that
-------- -------
in the case of a vacancy relating to an Unaffiliated Director, if a majority of
the Nominating Committee is unable to recommend a replacement, then the Board
seat with respect to this vacancy shall remain vacant), and each such person
shall be a Management Designee, Shareholder Designee or Unaffiliated Director,
as the case may be, for purposes of this Agreement.
At all times during the Shareholder Designee Period, Unaffiliated
Directors shall be designated exclusively by a majority of a nominating
committee (the "Nominating Committee"), which shall at all times during the
--------------------
Shareholder Designee Period consist of not more than four persons, two of whom
shall be Shareholder Designees (or such lesser number of Shareholder Designees
as then serves on the Board of Directors) and two of whom shall be either
Management Directors or Unaffiliated Directors. If the Nominating Committee is
unable to recommend one or more persons to serve as Unaffiliated Directors
(except with respect to any vacancy created by an Unaffiliated Director ceasing
to serve as such), then the Board of Directors shall nominate and recommend for
election by stockholders an Unaffiliated Director then serving on the Board of
Directors. Notwithstanding the foregoing, if the Apollo/Blackstone Shareholders
beneficially own less than 50% of the Apollo/Blackstone Shares, the Nominating
Committee shall be comprised of individuals only one of whom is a Shareholder
Designee.
The foregoing provisions shall be effected pursuant to an amendment to
the Company's Bylaws in a form reasonably acceptable to the parties to this
Agreement, which shall not be further amended by the Board of Directors during
the Shareholder Designee Period.
Notwithstanding the foregoing, the Company shall have no obligation to
support the nomination, recommendation or election of any Shareholder Designee
pursuant to this Section 3.1(b) or any other obligation under this Section 3.1
-------------- -----------
if the Apollo/Blackstone Shareholders are in breach of any material provision of
this Agreement.
-16-
(c) Upon any decrease in Apollo/Blackstone Shareholders' beneficial
ownership of Apollo/Blackstone Shares below any Beneficial Ownership Threshold
or any decrease in the Shareholders beneficial ownership of Voting Securities
below the Actual Voting Power Threshold, the Apollo/Blackstone Shareholders
shall cause a number of Shareholder Designees to offer to immediately resign
from the Company's Board of Directors such that the number of Shareholder
Designees serving on the Board of Directors immediately thereafter will be equal
to the number of Shareholder Designees which the Apollo/Blackstone Shareholders
would then be entitled to designate under Section 3.1(b). Upon termination of
--------------
the Shareholder Designee Period, the Apollo/Blackstone Shareholders shall
promptly cause all of the Shareholder Designees to offer to resign immediately
from the Board of Directors and any committees thereof and the Company's
obligations under this Section 3.1 shall terminate.
-----------
(d) Notwithstanding the provisions of this Section 3.1, the
-----------
Apollo/Blackstone Shareholders shall not be entitled to designate any person to
the Company's Board of Directors (or any committee thereof) in the event that
the Company receives a written opinion of its outside counsel that a Shareholder
Designee would not be qualified under any applicable law, rule or regulation to
serve as a director of the Company or if the Company objects to a Shareholder
Designee because such Shareholder Designee has been involved in any of the
events enumerated in Item 2(d) or (e) of Schedule 13D or such person is
currently the target of an investigation by any governmental authority or agency
relating to felonious criminal activity or is subject to any order, decree, or
judgment of any court or agency prohibiting service as a director of any public
company or providing investment or financial advisory services and, in any such
event, the Apollo/Blackstone Shareholders shall withdraw the designation of such
proposed Shareholder Designee and designate a replacement therefor (which
replacement Shareholder Designee shall also be subject to the requirements of
this Section). The Company shall use its reasonable best efforts to notify the
Apollo/Blackstone Shareholders of any objection to a Shareholder Designee
sufficiently in advance of the date on which proxy materials are mailed by the
Company in connection with such election of directors to enable the
Apollo/Blackstone Shareholders to propose a replacement Shareholder Designee in
accordance with the terms of this Agreement.
(e) Each Shareholder Designee serving on the Board of Directors shall
be entitled to all compensation and stock incentives granted to directors who
are not employees of the Company on the same terms provided to, and subject to
the same limitations applicable to, such directors.
SECTION 3.2. Voting. (a) Each Shareholder agrees that during the
------
Standstill Period such Shareholder shall, and shall cause its Affiliates and any
Person which is a member of any Group of which such Shareholder or any of its
Affiliates is a
-17-
member to, be present, in person or represented by proxy, at all meetings of
shareholders of the Company so that all Voting Securities beneficially owned by
such Shareholder shall be counted for the purpose of determining the presence of
a quorum at such meetings. Each Shareholder agrees that during the Standstill
Period:
(i) In connection with the election of directors of the
Company, such Shareholder shall vote or cause to be voted all Voting
Securities beneficially owned by such Shareholder to elect those
individuals nominated in accordance with the provisions of Section 3.1.
-----------
(ii) In connection with any proposal for a Reorganization
Transaction, such Shareholder shall vote or cause to be voted, or consent
with respect to, all Voting Securities beneficially owned by such
Shareholder in the manner recommended by a majority of the entire Board of
Directors.
(iii) In connection with other proposals submitted to
shareholders of the Company, such Shareholder shall be free to vote or
cause to be voted, or consent with respect to, all Voting Securities
beneficially owned by such Shareholder in its discretion.
SECTION 3.3. Notices of Dispositions of Voting Securities. Not later
--------------------------------------------
than the tenth day following the end of any calendar month during the Standstill
Period in which one or more Dispositions of Voting Securities by a Shareholder
or any of its Affiliates shall have occurred, such Shareholder shall use its
reasonable best efforts to give written notice to the Company of all such
Dispositions (in the case of Dispositions by Affiliates, to the extent it has
knowledge) unless any such Disposition has been reflected in a public filing
that was delivered to the Company on or in advance of the date upon which notice
thereof under this Section 3.3 would have been due. Such notice shall state the
-----------
date upon which each such Disposition was effected, the number and type of
Voting Securities involved in each such Disposition, the means by which each
such Disposition was effected and, to the extent known, the identity of the
Person acquiring Voting Securities.
SECTION 3.4. Access to Information. The Company will provide each
---------------------
Shareholder during normal business hours with reasonable prior written notice
with (i) access to the books and records of the Company and information relating
to the Company, its properties, operations, financial condition and affairs
("Information") and (ii) the opportunity to consult with management of the
-----------
Company from time to time regarding the Company, its properties, operations,
finances and affairs. Certain of the Shareholders have requested the
Information and consultation rights provided herein to enable the Shares held by
such Shareholders to qualify as a "venture capital investment"
-18-
as to which such Shareholders have "management rights," in each case as such
terms are defined in Department of Labor Regulation Section 2510.3-101(d);
provided, however, that nothing herein shall require the Company to furnish such
-------- -------
Shareholders with more than rights of access to Information and consultation
provided herein regardless of whether such rights are sufficient for such
Shareholders to comply with venture capital operating company requirements. In
furtherance of the foregoing, the Company agrees to inform the Shareholders with
respect to any corporate actions which the Company considers to be major or
significant, including, without limitation, extraordinary dividends, mergers,
acquisitions or dispositions of significant assets, issuances of significant
amounts of debt or equity and material amendments to the certificate of
incorporation or by-laws of the Company, and (subject to the limitations
specified in the proviso in the preceding sentence) to provide the Shareholders
with the opportunity to consult with management of the Company with respect to
such matters. The Shareholders agree to hold in strict confidence all nonpublic
Information furnished to them and to use all Information only in connection with
the management of their investment in the Company, except that the Shareholders
may disclose any information that (i) is or becomes generally available to the
public other than as a result of disclosure by the Shareholders, and (ii) is or
becomes available to the Shareholders from a source other than the Company;
provided, however, that, to the knowledge of the Shareholders, the source is not
-------- -------
bound by a confidentiality obligation with the Company in respect thereof. If
any Shareholder is required by a court or administrative agency to disclose any
of the nonpublic Information, the Shareholder shall promptly notify the Company
of such requirement so that the Company may at its own expense oppose such
requirement or seek a protective order and request confidential treatment of
such Information. It is agreed that if the Shareholder is nonetheless compelled
to disclose the Information, the Shareholder may disclose such portion of the
Information which is legally required without liability hereunder. In any event,
the Shareholder will not oppose action by the Company to obtain a protective
order or other reliable assurance that confidential treatment will be accorded
the Information. Nothing herein shall permit any Shareholder to disclose
material non-public Information to permit such Shareholder to purchase or sell
securities of the Company in compliance with the federal securities laws.
ARTICLE 4
Transfer Restrictions
SECTION 4.1. Restrictions on Dispositions. During the Standstill
----------------------------
Period, each Shareholder shall not, and shall cause its Affiliates not to,
directly or indirectly (including, without limitation, through the disposition
or transfer of control of another Person), sell, assign, donate, transfer,
pledge, hypothecate, grant any option with respect to or otherwise dispose of
any interest in (or enter into an agreement or understanding
-19-
with respect to the foregoing) any Voting Securities (a "Disposition"), except
-----------
as set forth below in this Section 4.1. Without limiting the generality of the
-----------
foregoing, any sale of securities held by any Shareholder or any of its
Affiliates which is currently (or following the passage of time, the occurrence
of any event or the giving of notice), directly or indirectly, exchangeable or
exercisable for, or convertible into, any Voting Securities shall constitute a
Disposition of such Voting Securities.
Dispositions may be effected by a Shareholder during the Standstill
Period as follows:
(a) No Dispositions of any nature may be made prior to the first
anniversary of the purchase of the Senior Preferred Stock pursuant to the
Preferred Stock Purchase Agreement, except pursuant to Sections 4.1(b) through
---------------
4.1(f).
------
(b) As of the date of purchase of the shares of Senior Preferred
Stock pursuant to the Preferred Stock Purchase Agreement (the "Purchase Date"),
-------------
with respect to the Shares, and after the first anniversary of the Purchase
Date, with respect to all other Voting Securities, Dispositions of Voting
Securities may be made at any time in compliance with the Registration Rights
Agreement.
(c) As of the Purchase Date, with respect to the Shares, and after
the first anniversary of the Purchase Date, with respect to all other Voting
Securities, Dispositions of Voting Securities may be made pursuant to sales
effected in accordance with Rule 144 under the Securities Act (a "Rule 144
--------
Sale"); provided that such Dispositions shall not be made to any Person who or
---- --------
which would immediately thereafter, to the knowledge of such Shareholder, any of
its Affiliates, or such Shareholder's broker, beneficially own Voting Securities
representing 9% or more of the Total Voting Power (and such Person shall have
provided a certificate to such effect).
(d) As of the Purchase Date, with respect to the Shares, and after
the first anniversary of the Purchase Date, with respect to all other Voting
Securities, Dispositions may be made to any Person (other than pursuant to a
Reorganization Transaction) that would, following such sale, beneficially own no
more than 9% of the Total Voting Power (and such Person shall have provided a
certificate to such effect).
(e) Dispositions may be made pursuant to a merger transaction or
other business combinations or a tender offer for outstanding shares of Common
Stock which is recommended to the shareholders of the Company generally by at
least a majority of the entire Board of Directors, on the terms and conditions
of such transaction available to all other holders of shares of Common Stock or
on terms and conditions recommended by at
-20-
least a majority of the entire Board of Directors (excluding the
Apollo/Blackstone Designees) as to the Preferred Stock and Junior Preferred
Stock.
(f) Dispositions may be made by a Shareholder to (i) any other
Shareholder or (ii) any Related Person of any Shareholder that executes an
instrument in form and substance satisfactory to the Company in which it makes
the representations and warranties set forth in Section 1.3(b) as of the date of
--------------
the execution of such instrument and agrees to be bound by the terms of this
Agreement as if an original signatory to this Agreement (such transferee, a
"Related Transferee"), in which case such Related Transferee shall thereafter be
------------------
a "Shareholder" for all purposes of this Agreement.
(g) With respect to Voting Securities which are, by their terms,
convertible into or exercisable or exchangeable for other Voting Securities such
conversion, exercise or exchange shall not be deemed a Disposition. Without
limiting the foregoing, the Company acknowledges that the conversion of shares
of Senior Preferred Stock or shares of Junior Preferred Stock into Conversion
Shares shall not be a Disposition.
(h) Each Shareholder agrees that during the Standstill Period, without
the consent of the managing underwriter(s) in an underwritten offering in
respect of the Company's Voting Securities, it will not effect any sale or
distribution of Voting Securities (other than in connection with such
Shareholder's own registration pursuant to paragraph (b) of this Section 4.1),
-----------
including a Rule 144 Sale, during the ten (10) day period prior to, and during
the ninety (90) day period beginning on, the effective date of the registration
statement filed by the Company in respect of such underwritten offering, or any
shorter period as may apply to the Company and its affiliates.
ARTICLE 5
Miscellaneous
SECTION 5.1. Notices. All notices, requests, demands and other
-------
communications required or permitted hereunder shall be made in writing by hand-
delivery, registered first-class mail, telex, fax or air courier guaranteeing
delivery:
(a) If to the Company, to:
Allied Waste Industries, Inc.
00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxx, Esq.
Fax: (000) 000-0000
-21-
with copies to:
Xxxxxxxxx Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx XxXxxxxxx, Esq.
Fax: (000) 000-0000
and to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
or to such other person or address as the Company shall furnish to Shareholders
in writing;
(b) If to Shareholders, to:
Apollo Management, L.P.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
and:
-22-
The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
and:
Greenwich Street Investment II, L.L.C.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Nissan
Fax: (000) 000-0000
and:
DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxxxxxx
Fax: (000) 000-0000
and
-23-
Attn: Xxx Xxxxx
Fax: (000) 000-0000
with a copy to:
DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxx
Fax: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
or to such other person or address as Shareholders shall furnish to the Company
in writing.
All such notices, requests, demands and other communications shall be
deemed to have been duly given: at the time of delivery by hand, if personally
delivered; five (5) Business Days after being deposited in the mail, postage
prepaid, if mailed domestically in the United States (and seven (7) Business
Days if mailed internationally); when answered back, if telexed; when receipt
acknowledged, if telecopied; and on the Business Day for which delivery is
guaranteed, if timely delivered to an air courier guaranteeing such delivery.
SECTION 5.2. Legends. (a) If requested in writing by the Company, a
-------
Shareholder shall present or cause to be presented promptly all certificates
representing Voting Securities beneficially owned by such Shareholder or any of
its Affiliates, for the placement thereon of a legend substantially to the
following effect, which legend will remain thereon so long as such legend is
required under applicable securities laws:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. SUCH SHARES MAY NOT BE
-24-
OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH A REGISTRATION
THEREUNDER OTHER THAN PURSUANT TO AN EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS AND DELIVERY TO ALLIED WASTE
INDUSTRIES, INC. OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO IT TO THE EFFECT THAT SUCH TRANSFER IS
EXEMPT FROM REGISTRATION UNDER THOSE LAWS."
(b) Each Shareholder shall present or cause to be presented promptly
all certificates representing Voting Securities beneficially owned by such
Shareholder or any of its Affiliates, for the placement thereon of a legend
substantially to the following effect, which legend will remain thereon during
the Standstill Period as long as such Voting Securities are beneficially owned
by any Shareholder or an Affiliate of any Shareholder:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE PROVISIONS OF A SECOND AMENDED AND RESTATED SHAREHOLDERS
AGREEMENT, DATED AS OF JULY 30, 1999, BETWEEN ALLIED WASTE
INDUSTRIES, INC. ("ALLIED") AND CERTAIN STOCKHOLDERS OF
ALLIED NAMED THEREIN AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
EXCEPT IN ACCORDANCE THEREWITH. A COPY OF SAID AGREEMENT IS
ON FILE AT THE OFFICE OF THE CORPORATE SECRETARY OF ALLIED"
(c) The Company may enter a stop transfer order with the transfer
agent or agents of Voting Securities against any Disposition not in compliance
with the provisions of this Agreement.
SECTION 5.3. Enforcement. Shareholders, on the one hand, and the
-----------
Company, on the other hand, acknowledge and agree that irreparable injury to the
other party would occur in the event any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached and that such injury would not be adequately compensable in damages.
It is accordingly agreed that, in addition to any other remedies which may be
available at law or in equity, each
-25-
party hereto (the "Moving Party") shall be entitled to specific enforcement of,
------------
and injunctive relief to prevent any violation of, the terms of this Agreement,
and the other parties hereto will not take action, directly or indirectly, in
opposition to the Moving Party seeking such relief on the grounds that any other
remedy or relief is available at law or in equity. The parties further agree
that no bond shall be required as a condition to the granting of any such
relief.
SECTION 5.4. Entire Agreement. This Agreement constitutes the entire
----------------
agreement and understanding of the parties with respect to the transactions
contemplated hereby; provided that the Original Shareholders Agreement shall
--------
remain in full force and effect until the closing of the purchase and sale of
the Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement
and the representations and warranties of the parties set forth in Sections 1.2
------------
and 1.3 of the Original Agreement shall survive and shall be deemed to be not
---
amended or otherwise affected by this Agreement. This Agreement may be amended
only by a written instrument duly executed by the parties or their respective
successors or assigns; provided, however, that any amendment or waiver by the
-------- -------
Company shall be made only with the prior approval of a majority of the
directors of the Company other than Shareholder Designees.
SECTION 5.5. Severability. Whenever possible, each provision or
------------
portion of this Agreement will be interpreted in such manner as to be effective
and valid under applicable law, but if any provision or portion of any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law, rule or regulation in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision shall have been
replaced with a provision which shall, to the maximum extent permissible under
such applicable law, rule or regulation, give effect to the intention of the
parties as expressed in such invalid, illegal or unenforceable provision.
SECTION 5.6. Headings. Descriptive headings contained in the
--------
Agreement are for convenience only and will not control or affect the meaning or
construction of any provision of this Agreement.
SECTION 5.7. Counterparts. For the convenience of the parties, any
------------
number of counterparts of this Agreement may be executed by the parties, and
each such executed counterpart will be an original instrument.
SECTION 5.8. No Waiver. Any waiver by any party of a breach of any
---------
provision of this Agreement shall not operate as or be construed to be a waiver
of any
-26-
other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
SECTION 5.9. Successors and Assigns. This Agreement shall be binding
----------------------
upon and inure to the benefit of the Company and Shareholders, and to their
respective successors and assigns other than, in the case of Shareholders,
transferees that are not Related Transferees, including any successors to the
Company or Shareholders or their businesses or assets as the result of any
merger, consolidation, reorganization, transfer of assets or otherwise, and any
subsequent successor thereto, without the execution or filing of any instrument
or the performance of any act; provided that no party may assign this Agreement
--------
without the other party's prior written consent, except by the Shareholders to a
Shareholder or a Related Transferee as expressly provided in this Agreement (and
that nothing herein restricts the transfer of any of the rights of Shareholders
under the Registration Rights Agreement in accordance the terms of the
Registration Rights Agreement).
SECTION 5.10. Governing Law. This Agreement will be governed by and
-------------
construed and enforced in accordance with the internal laws of the State of
Delaware, without giving effect to the conflict of laws principles thereof.
SECTION 5.11. Further Assurances. From time to time on and after the
------------------
date of this Agreement, the Company and Shareholders, as the case may be, shall
deliver or cause to be delivered to the other party hereto such further
documents and instruments and shall do and cause to be done such further acts as
the other parties hereto shall reasonably request to carry out more effectively
the provisions and purposes of this Agreement, to evidence compliance herewith
or to assure that it is protected in acting hereunder.
SECTION 5.12. Consent to Jurisdiction and Service of Process. Any
----------------------------------------------
legal action or proceeding with respect to this Agreement or any matters arising
out of or in connection with this Agreement, and any action for enforcement of
any judgment in respect thereof shall be brought exclusively in the state or
federal courts located in the State of Delaware, and, by execution and delivery
of this Agreement, the Company and Shareholders each irrevocably consent to
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, or by recognized international express carrier or delivery
service, to the Company or Shareholders at their respective addresses referred
to in this Agreement. The Company and Shareholders each hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of
-27-
the aforesaid actions or proceedings arising out of or in connection with this
Agreement brought in the courts referred to above and hereby further irrevocably
waives and agrees, to the extent permitted by applicable law, not to plead or
claim in any such court that any such action or proceeding brought in any such
court has been brought in an inconvenient forum. Nothing in this Agreement shall
affect the right of any party hereto to serve process in any other manner
permitted by law.
SECTION 5.13. Shareholder Action. The Company shall be entitled to
------------------
rely upon any written notice, designation, or instruction signed by Apollo
Management IV, L.P. and BCP (the "Representatives") as a notice, designation or
---------------
instruction of all Shareholders and the Company shall not be liable to any
Shareholder if the Company acts in accordance with and relies upon such writing.
Notwithstanding the foregoing, however, the Company shall not be entitled to
rely upon any written notice, designation or instruction signed by the
Representatives as a notice, designation or instruction of the DLJ Shareholders
or the Greenwich Street Shareholders if such notice, designation or instruction
states that it relates to the first parenthetical proviso contained in the first
paragraph of Section 2.1(a) or Section 2.1(b), 3.2(a)(iii), 3.4, 4.1(c), 5.4 or
5.9 of this Agreement (the "Specific Rights"). Each of the Shareholders
---------------
acknowledges that the Representatives have full power and authority to act on
their behalf; provided, however, that none of the DLJ Shareholders and the
-------- -------
Greenwich Street Shareholders acknowledge the power or authority of the
Representatives to act on their behalf with respect to the Specific Rights.
-28-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first referred to above.
ALLIED WASTE INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
APOLLO INVESTMENT FUND IV, L.P.
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors IV, L.P.
its General Partner
By: Apollo Capital Management IV, Inc.
its General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
-29-
APOLLO/AW LLC
By: Apollo Management IV, L.P.
its Manager
By: AIF IV Management, Inc.
its General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
APOLLO INVESTMENT FUND III, L.P.
APOLLO OVERSEAS PARTNERS III, L.P.
APOLLO (UK) PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
its General Partner
By: Apollo Capital Management II, Inc.
its General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
-30-
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.
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
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 III L.L.C.
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
-00-
XXXXXXXXX XXXXXX XXXXXXX XXXXXXXX II, L.P.
By: GREENWICH STREET INVESTMENTS II,
L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
GSCP OFFSHORE FUND, L.P.
By: GREENWICH STREET INVESTMENTS II,
L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
GREENWICH FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
-00-
XXXXXXXXX XXXXXX EMPLOYEES FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
TRV EXECUTIVE FUND, L.P.
By: GREENWICH STREET INVESTMENTS II, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
DLJMB FUNDING II, INC.
By: /s/ Xxx Xxxxxxxxxx
-----------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
-33-
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
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: Principal
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
-34-
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
---------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
---------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Xxx Xxxxxxxxxx
---------------------------------
Name: Xxx Xxxxxxxxxx
Title: Principal
-35-
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Vice Precident
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
-36-
DLJ ESC II L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx
Title: Vice President
-37-
