SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT dated as of April 21, 1997 (this
"Agreement") is made and entered into by and between Apollo
Investment Fund III, L.P., a Delaware limited partnership, Apollo
Overseas Partners III, L.P., a Delaware limited partnership, and
Apollo (U.K.) Partners III, L.P., an English limited partnership
(collectively, the "Apollo Purchasers"), and 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 "Blackstone Purchasers" and, together with the Apollo
Purchasers, "Purchasers"), ▇▇▇▇▇▇▇ Inc., a Canadian corporation
("▇▇▇▇▇▇▇") and ▇▇▇▇▇▇▇ Transportation, Inc., a Delaware
corporation and a wholly-owned subsidiary of ▇▇▇▇▇▇▇ ("LTI" and,
together with ▇▇▇▇▇▇▇, "Sellers"), and Allied Waste Industries,
Inc., a Delaware corporation (the "Company"). Capitalized terms
not otherwise defined herein have the meanings set forth in
Section 6.1.
WHEREAS, LTI owns (a) 14,600,000 shares of common stock, par
value $.01 per share, of the Company, constituting approximately
19.3% of the issued and outstanding shares of capital stock of
the Company as of the date hereof (such shares being referred to
herein as the "Shares") and (b) Warrants to purchase 20,400,000
shares of the Company's common stock (the "Warrants");
WHEREAS, ▇▇▇▇▇▇▇ owns (a) $150,000,000 aggregate principal amount
of the 7% Junior Subordinated Debentures of Allied Waste Finance
(Canada) Ltd., a Canadian corporation and a wholly-owned subsidiary
of the Company ("Allied Finance") (the "7% Debentures") and (b)
$168,300,000 aggregate principal amount of the Zero Coupon Junior
Subordinated Debentures of Allied Finance (the "Zero Coupon
Debentures" and, together with the 7% Debentures, the
"Debentures");
WHEREAS, LTI desires to sell, and Purchasers desire to purchase,
the Shares on the terms and subject to the conditions set forth in
this Agreement;
WHEREAS, LTI desires to sell the Warrants, and the Company desires
to purchase, the Warrants on the terms and subject to the
conditions set forth in this Agreement;
WHEREAS, ▇▇▇▇▇▇▇ desires to sell the Debentures, and the Company
desires to purchase, the Debentures on the terms and subject to the
conditions set forth in this Agreement;
WHEREAS, in connection with the agreement to purchase certain
shares of the Company's common stock (including the assignment of
certain related registration rights (the "TPG Registration
Rights")) pursuant to a Stock Purchase Agreement dated April 14,
1997 between the Purchasers, TPG Partners, L.P. and TPG Parallel I,
L.P., the Company and Purchasers have entered into a Shareholders
Agreement, dated April 14, 1997 (the "TPG Shareholders Agreement");
WHEREAS, in connection with this Agreement, the Company and the
Purchasers have entered into (i) an amended and restated
Shareholders Agreement, dated the date hereof (the "Shareholders
Agreement"), and (ii) a Registration Rights Agreement(the
"Registration Rights Agreement"), each effective upon the Closing
Date (which Shareholders Agreement and Registration Rights
Agreement shall supersede and replace the TPG Shareholders
Agreement and the TPG Registration Rights on the Closing Date);
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
SALE OF SHARES AND CLOSING
1.1 Purchase and Sale. At the Closing, on the terms and subject to
the conditions set forth in this Agreement, (i) LTI agrees to sell
to Purchasers all of the right, title and interest of LTI in and to
the Shares, and Purchasers jointly and severally agree to purchase
from LTI all of the Shares and (ii) LTI agrees to sell to the
Company all of the right, title and interest of LTI in and to the
Warrants, and the Company agrees to purchase from LTI all of the
Warrants, and (iii) ▇▇▇▇▇▇▇ agrees to sell to the Company all of
the right, title and interest of ▇▇▇▇▇▇▇ in and to the Debentures,
and the Company agrees to purchase from ▇▇▇▇▇▇▇ all of the
Debentures.
1.2 Purchase Price.
(a) Shares. Subject to adjustment as provided in Section 5.1(b),
the purchase price per share for the Shares is $10.00 per share, or
$146,000,000 in the aggregate (the "Shares Purchase Price"),
payable in immediately available United States funds at the Closing
in the manner provided in Section 1.3.
(b) Other Securities. Subject to adjustment as provided in Section
5.1(b), the purchase price for the Debentures and the Warrants,
(collectively, the "Other Securities") shall be $230,000,000 (the
"Other Securities Purchase Price"), payable in immediately
available United States funds at the Closing in the manner provided
in Section 1.3.
1.3 Closing. The Closing will take place at the offices of Fried,
Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, One New York Plaza, New York,
New York, or at such other place as Purchasers, Sellers and the
Company mutually agree, at 10:00 A.M. local time, on the Closing
Date; provided, that the parties hereto will use commercially
reasonable efforts to cause the Closing to occur by May 31, 1997.
At the Closing, Purchasers will pay the Shares Purchase Price and
the Company will pay the Other Securities Purchase Price by wire
transfer of immediately available funds to such account or accounts
as ▇▇▇▇▇▇▇ may reasonably direct by written notice delivered to
Purchasers and the Company at least one (1) Business Day before the
Closing Date (▇▇▇▇▇▇▇ shall accept delivery of the Securities
Purchase Price on behalf of itself and LTI, which hereby appoints
▇▇▇▇▇▇▇ as its agent for such purpose). Simultaneously, (i) LTI
will assign and transfer to Purchasers all of LTI's right, title
and interest in and to the Shares by delivering to Purchasers one
or more certificates representing such Shares, in genuine and
unaltered form, duly endorsed in blank or accompanied by duly
executed stock powers endorsed in blank, with requisite transfer
tax stamps, if any, attached, and (ii) each of ▇▇▇▇▇▇▇ and LTI will
assign and transfer to the Company all of ▇▇▇▇▇▇▇'▇ and LTI's
respective right, title and interest in and to the Others
Securities by delivering to the Company one or more Notes, Warrants
or other certificates representing such Other Securities, in
genuine and unaltered form, duly endorsed in blank or accompanied
by duly executed bond or stock powers endorsed in blank, with
requisite transfer tax stamps, if any, attached.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Sellers. ▇▇▇▇▇▇▇ and LTI,
jointly and severally, hereby represent and warrant to Purchasers
and the Company as follows:
(a) Organization. Each of ▇▇▇▇▇▇▇ and LTI is a corporation duly
organized, validly existing and in goodstanding under the laws of
Canada and Delaware, respectively. Each of ▇▇▇▇▇▇▇ and LTI has
full corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby, including without
limitation to own, hold, sell and transfer (pursuant to this
Agreement) the Shares and the Other Securities owned by such
Seller.
(b) Title to Shares. The Shares represent all of the common stock
and any other equity equivalents (other than the Warrants and
options held by Company directors who are affiliates of Sellers) of
the Company owned directly or indirectly by Sellers or any of their
affiliates, and LTI is the sole record and beneficial owner of such
Shares, free and clear of all Liens. The delivery of one or more
certificates at the Closing representing the Shares in the manner
provided in Section 1.3 will transfer to Purchasers good and valid
title to the Shares, free and clear of all Liens (except such as
may be imposed on the Shares by the Purchasers).
(c) Title to Other Securities. The Other Securities represent all
of the securities (other than the Shares and options held by
Company directors who are affiliates of Sellers) of the Company
owned directly or indirectly by Sellers or any of their affiliates.
▇▇▇▇▇▇▇ is the sole record and beneficial owner of the Debentures,
and, LTI is the sole record and beneficial owner of the Warrants,
in each case, free and clear of all Liens. The delivery of one or
more Notes, Warrants or other certificates at the Closing
representing the Other Securities in the manner provided in
Section 1.3 will transfer to the Company good and valid title to
the Other Securities, free and clear of all Liens (except such as
may be imposed on the Other Securities by the Company).
(d) Authority. The execution and delivery by each of ▇▇▇▇▇▇▇ and
LTI of this Agreement and the performance by each of ▇▇▇▇▇▇▇ and
LTI of its obligations hereunder have been duly and validly
authorized, no other action on the part of ▇▇▇▇▇▇▇, LTI or their
stockholders being necessary. This Agreement has been duly and
validly executed and delivered by each of ▇▇▇▇▇▇▇ and LTI and
constitutes a legal, valid and binding obligation of each of
▇▇▇▇▇▇▇ and LTI enforceable against each of ▇▇▇▇▇▇▇ and LTI in
accordance with its terms, except to the extent such enforceability
may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting generally
the enforcement of creditors' rights and (ii) the availability of
equitable remedies (whether in a proceeding in equity or at law).
(e) No Conflicts. The execution and delivery by each of ▇▇▇▇▇▇▇
and LTI of this Agreement do not, and the performance by each of
▇▇▇▇▇▇▇ and LTI of its obligations under this Agreement and the
consummation of the transactions contemplated hereby will not:
(i) conflict with or result in a violation or breach of any of the
terms, conditions or provisions of the certificate or articles of
incorporation or by-laws (or other comparable charter documents) of
▇▇▇▇▇▇▇ or LTI;
(ii) subject to making all filings, giving all notices and
obtaining all approvals required under the HSR Act, conflict with
or result in a violation or breach of any term or provision of any
Law or Order applicable to ▇▇▇▇▇▇▇ or LTI, the Shares or the Other
Securities; or
(iii) (A) conflict with or result in a violation or breach of, (B)
constitute (with or without notice or lapse of time or both) a
default under, (C) require ▇▇▇▇▇▇▇ or LTI to obtain any consent
from any Person as a result or under the terms of, or (D) result in
the creation or imposition of any Lien (other than such Liens as
may be created by this Agreement) upon ▇▇▇▇▇▇▇ or LTI, the Shares
or the Other Securities under, any Contract to which ▇▇▇▇▇▇▇ or LTI
is a party.
(f) Governmental Approvals and Filings. Other than the filing of
a Schedule 13D and applicable forms under Section 16 as required
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), no consent, approval or action of, filing with or
notice to any Governmental or Regulatory Authority on the part of
▇▇▇▇▇▇▇ or LTI is required in connection with the execution,
delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby.
(g) Legal Proceedings. As of the date of this Agreement, there are
no Actions or Proceedings pending or, to the knowledge of ▇▇▇▇▇▇▇
or LTI, threatened against, relating to or affecting ▇▇▇▇▇▇▇ or LTI
(or to the knowledge of ▇▇▇▇▇▇▇ or LTI, the Company) which could
reasonably be expected to result in the issuance of an Order
restraining, enjoining or otherwise prohibiting or making illegal
the consummation of any of the transactions contemplated by this
Agreement.
(h) Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by ▇▇▇▇▇▇▇
and LTI directly with Purchasers and the Company without the
intervention of any Person on behalf of such Seller in such manner
as to give rise to any valid claim by any Person against Purchasers
or the Company for a finder's fee, brokerage commission or similar
payment, except for ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., whose fees (i) with
respect to the purchase of the Shares shall be payable by
Purchasers and (ii) with respect to the Financing (as defined
herein) shall be payable by the Company.
(i) Agreements Relating to Shares. Other than the documents listed
on Schedule 2.1(i) (the "Sellers Agreements"), true and complete
copies of which have been filed with the Securities and Exchange
Commission by the Company and made available to Purchasers, neither
▇▇▇▇▇▇▇ nor LTI is a party to (i) any Contracts or other
arrangements concerning the acquisition, disposition or the voting
of the Shares or the Other Securities, (ii) any options with
respect to the Shares or the Other Securities, including without
limitation any form of preemptive rights or claims of third parties
or (iii) any outstanding proxies, shareholder agreements, voting
trusts, powers of attorney or comparable delegations of authority
concerning the Shares or the Other Securities. Each Sellers
Agreement is valid, binding and in full force and effect.
2.2 Representations and Warranties of Purchasers. Each Purchaser,
severally but not jointly, hereby represents and warrants to
Sellers and the Company as follows:
(a) Organization. Purchaser is a limited partnership duly
organized, validly existing and in good standing under the laws of
its jurisdiction of organization. Purchaser has full power and
authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby.
(b) Authority. The execution and delivery by Purchaser of this
Agreement, and the performance by Purchaser of its obligations
hereunder, have been duly and validly authorized, no other action
on the part of Purchaser, its general partner or their respective
partners and stockholders being necessary. This Agreement has been
duly and validly executed and delivered by Purchaser and
constitutes a legal, valid and binding obligation of Purchaser
enforceable against Purchaser in accordance with its terms, except
to the extent such enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting generally the enforcement of creditors'
rights and (ii) the availability of equitable remedies (whether in
a proceeding in equity or at law).
(c) No Conflicts. The execution and delivery by Purchaser of this
Agreement do not, and the performance by Purchaser of its
obligations under this Agreement and the consummation of the
transactions contemplated hereby will not:
(i) conflict with or result in a violation or breach of any of the
terms, conditions or provisions of the partnership agreement,
certificate or articles of incorporation or by-laws (or other
comparable organizational documents) of Purchaser or its general
partner;
(ii) subject to making all filings, giving all notices and
obtaining all approvals required under the HSR Act, conflict with
or result in a violation or breach of any term or provision of any
Law or Order applicable to Purchaser;
(iii) (A) conflict with or result in a violation or breach of, (B)
constitute (with or without notice or lapse of time or both) a
default under, or (C) require Purchaser to obtain any consent from
any Person as a result or under the terms of, any Contract to which
Purchaser is a party.
(d) Governmental Approvals and Filings. Other than filings,
notices and approvals required under the HSR Act and the Exchange
Act, no consent, approval or action of, filing with or notice to
any Governmental or Regulatory Authority on the part of Purchaser
is required in connection with the execution, delivery and
performance of this Agreement or the consummation of the
transactions contemplated hereby.
(e) Legal Proceedings. As of the date hereof, there are no Actions
or Proceedings pending or, to the knowledge of Purchaser,
threatened against, relating to or affecting Purchaser which could
reasonably be expected to result in the issuance of an Order
restraining, enjoining or otherwise prohibiting or making illegal
the consummation of any of the transactions contemplated by this
Agreement.
(f) Purchase for Investment. The Shares will be acquired by
Purchaser (or, if applicable, its permitted assigns hereunder) for
its own account for the purpose of investment, it being understood
that the right to dispose of such Shares shall be entirely within
the discretion of Purchaser (or such assignee, as the case may be).
(g) Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Purchaser
directly with Sellers and the Company without the intervention of
any Person on behalf of such Purchaser in such manner as to give
rise to any valid claim by any Person against Sellers or the
Company for a finder's fee, brokerage commission or similar
payment, except for ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., whose fees (i) with
respect to the purchase of the Shares shall be payable by
Purchasers and (ii) with respect to the Financing shall be payable
by the Company.
2.3 Representations and Warranties of the Company. The Company
hereby represents and warrants to Purchasers and Sellers as
follows:
(a) Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware. The Company has full corporate power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby,
including without limitation to purchase (pursuant to this
Agreement) the Other Securities.
(b) Authority. The execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations
hereunder have been duly and validly authorized, no other action on
the part of the Company or its stockholders being necessary. This
Agreement has been duly and validly executed and delivered by the
Company and constitutes a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms, except to the extent such enforceability may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting generally the enforcement of
creditors' rights and (ii) the availability of equitable remedies
(whether in a proceeding in equity or at law).
(c) No Conflicts. The execution and delivery by the Company of
this Agreement do not, and the performance by the Company of its
obligations under this Agreement and the consummation of the
transactions contemplated hereby will not:
(i) conflict with or result in a violation or breach of any of the
terms, conditions or provisions of the certificate or by-laws of
the Company;
(ii) subject to making all filings, giving all notices and
obtaining all approvals required under the HSR Act and the Exchange
Act, conflict with or result in a violation or breach of any term
or provision of any Law or Order applicable to the Company, the
Shares or the Other Securities, except as would not, and in the
aggregate have a material adverse effect on the Business or
Condition of the Company or the consummation of the transactions
contemplated hereby;
(iii) (A) conflict with or result in a violation or breach of,
(B) constitute (with or without notice or lapse of time or both) a
default under, or (C) require the Company to obtain any consent
from any Person as a result or under the terms of, any Contract to
which the Company is a party, except as would not, in the aggregate
have a material adverse effect on the Business or Condition of the
Company or the consummation of the transactions contemplated
hereby.
(d) Governmental Approvals and Filings. Other than filings,
notices and approvals required under the HSR Act and the Exchange
Act, no consent, approval or action of, filing with or notice to
any Governmental or Regulatory Authority on the part of the Company
is required in connection with the execution, delivery and
performance of this Agreement or the consummation of the
transactions contemplated hereby.
(e) Legal Proceedings. As of the date of this Agreement, there are
no Actions or Proceedings pending or, to the knowledge of the
Company, threatened against, relating to or affecting the Company
which could reasonably be expected to result in the issuance of an
Order restraining, enjoining or otherwise prohibiting or making
illegal the consummation of any of the transactions contemplated by
this Agreement.
(f) Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by the
Company directly with Purchasers and Sellers without the
intervention of any Person on behalf of the Company in such manner
as to give rise to any valid claim by any Person against
Purchasers, Sellers or the Company for a finder's fee, brokerage
commission or similar payment, except for ▇▇▇▇▇▇▇, Sachs & Co.,
whose fees (i) with respect to the purchase of the Shares shall be
payable by Purchasers and (ii) with respect to the Financing shall
be payable by the Company.
(g) USRPHC Status. None of the Company and its subsidiaries is a
United States real property holding company within the meaning of
Section 897(c)(2) of the Internal Revenue Code of 1986, as amended
(the "Code") during the applicable period specified in Code Section
897(c)(1)(A)(ii).
ARTICLE III
COVENANTS
3.1 Covenants of Sellers. Each Seller, jointly and severally,
covenants and agrees with Purchasers and the Company that:
(a) No Solicitations. From and after the date hereof, Seller will
not take, nor will it permit any affiliate of Seller (or authorize
or permit any investment banker, financial advisor, attorney,
accountant or other Person retained by or acting for or on behalf
of Seller or any such affiliate) to take, directly or indirectly,
any action to solicit, encourage, receive, negotiate, assist or
otherwise facilitate any offer or inquiry from any Person
concerning a transfer of the Shares or the Other Securities (other
than the sale pursuant to this Agreement). If Seller or any such
affiliate (or any such Person acting for or on their behalf)
receives from any Person any offer, inquiry or informational
request referred to above, Seller will promptly advise such Person,
by written notice, of the terms of this Section and will promptly,
orally and in writing, advise Purchasers and the Company of such
offer, inquiry or request and deliver a copy of such notice to
Purchasers and the Company.
(b) Certain Restrictions. Seller will not vote the Shares in any
manner that would have a material adverse effect on the Business or
Condition of the Company or vote for any material transaction not
otherwise in the ordinary course of business of the Company.
(c) Notice and Cure. Seller will notify Purchasers and the Company
in writing of, and contemporaneously will provide Purchasers and
the Company with true and complete copies of any and all
information or documents relating to, and will use all commercially
reasonable efforts to cure before the Closing, any event,
transaction or circumstance, as soon as practicable after it
becomes known to Seller, occurring after the date of this Agreement
that causes or will cause any covenant or agreement of Seller under
this Agreement to be breached or that renders or will render untrue
any representation or warranty of Seller contained in this
Agreement as if the same were made on or as of the date of such
event, transaction or circumstance.
(d) Board Resignations. Seller shall cause each of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇ (or any other person who shall replace
or succeed such person as a member of the Board of Directors of the
Company), representing all of Sellers' designees or affiliates on
the Board of Director of the Company, to have resigned from the
Board of Directors of the Company on or prior to the Closing Date.
(e) Amendments and Assignments. From the date hereof until the
earlier to occur of the Closing or the termination of this
Agreement, without the consent of Purchasers, Sellers will not
materially amend the Sellers Agreements or assign any of their
rights under this Agreement.
3.2 Covenants of Purchaser. Each Purchaser, severally but not
jointly, covenants and agrees with Sellers and the Company that:
(a) HSR. Purchaser will promptly take all reasonable actions to
obtain all approvals required under the HSR Act in connection with
the transactions contemplated by this Agreement.
(b) Notice and Cure. Purchaser will notify Sellers and the Company
in writing of, and contemporaneously will provide Sellers and the
Company with true and complete copies of any and all information or
documents relating to, and will use all commercially reasonable
efforts to cure before the Closing, any event, transaction or
circumstance, as soon as practicable after it becomes known to
Purchaser, occurring after the date of this Agreement that causes
or will cause any covenant or agreement of Purchaser under this
Agreement to be breached or that renders or will render untrue any
representation or warranty of Purchaser contained in this Agreement
as if the same were made on or as of the date of such event,
transaction or circumstance. No notice given pursuant to this
Section shall have any effect on the representations, warranties,
covenants or agreements contained in this Agreement for purposes of
determining satisfaction of any condition contained herein.
(c) Amendments and Assignments. From the date hereof until the
earlier to occur of the Closing or the termination of this
Agreement, without the consent of Sellers, Purchasers will not
materially amend the TPG Shareholders Agreement or assign any of
their rights under this Agreement; provided, that the Purchasers
may assign this Agreement to any Person who is a Related Transferee
(as such term is defined in the TPG Shareholders Agreement).
3.3 Covenants of the Company. The Company covenants and agrees
with Sellers and Purchasers that:
(a) HSR. The Company will promptly take all reasonable actions to
obtain all approvals required under the HSR Act in connection with
the transactions contemplated by this Agreement.
(b) Conduct of Business. Until the Closing, the Company will
conduct business only in the ordinary course consistent with past
practice, except with the written consent of Purchasers or as
otherwise contemplated by this Agreement (including the Financing)
or the TPG Shareholders Agreement.
(c) Certain Restrictions. Until the Closing, the Company will not
without the written consent of Purchasers:
(i) amend its certificate of incorporation or by-laws, except as
contemplated by the TPG Shareholders Agreement, or take any action
with respect to any such amendment or any recapitalization,
reorganization, liquidation or dissolution of the Company;
(ii) authorize, issue, sell or otherwise dispose of any shares of
capital stock of or any option with respect to the Company (other
than (x) grants of stock or stock options pursuant to the Company's
benefit plans and (y) issuances of shares of common stock upon the
exercise of such options, the conversion of currently outstanding
securities or, in lieu of cash, acquisitions permitted in the
ordinary course of business under Section 3.3(b)), or modify or
amend any right of any holder of outstanding shares of capital
stock of or option with respect to the Company;
(iii) declare, set aside or pay any dividend or other distribution
in respect of the capital stock of the Company, or directly or
indirectly redeem, purchase or otherwise acquire any capital stock
of or any option with respect to the Company (except with respect
to the payment of regular dividends on shares of preferred stock);
or
(iv) enter into any Contract to do or engage in any of the
foregoing.
(d) Notice and Cure. The Company will notify Sellers and
Purchasers in writing of, and contemporaneously will provide
Sellers and Purchasers with true and complete copies of any and all
information or documents relating to, and will use all commercially
reasonable efforts to cure before the Closing, any event,
transaction or circumstance, as soon as practicable after it
becomes known to the Company, occurring after the date of this
Agreement that causes or will cause any covenant or agreement of
the Company under this Agreement to be breached or that renders or
will render untrue any representation or warranty of the Company
contained in this Agreement as if the same were made on or as of
the date of such event, transaction or circumstance. No notice
given pursuant to this Section shall have any effect on the
representations, warranties, covenants or agreements contained in
this Agreement for purposes of determining satisfaction of any
condition contained herein.
(e) Financing. The Company will use commercially reasonable
efforts to obtain the financing (the "Financing") for the Company's
purchase of the Other Securities from Sellers on such terms as are
satisfactory to Purchasers and the Company, and to obtain on the
Closing Date the funds contemplated to be raised by such Financing.
ARTICLE IV
CONDITIONS
4.1 Sellers' Conditions. The obligation of Sellers hereunder to
sell the Shares and the Other Securities are subject to the
fulfillment, at or before the Closing, of each of the following
conditions (all or any of which may be waived in whole or in part
by Sellers in their sole discretion):
(a) Representations and Warranties. Each of the representations
and warranties made by Purchasers and the Company in this Agreement
shall be true and correct in all material respects on and as of the
Closing Date as though such representation or warranty was made on
and as of the Closing Date.
(b) Performance. Purchasers and the Company shall have performed
and complied with, in all material respects, each agreement,
covenant and obligation required by this Agreement to be so
performed or complied with by Purchasers and the Company at or
before the Closing.
(c) Regulatory Consents and Approvals. All approvals (or
terminations or expirations of waiting periods) required under the
HSR Act necessary for the consummation of the transactions
contemplated by this Agreement shall have been obtained (or
terminated or expired).
(d) No Orders. There shall not be in effect on the Closing Date
any Order restraining, enjoining or otherwise prohibiting or making
illegal the consummation of any of the transactions contemplated by
this Agreement.
(e) Purchase of Shares and Other Securities. The Purchasers shall
have paid to Sellers the Shares Purchase Price for the Shares and
the Company shall have paid to Sellers the Other Securities
Purchase Price for the Other Securities.
4.2 Purchasers' Conditions. The obligations of Purchasers
hereunder to purchase the Shares is subject to the fulfillment, at
or before the Closing, of each of the following conditions (all or
any of which may be waived in whole or in part only by Purchasers
in their sole discretion, except that Purchasers shall not waive
the conditions in Section 4.2(g) without the Company's consent):
(a) Representations and Warranties. Each of the representations
and warranties made by Sellers and the Company in this Agreement
shall be true and correct in all material respects on and as of the
Closing Date as though such representation or warranty was made on
and as of the Closing Date.
(b) Performance. Sellers and the Company shall have performed and
complied with, in all material respects, each agreement, covenant
and obligation required by this Agreement to be so performed or
complied with by Sellers and the Company at or before the Closing.
(c) Regulatory Consents and Approvals. All approvals (or
terminations or expirations of waiting periods) required under the
HSR Act necessary for the consummation of the transactions
contemplated by this Agreement shall have been obtained (or
terminated or expired).
(d) No Orders. There shall not be in effect on the Closing Date
any Order restraining, enjoining or otherwise prohibiting or making
illegal the consummation of any of the transactions contemplated by
this Agreement.
(e) Delivery of Shares. All of the Shares, and not just a portion
thereof, shall have been delivered for sale by ▇▇▇▇▇▇▇.
(f) Purchase of Other Securities. All of the Other Securities, and
not just a portion thereof, shall have been delivered for sale by
Sellers, and the Company shall have completed the Financing and
purchased the Other Securities for the Other Securities Purchase
Price.
(g) Board Resignations. Each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇.
▇▇▇▇▇▇ (or any other person who shall replace or succeed such
person as a member of the Board of Directors of the Company),
representing all of Sellers' designees or affiliates on the Board
of Director of the Company, shall have resigned from the Board of
Directors of the Company.
(h) USRPHC Affidavit. The Company shall have delivered to
Purchasers an affidavit of an authorized officer in form and
substance reasonably satisfactory to Purchasers indicating that
none of the Company or the Company's subsidiaries is a United
States real property holding company within the meaning of Code
Section 897(c)(2) during the applicable period specified in Code
Section 897(c)(1)(A)(ii).
4.3 The Company's Conditions. The obligation of Company hereunder
to purchase the Other Securities is subject to the fulfillment, at
or before the Closing, of each of the following conditions (all or
any of which may be waived in whole or in part by the Company in
its sole discretion):
(a) Representations and Warranties. Each of the representations
and warranties made by Sellers and Purchasers in this Agreement
shall be true and correct in all material respects on and as of the
Closing Date as though such representation or warranty was made on
and as of the Closing Date.
(b) Performance. Sellers and Purchasers shall have performed and
complied with, in all material respects, each agreement, covenant
and obligation required by this Agreement to be so performed or
complied with by Sellers and Purchasers at or before the Closing.
(c) Regulatory Consents and Approvals. All approvals (or
terminations or expirations of waiting periods) required under the
HSR Act necessary for the consummation of the transactions
contemplated by this Agreement shall have been obtained (or
terminated or expired).
(d) No Orders. There shall not be in effect on the Closing Date
any Order restraining, enjoining or otherwise prohibiting or making
illegal the consummation of any of the transactions contemplated by
this Agreement.
(e) Financing. The Company shall have consummated the Financing.
(f) Delivery of Other Securities. All of the Other Securities, and
not just a portion thereof, shall have been delivered for sale by
Sellers.
(g) Purchase of Shares. All of the Shares, and not just a portion
thereof, shall have been delivered for sale by ▇▇▇▇▇▇▇ and
purchased by Purchasers.
(h) Board Resignations. Each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇.
▇▇▇▇▇▇ (or any other person who shall replace or succeed such
person as a member of the Board of Directors of the Company),
representing all of Sellers' designees or affiliates on the Board
of Director of the Company, shall have resigned from the Board of
Directors of the Company.
ARTICLE V
TERMINATION
5.1 Termination. This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned:
(a) at any time before the Closing, by mutual written agreement of
Sellers, Purchasers and the Company; or
(b) at any time after May 31, 1997, by Sellers, Purchasers or the
Company, upon notification to the non-terminating parties by the
terminating party if the Closing shall not have occurred on or
before such date and such failure to consummate is not caused by a
breach of this Agreement by the terminating party; provided, that
Purchasers shall have the right from time to time to extend such
date for up to an additional 10 days upon written notice to Sellers
on or prior to such date. For each day that Purchasers and the
Company extend the termination date by written notification
pursuant to the foregoing provision, $25,000 shall be added to the
Shares Purchase Price and $75,000 shall be added to the Other
Securities Purchase Price, with the payment of such additional
amounts being subject to the same terms and conditions hereunder as
the payment of such Purchase Prices.
5.2 Effect of Termination. If this Agreement is validly terminated
pursuant to Section 5.1, this Agreement will forthwith become null
and void, and there will be no liability or obligation on the part
of Sellers, Purchasers or the Company (or any of their respective
officers, directors, employees, agents or other representatives or
affiliates), except as provided in the next succeeding sentence and
except that the provisions with respect to confidentiality in
Section 7.1 will continue to apply following any such termination.
Notwithstanding any other provision in this Agreement to the
contrary, upon termination of this Agreement pursuant to Section
5.1(b), each party will remain liable to the other parties for any
willful breach of this Agreement by such party existing at the time
of such termination, and such other parties may seek such remedies,
including damages and fees of attorneys, against the other with
respect to any such breach as are provided in this Agreement or as
are otherwise available at Law or in equity.
ARTICLE VI
DEFINITIONS
6.1 Definitions. (a) Defined Terms. As used in this Agreement,
the following defined terms have the meanings indicated below:
"Actions or Proceedings" means any action, suit, proceeding,
arbitration or Governmental or Regulatory Authority investigation
or audit.
"Business or Condition of the Company" means the business,condition
(financial or otherwise), results of operations, assets and
properties and prospects of the Company taken as a whole.
"Business Day" means a day other than Saturday, Sunday or any other
day on which banks located in the States of New York or California
are authorized or obligated to close.
"Closing" means the closing of the transactions contemplated by
Section 1.3.
"Closing Date" means (a) the later of (i) the first Business Day
after the day on which the last of the approval or waiting period
described in Section 4.1(c), Section 4.2(c) and Section 4.3(c) has
been obtained or has expired, as applicable, or (ii) the date of
the consummation of the Financing or (b) such other date as
Purchasers, Sellers and the Company mutually agree upon in writing.
"Company" means Allied Waste Industries, Inc., a Delaware
corporation. Unless the context requires otherwise, all references
to the Company herein shall be deemed to include all of the
consolidated subsidiaries of the Company.
"Contract" means any agreement, lease, license, evidence of
indebtedness, mortgage, indenture, security agreement or other
contract (whether written or oral).
"Financing" shall have the meaning set forth in Section 3.3(e).
"Governmental or Regulatory Authority" means any court, tribunal,
arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any
domestic or foreign state, county, city or other political
subdivision.
"HSR Act" means Section 7A of the ▇▇▇▇▇▇▇ Act (Title II of the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended)
and the rules and regulations promulgated thereunder.
"Laws" means all laws, statutes, rules, regulations, ordinances and
other pronouncements having the effect of law of the United States,
any foreign country or any domestic or foreign state, county, city
or other political subdivision or of any Governmental or Regulatory
Authority.
"Liens" means any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of
any kind, or any conditional sale Contract, title retention
Contract or other Contract to give any of the foregoing.
"Order" means any writ, judgment, decree, injunction or similar
order of any Governmental or Regulatory Authority (in each such
case whether preliminary or final).
"Person" means any natural person, corporation, general
partnership, limited partnership, proprietorship, other business
organization, trust, union, association or Governmental or
Regulatory Authority.
ARTICLE VII
MISCELLANEOUS
7.1 Confidentiality. Until this Agreement is publicly disclosed,
no party to this Agreement will, and each party will cause its
respective representatives not to, make any release to the press or
other public disclosure with respect to the existence or contents
of this Agreement or the transactions contemplated by this
Agreement, except for such public disclosure as may be necessary
for the party proposing to make the disclosure not to be in
violation of or default under any applicable law, regulation or
governmental order. If any party proposes to make any such
disclosure, such party will in good faith consult with and consider
the suggestions of the other parties concerning the nature and
scope of the information it proposes to disclose.
7.2 Further Assurances. The parties hereto will execute and
deliver at or prior to the Closing each agreement and other
document that such party is required hereby to execute and deliver
as a condition to the Closing, and will take all commercially
reasonable steps necessary or desirable and proceed diligently and
in good faith to satisfy each condition to the obligations of such
party contained in this Agreement and will not take or fail to take
any action that could reasonably be expected to result in the
nonfulfillment of any such condition. At the Closing and from time
to time thereafter, the parties hereto shall execute and deliver
such other documents and instruments (including officers'
certificates and opinions of counsel), provide such materials and
information and take such other actions as may be reasonably
requested to cause such party to fulfill its obligations under this
Agreement.
7.3 Entire Agreement. This Agreement, the TPG Shareholders
Agreement, the Shareholders Agreement and the Registration Rights
Agreement supersede all prior discussions and agreements between
the parties with respect to the subject matter hereof and thereof,
and this Agreement contains the sole and entire agreement between
the parties hereto with respect to the subject matter hereof.
7.4 Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf
of each party hereto.
7.5 Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all
other remedies at law or in equity. Notwithstanding the foregoing,
the parties acknowledge that it will be impossible to measure in
money the damage caused by any failure of either party to comply
with its agreements set forth herein, that each such agreement is
material, and that in the event of any such failure, the other
party will not have an adequate remedy at law or in damages.
Therefore, each party consents to the issuance of an injunction or
the enforcement of other equitable remedies against such party at
the suit of the other party, without bond or other security, to
compel performance of all of the terms hereof, and each party
hereby waives the defense of availability of relief in damages.
7.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York
applicable to a Contract executed and performed in such State,
without giving effect to the conflicts of laws principles thereof.
7.7 Consent to Jurisdiction and Service of Process. Each Seller
hereby irrevocably appoints ▇▇▇▇ ▇. ▇▇▇▇▇▇, at its office at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, and each Apollo
Purchaser hereby irrevocably appoints ▇▇▇▇▇ ▇▇▇▇▇▇, at its offices
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
and each Blackstone Purchaser hereby irrevocably appoints ▇▇▇▇▇▇
▇▇▇▇▇▇, at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, and
the Company hereby irrevocably appoints ▇▇▇▇▇ ▇▇▇▇, at its offices
at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
Arizona, its lawful agent and attorney to accept and acknowledge
service of any and all process against it in any action, suit or
proceeding arising out of or relating to this Agreement or any of
the transactions contemplated hereby and upon whom such process may
be served, with the same effect as if such party were a resident of
the State of Delaware and had been lawfully served with such
process in such jurisdiction, and waives all claims of error by
reason of such service, provided that in the case of any service
upon such agent and attorney, the party effecting such service
shall also deliver a copy thereof to the other parties. Sellers,
Purchasers and the Company will enter into such agreements with
such agents as may be necessary to constitute and continue the
appointment of such agents hereunder. In the event that such agent
and attorney resigns or otherwise becomes incapable of acting as
such, such party will appoint a successor agent and attorney,
reasonably satisfactory to the other parties, with like powers.
Each party hereby irrevocably submits to the exclusive jurisdiction
of the United States District Court for the Southern District of
New York or any court of the State of New York located in the
Borough of Manhattan in the City of New York in any action, suit or
proceeding arising out of or relating to this Agreement or any of
the transactions contemplated hereby, and agrees that any such
action, suit or proceeding shall be brought only in such court,
provided, however, that such consent to jurisdiction is solely for
the purpose referred to in this Section 7.7 and shall not be deemed
to be a general submission to the jurisdiction of said courts or in
the State of Delaware other than for such purpose. Each party
hereby irrevocably waives, to the fullest extent permitted by Law,
any objection that it may now or hereafter have to the laying of
the venue of any such action, suit or proceeding brought in such a
court and any claim that any such action, suit or proceeding
brought in such a court has been brought in an inconvenient forum.
7.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
7.9 Miscellaneous. The Company shall have the right to assign its
right to purchase the Other Securities to any of its wholly-owned
subsidiaries, provided that no such assignment shall relieve the
Company of any of its obligations hereunder.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto
as of the date first above written.
▇▇▇▇▇▇▇ INC.
By: \s\ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and General Counsel
▇▇▇▇▇▇▇ TRANSPORTATION, INC.
By: \s\ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and General Counsel
APOLLO INVESTMENT FUND III, L.P.
APOLLO OVERSEAS PARTNERS III, L.P.
APOLLO (U.K.) PARTNERS III, L.P.
By: Apollo Advisors II, L.P.
By: Apollo Capital Management II, Inc.
By: \s\ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BLACKSTONE CAPITAL PARTNERS II MERCHANT BANKING FUND ▇.▇.
▇▇▇▇▇▇▇▇▇▇ OFFSHORE CAPITAL PARTNERS II ▇.▇.
▇▇▇▇▇▇▇▇▇▇ FAMILY INVESTMENT PARTNERSHIP II L.P.
By: Blackstone Management Associates II L.L.C.
By: \s\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director
ALLIED WASTE INDUSTRIES, INC.
By: \s\ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Title: President and Chief Operating Officer
Schedule 2.1(i)
- Stock Purchase Agreement, dated September 17, 1996, as amended on
December 30, 1996
- $150 million 7% Junior Subordinated Debenture due 2008,
dated December 30, 1996
- Zero Coupon Junior Subordinated Debenture due 2008, dated
December 30, 1996
- Warrant (to purchase 20,400,000 shares of Allied
common stock), dated December 30, 1996
- Subscription Agreement, dated December 30, 1996
- Registration Rights Agreement, dated December 30, 1996