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EXHIBIT 10.1
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;
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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
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"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:
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(a) Organization. Each of ▇▇▇▇▇▇▇ and LTI is a
corporation duly organized, validly existing and in good standing 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,
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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
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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
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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
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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).
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(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.
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(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
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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,
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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
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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.
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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):
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(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).
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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.
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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.
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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.
-▇▇-
▇▇
"▇▇▇ ▇▇▇" 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
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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.
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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
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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
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