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EXHIBIT 10.8
WASTE CONNECTIONS, INC.
THIRD AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
Dated as of
December 31, 1998
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THIRD AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT
THIS THIRD AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (this
"Agreement") is made as of December 31, 1998, by and among Waste Connections,
Inc., a Delaware corporation (the "Company"), and the investors listed on
Exhibit A hereto (the "Investors", and individually, an "Investor") with
reference to the following facts:
The Company and the Investors entered into Stock Purchase Agreements,
Asset Purchase Agreements, Warrants or the other stock acquisition agreements
listed on Exhibit A hereto (the "Agreements") with respect to the purchase of
shares of the Common Stock (the "Common Stock") of the Company. In order to
induce the Company to enter into the Agreements and to induce the Investors to
invest funds in, or work for, the Company pursuant to the Agreements, the
Investors and the Company hereby agree that this Agreement shall govern the
rights of certain of the Investors to cause the Company to register shares of
Common Stock issuable to such Investors and certain other matters as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and conditions set forth in this Agreement, the parties agree
as follows:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Agreement:
(a) The term "ACT" means the Securities Act of 1933, as
amended.
(b) The term "FORM S-3" means such form under the Act as
in effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(c) The term "HOLDER" means any person owning or having
the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.12.
(d) The term "1934 ACT" shall mean the Securities Exchange
Act of 1934, as amended.
(e) The terms "REGISTER", "REGISTERED" and "REGISTRATION"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(f) The term "REGISTRABLE SECURITIES" means the Common
Stock issued pursuant to the Agreements to the Investors listed on Exhibit A
hereto and any other securities issued by the Company from time to time that the
Company's Board of Directors determines should be included in the definition of
"Registrable Securities", excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which his rights
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under this Section 1 are not assigned; provided, however, that shares of Common
Stock or other securities shall not be treated as Registrable Securities for the
purposes of any registration if and so long as at the time of such registration
all transfer restrictions and restrictive legends with respect thereto have been
or, in the opinion of the Company's counsel, may be removed, and all the
Registrable Securities held by such Holder may be sold without restriction
(including any volume limitations) under Rule 144 under the Act. When the
Company adds securities to the definition of Registrable Securities, the holders
of such securities shall be added to Exhibit A hereto.
(g) The number of shares of "REGISTRABLE SECURITIES THEN
OUTSTANDING" shall be determined by the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
(h) The term "SEC" shall mean the Securities and Exchange
Commission.
(i) The term "UNDERWRITTEN OFFERING" means an offering of
Common Stock to the public pursuant to an effective Registration statement that
is firmly underwritten by a United States nationally recognized underwriter or
underwriters that are selected or approved by the Company in accordance with
this Agreement.
1.2 Request for Registration.
(a) If the Company shall receive at any time a written
request from Holders holding at least fifty percent (50%) of the Registrable
Securities then outstanding (the "Initiating Holders") that the Company file a
registration statement under the Act covering the registration of at least
twenty percent (20%) of the Registrable Securities then outstanding (or a lesser
percent if the anticipated aggregate offering price would exceed $100,000,000),
then the Company shall, within twenty-one (21) days after the receipt thereof,
give written notice of such request to all Holders and shall, subject to the
limitations and pursuant to the provisions of this Section 1.2, use reasonable
efforts to file a registration statement under the Act covering all Registrable
Securities which the Holders request to be registered.
(b) Notwithstanding the foregoing, the Company shall not
be obligated to take any action to effect any such registration pursuant to this
Section 1.2:
(i) if the Initiating Holders propose to dispose of
shares of Registrable Securities which may be immediately registered on Form S-3
pursuant to a request made under Section 1.11;
(ii) if the Holders shall have initiated two
registrations pursuant to this Section 1.2, which have been declared or ordered
effective and pursuant to which securities have been sold or have been withdrawn
by the Holders other than as a result of a material adverse change to the
Company;
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(iii) if the Company has effected a registration
pursuant to this Section 1.2 within one year prior to receipt of a request for
registration made pursuant to Section 1.2(a); or
(iv) after September 30, 1999.
(c) Subject to the provisions of this Agreement,
including, but not limited to, the foregoing Section 1.2(b) and Section 1.4(a),
the Company shall file a registration statement as soon as practicable after
receipt of the request or requests of the Initiating Holders under this Section
1.2, but in any event within ninety (90) days after receipt of such request or
requests.
(d) The right of any Holder to registration pursuant to
this Section 1.2 shall be conditioned on such Holder's participation in an
Underwritten Offering and the inclusion of such Holder's Registrable Securities
to be registered in the Underwritten Offering. The Company shall (together with
all Holders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected by the Company, which underwriter or underwriters shall be
reasonably acceptable to a majority in interest of the Initiating Holders.
Notwithstanding any other provision of this Section 1.2, if the underwriters
advise the Initiating Holders and the Company in writing that marketing factors
require a limitation of the number of shares to be underwritten and that the
total amount of securities that all Holders (initiating and noninitiating)
request pursuant to this Section 1.2(d) to be included in such offering exceeds
the amount of securities that the underwriters reasonably believe compatible
with the success of the offering, the Company shall so advise all Holders and
all of the Holders' shares to be included in the registration shall be allocated
among all Holders requesting inclusion (initiating and noninitiating) pro rata
according to the total amount of securities entitled to be included in such
registration owned by each Holder requesting inclusion (initiating or
noninitiating) or in such other proportions as shall be mutually agreed by such
selling shareholders. Shares of Registrable Securities held by the Holders shall
not be subject to cutback following the allocation unless shares of all other
selling shareholders have been eliminated from the offering.
If any Holder does not agree to the terms of any such underwriting, that
person shall be excluded therefrom by written notice from the Company or the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration. If
shares are so withdrawn from the registration and the number of shares of
Registrable Securities to be included in such registration was previously
reduced as a result of marketing factors, the Company shall then offer to all
persons who have retained the right to include securities in the registration
the right to include additional securities in the registration in an aggregate
amount equal to the number of shares so withdrawn, with such shares to be
allocated among the persons requesting additional inclusion pro rata according
to the total amount of securities entitled to be included in such registration
owned by each such person or in such other proportions as shall be mutually
agreed by such selling shareholders. For purposes of the preceding sentence
concerning apportionment, for any selling shareholder which is a holder of
Registrable Securities and which is a partnership, limited liability company or
corporation, the partners, retired partners, members, retired members and
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shareholders of such holder, or the estates and family members of any such
partners, retired partners, members, retired members and shareholders and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling shareholder," and any pro-rata reduction with respect to such
"selling shareholder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such "selling shareholder," as defined in this sentence.
1.3 Company Registration. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for any shareholders) any of its stock or other
securities under the Act in connection with the public offering of such
securities by the Company solely for cash (other than a registration relating
solely to the sale of securities to participants in a Company stock plan, a
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities which are also being registered), the Company shall, at such
time, promptly give each Holder written notice of such registration.
Registrations effected pursuant to Section 1.11 hereof shall not require notice
to the Holders pursuant to this Section 1.3. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 2.7, the Company shall, subject to the provisions of
Section 1.7, cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered.
1.4 Obligations of the Company. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for a period of up to one hundred twenty
(120) days or until the distribution contemplated in the Registration statement
has been completed; provided, however, that (i) such 120-day period shall be
extended for a period of time equal to the period the Holder refrains from
selling any securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of the Company; and (ii) in
the case of any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, such 120-day period
shall be extended, if necessary, to keep the registration statement effective
until all such Registrable Securities are sold, provided that Rule 415, or any
successor rule under the Act, permits an offering on a continuous or delayed
basis, and provided further that applicable rules under the Act governing the
obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (i) includes any prospectus required by Section
10(a)(3) of the Act or (ii) reflects facts or events representing a material or
fundamental change in the information set forth in the registration statement,
the incorporation by reference of information required to be included in (i) and
(ii) above to be contained in periodic reports filed pursuant to Section 13 or
15(d) of the 1934 Act in the registration statement. Notwithstanding anything to
the contrary in this Agreement, the Company may delay filing a registration
statement, and may withhold efforts to cause a registration statement to become
effective, for a period not to exceed 120 days, if the
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Company shall furnish to Holders a certificate signed by the Chairman of the
Board stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its shareholders
for such registration statement to be effected at such time; provided that such
right to delay a request shall be exercised by the Company not more than once in
any twelve (12) month period. If, after a registration statement becomes
effective, the Company advises the holders of registered shares that the Company
considers it appropriate for the registration statement to be amended or
supplemented, the holders of such shares shall suspend any further sales of
their registered shares until the Company advises them that the registration
statement has been amended or updated.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders; provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered
by such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Cause all such Registrable Securities registered
pursuant to such registration statement to be listed on each securities exchange
on which similar securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant to such registration statement and a
CUSIP number for all such Registrable Securities, in each case not later than
the effective date of such registration.
1.5 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable
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Securities of any selling Holder that such Holder shall furnish to the Company
such information regarding such Holder, the Registrable Securities held by such
Holder, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
1.6 Expenses of Company Registration. The Company shall bear and
pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to this Section 1 for each Holder (which right may be assigned as
provided in Section 1.12), including (without limitation) all registration,
filing, and qualification fees, printing and accounting fees relating or
apportionable thereto and the fees and disbursements of counsel for the Company
and one separate counsel for the selling Holders hereunder (selected by the
Holders of a majority of the Registrable Securities that are included in the
corresponding registration), but excluding underwriting discounts and
commissions relating to Registrable Securities.
1.7 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under this Section 1 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities that the underwriters
determine in good faith is compatible with the success of the offering, the
number of shares that may be included in the underwriting shall be allocated,
first, to the Company; second, to the Holders on a pro rata basis based on the
total number of Registrable Securities held by the Holders; and third, to any
other shareholder of the Company (other than a Holder) on a pro rata basis. Such
reduction may reduce the amount of securities of the selling Holders included in
the registration to zero. In no event will shares of any other selling
shareholder be included in such registration which would reduce the number of
shares which may be included by Holders without the written consent of Holders
of not less than two-thirds (66 2/3%) of the Registrable Securities proposed to
be sold in the offering.
If any Holder does not agree to the terms of any such underwriting, the
holder shall be excluded therefrom by written notice from the Company or the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration. If
shares are so withdrawn from the registration and if the number of shares of
Registrable Securities to be included in such registration was previously
reduced as a result of marketing factors, the Company shall then offer to all
persons who have retained the right to include securities in the registration
the right to include additional securities in the registration in an aggregate
amount equal to the number of shares so withdrawn, with such shares to be
allocated among the persons requesting additional inclusion pro rata according
to the total amount of securities entitled to be included in such registration
owned by each such person or in such other proportions as shall be mutually
agreed by such selling shareholders. For purposes of the preceding sentence
concerning apportionment, for any selling shareholder which is a holder of
Registrable Securities and which is a partnership, limited liability company or
corporation, the partners, retired partners, members, retired members and
shareholders of such holder, or the
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estates and family members of any such partners, retired partners, members,
retired members and shareholders and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "selling shareholder," and any
pro-rata reduction with respect to such "selling shareholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling shareholder," as defined in
this sentence.
1.8 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.9 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the Act)
for such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the 1934 Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this subsection 1.9(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person of
such Holder.
(b) To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in
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conformity with written information furnished by such Holder expressly for use
in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 1.9(b), in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
1.9(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; provided that
in no event shall any indemnity under this subsection 1.9(b) exceed the net
proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1,9, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.9.
(d) If the indemnification provided for in this Section
1.9 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
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(f) The obligations of the Company and Holders under this
Section 1.9 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.10 Reports Under Securities Exchange Act of 1934. With a view
to making available to the Holders the benefits of Rule 144 promulgated under
the Act and any other rule or regulation of the SEC that may at any time permit
a Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144, at all times during the term
of this Agreement;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144, or
that it qualifies as a registrant whose securities may be resold pursuant to
Form S-3 (at any time after it so qualifies), (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company, and (iii) such other information as may be reasonably
requested in availing any Holder of any rule or regulation of the SEC which
permits the selling of any such securities without registration or pursuant to
such form.
1.11 Form S-3 Registration. In case the Company shall receive
written request or requests from any of the Holders of the Registrable
Securities that the Company effect a registration on Form S-3 that registers a
number of shares of Registrable Securities for each Holder so requesting equal
to at least one percent (1%) of the outstanding Common Stock (or, with the
consent of the Company, any number of shares of Registrable Securities less than
such amount) and any related qualification or compliance with respect to all or
a part of the Registrable Securities owned by such Holder, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, effect such registration and
all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within 20 days after effectiveness of such written notice from the Company
pursuant to Section 2.7; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance pursuant
to this Section 1.11: (i) if Form S-3 is not available for such offering by the
Holders; (ii) if the Holders, together with the holders of any other securities
of the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at any aggregate price
to the public less than $1,000,000; (iii) as provided in Section 1.4(a) or
Section 1.4(d); or (iv) if the Company shall advise the Holder that it
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anticipates filing a registration statement covering the sale of Common Stock by
the Company for cash within 60 days after receipt of any request of a Holder
pursuant to this Section 1.11, in which event the Company's obligations under
this Section 1.11 shall be suspended until the earlier of 60 days following such
request without such registration statement having been filed or 90 days after
such registration statement is declared effective by the SEC.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 1.11 shall not be counted as demands for registration effected pursuant
to Section 1.2.
1.12 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned to a transferee or assignee (other than a competitor of the Company)
who acquires at least twenty-five percent (25%) of the shares held by a Holder
provided: (a) the Company is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; (b) such transferee or assignee agrees in writing to be bound by
and subject to the terms and conditions of this Agreement; (c) such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Act; and (d) transfer of registration rights to a limited or general partner
of any Holder that is a partnership will be without restriction as to minimum
shareholding. For the purposes of determining the number of shares of
Registrable Securities held by a transferee or assignee, the holdings of
transferees and assignees of a partnership or limited liability company who are
partners or retired partners of such partnership or members or retired members
of such limited liability company (including spouses and ancestors, lineal
descendants and siblings of such partners, members or spouses who acquire
Registrable Securities by gift, will or intestate succession) shall be
aggregated together and with the partnership or limited liability company;
provided that all assignees and transferees who would not qualify individually
for assignment of registration rights shall have a single attorney-in-fact for
the purpose of exercising any rights, receiving notices or taking any action
under this Section 1.
1.13 Termination of Registration Rights.
(a) No Holder shall be entitled to exercise any right
provided for in this Section 1 after May 21, 2003.
(b) In addition, the right of any Holder to request
registration or inclusion in any registration pursuant to Section 1 shall
terminate on such date as all shares of Registrable Securities held by such
Holder may immediately be sold under Rule 144 during any 90-day period. The
Registrable Securities held by such holder immediately prior to such date shall
cease to be Registrable Securities on such date.
1.14 Registration of Common Stock. For purposes of Section 1 of
this Agreement, the only securities which the Company shall be required to
register pursuant hereto shall be shares of Common Stock.
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2. Miscellaneous.
2.1 Restrictive Legend. Each certificate representing Common
Stock shall, except as otherwise provided in Section 2.2, be stamped or
otherwise imprinted with a legend substantially in the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER
SUCH ACT AND ALL SUCH OTHER APPLICABLE LAWS OR AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company the securities being sold thereby may be publicly
sold without registration under the Act and any applicable state securities
laws.
2.2 Notice of Proposed Transfer. Prior to any proposed transfer
of any Common Stock, the holder thereof shall give written notice to the Company
of his or her intention to effect such transfer. Each such notice shall describe
the manner of the proposed transfer and, if reasonably requested by the Company,
shall be accompanied by an opinion of counsel satisfactory to the Company to the
effect that the proposed transfer may be effected without registration under the
Act and any applicable state securities laws, whereupon the holder of such stock
shall be entitled to transfer such stock in accordance with the terms of the
notice; provided, however, that no such opinion of counsel shall be required for
a transfer to one or more partners or members of the transferor (in the case of
a transferor that is a partnership or limited liability company) or to an
affiliated corporation (in the case of a transferor that is a corporation). Each
certificate for Common Stock transferred as above provided shall bear the legend
set forth in Section 2.1, except that such certificate shall not bear such
legend if (i) such transfer is in accordance with the provisions of Rule 144 (or
any other rule permitting public sale without registration under the Act) or
(ii) the opinion of counsel referred to above is to the further effect that the
transferee and any subsequent transferee (other than an affiliate of the
Company) would be entitled to transfer such securities in a public sale without
registration under the Act. Promptly after effecting any such transfer, the
Holder shall give written notice to the Company of the number of shares
transferred. The restrictions provided for in this Section 2.2 shall not apply
to securities which are not required to bear the legend prescribed by Section
2.1 in accordance with the provisions of that Section.
2.3 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
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2.4 Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of
California, without regard to that state's conflict of laws principles.
2.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
2.6 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.7 Notices. Any notice, consent, authorization or other
communication to be given hereunder shall be in writing and shall be deemed duly
given and received when delivered personally or transmitted by facsimile
transmission with receipt acknowledged by the addressee or three days after
being mailed by first class mail, or the next business day after being deposited
for next-day delivery with a nationally recognized overnight delivery service,
charges and postage prepaid, properly addressed to the party to receive such
notice at the following address for such party (or at such other address as
shall be specified by like notice):
(a) if to the Company, to:
Waste Connections, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Shartsis, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Investors, to the addresses indicated on
Exhibit A.
Unless otherwise provided, any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively given upon personal
delivery to the party to be notified or upon deposit with the United States Post
Office, by registered or certified mail, postage prepaid and addressed to the
party to be notified at the address indicated for such part on the signature
page hereof, or at such other address as such party may designate by ten (10)
days' advance written notice to the other parties.
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2.8 Expenses. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
2.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding, or in the case of
waiver, by the holders of a majority of the Registrable Securities entitled to
exercise the right being waived. Any amendment or waiver effected in accordance
with this Section shall be binding upon each holder of any Registrable
Securities then outstanding, each future holder of all such Registrable
Securities, and the Company.
2.10 Severability. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid or unenforceable, the remainder of this Agreement, or the application of
such provision to persons or circumstances other than those to which it is held
to be invalid or unenforceable, shall not be affected thereby.
2.11 Aggregation of Stock. All shares of Registrable Securities
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
2.12 Entire Agreement. This Agreement contains the entire
agreement of the parties and supersede all prior negotiations, correspondence,
agreements and understandings, written and oral, between or among the parties,
regarding the subject matter hereof.
2.13 Further Assurances. Each party shall execute such other and
further certificates, instruments and other documents as may be necessary and
proper to implement, complete and perfect the transactions contemplated by this
Agreement.
2.14 Interpretation. All parties have been assisted by counsel in
the preparation and negotiation of this Agreement and the transactions
contemplated hereby, and this Agreement shall be construed according to its fair
language. The rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement.
2.15 Termination. This Agreement shall terminate on May 21, 2003.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY: WASTE CONNECTIONS, INC.
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
President & CEO
INVESTOR:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Partnership 84-1
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Managing Partner
▇▇▇▇▇▇▇▇▇▇ Trust Partnership 61-1
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Managing Partner
▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Revocable
Trust U/A 11/18/68
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustees
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Polk Investment Partnership 93-1
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇
Partnership Managers
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust U/A 5/1/67
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust U/A 4/19/69
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustees
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ In Trust
By:
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ W. Price III and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Trust (Established July 17, 1997)
By:
-------------------------------
▇▇▇▇▇▇▇▇ W. Price III &
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Trustees
---------------------------------------
J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
The ▇▇▇▇▇▇▇▇▇▇▇▇ Family Trust, dated 6/18/97
By:
-------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Living Trust, dated
5/17/92
By:
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Trustees
---------------------------------------
J. North ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ Trust fbo ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Trustee
▇. ▇▇▇▇▇▇▇▇ Trust fbo ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Trustee
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▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Revocable Living Trust,
dated 7/27/94
By:
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
Midwest Refrigeration, Inc., Profit-Sharing
Trust Account #31-0121-02-5
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
Midwest Refrigeration, Inc., Profit-Sharing
Trust Account # 31-0121-02-7
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
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▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ 1998 Children's Trust for the benefit
of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By:
-------------------------------
J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇ 1992 Family Trust
By:
-------------------------------
J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust under the
agreement dated 11/16/94
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Custodian for ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ under the California Uniform Transfers
to Minors Act
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Custodian for ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ under the California Uniform
Transfers to Minors Act
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