EXHIBIT 1.02
EXECUTION COPY
ALLIED WASTE INDUSTRIES, INC.
6,000,000 Shares
6.25% Series C Senior Mandatory Convertible Preferred Stock
($0.10 Par Value)
UNDERWRITING AGREEMENT
April 3, 2003
UNDERWRITING AGREEMENT
UBS Warburg
LLC ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Deutsche Bank Securities Inc.
as Representatives
of the several Underwriters
c/o UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Allied Waste Industries, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the underwriters named in Schedule A
annexed hereto (the "UNDERWRITERS"), for whom you are acting as
representative(s) (the "REPRESENTATIVES"), an aggregate of 6,000,000 shares (the
"FIRM SHARES") of 6.25% Series C Senior Mandatory Convertible Preferred Stock,
$0.10 par value (the "PREFERRED STOCK"), of the Company. In addition, solely for
the purpose of covering over-allotments, the Company proposes to grant to the
Underwriters the option to purchase from the Company up to an additional 900,000
shares of Preferred Stock upon the terms and conditions set forth below (the
"ADDITIONAL SHARES"). The Firm Shares and the Additional Shares are hereinafter
collectively sometimes referred to as the "SHARES." The Shares are described in
the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "ACT"), with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3, as amended (File No.
333-101607), including a prospectus, relating to the Shares and the shares of
common stock, par value $0.01 per share, of the Company (the "COMMON STOCK")
issuable by the Company upon conversion of the Preferred Stock (the "COMMON
STOCK SHARES"), which incorporates by reference documents which the Company has
filed or will file in accordance with the provisions of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (collectively,
the "EXCHANGE ACT"). The Company has furnished to you, for use by the
Underwriters and by dealers, copies of a preliminary prospectus and the
documents incorporated by reference therein (together, a "PRELIMINARY
PROSPECTUS") relating to the Shares and the Common Stock Shares. Except where
the context otherwise requires, the registration statement, as amended at the
time of this Agreement, including all documents filed as a part thereof or
incorporated by reference therein, and including any information contained in a
prospectus subsequently filed with the Commission pursuant to Rule 424(b) under
the Act and deemed to be part of the registration statement and also including
any registration statement filed pursuant to Rule 462(b) under the Act, is
herein called the "REGISTRATION STATEMENT," and the prospectus, including all
documents incorporated therein by reference, in the form filed by the Company
with the Commission pursuant to Rule 424(b) under the Act on or before the
second business day after the date hereof (or such earlier time as may be
required under the Act) or, if no such filing is required, the form of final
prospectus included in the Registration Statement at the
time it became effective, is herein called the "PROSPECTUS." As used herein,
"business day" shall mean a day on which the New York Stock Exchange is open for
trading.
1. Agreements to Sell and Purchase.
On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions contained
herein, the Company agrees to issue and sell to the Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company the
aggregate number of Firm Shares set forth opposite the name of such Underwriter
on Schedule A hereto, subject to adjustment in accordance with Section 7 hereof,
at a purchase price of $48.50 per share. The initial public offering price of
the Shares is not in excess of the price recommended by UBS Warburg LLC, acting
in its capacity as a "qualified independent underwriter" within the meaning of
Rule 2720 ("RULE 2720") of the Rules of Conduct of the National Association of
Securities Dealers, Inc. (the "QIU"). The Company is advised by you that the
Underwriters intend (i) to make a public offering of their respective portions
of the Firm Shares as soon after the date hereof as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine; provided that, in the event the public offering price is increased,
such public offering price is not in excess of the price recommended by the QIU.
In addition, the Company hereby grants to the several
Underwriters the option to purchase, and upon the basis of the representations,
warranties and covenants, and subject to the terms and conditions herein set
forth, the Underwriters shall have the right to purchase, severally and not
jointly, from the Company, ratably in accordance with the number of Firm Shares
to be purchased by each of them, all or a portion of the Additional Shares as
may be necessary to cover over-allotments made in connection with the offering
of the Firm Shares, at the same purchase price per share to be paid by the
Underwriters to the Company for the Firm Shares. This option may be exercised by
UBS Warburg LLC, acting in its capacity as an underwriter and not in its
capacity as the QIU ("UBS WARBURG") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("SALOMON")
together, on behalf of the several Underwriters at any time and from time to
time on or before the thirtieth day following the date hereof, by written notice
to the Company. Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date and time being herein referred
to as the "additional time of purchase"); provided, however, that the additional
time of purchase shall not be earlier than the time of purchase (as defined
below) nor earlier than the second business day after the date on which the
option shall have been exercised nor later than the tenth business day after the
date on which the option shall have been exercised. The number of Additional
Shares to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares),
subject to adjustment in accordance with Section 7 hereof.
2. DELIVERY AND PAYMENT.
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(a) Delivery of the documents described in Section 6 hereof with
respect to the purchase of the Shares shall be made at the offices of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other location
as may be mutually acceptable, at 9:00 A.M., New York City time, on the date of
the closing of the purchase of the Firm Shares or the Additional Shares, as the
case may be.
(b) Payment of the purchase price for the Firm Shares shall be
made to the Company by Federal Funds wire transfer, against delivery of the
certificates for the Firm Shares to you through the facilities of The Depository
Trust Company ("DTC") for the respective accounts of the Underwriters. Such
delivery and payment shall be made at 9:00 A.M., New York City time, on April 9,
2003 (or at such other time on the same date or such other date as agreed upon
by you and the Company in writing or unless postponed in accordance with the
provisions of Section 7 hereof). The time at which such delivery and payment are
to be made is hereinafter sometimes called "the time of purchase." Electronic
transfer of the Firm Shares shall be made to you at the time of purchase in such
names and in such denominations as you shall specify.
(c) Payment of the purchase price for the Additional Shares shall
be made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Electronic transfer of the Additional
Shares shall be made to you at the additional time of purchase in such names and
in such denominations as you shall specify.
3. AGREEMENTS OF THE COMPANY.
The Company hereby agrees with the Underwriters as follows:
(a) To file the Prospectus pursuant to Rule 424(b) under the Act
not later than the Commission's close of business on the second business day
following the date of determination of the offering price of the Securities or,
if applicable, such earlier time as may be required by Rule 424(b).
(b) To advise the Representatives promptly and, if requested by
the Representatives, confirm such advice in writing, (i) of the issuance by any
state securities commission of any stop order suspending the qualification or
exemption from qualification of the Shares for offering or sale in any
jurisdiction designated by the Representatives pursuant to Section 3(h) hereof,
or the initiation of any proceeding by any state securities commission or any
other federal or state regulatory authority for such purpose, and (ii) of the
happening of any event during the period referred to in Section 3(f) below that
makes any statement of a material fact made in the Registration Statement or the
Prospectus untrue or that requires any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements therein
not misleading. The Company shall use its best efforts to prevent the issuance
of any stop order or order suspending the qualification or exemption of the
Shares under any state securities or Blue Sky laws and, if at any time any state
securities commission or other federal or state regulatory authority shall issue
an order suspending the qualification or exemption of the Shares under any state
securities or Blue Sky laws, the Company shall use its best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time.
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(c) To furnish the Underwriters, and those persons identified by
the Underwriters to the Company, as many copies of the Prospectus, and any
amendments or supplements thereto, as the Underwriters may from time to time
reasonably request for the time period specified in Section 3(f); in case any
Underwriter is required to deliver a prospectus after the nine-month period
referred to in Section 10(a)(3) of the Act in connection with the sale of the
Shares, the Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the Prospectus as may
be necessary to permit compliance with the requirements of Section 10(a)(3) of
the Act. The Company consents to the use of the Prospectus, and any amendments
and supplements thereto required pursuant hereto, by the Underwriters in
connection with the offering and sale of the Shares.
(d) If it is necessary for any post-effective amendment to the
Registration Statement to be declared effective before the offering of the
Shares may commence, the Company will endeavor to cause such post-effective
amendment to become effective as soon as possible and the Company will advise
you promptly and, if requested by you, will confirm such advice in writing, when
such post-effective amendment to the Registration Statement has become
effective.
(e) To advise you promptly and, if requested by you, confirm such
advice in writing, of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for additional
information with respect thereto, or of notice of institution of proceedings
for, or the entry of a stop order, suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to use its best
efforts to obtain the lifting or removal of such order as soon as possible.
(f) During such period as a prospectus is required to be
delivered under the Act in connection with the offering and sale of the Shares
by the Underwriters, (i) to advise you promptly and, if requested by you, to
confirm such advice in writing, of any proposal to amend or supplement the
Registration Statement or the Prospectus, including by filing any documents that
would be incorporated therein by reference, and to provide you and Underwriters'
counsel copies of any such documents for review and comment a reasonable amount
of time prior to any proposed filing and to file no such amendment or supplement
to which you shall reasonably object in writing and (ii) to prepare promptly
upon the reasonable request of any of the Representatives, any amendment or
supplement to the Registration Statement or the Prospectus which in the
reasonable opinion of the counsel for the Underwriters is believed to be
necessary under the Act.
(g) To advise you promptly, during the period referred to in
Section 3(f) above, if any event shall occur or condition shall exist as a
result of which, it becomes necessary to amend or supplement the Registration
Statement or the Prospectus in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or, if it
is necessary to amend or supplement the Registration Statement or the Prospectus
to comply with the Act, and forthwith to prepare and file with the Commission an
appropriate amendment or supplement to such Registration Statement or Prospectus
so that the statements therein, as so amended or supplemented, will not, in the
light of the circumstances when it is so delivered, be misleading, or so that
such Registration Statement or Prospectus will
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comply with applicable law, and to furnish to the Underwriters and such other
persons as the Underwriters may designate such number of copies thereof as the
Underwriters may reasonably request.
(h) Prior to the sale of the Shares as contemplated hereby, to
cooperate with the Underwriters and counsel to the Underwriters in connection
with the registration or qualification of the Shares for offer and sale to the
Underwriters under the securities or Blue Sky laws of such jurisdictions as the
Representatives may request and to continue such registration or qualification
in effect so long as required and to file such consents to service of process or
other documents as may be necessary in order to effect such registration or
qualification; provided, however, that the Company shall not be required in
connection therewith to qualify as a foreign corporation in any jurisdiction in
which it is not now so qualified or to take any action that would subject it to
general consent to service of process or taxation other than as to matters and
transactions relating to the offering and sale of the Shares, in any
jurisdiction in which it is not now so subject.
(i) Subject to Section 3(f) hereof, to file promptly all reports
and any definitive proxy or information statement required to be filed by the
Company with the Commission in order to comply with the Exchange Act subsequent
to the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares.
(j) If necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act.
(k) To make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy the
provisions of Section 11(a) of the Act) covering a period of twelve months
beginning after the effective date of the Registration Statement (as defined in
Rule 158(c) of the Act) as soon as is reasonably practicable after the
termination of such twelve-month period.
(l) To furnish to its shareholders as soon as practicable after
the end of each fiscal year an annual report (including a consolidated balance
sheet and statements of income, shareholders' equity and cash flow of the
Company and its subsidiaries for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized independent certified
public accountants).
(m) If requested by you, to furnish to you one copy of the
Registration Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto and documents incorporated by
reference therein) and sufficient copies of the foregoing (other than exhibits)
for distribution of a copy to each of the other Underwriters.
(n) To the extent not otherwise available on ▇▇▇▇▇ (as defined in
Regulation S-T), to furnish to you promptly and, upon request, to each of the
other Underwriters (i) for a period of five years from the date of this
Agreement (x) copies of any reports or other communications which the Company
shall send to its stockholders or shall from time to time publish or publicly
disseminate, (y) copies of all annual, quarterly and current reports filed with
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the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may
be designated by the Commission and (z) copies of documents or reports filed
with any national securities exchange on which any class of securities of the
Company is listed and (ii) for the period referenced in Section 3(f) above, such
other information as you may reasonably request regarding the Company or it
subsidiaries.
(o) To apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus.
(p) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of the Company
under this Agreement, including: (i) the fees, disbursements and expenses of
counsel to the Company and accountants of the Company in connection with the
sale and delivery of the Shares to the Underwriters and all other fees and
expenses in connection with the preparation, printing, filing and distribution
of the Registration Statement, the Preliminary Prospectus, the Prospectus, and
all amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Underwriters and persons designated by it in the quantities specified herein,
(ii) all costs and expenses related to the transfer and delivery of the Shares
to the Underwriters, including any transfer or other taxes payable thereon,
(iii) all costs of printing or producing this Agreement and any other agreements
or documents in connection with the offering, purchase, sale or delivery of the
Shares, (iv) all expenses in connection with the registration or qualification
of the Shares for offer and sale under the securities or Blue Sky laws of the
several states and all costs of printing or producing any Blue Sky memoranda in
connection therewith (including the filing fees and reasonable fees and
disbursements of counsel for the Underwriters in connection with such
registration or qualification and memoranda relating thereto), (v) the cost of
printing certificates representing the Shares, (vi) all expenses and listing
fees in connection with the listing of the Shares and the Common Stock Shares on
any securities exchange or qualification of the Shares and the Common Stock
Shares for listing on the New York Stock Exchange and any registration thereof
under the Exchange Act, (vii) the costs and charges of any transfer agent,
paying agent, registrar and/or depositary (including DTC), and (viii) all other
costs and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that, except as specifically provided in this Section, and
Sections 5 and 9 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Shares by them and any advertising expenses connected with any offers
they may make.
(q) Not to sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, any Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or warrants or
other rights to purchase Common Stock or any other securities of the Company
that are substantially similar to Common Stock, or file or cause to be declared
effective a registration statement under the Act relating to the offer and sale
of any shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or other rights to purchase Common Stock or any
other securities of the Company that are substantially similar to Common Stock
for a period of 90 days after the date hereof (the "LOCK-
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UP PERIOD"), without the prior written consent of UBS Warburg and Salomon,
except for (i) the registration of the Shares and the sales to the Underwriters
pursuant to this Agreement, (ii) issuances of Common Stock upon the exercise of
options or warrants disclosed as outstanding in the Registration Statement and
the Prospectus, (iii) the issuance of employee stock options not exercisable
during the Lock-Up Period pursuant to stock option plans described in the
Registration Statement and the Prospectus, (iv) the registration of or sale to
the Underwriters of shares of Common Stock pursuant to the proposed underwriting
agreement (the "COMMON STOCK UNDERWRITING AGREEMENT") to be entered into by the
Company and UBS Warburg, Salomon and Credit Suisse First Boston LLC, as
representatives of the several underwriters named therein (for purposes of this
clause (iv) only, "Common Stock" and "Underwriters" are used as defined in the
Common Stock Underwriting Agreement), (v) issuances of Common Stock pursuant to
the terms of the Company's series A senior convertible preferred stock or the
Company's series B junior participating preferred stock and (vi) any issuance of
Common Stock in connection with a bona fide acquisition of assets or of an
entity, in each case, useful in the business of the Company and its
subsidiaries, not to exceed $60 million in the aggregate (valued at the time of
issuance) for all such issuances pursuant to this clause (vi), so long as any
shares of Common Stock so issued are restricted from being transferred until the
expiration of the 90 day period described in this paragraph.
(r) To use its best efforts to cause the Shares and the Common
Stock Shares to be listed on the New York Stock Exchange.
(s) To maintain a transfer agent and paying agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
for the Preferred Stock.
(t) At any time that the number of authorized but unissued shares
of Common Stock (or shares of Common Stock held in treasury and available for
such purpose) shall be less than the aggregate number of shares of Common Stock
into which the Shares then outstanding shall be convertible, to take such action
as is necessary to increase the number of shares which the Company is authorized
to issue so that the Company will have sufficient number of shares of Common
Stock available for conversion of the Shares then outstanding.
(u) To use its best efforts to do and perform all things required
or necessary to be done and performed under this Agreement by it prior to the
time of purchase and to satisfy all conditions precedent to the delivery of the
Shares.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
As of the date hereof, the Company represents and warrants to,
and agrees with, the Underwriters that:
(a) The Registration Statement has been declared effective under
the Act; no stop order of the Commission preventing or suspending the use of the
Preliminary Prospectus or the effectiveness of the Registration Statement has
been issued and no proceedings for such purpose have been instituted or, to the
Company's knowledge after due inquiry, are threatened by the Commission; the
Preliminary Prospectus, at the time of filing thereof, complied in all material
respects to the requirements of the Act; the Registration Statement complied
when it
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became effective, complies and will comply, at the time of purchase and any
additional time of purchase, in all material respects with the requirements of
the Act and the Prospectus will comply, as of its date and at the time of
purchase and any additional times of purchase, in all material respects with the
requirements of the Act; the conditions to the use of Form S-3 have been
satisfied; the Registration Statement did not when it became effective, does not
and will not, at the time of purchase and any additional time of purchase,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and the Prospectus will not, as of its date and at the time of
purchase and any additional time of purchase, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the Company makes
no warranty or representation with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in conformity with
information concerning an Underwriter and furnished in writing by or on behalf
of such Underwriter through you to the Company expressly for use in the
Registration Statement or the Prospectus; the documents incorporated by
reference in the Preliminary Prospectus, the Registration Statement and the
Prospectus, at the time they became effective or were filed with the Commission,
complied in all material respects with the requirements of the Act or the
Exchange Act as applicable; and the Company has not distributed and will not
distribute any offering material in connection with the offering or sale of the
Shares other than the Registration Statement, the Preliminary Prospectus and the
Prospectus.
(b) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Registration Statement
and the Prospectus and to own, lease and operate its properties, and each is
duly qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(c) As of the date of this Agreement, the Company has an
authorized and outstanding capitalization as set forth under the heading
"Actual" in the section of the Registration Statement and the Prospectus
entitled "Capitalization" and, as of the time of purchase, the Company shall
have an authorized and outstanding capitalization as set forth under the heading
"As adjusted for this offering" in the section of the Registration Statement and
the Prospectus entitled "Capitalization"; all outstanding shares of capital
stock of the Company have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any preemptive or similar rights.
(d) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of the Company. All of the outstanding shares
of capital stock of each of the subsidiaries of the Company have been duly
authorized and validly issued and are fully paid and non-assessable, and are
owned by the Company, directly or indirectly through one or more subsidiaries,
free and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature (each, a "LIEN"), except for (i) Liens disclosed in the
Registration Statement or the
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Prospectus and (ii) such other Liens which could not reasonably be expected to
have a Material Adverse Effect.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The resolution set forth in the certificate of designation of
the Shares, the form of which is attached hereto as Exhibit A (the "CERTIFICATE
OF Designation"), has been duly adopted by the Board of Directors of the
Company, has not been modified, amended or revoked, is in full force and effect
on the date hereof and is the only resolution adopted by the Board of Directors
of the Company or any committee thereof relating to the number of authorized
shares of or the rights, powers and preferences, and the qualifications,
limitations and restrictions thereof, of the Shares; the execution of the
Certificate of Designation by the Company and the filing of the Certificate of
Designation with the Secretary of State of the State of Delaware (the "SECRETARY
OF STATE") on behalf of the Company have been duly authorized by the Board of
Directors of the Company.
(g) The Shares have been duly authorized and, when issued and
delivered against payment therefor as provided herein, will have been duly and
validly issued, fully paid and non-assessable and free of statutory and
contractual preemptive rights, resale rights, rights of first refusal and
similar rights. The Certificate of Designation and the capital stock of the
Company, including the Shares and the Common Stock Shares, will conform in all
material respects to the description thereof contained in the Registration
Statement and the Prospectus.
(h) The Common Stock Shares have been duly authorized and validly
reserved for issuance upon conversion of the Preferred Stock and are free of
statutory and contractual preemptive rights, resale rights, rights of first
refusal and similar rights and are sufficient in number to meet current
conversion requirements, and such Common Stock Shares when so issued upon such
conversion in accordance with the terms of the Certificate of Designation, will
be validly issued and fully paid and non-assessable.
(i) Neither the Company nor any of its subsidiaries is (x) in
violation of its respective charter or by-laws or (y) in default in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound, which
violation or default, in the case of this clause (y), could reasonably be
expected to have a Material Adverse Effect.
(j) The execution, delivery and performance of this Agreement by
the Company, compliance by the Company with all provisions hereof, the filing of
the Certificate of Designation with the Secretary of State, the issuance and
sale of the Shares, the issuance of the Common Stock Shares and the consummation
of the transactions contemplated hereby and by the Registration Statement and
the Prospectus will not (i) require any consent, approval, authorization or
other order of, or qualification with, any court or governmental body or agency
(other than registration of the Shares and the Common Stock Shares under the
Act, which has been or will be effected, and except such as may be required
under the securities or Blue Sky
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laws of the various states or under the rules and regulations of the NASD), (ii)
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of its subsidiaries,
(iii) conflict with or constitute a breach of any of the terms or provisions of,
or a default under any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or their respective
property is bound, or, in the case of this clause (iii), which violation or
default could reasonably be expected to have a Material Adverse Effect, (iv)
violate or conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its subsidiaries or their respective
property, which violation or conflict could reasonably be expected to have a
Material Adverse Effect, (v) result in the imposition or creation of (or the
obligation to create or impose) a Lien under, any agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound which Lien
could reasonably be expected to have a Material Adverse Effect, or (vi) result
in the termination, suspension or revocation of any Authorization (as defined
below) of the Company or any of its subsidiaries or result in any other
impairment of the rights of the holder of any such Authorization which
termination, suspension or revocation could reasonably be expected to have a
Material Adverse Effect.
(k) Except as set forth in the Registration Statement and the
Prospectus, (i) no person has the right, contractual or otherwise, to cause the
Company to issue or sell to it any shares of Common Stock or shares of any other
capital stock or other equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or other rights to
purchase any shares of Common Stock or shares of any other capital stock or
other equity interests of the Company, and (iii) no person has the right to act
as an underwriter or as a financial advisor to the Company in connection with
the offer and sale of the Shares, in the case of each of the foregoing clauses
(i), (ii) and (iii), whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby or
otherwise; no person has the right, contractual or otherwise, to cause the
Company to register under the Act any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, or to include any
such shares or interests in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated thereby or
otherwise.
(l) Except as set forth in the Registration Statement and the
Prospectus, there are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is or could be a party or to
which any of their respective property is or could be subject, which might
result, singly or in the aggregate, in a Material Adverse Effect. All legal or
governmental proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses, agreements, leases or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have been
so described or filed as required.
(m) Except as set forth in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"),
10
or any provisions of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder, except for such violations which, singly
or in the aggregate, would not have a Material Adverse Effect.
(n) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(o) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Company and
its subsidiaries is in compliance with all the terms and conditions thereof and
with the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; except where such failure to be valid and
in full force and effect or to be in compliance, the occurrence of any such
event or the presence of any such restriction would not, singly or in the
aggregate, have a Material Adverse Effect.
(p) The accountants, PricewaterhouseCoopers LLP, who have
certified the consolidated financial statements and supporting schedules as of
December 31, 2002 and December 31, 2001 and for each of the two years in the
period ended December 31, 2002, included and incorporated by reference in the
Registration Statement and the Prospectus, are independent public accountants
with respect to the Company, as required by the Act and the Exchange Act, and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified the consolidated financial statements
for the year ended December 31, 2000, included and incorporated by reference in
the Offering Memorandum, were, at the time of the certification, independent
public accountants with respect to the Company, as required by the Act and the
Exchange Act.
(q) The historical financial statements, together with related
schedules and notes forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated in the
Registration Statement and the Prospectus at the respective dates or for the
respective periods to which they apply; such statements and related schedules
and notes have been prepared in compliance with the requirements of the Act and
in accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; the other
financial and statistical information and data set forth in the Registration
11
Statement and the Prospectus (and any amendment or supplement thereto) are, in
all material respects, accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company; there
are no financial statements that are required to be included in the Registration
Statement and the Prospectus that are not included as required; and the Company
and its subsidiaries do not have any liabilities or obligations, direct or
contingent (including any off-balance sheet obligations) that would result in a
Material Adverse Effect, not disclosed in the Registration Statement and the
Prospectus.
(r) The Company is not, and, after giving effect to the offering
and sale of the Shares and the application of the net proceeds thereof as
described in the Prospectus, will not be, an "investment company," as such term
is defined in the Investment Company Act of 1940, as amended.
(s) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act has imposed
(or has informed the Company that it is considering imposing) any condition
(financial or otherwise) on the Company's retaining any rating assigned to the
Company or any securities of the Company.
(t) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
other than as set forth in the Registration Statement or the Prospectus, (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not occurred any transaction
which is material to the Company and its subsidiaries, taken as a whole, (iii)
there has not been any change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries, (iv) there has not been any dividend or
distribution of any kind declared, paid or made on the capital stock of the
Company and (v) neither the Company nor any of its subsidiaries has incurred any
material liability or obligation, direct or contingent.
(u) The Company has obtained for the benefit of the Underwriters
the agreement (a "LOCK-UP AGREEMENT"), in the form previously agreed upon by the
Company and UBS Warburg and Salomon, of each of its directors and officers and
each stockholder named in Exhibit B hereto.
(v) The Company and each of its subsidiaries has good and
marketable title to all property (real and personal) described in the
Registration Statement and in the Prospectus as being owned by each of them,
free and clear of all Liens, except for (i) Liens disclosed in the Registration
Statement or the Prospectus and (ii) such other Liens which could not reasonably
be expected to have a Material Adverse Effect; all the material property
described in the Registration Statement and the Prospectus as being held under
lease by the Company or a subsidiary is held thereby under valid, subsisting and
enforceable leases with such exceptions as would not have a Material Adverse
Effect.
(w) Neither the Company nor any of its subsidiaries is engaged in
any unfair labor practice; except for matters which would not, individually or
in the aggregate, have a
12
Material Adverse Effect, (i) there is (A) no unfair labor practice complaint
pending or, to the Company's knowledge after due inquiry, threatened against the
Company or any of its subsidiaries before the National Labor Relations Board,
and no grievance or arbitration proceeding arising out of or under collective
bargaining agreements is pending or threatened, (B) no strike, labor dispute,
slowdown or stoppage pending or, to the Company's knowledge after due inquiry,
threatened against the Company or any of its subsidiaries and (C) no union
representation dispute currently existing concerning the employees of the
Company or any of its subsidiaries, and (ii) to the Company's knowledge after
due inquiry, (A) no union organizing activities are currently taking place
concerning the employees of the Company or any of its subsidiaries and (B) there
has been no violation of any federal, state, local or foreign law relating to
discrimination in the hiring, promotion or pay of employees, any applicable wage
or hour laws or any provision of the Employee Retirement Income Security Act of
1974 ("ERISA") or the rules and regulations promulgated thereunder concerning
the employees of the Company or any of its subsidiaries.
(x) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(y) The Company has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-14 and 15d-14 under the
Exchange Act); such disclosure controls and procedures are designed to ensure
that material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company's Chief Executive Officer and its
Chief Financial Officer by others within those entities; the Company's auditors
and the Audit Committee of the Board of Directors have been advised of: (i) any
significant deficiencies in the design or operation of internal controls which
could adversely affect the Company's ability to record, process, summarize, and
report financial data; and (ii) any fraud, whether or not material, that
involves management or other employees who have a role in the Company's internal
controls; any material weaknesses in internal controls have been identified for
the Company's auditors; and since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses.
(z) The operations of the Company and its subsidiaries are and
have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the "MONEY LAUNDERING LAWS") and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is
13
pending or, to the best knowledge of the Company, threatened that would have a
Material Adverse Effect.
(aa) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate
(as defined in Rule 405 of Regulation C of the Act) of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department ("OFAC"); and
the Company will not directly or indirectly use the proceeds of the Offering, or
lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(bb) Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge after due inquiry, any employee or agent of the Company or
its subsidiaries has made any payment of funds of the Company or its
subsidiaries or received or retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a character
required to be disclosed in the Registration Statement or the Prospectus.
(cc) Neither the Company nor any of its subsidiaries nor, to the
best knowledge of the Company, any of their respective directors, officers,
affiliates or controlling persons has taken, directly or indirectly, any action
designed, or which has constituted or might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares.
(dd) To the Company's knowledge after due inquiry, there are no
affiliations or associations between any member of the NASD and any of the
Company's officers, directors or 5% or greater securityholders, except as set
forth in the Registration Statement and the Prospectus.
(ee) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be deemed to
be a representation and warranty by the Company to the Underwriters as to the
matters covered thereby.
(ff) No action has been taken and no law, statute, rule or
regulation or order has been enacted, adopted or issued by any governmental
agency or body which prevents the execution, delivery and performance of this
Agreement by the Company, the filing of the Certificate of Designation with the
Secretary of State or the issuance of the Shares or the Common Stock Shares, or
suspends the sale of the Shares in any jurisdiction referred to in Section 3(h);
and no injunction, restraining order or other order or relief of any nature by a
federal or state court or other tribunal of competent jurisdiction has been
issued with respect to the Company or any of its subsidiaries which would
prevent or suspend the issuance or sale of the Shares or the issuance of the
Common Stock Shares in any jurisdiction referred to in Section 3(h).
The Company acknowledges that the Underwriters and, for purposes
of the opinions to be delivered to the Underwriters pursuant to Section 6
hereof, counsel to the
14
Company and counsel to the Underwriters, will rely upon the accuracy and truth
of the foregoing representations and hereby consents to such reliance.
5. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, its officers, affiliates and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any
reasonable legal or other expenses incurred in connection with investigating or
defending any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company becoming effective after the
date of this Agreement) or in a Prospectus (the term Prospectus for the purpose
of this Section 5 being deemed to include any Preliminary Prospectus, the
Prospectus and the Prospectus as amended or supplemented by the Company) or
caused by any omission or alleged omission to state a material fact required to
be stated in either such Registration Statement or such Prospectus or necessary
to make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to such Underwriter furnished in writing to the Company by
such Underwriter for use in such Registration Statement or such Prospectus.
The Company also agrees to indemnify the QIU, its affiliates,
directors, its officers and each person, if any, who controls the QIU within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any reasonable legal or other expenses incurred
in connection with investigating or defending any matter, including any action
that could give rise to any such losses, claims, damages, liabilities or
judgments) incurred as a result of the QIU's participation as a "qualified
independent underwriter" within the meaning of Rule 2720 in connection with the
offering of the Shares; provided that the foregoing indemnity will not, as to
any such person, apply to losses, claims, damages, liabilities or judgments to
the extent they are found in a final, non-appealable adjudication of a court of
competent jurisdiction to have resulted from such person's willful misconduct or
gross negligence.
(b) The Underwriters, severally and not jointly, agree to
indemnify and hold harmless the Company and its directors and officers who have
signed the Registration Statement and each person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Company, to the same extent as the foregoing indemnity from the Company to each
Underwriter but only with reference to information relating to such Underwriter
furnished in writing to the Company by such Underwriter expressly for use in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or a Prospectus. The Company
acknowledges that the statements set forth in (i) the last paragraph of the
cover page of the Prospectus regarding delivery of the Shares and (ii) under the
heading "Underwriting," (A) the first paragraph under the sub-heading
"Commissions and Discounts" and (B) the paragraphs under the sub-heading
15
"Price Stabilization, Short Positions," in the Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in the Prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 5(a) or 5(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all reasonable fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 5(a) and 5(b), the Underwriters shall not be
required to assume the defense of such action pursuant to this Section 5(c), but
may employ separate counsel and participate in the defense thereof, but the fees
and expenses of such counsel, except as provided below, shall be at the expense
of the Underwriters). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such
reasonable fees and expenses shall be reimbursed as they are incurred; provided,
however, that if indemnity may be sought pursuant to the second paragraph of
5(a) above in respect of such proceeding, then in addition to such separate firm
of the Underwriters, their officers, directors, affiliates and such control
persons of the Underwriters, the indemnifying person shall be liable for the
fees and expenses of not more than one separate firm (in addition to any local
counsel) for the QIU, its affiliates and all persons, if any, who control the
QIU within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act. Such firm shall be designated in writing by UBS Warburg and
Salomon, in the case of the parties indemnified pursuant to Section 5(a), and by
the Company, in the case of parties indemnified pursuant to Section 5(b). The
indemnifying party shall not be obligated to indemnify and hold harmless any
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action effected
without the indemnifying party's written consent. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a
16
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this
Section 5 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters or the QIU, as the case may be,
on the other hand, from the offering of the Shares or (ii) if the allocation
provided by clause 5(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 5(d)(i) above but also the relative fault of the Company, on the
one hand, and the Underwriters or the QIU, as the case may be, on the other
hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on the
one hand, and the Underwriters or the QIU, as the case may be, on the other
hand, shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares (after underwriting discounts and commissions,
but before deducting expenses) received by the Company, and the total
underwriting discounts and commissions received by the Underwriters or the fee,
if any, to be received by the QIU, as the case may be, bear to the aggregate
public offering price of the Shares, in each case as set forth in this
Agreement. The relative fault of the Company, on the one hand, and the
Underwriters or the QIU, as the case may be, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, on the one hand,
or the Underwriters or the QIU, as the case may be, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation even if the Underwriters were treated as one entity for such
purpose or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 5, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total discounts and commissions received by such Underwriter exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 5(d) are several in
proportion to their respective underwriting commitments and not joint.
17
(e) The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
6. CONDITIONS OF UNDERWRITER'S OBLIGATIONS.
The obligations of the Underwriters to purchase the Shares under
this Agreement are subject to the satisfaction of each of the following
conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct at the time of purchase
and, if applicable, at the additional time of purchase, with the same force and
effect as if made at the time of purchase and, if applicable, at the additional
time of purchase.
(b) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
change that does not indicate the direction of the possible change in, any
rating of the Company or any securities of the Company (including, without
limitation, the placing of any of the foregoing ratings on credit watch with
negative or developing implications or under review with an uncertain direction)
by any "nationally recognized statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the Act and (ii) there shall not
have occurred any change, nor shall any notice have been given of any potential
or intended negative change, in the outlook for any rating of the Company or any
securities of the Company by any such rating organization.
(c) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 3(a) of this
Agreement and no amendment or supplement to the Registration Statement or the
Prospectus, including documents deemed to be incorporated by reference therein,
shall have been filed to which you object in writing.
(d) Prior to the time of purchase, and, if applicable, the
additional time of purchase, (i) no stop order with respect to the effectiveness
of the Registration Statement shall have been issued under the Act or
proceedings initiated under Section 8(d) or 8(e) of the Act.
(e) Between the time of execution of this Agreement and the time
of purchase or the additional time of purchase, as the case may be, other than
as set forth in the Registration Statement or the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 6(e)(i),
6(e)(ii) or 6(e)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market
18
the Shares on the terms and in the manner contemplated in the Registration
Statement and the Prospectus.
(f) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, a certificate dated the time of
purchase or the additional time of purchase, as the case may be, signed by the
Chief Executive Officer and the Chief Financial Officer of the Company,
confirming the matters set forth in Sections 6(a) and 6(b) of this Agreement and
stating that (i) they have reviewed the Registration Statement and the
Prospectus and (ii) the Company has complied with all the agreements and
satisfied all of the conditions herein contained and required to be complied
with or satisfied on or prior to the time of purchase or the additional time of
purchase as the case may be.
(g) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, an opinion (satisfactory to you
and counsel for the Underwriters), dated the time of purchase or the additional
time of purchase, as the case may be, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Company, in the form previously agreed to by ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and counsel
for the Underwriters and an opinion of ▇▇▇▇▇▇ ▇▇▇▇, Vice President and General
Counsel of the Company, in the form previously agreed to by the Company and
counsel for the Underwriters.
The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP described in Section 6(g)
above shall be rendered to you at the request of the Company and shall so state
therein.
(h) The Underwriters shall have received at the time of purchase
and, if applicable, at the additional time of purchase, an opinion, dated the
time of purchase or the additional time of purchase, as the case may be, of
Cravath, Swaine & ▇▇▇▇▇, counsel for the Underwriters, in form and substance
reasonably satisfactory to the Underwriters.
(i) The Underwriters shall have received, at the time this
Agreement is executed and at the time of purchase and, if applicable, the
additional time of purchase, letters dated, respectively, the date hereof, the
time of purchase and, if applicable, the additional time of purchase, in form
and substance satisfactory to the Underwriters from PricewaterhouseCoopers LLP,
independent public accountants, containing the information and statements of the
type ordinarily included in accountants' "comfort letters" to the Underwriters
with respect to the financial statements and certain financial information
contained and incorporated by reference in the Registration Statement and the
Prospectus.
(j) The Shares and the Common Stock Shares shall each have been
approved for listing on the New York Stock Exchange, in each case, subject only
to notice of issuance at or prior to the time of purchase or the additional time
of purchase, as the case may be.
(k) You shall have received signed Lock-up Agreements referred to
in Section 4(u) hereof.
(l) The Certificate of Designation shall have been duly filed
with the Secretary of State and shall have become effective under the General
Corporation Law.
19
(m) The Company shall not have failed at or prior to the time of
purchase or the additional time of purchase, as the case may be, to perform or
comply with any of the agreements herein contained and required to be performed
or complied with by the Company at or prior to the time of purchase or the
additional time of purchase, as the case may be.
7. EFFECTIVENESS OF AGREEMENT AND TERMINATION.
This Agreement shall become effective upon the execution and
delivery of this Agreement by the parties hereto.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of UBS Warburg and Salomon if
(x) since the time of the execution of this Agreement or the earlier respective
dates as of which information is given in the Registration Statement and the
Prospectus (exclusive of any amendments or supplements thereto), there has been
any material adverse change or any development involving a prospective material
adverse change in the business, properties, management, financial condition or
results of operation of the Company and its subsidiaries taken as a whole, which
would, in each of UBS Warburg's and Salomon's judgment, make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Registration Statement and the
Prospectus (exclusive of any amendments or supplements thereto), or (y) there
shall have occurred: (i) any attack on, outbreak or escalation of hostilities or
act of terrorism involving the United States, any declaration of war by Congress
or any other national or international calamity or emergency if, in each of UBS
Warburg's and Salomon's judgment, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with the public offering or the delivery of the Shares,
(ii) the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago
Board of Trade or the Nasdaq National Market or limitation on prices for
securities or other instruments on any such exchange or the Nasdaq National
Market, (iii) the suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in each of UBS
Warburg's and Salomon's judgment materially and adversely affects, or will
materially and adversely affect, the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole, (v)
the declaration of a banking moratorium by either federal or New York State
authorities, (vi) any change in United States or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would, in each of UBS Warburg's and Salomon's judgment, be likely to
prejudice materially the success of the proposed issue, sale or distribution of
the Shares, whether in the primary market or in respect of dealings in the
secondary market or (vii) any major disruption of settlements of securities or
clearance services in the United States.
Subject to Section 6 hereof and the second paragraph of this
Section 7, if any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares which it or they have agreed to purchase hereunder on
such date and the aggregate number of the Firm Shares which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
20
purchase is not more than one-tenth of the aggregate number of Firm Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule A bears to the aggregate number of Firm
Shares which all the non-defaulting Underwriters have agreed to purchase, or in
such other proportion as you may specify, to purchase the Firm Shares which such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed or
refused to purchase on such date; provided that in no event shall the aggregate
number of Firm Shares which any Underwriter has agreed to purchase pursuant to
Section 1 hereof be increased pursuant to this Section 7 by an amount in excess
of one-ninth of such number of Firm Shares without the written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or refuse to purchase
the Firm Shares and the aggregate number of Firm Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased by all Underwriters and arrangements satisfactory to the
Underwriters and the Company for purchase of such the Firm Shares are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter and the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the time of purchase, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 7 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
8. NOTICES.
Notices given pursuant to any provision of this Agreement shall
be addressed as follows: (i) if to the Company, to ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇ and (ii) if to the
Underwriters, c/o UBS Warburg LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS.
The respective indemnities, contribution agreements,
representations and warranties and agreements of the Company and the
Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive the issuance and
delivery of the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of the Underwriters, the officers,
directors or affiliates of the Underwriters, any person who controls the
Underwriters within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, or by or on behalf of the Company, the officers who have signed
the Registration Statement, directors of the Company, or any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, (ii) acceptance of the Shares and payment for them hereunder and
(iii) termination of this Agreement.
21
If for any reason the Shares are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 7), the Company agrees to reimburse the
Underwriters for all reasonable out-of-pocket expenses (including the reasonable
fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 3(p) hereof. The Company also
agrees to reimburse the Underwriters and its officers, directors and each
person, if any, who controls the Underwriters within the meaning of Section 15
of the Act or Section 20 of the Exchange Act for any and all reasonable fees and
expenses (including without limitation the reasonable fees and expenses of
counsel) incurred by them in connection with enforcing their rights under this
Agreement (including without limitation its rights under Section 5).
10. SUCCESSORS AND ASSIGNS.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the directors of the Company and their respective successors
and assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include a purchaser of any of the Shares
from the Underwriters merely because of such purchase.
11. GOVERNING LAW.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
12. SUBMISSION TO JURISDICTION.
The Company hereby submits to the non-exclusive jurisdiction of
any court of the State of New York located in the City and County of New York or
in the United States District Court for the Southern District of New York with
respect to any claim, counterclaim or dispute of any kind or nature whatsoever
arising out of or in any way relating to this Agreement, directly or indirectly
(a "Claim"), which courts shall have jurisdiction over the adjudication of such
matters, and the Company consents to personal service with respect thereto. The
Company hereby consents to personal jurisdiction, service and venue in any court
in which any Claim is brought by any third party against UBS Warburg, the other
Underwriters or any indemnified party. Each of UBS Warburg, the other
Underwriters and the Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates) waives all right
to trial by jury in any action, proceeding or counterclaim (whether based upon
contract, tort or otherwise) in any way arising out of or relating to this
Agreement. The Company agrees that a final judgment in any such action,
proceeding or counterclaim brought in any such court shall be conclusive and
binding upon the Company and may be enforced in any other courts to the
jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
13. COUNTERPARTS.
22
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
14. MISCELLANEOUS.
UBS Warburg, an indirect, wholly owned subsidiary of UBS AG, is
not a bank and is separate from any affiliated bank, including any U.S. branch
or agency of UBS AG. Because UBS Warburg is a separately incorporated entity, it
is solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by UBS Warburg are not deposits, are not
insured by the Federal Deposit Insurance Corporation, are not guaranteed by a
branch or agency, and are not otherwise an obligation or responsibility of a
branch or agency.
A lending affiliate of UBS Warburg may have lending relationships
with issuers of securities underwritten or privately placed by UBS Warburg. To
the extent required under the securities laws, prospectuses and other disclosure
documents for securities underwritten or privately placed by UBS Warburg will
disclose the existence of any such lending relationships and whether the
proceeds of the issue will be used to repay debts owed to affiliates of UBS
Warburg.
15. QUALIFIED INDEPENDENT UNDERWRITER.
(a) The Company hereby confirms its engagement of the services of the
QIU as, and the QIU hereby confirms its agreement with the Company to render
services as, a "qualified independent underwriter" within the meaning of Rule
2720 with respect to the offering and sale of the Shares.
(b) The QIU hereby represents and warrants to, and agrees with, the
Company and the Underwriters that with respect to the offering and sale of the
Shares as described in the Prospectus:
(i) The QIU constitutes a "qualified independent
underwriter" within the meaning of Rule 2720;
(ii) The QIU has conducted due diligence in respect
thereto;
(iii) The QIU has undertaken the legal
responsibilities and liabilities of an underwriter under the Act
specifically including those inherent in Section 11 thereof;
(iv) The QIU recommends, as of the date of the
execution and delivery of this Agreement, that the yield on the
Shares shall not be less than 6.25% and the conversion premium on
the Shares shall not be greater than 22.05%; and
(v) Subject to the provisions of Section 6 hereof,
the QIU will furnish to the Underwriters on the Closing Date a
letter, dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect of clauses (i)
through (iv) above.
23
(c) The QIU hereby agrees with the Company and the Underwriters
that, as part of its services hereunder, in the event of any amendment or
supplement to the Prospectus, the QIU will render services as a "qualified
independent underwriter" within the meaning of Rule 2720 with respect to the
offering and sale of the Shares as described in the Prospectus as so amended or
supplemented that are substantially the same as those services being rendered
with respect to the offering and sale of the Shares as described in the
Prospectus (including those described in subsection (b) above).
(d) The Company and the QIU agree that the QIU will provide its
services in its capacity as QIU hereunder without compensation other than such
compensation that the QIU may receive as an Underwriter hereunder.
(e) The QIU hereby consents to the references to it as set forth
under the caption "Underwriting" in the Prospectus and in any amendment or
supplement thereto made in accordance with Section 3 hereof.
24
Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Underwriters.
Very truly yours,
ALLIED WASTE INDUSTRIES, INC.
By:
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
[SIGNATURES CONTINUE ON NEXT PAGE]
\
25
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written by UBS Warburg LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. on
behalf of the Underwriters.
UBS WARBURG LLC
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
--------------------------
Name:
Title:
26
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written by UBS Warburg LLC, solely in its capacity as a
"qualified independent underwriter" within the meaning of Rule 2720 of the Rules
of Conduct of the National Association of Securities Dealers, Inc.
UBS WARBURG LLC
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
27
SCHEDULE A
UNDERWRITERS
Underwriter Number of Firm Shares
----------- ---------------------
UBS WARBURG LLC 1,639,200
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC. 1,639,200
DEUTSCHE BANK SECURITIES INC. 1,211,400
BNP PARIBAS SECURITIES CORP. 400,300
CREDIT LYONNAIS SECURITIES (USA) CORP. 400,300
SCOTIA CAPITAL (USA) INC. 400,300
BANC ONE CAPITAL MARKETS, INC. 309,300
---------
Total.......................................... 6,000,000
SA-1
SCHEDULE B
SUBSIDIARIES
"-" Indicates Equity Interest Only
3003304 Nova Scotia Company Allied Waste Systems of New Jersey, LLC
572060 B.C. Ltd. Allied Waste Systems, Inc. (DE corp.) *
AAWI, Inc. Allied Waste Transportation, Inc. *
Abilene Landfill TX, LP American Disposal Services of Illinois, Inc.
Action Disposal, Inc. American Disposal Services of Kansas, Inc.
▇▇▇▇▇▇ Landfill, Inc. American Disposal Services of Missouri, Inc.
ADS of Illinois, Inc. American Disposal Services of New Jersey, Inc.
ADS, Inc. American Disposal Services of West Virginia,
Agri-tech, Inc. of Oregon Inc.
Alabama Recycling Services, Inc. American Disposal Services, Inc.
Alaska Street Associates, Inc. American Disposal Transfer Services of Illinois,
Albany-Lebanon Sanitation, Inc. Inc.
Allied Acquisition Pennsylvania, Inc. American Materials Recycling Corp.
Allied Acquisition Two, Inc. American Sanitation, Inc.
Allied Enviro Engineering, Inc. (TX corp.) American Transfer Company, Inc.
Allied Enviroengineering, Inc. (DE corp.) ▇▇▇▇▇▇▇▇ Regional Landfill, LLC
Allied Gas Recovery Systems, L.L.C. Anson County Landfill NC, LLC
Allied Nova Scotia, Inc. Apache Junction Landfill Corporation
Allied Services, LLC Arbor Hills Holdings L.L.C.-
Allied Transfer Systems of New Jersey, LLC Area Disposal Inc.
Allied Waste Alabama, Inc. Atlantic Waste Holding Company, Inc.
Allied Waste Company, Inc. Attwoods Holdings GmbH
Allied Waste Hauling of Georgia, Inc. Attwoods of North America, Inc.
Allied Waste Holdings (Canada) Ltd. Attwoods Umweltschutz GmbH
Allied Waste Industries (Arizona), Inc. Automated Modular Systems, Inc.
Allied Waste Industries (New Mexico), Inc. Autoshred, Inc.
Allied Waste Industries (Southwest), Inc. AWIN Leasing Company, Inc.
Allied Waste Industries of Georgia, Inc. AWIN Leasing II, LLC
Allied Waste Industries of Illinois, Inc. AWIN Management, Inc.
Allied Waste Industries of Northwest Indiana, Belleville Landfill, Inc.
Inc. BFGSI Series 1997-A Trust-
Allied Waste Industries of Tennessee, Inc. BFGSI, LLC-
Allied Waste Landfill Holdings, Inc. BFI Argentina, S.A.
Allied Waste North America, Inc. * BFI Atlantic GmbH
Allied Waste of California, Inc. BFI Atlantic, Inc.
Allied Waste of Long Island, Inc. BFI Energie Inc.
Allied Waste of New Jersey, Inc. BFI Energy Systems of Albany, Inc.
Allied Waste of New Jersey-New York, LLC BFI Energy Systems of Boston, Inc.
Allied Waste Rural Sanitation, Inc. BFI Energy Systems of Delaware County, Inc.
Allied Waste Services, Inc. (TX corp.) BFI Energy Systems of Essex County, Inc.
Allied Waste Sycamore Landfill, LLC BFI Energy Systems of Hempstead, Inc.
Allied Waste Systems (Texas) Inc. BFI Energy Systems of Niagara II, Inc.
Allied Waste Systems Holdings, Inc. BFI Energy Systems of Niagara, Inc.
SB-1
BFI Energy Systems of Plymouth, Inc. Bridgeton Landfill, LLC
BFI Energy Systems of SEMASS, Inc. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Financial Services, Inc.
BFI Energy Systems of Southeastern ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries Argentina, S.A.
Connecticut, Inc. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries Asia Pacific, Inc.
BFI Energy Systems of Southeastern ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries Chemical Services,
Connecticut, L.P. Inc.
BFI International, Inc. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries de Mexico, S.A. de
BFI of ▇▇▇▇▇, Inc. C.V.
BFI Ref-Fuel, Inc. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries Europe, Inc.
BFI Services Group, Inc. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries Ltd.
BFI Trans River (GP), Inc. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of California, Inc.
BFI Trans River (LP), Inc. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Florida, Inc.
BFI Transfer Systems of Alabama, LLC ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Illinois, Inc.
BFI Transfer Systems of DC, LLC ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of New Jersey, Inc.
BFI Transfer Systems of Georgia, LLC ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of New York, Inc.
BFI Transfer Systems of Maryland, LLC ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Ohio, Inc.
BFI Transfer Systems of Massachusetts, LLC ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Puerto Rico, Inc.
BFI Transfer Systems of Mississippi, LLC ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries of Tennessee, Inc.
BFI Transfer Systems of New Jersey, Inc. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries, Inc. (DE) *
BFI Transfer Systems of Pennsylvania, LLC ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries, Inc. (MA)
BFI Transfer Systems of Texas, ▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Services, Inc.
BFI Transfer Systems of Virginia, LLC ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇, Inc.
BFI Waste Services of Indiana, ▇▇ ▇▇▇▇▇▇▇▇▇ Landfill, LLC
BFI Waste Services of Massachusetts, LLC Brunswick Waste Management Facility, LLC
BFI Waste Services of Pennsylvania, LLC ▇▇▇▇▇▇▇ Trash Service, Inc.
BFI Waste Services of Tennessee, LLC ▇▇▇▇▇▇ County Landfill, LLC
BFI Waste Services of Texas, LP ▇.▇. ▇▇▇▇▇ & Sons, Inc.
BFI Waste Services, LLC Camelot Landfill TX, LP
BFI Waste Systems of Alabama, LLC Capitol Recycling and Disposal, Inc.
BFI Waste Systems of Arkansas, LLC CC Landfill, Inc.
BFI Waste Systems of Georgia, LLC CCAI, Inc.
BFI Waste Systems of Indiana, LP CDF Consolidated Corporation
BFI Waste Systems of Kentucky, LLC CECOS International, Inc.
BFI Waste Systems of Louisiana, LLC Celina Landfill, Inc.
BFI Waste Systems of Massachusetts, LLC Central Sanitary Landfill, Inc.
BFI Waste Systems of Mississippi, LLC ▇▇▇▇▇▇▇▇ Development of North Carolina, Inc.
BFI Waste Systems of Missouri, LLC Champion Recycling, Inc.
BFI Waste Systems of New Jersey, Inc. Charter Evaporation Resource Recovery
BFI Waste Systems of North America, Inc. Systems
BFI Waste Systems of North Carolina, LLC Cherokee Run Landfill, Inc.
BFI Waste Systems of Oklahoma, LLC Chestnut Equipment Leasing Corp.
BFI Waste Systems of Pennsylvania, LLC ▇▇▇▇▇▇▇ Landfill, LLC
BFI Waste Systems of South Carolina, LLC Citizens Disposal, Inc.
BFI Waste Systems of Tennessee, LLC City Garbage, Inc.
BFI Waste Systems of Texas, LP City-Star Services, Inc.
BFI Waste Systems of Virginia, LLC Clarkston Disposal, Inc.
Bio-Med of Oregon, Inc. Cocopah Landfill, Inc.
Blue Ridge Landfill General Partnership Commercial Reassurance Limited
▇▇▇▇▇▇▇ Landfill, Inc. Congress Development Co.-
Brenham Total Roll-Offs, LP Consolidated Processing, Inc.
Brickyard Disposal & Recycling, Inc. Containerized, Inc. of Texas
SB-2
Copper Mountain Landfill, Inc. Frontier Waste Services (Colorado), LLC
Corvallis Disposal Co. Frontier Waste Services (Utah), LLC
County Disposal (Ohio), Inc. Frontier Waste Services of Louisiana, L.L.C.
County Disposal, Inc. Frontier Waste Services, L.P.
County Landfill, Inc. ▇. ▇▇▇ ▇▇▇▇▇ Disposal Inc.
County Line Landfill Partnership Galveston County Landfill TX, LP
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Landfill, LLC ▇▇▇▇▇▇▇▇ Brothers, Inc.
Crow Landfill TX ▇.▇. ▇▇▇▇▇▇▇▇ Recycling and Transfer Station Co.,
D & D Garage Services, Inc. Inc.
D & L Disposal L.L.C. Gateway Landfill, LLC
Dallas Disposal Co. GEK, Inc.
Delta Container Corporation General Refuse Rolloff Corp.
Delta Dade Recycling Corp. General Refuse Service of Ohio, LLC
Delta Paper Stock, Co. Georgia Recycling Services, Inc.
Delta Recycling Corp. ▇▇▇▇▇▇▇▇ Recycling Corp.
Delta Resources Corp. Global Indemnity Assurance Company
Delta Site Development Corp. Golden Triangle Landfill TX, LP
Delta Tall Pines Corp. Golden Waste Disposal, Inc.
Delta Transfer Corp. Grants Pass Sanitation, Inc.
Delta Waste Corp. Great Lakes Disposal Services, Inc.
▇▇▇▇▇▇▇ Waste Systems II, Inc. Great Plains Landfill OK, LLC
Denver RL North, Inc. Green Valley Landfill General Partnership
▇▇▇▇▇▇▇▇, Inc. Greenridge Reclamation, LLC
▇▇▇▇▇▇▇ Industries, Inc. Greenridge Waste Services, LLC
DTC Management, Inc. Greenwood Landfill TX, LP
E Leasing Company, LLC Gulf West Landfill TX, LP
Eagle Industries Leasing, Inc. Gulfcoast Waste Service, Inc.
Eastern Disposal, Inc. H Leasing Company, LLC
ECDC Environmental of Humbolt County, Inc. Harland's Sanitary Landfill, Inc.
ECDC Environmental, ▇.▇. ▇▇▇▇▇▇▇▇▇ Landfill, Inc.
ECDC Holdings, Inc. Houston Towers TX, LP
ECDC Logistics, LLC Illiana Disposal Partnership
Ecosort, L.L.C.- Illinois Landfill, Inc.
Elder Creek Transfer & Recovery, Inc. Illinois Recycling Services, Inc.
▇▇▇▇▇ County Landfill TX, L.P. Imperial Landfill, Inc.
▇▇▇▇▇ ▇▇▇▇▇ Landfill MO, LLC Independent Trucking Company
Environmental Development Corp. (DE) ▇▇▇▇▇▇ Waste Disposal, Inc.
Environmental Development Corp. (P.R.) International Disposal Corp. of California
Environmental Reclamation Company Itasca Landfill TX, LP
Environtech, Inc. ▇▇▇▇▇▇▇ County Landfill, LLC
Envotech-Illinois, L.L.C. Jefferson City Landfill, LLC
EOS Environmental, Inc. ▇▇▇▇▇▇ Disposal, Inc.
Evergreen Scavenger Service, Inc. ▇▇▇ ▇▇ ▇▇▇▇ & Sons, Inc.
Evergreen Scavenger Service, L.L.C. ▇▇▇▇▇ Road Landfill and Recycling, Ltd.
▇. ▇. ▇▇▇▇▇▇▇▇ Rubbish Removal, Inc. Kankeekee RDF Landfill, Inc.
Flint Hill Road, LLC ▇▇▇▇▇▇ Canyon Landfill Company
Foothills Sanitary Landfill, Inc.- ▇▇▇▇▇▇ Drop Box, Inc.
Forest View Landfill, LLC Kent-Meridian Disposal Company-
Fort Worth Landfill TX, LP Kerrville Landfill TX, LP
Forward, Inc. Key Waste Indiana Partnership
▇▇▇▇ ▇▇▇▇▇▇▇ Trucking Co., Inc. La Canada Disposal Company, Inc.
SB-3
Lake County C & D Development Partnership Otay Landfill, Inc.
Lake ▇▇▇▇▇▇ Landfill, Inc. Ottawa County Landfill, Inc.
▇▇▇▇▇▇▇ Sunrise Sanitation Corporation Packerton Land Company, LLC
▇▇▇ County Landfill SC, LLC Palomar Transfer Station, Inc.
▇▇▇ County Landfill, Inc. Panama Road Landfill, TX, ▇.▇.
▇▇▇▇▇▇ Landfill, LLC Paper Fibers, Inc.
Lewisville Landfill TX, LP Paper Fibres Company
Liberty Waste Holdings, Inc. Paper Recycling Systems, Inc.
Liberty Waste Services Limited , L.L.C. ▇▇▇▇▇▇▇ Real Estate Company
Liberty Waste Services of Illinois, L.L.C. Pinal County Landfill Corp.
Liberty Waste Services of McCook, L.L.C. Pine Bend Holdings L.L.C.-
Local Sanitation of Rowan County, L.L.C. Pinecrest Landfill OK, LLC
Loop Recycling, Inc. Pinehill Landfill TX, LP
Loop Transfer, Incorporated Pittsburg County Landfill, Inc.
▇▇▇▇▇ ▇▇▇▇▇ & Son, Inc., Sanitation Contractors Pleasant Oaks Landfill TX, LP
Macomb Landfill, Inc. Polk County Landfill, LLC
Mamaroneck Truck Repair, Inc. Portable Storage, Inc.
Manumit of Florida, Inc. ▇▇▇▇▇▇ County Landfill, Inc.
▇▇▇▇▇▇ Resource Recovery, LLC- Price & Sons Recycling Company
Mars Road TX, LP Prime Carting, Inc.
▇▇▇▇▇▇▇ Road Landfill TX, LP PSI Waste Systems, Inc.
▇▇▇▇▇▇▇ Waste Systems, Inc. R. 18, Inc.
Medical Disposal Services, Inc. ▇.▇. ▇▇▇▇▇▇ Enterprises, Inc.
Mesa Disposal, Inc. ▇.▇. ▇▇▇▇▇▇ Refuse Service, Inc.
Mesquite Landfill TX, LP Rabanco Companies
Metro Enviro Transfer, LLC Rabanco Connections International, Inc.
Mexia Landfill TX, LP Rabanco Intermodal/B.C., Inc.
Minneapolis Refuse, Inc.- Rabanco Recycling, Inc.
Mirror Nova Scotia Limited Rabanco Regional Landfill Company
Mississippi Waste Paper Company Rabanco, Ltd.
MJS Associates, Inc. ▇▇▇▇▇▇ Landfill, Inc.
▇▇▇▇▇▇▇▇ Landfill General Partnership RCS, Inc.
Mountain Home Disposal, Inc. Recycle Seattle II
N Leasing Company, LLC Recycling Associates Inc.
NationsWaste Catawba Regional Landfill, Inc. Recycling Industries Corp.
NationsWaste, Inc. Ref-Fuel Canada Ltd.
Ncorp, Inc. Regional Disposal Company
New ▇▇▇▇▇▇ Landfill Company, Inc. Resource Recovery, Inc.
New York Waste Services, LLC Rio Grande Valley Landfill TX, LP
Newco Waste Systems of New Jersey, Inc. Risk Services, Inc.
▇▇▇▇▇▇ County Landfill Partnership Roosevelt Associates-
Noble Road Landfill, Inc. ▇▇▇▇ Bros. Waste & Recycling Co.
Northeast Landfill, LLC ▇▇▇▇▇▇▇ Sanitary Service, Inc.
Northwest Waste Industries, Inc. ▇▇▇▇▇▇ Landfill, Inc.
Oakland Heights Development, Inc. Royal Holdings, Inc.
Oklahoma City Landfill, LLC Royal Oaks Landfill TX, LP
Omaha Hauling Company, Inc. S & L, Inc.
Omega Holdings GmbH S & S Recycling, Inc
Organized Sanitary Collectors and Recyclers, S Leasing Company, LLC
Inc. Saguaro National Insurance Company
Oscar's Collection System of Fremont, Inc. Saline County Landfill, Inc.
SB-4
San Marcos NCRRF, Inc. Victoria Landfill TX, LP
Sand Valley Holdings, L.L.C. ▇▇▇▇▇▇ Disposal Service, Inc.
Sangamon Valley Landfill, Inc. ▇▇▇▇▇▇ ▇▇▇▇ Development Company
Sanitary Disposal Service, Inc. Waste Associates, Inc.
Sauk Trail Development, Inc. Waste Control Systems, Inc.
Seattle Disposal Company, Inc. Waste Services of New York, Inc.
Selas Enterprises LTD Wastehaul, Inc.
Show-Me Landfill, LLC ▇▇▇▇▇ County Landfill IL, Inc.
Shred-All Recycling Systems, Inc. WDTR, Inc.
SITA S.A.- Webster Parish Landfill, L.L.C.
Source Recycling, Inc. Whispering Pines Landfill TX, LP
Southeast Landfill, LLC Willamette Resources, Inc.
Southwest Landfill TX, ▇▇ ▇▇▇▇▇▇▇▇ County Landfill, Inc.
Southwest Regional Landfill, Inc. Willow Ridge Landfill, LLC
Southwest Waste, Inc. WJR Environmental, Inc.
Springfield Environmental General Partnership Woodlake Sanitary Service, Inc.
SSWI, Inc.
Standard Disposal Services, Inc.
Standard Environmental Services, Inc.
Standard Waste, Inc.
Star Services Group, Inc.
Streator Area Landfill, Inc.
Suburban Carting Corp.
Suburban Transfer, Inc.
Suburban Warehouse, Inc.
Summit Waste Systems, Inc.
Sunrise Sanitation Service, Inc.
Sunset Disposal Service Inc. (CA corp.)
Sunset Disposal, Inc. (KS corp.)
Super Services Waste Management, Inc.
Sycamore Landfill, Inc.
▇▇▇▇'▇ Transfer Systems, Inc.
▇▇▇▇▇▇ Ridge Landfill, Inc.
Tennessee Union County Landfill, Inc.
The Ecology Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇'▇ Disposal Service, Inc.
Total Roll-Offs, LLC
Total Solid Waste Recyclers, Inc.
Tricil (N.Y.), Inc.
Tri-State Recycling Services, Inc.
Tri-State Refuse Corporation
Trottown Transfer, Inc.
Turkey Creek Landfill TX, LP
U.S. Disposal II
United Disposal Service, Inc.
United Waste Control Corp.
Upper Rock Island County Landfill, Inc.
USA Waste of Illinois, Inc.
Usine de Triage Lachenaie Inc.
Valley Landfills, Inc.
VHG, Inc.
SB-5
EXHIBIT A
CERTIFICATE OF DESIGNATION
[To Be Attached]
C-1
EXHIBIT B
DIRECTORS, OFFICERS AND SHAREHOLDERS
SUBJECT TO THE LOCK-UP LETTER AGREEMENT
Directors
- ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇
- ▇▇▇▇▇▇ ▇▇▇▇▇
- ▇▇▇▇ ▇. ▇▇▇▇▇
- ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
- ▇▇▇▇▇▇▇ ▇▇▇▇▇
- ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
- ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
- ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
- ▇▇▇▇▇ ▇▇▇▇▇▇▇
- ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
- ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
- ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Officers
- ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇
- ▇▇▇▇▇▇ ▇. ▇▇▇▇
- ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
- ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
- ▇▇▇▇▇▇ ▇. ▇▇▇▇
Shareholders
- Apollo Investment Fund III, L.P.
- Apollo Overseas Partners III, L.P.
- Apollo Overseas Partners IV, L.P.
- Apollo (U.K.) Partners III, L.P.
- Apollo/AW LLC
- Blackstone Capital Partners II Merchant Banking Fund L.P.
- Blackstone Capital Partners III Merchant Banking Fund L.P.
- Blackstone Offshore Capital Partners II L.P.
- Blackstone Offshore Capital Partners III L.P.
- Blackstone Family Investment Partnership II L.P.
- Blackstone Family Investment Partnership III L.P.
C-2