Exhibit 99.2
Lonnie C. Poole, Jr.
P.O. Box 20105
Raleigh, NC 27609
HIGHLY CONFIDENTIAL
October 22, 2007
Special Committee of the Board of Directors
Waste Industries USA, Inc.
3301 Benson Drive, Suite 601
Raleigh, NC 27609
Gentlemen:
On behalf of myself, certain members of my family and certain Poole family entities (collectively, the “Poole Family”), Jim W. Perry (collectively with the Poole Family, the “Majority Shareholders”), Macquarie Infrastructure Partners Inc. (“MIP”), and GS Direct, LLC (“Goldman Sachs” and collectively with the Majority Shareholders and MIP, the “Buyers”), I am pleased to submit this going private transaction proposal (the “Proposal”) to acquire 100% of the fully diluted common stock of Waste Industries, USA, Inc. (“Waste Industries” or the “Company) through an entity to be formed by the Buyers on the terms set forth in this letter (the “Transaction”).
Of the financial alternatives that our Board has considered in recent years, Jim Perry and I firmly believe that a going private transaction is the most attractive for the Company, its shareholders, employees, customers, vendors and the communities in which the Company operates. Under the terms of the Transaction, I am pleased to commit to you, on behalf of the Buyers, that the Company will remain headquartered in Raleigh, North Carolina, will continue to operate under the Waste Industries name and will maintain the Company’s current practices with regard to support for local community programs and charitable activities. In addition, the Buyers do not expect to make any major operational or staffing changes to the business going forward. The Buyers enthusiastically look forward to working with the Company’s current management team (who will be invited and encouraged to participate in the Transaction) to continue growing the business while maintaining the excellent relationships that the Company has developed with its customers, vendors and other stakeholders.
As you know, over the past several months I have been exploring the feasibility and advisability of making a proposal to take the Company private. In connection with this process, I have had extensive discussions with a number of leading private equity groups, several of which met with Jim Perry, certain members of the Company’s management and me in order to conduct preliminary analyses of the Company’s financial position, results of operations, plans, objectives, future performance and business. As a result of these discussions and subsequent negotiations of prospective transaction terms, I determined that joining with MIP and Goldman Sachs, two of the
world’s premier private equity groups (collectively, the “Sponsors”), to formulate an acquisition proposal for the Company would bring the greatest current value to the Company’s shareholders and represent the most attractive alternative for the Company and its many stakeholders.
The Buyers believe that this Proposal allows the Company’s shareholders to immediately realize an exceptionally attractive value, in cash, for their investment and provides such shareholders certainty of value for their shares, especially when viewed against the costs and risks inherent in the Company’s business plan as a publicly-traded company. Currently, as you know, the Company is constrained from growing more aggressively due to the intense focus by investment analysts and public shareholders on short-term quarterly earnings. This intense focus creates an impediment to making long-term investments in the Company’s future that are necessary to sustain and enhance Waste Industries’ franchise for many years to come. In addition, the small public float and limited trading volume of the Company’s shares results in undesirable price volatility and restricts opportunities for the Company’s public shareholders, as well as the Majority Shareholders, to achieve liquidity with respect to their shares. Finally, the significant regulatory costs and management resources expended to maintain the Company’s status as a modestly-sized public company create a negative impact on the Company’s profitability and capital resources.
The Majority Shareholders are unwilling at this time to entertain alternative bids for the Company because the Majority Shareholders believe the Transaction is in the best interests of the Company, and any third-party acquisition would negatively impact the Company, its many stakeholders and the communities in which the Company operates. As a result, concurrent with the submission of this Proposal, the Majority Shareholders have entered into a support agreement (the “Support Agreement”) with MIP and Goldman Sachs whereby we have agreed to support and vote in favor of the Transaction and to oppose any alternative proposals to acquire the Company for a period of 18 months. A copy of the Support Agreement is attached hereto as Exhibit A.
MIP, Goldman Sachs and advisors to the Buyers, including Weil Gotshal & Manges LLP (legal), KPMG (accounting/financial), Bain (market analyses), SCS (environmental/engineering) and Marsh (insurance), have completed extensive due diligence. The Buyers are confident that we can sign a definitive merger agreement promptly following your acceptance of our Proposal and consummate a closing of the Transaction on an accelerated basis. The Proposal is backed by full debt and equity financing commitments, and we do not anticipate any regulatory impediments that would delay the closing. The Buyers have obtained all necessary internal approvals required to submit this Proposal and look forward to working with you to finalize the Transaction.
The general terms and merits of our Proposal are set forth below.
A. Purchase Price
We are prepared to acquire 100% of the equity interests of the Company (other than certain shares rolled over by the Majority Shareholders and certain members of management), and cash out all of the Company’s outstanding in-the-money options on a net basis, at a price of $36.75 per share (the “Transaction Price”), a price in excess of the Company’s all-time high, which would be fully payable in cash at closing.
The Transaction Price provides a substantial premium for the Company’s shareholders based on current and historical market prices. The Transaction Price represents:
| · | A 36% premium to the $27.11 closing price of Waste Industries stock on October 19, 2007; |
| · | A 35% premium to the Company’s 5 year average historical trading multiple; and |
| · | A 32% premium to the $27.90 average trading price over the preceding 1 month. |
B. Overview of the Sponsors
Macquarie Infrastructure Partners is a $4 billion private investment fund managed by the Macquarie Group, making equity investments in North American essential services businesses. Since its inception in 2006, MIP has invested $2.2 billion in essential services businesses in the United States and Canada. Notable investments include: Duquesne Light Holdings, Global Tower Partners, the Indiana Toll Road, the Chicago Skyway and the Aquarion Company. The Macquarie Group is one of the largest private sector investors in essential services and infrastructure businesses globally with approximately $49 billion of equity invested in 109 portfolio assets globally across its family of private and public investment funds.
Goldman Sachs, through its GS Capital Partners family of funds and other investment vehicles––including the recently established “GS Direct” on-balance-sheet investment initiative––is one of the foremost private equity investors in the world, having invested more than $36 billion in over 600 companies globally since 1986. GS Capital Partners invests opportunistically across a range of industries, including manufacturing/industrial, telecom, media & entertainment, financial institutions, energy/power, healthcare, construction and technology. Goldman Sachs’ investment philosophy is based on partnership and long-term value creation, and the firm seeks to provide access to the full capabilities of Goldman Sachs, including sophisticated financial structuring, industry expertise, execution experience and a global network.
C. Overview of the Proposal’s Structure and Financing
The Buyers will establish a new entity (“Holdco”) to enter into definitive documentation with the Company. The Proposal’s sources of funds are as follows:
| · | The Majority Shareholders would rollover shares of common stock of the Company which they currently own having an aggregate value at the Transaction Price of $167.4 million and invest $24.0 million in cash; |
| · | MIP would invest $126.3 million in cash; |
| · | Goldman Sachs would invest $63.2 million in cash; |
| · | The current Industrial Revenue Bonds of $40.4 million which the Company has outstanding would remain outstanding; and |
| · | Wachovia Bank, N.A. (“Wachovia”) and HSBC Securities (USA) Inc. and HSBC Bank, N.A. (“HSBC”) would provide $269.6 million in new senior debt facilities, which would be used to repay the Company’s existing term loans and partially fund the Proposal. |
Wachovia and HSBC (the “Lenders”) have provided commitment letters to fund 100% of the senior debt financing portion of the capital structure. Shortly after submitting this Proposal, we will provide you with executed copies of these commitment letters. The Lenders have performed extensive due diligence and have provided commitment letters with limited conditions, including no diligence conditions. Each of the Buyers will enter into a binding commitment letter, and the funding thereunder will be subject to the funding of the debt financing and the satisfaction of the conditions contained in the definitive merger agreement. Shortly after submitting this Proposal, we will provide you with forms of the commitment letters from the Buyers.
D. Merger Agreement
Shortly after submitting this Proposal, we will provide you with a draft merger agreement in a form that we are prepared to sign. Key terms of the merger agreement include:
| | · | The Company surviving the merger as a wholly owned subsidiary of Holdco |
| | · | Customary representations, warranties and interim covenants |
| | · | Limited closing conditions (which do not include a financing condition) |
| | · | Customary termination rights and break-up fees |
| | · | The opportunity for shareholders of the Company who dissent to receive appraisal rights under North Carolina law |
We look forward to discussing the merger agreement with you at your earliest convenience. The Buyers are confident that we, along with our respective advisors, will be able to negotiate and finalize the merger agreement and all other documentation required for the Transaction expeditiously.
E. Approvals; Transaction Timing
Subject to the terms and conditions contained in this letter, the Proposal has been approved by the Majority Shareholders and the Investment Committees of both MIP and Goldman Sachs. As you know, the completion of the Transaction will require approval from the Company’s shareholders. The Majority Shareholders have sufficient voting power to satisfy the applicable shareholder approval requirements of North Carolina law, and therefore, subject to the terms and conditions of the merger agreement, sufficient shareholder approval of the Transaction is assured. In addition, other than notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR”), we do not anticipate any regulatory or other governmental approvals being required in connection with the completion of the Transaction. We also do not anticipate any antitrust impediments relating to MIP, Goldman Sachs, the Majority Shareholders or any of our respective portfolio companies, or any material third party consents being required to complete
the Transaction. The Buyers will be in a position to make an HSR filing and any applicable foreign antitrust filings pertaining to the Transaction promptly following the execution of the merger agreement. Therefore, we are confident that we can sign a definitive merger agreement promptly following your acceptance of our Proposal and consummate the Transaction on an accelerated basis.
F. Contact Information
Any questions relating to this Proposal should be directed to Bill Jacob or Gerry Cardinale of Goldman, Sachs & Co. The contact information for Mr. Jacob and Mr. Cardinale, as well as for Chris Leslie and Matthew Lancaster of MIP, and our legal advisors, Weil, Gotshal & Manges LLP and Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., is attached hereto as Exhibit B.
G. Confidentiality
This letter has been provided to you on the basis that you will treat it as strictly private and confidential. We expect that you will not disclose its content, either in its entirety or in part, to anyone other than the Company’s board of directors and senior management and the Company’s advisors, unless otherwise authorized in writing by us. This letter does not constitute a binding obligation on the part of any person, it being understood that such binding obligation will arise only upon the execution of a mutually acceptable merger agreement for the acquisition of the outstanding common stock of the Company. We reserve the right to withdraw this Proposal at any time.
H. Conclusion
I would like to express my personal appreciation to the members of the Special Committee for your cooperation as I conducted the exploratory phases of this going private transaction process and formulated the Proposal. I want to reiterate the sincere desire of Jim Perry, the Sponsors and me to act, and have the Company’s Board act, in a manner that is substantively and procedurally fair to all shareholders of the Company.
The Buyers thank you for the opportunity to submit this Proposal to the Company and are confident that we can move forward quickly with a Transaction. We are pleased to provide what we believe to be an exceptionally attractive Proposal and trust that this letter conveys the significant enthusiasm and commitment we have towards completing the Transaction. We look forward to working closely with you and your advisors to finalize the terms and consummate the Transaction in an expeditious manner.
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| Very truly yours, |
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| Lonnie C. Poole, Jr. |
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| By: | | /s/ Lonnie C. Poole, Jr. |
| | Lonnie C. Poole, Jr. |
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| On behalf of the Poole Family |
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| By: | | /s/ Lonnie C. Poole, Jr. |
| | Lonnie C. Poole, Jr. |
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| Jim W. Perry |
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| By: | | /s/ Jim W. Perry |
| | Jim W. Perry |
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| Macquarie Infrastructure Partners Inc. |
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| By: | | /s/ Chris Leslie |
| | Chris Leslie, CEO Macquarie Infrastructure Partners |
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| GS Direct, LLC |
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| By: | | /s/ Gerry Cardinale |
| | Gerry Cardinale |
Exhibit A
Support Agreement
SUPPORT AGREEMENT
ThisSUPPORT AGREEMENT (this “Agreement”) dated October 22, 2007, is made and entered into by and among those persons identified as the existing majority shareholder parties onSchedule A, attached hereto and incorporated herein by reference (collectively the “Shareholder Parties”, and individually a “Shareholder Party”), Macquarie Infrastructure Partners International, L.P., Macquarie Infrastructure Partners Canada, L.P., Macquarie Infrastructure Partners A, L.P. (collectively, “Macquarie”), and GS Direct, LLC (“Goldman” and together with Macquarie and the Shareholder Parties, the “Parties”).
WHEREAS, concurrently with the execution of this Agreement, the Parties have made a proposal (the “Proposal”) to Waste Industries USA, Inc., a North Carolina corporation (the “Company”), pursuant to which, if the Proposal is accepted by the Company, a newly-formed Delaware limited liability company to be formed by the Parties (the “Parent”) and a newly-formed, wholly-owned subsidiary of Parent (“Merger Sub”) will enter into an agreement and plan of merger with the Company substantially in the form of the draft agreement and plan of merger submitted to the Company contemporaneously with the Proposal (as may be modified from time to time in a form agreed to by the Parties, the “Merger Agreement”);
WHEREAS, as of the date hereof, each Shareholder Party is the record owner of the number of shares of common stock, no par value per share (“Common Stock”), of the Company set forth opposite such Shareholder Party’s name onSchedule A hereto (such shares, together with any other shares of Common Stock acquired by any Shareholder Party after the date hereof, being collectively referred to herein as the “Party Shares”); and
WHEREAS, as a condition to each Party’s willingness to support the Proposal and cause Parent and Merger Sub to enter into the Merger Agreement, each Party has required that all of the other Parties enter into this Agreement and agree to support the Proposal, as more specifically set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the Parties agree as follows:
1.Defined Terms. Capitalized terms used herein but not otherwise defined herein have the meanings assigned to such terms in the Merger Agreement.
2.Agreements of Parties.
(a)Voting. Subject to the terms and conditions of this Agreement, from the date hereof until the Termination Date (as defined inSection 4 hereof), at any meeting of the stockholders of the Company however called or any adjournment thereof, each Shareholder Party agrees to vote all of his or its respective Party Shares (or cause them to be voted), (i) in favor of the adoption of the Merger Agreement and the approval of the transactions contemplated thereby (unless the Board of Directors of the Company withdraws, modifies, qualifies or amends, in a manner adverse to Parent or Merger Sub, the
Recommendation in accordance with the terms of the Merger Agreement and such withdrawal, modification, qualification or amendment is effective at the time of such meeting or adjournment thereof), (ii) against any action or agreement that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Merger Agreement, (iii) against any Alternative Proposal and (iv) against any agreement (or any amendment to any agreement in existence on the date hereof), amendment of the Company Charter Documents or other action that is intended or could reasonably be expected to prevent, impede, interfere with, delay, postpone or discourage the consummation of the Merger. Any such vote shall be cast by the Shareholder Parties in accordance with such procedures relating thereto so as to ensure that it is duly counted, including for purposes of determining that a quorum is present and for purposes of recording the results of such vote. Notwithstanding the foregoing, in no event shall the obligations of each Shareholder Party set forth in this Section 2(a) or any Party elsewhere in this Agreement convey to any other Party or any other person voting power in the election of directors of the Company, sole or shared ownership of any Party Shares, or sole or shared power to vote any Party Shares or to direct the exercise of voting power of any Party Shares.
(b)Restriction on Transfer; Proxies; Non-Interference; etc. Other than a Permitted Transfer (as hereinafter defined), from the date hereof until the Termination Date, no Shareholder Party shall directly or indirectly (i) sell, transfer (including by operation of law), give, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding (collectively, a “Transfer”) with respect to the sale, transfer, gift, pledge, encumbrance, assignment or other disposition of, any Party Shares (or any right, title or interest thereto or therein), (ii) deposit any Party Shares into a voting trust or grant any proxies or enter into a voting agreement, power of attorney or voting trust with respect to any Party Shares (each, an “Assignment”), (iii) take any action that would make any representation or warranty of such Shareholder Party set forth in this Agreement untrue or incorrect in any material respect or have the effect of preventing, disabling or delaying such Shareholder Party from performing any of his or its obligations under this Agreement or (iv) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i), (ii) or (iii) of thisSection 2(b). Notwithstanding the foregoing, any Shareholder Party, (a) may Transfer any of the Party Shares, or execute an Assignment with respect to Party Shares, if such Transfer or Assignment is made to a family member or a controlled affiliate of such Shareholder Party or is made to a trust or similar vehicle in connection with estate planning purposes; provided that, in each case, the transferee, trustee, proxy holder, or beneficiary of the Party Shares resulting from such Transfer or Assignment executes a joinder agreement, reasonably acceptable to each of Macquarie entities and Goldman, whereby such transferee, proxy holder or beneficiary would become a party to this Agreement and become subject to all of the rights and obligations hereunder, (b) at any time after the termination of the Merger Agreement, may sell no more than 25,000 Party Shares in the open market in any six-month period, (c) if the Merger Agreement is not entered into on or prior to December 31, 2007 and the Company and Parties are not actively negotiating a proposal to acquire the Company at such date, may sell no more than 25,000 Party Shares in the open market in any six-month period thereafter or (d) with the prior written consent of each of the Macquarie entities and Goldman (which consent may be withheld in their sole discretion), may Transfer any of the Party Shares, or execute an Assignment with respect to Party Shares, other than as
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contemplated in clauses (a), (b) and (c) (each of the foregoing clauses (a) through (d), a “Permitted Transfer”). Each Shareholder Party shall cause the Company to instruct the Company’s transfer agent to place appropriate restrictive legends with respect to such Shareholder Party’s Party Shares in order to reflect the transfer limitations and other provisions contained in this Agreement.
(c)No Solicitation. Subject to Section 5 hereunder, each Shareholder Party agrees it shall not nor shall it authorize or permit any of its Representatives to, directly or indirectly, (i) initiate, solicit, encourage (including by providing information) or facilitate any inquiries, proposals or offers with respect to, or the making or completion of, an Alternative Proposal, (ii) engage or participate in any negotiations concerning, or provide or cause to be provided any non-public information or data relating to, the Company or any of its Subsidiaries in connection with, or have any discussions with any person relating to, an actual or proposed Alternative Proposal, or otherwise knowingly encourage or facilitate any effort or attempt to make or implement an Alternative Proposal, (iii) adopt, endorse or recommend, or propose publicly to adopt, endorse or recommend, any Alternative Proposal, (iv) adopt, endorse or recommend, or propose to adopt, endorse or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to any Alternative Proposal, (v) amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, or (vi) resolve to propose or agree to do any of the foregoing.
3.Representations and Warranties of the Parties. Each Party hereby represents and warrants to each of the other Parties as follows:
(a)Execution. This Agreement has been duly executed and delivered by such Party and, assuming due and valid authorization, execution and delivery hereof by the other Parties hereto, constitutes a valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
(b)Consents and Approvals; No Violations. Except for the filing of a Schedule 13D with the Securities and Exchange Commission, no consents or approvals of, or filings, declarations or registrations with, any Governmental Entity are necessary for the performance by such Party of his or its obligations hereunder. Neither the execution and delivery of this Agreement by such Party, nor the performance by such Party of his or its obligations hereunder, will (A) violate any Law, judgment, writ or injunction of any Governmental Entity applicable to such Party or any of his or its properties or assets or (B) violate, breach, conflict with or constitute a default under any of the terms, conditions or provisions of any agreement or other instrument or obligation to which such Party is a party, or by which it or any of his or its properties or assets may be bound or affected.
(c)Ownership of Shares. Such Party who is a Shareholder Party owns, of record, all of the Party Shares listed opposite his or its name onSchedule A hereto. Such Shareholder Party owns all such Party Shares free and clear of any proxy, voting restriction, adverse claim or other Lien that affects voting rights (except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of
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the various states of the United States). Without limiting the foregoing, except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States, such Shareholder Party has sole voting power and sole power of disposition with respect to all such Party Shares, with no restrictions on such Party’s rights of voting or disposition pertaining thereto, and no Person other than such Shareholder Party has any right to direct or approve the voting or disposition of any such Party Shares. Such Shareholder Party does not own of record, any securities of the Company other than the Party Shares listed opposite his or its name onSchedule A hereto, which constitute all such Shareholder Party’s Party Shares.
(d)Brokers. Except for any fees paid to Macquarie and Goldman, no broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission that is payable by the Company or any of its subsidiaries in connection with the transactions contemplated by the Proposal, this Agreement or the Merger Agreement based upon arrangements made by or on behalf of any Party.
4.Termination. The obligations of each Shareholder Party underSection 2 of this Agreement shall terminate on the first to occur of (a) the Effective Time, (b) the date that is eighteen months after the date of this Agreement, (c) a termination of the Merger Agreement that results in a Parent Termination Fee becoming due and payable by Parent pursuant to Section 7.2(b) of the Merger Agreement or (d) if the Merger Agreement is not entered into on or prior to December 31, 2007, and the Company and Parties are not negotiating a proposal to acquire the Company at such date and no Alternative Proposal is made after the date hereof, June 30, 2008 (the first to occur of (a), (b), (c) and (d) being the “Termination Date”). Any liability for failure to comply with the terms of this Agreement shall survive such termination.
5.Action in Stockholder Capacity Only. The parties acknowledge that this Agreement is entered into by each Shareholder Party in his or its capacity as owner of the applicable Party Shares and that nothing in this Agreement shall in any way restrict or limit any director or officer of the Company from taking any action in his or her capacity as a director or officer of the Company that is necessary for him or her to comply with his or her fiduciary duties as a director or officer of the Company, including, without limitation, furnishing information or participating in his or her capacity as a director or officer of the Company in any discussions or negotiations in accordance with Section 5.3 of the Merger Agreement.
6.Expenses. Each Party hereto shall pay its own fees and expenses (including fees and expenses of its agents, representatives and attorneys) incurred by or on behalf of it in connection with the negotiation, drafting, execution, delivery and performance of this Agreement and each other agreement, document and instrument contemplated by this Agreement and the performance of their respective obligations hereunder and thereunder.
7.Additional Shares. Until the Termination Date, each Shareholder Party shall promptly notify the other Parties of the number of shares of Common Stock, if any, as to which such Shareholder Party acquires record or beneficial ownership after the date hereof. Any shares of Common Stock as to which any Shareholder Party acquires record or beneficial
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ownership after the date hereof and prior to the Termination Date shall be Party Shares for purposes of this Agreement. Without limiting the foregoing, in the event of any stock split, stock dividend or other change in the capital structure of the Company affecting the Common Stock, the number of shares constituting Party Shares shall be adjusted appropriately and this Agreement and the obligations hereunder shall attach to any additional shares of Common Stock or other voting securities of the Company issued to Parties in connection therewith.
8.Publicity. Each Party consents to Parent and Merger Sub publishing and disclosing such Party’s identity and ownership of Common Stock by the Shareholder Parties and the nature of such Party’s commitments, arrangements and understandings under this Agreement. No Party shall issue any press release or make any other public statement with respect to this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby without the prior written consent of the Requisite Parties, except as may be required by applicable Law. “Requisite Parties” means Macquarie, Goldman and Lonnie C. Poole, Jr.
9.Further Assurances. From time to time, at the request of any other Party and without further consideration, each Party shall execute and deliver such additional documents and take all such further action as may be necessary or appropriate to, in the most expeditious manner practicable, effect the purposes of this Agreement.
10.Entire Agreement. This Agreement constitutes the final agreement between the parties hereto and is the complete and exclusive expression of agreement of the parties hereto with respect to the subject matter hereof. All prior and extemporaneous negotiations, communications, arrangements and agreements between the parties hereto on the subject matters contained in this Agreement, whether written or oral, are expressly merged into and superseded by this Agreement.
11.Assignment; Binding Effect. This Agreement is binding upon and inures to the benefit of the parties to this Agreement and their respective successors and permitted assigns. No Party may assign any of his or its rights, or delegate any of his or its obligations or any performance, arising under or relating to this Agreement voluntarily or involuntarily, whether by operation of law, merger, consolidation, dissolution or any other manner, without the prior unanimous written consent of the other Parties. Any purported assignment of rights or delegation of obligations or performance in violation of thisSection 11 is void and of no force or effect.
12.Amendments; Waiver. The Parties hereto may not amend, modify or supplement this Agreement except pursuant to a written instrument making specific reference to this Agreement that identifies itself as an amendment, modification or supplement to this Agreement and that is signed by the Requisite Parties; provided that no provision of this Agreement may be amended or modified in a manner that disproportionately and materially adversely affects a Party without such Party’s consent. No purported waiver of any provision of this Agreement will be effective unless effected pursuant to a written instrument signed by the Party or Parties hereto against whom enforcement of such waiver is sought. The waiver by any party hereto of any provision of this Agreement is effective only in the instance and only for the purpose that it is given and does not operate and is not to be construed as a further or continuing waiver. No failure on the part of any Party hereto to exercise, and no delay in
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exercising, any right, power or remedy under this Agreement operates as a waiver thereof. This Agreement does not, and is not intended to, confer any rights or remedies upon any Person other than the Parties to this Agreement.
13.Severability. If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
14.Counterparts. The Parties hereto may execute this Agreement in one or more counterparts, each of which constitutes an original copy of this Agreement and all of which, collectively, constitute only one agreement. The signatures of all the Parties hereto need not appear on the same counterpart.
15.Descriptive Headings. The division of this Agreement into Sections and other subdivisions and the insertion of headings are for convenience of reference only and do not alter the meaning of, or affect the construction or interpretation of, this Agreement.
16.Notices.
(a) All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one Business Day following the day sent by overnight courier (with written confirmation of receipt). All communications hereunder shall be delivered to the respective Parties hereto at such Party’s address set forth on the signature pages herein; or, in each case, to such other address as the Person to whom notice is given may have previously furnished to the other parties hereto in writing in the manner set forth above.
17.Drafting. The Parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
18.Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial; Specific Performance.
(a)The laws of the State of Delaware (without giving effect to its conflicts of law principles) govern this Agreement and all matters arising out of or relating to this Agreement and any of the transactions contemplated hereby, including its negotiation, execution, validity, interpretation, construction, performance and enforcement.
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(b)The Parties hereto hereby irrevocably submit to the exclusive jurisdiction of any Federal court located in the State of New York, if a basis for federal court jurisdiction is present, and otherwise, in any court in the County and State of New York over any legal proceeding arising out of or relating to this Agreement or any of the transactions contemplated hereby and each Party hereto hereby irrevocably agrees that all claims in respect of such legal proceeding may be heard and determined in such courts. The Parties hereto hereby irrevocably waive any objection which they may now or hereafter have to the laying of venue of such legal proceeding brought in such court or any claim that such legal proceeding brought in such court has been brought in an inconvenient forum. Each of the Parties hereto agrees that a judgment in such legal proceeding may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
(c)Each of the Parties hereto hereby irrevocably consents to process being served by any Party to this Agreement in any legal proceeding by delivery of a copy thereof in accordance with the provisions ofSection 16.
(d)To the extent permitted by applicable Law, each Party hereto, knowingly, voluntarily and intentionally, irrevocably waives all right of trial by jury in any legal proceeding arising out of or relating to this Agreement, all documents, agreements and instruments executed in connection with this Agreement and the transactions contemplated hereby and thereby (whether in contract tort or otherwise) and whether occurring prior to or after the date of this Agreement.
(e)The Parties to this Agreement agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Without prejudice to the rights and remedies otherwise available to each Party hereto, each Party hereto shall be entitled, without the requirement of a posting of a bond or other security to seek equitable relief, including an injunction or specific performance, in the event of any breach of the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.
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/s/ Lonnie C. Poole, Jr. |
| Name: Lonnie C. Poole, Jr. |
| Address for Notices: | | 401 Ramblewood Drive |
| | Raleigh, NC 27609 |
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/s/ Lonnie C. Poole, III |
| Name: Lonnie C. Poole, III |
| Address for Notices: | | 3301 Benson Drive |
| | Suite 601 |
| | Raleigh, NC 27609 |
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/s/ Scott J. Poole |
| Name: Scott J. Poole |
| Address for Notices: | | 7901 Strickland Road |
| | Suite 115 |
| | Raleigh, NC 27615 |
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/s/ Jim W. Perry |
| Name: Jim W. Perry |
| Address for Notices: | | 7215 Manor Oaks Drive |
| | Raleigh, NC 27615 |
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| LONNIE C. POOLE, III IRREVOCABLE |
| TRUST (TAILWALKER TRUST) |
| |
| By: | | /s/ Scott J. Poole |
| Name: | | Scott J. Poole |
| Title: | | Trustee |
| Address for Notices: 7901 Strickland Road |
Suite 115 |
Raleigh, NC 27615 |
8
| | |
| LONNIE C. POOLE, III IRREVOCABLE |
| TRUST (TAILWALKER NON-GST TRUST) |
| |
| By: | | /s/ Scott J. Poole |
| Name: | | Scott J. Poole |
| Title: | | Trustee |
| Address for Notices: 7901 Strickland Road |
Suite 115 |
Raleigh, NC 27615 |
| | |
LONNIE C. POOLE, JR. GRANTOR TRUST |
| DATED MAY 1, 1995 |
| |
| By: | | /s/ Lonnie C. Poole, III |
| Name: | | Lonnie C. Poole, III |
| Title: | | Trustee |
| Address for Notices: 3301 Benson Drive |
Suite 601 |
Raleigh, NC 27609 |
| | |
| By: | | /s/ Scott J. Poole |
| Name: | | Scott J. Poole |
| Title: | | Trustee |
| Address for Notices: 7901 Strickland Road |
Suite 115 |
Raleigh, NC 27615 |
9
| | |
MACQUARIE INFRASTRUCTURE PARTNERS A L.P., BY ITS GENERAL PARTNER, MACQUARIE INFRASTRUCTURE PARTNERS U.S. GP LLC, BY ITS MANAGER AND ATTORNEY- IN-FACT, MACQUARIE INFRASTRUCTURE PARTNERS INC. |
| |
| By: | | /s/ Chris Leslie |
| Name: | | Chris Leslie |
| Title: | | President |
| |
| By: | | /s/ Mark Wong |
| Name: | | Mark Wong |
| Title: | | Treasurer |
| Address for Notices: |
| |
| | Macquarie Infrastructure Partners |
| | 125 West 55th Street, 9th Floor |
| | New York, NY 10019 |
|
MACQUARIE INFRASTRUCTURE PARTNERS INTERNATIONAL L.P., BY ITS GENERAL PARTNER, MACQUARIE INFRASTRUCTURE PARTNERS U.S. GP LLC, BY ITS MANAGER AND ATTORNEY- IN-FACT, MACQUARIE INFRASTRUCTURE PARTNERS INC. |
| |
| By: | | /s/ Chris Leslie |
| Name: | | Chris Leslie |
| Title: | | President |
| |
| By: | | /s/ Mark Wong |
| Name: | | Mark Wong |
| Title: | | Treasurer |
| Address for Notices: |
| |
| | Macquarie Infrastructure Partners |
| | 125 West 55th Street, 9th Floor |
| | New York, NY 10019 |
10
| | |
MACQUARIE INFRASTRUCTURE PARTNERS CANADA, L.P., BY ITS GENERAL PARTNER, MACQUARIE INFRASTRUCTURE PARTNERS CANADA GP LTD., BY ITS MANAGER AND ATTORNEY-IN-FACT, MACQUARIE INFRASTRUCTURE PARTNERS INC. |
| |
| By: | | /s/ Chris Leslie |
| Name: | | Chris Leslie |
| Title: | | President |
| |
| By: | | /s/ Mark Wong |
| Name: | | Mark Wong |
| Title: | | Treasurer |
| Address for Notices: |
| |
| | Macquarie Infrastructure Partners |
| | 125 West 55th Street, 9th Floor |
| | New York, NY 10019 |
11
| | |
| GS DIRECT, LLC |
| |
| By: | | /s/ Gerry Cardinale |
| Name: | | Gerry Cardinale |
| Title: | | Managing Director |
|
| Address for Notices: |
| |
| | c/o Goldman Sachs |
| | 85 Broad Street New York, NY 10004 |
| | Attention: Gerry Cardinale |
12
SCHEDULE A
SHAREHOLDER PARTY SHARES
| | |
SHAREHOLDER PARTY | | SHARES OWNED |
Lonnie C. Poole, Jr. | | 2,239,468 |
Lonnie C. Poole, III | | 767,226 |
Lonnie C. Poole, III Irrevocable Trust (Tailwalker Trust) | | 25,736 |
Lonnie C. Poole, III Irrevocable Trust (Tailwalker Non-GST Trust) | | 407,110 |
Scott J. Poole | | 676,780 |
Lonnie C. Poole, Jr. Grantor Trust dated May 1, 1995 | | 1,741,729 |
Jim W. Perry | | 1,366,057 |
Exhibit B
Contact Information
| | |
| Macquarie Infrastructure Partners | | |
| |
Chris Leslie Senior Managing Director 125 West 55th Street, 9th Floor New York, NY 10019 P (212) 231-1686 F (212) 231-1828 chris.leslie@macquarie.com | | Matthew Lancaster Managing Director 125 West 55th Street, 22nd Floor New York, NY 10019 P (212) 231-1729 F (212) 231-1717 matthew.lancaster@macquarie.com |
| |
| Goldman Sachs | | |
| |
Gerry Cardinale Managing Director 85 Broad Street New York, NY 10004 P (212) 902-6182 F (212) 357-5505 gerry.cardinale@gs.com | | Bill Jacob Managing Director 85 Broad Street New York, NY 10004 P (212) 902-2489 F (212) 357-4449 bill.jacob@gs.com |
| |
| Weil, Gotshal & Manges LLP | | |
| |
Frederick Green Partner 767 Fifth Avenue New York, New York 10153 P (212) 310-8524 F (212) 310-8133 frederick.green@weil.com | | Michael Lubowitz Partner 767 Fifth Avenue New York, New York 10153 P (212) 310-8566 F (212) 310-8133 michael.lubowitz@weil.com |
| |
| Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. | | |
| |
William G. McNairy Partner 2000 Renaissance Plaza 230 North Elm Street Greensboro, NC 27401 P (336) 271-3111 F (336) 232-9111 bmcnairy@brookspierce.com | | J. Lee Lloyd Special Counsel 2000 Renaissance Plaza 230 North Elm Street Greensboro, NC 27401 P (336) 271-3120 F (336) 232-9120 leelloyd@brookspierce.com |
