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EXHIBIT 10.6
EXECUTION COPY
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IESI CORPORATION
A DELAWARE CORPORATION
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
Dated as of September 10, 2001
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TABLE OF CONTENTS
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PAGE
ARTICLE I DEFINITIONS......................................................................................2
Section 1.01. Certain Definitions.......................................................................2
ARTICLE II MANAGEMENT; VOTING OF SHARES....................................................................7
Section 2.01. Board Of Directors........................................................................7
Section 2.02. Certain Restrictions......................................................................9
Section 2.03. Approval Of Certain Transactions..........................................................9
ARTICLE III TRANSFER OF SHARES............................................................................11
Section 3.01. General Restrictions On Transfer.........................................................11
ARTICLE IV RIGHT OF FIRST OFFER...........................................................................12
Section 4.01. First Offer Right........................................................................12
ARTICLE V TAG ALONG AND BRING ALONG RIGHTS................................................................14
Section 5.01. Tag Along Rights.........................................................................14
Section 5.02. Bring Along Rights.......................................................................15
ARTICLE VI ISSUANCE OF STOCK..............................................................................16
Section 6.01. Rights Upon Issuance Of Additional Securities............................................16
ARTICLE VII MISCELLANEOUS.................................................................................18
Section 7.01. Representations And Warranties...........................................................18
Section 7.02. Legend...................................................................................19
Section 7.03. Termination Upon Public Offering Or Sale Transaction.....................................20
Section 7.04. Amendment; Waiver........................................................................20
Section 7.05. Further Assurances.......................................................................20
Section 7.06. Notices..................................................................................20
Section 7.07. Binding Effect; Assignment...............................................................20
Section 7.08. Severability.............................................................................21
Section 7.09. Specific Performance.....................................................................21
Section 7.10. Governing Law............................................................................21
Section 7.11. Entire Agreement.........................................................................21
Section 7.12. Counterparts.............................................................................21
Section 7.13. Board Meetings...........................................................................21
Section 7.14. Information..............................................................................21
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TABLE OF CONTENTS
(CONTINUED)
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Section 7.15. Warrant Holders..........................................................................21
Section 7.16 Expenses.................................................................................21
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AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (this "Agreement")
is entered into September 10, 2001, by and among IESI Corporation, a Delaware
corporation (the "Company"), the stockholders named on the signature pages
hereto (collectively, the "Stockholders"), J. Bruce Boisture (the "Warrant
Holder") and each other Person that may become a Stockholder or a Warrant Holder
after the date hereof and who executes a Joinder Agreement (as hereinafter
defined).
WITNESSETH:
WHEREAS, certain of the Stockholders have heretofore entered into a
certain Stockholders' Agreement, dated March 25, 1997 (the "First Agreement"),
and thereafter entered into a certain Amended and Restated Stockholders'
Agreement, dated as of June 25, 1997 (the "Second Agreement"), and thereafter
entered into a certain Amended and Restated Stockholders' Agreement, dated as of
May 22, 1998 (the "Third Agreement"), and thereafter entered into a certain
Amended and Restated Stockholders' Agreement, dated as of December 15, 1998 (the
"Fourth Agreement"), and thereafter entered into a certain Amended and Restated
Stockholders' Agreement, dated as of June 30, 1999 (the "Fifth Agreement" and
together with the First Agreement, the Second Agreement, the Third Agreement and
the Fourth Agreement, the "Prior Agreements") each of which outlined the various
rights and obligations of the parties thereto as Stockholders of the Company;
WHEREAS, concurrently herewith, the Company and the purchasers named
therein are entering into that certain Stock Purchase Agreement of even date
herewith (the "Purchase Agreement"), pursuant to which the Company is issuing
[50,000] shares of its Series D Convertible Preferred Stock (the "Series D
Preferred Stock"), par value $1.00 per share, to certain of the Stockholders;
WHEREAS, the Stockholders own, beneficially and of record, all of the
issued and outstanding shares of Common Stock (as hereinafter defined) and all
of the issued and outstanding shares of Preferred Stock (as hereinafter
defined);
WHEREAS, the Stockholders and the Warrant Holder deem it to be in
their best interests to provide for consistent and uniform management of the
Company;
WHEREAS, the Stockholders and the Warrant Holder desire to restrict
the Transfer (as hereinafter defined) of shares of Company Stock (as hereinafter
defined), whether issued and outstanding on the date hereof or issued from time
to time hereafter;
WHEREAS, the Stockholders and the Warrant Holder desire to evidence
their agreement with respect to certain other matters in relation to the Company
and their respective holdings of Common Stock and Preferred Stock; and
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WHEREAS, the Stockholders and the Warrant Holder intend that this
Agreement shall replace and supersede the Prior Agreements;
NOW, THEREFORE, in consideration of the premises, the terms and
provisions set forth herein, the mutual benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINITIONS. As used herein, the terms set forth
below shall have the following respective meanings:
"Act" has the meaning specified in Section 7.02 hereof.
"Additional Securities" means all Securities which are issued by the
Company after the date hereof other than (i) any Securities issued or issuable
to all of the holders of Securities then outstanding on a proportionate basis
(based on such holders' respective ownership of the Securities); (ii) any
Securities issued or issuable to any employees, officers or directors pursuant
to any Employee Plan approved by the Board; (iii) Securities which are reissued
by the Company to employees following the repurchase, redemption or other
acquisition of such Securities by the Company from any employee; (iv) any
Securities issued pursuant to a public offering of Equity Securities pursuant to
an effective registration statement under the Act; or (v) any Securities issued
by the Company upon conversion, exercise or exchange of Securities issued (a) on
or before the date hereof or (b) after the date hereof in compliance with the
provisions of Article VI hereof; or (vi) Common Stock issued pursuant to the
Investment Right.
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise; provided that TCC, TCC2, Thayer and
their affiliates shall not be deemed "Affiliates" of the Company.
"Agreement" has the meaning specified in the Introduction hereto.
"Amended Charter" means the Fourth Amended and Restated Certificate of
Incorporation of the Company in the form annexed hereto as Exhibit A.
"Article V Notice" has the meaning specified in Section 5.01(a)
hereof.
"Article V Sellers" has the meaning specified in Section 5.01 hereof.
"Article V Shares" has the meaning specified in Section 5.01(a)
hereof.
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"Bank Credit Agreement" means that certain Credit Agreement dated as
of August 31, 1999, by and among the Company, its subsidiaries named therein and
BankBoston, N.A., as agent, as the same may be amended, modified or supplemented
from time to time.
"Board" has the meaning specified in Section 2.01 hereof.
"Bring Along Notice" has the meaning specified in Section 5.02(b)
hereof.
"Bring Along Sale" has the meaning specified in Section 5.02(a)
hereof.
"Business Day" means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized by law to be closed in the City of
New York, New York.
"Bylaws" means the Bylaws of the Company as in effect on the date
hereof and as the same may hereafter be amended from time to time.
"Common Stock" means the Class A Common Stock, par value $0.01 per
share, and the Class B Common Stock, par value $0.01 per share, of the Company.
"Company" has the meaning specified in the Introduction hereto.
"Company Stock" means the Common Stock and the Preferred Stock.
"Company Transfer" is defined in Section 3.01(a) hereto.
"Employee Plan" means any equity incentive plan, agreement, bonus,
award, stock purchase plan, stock option plan or other stock arrangement with
respect to any employee, officer or director of (i) the Company or (ii) any
subsidiary of the Company.
"EOF II" means Environmental Opportunities Fund II, L.P., a Delaware
limited partnership.
"EOF Delaware" means Environmental Opportunities Fund, L.P., a
Delaware limited partnership.
"EOF Institutional" means Environmental Opportunities Fund II
(Institutional), L.P., a Delaware limited partnership.
"Fifth Agreement" has the meaning specified in the first recital to
this Agreement.
"First Agreement" has the meaning specified in the first recital to
this Agreement.
"Fourth Agreement" has the meaning specified in the first recital to
this Agreement.
"IESI Capital" means IESI Capital LLC, IESI Capital II LLC, IESI
Capital III LLC, IESI Capital IV LLC and IESI Capital V LLC, each a Mississippi
limited liability company.
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"Investment" as applied to any Person means (i) any direct or indirect
purchase or other acquisition by such Person of any notes, obligations,
instruments, stock, securities or ownership interest (including partnership
interests and joint venture interests) of any other Person and (ii) any capital
contribution by such Person to any other Person.
"Issuance Notice" has the meaning specified in Section 6.01(a) to this
Agreement.
"JESCO" means Jim Sowell Construction Co., Inc.
"Joinder Agreement" has the meaning specified in Section 3.01(a) to
this Agreement.
"Like Percentage" means the percentage derived from a fraction, the
numerator of which is the total number of Paid-In Shares proposed to be
transferred by the Proposing Stockholder(s) under Section 5.02(a) and the
denominator of which is the total number of Paid-In Shares held by the Proposing
Stockholder(s).
"Offer Notice" has the meaning specified in Section 4.01(a) to this
Agreement.
"Offered Stock" has the meaning specified in Section 4.01(a) to this
Agreement.
"Option Period" has the meaning specified in Section 5.01(b) hereof.
"Other Stockholders" is defined in Section 4.01(a) hereof.
"Paid-In Shares" means the Common Stock and the Preferred Stock on an
as-if-converted basis.
"Participant" has the meaning specified in Section 5.01(b) hereof.
"Permitted Transferee" means (a) in the case of JESCO, Sowell, (b) in
the case of a Stockholder who is a natural person and is a signatory to the
Agreement on the date hereof, any spouse, child (natural or adopted), spouse of
any such child, grandchild, sister, brother or parent of such Stockholder and to
whom Common Stock is transferred from such Stockholder by (i) will or the laws
of descent and distribution or (ii) by gift without consideration of any kind,
(c) any trust in which there are and continue to be during the term of this
Agreement no beneficiaries other than Permitted Transferees, (d) any charitable
foundation, all the trustees of which are Permitted Transferees, (e) any
Stockholder, and (f) any Person with respect to which a resolution approved by
the Board has been adopted stating that the Board has no objection if a Transfer
of Common Stock is made to such Person (provided, however, that such transfer is
subject to the provisions of Section 5.01) and (g) in the case of EOF Delaware,
EOF II, EOF Institutional, Suez, SEI, TCC, TCC2 or Thayer, a Transfer by any of
them to any of their respective general partners, limited partners or members,
and by any such Persons, to any of their respective general partners, limited
partners or members, and (h) in the case of a Stockholder who is not a natural
person, an Affiliate thereof.
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"Person" means any individual, corporation, partnership, limited
liability company, association, trust or any other entity or organization of any
kind or character, including a governmental authority or agency.
"Preferred Stock" means the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock.
"Prior Agreements" has the meaning specified in the first recital to
this Agreement.
"Proposing Stockholders" has the meaning specified in Section 5.02(a)
hereof.
"Pro Rata Portion" means, as to an individual Stockholder, the
percentage of the Total Shares owned by such Stockholder (including, as to any
individual Stockholder who holds warrants to purchase Common Stock, the number
of shares of Common Stock that would then be issued upon exercise of such
warrants).
"Public Offering" means a firm commitment underwritten public offering
of Common Stock of the Company, subsequent to which the Common Stock listed is
on a national securities exchange or on the NASDAQ System, at an offering price
to the public (without deduction for underwriting fees, commission or discounts)
in an aggregate amount not less than U.S. [$20,000,000] pursuant to an effective
registration statement under the Act.
"Public Sale" means any sale of Common Stock or Preferred Stock to the
public pursuant to any offering registered under the Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the Act.
"Purchase Agreement" has the meaning specified in the second recital
to this Agreement.
"Registration Agreement" means that certain Amended and Restated
Registration Rights Agreement of even date herewith among the Company and the
parties named therein as Stockholders.
"Response Notice" has the meaning specified in Section 6.01(b) to this
Agreement.
"Sale Transaction" means any merger, consolidation, recapitalization,
sale, transfer or issuance of shares of the Company's capital stock by the
Company or any holders, thereof, or any series of such transactions, in each
case which results in any Person or group of Persons (as the term "group" is
used under the Securities Exchange Act of 1934), other than the holders of
Common Stock and Preferred Stock as of the date of the Purchase Agreement, and
the Affiliates thereof, owning more than 50% by vote of the voting stock of the
Company outstanding at the time of such merger, consolidation, recapitalization,
sale, transfer or issuance or series of such transactions.
"Second Agreement" has the meaning specified in the first recital to
this Agreement.
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"Securities" means any capital stock or other similar security of the
Company, including, without limitation, Company Stock, securities containing
equity features and securities containing profit participation features, and any
debt or equity security convertible or exchangeable, with or without
consideration, into or for any stock or similar security, or any security
carrying any warrant, option or right to subscribe for or to purchase any of the
foregoing.
"SEI" means SEI Associates, a Delaware partnership.
"Selling Party" has the meaning specified in Section 5.01(b) hereof.
"Series A Preferred Stock" means the Series A Convertible Preferred
Stock, par value $1.00 per share, of the Company.
"Series B Preferred Stock" means the Series B Convertible Preferred
Stock, par value $1.00 per share, of the Company.
"Series C Preferred Stock" means the Series C Convertible Preferred
Stock, par value $1.00 per share, of the Company.
"Series D Preferred Stock" has the meaning specified in the second
recital to this Agreement.
"Share" means any share of Common Stock or any other security
exercisable, convertible or exchangeable into Common Stock.
"Sowell" means James E. Sowell.
"Stockholders" means the Persons identified in the Introduction hereto
and each other Person that may hereafter become a record owner of shares of
Common Stock or Preferred Stock and who executes a conformed copy hereof or a
Joinder Agreement.
"Subsidiaries" means (i) any corporation more than 50% of whose stock
of any class or classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation (excluding any class or
classes having such voting power solely by reason of the happening of a
contingency) is owned by the Company directly or indirectly through other
Subsidiaries, and (ii) any partnership, association, joint venture or other
entity in which the Company directly or indirectly through other Subsidiaries
has more than a 50% equity interest.
"Suez" means Suez Equity Investors L.P., a Delaware limited
partnership.
"TCC" means TC Carting, L.L.C., a Delaware limited liability company.
"TCC2" means TC Carting II, L.L.C., a Delaware limited liability
company.
"Thayer" means Thayer Equity Investors IV, L.P.
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"Third Agreement" has the meaning specified in the first recital to
this Agreement.
"Total Shares" means the total number of shares of Common Stock
outstanding, assuming the exercise, conversion or exchange into Common Stock of
all Shares.
"Transfer" means any sale, transfer, assignment, gift, exchange,
pledge, hypothecation, encumbrance or other disposition of any shares of Company
Stock or any interest therein, whether voluntary or involuntary and regardless
of the nature or method thereof (other than an exchange, reclassification or
other conversion of shares of Company Stock into cash, securities or other
property pursuant to a merger, consolidation or recapitalization of the
Company). For the purposes of Sections 4.01, 5.01 and 5.02, "Transfer" means any
sale, transfer or other disposition of any shares of Company Stock or any
interest therein for value, whether voluntary or involuntary and regardless of
the nature or method thereof (other than an exchange, reclassification or other
conversion of shares of Company Stock into cash, securities or other property
pursuant to a merger, consolidation or recapitalization of the Company).
"Transferring Stockholder" has the meaning specified in Section
4.01(a) to this Agreement.
"Warrant Holder" has the meaning specified in the Introduction hereto.
ARTICLE II
MANAGEMENT; VOTING OF SHARES
SECTION 2.01. BOARD OF DIRECTORS. The Company shall at all times be
managed by or under the direction of a Board of Directors (the "Board"), which
shall consist of not more than eight members unless Suez should fail or be
unable to exercise its right to designate a director pursuant to this Section,
in which case the Board shall consist of not more than seven members. Suez may
exercise its right to designate a director pursuant to this Section at any time.
The Stockholders hereby agree to use their best efforts and to take all
reasonably necessary or desirable actions within their power, whether in their
capacities as stockholders, directors, members of a board committee, officers of
the Company or otherwise (including, but not limited to, the voting of shares of
Company Stock owned by them, attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings), and the Company shall take all reasonably necessary or desirable
actions within its control (including, without limitation, calling special board
and stockholder meetings) to effectuate and carry out the following provisions:
(a) The Stockholders shall be entitled to representation on the
Board as follows:
(i) Charles F. Flood shall have the right to serve as a director
for so long as he shall remain chief executive officer of the
Company;
(ii) IESI Capital shall have the right to designate one director;
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(iii) EOF Delaware shall have the right to designate one director;
(iv) TCC shall have the right to designate two directors, who are
initially designated as Daniel M. Dickenson and Robert E.
Michalik;
(v) Thayer shall have the right to designate two directors, one
of whom is initially designated as Charles R. Cummings; and
(vi) Subject to Regulation Y of the Governors of the Federal
Reserve System, 12 C.F.R. 225, Suez shall have the right to
designate one director.
The Stockholders hereby agree to vote all of the voting securities of
the Company owned by them for the election of the directors designated in
accordance with this Section 2.01(a) or to cause the directors then in office to
elect such persons in the case of a vacancy. In the event of a tie in any vote
of the Board, one of the TCC directors designated by TCC as the tie breaker
shall have the right to cast the tie-breaking vote. Sowell and, in the event
that Suez should fail or be unable to exercise its right to designate a director
pursuant to this Section 2.01, Suez shall have the right to (a) designate a
representative to attend and observe meetings of the Board and the executive
committee and (b) receive all information and consents distributed to directors.
(b) A director may be removed only if the Person or Persons, if
any, entitled to designate such director pursuant to Section 2.01(a) hereof
delivers a written notice to the Company stating that such director shall
forthwith be removed and replaced with a substitute director designated in such
notice.
(c) In the event that any vacancy is created on the Board by
reason of the death, resignation or removal of any director designated pursuant
to Section 2.01(a), such vacancy shall be filled by a substitute director
designated by the Person or Persons, if any, entitled to designate the director
whose death, resignation or removal created such vacancy and each of the
Stockholders shall cause its designated directors to elect the person designated
to fill the vacancy.
(d) Any committee of the Board will be constituted to give each
of IESI Capital, Suez, EOF Delaware, TCC and Thayer representation thereon at
least proportionate to their representation on the Board.
(e) Directors shall not be entitled to receive any compensation
from the Company for service as a director; PROVIDED, HOWEVER, that all
reasonable out-of-pocket expenses of each director (and a representative of Suez
if no director has been designated as provided in Section 2.01 (a) (vi))
incurred in connection with attending regular and special board meetings and any
meeting of any board committee shall be paid by the Company.
SECTION 2.02. CERTAIN RESTRICTIONS. No Stockholder shall grant any
proxy, enter into or agree to be bound by any voting trust agreement or
arrangement of any kind with respect to any voting securities of the Company, or
enter into any stockholder agreements or arrangement of any kind with respect to
any Securities of the Company, any of which is inconsistent with the provisions
of this Agreement, including, but not limited to, any agreement
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or arrangement with respect to the voting of voting securities of the Company,
nor shall any Stockholder act as a member of a group or in concert with any
other Person in connection with the acquisition of shares of Securities of the
Company in any manner inconsistent with the provisions of this Agreement;
PROVIDED, HOWEVER, that the foregoing shall in no way restrict IESI Capital, EOF
Delaware, TCC or Thayer from establishing any arrangement with respect to the
exercise of their respective rights pursuant to Section 2.01(a) hereof.
SECTION 2.03. APPROVAL OF CERTAIN TRANSACTIONS. Neither the Company nor
any Subsidiaries nor any of their officers, employees, agents or advisors, shall
do or take or cause to be done or taken, nor shall any of them cause or permit
any direct or indirect subsidiary of the Company to do or take or cause to be
done or taken, any of the actions or decisions set forth below without the prior
consent and approval of each of the directors appointed by TCC and Thayer:
(a) Make any substantial change in the character of the Company's
or any Subsidiary's principal business;
(b) Adopt or modify in any material respect the Company's or any
Subsidiary's annual business and financial plan or any other material budget for
the Company or any Subsidiary;
(c) (i) Amend or modify the Bank Credit Agreement; or (ii)
create, incur, assume or permit to exist any indebtedness or other obligation
that under generally accepted accounting principles is required to be shown on
the consolidated balance sheet of the Company as a liability, including, but not
limited to, indebtedness evidenced by a promissory note, bond or similar written
obligation to pay money and indebtedness guaranteed by the Company or any
Subsidiary or for which the Company or any Subsidiary is otherwise liable, other
than such indebtedness or other obligation (A) arising in the ordinary course of
business of the Company or any Subsidiary, (B) contemplated in the Company's
most recently approved annual or financial plan, as approved by the Board, or
(C) in an amount of up to $5,000,000 incurred in connection with an acquisition
permitted by or consented to under the Bank Credit Agreement as the same may be
amended or supplemented from time to time in accordance with Section 2.03(c)(i);
PROVIDED, HOWEVER, that each of such directors shall have been deemed to
approve, and nothing in this Section shall operate to restrict, the amendment of
the Bank Credit Agreement to provide for the increase in the line of credit
provided for therein to an aggregate of $275 million;
(d) Except as set forth in the Company's or any Subsidiary's
annual business and financial plan, as approved by the Board, make any
expenditure for fixed or capital assets that exceed by more than 10% the
aggregate limitations set forth therein;
(e) Sell, lease, pledge, encumber, assign, exchange, transfer or
otherwise dispose of, or part with control of (whether in one transaction or a
series of transactions) all or substantially all of the assets of the Company or
any Subsidiary (including, without limitation, receivables and leasehold
interests), whether now owned or hereafter acquired, except for (i) sales or
other dispositions of inventory in the ordinary course of business and (ii)
sales or other dispositions of assets which have become worn out or obsolete or
which are promptly being replaced;
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(f) Purchase or acquire any property from, exchange any property
with, or lease any property to, lend or advance any money to, borrow any money
from, guarantee any obligation of, acquire any stock, obligations or securities
of, enter into any merger or consolidation agreement with, or enter into any
other transaction or arrangement or otherwise deal with (i) any officer,
director or shareholder of the Company or any Subsidiary in an amount greater
than $100,000 or (ii) any Affiliate of the Company or any Subsidiary, except for
transactions (A) entered into in the ordinary course of business, (B) having
terms no less favorable to the Company than in similar transactions negotiated
with a third party, and (C) under which the Company's obligations do not exceed
$100,000 per year;
(g) Issue, offer or sell, or obligate itself to issue, offer or
sell, to any person or entity, any Equity Securities, except as otherwise
required under this Agreement or the Registration Agreement;
(h) Agree to register any securities of the Company or any
Subsidiary under the Act, except as otherwise required under the Registration
Agreement;
(i) Make any loan or advance to or other Investment in any person
or entity, except advances and similar expenditures in the ordinary course of
business;
(j) Declare or pay out any dividend or make any distribution on
its capital stock or purchase, redeem (by direct payment, sinking fund or
otherwise) or otherwise acquire or retire for value any of its Capital Stock,
except for optional redemption of the Preferred Stock in accordance with the
terms thereof;
(k) Directly or indirectly (i) encourage, solicit, initiate,
pursue or enter into, or engage or participate in, any negotiations or
agreements with any Person concerning any merger, acquisition, consolidation,
sale of all or substantially all of the assets of the Company or any Subsidiary,
recapitalization, or other business combination or change in control transaction
involving the Company or any Subsidiary or any division or business unit
thereof, or (ii) acquire all or substantially all of the ownership interests or
assets, or any division or business unit, of any other Person;
(l) Change or appoint the chairman, chief executive officer, the
chief operating officer or the chief financial officer of the Company; or
(m) Agree to any of the actions described in the foregoing
clauses (a) through (l).
ARTICLE III
TRANSFER OF SHARES
SECTION 3.01. GENERAL RESTRICTIONS ON TRANSFER.
(a) Except as otherwise provided in this Agreement, no
Stockholder shall directly or indirectly effect a Transfer of any Shares owned
or held by such Stockholder unless (i) such Transfer is to a Permitted
Transferee (other than Transfers to another Stockholder that is
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not an Affiliate of the transferring Stockholder or Transfers that are
consummated after compliance with the provisions of Section 4.01, Section 5.01
or Section 5.02 hereof), (ii) the certificate or certificates representing such
Shares bear a legend as provided in Section 7.02 hereof to the effect that such
Shares are not registered under the Act and that the Transfer thereof is subject
to the terms of this Agreement, (iii) the Permitted Transferee shall have
executed, as a condition to obtaining ownership of such Shares, an instrument
substantially in the form attached hereto as Exhibit B (a "Joinder Agreement")
in which the Permitted Transferee agrees that its ownership of such shares of
Company Stock shall be subject to, and that the Permitted Transferee will comply
with, all of the terms and conditions of this Agreement and in which the
Permitted Transferee confirms that the representations and warranties contained
in Section 7.01(a) hereof are true and correct with respect to such Permitted
Transferee as of the date of such Joinder Agreement, and (iv) such Joinder
Agreement shall have been promptly delivered to the Board of the Company prior
to the acquisition by such Permitted Transferee of such Shares. Such a Permitted
Transferee that is not already a party to this Agreement, by executing a Joinder
Agreement as hereinabove provided, shall become a party to this Agreement and
shall be deemed a Stockholder for purposes hereof. Notwithstanding the
foregoing, a Stockholder may effect a Transfer of Shares owned or held by such
Stockholder (i) pursuant to a Public Sale, or (ii) to the Company, in a
transaction that is incidental to (A) the exercise, conversion or exchange of
such Shares in accordance with the terms of such Shares, (B) a combination of
such Shares (including a reverse stock split), or (C) a recapitalization,
reorganization or reclassification, or merger or consolidation involving the
Company or the Shares (each a "Company Transfer").
(b) No Stockholder shall directly or indirectly effect a Transfer
of any Shares owned or held by such Stockholder if such action would constitute
a violation of any federal securities laws or any state securities or blue sky
laws or a breach of the conditions under which such Transfer is exempt from
registration under any such laws or a breach of any undertaking or agreement on
the part of such Stockholder made or entered into pursuant to such laws or in
connection with obtaining an exemption from registration thereunder. Such
Stockholder shall deliver to the Company a written opinion of counsel acceptable
to the Company, in form and substance reasonably satisfactory to the Company, to
the effect that the Transfer of such Shares is exempt from registration under
the Act and applicable state securities laws; PROVIDED, HOWEVER, that in the
event of a Transfer of Shares between Suez (or its successors or assigns
hereunder) and any of its Affiliates who are Stockholders; EOF (or its
successors or assigns hereunder) and any of its Affiliates who are Stockholders;
IESI Capital and any of the other entities included in such definition
hereunder; and between and among Thayer, TCC2 and TCC, no opinion of counsel
shall be required, unless, in any case, the Company reasonably requests such an
opinion. The Company shall promptly advise a selling Stockholder whether such
opinion of counsel is in form and substance satisfactory to the Company.
(c) The Company shall refuse to record in its stock transfer
books a Transfer by any Stockholder of any Shares that is not effected in
compliance with this Agreement, and any such attempted Transfer shall be null
and void.
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ARTICLE IV
RIGHT OF FIRST OFFER
SECTION 4.01 FIRST OFFER RIGHT.
(a) At least 30 days prior to making any Transfer of any Company
Stock (other than in a Public Sale, to a Permitted Transferee (but not Transfers
to a Stockholder that is not an affiliate of the transferring Stockholder (the
"Transferring Stockholder")) or a Company Transfer), the Transferring
Stockholder shall deliver a written notice (an "Offer Notice") to the Company
and the other Stockholders (the "Other Stockholders"). The Offer Notice shall
disclose in reasonable detail the proposed number of shares of Company Stock to
be transferred (the "Offered Stock"), the proposed terms and conditions of the
Transfer and the identity of the prospective transferee(s) (if any). The Company
shall promptly provide to any Stockholder, upon written request to the Company
for the purpose of delivering an Offer Notice, a list of names and addresses of
all the Stockholders. First, the Company may elect to purchase all (but not less
than all) of the Offered Stock specified in the Offer Notice at the price and on
the terms specified therein by delivering written notice of such election to the
Transferring Stockholder and the Other Stockholders as soon as practical but in
any event within ten days after the delivery of the Offer Notice. If the Company
does not elect to purchase all of the Offered Stock within such ten-day period,
each Other Stockholder may elect to purchase a portion of such Offered Stock at
the price and on the terms specified in the Offer Notice by delivering written
notice of such election to the Transferring Stockholder as soon as practical,
but in any event within 20 days after delivery of the Offer Notice, provided
that the rights granted to the Other Stockholders under this Section 4.01(a)
shall only exist if the Other Stockholders collectively elect to purchase all
(or more than all as provided in the next sentence) and not less than all of the
Offered Stock. If the Other Stockholders have in the aggregate elected to
purchase more than the number of shares of Offered Stock being offered by the
Transferring Stockholder, the Offered Stock shall be allocated among the Other
Stockholders electing to purchase Shares pro rata based upon the number of
Shares elected to be purchased. Any Offered Stock not elected to be purchased by
the end of such 20 day period shall be re-offered by the Transferring
Stockholder, for the ten-day period following the expiration of such 20 day
period, on a pro rata basis to the Other Stockholders who have elected to
purchase Offered Stock and, if any Offered Stock remains after such re-offering,
the Company shall have the right to purchase such remaining Offered Stock. If
the Company or any Other Stockholders have elected to purchase all (but not less
than all) Offered Stock from the Transferring Stockholder, the transfer of such
Shares shall be consummated as soon as practical after the delivery of the
election notice(s) to the Transferring Stockholder, but in any event within 15
days after the expiration of the final applicable election period.
(b) If the Company and the Other Stockholders have not elected to
purchase all of the Offered Stock, the Transferring Stockholder may, within 60
days after the expiration of the applicable election period and subject to the
provisions of Section 5.01 hereof, Transfer such Offered Stock to one or more
third parties at a price no less than the price per Share specified in the Offer
Notice and on other terms no more favorable to the transferees thereof than
offered to the Company and the Other Stockholders in the Offer Notice. Any
Offered Stock not transferred
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within such 60 day period shall be re-offered to the Company and the Other
Stockholders under subparagraph (a) above prior to any subsequent Transfer.
(c) At any closing pursuant to subparagraph (a) above, the
Company and/or the relevant Other Stockholder(s), as the case may be, shall
deliver to the Transferring Stockholder the full amount of the purchase price of
the Offered Stock (any cash portion thereof to be paid in immediately available
funds), and the Transferring Stockholder shall execute and deliver to the
Company or the relevant Other Stockholder(s) certificate(s) representing the
Shares being transferred, free of any liens, claims or encumbrances (other than
those imposed by Federal or state securities laws and this Agreement), and such
duly executed stock powers or other instruments of conveyance as the Company or
the relevant Other Stockholder(s), as the case may be, shall reasonably request
to convey title to the Offered Stock. The Transferring Stockholder shall pay any
applicable federal, state or local taxes incurred in connection with the
foregoing transfer.
SECTION 4.02. PLEDGE OF SHARES. A Stockholder shall have the right to
pledge any shares of Company Stock owned or held by such Stockholder to the
Company, a commercial bank, savings and loan association or other lending or
financial institution as security for any indebtedness of such Stockholder;
PROVIDED, HOWEVER, that no such pledge shall be made unless (i) the Person to
which such pledge is made shall have executed an appropriate document in which
such Person agrees that, in the event of realization upon such Shares, such
Shares shall continue to be subject to the terms and conditions of this
Agreement and that such Person will not effect any Transfer of such Shares
except in compliance with the provisions hereof as if such Person was a
Stockholder, and (ii) such document shall have been promptly delivered to, and
shall have been approved by, the Company prior to the pledge of such Shares,
which approval shall not be unreasonably withheld.
ARTICLE V
TAG ALONG AND BRING ALONG RIGHTS
SECTION 5.01. TAG ALONG RIGHTS. In the event that any Stockholder or
group of Stockholders (such Stockholder or Stockholders, together with their
respective Permitted Transferees, shall be hereinafter referred to as the
"Article V Sellers") proposes to Transfer in a single transaction or a series of
related transactions to any Person or group of Persons (other than any Person
who is a Stockholder as of the date hereof or a Permitted Transferee or any
Company Transfer), other than in a Public Sale or a Transfer to the Company or
another Stockholder pursuant to Section 4.01, Paid-In Shares representing an
amount equal to or greater than 5% of the Paid-In Shares in the aggregate, the
Article V Sellers shall first comply with the following:
(a) The Article V Seller or Sellers shall give written notice
(the "Article V Notice") to the Company and each Stockholder identifying the
number of Paid-In Shares it desires to Transfer (the "Article V Shares"), the
intended method of the Transfer, the price such Article V Seller desires to
receive for such Article V Shares, the proposed transfer date, and all
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other pertinent terms thereof, including, if known, the identity of any proposed
buyer or buyers of such Article V Shares. The Company shall promptly provide to
any Stockholder, upon written request to the Company, for the purpose of
delivering an Article V Notice, a list of the names and addresses of all of the
Stockholders. For purposes hereof, a bona fide third-party tender or exchange
offer to purchase shares of Company Stock shall be deemed to be an offer to
purchase such Shares at the price specified therein, without regard to any
provisions thereof with respect to proration or conditions to the offeror's
obligation to purchase.
(b) Any Stockholder that is not an Article V Seller (a
"Participant") may elect to participate in the contemplated Transfer by
delivering a written notice to the Company and the Article V Seller or Sellers,
within 30 Business Days (the "Option Period") after receipt of the Article V
Notice, specifying the number of Paid-In Shares such Participant elects to sell.
Each such Participant may elect to Transfer in the contemplated transaction, at
the same price and on the same terms, up to a number of Paid-in Shares equal to
the product of (i) the quotient determined by dividing the percentage of Paid-In
Shares owned by such Stockholder by the aggregate percentage of Paid-In Shares
owned by the Article V Sellers and all Participants and (ii) the number of
Paid-in Shares to be sold in the proposed transaction. If the Participants and
the Article V Sellers (singularly, a "Selling Party", and, collectively, the
"Selling Parties") in the aggregate elect to sell more than the total number of
Paid-In Shares that the proposed buyer or buyers wish to purchase, then each
Selling Party shall be entitled to sell to such buyer or buyers that number of
Shares equal to the number of Paid-In Shares to be so purchased by such buyer or
buyers from the Selling Parties multiplied by a fraction the numerator of which
is the number of Paid-in Shares such Selling Party elects to sell and the
denominator of which is the aggregate number of Paid-in Shares all of such
Selling Parties elect to sell.
(c) Each Article V Seller and Participant shall effect its
participation in a sale or other Transfer by arranging for the delivery to the
buyer or buyers of one or more certificates, properly endorsed for transfer,
which represent the number of shares of Company Stock which the Article V Seller
or Participant is entitled to sell pursuant to this Section 5.01. All shares of
Company Stock proposed to be transferred by each Article V Seller and
Participant shall be transferred free and clear of all liens, claims and
encumbrances of any kind (other than those imposed by federal and state
securities laws and this Agreement) and such Article V Seller and Participant
shall, if requested, deliver certificates to such effect.
SECTION 5.02. BRING ALONG RIGHTS.
(a) If TCC, Thayer and/or TCC2 (a "Proposing Stockholder") shall
propose a Transfer (in a business combination or otherwise) of 51% or more of
the aggregate of the Paid-In Shares in a bona fide arm's length transaction (a
"Bring Along Sale") with a party who is not an Affiliate of such Proposing
Stockholder, the Proposing Stockholder(s), at its option, may require that (i)
each other Stockholder sell or exchange a Like Percentage of its Paid-In Shares
in the same transaction at the same price and on the same terms and conditions
as applicable to the Proposing Stockholder(s), and (ii) if Stockholder approval
of the transaction is required, then each Stockholder shall vote its shares of
Company Stock in favor thereof. Each Stockholder covenants and agrees that it
shall vote for, consent to and raise no objections against the Bring Along Sale
(and shall waive any rights of appraisal) and shall fully cooperate with and
take all necessary and desirable actions in connection with the consummation of
such Bring Along Sale,
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including without limitation executing and delivering (i) a purchase and sale
agreement in the form to be entered into by the Proposing Stockholder(s), (ii)
instruments of conveyance and transfer and (iii) such other documents as the
Proposing Stockholder(s) or the buyer(s) may reasonably require to consummate
the Bring Along Sale. The obligations of the other Stockholders with respect to
any Bring Along Sale are subject to the conditions that upon consummation of the
Bring Along Sale, all of the holders of Common Stock will receive the same form
and amount of consideration per share of Common Stock, all of the holders of the
same series of Preferred Stock will receive the same form and amount of
consideration per share of such series of Preferred Stock, and if any holder of
Common Stock or any series of Preferred Stock is given an option as to the form
and amount of consideration to be received, all holders of such stock will be
given the same option.
(b) The Proposing Stockholders shall give written notice (the
"Bring Along Notice") to each of the other Stockholders, identifying the
proposed buyer or buyers, a description of the Bring Along Sale, the number of
shares of Company Stock to be transferred, the amount and type of consideration
to be paid, the proposed transfer date and all other pertinent terms thereof no
later than 15 days prior to such proposed transfer date. The Company shall
promptly provide to the Proposing Stockholders, upon written request to the
Company for the purpose of delivering a Bring Along Notice, a list of the names
and addresses of all of the Stockholders.
(c) On the closing date of a Transfer pursuant to this Section
5.02, the Proposing Stockholders and the other Stockholders shall sell the
shares of Company Stock owned by them to the buyer or buyers designated in the
Bring Along Notice on the terms and conditions acceptable to the Proposing
Stockholders which shall be at least as favorable as those set forth in the
Bring Along Notice. By execution of this Agreement, each Stockholder hereby
irrevocably designates and appoints the Proposing Stockholders, or any one of
them, as its attorney in fact to transfer such Stockholder's shares of Company
Stock on the books of the Company in connection with any Transfer made or
required to be made by such Stockholder (if such Stockholder is not a Proposing
Stockholder) pursuant to this Section 5.02. All shares of Company Stock to be
Transferred by each Stockholder pursuant to this Section 5.02 shall be free and
clear of all liens, claims and encumbrances of any kind (other than those
imposed by federal and state securities laws and this Agreement) and such
Stockholder shall, if requested, deliver certificates to such effect.
(d) For the purposes of Section 5.01 and Section 5.02, a
"Transfer" shall include a merger, consolidation or similar combination,
exchange, sale of assets followed by a liquidation, any disposition for cash,
marketable securities, debt obligations and/or other property or a combination
thereof and a public offering of shares of Company Stock pursuant to a
registration statement under the Act.
ARTICLE VI
ISSUANCE OF STOCK
SECTION 6.01. RIGHTS UPON ISSUANCE OF ADDITIONAL SECURITIES. Except as
otherwise provided in Section 6.01(e), the Company hereby grants to each
Stockholder
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the following rights with respect to any and all proposed issuances of
Additional Securities by the Company:
(a) The Company shall give each Stockholder written notice of the
Company's intention to issue Additional Securities (the "Issuance Notice"),
describing the type of Additional Securities, the price at which the Additional
Securities will be issued and the general terms upon which the Company proposes
to issue the Additional Securities, including the anticipated date of such
issuance.
(b) Each Stockholder shall have 20 Business Days from the date it
receives the Issuance Notice to agree to purchase all or any portion of its Pro
Rata Portion of such Additional Securities by giving written notice to the
Company of its desire to purchase Additional Securities (the "Response Notice")
and stating therein the quantity of Additional Securities to be purchased. Such
Response Notice shall constitute the irrevocable agreement of such Stockholder
to purchase the quantity of Additional Securities indicated in the Response
Notice at the price and upon the terms stated in the Issuance Notice; PROVIDED,
HOWEVER, that if the Company is proposing to issue Additional Securities for
consideration other than all cash, and subject to the limitations on the rights
set forth in this Section 6.01(e), the Company shall accept from such
Stockholder either non-cash consideration which is reasonably comparable to the
non-cash consideration proposed by the Company or the cash value of such
non-cash consideration. Any purchase by a Stockholder of Additional Securities
shall be consummated on or prior to the later of the date on which all other
Additional Securities described in the applicable Issuance Notice are issued or
the tenth Business Day following delivery of the Response Notice by such
Stockholder.
(c) The Company shall have 120 days from the date of the Issuance
Notice to consummate the proposed issuance of the Additional Securities, which
the Stockholders have not elected to purchase pursuant to Section 6.01(b).
Notwithstanding the foregoing, the Company may sell the Additional Securities
which the Stockholders have not elected to purchase pursuant to a Response
Notice at a price and upon terms that are less favorable to the Company than
those specified in the Issuance Notice; PROVIDED that any purchase of Additional
Securities by the Stockholders consummated at the time of such issuance,
pursuant to the last sentence of Section 6.01(b), shall be upon the same less
favorable terms; PROVIDED, FURTHER that if a Stockholder did not elect to
purchase any or all of its Pro Rata Portion of Additional Securities based upon
the terms specified in the relevant Issuance Notice, the Company shall provide
such Stockholder with a revised Issuance Notice reflecting such less favorable
terms, and each such Stockholder shall have 15 Business Days from the date such
Stockholder receives such revised Issuance Notice to agree to purchase all or
any portion of its Pro Rata Portion of such Additional Securities to be issued
upon the less favorable terms set forth in the revised Issuance Notice by giving
written notice to the Company of its desire to purchase such Additional
Securities and stating therein the quantity of Additional Securities to be
purchased. In the event the Company proposes to issue Additional Securities
after such 180-day period or Additional Securities in addition to those
specified in the Issuance Notice, it must again comply with the procedures set
forth in this Section 6.01.
(d) In the event the Company grants to any Person rights to
participate in any issuances of Securities which are more favorable than the
rights granted to the Stockholders in
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this Section 6.01, the rights granted to the Stockholders shall be expanded to
the extent necessary to make such rights no less favorable than the rights
granted to such other Person; PROVIDED, HOWEVER, that the foregoing provisions
shall not apply to the rights granted by the Company to any underwriter to
acquire Securities to be issued and sold by the Company in a Public Offering.
(e) Notwithstanding the foregoing provisions of this Section
6.01, the Stockholders shall not have the right to participate in the issuances
of any Securities (i) made as part of the consideration paid by the Company in
any merger, consolidation, combination, acquisition of securities of another
corporation or purchase of any business or assets for such securities by or with
the Company; PROVIDED that the Board shall have determined, in its sole
discretion by resolution approved by the Board, that the consideration to be
received by the Company in such issuance is not less than the fair market value
of the Securities to be issued in such transaction; PROVIDED, FURTHER, that no
Stockholder or Affiliate thereof shall own any interest in the corporation or
entity with whom the merger, consolidation, combination, acquisition or purchase
of assets is consummated, unless such Stockholder is an executive officer of the
Company on such date and will be employed by the entity with which the merger,
consolidation, combination, acquisition or purchase of assets transaction is
consummated after the date of such transaction; or (ii) any Securities issued or
issuable to any employees, officers or directors pursuant to any Employee Plan
approved by the Board.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. REPRESENTATIONS AND WARRANTIES.
(a) Each of the Stockholders hereby represents and warrants to
the Company and the other Stockholders as follows:
(i) such Stockholder has full power and authority to execute,
deliver and perform this Agreement and to consummate the
transactions contemplated hereby without the consent,
concurrence or joinder of any other Person (except for any
such consent, concurrence or joinder that has been obtained
and a copy of which has been delivered to the Company);
(ii) the execution, delivery, and performance by such Stockholder
of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly authorized by
all necessary action on the part of such Stockholder;
(iii) this Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a binding
obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms; and
(iv) the execution, delivery and performance by such Stockholder
of this Agreement and the consummation by such Stockholder of
the transactions contemplated hereby will not (with or
without the giving of notice or the lapse of time, or both)
(A) violate any provision of law, statute, rule or
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regulation to which such Stockholder is subject, (B) violate
any order, judgment, or decree applicable to such Stockholder
or its properties or assets, or (C) conflict with, or result
in a breach or default under, any agreement or other
instrument to which such Stockholder is a party or by which
such Stockholder or its properties or assets is bound.
(b) The Company hereby represents to each of the Stockholders as
follows:
(i) the Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(ii) the Company has all requisite corporate power and authority
under the Amended Charter and By-Laws to execute, deliver and
perform this Agreement and to consummate the transactions
contemplated hereby;
(iii) the execution, delivery and performance by the Company of
this Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of the Company;
(iv) this Agreement has been duly and validly executed and
delivered by the Company and constitutes a binding obligation
of the Company, enforceable against the Company in accordance
with its terms; and
(v) the execution, delivery and performance by the Company of
this Agreement and the consummation by the Company of the
transactions contemplated hereby will not (with or without
the giving of notice or the lapse of time, or both) (A)
violate any provision of law, statute, rule or regulation to
which the Company is subject, (B) violate any order,
judgment, or decree applicable to the Company or its
properties or assets, or (C) conflict with, or result in a
breach or default under, the Amended Charter or Bylaws or any
other agreement or other instrument to which the Company is a
party or by which the Company or its properties or assets is
bound.
SECTION 7.02. LEGEND. A copy of this Agreement shall be filed with the
permanent records of the Company and shall be kept at all times at the principal
place of business of the Company. Each Stockholder agrees that all certificates
representing shares of Common Stock and Preferred Stock shall have affixed
thereto a legend substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES
LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF OR
PLEDGED OR HYPOTHECATED UNLESS REGISTERED UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM REGISTRATION UNDER THE
ACT AND ANY SUCH LAWS IS AVAILABLE
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(AND, IN SUCH CASE, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, SHALL HAVE BEEN
DELIVERED TO THE COMPANY TO THE EFFECT THAT THE OFFER, SALE, TRANSFER,
DISPOSITION, PLEDGE OR HYPOTHECATION THEREOF IS EXEMPT FROM REGISTRATION
UNDER THE ACT AND ANY SUCH LAWS).
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AS SET FORTH IN A STOCKHOLDERS' AGREEMENT DATED AS
OF SEPTEMBER 10, 2001 AMONG THE COMPANY AND ITS STOCKHOLDERS, AS IT MAY BE
AMENDED FROM TIME TO TIME. A COPY OF SUCH AGREEMENT WILL BE FURNISHED TO
THE RECORD HOLDER OF THE SHARES REPRESENTED BY THIS CERTIFICATE WITHOUT
CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF
BUSINESS OR REGISTERED OFFICE. NO REGISTRATION OF TRANSFER OF SUCH SHARES
WILL BE MADE ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL SUCH RESTRICTIONS
SHALL BE COMPLIED WITH."
SECTION 7.03. TERMINATION UPON PUBLIC OFFERING OR SALE TRANSACTION. If
this Agreement has not previously been terminated by the written consent of all
the Stockholders then party hereto, this Agreement, except for the provisions of
Section 2.01, shall terminate upon the effective date of a Public Offering or
Sale Transaction. In addition, upon the request of the underwriter in connection
with an initial Public Offering, the Stockholders will discuss the termination
of Section 2.01.
SECTION 7.04. AMENDMENT; WAIVER. The provisions of this Agreement may
be amended, and compliance with the provisions hereof may be waived, only by a
written instrument executed by Stockholders holding not less than seventy
percent (70%) of the Paid-In Shares and the Company; PROVIDED, HOWEVER, that the
Agreement may be amended to add a new Stockholder as a party hereto by the
Company and such new Stockholder executing and delivering a Joinder Agreement.
No failure on the part of any party to exercise any right, power or privilege
granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege granted hereunder.
By virtue of the execution hereof, any non-compliance with the provisions
of the Prior Agreements in connection with the issuance of the Series D
Preferred Stock is hereby waived.
SECTION 7.05. FURTHER ASSURANCES. Each Stockholder agrees to do, or
cause to be done, such further acts and to execute and deliver, or to cause to
be executed and delivered, such further agreements, instruments, certificates
and other documents as may be necessary or appropriate to effectuate and carry
out the purposes of this Agreement.
SECTION 7.06. NOTICES. All notices and other communications hereunder
shall be in writing and shall be given by delivery in person, by registered or
certified mail (return
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receipt requested and with postage prepaid thereon) or by facsimile transmission
to the parties at their respective addresses as reflected in the Company's
records (or to such other address as any party shall have furnished to the
others pursuant to this Section 7.06). All notices and other communications
hereunder that are addressed as provided in this Section 7.06 shall be deemed
duly and validly given, (a) if delivered in person or by overnight courier, upon
delivery, (b) if delivered by registered or certified mail, 72 hours after being
placed in a depository of the United States mails, and (c) if delivered by
facsimile transmission, upon transmission thereof and receipt of the appropriate
confirmation.
SECTION 7.07. BINDING EFFECT; ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, assigns, executors, administrators, personal representatives and
successors (it being understood and agreed that nothing contained in this
Agreement is intended to confer upon any other Person any rights, benefits or
remedies of any kind or character whatsoever). No Stockholder may assign this
Agreement to any Person (other than a Permitted Transferee of Shares previously
owned or held by such Stockholder that acquired the same in compliance with the
provisions of this Agreement) without the prior written consent of each of the
other parties hereto.
SECTION 7.08. SEVERABILITY. In the event that any provision set forth
in this Agreement is found to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining terms and provisions
hereof shall not be in any way affected thereby, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
SECTION 7.09. SPECIFIC PERFORMANCE. The parties hereto agree that a
violation of the provisions hereof would cause irreparable injury to the parties
hereto for which they would have no adequate remedy at law. Accordingly, in the
event of any such violation, the parties hereto shall be entitled to preliminary
and other injunctive relief without necessity of complying with any requirement
as to the posting of a bond or other security. Any such injunctive relief shall
be in addition to any other remedies that may now or hereafter be available at
law or in equity.
SECTION 7.10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
SECTION 7.11. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements or understandings, whether written or oral,
among the parties or any of them with respect thereto, including the Prior
Agreements.
SECTION 7.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 7.13. BOARD MEETINGS. The Company shall conduct quarterly board
meetings at which the financial statements and activities of the Company in the
prior quarter are reviewed.
SECTION 7.14. INFORMATION. Each Stockholder shall receive all
information provided to any other Stockholder, in their capacity as such, at the
time such other Stockholder receives such information.
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SECTION 7.15. WARRANT HOLDERS. No right granted under this Agreement
shall be effective as to any Warrant Holder that is a party to this Agreement on
the date hereof, or that becomes a party to this Agreement by submitting a
Joinder Agreement to the Company in connection with being issued, after the date
hereof, warrants to purchase Company Stock, until such Warrant Holder exercises
its right to purchase shares of Company Stock pursuant to its warrants. Upon any
such purchase, the Warrant Holder shall become a Stockholder with respect to the
shares of Company Stock purchased, subject to all the terms, conditions and
restrictions and entitled to all the rights and benefits of this Agreement. The
foregoing notwithstanding, upon becoming a party to this Agreement, Warrant
Holders shall be subject to all the terms, conditions and restrictions of this
Agreement.
SECTION 7.16. EXPENSES. The costs and expenses (including reasonable
attorney's fees) associated with any filings with any governmental body and any
approvals of any governmental authority (including with respect to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended) required under
the Amended Charter in connection with the conversion or redemption of any
capital stock of the Company shall be paid by the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ADDRESSES: COMPANY:
6125 Airport Freeway IESI CORPORATION
Haltom City, Texas 76177 a Delaware corporation
Attn: President
Tel: (817) 314-5800
Fax: (817) 314-5239 By:
-------------------------------------
Name:
-----------------------------------
with a copy to Title:
----------------------------------
IESI Corporation
2 Commerce Street
Bayonne, New Jersey 07002
Attn: Secretary
Tel: (201) 437-5200
Fax: (201) 437-5300
c/o Jeffrey Keenan IESI CAPITAL LLC,
11201 Brookwood Street a Mississippi limited liability company
Leawood, Kansas 66211
Tel: (913) 906-9601
Fax: (913) 906-9716 By:
-------------------------------------
Jeffrey J. Keenan
Managing Member
c/o Jeffrey Keenan IESI CAPITAL II LLC,
11201 Brookwood Street a Delaware limited partnership
Leawood, Kansas 66211
Tel: (913) 906-9601
Fax: (913) 906-9716 By:
-------------------------------------
Jeffrey J. Keenan
Managing Member
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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c/o Jeffrey Keenan IESI CAPITAL III LLC,
11201 Brookwood Street a Mississippi limited liability company
Leawood, Kansas 66211
Tel: (913) 906-9601
Fax: (913) 906-9716 By:
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Jeffrey J. Keenan
Managing Member
c/o Jeffrey Keenan IESI CAPITAL IV LLC,
11201 Brookwood Street a Mississippi limited liability company
Leawood, Kansas 66211
Tel: (913) 906-9601
Fax: (913) 906-9716 By:
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Jeffrey J. Keenan
Managing Member
c/o Jeffrey Keenan IESI CAPITAL V LLC,
11201 Brookwood Street a Mississippi limited liability company
Leawood, Kansas 66211
Tel: (913) 906-9601
Fax: (913) 906-9716 By:
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Jeffrey J. Keenan
Managing Member
1601 Elm Street JIM SOWELL CONSTRUCTION CO., INC.,
Suite 300 a Texas corporation
Dallas, Texas 75201
Attn: Steven Smathers
Fax: (214) 871-1569
By:
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Name:
-----------------------------------
Title:
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c/o AEA Investors ----------------------------------------
301 Commerce Street, Suite 1405 CHARLES R. CUMMINGS
Fort Worth, Texas 76102
3330 North Beach Street
Haltom City, Texas 76117
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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c/o IESI Corporation ----------------------------------------
6125 Airport Freeway CHARLES F. FLOOD
Suite 202
Halton City, Texas 76117
9214 Summer Hill Boulevard ----------------------------------------
Fountain Hills, Arizona 85268 JOSEPH G. MRJENOVICH
c/o Sanders Morris Harris ENVIRONMENTAL OPPORTUNITIES
3100 Chase Tower FUND II, L.P.,
600 Travis Street, Suite 3100 a Delaware limited partnership
Houston, Texas 77002 By: Fund II Mgt. Co., LLC, its General
Attn: Bruce R. McMaken Partner
Fax: (713) 250-4294
By:
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Bruce R. McMaken
Manager
c/o Sanders Morris Harris ENVIRONMENTAL OPPORTUNITIES
3100 Chase Tower FUND II (INSTITUTIONAL), L.P.,
600 Travis Street, Suite 3100 a Delaware limited partnership
Houston, Texas 77002 By: Fund II Mgt. Co., LLC, its General
Attn: Bruce R. McMaken Partner
Fax: (713) 250-4294
By:
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Bruce R. McMaken
Manager
c/o Sanders Morris Harris ENVIRONMENTAL OPPORTUNITIES FUND, L.P.,
3100 Chase Tower a Delaware limited partnership
600 Travis Street By: Environmental Opportunities
Suite 3100 Management Co., LLC, its General
Houston, Texas 77002 Partner
Attn: Bruce R. McMaken
Fax: (713) 250-4294 By:
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Kenneth Ch'uan-k'ai Leung
Manager
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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c/o M.H. Mererson & Co., Inc. MANHATTAN GROUP FUNDING,
Newport Office Tower a New Jersey limited partnership
525 Washington Boulevard
Jersey City, NJ 07303
By:
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Printed Name:
---------------------------
Title:
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Fleet National Bank BANCBOSTON INVESTMENTS INC.,
100 Federal Street a Massachusetts corporation
MA DE 10008H
Boston, Massachusetts 02110
Attn: Mr. Tim Laurion By:
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Printed Name:
---------------------------
Title:
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666 Third Avenue, 9th Floor SUEZ EQUITY INVESTORS, L.P.,
New York, New York 10017 a Delaware limited partnership
Fax: (646) 658-2203 By SEI Capital, L.L.C., its General
Partner,
By:
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Michael F. Walsh
Member
666 Third Avenue, 9th Floor SEI ASSOCIATES,
New York, New York 10017 a Delaware partnership
Fax: (646) 658-2203
By:
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Michael F. Walsh
Partner
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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1455 Pennsylvania Avenue, N.W. TC CARTING, L.L.C.,
Suite 350 a Delaware limited liability company
Washington, D.C. 20004
Fax: 202-371-0391 By:Thayer Equity Investors III, L.P.,
its Managing Member
By:Thayer Equity Partners, L.L.C.,
its General Partner
By:
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1455 Pennsylvania Avenue, N.W. THAYER EQUITY INVESTORS IV, L.P.
Suite 350
Washington, D.C. 20004 By:TC Equity Partners IV, L.L.C.,
Fax: 202-371-0391 its General Partner
By:
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1455 Pennsylvania Avenue, N.W. TC CARTING II, L.L.C.,
Suite 350 a Delaware limited liability company
Washington, D.C. 20004
Fax: 202-371-0391 By:TC Management Partners IV, L.L.C.,
its Managing Member
By:Thayer Equity Partners IV, L.L.C.,
its General Partner
By:
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315 Engle Street ----------------------------------------
Tenafly, New Jersey 07670 PAUL RUTIGLIANO
265 River Road, Apt. 5 ----------------------------------------
Grandview, New York 10960 PATRICIA RUTIGLIANO
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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2628 East Main ----------------------------------------
Mendham, New Jersey 07945 SALVATORE RUTIGLIANO
735 Shelby Lane ----------------------------------------
Rivervale, New Jersey 07675 DENNIS RUTIGLIANO
735 Shelby Lane ----------------------------------------
Rivervale, New Jersey 07675 MELANIE RUTIGLIANO
58 Windsor Oval ----------------------------------------
New Rochelle, New York 10805 JOHN T. PASQUALE
76 Gail Drive ----------------------------------------
New Rochelle, New York 10805 RONALD PASQUALE
2632 National Drive ----------------------------------------
Brooklyn, New York 11234 HELEN COLANGELO
7 Louis Drive ----------------------------------------
Melville, New York 11747 MAURO DELL'OLIO
49 High Street ----------------------------------------
Farmington, Connecticut 06032 J. BRUCE BOISTURE
1 Hoagland Lane ----------------------------------------
Brookville, New York 11545 ANTHONY VITALE, SR
17 Harvest Drive ----------------------------------------
Plainsboro, New Jersey 08536 EDWARD L. APUZZI
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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17 Dudley Court ----------------------------------------
Wayne, New Jersey 07470 JOSEPH LO VERDE
41 Roosevelt Drive ----------------------------------------
East Norwich, New York 11732 JOIE MARIE VITALE-HEIN
6 Concord Court ----------------------------------------
Lynnbrook, New York 11563 PETER W. PORRI
c/o IESI Corporation ----------------------------------------
6125 Airport Freeway KIMBERLY FLOOD
Suite 202
Haltom City, Texas 76117
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EXHIBIT A
AMENDED CHARTER
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EXHIBIT B
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this "Agreement") is made this __ day of
_____, by _____________ (the "New Stockholder") in favor of IESI Corporation, a
Delaware corporation (the "Company") and the other parties to the Stockholders'
Agreement referred to below.
WITNESSETH:
WHEREAS, the Company and the stockholders named on EXHIBIT A hereto
(collectively, the "Stockholders") are parties to that certain Amended and
Restated Stockholders' Agreement dated as of [ __], 2001 (the "Stockholders'
Agreement"); and
WHEREAS, concurrently with the execution and delivery of this
Agreement to the Board of the Company, the New Stockholder is acquiring ____
shares of ______ Stock of the Company; and
WHEREAS, it is a condition to the transfer of such shares to the New
Stockholder that he execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the premises, the terms and
provisions set forth herein, the mutual benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. The New Stockholder acknowledges and agrees that by execution and
delivery of this Agreement, he becomes a party to the Stockholders' Agreement,
subject to the terms, conditions and restrictions set forth therein. The New
Stockholder hereby acknowledges receipt of a true and correct copy of the
Stockholders' Agreement and confirms that the representations and warranties
contained in Section 7.01(a) thereof are true and correct with respect to such
New Stockholder.
2. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
3. This Agreement and the Stockholders' Agreement constitute the
entire agreement among the parties with respect to the subject matter hereof.
4. In the event that any provision set forth in this Agreement is
found to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining terms and provisions hereof shall not be in any
way affected thereby, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
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5. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date written above.
ADDRESS: COMPANY:
2 Commerce Street IESI Corporation,
Bayonne, New Jersey 07002 a Delaware corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ADDRESS: NEW STOCKHOLDER:
By:
------------------------- -------------------------------------
Name:
------------------------- -----------------------------------
Title:
------------------------- ----------------------------------
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