FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT
FIRST AMENDMENT (this “ Amendment ”),
dated as of December 28, 2006, to the Second Amended and
Restated Registration Rights Agreement, dated as of
December 18, 2003 (as previously amended, supplemented or
otherwise modified, the “ Agreement ”), by and
between Allied Waste Industries, Inc., a Delaware corporation,
Apollo Investment Fund IV, L.P., a Delaware limited partnership,
Apollo Investment Fund III, L.P., a Delaware limited partnership,
Apollo Overseas Partners IV, L.P., a Delaware limited partnership,
Apollo Overseas Partners III, L.P., a Delaware limited partnership,
Apollo (U.K.) Partners III, L.P., an English limited partnership,
Apollo/AW LLC, a Delaware limited liability company, Blackstone
Capital Partners II Merchant Banking Fund L.P., a Delaware limited
partnership, Blackstone Capital Partners III Merchant Banking Fund
L.P., a Delaware limited partnership, Blackstone Offshore Capital
Partners II L.P., a Cayman Islands limited partnership, Blackstone
Offshore Capital Partners III L.P., a Cayman Islands limited
partnership, Blackstone Family Investment Partnership II L.P., a
Delaware limited partnership, Blackstone Family Investment
Partnership III L.P., a Delaware limited partnership, Greenwich
Street Capital Partners II, L.P., a Delaware limited partnership,
GSCP Offshore Fund, L.P., a Cayman Islands exempted limited
partnership, Greenwich Fund, L.P., a Delaware limited partnership,
Greenwich Street Employees Fund, L.P., a Delaware limited
partnership, TRV Executive Fund, L.P., a Delaware limited
partnership, DLJMB Funding II, Inc., a Delaware corporation, DLJ
Merchant Banking Partners II, L.P., a Delaware limited partnership,
DLJ Merchant Banking Partners II-A, L.P., a Delaware limited
partnership, DLJ Diversified Partners, L.P., a Delaware limited
partnership, DLJ Diversified Partners-A, L.P., a Delaware limited
partnership, DLJ Millennium Partners, L.P., a Delaware limited
partnership, DLJ Millennium Partners-A, L.P., a Delaware limited
partnership, DLJ First ESC L.P., a Delaware limited partnership,
DLJ Offshore Partners II, C.V., a Netherlands Antilles limited
partnership, DLJ EAB Partners, L.P., a Delaware limited partnership
and DLJ ESC II, L.P., a Delaware limited partnership, Kenneth D.
Moelis, Mark Lanigan, Jeffrey Klein and Susan Schnabel
(collectively, the “ Shareholders ”).
The
Stockholders are parties to the Agreement and they wish to amend
the Agreement as described below in consideration of the promises
and for other good and valuable consideration, the receipt of which
is hereby acknowledged:
1.
Defined Terms . Capitalized terms not otherwise defined in
this Amendment shall have the meanings ascribed to them in the
Agreement.
2.
Amendment to Section 2.1 (Incidental Rights) .
Section 2.1 of the Agreement is hereby amended by inserting
the following text at the end of the first paragraph
thereof:
Notwithstanding
the preceding paragraph, if the Company files an automatic shelf
registration statement on Form S-3ASR or a successor form that
becomes effective upon filing with the SEC (a “ WKSI
Shelf ”) for registration under the Securities Act of any
shares of Subject Securities for sale, for cash consideration, to
the public by the Company or on behalf of one or more shareholders
of the Company, the Apollo/Blackstone Shareholders will be entitled
to include their Registrable Securities in the coverage of such
WKSI Shelf and in any underwritten offerings registered on such
WKSI Shelf that are initiated by the Company or other
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Apollo/Blackstone Shareholders (each such
offering, a “ WKSI Shelf Takedown ”), in each
case subject to the other provisions of this
Section 2.1 . Notwithstanding anything to the contrary
contained in this Section 2.1 , the Company shall not
be required to give Shareholders prior notice of the proposed
filing of a WKSI Shelf. The Company will, however, give the
Apollo/Blackstone Shareholders prior written notice of any proposed
WKSI Shelf Takedown, which notice shall be given no later than
(A) the close of business on the third business day preceding
the business day on which “face to face” marketing
efforts involving one or more of officers of the Company relating
to the WKSI Shelf Takedown (a “ Roadshow ”)
commence or (B) 24 hours (or if 24 hours’ notice is not
practicable, such shorter prior as is practicable) to the
anticipated execution of an underwriting agreement relating to the
pricing of an underwritten offering that does not involve a
Roadshow (a “ Block Trade ”). Each such notice
will describe the proposed WKSI Shelf Takedown, including
anticipated size, timing, participants (e.g., the offerors and
underwriters, to the extent known at such time), plan of
distribution and other relevant terms. In order to exercise their
incidental rights under this Section 2.1 in connection
with a WKSI Shelf Takedown, the Apollo/Blackstone Shareholders must
request inclusion of their Registrable Securities in the WKSI Shelf
Takedown by a written notice to the Company no later than
(X) one business day after notice of the commencement of a
Roadshow or (Y) within the time period set forth in the notice
in the event of a proposed Block Trade, as the case may be. The
Apollo/Blackstone Shareholders requesting the inclusion of their
Registrable Securities in the WKSI Shelf Takedown pursuant to the
immediately preceding sentence will be required to agree to all
applicable terms of such WKSI Shelf Takedown and enter into the
underwriting agreement and other documents relating thereto. Any
Apollo/Blackstone Shareholder (including any Apollo/Blackstone
Shareholder that initiated a WKSI Shelf Takedown pursuant to
Section 2.2 of this Agreement) may withdraw from any
proposed WKSI Shelf Takedown at any time prior to the entering into
the underwriting agreement relating to such WKSI Shelf Takedown. In
such a case, if a prospectus supplement relating to such WKSI Shelf
Takedown is not filed with the SEC, the number of requests for
registration permitted under this Agreement with respect to such
Apollo/Blackstone Shareholder will not be reduced.
3.
Amendment to Section 2.2 (Demand Rights) .
(a) Section 2.2 of the Agreement is hereby amended by
deleting the following clause in the first paragraph:
provided , that all offerings contemplated by a request
for registration under this Section 2.2 shall be
underwritten offerings involving a distribution of Registrable
Shares to the public in which reasonable efforts are made not to
knowingly sell to any single buyer, acting individually or with
others, who after such underwriting will own more than 9% of the
Total Voting Power (as defined in the Shareholders Agreement) (any
such buyer, “ Significant Stockholder ”), under
circumstances in which it would reasonably be expected to not
result in any person becoming a Significant Stockholder
and
substituting the following text in lieu thereof:
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“
provided , that all offerings contemplated by a request for
registration under this Section 2.2 shall be
underwritten offerings involving a distribution of Registrable
Shares to the public in which reasonable efforts are made not to
knowingly sell to any single buyer, acting individually or with
others, who after completion of the distribution relating to such
Registrable Shares will own more than 15% of the Total Voting Power
(as defined in the Shareholders Agreement) (any such buyer, a
“ Significant Stoc
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