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Exhibit 10.2
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%
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