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EXHIBIT 10.60
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Second Amended and Restated Registration Rights
Agreement, dated as of December 18, 2003
(this "Agreement"), by and between
Allied Waste Industries, Inc., a Delaware
corporation (the "Company"), on the
one hand, and 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
("BCP"), 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 Millenium
Partners, L.P., a Delaware limited
partnership, DLJ Millenium 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"), on the
other hand, amending and restating in its
entirety the Amended and Restated
Registration Rights Agreement dated as of
July 30, 1999 (the "Original
Agreement"), by and between the Company, on
the one hand, and certain of the
Shareholders, on the other hand.
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W I T N E S S E T H:
WHEREAS, on July 30, 1999, the Company and certain of the
Shareholders entered into a Preferred Stock
Purchase Agreement (the "Purchase
Agreement") pursuant to which certain of
the Shareholders purchased an aggregate
of 1,000,000 shares of Senior Convertible
Preferred Stock, par value $.10 per
share, of the Company ("Senior Preferred
Stock"), which is convertible into
shares of common stock, par value $.01 per
share, of the Company (the "Common
Stock");
WHEREAS, the Company and the Shareholders have entered into an
Exchange Agreement, dated as of July 31,
2003 (the "Exchange Agreement"),
pursuant to which, upon the terms and
subject to the conditions set forth in the
Exchange Agreement, the Shareholders will
exchange their shares of Senior
Preferred Stock for shares of Common Stock
to be issued by the Company (the
"Exchange");
WHEREAS, concurrently herewith, the Company and Shareholders
are entering into a Third Amended and
Restated Shareholders Agreement (the
"Shareholders Agreement"), which shall
become effective at the time of the
closing of the Exchange; and
WHEREAS, a condition to closing the Exchange is that the
Company and the Shareholders enter into a
Supplementary Registration Rights
Agreement and the Company and the
Shareholders agree that this Agreement fully
incorporates the terms of the Supplementary
Registration Rights Agreement and
the execution and delivery of this
Agreement by the Company and the Shareholders
satisfies the conditions in the Exchange
Agreement relating to entry into the
Supplementary Registration Rights
Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, agree to amend and restate the
Original Agreement in its entirety as
follows, effective upon the closing of the
purchase of the Exchange:
ARTICLE I
Definitions
1.1.
Certain Definitions. In this Agreement:
"Apollo" means Apollo Advisors II, L.P., a Delaware limited
partnership, on behalf of one or more
managed funds.
"Apollo/Blackstone Shareholders" shall have the meaning set
forth in the Shareholders Agreement.
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"Blackstone" means Blackstone Capital Partners III Merchant
Banking Fund L.P., a Delaware limited
partnership, on behalf of one or more
managed funds.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended, and the rules and
regulations of the SEC promulgated under
such Act.
"Non-Apollo/Blackstone Shareholders" means all of the
Shareholders other than the
Apollo/Blackstone Shareholders.
"Registrable Securities" means the 11,776,765 shares of Common
Stock acquired by certain of the
Shareholders from TPG Partners, L.P. and TPG
Parallel I, L.P. (the "TPG Block"), the
14,600,000 shares of Common Stock
acquired by certain of the Shareholders
from Laidlaw, Inc. (the "Laidlaw Block"
and, together with the TPG Block, the
"Original Shares"), any shares of Common
Stock received in exchange for the Senior
Preferred Stock pursuant to the
Exchange Agreement (such shares, the
"Additional Shares", together with the
Original Shares, the "Shares"), and any
additional shares of Common Stock
acquired by Shareholders in compliance with
the Shareholders Agreement or
otherwise acquired by the Shareholders
prior to the date hereof in compliance
with their agreements with the Company, and
any additional shares of Common
Stock issued in connection with any stock
dividend on, or any stock split,
reclassification or reorganization of any
of the Shares or such additional
shares.
"SEC" means the United States Securities and Exchange
Commission or any successor agency.
"Securities Act" means the United States Securities Act of
1933, as amended, and the rules and
regulations of the SEC promulgated under
such Act.
"Subject Securities" means shares of Senior Preferred Stock,
Junior Preferred Stock, Common Stock or
other equity securities of the Company
convertible into or exchangeable for shares
of Common Stock.
ARTICLE II
REGISTRATION RIGHTS
2.1.
Incidental Rights. If at any time or from time to
time (but subject to the limitations on
sales of Registrable Securities in the
Shareholders Agreement) the Company
proposes to file with the SEC a registration
statement (whether on Form S-1, S-2, or
S-3, or any equivalent form then in
effect) for the registration under the
Securities Act of any shares of Subject
Securities for sale, for cash
consideration, to the public by Company or on
behalf of one or more shareholders of
Company (excluding any sale of securities
upon conversion into or exchange or
exercise for shares of Common Stock, and any
shares of Common Stock issuable by Company
upon the exercise of employee stock
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options, or to any employee stock ownership
plan, or in connection with any
acquisition made by Company, any securities
exchange offer, dividend
reinvestment plan, employee benefit plan,
corporate reorganization, or in
connection with any amalgamation, merger or
consolidation of Company or any
direct or indirect subsidiary of Company
with one or more other corporations if
Company is the surviving corporation),
Company shall give Shareholders at least
20 days' prior written notice of the
proposed filing (or if 20 days' notice is
not practicable, a reasonable shorter
period to be not less than 7 days), which
notice shall outline the nature of the
proposed distribution and the
jurisdictions in the United States in which
Company proposes to qualify and
offer such securities (the "Elected
Jurisdictions"). On the written request of
Shareholders received by Company within 15
days after the date of Company's
delivery to Shareholders of the notice of
intended registration (which request
shall specify the Registrable Securities
sought to be disposed of by
Shareholders and the intended method or
methods by which dispositions are
intended to be made), Company shall, under
the terms and subject to the
conditions of this Article II, at its own
expense as provided in Section 4.1,
include in the coverage of such
registration statement (or in a separate
registration statement concurrently filed)
and qualify for sale under the blue
sky or securities laws of the various
states in the Elected Jurisdictions the
number of Registrable Securities of the
kind being registered (the "Specified
Securities") held by Shareholders or into
which the Registrable Securities are
convertible, as the case may be, and which
Shareholders have so requested to be
registered or qualified for distribution,
to the extent required to permit the
distribution (in accordance with the
intended method or methods thereof as
aforesaid) in the Elected Jurisdictions
requested by Shareholders of such
Registrable Securities.
Notwithstanding anything else contained in this Section 2.1,
if the registration statement to be filed
by the Company is a registration filed
in response to any of the first three
demands made by the Apollo/Blackstone
Shareholders pursuant to Section 2.2 (the
"First Three Demands"), then the
Non-Apollo/Blackstone Shareholders shall
not be entitled to have their
Registrable Securities included in the
coverage of such a registration
statement, provided, however, that if the
First Three Demands include Additional
Shares (or shares into which Additional
Shares have been converted), then the
Non-Apollo/Blackstone Shareholders shall be
entitled to have their Registrable
Securities included in the coverage of such
registration statement, on the terms
and conditions set forth in this Section
2.1.
If the distribution proposed to be effected by Company
involves an underwritten offering of the
securities being so distributed by or
through one or more underwriters, and if
the managing underwriter of such
underwritten offering indicates in writing
its reasonable belief that including
all or part of the Specified Securities in
the coverage of such registration
statement or in the distribution to be
effected by such prospectus will
materially and adversely affect the sale of
securities proposed to be sold
(which statement of the managing
underwriter shall also state the maximum number
of
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shares, if any, which can be sold by
Shareholders requesting registration under
this Section 2.1 without materially
adversely affecting the sale of the shares
proposed to be sold), then the number of
Specified Securities which Shareholders
shall have the right to include in such
registration statement shall be reduced
to the maximum number of shares specified
by the managing underwriter. In the
case of a registration statement filed in
response to any of the First Three
Demands covering both Original Shares and
Additional Shares (or shares into
which Additional Shares have been
converted), first priority shall be afforded
to the Original Shares, with all other
securities to be completely eliminated
before the number of such Original Shares
is reduced and second priority shall
be given to the other Registrable
Securities of both the Apollo/Blackstone
Shareholders and the Non-Apollo/Blackstone
Shareholders, with all other
securities to be completely eliminated
before the number of such Registrable
Securities is reduced; provided; however,
that if the number of Registrable
Securities is to be reduced, then
reductions will respect to the Registrable
Securities shall be made among the
Shareholders on a pro-rata basis in
accordance with the relationship which the
number of the Registrable Securities
held by each Shareholder bears to the
number of Registrable Securities held by
all Shareholders (the "Additional Shares
Pro-Rata Reduction").
In all other cases, first priority shall be afforded to
securities covered by a registration
statement filed in response to the exercise
of a demand registration right by another
holder of Common Stock, including the
Apollo/Blackstone Shareholders, and no
securities proposed to be sold by such
holders shall be so reduced until all
securities proposed to be sold by all
other parties have been entirely eliminated
and second priority shall be
afforded to the Original Shares; provided,
however, that in the case of a
registration statement filed in response to
a demand from the Apollo/Blackstone
Shareholders (other than any of the First
Three Demands) (the "Other Demands"),
first priority shall be afforded to the
Original Shares, with all other
securities to be completely eliminated
before the number of such Original Shares
is reduced and second priority shall be
given to the other Registrable
Securities of both the Apollo/Blackstone
Shareholders and the
Non-Apollo/Blackstone Shareholders, with
all other securities to be completely
eliminated before the number of such
Registrable Securities is reduced. As to
any reductions to be made to the
Registrable Securities (other than the Original
Shares) proposed to be sold by the
Shareholders pursuant to a registration
statement filed in response to the Other
Demands, such reductions to be made
among the Shareholders shall be made on a
pro-rata basis in accordance with the
relationship which the number of
Registrable Securities (other than the Original
Shares) held by each Shareholder bears to
the number of Registrable Securities
(other than the Original Shares) held by
all Shareholders (the "Pro-Rata
Reduction"). As to all other proposed
selling shareholders of Securities,
including Shareholders, any such reduction
in the number of Securities proposed
to be sold by the selling shareholders
shall be effected on a pro rata basis in
accordance with the relationship which the
number of such Securities of the
class
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proposed to be sold by each selling
shareholder bears to the number of such
Securities of that class proposed to be
sold by all selling shareholders.
Company shall have the sole right to select any underwriters,
including the managing underwriter, of any
public offering of securities made
other than as a result of the rights
granted in Section 2.2. Nothing in this
Section 2.1 shall create any liability on
the part of Company to Shareholders if
Company for any reason decides not to file
or to delay or withdraw a
registration statement (which Company may
do in its sole discretion).
Shareholders may request to have Registrable Securities
included in an unlimited number of
registrations under this Section 2.1.
2.2.
Demand Rights. Upon written request of the
Apollo/Blackstone Shareholders made at any
time (but subject to the limitations
on sales of Registrable Securities in the
Shareholders Agreement), the Company
shall, under the terms and subject to the
conditions set forth in this Section
2.2, and Sections 2.4 and 2.5, file (and
use its reasonable efforts to cause to
become effective) a registration statement
covering, and use its reasonable
efforts to qualify for sale under the blue
sky or securities laws of the various
states of the United States as may be
requested by the Apollo/Blackstone
Shareholders (except any such state in
which, in the opinion of the managing
underwriter of the offering, the failure to
so qualify would not materially and
adversely affect the proposed offering), in
accordance with the intended method
or methods of disposition set forth in that
notice, of such number of
Registrable Securities, as may be
designated by the Apollo/Blackstone
Shareholders in their request, or that
portion thereof designated in said
request for registration in each of the
Designated Jurisdictions (as defined
below). A request for registration under
this Section 2.2 shall specify the
number of shares to be registered, the
jurisdictions in the United States in
which such registration is to be effected
(the "Designated Jurisdictions") and
the proposed manner of sale, including the
name and address of any proposed
underwriter; 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. The principal
underwriter or underwriters for any such
offering shall be selected by the
Apollo/Blackstone Shareholders, subject to
Company's approval, which may not be
unreasonably withheld. Notwithstanding any
other provision in this Section, the
Apollo/Blackstone Shareholders shall not be
permitted to make a demand for
registration pursuant to this Section
unless the number of Registrable
Securities covered by such demand is at
least 2,500,000 shares of Common Stock
(as such number may be appropriately
adjusted to reflect stock splits, reverse
stock
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splits, dividends and any other
recapitalization or reorganization of Company)
or such lesser number of shares as would
yield gross proceeds of not less than
$50 million based on the average closing
price of the Common Stock over the ten
trading day period immediately preceding
the date of the written request
hereunder. No Shareholders other than the
Apollo/Blackstone Shareholders and
their Related Transferees shall have demand
registration rights.
If the distribution proposed to be effected pursuant to this
Section 2.2 involves an underwritten
offering of Registrable Securities and
securities of the Company other than
Registrable Securities ("Other
Securities"), and if the managing
underwriter of such underwritten offering
indicates in writing its reasonable belief
that including all or part of such
securities in the coverage of such
registration statement will materially and
adversely affect the sale of the securities
proposed to be sold, then the number
of securities proposed to be sold shall be
reduced to the maximum number of
securities specified by the managing
underwriter. In such a case, first priority
shall be afforded to Registrable Securities
in accordance with the third and
fourth paragraph of Section 2.1, and such
Other Securities, subject to the
limitations set forth in such third and
fourth paragraphs.
Company may delay the filing of any registration statement
requested under this Section 2.2, or delay
its effectiveness, for a reasonable
period (but not longer than 90 days) if, in
the sole judgment of Company's Board
of Directors, (i) a delay is necessary in
light of pending financing
transactions, corporate reorganizations, or
other major events involving
Company, or (ii) filing at the time
requested would materially and adversely
affect the business or prospects of Company
in view of disclosures that may be
thereby required. Once the cause of the
delay is eliminated, Company shall
promptly notify the Apollo/Blackstone
Shareholders and, promptly after
Shareholders notify Company to proceed,
Company shall file a registration
statement and begin performance of its
other obligations under this Section 2.2.
The Apollo/Blackstone Shareholders shall be entitled to
request not more than nine registrations
under this Section 2.2 (provided that
the filing of a registration statement in
more than one Designated Jurisdiction
in connection with a concurrent or
substantially concurrent distribution shall
be deemed for the purposes of this
Agreement to be a single registration).
However, if the Apollo/Blackstone
Shareholders request a registration under this
Section 2.2, but no registration statement
becomes effective with respect to the
Registrable Securities covered by such
request, then such request shall not
count as a request for purposes of
determining the number of requests for
registration the Apollo/Blackstone
Shareholders may make under this Section 2.2.
If there is an effective registration statement requested by
the Apollo/Blackstone Shareholders pursuant
to this Section 2.2, the
Apollo/Blackstone Shareholders may require
the Company to delay the filing of
any registration statement
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relating to shares of Common Stock or delay
its effectiveness, for a reasonable
period (but not longer than 90 days) if, in
the sole judgment of the
Apollo/Blackstone Shareholders, a delay is
necessary in order to avoid
materially and adversely affecting the
disposition of Registrable Securities
pursuant to the offering by the
Shareholders; provided that the foregoing shall
not limit the Company's right to file and
have declared effective registration
statements relating to shares of Common
Stock issuable pursuant to employee
benefit plans of the Company or any of its
subsidiaries or issuable pursuant to
a merger, acquisition or similar
transaction involving the Company or any of its
subsidiaries.
2.3.
Shelf Registration Rights. In addition to the other
rights under this Agreement of the
Shareholders who are party to this Agreement,
at any time after the first anniversary of
the acquisition of shares of Common
Stock pursuant to the Exchange Agreement,
upon the written request of the
Apollo/Blackstone Shareholders, the Company
shall prepare and file or cause to
be prepared and filed with the SEC as
promptly as reasonably practicable a
registration statement for an offering to
be made on a delayed or continuous
basis pursuant to Rule 415 of the
Securities Act (a "Shelf Registration
Statement") registering the resale from
time to time by the Shareholders and the
Related Transferees (as defined in the
Shareholders Agreement) thereof of all of
the Registrable Securities (the "Shelf
Registration Statement"). The Shelf
Registration Statement shall be on Form
S-3, or another appropriate form
permitting registration of such Registrable
Securities for resale by such
Shareholders or the Related Transferees
thereof in accordance with the methods
of distribution reasonably elected by the
Shareholders or Related Transferees
thereof and set forth in the Shelf
Registration Statement. The Apollo/Blackstone
Shareholders shall be entitled to only one
request for a Shelf Registration
Statement pursuant to this Section.
The Company shall use reasonable efforts to cause the Shelf
Registration Statement to be declared
effective under the Securities Act and to
keep the Shelf Registration Statement
continuously effective under the
Securities Act for a period of four years
following its being declared effective
(the "Effectiveness Termination Date");
provided, however, that such
Effectiveness Termination Date shall be
increased by the number of days that the
Shelf Registration Statement is delayed or
suspended pursuant to this Section
2.3.
In connection with any sales pursuant to the Shelf
Registration Statement, reasonable efforts
shall be made not to knowingly sell
to any single buyer, acting individually or
with others, who, after taking
account of the sales, will own more than 9%
of the Total Voting Power (as
defined in the Shareholders Agreement).
The Company may delay the filing of the Shelf Registration
Statement, and any amendments or
supplements thereto, or delay its
effectiveness, for a reasonable period (but
not longer than 90 days) if, in the
sole judgment of the Company's Board of
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Directors, (i) delay is necessary in light
of pending financing transactions,
corporate reorganizations, or other major
events involving the Company, or (ii)
filing at the time requested would
materially and adversely affect the business
or prospects of the Company in view of
disclosure that may be thereby required.
Once the cause of the delay is eliminated,
the Company shall promptly notify the
Shareholders and, promptly after
Shareholders notify the Company to proceed, the
Company shall file a Shelf Registration
Statement or any amendments or
supplements thereto and begin or resume
performance of its other obligations
under this Agreement and the Registration
Rights Agreement.
Subject to the provisions of this Section 2.3, the Company
shall have the right at any time to require
that the Shareholders suspend
further open market offers and sales of the
Registrable Shares whenever, and for
so long as, in the reasonable judgment of
the Company based upon the advice of
legal counsel, there is in existence
material undisclosed information or events
with respect to the Company the disclosure
of which would materially and
adversely affect the business or prospects
of the Company or suspension is
necessary in light of pending financing
transactions, corporate reorganizations,
or other major events involving the Company
(the "Suspension Right"). In the
event the Company exercises the Suspension
Right, such suspension will continue
for the period of time (the "Suspension
Period") reasonably necessary for the
disclosure to occur at a time that is not
materially detrimental to the Company
and its stockholders or until such time as
the information or event is no longer
material, each as determined in good faith
by the Company based upon the advice
of legal counsel, or for the transactions
or other major events to be completed
or terminated. The period during which the
availability of the Shelf
Registration Statement and any prospectus
is suspended shall, without the
Company incurring any obligation to pay
liquidated damages, not, in the
aggregate exceed 120 days in any twelve
(12) month period. The Company will
reasonably promptly give the Shareholders
notice of any such suspension and
will, as promptly as reasonably practicable
after the Suspension Period
terminates, allow the resumption of the use
of the Shelf Registration Statement
and, if required to reflect such material
corporate development or major event,
prepare a supplement or amendment to the
Shelf Registration Statement .
In the event that the Shareholders should elect to make an
underwritten offering or distribution of
the Registrable Shares after the Shelf
Registration Statement has been declared
effective, the number of requests for
registration permitted under Section 2.2 of
this Agreement shall be reduced by
one (1) for each such underwritten
offering.
If there has been filed an amendment to the Shelf Registration
Statement relating to an underwritten
offering then either Apollo or Blackstone
may require the Company to delay the filing
of any registration statement
relating to shares of Common Stock or delay
its effectiveness, for a reasonable
period (but not longer than 90 days) if,
in
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the sole judgment of either Apollo or
Blackstone, a delay is necessary in order
to avoid materially and adversely affecting
the disposition of Registrable
Securities pursuant to the offering by the
Shareholders; provided that the
foregoing shall not limit the Company's
right to file and have declared
effective registration statements relating
to shares of Common Stock issuable
pursuant to employee benefit plans of the
Company or any of its subsidiaries or
issuable pursuant to a merger, acquisition
or similar transaction involving the
Company or any of its subsidiaries.
2.4.
Registration Conditions. Notwithstanding any other
provision of this Agreement, Company shall
not be required to effect a
registration of any securities under either
Section 2.1 or Section 2.2 of this
Agreement, or file any post-effective
amendment to such a registration statement
relating to such a qualification:
(a)
unles
