FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
FIRST AMENDMENT (this “ Amendment ”),
dated as of December 28, 2006, to the Third Amended and
Restated Shareholders 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
III, L.P., a Delaware limited partnership, Apollo Investment Fund
IV, L.P., a Delaware limited partnership, Apollo Overseas Partners
III, L.P., a Delaware limited partnership, Apollo Overseas Partners
IV, 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
Shareholders 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 4.1 (Restrictions on Dispositions)
. (a) Section 4.1(c) of the Agreement is hereby amended
by deleting the following proviso at the end thereof in its
entirety:
;
provided that such Dispositions shall not be made to any
Person who or which would immediately thereafter, to the knowledge
of such Shareholder, any of its Affiliates, or such
Shareholder’s broker, beneficially own Voting Securities
representing 9% or more of the Total Voting Power (and such Person
shall have provided a certificate to such effect)
(b) Section 4.1(c)
of the Agreement is hereby amended by inserting the following new
text at the end thereof:
;
provided that such Dispositions shall not be made to any
Person who would, after completion of the distribution relating to
such Disposition, to the knowledge of such Apollo/Blackstone
Shareholder or such
2
Apollo/Blackstone Shareholder’s broker,
beneficially own Voting Securities representing more than 15% of
the Total Voting Power; and provided further that for
purposes of the immediately preceding proviso, such
Apollo/Blackstone Shareholder or such Apollo/Blackstone
Shareholder’s broker may conclusively rely on such
Person’s most recent filing with the Commission, in whole or
part, disclosing ownership of Common Stock, whether on any of
Schedule 13D, Schedule 13F, Schedule 13G,
Form 3, Form 4 or otherwise, unless such
Apollo/Blackstone Shareholder or broker has actual knowledge of
greater ownership (including, but not limited to knowledge
resulting from sales made by such Apollo/Blackstone Shareholder or
its affiliates to that buyer, any of its known affiliates or to
those known to be acting with the buyer, in all such cases
subsequent to the period covered by any such filing with the
Commission).
(c) Section 4.1(d)
of the Agreement is hereby amended by deleting the following text
at the end thereof:
“that
would following such sale, beneficially own no more that 9% of the
Total Voting Power (and such Person shall have provided a
certificate to such effect)”
(d) Section 4.1(d)
of the Agreement is hereby amended by ins
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