THIRD AMENDED AND RESTATED SHAREHOLDERS AGREEMENT

 

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                                                                   EXHIBIT 10.61

 

                THIRD AMENDED AND RESTATED SHAREHOLDERS AGREEMENT

 

                  This Third Amended and Restated Shareholders 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 ("AIF IV"),

Apollo Investment Fund III, L.P., a Delaware limited partnership ("AIF III"),

Apollo Overseas Partners IV, L.P., a Delaware limited partnership ("AOP IV"),

Apollo Overseas Partners III, L.P., a Delaware limited partnership ("AOP III"),

Apollo (U.K.) Partners III, L.P., an English limited partnership ("AUK III"),

Apollo/AW LLC, a Delaware limited liability company ("AAW"), 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 ("BOC III"), Blackstone Family Investment

Partnership II L.P., a Delaware limited partnership, Blackstone Family

Investment Partnership III L.P., a Delaware limited partnership ("BFP III"),

Greenwich Street Capital Partners II, L.P., a Delware 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"), on the other hand, amending and restating in

its entirety the Second Amended and Restated Shareholders 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.

 

                  WHEREAS, certain of the Shareholders purchased an aggregate of

11,776,765 shares (the "TPG Group Block") of the Company's common stock, par

value $.01 per share (the "Common Stock"), from TPG Partners, L.P., a Delaware

limited partnership, and TPG Parallel I, L.P., a Delaware limited partnership,

and an aggregate of

 

 

 

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14,600,000 shares of Common Stock (the "Laidlaw Block" and together with the TPG

Group Block, the "Shares") from Laidlaw, Inc., a Canadian corporation;

 

                  WHEREAS, on July 30, 1999, certain of the Shareholders entered

into (i) a Preferred Stock Purchase Agreement (the "Preferred Stock 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, and (ii) an Amended and Restated Registration Rights

Agreement (the "Prior Registration Rights Agreement") granting certain

registration rights;

 

                   WHEREAS, under the Original Agreement, the Company granted to

certain of the Shareholders the right as a group to appoint certain designees

for election to the Board of Directors of the Company and those Shareholders

agreed to certain restrictions on the acquisition and disposition of Common

Stock and the conduct of such Shareholders with respect to the Company;

 

                  WHEREAS, the Company and certain of the Shareholders have

entered into an Exchange Agreement, dated 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 the

Shareholders are entering into a Second Amended and Restated Registration Rights

Agreement (the "Registration Rights Agreement") which shall become effective at

the time of closing of the Exchange;

 

                  WHEREAS, a condition to closing the Exchange is that the

Company and the Shareholders enter into a Supplementary Shareholders Agreement

and the Company and the Shareholders agree that this Agreement fully

incorporates the terms of the Supplementary Shareholders 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 Shareholders Agreement; and

 

                  WHEREAS, in recognition of the transactions contemplated by

the Exchange Agreement, the parties desire to amend and restate the Original

Agreement in its entirety (except as may be otherwise set forth herein) as set

forth herein;

 

                  NOW, THEREFORE, the parties hereto intending to be legally

bound hereby, the parties agree as follows, effective upon the closing of the

Exchange:

 

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                                     ARTICLE 1

 

                   Definitions; Representations and Warranties

 

                  SECTION 1.1 Definitions. Unless otherwise specified all

references to "days" shall be deemed to be references to calendar days. For

purposes of this Agreement, the following terms shall have the following

meanings:

 

                  "Actual Voting Power" shall mean, as of the date of

determination, the total voting power of all the then outstanding securities of

the Company at the time then entitled to vote for the general election of

directors, without giving effect to securities issuable upon exercise or

conversion of such outstanding securities.

 

                  "Affiliate" of a Person shall have the meaning set forth in

Rule 12b-2 of the Exchange Act as in effect on the date of this Agreement, but

shall not include (i) any investment fund in which a Person has invested if the

Person does not otherwise control the investment fund or have, directly or

indirectly, voting or dispositive power over any securities owned by such fund

or (ii) any investor or limited partner of any Person who does not otherwise

have voting or dispositive power over securities owned by that Person and is not

controlled by that Person. It is expressly intended that any Person who now or

hereafter controls, directly or indirectly, any Shareholder (other than an

Exempt Affiliate) shall be subject to the restrictions of Section 2.1 as if it

were a Shareholder.

 

                  "Apollo/Blackstone Shareholders" mean those Shareholders who

are affiliated with either Apollo Advisors II, L.P., Apollo Management IV, L.P.

or Blackstone Management Associates II L.L.C., including, but not limited to,

AIF III, AOP III, AUK III, AIF IV, AOP IV, AAW, BCP, BOC III and BFP III.

 

                  "Apollo/Blackstone Shares" means the TPG Group Block, the

Laidlaw Block, and the 87,295,000 shares of Common Stock to be issued to the

Apollo/Blackstone Shareholders pursuant to the Exchange Agreement.

 

                  "Beneficial ownership" by a Person of any Voting Securities

shall be determined in accordance with the term "beneficial ownership" as

defined in Rule 13d-3 under the Exchange Act as in effect on the date of this

Agreement and, in addition, "beneficial ownership" shall include securities

which such Person has the right to acquire (irrespective of whether such right

is exercisable immediately or only after the passage of time, including the

passage of time in excess of sixty (60) days) pursuant to any agreement,

arrangement or understanding or upon the exercise of conversion rights, exchange

rights, warrants or options, or otherwise. For purposes of this Agreement, a

Shareholder shall be deemed to beneficially own any Voting Securities

beneficially

 

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owned by its Affiliates or any Group of which such Shareholder or any such

Affiliate is a member.

 

                  "Board of Directors" shall mean the Board of Directors of the

Company.

 

                  "Commission" shall mean the Securities and Exchange

Commission.

 

                  "Conversion Shares" shall mean the shares of Common Stock

issued by the Company in exchange for the shares of Senior Preferred Stock

pursuant to the Exchange Agreement.

 

                  "DLJ Parent Entities" mean and includes Credit Suisse First

Boston Private Equity, Inc., Credit Suisse First Boston (USA), Inc. and Credit

Suisse First Boston, LLC. and any Person that, directly or indirectly, controls

Credit Suisse First Boston (USA), Inc.

 

                  "DLJ Shareholders" shall mean DLJMB Funding II, Inc., DLJ

Merchant Banking Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P.,

DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium

Partners, L.P., DLJ Millennium Partners-A, L.P., DLJ First ESC L.P., DLJ

Offshore Partners II, C.V., DLJ EAB Partners, L.P. and DLJ ESC II L.P.

 

                  "Exchange Act" shall mean the Securities Exchange Act of 1934,

as amended.

 

                  "Greenwich Street Shareholders" shall mean Greenwich Street

Capital Partners II, L.P., GSCP Offshore Fund, L.P., Greenwich Fund, L.P.,

Greenwich Street Employees Fund, L.P. and TRV Executive Fund, L.P.

 

                  "Group" shall mean a "group" as such term is used in Section

13(d)(3) of the Exchange Act as in effect on the date of this Agreement.

 

                  "Laws" shall mean all applicable foreign, federal, state and

local laws, statutes, rules, regulations, codes and ordinances.

 

                  "Person" shall mean any individual, Group, corporation,

general or limited partnership, limited liability company, governmental entity,

joint venture, estate, trust, association, organization or other entity of any

kind or nature.

 

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                   "Related Person" means, with respect to any Person, (A) any

Affiliate of such Person, (B) any investment manager, investment advisor or

partner of such Person or an Affiliate of such Person, and (C) any investment

fund, investment account or investment entity whose investment manager,

investment advisor or general partner is such Person or a Related Person of such

Person; provided, however, that "Related Person" shall mean with respect to any

DLJ Shareholder, (I) any general or limited partner of such DLJ Shareholder (a

"DLJ Partner"), (II) any corporation, partnership or other entity which is an

Affiliate of such DLJ Shareholder or of any DLJ Partner (collectively, the "DLJ

Affiliates"), (III) any managing director, general partner, director, limited

partner, officer or employee of (x) such DLJ Shareholder, (y) such DLJ Partner

or (z) any DLJ Affiliate of such DLJ Partner or a DLJ Affiliate, or the heirs,

executors, administrators, testamentary trustees, legatees or beneficiaries of

any of the foregoing Persons referred to in this clause (III) (collectively,

"DLJ Associates"), (IV) any trust, the beneficiaries of which, or a corporation,

limited liability company or partnership, the stockholders, members or general

or limited partners of which, include only such DLJ Shareholder, DLJ Affiliates,

DLJ Associates, their spouses or their lineal descendants, and (V) a voting

trustee for one or more DLJ Shareholders, DLJ Affiliates or DLJ Associates.

 

                  "Reorganization Transaction" means: (i) any merger,

consolidation, recapitalization, liquidation or other business combination

transaction involving the Company; (ii) any tender offer or exchange offer for

any securities of the Company; or (iii) any sale or other disposition of assets

of the Company or any of its Subsidiaries in a single transaction or in a series

of related transactions in each of the foregoing cases constituting individually

or in the aggregate 10% or more of the assets or Voting Securities (as

applicable) of the Company.

 

                   "Securities Act" shall mean the Securities Act of 1933, as

amended.

 

                  "Shareholder Designee" shall mean a person designated for

election to the Board of Directors by the Apollo/Blackstone Shareholders as

provided in Section 3.1.

 

                  "Total Voting Power" shall mean the total combined Voting

Power, on a fully diluted basis, of all the Voting Securities then outstanding.

 

                  "Voting Power" shall mean, as of the date of determination,

the voting power in the general election of directors of the Company, and shall

be calculated for each Voting Security by reference to the maximum number of

votes such Voting Security is or would be entitled to cast in the general

election of directors, and, in the case of convertible (or exercisable or

exchangeable) securities, by reference to the maximum

 

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number of votes such Voting Security would be entitled to cast in unconverted or

converted (or exercised, unexercised, exchanged or unexchanged) status. For

purposes of determining Voting Power under this Agreement, a Voting Security

which is convertible into or exchangeable for a Voting Security shall be counted

as having the greater of (i) the number of votes to which such Voting Security

is entitled prior to conversion or exchange and (ii) the number of votes to

which the Voting Security into which such Voting Security is convertible or

exchangeable is entitled. Notwithstanding anything else to the contrary

contained in this Agreement, there shall not be included in calculating Voting

Power any votes which a Person shall have upon and by reason of the non-payment

of dividends on preferred shares in accordance with the terms of such preferred

shares.

 

                  "Voting Securities" shall mean (x) any securities entitled, or

which may be entitled, to vote generally in the election of directors of the

Company (including, when issued, shares of Common Stock issued pursuant to the

Exchange Agreement), (y) any securities convertible or exercisable into or

exchangeable for such securities (whether or not the right to convert, exercise

or exchange is subject to the passage of time or contingencies or both), or (z)

any direct or indirect rights or options to acquire any such securities;

provided that unexercised options granted pursuant to any employment benefit or

similar plan and rights issued pursuant to any shareholder rights plan shall be

deemed not to be "Voting Securities" (or to have Voting Power).

 

                  In addition, the following terms have the definitions

specified in the Sections noted:

 

<TABLE>

<CAPTION>

             Term                      Section

             ----                      -------

<S>                                    <C>

AIF IV                                  recitals

AIF III                                recitals

AOP IV                                 recitals

AOP III                                recitals

AUK III                                recitals

AAW                                    recitals

Actual Voting Power Threshold          3.1(b)

Agreement                              recitals

BCP                                    recitals

BOC III                                recitals

BFP III                                recitals

Beneficial Ownership Threshold         3.1(b)

Common Stock                           recitals

Company                                recitals

Credit Agreement                       1.2(e)

Disposition                            4.1

Exempt Affiliate                       2.1

Future Major Investor                  2.3

HSR Act                                1.2(c)

Information                            3.4

</TABLE>

 

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<TABLE>

<S>                                    <C>

Junior Preferred Stock                 recitals

Laidlaw Block                          recitals

Laidlaw                                recitals

Management Directors                   3.1(b)

Material Adverse Effect                1.2(b)

Moving Party                           5.3

Nominating Committee                   3.1(b)

Original Agreement                     recitals

Preferred Stock Purchase Agreement     recitals

Purchase Date                          4.1(b)

Registration Rights Agreement          recitals

Related Transferee                      4.1(f)

Representatives                        5.13

Rule 144 Sale                          4.1(c)

Senior Preferred Stock                 recitals

Shareholder Designee Period            3.1(b)

Shareholders                           recitals

Shares                                  recitals

Specific Rights                        5.13

Standstill Period                      2.1

TPG Group Block                        recitals

Unaffiliated Directors                 3.1(b)

</TABLE>

 

                  SECTION 1.2. Representations and Warranties of the Company.

The Company represents and warrants to Shareholders as follows:

 

                  (a)       The execution, delivery and performance by the

Company of this Agreement and the consummation by the Company of the

transactions contemplated hereby are within its corporate powers and have been

duly authorized by all necessary corporate action on its part. This Agreement

constitutes a legal, valid and binding agreement of the Company enforceable

against the Company in accordance with its terms, subject, as to enforcement, to

bankruptcy, and insolvency, fraudulent transfer reorganization, moratorium and

similar laws of general applicability relating to or affecting creditor's rights

and to general equity principles.

 

                   (b)       The execution, delivery and performance of this

Agreement by the Company does not and will not (i) contravene or conflict with

or constitute a default under the Company's Certificate of Incorporation or

Bylaws, (ii) contravene or conflict with or constitute a default under any

agreement to which the Company is a party or is bound, or result in a breach of

or default under any instrument or agreement to which the Company is a party or

is bound, which violation, breach or default would have a material adverse

effect on the Company's business taken as a whole or would adversely affect the

consummation of the transactions contemplated by this Agreement or the Exchange

Agreement (a "Material Adverse Effect"), (iii) violate any judgment, order,

injunction, decree or award against or binding upon the Company as of the date

of this

 

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Agreement, the violation of which, individually or in the aggregate, would have

a Material Adverse Effect, (iv) violate any Law relating to the Company, the

violation of which, individually or in the aggregate, would have a Material

Adverse Effect or (v) constitute a "change of control," or result in the

acceleration of rights, under any material debt instrument to which the Company

is a party.

 

                  (c)       Except for applicable requirements of the Exchange

Act, the New York Stock Exchange, or as disclosed in the Exchange Agreement, the

Company is not required to make any filing or registration with, or obtain any

permit, authorization, consent or approval of, any governmental entity or any

other Person in connection with this Agreement, the Exchange Agreement, or any

of the transactions contemplated hereby and thereby.

 

                  SECTION 1.3. Representations and Warranties of Shareholder.

Each Shareholder severally, but not jointly, represents and warrants to the

Company as follows:

 

                  (a)       The execution, delivery and performance by such

Shareholder of this Agreement and the consummation by such Shareholder of the

transactions contemplated by this Agreement are within its powers and have been

duly authorized by all necessary action on its part. This Agreement constitutes

a legal, valid and binding agreement of such Shareholder enforceable against

such Shareholder in accordance with its terms, subject, as to enforcement, to

bankruptcy, and insolvency, fraudulent transfer, reorganization, moratorium and

similar laws of general applicability relating to or affecting creditor's rights

and to general equity principles.

 

                  (b)       The execution, delivery and performance of this

Agreement by such Shareholder does not and will not contravene or conflict with

or constitute a default under such Shareholder's partnership agreement or

similar governing documents.

 

                  (c)       As of the date of this Agreement, such Shareholder

does not beneficially own any Voting Securities except (i) any Voting Securities

beneficially owned on the date hereof in compliance with the Original Agreement

and any predecessor to the Original Agreement and (ii) the shares of Common

Stock which are subject to the Exchange Agreement.

 

                                    ARTICLE 2

 

                                   Standstill

 

                   SECTION 2.1. Standstill. (a) Until the earliest to occur of

(A) the tenth anniversary of the purchase of the Senior Preferred Stock pursuant

to the Preferred Stock

 

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Purchase Agreement, (B) the date on which the Apollo/Blackstone Shareholders

own, collectively, Voting Securities which would represent (i) less than 10% of

the Total Voting Power, excluding voting securities beneficially owned by the

Shareholders other than the Apollo/Blackstone Shareholders and (ii) less than

10% of the Actual Voting Power, excluding voting securities beneficially owned

by the Shareholders other than the Apollo/Blackstone Shareholders; provided that

the Shareholders at such time are entitled to designate not more than one

director pursuant to Article 3 hereof, and (C) termination under Section 2.2

(such period, the "Standstill Period") (provided that the Standstill Period

shall end (x) with respect to the DLJ Shareholders, on the date on which the DLJ

Shareholders no longer own any Conversion Shares, and (y) with respect to the

Greenwich Street Shareholders, on the date on which the Greenwich Street

Shareholders no longer own any any Conversion Shares), each Shareholder will

not, and will cause each of its Affiliates (other than Exempt Affiliates) not

to, directly or indirectly:

 

                           (i)       acquire, offer to acquire, or agree to

         acquire, by purchase or otherwise, any Voting Securities or voting

         rights or direct or indirect rights or options to acquire any Voting

         Securities of the Company or any of its Affiliates other than (A) an

         acquisition as a result of a stock split, stock dividend or similar

         recapitalization, (B) the acquisition of shares of Common Stock which

         are subject to the Exchange Agreement, (C) with the prior written

         consent of the chairman of the Board of Directors and the chief

         executive officer of the Company, acquisitions by the Apollo/Blackstone

         Shareholders of up to a collective aggregate amount of 3,000,000 shares

         (as such number may be appropriately adjusted to reflect stock splits,

         reverse stock splits, stock dividends or any other recapitalization of

         the Company and as reduced to reflect any such acquisitions pursuant to

         Section 2.1(a)(i)(C) of the Original Agreement) of Common Stock, (D)

         stock options or similar rights granted by the Company to an Affiliate

         of such Shareholder as compensation for performance as a director or

         officer of the Company or its subsidiaries (and any shares issuable

         upon exercise thereof), (E) transfers between such Shareholder and

         Related Transferees as permitted under Section 4.1(f) or (F) any rights

         which are granted to all shareholders of the Company (and any shares

         issuable upon exercise thereof); provided, however, that if the

         Shareholders or any of their Affiliates in good faith inadvertently

         acquire not more than 500,000 shares of Common Stock in violation of

         these provisions and within 15 days after the first date on which the

         Shareholders have actual knowledge (including by way of written notice

         given by the Company) that a violation has occurred Shareholders or any

         of their Affiliates shall have transferred any shares of Common Stock

         held in violation of these provisions to unrelated third parties so

         that the Shareholders and their Affiliates no longer beneficially own

         any such shares or have any agreement or understanding relating to such

 

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         shares, this Section 2.1 shall be deemed to not have been violated; and

         provided, further, that no violation of this provision shall be deemed

         to have occurred by reason of the indirect acquisition of beneficial

         ownership of securities resulting from (x) investments in investment

         funds as to which no Shareholder or Affiliate thereof has control or

         power to control with respect to voting or investment decisions or (y)

         acquisitions of securities by a limited partner in any Shareholder or

         Affiliates thereof as to which limited partner no Shareholder or its

         Affiliates has control or power to control;

 

                           (ii)      make or cause to be made any proposal for a

         Reorganization Transaction except for Dispositions in accordance with

         Article 4;

 

                            (iii)     form, join or in any way participate in a

         Group with respect to any securities of the Company or its Affiliates,

         other than with other Shareholders or Affiliates of any Shareholder;

         provided, however, that in the case of securities other than Voting

         Securities, Shareholders may participate in a Group with respect

         thereto with the prior approval of a majority of the entire Board of

         Directors (which approval is requested in a manner which does not

         require disclosure publicly or to any third party);

 

                           (iv)      make, or in any way cause or participate in,

         any "solicitation" of "proxies" to vote (as those terms are defined in

         Regulation 14A under the Exchange Act) with respect to the Company or

         its Affiliates, or communicate with, seek to advise, encourage or

         influence any Person, in any manner, with respect to the voting of,

         securities of the Company or its Affiliates, or become a "participant"

         in any "election contest" (as those terms are defined or used in Rule

         14a-11 under the Exchange Act) with respect to the Company or its

         Affiliates (other than non-public communications with other

         Shareholders or Affiliates of any Shareholder which would not require

         public disclosure by any Person or solicitation of proxies in support

         of the election of Shareholder Designees, Management Directors and

         Unaffiliated Directors nominated by the Board of Directors in

         accordance with Section 3.1 hereof in circumstances in which a third

         party is soliciting parties for the election of nominees not nominated

         by the Board of Directors);

 

                            (v)       initiate, propose or, except with the prior

         approval of a majority of the entire Board of Directors (which approval

         is requested in a manner which does not require disclosure publicly or

         to any third parties) otherwise solicit stockholders for the approval

         of one or more stockholder proposals with respect to the Company or its

         Affiliates or induce or attempt to induce any other Person to initiate

         any stockholder proposal or seek election to or seek to place a

 

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         representative on the Board of Directors of the Company (except

         pursuant to Section 3.1 of this Agreement) or its Affiliates or seek

         the removal of any member of the Board of Directors of the Company or

         its Affiliates (for this purpose, the actions of the Shareholder

         Designees in communicating (without public disclosure or disclosure to

         third parties) with the Board of Directors in their capacity as

         directors of the Company, and non-public communication by a Shareholder

         with other Shareholders or Affiliates of any Shareholder which would

         not require public disclosure by any Person, shall not be deemed to be

         in contravention of this paragraph (v));

 

                           (vi)      in any manner, agree, attempt, seek or

         propose (other than making any request for permission with respect

         thereto which would not require disclosure publicly or to any third

         party) to deposit any securities of the Company or its Affiliates in

         any voting trust or similar arrangement or to subject any securities of

         the Company or its Affiliates to any other voting or proxy agreement,

         arrangement or understanding (other than any such agreements or

         understandings with other Shareholders or Affiliates of any

         Shareholder);

 

                           (vii)     offer, sell or transfer any Voting

         Securities or rights to receive Voting Securities except for

         Dispositions in accordance with Article 4;

 

                           (viii)    disclose any intention, plan or arrangement,

         or make any public announcement (or request permission to make any such

         announcement other than making any request for permission which would

         not require disclosure publicly or to any third party), or induce any

         other Person to take any action, inconsistent with the foregoing;

 

                           (ix)      enter into any negotiations, arrangements or

         understandings with any third party with respect to any of the

         foregoing;

 

                           (x)       advise, assist or encourage or finance (or

         assist or arrange financing to or for) any other Person in connection

         with any of the foregoing;

 

                           (xi)      otherwise act in concert with others, to

         seek to control or influence the management, Board of Directors or

         policies of the Company or its Affiliates (for this purpose, the

         actions of the Shareholder Designees in their capacity as directors of

         the Company shall not be deemed to be in contravention of this

          paragraph (xi)); or

 

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                           (xii)     request a waiver of any of the provisions of

         any of paragraphs (