Exhibit 10.1

 

STOCKHOLDERS AGREEMENT

 

DATED AS OF OCTOBER 12, 2016

 

AMONG

 

ADVANCED DISPOSAL SERVICES, INC.

 

STAR ATLANTIC WASTE HOLDINGS, L.P.

 

BTG PACTUAL INTERNATIONAL PORTFOLIO FUND II SPC, SEGREGATED PORTFOLIO BTGPH CORP HEDGE

 

AND

 

CANADA PENSION PLAN INVESTMENT BOARD

 

 

Table of Contents

 

		Page
ARTICLE I. INTRODUCTORY MATTERS		1
1.1	Defined Terms	1
1.2	Construction	3
ARTICLE II. CORPORATE GOVERNANCE MATTERS		3
2.1	Election of Directors	3
ARTICLE III. INFORMATION		4
3.1	Books and Records; Access	4
3.2	Sharing of Information	5
ARTICLE IV. GENERAL PROVISIONS		5
4.1	Termination	5
4.2	Notices	5
4.3	Amendment; Waiver	6
4.4	Further Assurances	6
4.5	Preemptive Rights	7
4.6	Assignment	7
4.7	Third Parties	7
4.8	Governing Law	7
4.9	Jurisdiction; Waiver of Jury Trial	7
4.10	Specific Performance	7
4.11	Entire Agreement	7
4.12	Severability	7
4.13	Table of Contents, Headings and Captions	8
4.14	Grant of Consent	8
4.15	Counterparts	8
4.16	Effectiveness	8
4.17	No Recourse	8

 

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STOCKHOLDERS AGREEMENT

 

This Stockholders Agreement is entered into as of October 12, 2016 by and among Advanced Disposal Services, Inc., a Delaware corporation (the “ Company ”), Star Atlantic Waste Holdings, L.P. (“ Star Atlantic ”), BTG Pactual International Portfolio Fund II SPC, Segregated Portfolio BTGPH Corp Hedge (“ BTG ”), and Canada Pension Plan Investment Board (“ CPPIB ”).

 

BACKGROUND:

 

WHEREAS, the Company is currently contemplating an underwritten initial public offering (“ IPO ”) of shares of its Common Stock (as defined below); and

 

WHEREAS, in connection with, and effective upon, the date of completion of the IPO (the “ Closing Date ”), the Company and the other parties hereto wish to set forth certain understandings between such parties, including with respect to certain governance matters.

 

NOW, THEREFORE, the parties agree as follows:

 

ARTICLE I.
INTRODUCTORY MATTERS

 

1.1                                Defined Terms .  In addition to the terms defined elsewhere herein, the following terms have the following meanings when used herein with initial capital letters:

 

“ Affiliate ” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act, as in effect on the date hereof.

 

“ Agreement ” means this Stockholders Agreement, as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof.

 

“ beneficially own ” has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act.

 

“ Board ” means the board of directors of the Company.

 

“ Business Day ” means a day other than a Saturday, Sunday, federal or New York State holiday or other day on which commercial banks in New York City (and with respect to any CPPIB Entity, in Toronto) are authorized or required by law to close.

 

“ BTG Designee ” has the meaning set forth in Section 2.1(b) .

 

“ BTG Entity ” means each of BTG Pactual International Portfolio Fund II SPC, Segregated Portfolio BTGPH Corp Hedge, any of its affiliates or subsidiaries and any of its and their successors and assigns.

 

“ BTG ” has the meaning set forth in the Preamble.

 

“ Closing Date ” has the meaning set forth in the Background.

 

“ Company ” has the meaning set forth in the Preamble.

 

“ Common Stock ” means the shares of common stock, par value $0.01 per share, of the Company, and any other capital stock of the Company into which such stock is reclassified or reconstituted and any other common stock of the Company.

 

“ Control ” (including its correlative meanings, “ Controlled by ” and “ under common Control with ”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise) of a Person.

 

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“ CPPIB ” has the meaning set forth in the Preamble.

 

“ CPPIB Designee ” has the meaning set forth in Section 2.1(c) .

 

“ CPPIB Entity ” means each of Canada Pension Plan Investment Board, any of its affiliates or subsidiaries (as such term is defined in the Canada Pension Plan Investment Board Act) and any of its and their successors and assigns.

 

“ Director ” means any member of the Board.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.

 

“ Governmental Authority ” means any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

“ Highstar Capital Designee ” has the meaning set forth in Section 2.1(c) .

 

“ Highstar Capital Entity ” means each of Highstar Capital L.P., Star Atlantic, and any of their affiliates or subsidiaries and any of their successors and assigns.

 

“ IPO ” has the meaning set forth in the Background.

 

“ Law ” means any statute, law, regulation, ordinance, rule, injunction, order, decree, governmental approval, directive, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority.

 

“ Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or other form of business organization, whether or not regarded as a legal entity under applicable Law, or any Governmental Authority or any department, agency or political subdivision thereof.

 

“ Star Atlantic ” has the meaning set forth in the Preamble.

 

“ Stockholder ” means any of the Highstar Capital Entities, the BTG Entities and the CPPIB Entities.

 

“ Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which:  (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, representatives or trustees thereof is at the time owned or Controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (ii) if a limited liability company, partnership, association or other business entity, a majority of the total voting power of stock (or equivalent ownership interest) of the limited liability company, partnership, association or other business entity is at the time owned or Controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof.  For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or Control the managing member, managing director or other governing body or general partner of such limited liability company, partnership, association or other business entity.

 

“ Total Number of Directors ” means the total number of directors comprising the Board.

 

“ Transfer ” (including its correlative meanings, “ Transferor ”, “ Transferee ” and “ Transferred ”) shall mean, with respect to any security, directly or indirectly, to sell, contract to sell, give, assign, hypothecate, pledge, encumber, grant a security interest in, offer, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any economic,

 

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voting or other rights in or to such security.  When used as a noun, “ Transfer ” shall have such correlative meaning as the context may require.

 

1.2                                Construction .  The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.  Unless the context otherwise requires:  (a) “ or ” is disjunctive but not exclusive, (b) words in the singular include the plural, and in the plural include the singular, and (c) the words “ hereof ”, “ herein ”, and “ hereunder ” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to this Agreement unless otherwise specified.

 

ARTICLE II.
CORPORATE GOVERNANCE MATTERS

 

2.1                                Election of Directors .

 

(a)                                  Following the Closing Date, the Highstar Capital Entities shall have the right, but not the obligation, to nominate to the Board a number of designees equal to at least:  (i) a majority of the Total Number of Directors, so long as the Highstar Capital Entities collectively beneficially own 50% or more of the outstanding shares of Common Stock; (ii) 40% of the Total Number of Directors, in the event that the Highstar Capital Entities collectively beneficially own 40% or more, but less than 50%, of the outstanding shares of Common Stock; (iii) 30% of the Total Number of Directors, in the event that the Highstar Capital Entities collectively beneficially own 30% or more, but less than 40%, of the outstanding shares of Common Stock; (iv) 20% of the Total Number of Directors, in the event that the Highstar Capital Entities collectively beneficially own 20% or more, but less than 30%, of the outstanding shares of Common Stock; and (v) 10% of the Total Number of Directors, in the event that the Highstar Capital Entities collectively beneficially own 5% or more, but less than 20%, of the outstanding shares of Common Stock.  For purposes of calculating the number of directors that the Highstar Capital Entities are entitled to designate pursuant to the immediately preceding sentence, any fractional amounts shall automatically be rounded up to the nearest whole number (e.g., one and one quarter (1 ¼) Directors shall equate to two (2) Directors) and any such calculations shall be made after taking into account any increase in the Total Number of Directors.  At the request of the Highstar Capital Entities for so long as the Board is classified, the number of Directors nominated by the Highstar Capital Entities in each class shall be as nearly equal as possible.

 

(b)                                  Following the Closing Date, the BTG Entities shall have the right, but not the obligation, to nominate to the Board one (1) designee, so long as the BTG Entities collectively beneficially own 5% of the outstanding shares of Common Stock.  Any person whom the BTG Entities shall actually nominate pursuant to this Section 2.1 and who is thereafter elected to the Board to serve as a Director shall be referred to herein as the “ BTG Designee ”.

 

(c)                                   Following the Closing Date, the CPPIB Entities shall have the right, but not the obligation, to nominate to the Board one (1) designee, so long as the CPPIB Entities collectively beneficially own 5% of the outstanding shares of Common Stock.  Any person whom the CPPIB Entities shall actually nominate pursuant to this Section 2.1 and who is thereafter elected to the Board to serve as a Director shall be referred to herein as the “ CPPIB Designee ”.

 

(d)                                  In the event that the Highstar Capital Entities have nominated less than the total number of designees the Highstar Capital Entities shall be entitled to nominate pursuant to Section 2.1(a) , the Highstar Capital Entities shall have the right, at any time, to nominate such additional designees to which it is entitled, in which case the Company and the Directors shall take all necessary corporate action, to the fullest extent permitted by applicable law (including with respect to any fiduciary duties under Delaware law), to (x) enable the Highstar Capital Entities to nominate and effect the election or appointment of such additional individuals, whether by increasing the size of the Board, or otherwise and (y) to designate such additional individuals nominated by the Highstar Capital Entities to fill such newly-created vacancies or to fill any other existing vacancies.  Each such person whom the Highstar Capital Entities shall actually nominate pursuant to this Section 2.1 and who is thereafter elected to the Board to serve as a Director shall be referred to herein as a “ Highstar Capital Designee ”.

 

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(e)           In the event that a vacancy is created or exists at any time following the death, retirement or resignation of, or any failure to elect, any Director designated by the Highstar Capital Entities, BTG Entities or CPPIB Entities pursuant to this Section 2.1 , the remaining Directors and the Company shall, to the fullest extent permitted by applicable law (including with respect to any fiduciary duties under Delaware law), cause such vacancy to be filled by a designee of the Highstar Capital Entities, BTG Entities or CPPIB Entities, as applicable, as soon as possible, and the Company hereby agrees to take, to the fullest extent permitted by applicable law (including with respect to any fiduciary duties under Delaware law), at any time and from time to time, all actions necessary to accomplish the same.

 

(f)            The names and categories of the Directors as of the Closing Date are set forth in Schedule 2.1(f) .  The Company agrees, to the fullest extent permitted by applicable law (including with respect to any fiduciary duties under Delaware law), to include in the slate of nominees recommended by the Board for future elections at any meeting of stockholders called for the purpose of electing Directors the persons designated pursuant to this Section 2.1 (to the extent that Directors of such nominee’s class are to be elected at such meeting for so long as the Board is classified) and to nominate and recommend each such individual to be elected as a Director as provided herein, and to solicit proxies or consents in favor thereof.  The Company is entitled to identify such individual as a Highstar Capital Designee, BTG Designee or CPPIB Designee, as applicable, pursuant to this Agreement.

 

(g)           Notwithstanding Section 2.1(a)  through (f)  above, the Company shall not be required to effect the election or appointment of designees which Highstar Capital Entities, BTG Entities or CPPIB Entities are entitled to nominate, if such election or appointment would result in the composition of the Board being in violation of the independence standards under Section 303A of the NYSE Listed Company Manual; provided however, that in the case of such a failure to effect such election or appointment, the Company shall promptly take any commercially reasonable effort to effect the provisions of Section 2.1(a)  through (f) , including, but not limited to, resizing the Board through the addition of new directors.

 

(h)           If, at any time, Highstar Capital Entities cease to beneficially own the minimum percentage of outstanding shares of Common Stock necessary under Section 2.1(a)  to nominate the percentage of the Total Number of Directors then represented by the then current Highstar Capital Designees, Highstar Capital shall, within 30 days of the event that caused its beneficial ownership to drop below the relevant minimum percentage, cause the necessary number of Highstar Capital Designees to offer to resign from the Board, conditional upon acceptance by the Board, so that the number of Highstar Capital Designees is consistent with Highstar Capital’s new beneficial ownership percentage.

 

(i)            At such time as either the BTG Entities or the CPPIB Entities cease to beneficially own at least 5% of outstanding shares of Common Stock, as applicable, the BTG Entities or the CPPIB Entities shall, as applicable, within 30 days of the event that caused its beneficial ownership to drop below 5%, cause the BTG Designee or CPPIB Designee, as applicable, to offer to resign from the Board, conditional upon acceptance by the Board.

 

ARTICLE III.
INFORMATION

 

3.1          Books and Records; Access .  The Company shall, and shall cause its Subsidiaries to, keep proper books, records and accounts, in which full and correct entries shall be made of all financial transactions and the assets and business of the Company and each of its Subsidiaries in accordance with generally accepted accounting principles.  For so long as the Highstar Capital Entities beneficially own 5% or more of the outstanding shares of Common Stock, the Company shall, and shall cause its Subsidiaries to, permit the Highstar Capital Entities and their respective designated representatives, at reasonable times and upon reasonable prior notice to the Company, to review the books and records of the Company or any of such Subsidiaries and to discuss the affairs, finances and condition of the Company or any of such Subsidiaries with the officers of the Company or any such Subsidiary.  For so long as the Highstar Capital Entities beneficially own 5% or more of the outstanding shares of Common Stock, the Company shall, and shall cause its Subsidiaries to, provide the Highstar Capital Entities, in addition to other information that might be reasonably requested by the Highstar Capital Entities from time to time, (i) direct access to the Company’s auditors and officers, (ii) copies of all materials provided to the Company’s board of directors (or equivalent governing body) at the same time as provided to the directors (or their equivalent) of the Company,

 

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(iii) access to appropriate officers and directors of the Company at such times as may be requested by the Highstar Capital Entities, as the case may be, for consultation with each of the Highstar Capital Entities with respect to matters relating to the business and affairs of the Company and its subsidiaries, (iv) information in advance with respect to any significant corporate actions, including, without limitation, extraordinary dividends, mergers, acquisitions or dispositions of assets, issuances of significant amounts of debt or equity and material amendments to the certificate of incorporation or bylaws of the Company or any of its respective subsidiaries, and to provide the Highstar Capital Entities, with the right to consult with the Company and its subsidiaries with respect to such actions, and (v) to the extent otherwise prepared by the Company, operating and capital expenditure budgets and periodic information packages relating to the operations and cash flows of the Company and its Subsidiaries (all such information so furnished pursuant to this Section 3.1 , the “ Information ”).  The Company agrees to consider, in good faith, the recommendations of the Highstar Capital Entities in connection with the matters on which the Company is consulted as described above.  Subject to Section 3.2 , any Highstar Capital Entity (and any party receiving Information from a Highstar Capital Entity) who shall receive Information shall maintain the confidentiality of such Information, and the Company shall not be required to disclose any privileged Information of the Company so long as the Company has used its commercially reasonable efforts to enter into an arrangement pursuant to which it may provide such information to the Highstar Capital Entities without the loss of any such privilege.

 

3.2          Sharing of Information .  Individuals associated with the Highstar Capital Entities, the BTG Entities or the CPPIB Entities may from time to time serve on the boards of directors or similar governing bodies of the Company and its Subsidiaries.  The Company, on its behalf and on behalf of its Subsidiaries, recognize that such individuals (i) will from time to time received non-public information concerning the Company and its Subsidiaries, and (ii) may (subject to the obligation to maintain the confidentiality of such information in accordance with Section 3.1 ) share such information with other individuals associated with the Highstar Capital Entities, the BTG Entities or the CPPIB Entities, as applicable.  Such sharing will be for the dual purpose of facilitating support to such individuals in their capacity as directors and enabling the Highstar Capital Entities, the BTG Entities or the CPPIB Entities (as applicable), as equityholders, to better evaluate the Company’s performance and prospects.  The Company, on behalf of itself and its Subsidiaries, hereby irrevocably consents to such sharing.

 

ARTICLE IV.
GENERAL PROVISIONS

 

4.1          Termination .  This Agreement shall terminate, with respect to each group of the Highstar Capital Entities, the BTG Entities or the CPPIB Entities, on the earlier to occur of (i) such time as such group is no longer entitled to nominate a Director pursuant to Section 2.1(a)  and (ii) upon the delivery of a written notice by such group to the Company requesting that this Agreement terminate with respect to such group.

 

4.2          Notices .  Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, or mailed first class mail (postage prepaid) or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below and to any other recipient at the address indicated on the Company’s records, or at such address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party.  Notices will be deemed to have been given hereunder when (i) sent by facsimile (receipt confirmed), (ii) delivered personally, (iii) five (5) Business Days after deposit in the U.S. mail and one (1) Business Day after deposit with a reputable overnight courier service.

 

The Company’s address is:

Advanced Disposal Services, Inc.

90 Fort Wade Road, Suite 200

Ponte Vedra, Florida 32801

Attention: General Counsel

with a copy (not constituting notice) to:

Shearman & Sterling LLP

599 Lexington Avenue

 

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New York, New York 10022
Attention: Richard B. Alsop
Fax: (212) 848-5085
The Highstar Capital Entities’ address is:
Highstar Capital L.P.
277 Park Avenue, 45th floor
New York, New York 10172
The BTG Entities’ address is:
BTG Pactual International Portfolio Fund II SPC, Segregated Portfolio BTGPH Corp Hedge
1209 Orange Street
Wilmington, Delaware 19801
with a copy (not constituting notice) to:
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036
Facsimile: (212) 969-2900
Attention:  Daniel I. Ganitsky
The CPPIB Entities’ address is:
Canada Pension Plan Investment Board
One Queen Street East
Suite 2500
Toronto, ON
Canada M5C 2W5
Attention:	Managing Director, Head of Relationship Investments
	Senior Managing Director, General Counsel and Corporate Secretary
with a copy (not constituting notice) to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Facsimile: (212) 909-6836
Attention:  Kevin M. Schmidt

 

4.3          Amendment; Waiver .  This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by the Company and the other parties hereto.  Neither the failure nor delay on the part of any party hereto to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence.  No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

 

4.4          Further Assurances .  The parties hereto will sign such further documents, cause such meetings to be held, resolutions passed, exercise their votes and do and perform and cause to be done such further acts and things necessary, proper or advisable in order to give full effect to this Agreement and every provision hereof.  To

 

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the fullest extent permitted by law, the Company shall not directly or indirectly take any action that is intended to, or would reasonably be expected to result in, any Stockholder being deprived of the rights contemplated by this Agreement.

 

4.5          Preemptive Rights .  In the event that the Company grants any preemptive rights with respect to its capital stock or other securities to any Person (including any Stockholder), each Stockholder, as long as such Stockholder has the right to nominate a Board designee pursuant to Section 2.1 , shall be entitled to preemptive rights no less favorable than those granted to such Person, and the Company shall promptly execute any documents as may be appropriate to evidence the grant of such rights to the Stockholders.

 

4.6          Assignment .  This Agreement will inure to the benefit of and be binding on the parties hereto and their respective successors and permitted assigns.  This Agreement may not be assigned by any Stockholder without the express prior written consent of the other parties hereto, and any attempted assignment, without such consents, will be null and void; provided , however , that (i) each Highstar Capital Entity shall be entitled to assign, in whole or in part, to any other Highstar Capital Entity, (ii) each BTG Entity shall be entitled to assign, in whole or in part, to any other BTG Entity, and (iii) each CPPIB Entity shall be entitled to assign, in whole or in part, to any other CPPIB Entity, in each case of the foregoing clauses (i) through (iii), without such prior written consent any of its rights hereunder.

 

4.7          Third Parties .  Except as provided for in Section 3.2 with respect to any Highstar Capital Entity, any BTG Entity or any CPPIB Entity, this Agreement does not create any rights, claims or benefits inuring to any person that is not a party hereto nor create or establish any third party beneficiary hereto.

 

4.8          Governing Law .  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws thereof.

 

4.9          Jurisdiction; Waiver of Jury Trial .  In any judicial proceeding involving any dispute, controversy or claim arising out of or relating to this Agreement, each of the parties hereto unconditionally accepts the jurisdiction and venue of the Court of Chancery of the State of Delaware or, if the Court of Chancery does not have subject matter jurisdiction over this matter, the Superior Court of the State of Delaware (Complex Commercial Division), or if jurisdiction over the matter is vested exclusively in federal courts, the United States District Court for the District of Delaware, and the appellate courts to which orders and judgments thereof may be appealed.  In any such judicial proceeding, the parties agree that in addition to any method for the service of process permitted or required by such courts, to the fullest extent permitted by law, service of process may be made by delivery provided pursuant to the directions in Section 4.2 .  EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

 

4.10        Specific Performance .  Each party hereto acknowledges and agrees that in the event of any breach of this Agreement by any of them, the other parties hereto would be irreparably harmed and could not be made whole by monetary damages.  Each party accordingly agrees to waive the defense in any action for specific performance that a remedy at law would be adequate and that the parties, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to specific performance of this Agreement without the posting of bond.

 

4.11        Entire Agreement .  This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof.  There are no agreements, representations, warranties, covenants or understandings with respect to the subject matter hereof or thereof other than those expressly set forth herein and therein.  This Agreement supersedes all other prior agreements and understandings between the parties with respect to such subject matter.

 

4.12        Severability .  If any provision of this Agreement, or the application of such provision to any Person or circumstance or in any jurisdiction, shall be held to be invalid or unenforceable to any extent, (i) the remainder of this Agreement shall not be affected thereby, and each other provision hereof shall be valid and enforceable to the fullest extent permitted by law, (ii) as to such Person or circumstance or in such jurisdiction such

 

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provision shall be reformed to be valid and enforceable to the fullest extent permitted by law and (iii) the application of such provision to other Persons or circumstances or in other jurisdictions shall not be affected thereby.

 

4.13        Table of Contents, Headings and Captions .  The table of contents, headings, subheadings and captions contained in this Agreement are included for convenience of reference only, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.

 

4.14        Grant of Consent .  Any vote, consent or approval of any entity of each group of the Highstar Capital Entities, BTG Entities or any CPPIB Entities hereunder shall be deemed to be given with respect to such entity if such vote, consent or approval is given by members of such entity’s group having a pecuniary interest in a majority of the shares of Common Stock over which all members of such group then have a pecuniary interest.

 

4.15        Counterparts .  This Agreement and any amendment hereto may be signed in any number of separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one Agreement (or amendment, as applicable).

 

4.16        Effectiveness .  This Agreement shall become effective upon the Closing Date.

 

4.17        No Recourse .  This Agreement may only be enforced against, and any claims or cause of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against the entities that are expressly identified as parties hereto and no past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, stockholder, agent, attorney or representative of any party hereto or any of its past, present or future Affiliates shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby.

 

[ Remainder Of Page Intentionally Left Blank ]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement on the day and year first above written.

 

		COMPANY:
		ADVANCED DISPOSAL SERVICES, INC.
By:		/s/ Richard Burke
Name:		Richard Burke
Title:		CEO
		STOCKHOLDERS :
		STAR ATLANTIC WASTE HOLDINGS, L.P.
		By Star Atlantic GP, Inc., its general partner
By:		/s/ Bret Budenbender
Name:		Bret Budenbender
Title:		Managing Director
		BTG PACTUAL INTERNATIONAL PORTFOLIO FUND II SPC, SEGREGATED PORTFOLIO BTGPH CORP HEDGE
By:		/s/ Nandikesh Anilkumar Dixit
Name:		Nandikesh Anilkumar Dixit
Title:		Attorney in fact
By:		/s/ Gabriel Femando Barretti
Name:		Gabriel Femando Barretti
Title:		Attorney in fact
		CANADA PENSION PLAN INVESTMENT BOARD
By:		/s/ Eric Wetlaufer
Name:		Eric Wetlaufer
Title:		Senior Managing Director & Global Head of Public Market Investments
By:		/s/ Scott Lawrence
Name:		Scott Lawrence
Title:		Managing Director, Head of Relationship Investments

 

[ Signature Page to Stockholders Agreement ]

 

 

SCHEDULE 2.1(f)

 

Initial Designated Directors as of the Closing Date

 

Director		Designee
Bret Budenbender		Highstar Capital Designee
Christopher Beall		Highstar Capital Designee
John Miller		Highstar Capital Designee
Jared Parker		Highstar Capital Designee
Matthew Rinklin		Highstar Capital Designee
Sergio Pedreiro		BTG Designee
Michael Koen		CPPIB Designee
Richard Burke
B. Clyde Preslar

 

[ Signature Page to Stockholders Agreement ]

 

Exhibit 10.2

 

REGISTRATION RIGHTS AGREEMENT

 

This REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”), dated as of       October 12, 2016, is by and among Star Atlantic Waste Holdings, L.P., a Delaware limited partnership, (“ Highstar ”), Advanced Disposal Services, Inc., a Delaware corporation (the “ Corporation ”), and each of the Shareholders (as defined below).  Each of the Persons listed on Exhibit A hereto, Highstar and any other Person who may become a party hereto pursuant to Section 11(c) and are referred to individually as a “ Shareholder ” and collectively as the “ Shareholders ”).

 

WHEREAS, the Corporation desires to grant registration rights to the Shareholders on the terms set out in this Agreement.

 

NOW, THEREFORE, for and in consideration of the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

 

Section 1.                                            Definitions .  As used in this Agreement, the following terms shall have the following meanings:

 

“ Agreement ” shall have the meaning set forth in the Preamble.

 

“ Block Sale ” means the sale of Common Stock to one or several purchasers in a registered transaction by means of ( i ) a bought deal, ( ii ) a block trade or ( iii ) a direct sale.

 

“ BTG ” shall mean BTG Pactual International Portfolio Fund II SPC, Segregated Portfolio BTGPH Corp Hedge, a segregated portfolio company organized under the laws of the Cayman Islands.

 

“ Common Stock ” shall mean all shares existing or hereafter authorized of any class of common stock of the Corporation which has the right (subject always to the rights of any class or series of preferred stock of the Corporation) to participate in the distribution of the assets and earnings of the Corporation without limit as to per share amount, including any shares of capital stock into which Common Stock may be converted (as a result of recapitalization, share exchange or similar event) or are issued with respect to Common Stock, including with respect to any stock split or stock dividend, or a successor security.

 

“ Corporation ” shall mean Advanced Disposal Services, Inc. or such other corporate entity as shall be the successor to Advanced Disposal Services, Inc.

 

“ CPPIB ” shall mean Canada Pension Plan Investment Board, any subsidiary thereof (as such term is defined in the Canada Pension Plan Investment Board Act) or any affiliate thereof owning shares of Common Stock.

 

“ Demand Notice ” shall have the meaning set forth in Section 3(a) hereof.

 

“ Demand Registration ” shall have the meaning set forth in Section 3(a) hereof.

 

“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and any successor statute thereto and the rules and regulations of the SEC promulgated thereunder.

 

“ Indemnified Party ” shall have the meaning set forth in Section 8(c) hereof.

 

“ Indemnifying Party ” shall have the meaning set forth in Section 8(c) hereof.

 

“ Locked-Up Shareholder ” shall have the meaning set forth in Section 5 hereof.

 

“ Long-Form Registration ” shall have meaning set forth in Section 3(a) hereof.

 

“ Losses ” shall have the meaning set forth in Section 8(a) hereof.

 

 

“ Management Shareholder ” means a stockholder of the Company who is identified as a Management Shareholder on Exhibit A hereto.

 

“ Notice ” shall have the meaning set forth in Section 3(c) hereof.

 

“ Person ” shall mean any natural person, corporation, limited partnership, general partnership, limited liability company, joint stock company, joint venture, association, company, estate, trust, bank trust company, land trust, business trust, or other organization, whether or not a legal entity, custodian, trustee-executor, administrator, nominee or entity in a representative capacity and any government or agency or political subdivision thereof.

 

“ Piggyback Notice ” shall have the meaning set forth in Section 4(a) hereof.

 

“ Piggyback Registration ” shall have the meaning set forth in Section 4(a) hereof.

 

“ Proceeding ” shall mean an action, claim, suit, arbitration or proceeding (including an investigation or partial proceeding, such as a deposition), whether commenced or threatened.

 

“ Prospectus ” shall mean the prospectus included in any Registration Statement (including a prospectus that discloses information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such prospectus.

 

“ Public Offering ” shall mean the sale of Common Stock to the public pursuant to an effective Registration Statement (other than Form S-4 or Form S-8 or any similar or successor form) filed under the Securities Act or any comparable law or regulatory scheme of any foreign jurisdiction.

 

“ Registrable Securities ” shall mean any shares of Common Stock (and any other securities issued or issuable with respect to any such shares by way of share split, share dividend, recapitalization, merger, exchange or similar event or otherwise) currently held or hereafter acquired by the Shareholders or their affiliates.  As to any particular Registrable Securities, once issued such securities shall cease to be Registrable Securities when (i) a registration statement covering such Registrable Securities has been declared effective and such Registrable Securities have been disposed of pursuant to such effective registration statement; (ii) such Registrable Securities shall have been sold pursuant to Rule 144 or Rule 145 (or any similar provision then in effect) under the Securities Act; (iii) other than with respect to Registrable Securities held by Highstar or CPPIB, such Registrable Securities may be freely sold pursuant to Rule 144 or Rule 145 (or any similar provision then in effect) under the Securities Act, without reporting obligations or volume limitation or other restrictions on transfer; or (iv) such Registrable Securities cease to be outsanding.  No Registrable Securities may be registered under more than one Registration Statement at any one time.

 

“ Registration Statement ” shall mean any registration statement of the Corporation under the Securities Act which covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.

 

“ Rule 144 ” shall mean Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.

 

“ SEC ” shall mean the Securities and Exchange Commission or any successor agency having jurisdiction under the Securities Act.

 

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“ Securities Act ” shall mean the Securities Act of 1933, as amended, and any successor statute thereto and the rules and regulations of the SEC promulgated thereunder.

 

“ Shareholders ” shall have the meaning set forth in the Preamble.

 

“ Shelf Underwritten Offering ” shall have the meaning set forth in Section 4(c) hereof.

 

“ Short-Form Registration ” shall have meaning set forth in Section 3(a) hereof.

 

“ Sponsor Investor Shareholder ” shall mean Highstar so long as it holds Registrable Securities.

 

“ Take-Down Notice ” shall have the meaning set forth in Section 4(c) hereof.

 

“ underwritten registration ” or “ underwritten offering ” shall mean a registration in which securities of the Corporation are sold to an underwriter for reoffering to the public.

 

Section 2.                                            Holders of Registrable Securities .  A Person is deemed, and shall only be deemed, to be a holder of Registrable Securities if such Person owns Registrable Securities or has a right to acquire such Registrable Securities and such Person is a Shareholder.

 

Section 3.                                            Demand Registrations .

 

(a)                                  Requests for Registration .  Subject to the following paragraphs of this Section 3, the Sponsor Investor Shareholder shall have the right, by delivering, directly or indirectly, a written notice to the Corporation, to require the Corporation to register pursuant to the terms of this Agreement and in accordance with the provisions of the Securities Act, the number of Registrable Securities requested to be so registered pursuant to the terms of this Agreement on Form S-1 or any similar or successor long-form registration (“ Long-Form Registrations ”) or, if available, on Form S-3 or any similar or successor short-form registration (“ Short-Form Registrations ”) (any such written notice delivered by the Sponsor Investor Shareholder or CPPIB, a “ Demand Notice ” and any such registration pursuant to receipt of a Demand Notice by the Sponsor Investor Shareholder or CPPIB, a “ Demand Registration ”) provided that in each case, the aggregate amount of such Registrable Securities must be at least $50,000,000.  Subject to the following paragraphs of this Section 3, CPPIB shall have the right, beginning on the date twelve months after the last day in the calendar month in which a Registration Statement in connection with an underwritten Public Offering became effective, by delivering, directly or indirectly, a Demand Notice to the Corporation, to require the Corporation to register pursuant to the terms of this Agreement and in accordance with the provisions of the Securities Act, the number of Registrable Securities requested to be so registered pursuant to the terms of this Agreement using a Long-Form Registration or, if available, using a Short-Form Registration (in each case, the aggregate amount of such Registrable Securities must be at least $50,000,000); provided that the Long-Form Registration demand right may only be exercised if the Corporation is not eligible to use a Short-Form Registration; provided further that if the Corporation has a registration statement filed with the SEC in accordance with and pursuant to Rule 415 under the Securities Act, then such demand right shall be exercised in accordance with Section 4(c).  The Sponsor Investor Shareholder and CPPIB may, in connection with any Demand Registration requested by such holder that is a Short Form Registration, require the Corporation to file such Registration Statement with the SEC in accordance with and pursuant to Rule 415 under the Securities Act including, if the Corporation is then eligible, as an automatic shelf registration.  Following receipt of a Demand Notice for a Demand Registration delivered in accordance with this Section 3(a), the Corporation shall use its reasonable best efforts to file a Registration Statement as promptly as practicable and shall use its reasonable best efforts to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.

 

(b)                               No Demand Registration shall be deemed to have occurred for purposes of this Section 3 if the Registration Statement relating thereto (i) does not become effective, (ii) is not maintained effective for the period required pursuant to this Section 3, or (iii) the offering of the Registrable Securities pursuant to such Registration Statement is subject to a stop order, injunction, or similar order or requirement of the SEC during such period, in which case, such requesting holder of Registrable Securities shall be entitled to an additional Demand Registration in lieu thereof.

 

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(c)                                   Within five days after receipt by the Corporation of a Demand Notice in accordance with Section 3(a), the Corporation shall give written notice (the “ Notice ”) of such Demand Notice to all other holders of Registrable Securities and shall, subject to the provisions of Section 3(b) hereof, include in such registration all Registrable Securities with respect to which the Corporation received written requests for inclusion therein within five days after such Notice is given by the Corporation to such holders.

 

(d)                                  All requests made pursuant to this Section 3 will specify the number of Registrable Securities to be registered and the intended methods of disposition thereof.

 

(e)                                   The Corporation shall be required to maintain the effectiveness of the Registration Statement with respect to any Demand Registration for a period of at least 180 days after the effective date thereof or such shorter period during which all Registrable Securities included in such Registration Statement have actually been sold; provided , however , that such period shall be extended for a period of time equal to the period the holder of Registrable Securities refrains from selling any securities included in such Registration Statement at the request of the Corporation or an underwriter of the Corporation pursuant to the provisions of this Agreement.

 

Notwithstanding the foregoing, with respect to any shelf registration statement covering Registrable Securities, the Corporation shall use its reasonable best efforts (if the Corporation is not eligible to use an automatic shelf registration statement at the time of filing) to keep such shelf registration statement continuously effective under the Securities Act in order to permit the prospectus forming a part thereof to be usable by Shareholders until the earlier of (i) the date as of which there are no longer any Registrable Securities or another registration statement has been filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder) and (ii) other than in the case of Registrable Securities held by Highstar or CPPIB, the date as of which each of the Shareholders participating in such Shelf Registration is permitted to sell its Registrable Securities without registration pursuant to Rule 144 without volume limitation or other restrictions on transfer thereunder.

 

(f)                                    Priority on Demand Registration .  If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in a firm commitment underwritten offering, and the managing underwriter or underwriters advise the holders of such securities in writing that in its view the total number or dollar amount of Registrable Securities proposed to be sold in such offering is such as to adversely affect the success of such offering (including securities proposed to be included by other holders of securities entitled to include securities in such Registration Statement pursuant to incidental or piggyback registration rights), then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities that in the opinion of such managing underwriter can be sold without adversely affecting such offering, and such number of Registrable Securities shall be allocated as follows, unless the underwriter requires a different allocation:

 

(i)                                      first, pro rata among the remaining holders of Registrable Securities on the basis of the percentage of the Registrable Securities requested to be included in such Registration Statement by such holders; and

 

(ii)                                   second, the securities for which inclusion in such Demand Registration, as the case may be, was requested by the Corporation.

 

For purposes of any underwriter cutback, all Registrable Securities held by any Shareholder shall also include any Registrable Securities held by the partners, retired partners, shareholders or Affiliates of such holder, or the estates and family members of any such holder or such partners and retired partners, any trusts for the benefit of any of the foregoing Persons and, at the election of such holder or such partners, retired partners, trust or Affiliates, any charitable organization, in each case to which any of the foregoing shall have been distributed, transferred or contributed Registrable Securities prior to the execution of the underwriting agreement in connection with such underwritten offering; provided that such distribution, transfer or contribution occurred not more than 90 days prior to such execution, and such holder and other Persons shall be deemed to be a single selling holder, and any pro rata reduction (unless the managing underwriter requires a different allocation) with respect to such selling holder shall be based upon the aggregate amount of Registrable Securities owned by all Persons included in such selling holder,

 

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as defined in this sentence.  No securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration.

 

(g)                                   Postponement of Demand Registration .  The Corporation shall be entitled to postpone (but not more than twice in any 12-month period), for a reasonable period of time not in excess of 45 days, the filing of any registration statement or suspend the use of any shelf registration statement if the Corporation delivers to the holders requesting registration or the use of any shelf registration statement, as applicable, a certificate signed by both the chief executive officer and chief financial officer of the Corporation certifying that, in the good faith judgment of the board of directors of the Corporation, such registration or offering would reasonably be expected to materially adversely affect or materially interfere with any bona fide material financing of the Corporation or any material transaction under consideration by the Corporation or would require disclosure of information that has not been disclosed to the public, the premature disclosure of which would materially adversely affect the Corporation.  Such certificate shall contain a statement of the reasons for such postponement and an approximation of the anticipated delay.  The holders receiving such certificate shall keep the information contained in such certificate confidential subject to the same terms set forth in Section 6(p).  If the Corporation shall so postpone the filing of a registration statement or suspend the use of any shelf registration statement, the Sponsor Investor Shareholder or CPPIB, as applicable, shall have the right to withdraw the request for registration or use of a shelf registration statement by giving written notice to the Corporation within 10 days of the anticipated termination date of the postponement period, as provided in the certificate delivered to the holders, and in the case of such a withdrawal, the Demand Notice delivered will not be counted for purposes of the number of Demand Notices permitted pursuant to Section 3(i).

 

(h)                                  Cancellation of a Demand Registration .  The holder delivering a Demand Notice shall have the right to notify the Corporation that they have determined that the registration statement be abandoned or withdrawn, in which event the Corporation shall abandon or withdraw such Registration Statement.  In such case, the Demand Notice delivered prior to abandonment or withdrawal shall not count for purposes of the number of Demand Notices permitted pursuant to Section 3(i) if (i) the Registration Statement relating thereto does not become effective, (ii) the price to the public at which the Registrable Securities are proposed to be sold will be less than 90% of the volume weighted average closing price of the Common Stock during the 10 trading days preceding the date on which the Demand Notice of such offering was given or (iii) more than 20% of the Registrable Securities requested by the holder Delivering a Demand Notice to be included in such registration are not so included.

 

(i)                                      Number of Notices .  In connection with the provisions of this Section 3, the Sponsor Investor Shareholder shall have an unlimited number of Demand Notices which it is permitted to deliver (or cause to be delivered) to the Corporation hereunder.  CPPIB shall have a total of two Demand Notices for Long-Form Registrations which it is permitted to deliver (or cause to be delivered) to the Corporation and an unlimited number of Demand Notices which it is permitted to deliver (or cause to be delivered) for Short-Form Registrations and an unlimited number of Take-Down Notices.

 

(j)                                     Registration Statement Form .  If any registration requested pursuant to this Section 3 which is proposed by the Corporation to be effected by the filing of a Registration Statement on Form S-3 (or any successor or similar short-form registration statement) shall be in connection with an underwritten Public Offering, and if the managing underwriter shall advise the Corporation in writing that, in its opinion, the use of another form of Registration Statement is of material importance to the success of such proposed offering or is otherwise required by applicable law, then such registration shall be effected on such other form.

 

(k)                                  No Notice in Block Sales .  Notwithstanding any other provision of this Agreement, if the holder delivering a Demand Notice wishes to engage in a Block Sale (including a Block Sale off of a shelf registration statement), then notwithstanding the foregoing or any other provisions hereunder (including without limitation Sections 3 and 4 of this Agreement), no other holder shall be entitled to receive any notice of or have its Registrable Securities included in such Block Sale.

 

Section 4.                                            Piggyback Registration .

 

(a)                                  Right to Piggyback .  Except with respect to a Demand Registration, the procedures for which are addressed in Section 3, if the Corporation proposes to file a registration statement under

 

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the Securities Act with respect to an offering of Common Stock whether or not for sale for its own account (other than a registration statement (i) on Form S-4, Form S-8 or any successor forms thereto or (ii) filed solely in connection with an exchange offer or any employee benefit or dividend reinvestment plan), then, each such time, the Corporation shall give prompt written notice of such filing no later than ten days prior to the filing date (the “ Piggyback Notice ”) to all of the holders of Registrable Securities.  The Piggyback Notice shall offer such holders the opportunity to include (or cause to be included) in such Registration Statement the number of Registrable Securities as each such holder may request (a “ Piggyback Registration ”).  Subject to Section 4(b) hereof, the Corporation shall include in each such Piggyback Registration all Registrable Securities with respect to which the Corporation has received written requests for inclusion therein within ten days after notice has been given to the applicable holder.  The Corporation shall not be required to maintain the effectiveness of the Registration Statement for a Piggyback Registration beyond the earlier to occur of (i) 180 days after the effective date thereof and (ii) consummation of the distribution by the holders of the Registrable Securities included in such Registration Statement.

 

(b)                                  Priority on Piggyback Registrations .  The Corporation shall use reasonable best efforts to cause the managing underwriter or underwriters of a proposed underwritten offering to permit holders of Registrable Securities who have submitted a Piggyback Notice in connection with such offering to include in such offering all Registrable Securities included in each holder’s Piggyback Notice on the same terms and conditions as any other shares of capital stock, if any, of the Corporation included in the offering. Notwithstanding the foregoing, if the managing underwriter or underwriters of such underwritten offering have informed the Corporation in writing that it is their good faith opinion that the total amount of securities that such holders, the Corporation and any other Persons having rights to participate in such registration, intend to include in such offering is such as to adversely affect the success of such offering, then the amount of securities to be offered for the account of holders of Registrable Securities (other than the Corporation) shall be reduced to the extent necessary to reduce the total amount of securities to be included in such offering to the amount recommended by such managing underwriter or underwriters by first reducing, or eliminating if necessary, all securities of the Corporation requested to be included by the holders of Registrable Securities requesting such registration pro rata among such holders on the basis of the percentage of the Registrable Securities requested to be included in such Registration Statement by such holders.

 

(c)                                   Shelf-Take Downs .  As soon as reasonably practicable after becoming eligible to use Form S-3, the Corporation will send notice to the holders of its intent to file a shelf registration statement on Form S-3 to register the Registrable Securities of any holder that wishes to have their Registrable Securities included therein.  The Corporation will file a Registration Statement on Form S-3 to register the Registrable Securities with respect to which the Corporation has received written requests for inclusion therein within ten days after notice has been given to the applicable holder.  For the avoidance of doubt, such Registration Statement will not be counted for purposes of the number of Demand Notices permitted pursuant to Section 3(i)  At any time that a shelf registration statement covering Registrable Securities pursuant to Section 3 or Section 4 is effective, if the Sponsor Investor Shareholder or CPPIB delivers a notice to the Corporation (a “ Take-Down Notice ”) stating that it intends to effect an underwritten offering of all or part of its Registrable Securities (the aggregate amount of such Registrable Securities to be at least $50,000,000), included by it on the shelf registration statement (a “ Shelf Underwritten Offering ”), then, the Corporation shall amend or supplement the shelf registration statement as may be necessary in order to enable such Registrable Securities to be distributed pursuant to the Shelf Underwritten Offering (taking into account the inclusion of Registrable Securities by any other holders pursuant to this Section 4(c)).  Notwithstanding any other provision of this Agreement, if the holder delivering a Take-Down Notice wishes to engage in a Block Sale, then notwithstanding the foregoing or any other provisions hereunder (including without limitation Sections 3 and 4 of this Agreement), no other holder shall be entitled to receive any notice of or have its Registrable Securities included in such Block Sale.  In connection with any Shelf Underwritten Offering (other than a Block Sale):

 

(i)                                      the Corporation shall deliver the Take-Down Notice to all other holders of Registrable Securities included on such shelf registration statement and permit each such holder to include its Registrable Securities included on the shelf registration statement in the Shelf Underwritten Offering if such holder notifies the Corporation within five days after delivery of the Take-Down Notice to such holder; and

 

(ii)                                   in the event that the underwriter determines that marketing factors (including an adverse effect on the per share offering price) require a limitation on the number of Registrable

 

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Securities which would otherwise be included in such take down, the underwriter may limit the number of Registrable Securities which would otherwise be included in such take-down offering in the same manner as described in Section 3(f) with respect to a limitation of shares to be included in a registration.

 

Section 5.                                            Restrictions on Public Sale by Holders of Registrable Securities .  Each holder of Registrable Securities agrees, in connection with any underwritten offering made pursuant to a Registration Statement filed pursuant to Section 3 or Section 4 hereof (whether or not such holder elected to include Registrable Securities in such Registration Statement and except for Block Sales for which the applicable provision is in the following paragraph), if requested (pursuant to a written notice) by the managing underwriter or underwriters in an underwritten offering, not to effect any public sale or distribution of any of the Corporation’s securities (except as part of such underwritten offering), including a sale pursuant to Rule 144 or any swap or other economic arrangement that transfers to another any of the economic consequences of owning the Common Stock, or to give any Demand Notice during the period commencing on the date of the request (which shall be no earlier than 10 days prior to the expected “pricing” of such offering) and continuing for not more than 90 days (or such shorter period as the managing underwriter may request) after the date of the Prospectus (or Prospectus supplement if the offering is made pursuant to a “shelf” registration), pursuant to which such public offering shall be made.  The terms and conditions of such “lock-up” agreements applicable to any Shareholder (each, a “ Locked-Up Shareholder ”) or the Company shall be no more restrictive than the terms and conditions of such “lock-up” agreements applicable to any other the Locked-Up Shareholder.

 

Notwithstanding anything to the contrary set forth in this Section 5, in connection with a Block Sale, (i) no Shareholder shall be subject to a “lock-up” agreement, other than, if requested by the managing underwriter for such offering, a Shareholder that is participating in such Block Sale and (ii) such “lock-up” period shall not exceed 90 days after the trade date in connection with any Block Sale.

 

If any registration pursuant to Section 3 of this Agreement shall be in connection with any underwritten Public Offering, the Corporation will not effect any public sale or distribution of any common equity (or securities convertible into or exchangeable or exercisable for common equity) (other than a registration statement (i) on Form S-4, Form S-8 or any successor forms thereto or (ii) filed solely in connection with an exchange offer or any employee benefit or dividend reinvestment plan) for its own account, within 90 days after the effective date of such registration except as may otherwise be agreed between the Corporation and the managing underwriters of such Public Offering.

 

Section 6.                                            Registration Procedures .  If and whenever the Corporation is required to effect the registration of any Registrable Securities under the Securities Act as provided in Section 3 and Section 4 hereof, the Corporation shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Corporation shall cooperate in the sale of the securities and shall, as expeditiously as possible:

 

(a)                                  prepare and file with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the holders thereof or by the Corporation in accordance with the intended method or methods of distribution thereof, and use its reasonable best efforts to cause such Registration Statement to become effective and to remain effective as provided herein; provided , however , that before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Corporation shall furnish or otherwise make available to the holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Corporation’s books and records, officers, accountants and other advisors.  The Corporation shall not file any such Registration Statement or Prospectus or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the

 

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holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the managing underwriters, if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Corporation, such filing is necessary to comply with applicable law;

 

(b)                                  prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act;

 

(c)                                   notify each selling holder of Registrable Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time the Corporation has reason to believe that the representations and warranties of the Corporation contained in any agreement (including any underwriting agreement) contemplated by Section 6(o) below cease to be true and correct, (v) of the receipt by the Corporation of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) if the Corporation has knowledge of the happening of any event that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (which notice shall notify the selling holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);

 

(d)                                  use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practicable;

 

(e)                                   if requested by the managing underwriters, if any, or the holders of a majority of the then outstanding Registrable Securities being sold in connection with an underwritten offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Corporation has received such request; provided , however , that the Corporation shall not be required to take any actions under this Section 6(e) that are not, in the opinion of counsel for the Corporation, in compliance with applicable law;

 

(f)                                    furnish or make available to each selling holder of Registrable Securities, its counsel and each managing underwriter, if any, without charge, at least one conformed copy of the Registration Statement, the Prospectus and Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits, unless requested in writing by such holder, counsel or underwriter); provided that the Corporation may furnish or make available any such documents in electronic format;

 

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(g)                                   deliver to each selling holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such Persons may reasonably request from time to time in connection with the distribution of the Registrable Securities; provided that the Corporation may furnish or make available any such documents in electronic format; and the Corporation, subject to the last paragraph of this Section 6, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;

 

(h)                                  prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction; provided , however , that the Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;

 

(i)                                      cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters, if any, or holders may request at least two (2) business days prior to any sale of Registrable Securities;

 

(j)                                     use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by all other applicable governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case the Corporation will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;

 

(k)                                  upon the occurrence of, and its knowledge of, any event contemplated by Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;

 

(l)                                      prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;

 

(m)                              provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement and, if required by the Corporation’s transfer agent, cause an opinion of counsel to be delivered to such transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon sale by the holder or the underwriter or managing underwriter, if any, of such Registrable Securities under the Registration Statement;

 

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(n)                                  use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, as the case may be, prior to the effectiveness of such Registration Statement;

 

(o)                                  enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions reasonably requested by the holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters, if any) to expedite or facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Corporation and its subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings, and, if true, confirm the same if and when requested, (ii) use its reasonable best efforts to furnish to the selling holders of such Registrable Securities and the underwriters opinions of counsel to the Corporation and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and counsels to the selling holders of the Registrable Securities), addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from the independent certified public accountants of the Corporation (and, if necessary, any other independent certified public accountants of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each selling holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with underwritten offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures substantially to the effect set forth in Section 8 hereof with respect to all parties to be indemnified pursuant to said Section and (v) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold pursuant to such Registration Statement, their counsel and the managing underwriters, if any, to evidence the continued validity of the representations and warranties made pursuant to Section 6(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Corporation.  The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder;

 

(p)                                  make available for inspection by a representative of the selling holders of Registrable Securities, any underwriter participating in any such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling holders or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Corporation and its subsidiaries, and cause the officers, directors and employees of the Corporation and its subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided , however , that any information that is not generally publicly available at the time of delivery of such information shall be kept confidential by such Persons unless (i) disclosure of such information is required by court or administrative order, (ii) disclosure of such information, in the opinion of counsel to such Person, is required by law or applicable legal process, or (iii) such information becomes generally available to the public other than as a result of a non-permitted disclosure or failure to safeguard by such Person.  In the case of a proposed disclosure pursuant to (i) or (ii) above, such Person shall be required to give the Corporation written notice of the proposed disclosure prior to such disclosure and, if requested by the Corporation, assist the Corporation in seeking to prevent or limit the proposed disclosure.  Without limiting the foregoing, no such information shall be used by such Person as the basis for any market transactions in securities of the Corporation or its subsidiaries in violation of law;

 

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(q)                                  cause its officers to use their reasonable best efforts to support the marketing of the Registrable Securities covered by the Registration Statement (including participation in “road shows”) taking into account the Corporation’s reasonable business needs in determining the scheduling and duration of any “road show”; and

 

(r)                                     cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA.

 

The Corporation may require each holder of Registrable Securities as to which any registration is being effected to furnish to the Corporation in writing such information required in connection with such registration regarding such seller and the distribution of such Registrable Securities as the Corporation may, from time to time, reasonably request in writing and the Corporation may exclude from such registration the Registrable Securities of any holder who unreasonably fails to furnish such information within a reasonable time after receiving such request.

 

Each holder of Registrable Securities agrees if such holder has Registrable Securities covered by such Registration Statement that, upon receipt of any notice from the Corporation of the happening of any event of the kind described in Section 6(c)(ii), 6(c)(iii), 6(c)(iv) or 6(c)(v) hereof, such holder will forthwith discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus until such holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing by the Corporation that the use of the applicable Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus; provided , however , that the time periods under Section 3 with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time the holder is required to discontinue disposition of such securities.

 

Section 7.                                            Registration Expenses .  All reasonable fees and expenses incident to the performance of or compliance with this Agreement by the Corporation (including (i) all registration and filing fees (including fees and expenses with respect to (A) filings required to be made with the National Association of Securities Dealers, Inc. and (B) compliance with securities or “blue sky” laws, including any fees and disbursements of counsel for the underwriters in connection with “blue sky” qualifications of the Registrable Securities pursuant to Section 6(h)), (ii) printing expenses (including expenses of printing certificates for Registrable Securities in a form eligible for deposit with The Depository Trust Company and of printing Prospectuses if the printing of Prospectuses is requested by the managing underwriters, if any, or by the holders of a majority of the Registrable Securities included in any Registration Statement), (iii) messenger, telephone and delivery expenses of the Corporation, (iv) fees and disbursements of counsel for the Corporation, (v) expenses of the Corporation incurred in connection with any road show, (vi) fees and disbursements of all independent certified public accountants referred to in Section 6(o)(iii) hereof (including the expenses of any “cold comfort” letters required by this Agreement) and any other Persons, including special experts retained by the Corporation, and (vii) fees and disbursements of one counsel for the holders of Registrable Securities whose shares are included in a Registration Statement, which counsel shall be selected by the holder delivering a Demand Notice or Take-Down Notice (and otherwise, by the holders of a majority of the Registrable Securities being sold in connection therewith) shall be borne by the Corporation whether or not any Registration Statement is filed or becomes effective.  In addition, the Corporation shall pay its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing of the securities to be registered on any securities exchange on which similar securities issued by the Corporation are then listed and rating agency fees and the fees and expenses of any Person, including special experts, retained by the Corporation.

 

The Corporation shall not be required to pay (i) fees and disbursements of any counsel retained by any holder of Registrable Securities or by any underwriter (except as set forth in clauses 7(i)(B) and 7(vii)), (ii) any underwriter’s fees (including discounts, commissions or fees of underwriters, selling brokers, dealer managers or similar securities industry professionals) relating to the distribution of the Registrable Securities (other than with respect to Registrable Securities sold by the Corporation), or (iii) any other expenses of the holders of Registrable Securities not specifically required to be paid by the Corporation pursuant to the first paragraph of this Section 7.

 

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Section 8.                                            Indemnification .

 

(a)                                  Indemnification by the Corporation .  The Corporation shall, without limitation as to time, indemnify and hold harmless, to the fullest extent permitted by law, each holder of Registrable Securities whose Registrable Securities are covered by a Registration Statement or Prospectus, the officers, directors, partners, members, managers, shareholders, accountants, attorneys, agents and employees of each of them, each Person who controls each such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, partners, members, managers, shareholders, accountants, attorneys, agents and employees of each such controlling person, each underwriter, if any, and each Person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter, from and against any and all losses, claims, damages, liabilities, costs (including costs of preparation and reasonable attorneys’ fees and any legal or other fees or expenses incurred by such party in connection with any investigation or Proceeding), expenses, judgments, fines, penalties, charges and amounts paid in settlement (collectively, “ Losses ”), as incurred, arising out of or based upon any untrue statement (or alleged untrue statement) of a material fact contained in any Prospectus, offering circular, or other document (including any related Registration Statement, notification, or the like) incident to any such registration, qualification, or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Corporation of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation thereunder applicable to the Corporation and (without limitation of the preceding portions of this Section 8(a)) will reimburse each such holder, each of its officers, directors, partners, members, managers, shareholders, accountants, attorneys, agents and employees and each Person who controls each such holder and the officers, directors, partners, members, managers, shareholders, accountants, attorneys, agents and employees of each such controlling person, each such underwriter, and each Person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating and defending or settling any such claim, Loss, damage, liability, or action, provided that the Corporation will not be liable in any such case to the extent that any such claim, Loss, damage, liability, or expense arises out of or is based on any untrue statement or omission by such holder or underwriter, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such Registration Statement, Prospectus, offering circular, or other document in reliance upon and in conformity with written information furnished to the Corporation by such holder for use therein.  It is agreed that the indemnity agreement contained in this Section 8(a) shall not apply to amounts paid in settlement of any such Loss, claim, damage, liability, or action if such settlement is effected without the consent of the Corporation (which consent shall not be unreasonably withheld).

 

(b)                                  Indemnification by Holder of Registrable Securities .  The Corporation may require, as a condition to including any Registrable Securities in any registration statement filed in accordance with this Agreement, that the Corporation shall have received an undertaking reasonably satisfactory to it from the prospective seller of such Registrable Securities to indemnify, to the fullest extent permitted by law, severally and not jointly with any other holders of Registrable Securities, the Corporation, its directors and officers and each Person who controls the Corporation (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) and all other prospective sellers, from and against all Losses arising out of or based on any untrue statement of a material fact contained in any such Registration Statement, Prospectus, offering circular, or other document, or any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and to (without limitation of the portions of this Section 8(b)) reimburse the Corporation, its directors and officers and each Person who controls the Corporation (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) and all other prospective sellers for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, Loss, damage, liability, or action, in each case to the extent, but only to the extent, that such untrue statement or omission is made in such Registration Statement, Prospectus, offering circular, or other document in reliance upon and in conformity with written information furnished to the Corporation by such holder for inclusion in such Registration Statement, Prospectus, offering circular or other document; provided , however , that the obligations of such holder under such undertaking shall not apply to amounts paid in settlement of any such claims, Losses, damages, or liabilities (or actions in respect thereof) if such settlement is effected without the consent of such holder (which consent shall not be unreasonably withheld); and provided , further , that the liability of such holder of Registrable Securities shall be limited to the net proceeds received by such selling holder from the sale of Registrable Securities covered by such Registration Statement.

 

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(c)                                   Conduct of Indemnification Proceedings .  If any Person shall be entitled to indemnity hereunder or under the undertaking contemplated by Section 8(b) (an “ Indemnified Party ”), such Indemnified Party shall give prompt notice to the party from which such indemnity is sought (the “ Indemnifying Party ”) of any claim or of the commencement of any Proceeding with respect to which such Indemnified Party seeks indemnification or contribution pursuant hereto; provided , however , that the delay or failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any obligation or liability except to the extent that the Indemnifying Party has been materially prejudiced by such delay or failure.  The Indemnifying Party shall have the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such claim or Proceeding, to, unless in the Indemnified Party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, assume, at the Indemnifying Party’s expense, the defense of any such claim or Proceeding, with counsel reasonably satisfactory to such Indemnified Party; provided , however , that an Indemnified Party shall have the right to employ separate counsel in any such claim or Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless: (i) the Indemnifying Party agrees to pay such fees and expenses; or (ii) the Indemnifying Party fails promptly to assume, or in the event of a conflict of interest cannot assume, the defense of such claim or Proceeding or fails to employ counsel reasonably satisfactory to such Indemnified Party, in which case the Indemnified Party shall have the right to employ separate counsel and to assume the defense of such claim or proceeding at the Indemnifying Party’s expense; provided , further , however , that the Indemnifying Party shall not, in connection with any one such claim or Proceeding or separate but substantially similar or related claims or Proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one firm of attorneys (together with appropriate local counsel) at any time for all of the Indemnified Parties, or for fees and expenses that are not reasonable.  Whether or not such defense is assumed by the Indemnifying Party, such Indemnifying Party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld).  The Indemnifying Party shall not consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release, in form and substance reasonably satisfactory to the Indemnified Party, from all liability in respect of such claim or litigation for which such Indemnified Party would be entitled to indemnification hereunder.

 

(d)                                  Contribution .  If the indemnification provided for in this Section 8 is unavailable to an Indemnified Party in respect of any Losses (other than in accordance with its terms), then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party, on the one hand, and such Indemnified Party, on the other hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations.  The relative fault of such Indemnifying Party, on the one hand, and Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made (or omitted) by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission.

 

The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph.  Notwithstanding the provisions of this Section 8(d), an Indemnifying Party that is a selling holder of Registrable Securities shall not be required to contribute any amount in excess of the amount that such Indemnifying Party has otherwise been, or would otherwise be, required to pay pursuant to Section 8(b) by reason of such untrue or alleged untrue statement or omission or alleged omission.  No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

 

(e)                                   Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.

 

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Section 9.                                            Rule 144 .  The Corporation shall (i) use reasonable best efforts to file the reports required to be filed by it under the Securities Act and the Exchange Act in a timely manner, (ii) take such further action as any holder of Registrable Securities may reasonably request, and (iii) furnish to each holder of Registrable Securities forthwith upon written request, (x) a written statement by the Corporation as to its compliance with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (y) a copy of the most recent annual or quarterly report of the Corporation, and (z) such other reports and documents so filed by the Corporation as such holder may reasonably request in availing itself of Rule 144, all to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144.  Upon the request of any holder of Registrable Securities, the Corporation shall deliver to such holder a written statement as to whether it has complied with such requirements.

 

Section 10.                                     Underwritten Registrations .  In connection with any underwritten offering, the investment banker or investment bankers and managers shall be selected by (i) the holder delivering a Demand Notice or a Take-Down Notice, in the case of a Demand Registration or Shelf Underwritten Offering, which selection shall be subject to approval by the Corporation, not to be unreasonably withheld and (ii) the Corporation in connection with any other offering, including any Piggyback Registration.

 

No Person may participate in any underwritten registration hereunder unless such Person (i) agrees to sell the Registrable Securities it desires to have covered by a Registration Statement on the basis provided in any underwriting arrangements in customary form and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements, in each case of the foregoing clauses (i) and (ii), on the same terms and conditions as required of the other holders of the Registrable Securities participating in such registration, provided that such Person shall not be required to make any representations or warranties other than those related to title and ownership of such Person’s Registrable Securities being sold and as to the accuracy and completeness of statements made in a Registration Statement, Prospectus, offering circular, or other document in reliance upon and in conformity with written information furnished to the Corporation or the managing underwriter by such Person for use therein.

 

Section 11.                                     Miscellaneous .

 

(a)                                  Amendments and Waivers .  The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given without the written consent of the Sponsor Investor Shareholder and CPPIB (for so long as the Sponsor Investor Shareholder or CPPIB, as applicable, holds at least 5% of the outstanding Common Stock of the Corporation); provided , further , that (x) any amendment, modification, supplement, waiver or consent to departures from the provisions of this Agreement that would subject a Shareholder to adverse differential treatment relative to the other Shareholders shall require the agreement of the differentially treated Shareholder and (y) any amendment, modification, supplement, waiver or consent to departures from the provisions of this Agreement that would be adverse to a right specifically granted to a specific Shareholder herein (but not to other Shareholders) shall require the agreement of that Shareholder; and provided , further , that any adverse amendment, modification, supplement or waiver or consent to departures from (i) the registration rights provisions or related cutback provisions contained in Section 3(c), Section 3(f), Section 4(a), Section 4(b) and Section 4(c), (ii)  Section 5, (iii) Section 9 and (iv) this Section 11(a), including, in each such case, to any definitions used in such sections, shall require the consent of holders holding a majority of the Registrable Securities covered hereby (excluding for such calculation, any Registrable Securities held by the Sponsor Investor Shareholder).  Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of holders of Registrable Securities whose securities are being sold pursuant to a Registration Statement and that does not directly or indirectly affect the rights of other holders of Registrable Securities may be given by holders of at least a majority of the Registrable Securities being sold by such holders pursuant to such Registration Statement.

 

(b)                                  Notices .  All notices required to be given hereunder shall be in writing and shall be deemed to be duly given if personally delivered, telecopied and confirmed, or mailed by certified mail, return receipt requested, or overnight delivery service with proof of receipt maintained, at the following address (or any other address that any such party may designate by written notice to the other parties):

 

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If to the Corporation:

 

Advanced Disposal Services, Inc.
90 Fort Wade Road, Suite 200
Ponte Vedra, Florida, 32801

Attn: General Counsel

 

With an additional copy (not constituting notice) to:

 

Shearman & Sterling

599 Lexington Avenue

New York, New York 10022

Attention: Richard B. Alsop

 

If to Highstar:

 

Star Atlantic Waste Holdings, L.P.
277 Park Avenue, 45th floor
New York, New York 10172

 

If to CPPIB:

 

c/o Canada Pension Plan Investment Board

Canada Pension Plan Investment Board

One Queen Street East

Suite 2500

Toronto, ON

Canada M5C 2W5

Attention:  Managing Director, Head of Relationship Investments

Senior Managing Director, General Counsel and Corporate Secretary

 

With an additional copy (not constituting notice) to:

 

Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Kevin M. Schmidt

 

If to BTG:

 

BTG Pactual International Portfolio Fund II SPC, Segregated Portfolio BTGPH Corp Hedge

1209 Orange Street

Wilmington, Delaware 19801

 

with an additional copy (not constituting notice) to:

 

Proskauer Rose LLP

Eleven Times Square

New York, NY 10036

Facsimile:  (212) 969-2900

Attention:   Daniel I. Ganitsky

 

If to any other Shareholder listed on Exhibit A hereto to be forwarded on to each Shareholder by the Corporation promptly upon receipt:

 

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Advanced Disposal Services, Inc.
90 Fort Wade Road, Suite 200
Ponte Vedra, Florida, 32801

Attn: General Counsel

 

Any such notice shall, if delivered personally, be deemed received upon delivery; shall, if delivered by telecopy, be deemed received on the first business day following confirmation; shall, if delivered by overnight delivery service, be deemed received the first business day after being sent; and shall, if delivered by mail, be deemed received upon the earlier of actual receipt thereof or five business days after the date of deposit in the U.S. mail.

 

(c)                                   Successors and Assigns ; Shareholder Status .  This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties, including the Corporation and subsequent holders of Registrable Securities acquired, directly or indirectly, from the Shareholders; provided , however , that such successor or assign shall not be entitled to such rights unless the successor or assign shall have executed and delivered to the Corporation an Addendum Agreement substantially in the form of Exhibit B hereto (which shall also be executed by the Corporation) promptly following the acquisition of such Registrable Securities, in which event such successor or assign shall be deemed a Shareholder for purposes of this Agreement.  Except as provided in Section 8 with respect to an Indemnified Party, nothing expressed or mentioned in this Agreement is intended or shall be construed to give any Person other than the parties hereto and their respective successors and permitted assigns any legal or equitable right, remedy or claim under, in or in respect of this Agreement or any provision herein contained.

 

(d)                                  Counterparts .  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

(e)                                   Headings; Construction .  The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Unless the context requires otherwise: (a) pronouns in the masculine, feminine and neuter genders shall be construed to include any other gender, and words in the singular form shall be construed to include the plural and vice versa; (b) the term “including” shall be construed to be expansive rather than limiting in nature and to mean “including, without limitation,”; (c) references to sections and paragraphs refer to sections and paragraphs of this Agreement; and (d) the words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder” and words of similar import refer to this Agreement as a whole, including the exhibits hereto, and not to any particular subdivision unless expressly so limited.

 

(f)                                    Governing Law .  This Agreement shall be governed by and construed in accordance with, the laws of the State of Delaware without giving effect to any otherwise governing principles of conflicts of law.

 

(g)                                   Severability .  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction.  It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

 

(h)                                  Entire Agreement .  This Agreement is intended by the parties as a final expression of their agreement, and are intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein.  There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein, with respect to the registration rights granted by the Corporation with respect to Registrable Securities.  This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.

 

17

 

(i)                                      Securities Held by the Corporation or its Subsidiaries .  Whenever the consent or approval of holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities held by the Corporation or its subsidiaries shall not be counted in determining whether such consent or approval was given by the holders of such required percentage.

 

(j)                                     Specific Performance .  The parties hereto recognize and agree that money damages may be insufficient to compensate the holders of any Registrable Securities for breaches by the Corporation of the terms hereof and, consequently, that the equitable remedy of specific performance of the terms hereof will be available in the event of any such breach.

 

(k)                                  Term .  This Agreement shall terminate with respect to a Shareholder on the date on which such Shareholder ceases to hold Registrable Securities; provided that, such Shareholder’s rights and obligations pursuant to Section 8, as well as the Corporation’s obligations to pay expenses pursuant to Section 7, shall survive with respect to any registration statement in which any Registrable Securities of such Shareholders were included and, for the avoidance of doubt, any underwriter lock-up that a Shareholder has executed prior to a Shareholder’s termination in accordance with this clause shall remain in effect in accordance with its terms.

 

(l)                                      Consent to Jurisdiction; Waiver of Jury Trial .  In any judicial proceeding involving any dispute, controversy or claim arising out of or relating to this Agreement, each of the Shareholders unconditionally accepts the non-exclusive jurisdiction and venue of any United States District Court located in the State of Delaware, or of the Court of Chancery of the State of Delaware, and the appellate courts to which orders and judgments thereof may be appealed.  In any such judicial proceeding, the Shareholders agree that in addition to any method for the service of process permitted or required by such courts, to the fullest extent permitted by Law, service of process may be made by delivery provided pursuant to the directions in Section 11(b) of this Agreement.  The parties hereby irrevocably waive, to the fullest extent permitted by Law, any objection which they may now or hereafter have to the laying of venue of any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby brought in such court or any defense of inconvenient forum for the maintenance of such dispute.  Each of the parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  This consent to jurisdiction is being given solely for purposes of this Agreement and is not intended to, and shall not, confer consent to jurisdiction with respect to any other dispute in which a party to this Agreement may become involved.

 

Each of the parties hereto hereby consents to process being served by any party to this Agreement in any suit, action, or proceeding of the nature specified in the paragraph above by the mailing of a copy thereof in the manner specified by the provisions of subsection (b) of this Section 11.

 

EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

 

[Signature Page Follows]

 

18

 

IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights Agreement to be duly executed as of the date first above written.

 

	STAR ATLANTIC WASTE HOLDINGS, L.P.
	By Star Atlantic GP, Inc., its general partner
	By:	/s/ Bret Budenbender
	Name: Bret Budenbender
	Title: Managing Director
	CANADA PENSION PLAN INVESTMENT BOARD
	By:	/s/ Eric Wetlaufer
	Name: Eric Wetlaufer
	Title: Senior Managing Director & Global Head of Public Market Investments
	By:	/s/ Scott Lawrence
	Name: Scott Lawrence
	Title: Managing Director, Head of Relationship Investments
	BTG PACTUAL INTERNATIONAL PORTFOLIO FUND II SPC, SEGREGATED PORTFOLIO BTGPH CORP HEDGE
	By:	/s/ Nandikesh Anilkumar Dixit
	Name: Nandikesh Anilkumar Dixit
	Title: Attorney in fact
	By:	/s/ Scott Lawrence
	Name: Scott Lawrence
	Title: Attorney in fact

 

	ADVANCED DISPOSAL SERVICES, INC.
	By:	/s/ Richard Burke
	Name: Richard Burke
	Title: CEO

 

[ Registration Rights Agreement — Signature Page ]

 

 

	CHARLES APPLEBY
	By:	/s/ Charles Appleby
	APPLEBY TRUST FOR CHARLES LUTHER APPLEBY
	By: Martha Blount Appleby as Trustee
	By:	/s/ Martha Blount
	APPLEBY TRUST FOR CHRISTOPHER RYAN APPLEBY
	By: Martha Blount Appleby as Trustee
	By:	/s/ Martha Blount
	APPLEBY TRUST FOR MARGARET FAITH APPLEBY
	By: Martha Blount Appleby as Trustee
	By:	/s/ Martha Blount
	TOM ALLEN
	By:	/s/ Tom Allen
	RICHARD BURKE
	By:	/s/ Richard Burke
	STEVEN CARN
	By:	/s/ Steven Carn
	STEVEN DEL CORSO
	By:	/s/ Steven Del Corso

 

[ Registration Rights Agreement — Signature Page ]

 

 

	CHRISTIAN MILLS
	By:	/s/ Christian Mills
	MARY O’BRIEN
	By:	/s/ Mary O’Brien
	MICHAEL SLATTERY
	By:	/s/ Michael Slattery
	JOHN SPEGAL
	By:	/s/ John Spegal
	WILLIAM WESTRATE
	By:	/s/ William Westrate

 

[ Registration Rights Agreement — Signature Page ]

 

 

EXHIBIT A

 

Shareholders

 

Highstar Capital, L.P.

BTG Pactual International Portfolio Fund II SPC, Segregated Portfolio BTGPH Corp Hedge

Canada Pension Plan Investment Board

Charles Appleby*

Appleby Trust for Charles Luther Appleby

Appleby Trust for Christopher Ryan Appleby

Appleby Trust for Margaret Faith Appleby

Tom Allen*

Richard Burke*

Steven Carn*

Steven Del Corso*

Christian Mills*

Mary O’Brien*

Michael Slattery*

John Spegal*

William Westrate*

 

*Management Shareholder

 

 

EXHIBIT B

 

ADDENDUM AGREEMENT

 

This Addendum Agreement is made this        day of       , 20      , by and between                                                                    (the “New Shareholder”) and Advanced Disposal Services, Inc. (the “Corporation”), pursuant to a Registration Rights Agreement dated as of [                ] (the “Agreement”), by and between the Corporation and the Shareholders. Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in the Agreement.

 

WITNESSETH:

 

WHEREAS, the Corporation has agreed to provide registration rights with respect to the Registrable Securities as set forth in the Agreement; and

 

WHEREAS, the New Shareholder has acquired Registrable Securities directly or indirectly from a Shareholder; and

 

WHEREAS, the Corporation and the Shareholders have required in the Agreement that all persons desiring registration rights must enter into an Addendum Agreement binding the New Shareholder to the Agreement to the same extent as if it were an original party thereto;

 

NOW, THEREFORE, in consideration of the mutual promises of the parties, the New Shareholder acknowledges that it has received and read the Agreement and that the New Shareholder shall be bound by, and shall have the benefit of, all of the terms and conditions set out in the Agreement to the same extent as if it were an original party to the Agreement and shall be deemed to be a Shareholder thereunder.

 

	New Shareholder
Address:

 

 

Exhibit B- 1

 

AGREED TO on behalf of the Corporation pursuant to Section 11(c) of the Agreement.

 

	Advanced Disposal Services, Inc.
	By:
	Printed Name and Title

 

Exhibit B- 2