exv10w2



 



 


Exhibit 10.2



FIRST AMENDMENT TO

SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT




          FIRST
AMENDMENT (this “Amendment”), dated as of
December 28, 2006, to the Second
Amended and Restated Registration Rights Agreement, dated as of December 18, 2003 (as previously
amended, supplemented or otherwise modified, the “Agreement”), by and between Allied Waste
Industries, Inc., a Delaware corporation, Apollo Investment Fund IV, L.P., a Delaware limited
partnership, Apollo Investment Fund III, L.P., a Delaware limited partnership, Apollo Overseas
Partners IV, L.P., a Delaware limited partnership, Apollo Overseas Partners III, L.P., a Delaware
limited partnership, Apollo (U.K.) Partners III, L.P., an English limited partnership, Apollo/AW
LLC, a Delaware limited liability company, Blackstone Capital Partners II Merchant Banking Fund
L.P., a Delaware limited partnership, Blackstone Capital Partners III Merchant Banking Fund L.P., a
Delaware limited partnership, Blackstone Offshore Capital Partners II L.P., a Cayman Islands
limited partnership, Blackstone Offshore Capital Partners III L.P., a Cayman Islands limited
partnership, Blackstone Family Investment Partnership II L.P., a Delaware limited partnership,
Blackstone Family Investment Partnership III L.P., a Delaware limited partnership, Greenwich Street
Capital Partners II, L.P., a Delaware limited partnership, GSCP Offshore Fund, L.P., a Cayman
Islands exempted limited partnership, Greenwich Fund, L.P., a Delaware limited partnership,
Greenwich Street Employees Fund, L.P., a Delaware limited partnership, TRV Executive Fund, L.P., a
Delaware limited partnership, DLJMB Funding II, Inc., a Delaware corporation, DLJ Merchant Banking
Partners II, L.P., a Delaware limited partnership, DLJ Merchant Banking Partners II-A, L.P., a
Delaware limited partnership, DLJ Diversified Partners, L.P., a Delaware limited partnership, DLJ
Diversified Partners-A, L.P., a Delaware limited partnership, DLJ Millennium Partners, L.P., a
Delaware limited partnership, DLJ Millennium Partners-A, L.P., a Delaware limited partnership, DLJ
First ESC L.P., a Delaware limited partnership, DLJ Offshore Partners II, C.V., a Netherlands
Antilles limited partnership, DLJ EAB Partners, L.P., a Delaware limited partnership and DLJ ESC
II, L.P., a Delaware limited partnership, Kenneth D. Moelis, Mark Lanigan, Jeffrey Klein and Susan
Schnabel (collectively, the “Shareholders”).




          The Stockholders are parties to the Agreement and they wish to amend the Agreement as
described below in consideration of the promises and for other good and valuable consideration, the
receipt of which is hereby acknowledged:




          1. Defined Terms. Capitalized terms not otherwise defined in this Amendment shall
have the meanings ascribed to them in the Agreement.




          2. Amendment to Section 2.1 (Incidental Rights). Section 2.1 of the Agreement is
hereby amended by inserting the following text at the end of the first paragraph thereof:





Notwithstanding the preceding paragraph, if the Company files an automatic
shelf registration statement on Form S-3ASR or a successor form that becomes
effective upon filing with the SEC (a “WKSI Shelf”) for registration
under the Securities Act of any shares of Subject Securities for sale, for
cash consideration, to the public by the Company or on behalf of one or more
shareholders of the Company, the Apollo/Blackstone Shareholders will be
entitled to include their Registrable Securities in the coverage of such
WKSI Shelf and in any underwritten offerings registered on such WKSI Shelf
that are initiated by the Company or other









 



2



Apollo/Blackstone Shareholders (each such offering, a “WKSI Shelf
Takedown”), in each case subject to the other provisions of this
Section 2.1. Notwithstanding anything to the contrary contained in
this Section 2.1, the Company shall not be required to give
Shareholders prior notice of the proposed filing of a WKSI Shelf. The
Company will, however, give the Apollo/Blackstone Shareholders prior written
notice of any proposed WKSI Shelf Takedown, which notice shall be given no
later than (A) the close of business on the third business day preceding the
business day on which “face to face” marketing efforts involving one or more
of officers of the Company relating to the WKSI Shelf Takedown (a
“Roadshow”) commence or (B) 24 hours (or if 24 hours’ notice is not
practicable, such shorter prior as is practicable) to the anticipated
execution of an underwriting agreement relating to the pricing of an
underwritten offering that does not involve a Roadshow (a “Block
Trade”). Each such notice will describe the proposed WKSI Shelf
Takedown, including anticipated size, timing, participants (e.g., the
offerors and underwriters, to the extent known at such time), plan of
distribution and other relevant terms. In order to exercise their
incidental rights under this Section 2.1 in connection with a WKSI
Shelf Takedown, the Apollo/Blackstone Shareholders must request inclusion of
their Registrable Securities in the WKSI Shelf Takedown by a written notice
to the Company no later than (X) one business day after notice of the
commencement of a Roadshow or (Y) within the time period set forth in the
notice in the event of a proposed Block Trade, as the case may be. The
Apollo/Blackstone Shareholders requesting the inclusion of their Registrable
Securities in the WKSI Shelf Takedown pursuant to the immediately preceding
sentence will be required to agree to all applicable terms of such WKSI
Shelf Takedown and enter into the underwriting agreement and other documents
relating thereto. Any Apollo/Blackstone Shareholder (including any
Apollo/Blackstone Shareholder that initiated a WKSI Shelf Takedown pursuant
to Section 2.2 of this Agreement) may withdraw from any proposed
WKSI Shelf Takedown at any time prior to the entering into the underwriting
agreement relating to such WKSI Shelf Takedown. In such a case, if a
prospectus supplement relating to such WKSI Shelf Takedown is not filed with
the SEC, the number of requests for registration permitted under this
Agreement with respect to such Apollo/Blackstone Shareholder will not be
reduced.



          3. Amendment to Section 2.2 (Demand Rights). (a) Section 2.2 of the Agreement is
hereby amended by deleting the following clause in the first paragraph:





provided, that all offerings contemplated by a request for
registration under this Section 2.2 shall be underwritten offerings
involving a distribution of Registrable Shares to the public in which
reasonable efforts are made not to knowingly sell to any single buyer,
acting individually or with others, who after such underwriting will own
more than 9% of the Total Voting Power (as defined in the Shareholders
Agreement) (any such buyer, “Significant Stockholder”), under
circumstances in which it would reasonably be expected to not result in any
person becoming a Significant Stockholder




and substituting the following text in lieu thereof:









 




3



“provided, that all offerings contemplated by a request for
registration under this Section 2.2 shall be underwritten offerings
involving a distribution of Registrable Shares to the public in which
reasonable efforts are made not to knowingly sell to any single buyer,
acting individually or with others, who after completion of the distribution
relating to such Registrable Shares will own more than 15% of the Total
Voting Power (as defined in the Shareholders Agreement) (any such buyer, a
“Significant Stockholder”); and provided further, that for
the purpose of the immediately preceding proviso, such underwriter or
Apollo/Blackstone Shareholder may conclusively rely on such buyer’s most
recent filing with the Commission, in whole or in part, disclosing ownership
of Common Stock, whether on any of Schedule 13D, Schedule 13F, Schedule 13G,
Form 3, Form 4 or otherwise, unless such Apollo/Blackstone Shareholder or
underwriter has actual knowledge of greater ownership (including, but not
limited to, knowledge resulting from sales made by such Apollo/Blackstone
Shareholder or its affiliates to that buyer, any of its known affiliates or
to those known to be acting with the buyer, in all such cases subsequent to
the period covered by any such filing with the Commission).



(b) Section 2.2 of the Agreement is hereby further amended by inserting the following sentence
at the end thereof:





Notwithstanding anything to the contrary contained in this Agreement, the
Apollo/Blackstone Shareholders may exercise their demand rights pursuant to
this Section 2.2 to initiate, and to require the Company to
facilitate, a WKSI Shelf Takedown under a WKSI Shelf filed on the Company’s
initiative (including the WKSI Shelf on file as of the date hereof), subject
to all other applicable provisions of this Section 2.2 (for these purposes,
a WKSI Shelf Takedown shall be deemed the filing of a registration statement
so that, among other things, the Company may delay the demanded WKSI Shelf
Takedown in accordance with the third paragraph of this Section 2.2 in
respect of filings of registration statements). In the event the
Apollo/Blackstone Shareholders exercise such demand rights and the WKSI
Shelf Takedown is completed, the number of demand requests available under
Section 2.2 of this Agreement shall be reduced by one (1). An
Apollo/Blackstone Shareholder intending a WKSI Shelf Takedown shall give the
Company at least 24 hours prior written notice of an intended Block Trade or
sales through brokers and at least three business days prior written notice
of all other WKSI Shelf Takedown transactions (provided that such notice
will only be required to describe the intent to execute a Block Trade, the
anticipated timing thereof and any other terms that are known by the
Apollo/Blackstone Shareholders at such time of delivery).



          4. Amendment to Section 2.3 (Shelf Registration Rights). (a) Section 2.3 of the
Agreement is hereby amended by inserting the following text as the new second sentence thereof:





For the avoidance of doubt, the term “Shelf Registration Statement” shall
include any WKSI Shelf.









 



4


(b) Section 2.3 of the Agreement is hereby further amended by substituting the following in
place of the second paragraph:





The Company shall use reasonable efforts to cause the Shelf Registration
Statement to be declared effective under the Securities Act and to keep the
Shelf Registration Statement continuously effective under the Securities Act
for a period of six years following its being declared effective (the
“Effectiveness Termination Date”); provided, however, that such
Effectiveness Termination Date shall be increased by the number of days that
the Shelf Registration Statement is delayed or suspended pursuant to this
Section 2.3, and provided further, that the Company may file
multiple Shelf Registration Statements, if necessary, to maintain the
effectiveness of a Shelf Registration Statement for such six year period
(and such multiple filings shall be considered to be part of the one request
under this Section).



(c) Section 2.3 of the Agreement is hereby further amended by deleting the following sentence
in its entirety:





In connection with any sales pursuant to the Shelf Registration Statement,
reasonable efforts shall be made not to knowingly sell to any single buyers,
acting individually or with others, who, after taking account of the sales,
will own more than 9% of the Total Voting Power (as defined in the
Shareholders Agreement)




and substituting the following text in lieu thereof:




In connection with any sales pursuant to the Shelf Registration Statement,
reasonable efforts shall be made not to knowingly sell to any single buyer,
acting individually or with others, who, after completion of the
distribution relating to such sales, will own more than 15% of the Total
Voting Power (as defined in the Shareholders Agreement); provided
that for purposes of this sentence, the underwriter or any Apollo/Blackstone
Shareholder may conclusively rely on such buyer’s most recent filing with
the Commission, in whole or in part, disclosing ownership of Common Stock,
whether on any of Schedule 13D, Schedule 13F, Schedule 13G, Form 3, Form 4
or otherwise, unless such Apollo/Blackstone Shareholder or underwriter has
actual knowledge of greater ownership (including, but not limited to,
knowledge resulting from sales made by such Apollo/Blackstone Shareholder or
its known affiliates to that buyer, any of its known affiliates or to those
known to be acting with the buyer, in all such cases subsequent to the
period covered by any such filing with the Commission).



          5. Amendment to Section 2.4 (Registration Conditions). Section 2.4 of the Agreement
is hereby amended by inserting the following new text at the end thereof:





For the avoidance of doubt, this Section 2.4 shall only apply to a
WKSI Shelf to the extent such terms apply to a registration effected on a
WKSI Shelf.









 



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          6. Amendment to Section 4.3 (Dispositions During Registration). Section 4.3 of the
Agreement is hereby amended by inserting the following new text at the end of the first sentence
thereof:





(such period, the “Lock-up Period”); provided, that with respect to
a WKSI Shelf, the Lock-up Period shall begin on the date of the notice given
by the Company pursuant to Section 2.1 of this Agreement with
respect to a proposed WKSI Shelf Takedown and shall continue for the shorter
of (x) 90 days from the date of the underwriting agreement for such WKSI
Shelf Takedown and (y) any shorter period as may apply to the Company or
other Apollo/Blackstone Shareholders participating in such WKSI Shelf
Takedown.



          7. Waiver of Past Notices. The parties hereto waive all notices pursuant to the
Agreement they may have otherwise been entitled to prior to the date hereof.




          8. Continuing Effect; No Other Amendments. Except as expressly amended pursuant to
this Amendment, the Agreement is and shall continue to be in full force and effect in accordance
with its terms, and this Amendment shall not constitute the consent of any Stockholder or indicate
the willingness of any Shareholder to consent to any other amendment, modification or waiver of
the Agreement.




          9. Counterparts. This Amendment may be executed by one or more of the parties hereto
in any number of separate counterparts (which may include counterparts delivered by facsimile
transmission), and all of said counterparts taken together shall be deemed to constitute one and
the same instrument.




          10. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE.




          11. Termination and Mutual Release. Upon execution of this Amendment by the
undersigned Non-Apollo/Blackstone Shareholders, the undersigned Non-Apollo/Blackstone Shareholders
agree to terminate their respective rights and obligations under this Agreement, which will be of
no further force and effect in all respects with respect to such undersigned Non-Apollo/Blackstone
Shareholders, and the undersigned Non-Apollo/Blackstone Shareholders hereby release the Company and
the other Shareholders of their respective obligations under this Agreement and the Company and the
Apollo/Blackstone Shareholders hereby release the undersigned Non-Apollo/Blackstone Shareholders of
their respective obligations under this Agreement.




          12. Effectiveness. This Amendment shall become effective only upon execution by (a)
the Company and all of the Shareholders of this Amendment and of the First Amendment to the Third
Amended and Restated Shareholders Agreement and (b) all investors party to the Second Amendment to
Amended and Restated Investment Agreement dated as of the date hereof.










 



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          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.




	 	 	 	 	 	 	 	 	 
	 	 	ALLIED WASTE INDUSTRIES, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	APOLLO INVESTMENT FUND IV, L.P.	 	 
	 	 	APOLLO OVERSEAS PARTNERS IV, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	Apollo Advisors IV, L.P.	 	 
	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	By:
	 Apollo Capital Management IV, Inc.	 	 
	 

	 	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 
	 

	 	 	Name:	 	 	 	 
	 

	 	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	APOLLO/AW LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	Apollo Management IV, L.P.	 	 
	 	 	 	its Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	By:
	 AIF IV Management, Inc.	 	 
	 

	 	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 
	 

	 	 	Name:	 	 	 	 
	 

	 	 	Title:	 	 	 	 












 



7


	 	 	 	 	 	 	 	 	 
	 	 	APOLLO INVESTMENT FUND III, L.P.	 	 
	 	 	APOLLO OVERSEAS PARTNERS III, L.P.	 	 
	 	 	APOLLO (UK) PARTNERS III, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Apollo Advisors II, L.P.	 	 
	 	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	  Apollo Capital Management II, Inc.	 	 
	 

	 	 	 	 	  its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BLACKSTONE CAPITAL PARTNERS III	 	 
	 	 	  MERCHANT BANKING FUND L.P.	 	 
	 	 	BLACKSTONE OFFSHORE CAPITAL	 	 
	 	 	  PARTNERS III, L.P.	 	 
	 	 	BLACKSTONE FAMILY INVESTMENT    PARTNERSHIP III L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Blackstone Management Associates III, L.L.C.	 	 
	 	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	BLACKSTONE CAPITAL PARTNERS II	 	 
	 	 	  MERCHANT BANKING FUND L.P.	 	 
	 	 	BLACKSTONE OFFSHORE CAPITAL	 	 
	 	 	  PARTNERS II, L.P.	 	 
	 	 	BLACKSTONE FAMILY INVESTMENT    PARTNERSHIP II L.P	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Blackstone Management Associates II, L.L.C.	 	 
	 	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 	 












 



8

	 	 	 	 	 
	 	GREENWICH STREET CAPITAL PARTNERS, II L.P.

 	 
	 	By:  	Greenwich Street Investments II, L.L.C.
 	 
	 	 	its General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title 	 
	 
	 	GSCP OFFSHORE FUND, L.P.

 	 
	 	By:  	Greenwich Street Investments II, L.L.C.
 	 
	 	 	its General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GREENWICH FUND, L.P.

 	 
	 	By:  	GREENWICH STREET INVESTMENTS II, L.L.C.
 	 
	 	 	its General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GREENWICH STREET EMPLOYEES FUND, L.P.

 	 
	 	By:  	GREENWICH STREET INVESTMENTS II, L.L.C.
 	 
	 	 	its General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 










 



9

	 	 	 	 	 



	 	 	 	 	 
	 	TRV EXECUTIVE FUND, L.P.

 	 
	 	By:  	GREENWICH STREET INVESTMENTS II, L.L.C.
 	 
	 	 	its General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	                                              GREENWICH STREET INVESTMENTS II, L.L.C.
 	 
	 	 	its General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DLJMP FUNDING II, INC.

 	 
	 	By  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DLJ MERCHANT BANKING PARTNERS II, L.P.

 	 
	 	By:  	DLJ Merchant Banking II, Inc.
 	 
	 	 	Managing General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 










 



10

	 	 	 	 	 



	 	 	 	 	 
	 	DLJ MERCHANT BANKING PARTNERS II-A, L.P.

 	 
	 	By:  	DLJ Merchant Banking II, Inc.
 	 
	 	 	Managing General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DLJ DIVERSIFIED PARTNERS, L.P.

 	 
	 	By:  	DLJ Diversified Partners, Inc.
 	 
	 	 	Managing General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DLJ DIVERSIFIED PARTNERS-A, L.P.

 	 
	 	By:  	DLJ Diversified Partners, Inc.
 	 
	 	 	Managing General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DLJ MILLENNIUM PARTNERS, L.P.

 	 
	 	By:  	DLJ Merchant Banking II, Inc.
 	 
	 	 	Managing General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 










 



11

	 	 	 	 	 



	 	 	 	 	 
	 	DLJ MILLENNIUM PARTNERS-A, L.P.

 	 
	 	By:  	DLJ Merchant Banking II, Inc.
 	 
	 	 	Managing General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DLJ FIRST ESC L.P.

 	 
	 	By:  	DLJ LBO Plans Management Corporation
 	 
	 	 	General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DLJ OFFSHORE PARTNERS II, C.V.

 	 
	 	By:  	DLJ Merchant Banking II, Inc.
 	 
	 	 	Managing General Partner 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DLJ EAB PARTNERS, L.P.

 	 
	 	By:  	DLJ LBO Plans Management Corporation
 	 
	 	 	General Manager 	 
	 	 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 










 



12

	 	 	 	 	 




	 	 	 	 	 	 	 
	 	 	DLJ ESC II L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	DLJ LBO Plans Management Corporation	 	 
	 

	 	 	 	General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	KENNETH D. MOELIS,	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	MARK LANIGAN,	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	JEFFREY KLEIN	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	SUSAN SCHNABEL