exv10w1



 




 


Exhibit 10.1



FIRST AMENDMENT TO

THIRD AMENDED AND RESTATED SHAREHOLDERS AGREEMENT




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




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




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




          2. Amendment to Section 4.1 (Restrictions on Dispositions). (a) Section 4.1(c) of the
Agreement is hereby amended by deleting the following proviso at the end thereof in its entirety:





; provided that such Dispositions shall not be made to any Person
who or which would immediately thereafter, to the knowledge of such
Shareholder, any of its Affiliates, or such Shareholder’s broker,
beneficially own Voting Securities representing 9% or more of the Total
Voting Power (and such Person shall have provided a certificate to such
effect)



     (b) Section 4.1(c) of the Agreement is hereby amended by inserting the following new
text at the end thereof:




; provided that such Dispositions shall not be made to any Person
who would, after completion of the distribution relating to such
Disposition, to the knowledge of such Apollo/Blackstone Shareholder or such









 



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Apollo/Blackstone Shareholder’s broker, beneficially own Voting Securities
representing more than 15% of the Total Voting Power; and provided
further that for purposes of the immediately preceding proviso, such
Apollo/Blackstone Shareholder or such Apollo/Blackstone Shareholder’s broker
may conclusively rely on such Person’s most recent filing with the
Commission, in whole or part, disclosing ownership of Common Stock, whether
on any of Schedule 13D, Schedule 13F, Schedule 13G, Form 3, Form 4 or
otherwise, unless such Apollo/Blackstone Shareholder or broker has actual
knowledge of greater ownership (including, but not limited to knowledge
resulting from sales made by such Apollo/Blackstone Shareholder or its
affiliates to that buyer, any of its known affiliates or to those known to
be acting with the buyer, in all such cases subsequent to the period covered
by any such filing with the Commission).



     (c) Section 4.1(d) of the Agreement is hereby amended by deleting the following text at the
end thereof:




“that would following such sale, beneficially own no more that 9% of the
Total Voting Power (and such Person shall have provided a certificate to
such effect)”



     (d) Section 4.1(d) of the Agreement is hereby amended by inserting the following new text at
the end thereof:




; that would, after completion of the distribution relating to such
Disposition, to the knowledge of such Apollo/Blackstone Shareholder or such
Apollo/Blackstone Shareholder’s broker, beneficially own no more than 15% of
the Total Voting Power; provided that for purposes of this sentence,
such Apollo/Blackstone Shareholder or such Apollo/Blackstone Shareholder’s
broker may conclusively rely on such Person’s most recent filing with the
Commission, in whole or in part, disclosing the ownership of Common Stock,
whether on any of Schedule 13D, Schedule 13F, Schedule 13G, Form 3, Form 4
or otherwise, unless such Apollo/Blackstone Shareholder or broker has actual
knowledge of greater ownership (including, but not limited to knowledge
resulting from sales made by such Apollo/Blackstone Shareholder or its
affiliates to that buyer, any of its known affiliates or to those known to
be acting with the buyer, in all such cases subsequent to the period covered
by any such filing with the Commission).



     (e) Section 4.1(h) of the Agreement is hereby amended by inserting the following new text at
the end thereof:




(such period, the “Lock-up Period”); provided, that with respect to
any underwritten offerings registered on an automatic shelf registration
statement on Form S-3ASR or a successor form that becomes effective upon
filing with the Commission that are initiated by the Company or other
Apollo/Blackstone Shareholders (each such offering, a “WKSI Shelf
Takedown”), the Lock-up Period shall begin on the date of the notice
given by the Company 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









 



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shorter period as may apply to the Company or other Apollo/Blackstone
Shareholders participating in such WKSI Shelf Takedown.



          3. 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.




          4. 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 Shareholder or indicate
the willingness of any Shareholder to consent to any other amendment, modification or waiver of the
Agreement.




          5. 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.




          6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF.




          7. 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 (except that the requirement to hold in
confidence non-public information furnished to Non-Apollo/Blackstone Shareholders under Section 3.4
of the Agreement shall remain in effect with respect to information furnished prior to the
effectiveness of this Agreement).




          8. 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 Second
Amended and Restated Registration Rights 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:	 	 	 	 












 



5


	 	 	 	 	 	 	 	 	 
	 	 	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:	 	 	 	 
	 	 	GREENWICH STREET CAPITAL PARTNERS, II L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	Greenwich Street Investments II, L.L.C.	 	 
	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 
	 

	 	 	Name:	 	 	 	 
	 

	 	 	Title	 	 	 	 












 



6

	 	 	 	 	 
	 	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:  	 	 
	 
	 	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:  	 	 










 



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	 	DLJ MERCHANT BANKING PARTNERS II, L.P.

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










 



8

	 	 	 	 	 



	 	 	 	 	 
	 	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:  	 	 
	 
	 	DLJ ESC II L.P.

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










 



9

	 	 	 	 	 




	 	 	 	 	 
	 

	 	KENNETH D. MOELIS,	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	MARK LANIGAN,	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	JEFFREY KLEIN	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	SUSAN SCHNABEL