Amendment to General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D/A Amendment #2 20 87K
2: EX-10 Stock Purchase Agreement 58 151K
3: EX-11 2nd Amended & Restated Shareholders Agmnt. 37 113K
4: EX-12 Amended & Restated Reg. Rights Agmnt. 30 97K
5: EX-13 Amended & Restated Investment Agreement 23 73K
6: EX-14 Cert. of Designation - Prefered Stock 22 72K
7: EX-15 Cert. of Designation - Jr. Prefered Stock 8 31K
EX-15 — Cert. of Designation – Jr. Prefered Stock
| EX-15 | 1st Page of 8 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 15
CERTIFICATE OF DESIGNATION
OF SERIES B JUNIOR
PREFERRED STOCK
OF
ALLIED WASTE INDUSTRIES, INC.
Pursuant to Section 151 of the Delaware General Corporation Law,
We, Thomas H. Van Weelden, Chairman of the Board, President and Chief
Executive Officer, and Steven Helm, Secretary, of Allied Waste Industries, Inc.
(the "Corporation"), a corporation organized and existing under the Delaware
General Corporation Law, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by
the Amended Certificate of Incorporation of the Corporation, as amended, the
Board of Directors on July 27, 1999 adopted the following resolution creating a
series of 10,000 shares of Preferred Stock, par value $.10 per share, designated
as Series B Junior Preferred Stock:
NOW, THEREFORE, BE IT RESOLVED, that pursuant to the authority vested
in the Board of Directors of this Corporation in accordance with the provisions
of its Amended Certificate of Incorporation, as amended, a series of Preferred
Stock, par value $.10 per share, of the Corporation be and it hereby is created,
and that the designation and amount and relative rights, limitations and
preferences thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall be
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designated as "Series B Junior Preferred Stock" (the "Series B Preferred
Stock"); the number of shares constituting such series shall be ten thousand
(10,000). Such number of shares may be increased or decreased by resolution of
the Board of Directors; provided, that no decrease shall reduce the number of
shares of Series B Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Corporation into Series B Preferred
Stock.
Section 2. Preference. The preferences of shares of Series B
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Preferred Stock with respect to dividend payments or distributions upon the
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, as the case may be, will be in every respect junior, and
subordinate to preferences of every other share of any other series of preferred
stock of the Corporation from time to time outstanding other than any series
which by its terms is not senior, prior and superior to the preferences of the
Series B Preferred Stock.
Section 3. Dividends. (a) Whenever the Corporation shall declare a
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dividend on shares of Common Stock, par value $.01 per share, of the Corporation
(the "Common Stock"), following the first date of issuance of any shares of
Series B Preferred Stock, the Corporation shall at the same time declare a
dividend on shares of Series B Preferred Stock in a per share amount equal to
the greater of (i) $100.00 and (ii) the Adjustment Number (as defined in Section
6) times the aggregate per share amount of cash and/or the per share amount
(payable in kind) of all noncash dividends or other distributions declared on
each share of Common Stock, other than a dividend payable in shares of Common
Stock (by reclassification or otherwise), payable at the same time as any such
dividend on the Common Stock. The declaration date, the record date and the
payment date for any such dividends or other distributions on the Series B
Preferred Stock shall be the same as those for the Common Stock. No other
dividends shall be required to be paid on shares of the Series B Preferred
Stock.
(b) If, at any time when shares of Series B Preferred Stock are
outstanding, the Corporation shall repurchase or offer to repurchase shares of
Common Stock, then the Corporation shall offer to repurchase shares of Series B
Preferred stock in such amounts which are in the same proportion to the amount
of Common Stock repurchased or offered to be repurchased as the number of then
outstanding shares of Series B Preferred Stock bears to the number of then
outstanding shares of Common Stock and at such per share prices as are equal to
the Adjustment Number times the per share amount offered to or paid to the
holders of Common Stock.
Section 4. Voting Rights. In addition to any voting rights to which
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holders of shares of Series B Preferred Stock may be entitled under applicable
law, the holders of shares of Series B Preferred Stock shall have the following
voting rights:
(A) Each share of Series B Preferred Stock shall entitle the holder
thereof to a number of votes on all matters submitted to a vote of the holders
of shares of Common Stock equal to the Adjustment Number.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series B Preferred Stock and the holders of shares of Common Stock
shall vote together as one class, and not as a separate class, on all matters
submitted to a vote of stockholders of the Corporation.
(C) The holders of shares of Series B Preferred Stock, voting
separately as a class, shall (unless such directors have been elected by the
holders of the Series A Senior Convertible Preferred Stock, par value $.01 per
share, of the Corporation) have the right to elect the number of directors of
the Corporation who are entitled to be elected pursuant to the Second Amended
and Restated Shareholders Agreement, dated as of July 30, 1999, by and among the
Corporation and the investors named therein, as such agreement may be amended
from time to time.
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(D) Without the consent of the holders of at least a majority of the
shares of Series B Preferred Stock then outstanding, given in writing or by vote
at a meeting of stockholders called for such purpose, amend, alter or repeal any
provision of, or add any provision to, the Corporation's certificate of
incorporation or by-laws (by merger or otherwise) if such action would alter or
change the powers, preferences, or special rights of the Series B Preferred
Stock so as to affect them adversely, or increase or decrease (below the number
of shares then outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon the conversion
of all outstanding securities issued by the Corporation, including, without
limitation, the outstanding shares of Series A Convertible Preferred Stock) the
number of shares of Series B Preferred Stock authorized hereby.
Except as set forth herein, holders of Series B Preferred Stock shall
have no special voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common Stock as set forth
herein) for the taking of any corporate action.
Section 5. Certain Restrictions. (a) If at any time any dividend on
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any Series B Preferred Stock shall not have been declared and paid in cash or in
kind as provided in Section 3 hereof, the occurrence of such contingency shall
mark the beginning of a period (herein called a "default period") which shall
extend until such time as all accrued but unpaid dividends have been declared
and paid in full as provided in Section 3 above.
(b) During and until the expiration of a default period, the
Corporation shall not declare or pay dividends or make any other distributions
on, or redeem or purchase or otherwise acquire for consideration, any shares (or
any rights or warrants to purchase such shares) of any other capital stock of
the Corporation ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with, or junior to, the Series B Preferred Stock.
(c) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with, or junior to, the Series B Preferred Stock
unless the Corporation could, under paragraph (b) of this Section 5, purchase or
otherwise acquire such shares at such time and in such manner.
Section 6. Liquidation, Dissolution or Winding Up. (a) Upon any
--------------------------------------
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of any other
capital stock of the Corporation junior to the shares of Series B Preferred
Stock unless, prior thereto, the holders of shares of Series B Preferred Stock
shall have received $100.00 per share (the "Liquidation Preference"), plus all
accrued but unpaid dividends thereon, whether or not earned, to the date fixed
for liquidation, dissolution or winding up. Following the payment of the full
amount of the
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Liquidation Preference, plus accrued but unpaid dividends, no additional
distributions shall be made to the holders of shares of Series B Preferred Stock
until and unless, prior thereto, the holders of shares of Common Stock shall
have received an amount per share (the "Common Catch-up") equal to the quotient
obtained by dividing (i) the Liquidation Preference by (ii) the Adjustment
Number. Following the payment of the full amount of the Liquidation Preference
and the Common Catch-up in respect of all outstanding shares of Series B
Preferred Stock and Common Stock, respectively, holders of shares of Series B
Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be distributed in the
ratio of the Adjustment Number to 1 with respect to such shares of Series B
Preferred Stock and Common Stock, on a per share basis, respectively.
(b) If there are not sufficient assets available to permit payment in
full of the Liquidation Preference and the liquidation preferences of all other
series of preferred stock, if any, which rank on a parity with the Series B
Preferred Stock, then such remaining assets shall be distributed ratably to the
holders of the Series B Preferred Stock and such parity shares in proportion to
their respective liquidation preferences. If there are not sufficient assets
available to permit payment in full of the Common Catch-up, then such remaining
assets shall be distributed ratably to the holders of Common Stock.
(c) "Adjustment Number" shall mean 10,000; provided, that if the
Corporation shall at any time after July 30, 1999 (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock (by stock split, reclassification or otherwise), or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each such
case the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
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enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series B Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share equal to the Adjustment Number times the
aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common Stock
is changed or exchanged.
Section 8. Conversion. (a) Immediately upon receipt of the
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Stockholder Approval (as hereinafter defined), each outstanding share of Series
B Preferred Stock shall automatically be converted into a number of fully paid,
non-assessable shares of Common Stock equal to the Adjustment Number, without
any further action of the holder of such shares and thereafter the holder shall
have no rights as a holder of Series B Preferred Stock
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and no other rights against, or with respect to, the Corporation except (i)
dividends accrued with respect to the Series B Preferred Stock prior to receipt
of the Stockholder Approval and (ii) as a holder of the shares of Common Stock
into which the Series B Preferred Stock has been converted and the right to
receive certificates representing such shares of Common Stock. Upon surrender of
certificates which previously had represented such shares of Series B Preferred
Stock in accordance with paragraph (b) of this Section 8, the Corporation shall
deliver or cause to be delivered to such holder certificates representing such
shares of Common Stock. (In no event shall the Corporation be required to issue
fractional shares of Common Stock in connection with any conversion and, in lieu
thereof, the Corporation shall pay a cash adjustment in respect of such
fractional interest in an amount equal to that fractional interest of a share
multiplied by (a) if the Common Stock is publicly traded on any national
securities exchange, the average of the daily closing prices per share of Common
Stock during the Measurement Period (as defined below) as reported (absent
manifest error) in The Wall Street Journal, (b) if the Common Stock is not
publicly traded on any national securities exchange, but traded over-the-
counter, the average of the daily closing reported bid and asked prices of the
Common Stock during the Measurement Period, as reported by Nasdaq or any
comparable system (or if not so reported by Nasdaq or any comparable system, as
furnished by two members of the National Association of Securities Dealers, Inc.
selected from time to time by the Corporation for that purpose), or (c) if the
Common Stock is not traded in such manner that the quotations referred to above
are available for the Measurement Period, the fair market value of one share of
Common Stock as determined in good faith by the Board of Directors. "Measurement
Period" means, as of any date, the twenty consecutive trading days ending two
trading days before such date. In lieu of paying cash on account of any
fractional interests, the Corporation may, at its option, cause an agent to
aggregate all fractional share interests and sell such aggregated number of
shares on the open market in regular way brokerage transactions and cause the
aggregate net proceeds (with all costs of sale and brokerage commissions
deducted from the gross proceeds of such sale) to be paid pro rata to each
person who otherwise would be entitled to receive cash in lieu of a fractional
share interest).
(b) Upon the surrender of the certificate or certificates which
previously had represented shares of Series B Preferred Stock at any time
following the conversion of shares of Series B Preferred Stock into shares of
Common Stock at the principal office of the Corporation (or such other office or
agency of the Corporation as the Corporation may designate by notice in writing
to the holder or holders of the Series B Preferred Stock) at any time during
normal business hours, the holder of such certificates shall be entitled to
receive from the Corporation a certificate or certificates representing the
shares of Common Stock into which the Series B Preferred Stock previously
represented by the surrendered certificates has been converted. Whether or not
such certificates are surrendered, such conversion will be deemed to have been
effected as of the close of business on the date on which Stockholder Approval
has been obtained, and, except as set forth above, at such time the rights of
the holder of the converted Series B Preferred Stock as such holder will cease
and the person or persons in whose name or names the certificate or certificates
for such
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Series B Preferred Stock had been issued upon such conversion will be
deemed to have become the holder or holders of record of the shares of Common
Stock represented thereby.
(c) As promptly as practicable after such surrender, the Corporation
will issue and deliver in accordance with the surrendering holder's instructions
the certificate or certificates for the Common Stock into which such shares of
Series B Preferred Stock have been converted.
(d) Shares of Series B Preferred Stock which are converted into shares
of Common Stock as provided herein shall not be reissued.
(e) The Corporation will at all times reserve and keep available out of
its authorized but unissued shares of Common Stock or its treasury shares, free
of preemptive rights, solely for the purpose of issue upon the conversion of the
Series B Preferred Stock as provided in this Section 8, such number of shares of
Common Stock as shall then be issuable upon the conversion of all then
outstanding shares of Series B Preferred Stock.
(f) The issuance of certificates for Common Stock upon the conversion
of Series B Preferred Stock will be made without charge to the holders of such
shares for any documentary, stamp, transfer or similar tax in respect thereof or
other cost incurred by the Corporation in connection with such conversion and
the related issuance of Common Stock issued or issuable upon the conversion of
Series B Preferred Stock. However, if any such certificate is to be issued in a
name other than that of the record holder of the share or shares of Series B
Preferred Stock converted, the person or persons requesting the issuance thereof
shall pay to the Corporation the amount of any tax which may be payable in
respect of any transfer involved in such issuance or shall establish to the
satisfaction of the Corporation that such tax has been paid.
(g) Certificates representing shares of Series B Preferred Stock shall
note the automatic conversion of shares upon the occurrence of certain events as
set forth in this Section.
(h) For purposes of this Section, "Stockholder Approval" means any vote
of the stockholders of the Company required to issue shares of Common Stock upon
the conversion of the Series B Preferred Stock under the rules of any stock
exchange or other self-regulatory authority applicable to the Corporation or, if
no such vote is required, the delivery of a written statement by the Corporation
to that effect to the record holders of the Series B Preferred Stock.
(i) All shares of Common Stock which may be issued upon conversion of
the shares of Series B Preferred Stock will, upon issuance by the Corporation,
be duly and validly issued, fully paid and non-assessable, not issued in
violation of any preemptive rights arising under law or contract and free from
all liens and adverse claims with respect to
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the issuance thereof, and the Corporation shall take no action which will cause
a contrary result.
(j) If any shares of Common Stock to be reserved for the purpose of
conversion of shares of Series B Preferred Stock require registration with or
approval of any governmental authority under any Federal or state law before
such shares may be validly issued or delivered upon conversion, then the
Corporation will in good faith and as expeditiously as possible endeavor to
secure such registration or approval, as the case may be. If, and so long as,
any shares of Common Stock into which the shares of Series B Preferred Stock are
then convertible is then listed on any national securities exchange, the
Corporation will, if permitted by the rules of such exchange, list and keep
listed on such exchange, upon official notice of issuance, all shares of such
Common Stock issuable upon conversion.
Section 9. No Redemption. The shares of Series B Preferred Stock
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shall not be redeemable.
Section 10. Reacquired Shares. Any shares of Series B Preferred Stock
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which shall at any time have been redeemed, purchased or otherwise acquired by
the Corporation (upon compliance with any applicable provisions of the laws of
the State of Delaware) shall have the status of authorized but unissued shares
of Preferred Stock, without designation as to series until such shares are once
more designated as part of a particular series by the board of directors.
Section 11. Fractional Shares. Series B Preferred Stock may be issued
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in fractions of a share which shall entitle the holder, in proportion to such
holders fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series B Preferred Stock.
Section 12. Severability. If any right, preference or limitation of
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the Series B Preferred Stock set forth in this resolution (as such resolution
may be amended from time to time) is invalid, unlawful or incapable of being
enforced by reason of any rule of law or public policy, all other rights,
preferences and limitations set forth in this resolution (as so amended) which
can be given effect without the invalid, unlawful or unenforceable right,
preference or limitation shall, nevertheless, remain in full force and effect,
and no right, preference or limitation herein set forth shall be deemed
dependent upon any other such right, preference or limitation unless so
expressed herein.
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IN WITNESS WHEREOF, we have executed and subscribed this Certificate
this day of July, 1999.
/s/ Thomas H. Van Weelden
--------------------------------
Chairman of the Board, President
and Chief Executive Officer
Attest:
/s/ Steve M. Helm
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Secretary
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘SC 13D/A’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 8/4/99 |
| | 7/30/99 | | 2 | | 4 | | | 3, 4 |
| | 7/27/99 | | 1 |
| List all Filings |
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