rs13da-waste_gsgroup.htm

0000895345-07-000715.txt : 20071220 0000895345-07-000715.hdr.sgml : 20071220 20071220150643 ACCESSION NUMBER: 0000895345-07-000715 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 19 FILED AS OF DATE: 20071220 DATE AS OF CHANGE: 20071220 GROUP MEMBERS: GOLDMAN, SACHS & CO. GROUP MEMBERS: GS DIRECT, L.L.C. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WASTE INDUSTRIES USA INC CENTRAL INDEX KEY: 0001125845 STANDARD INDUSTRIAL CLASSIFICATION: REFUSE SYSTEMS [4953] IRS NUMBER: 560954929 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-78051 FILM NUMBER: 071319011 BUSINESS ADDRESS: STREET 1: 3301 BENSON DR STREET 2: STE 601 CITY: RALEIGH STATE: NC ZIP: 27609 BUSINESS PHONE: 9193254000 MAIL ADDRESS: STREET 1: 3301 BENSON DR STREET 2: STE 601 CITY: RALEIGH STATE: NC ZIP: 27609 FORMER COMPANY: FORMER CONFORMED NAME: WASTE HOLDINGS INC DATE OF NAME CHANGE: 20001004 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/ CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 134019460 STATE OF INCORPORATION: DE FISCAL YEAR END: 1124 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D/A 1 rs13da-waste_gsgroup.htm SCHEDULE 13D/A rs13da-waste_gsgroup.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934
(Amendment No. 1)*

Waste Industries USA, Inc.

(Name of Issuer)

Common Stock (No Par Value)

(Title of Class of Securities)

941057 10 1

(CUSIP Number)

Ben I. Adler, Esq.

Goldman, Sachs & Co.

One New York Plaza

New York, NY 10004

(212) 902−1000

(Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications)

Copy to:

Robert C. Schwenkel

Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza

New York, NY 10004

(212) 859-8000

December 17, 2007

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box o.

*The remainder of this cover page will be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the "Act") or otherwise subject to the liabilities of that section of the Act but will be subject to all other provisions of the Act (however, see the Notes).


CUSIP No. 941057 10 1	SCHEDULE 13D/A	Page 2 of 23 Pages

1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON The Goldman Sachs Group, Inc.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ; o
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF SHARES	7	SOLE VOTING POWER 0
BENEFICIALLY OWNED BY	8	SHARED VOTING POWER 33,323
EACH REPORTING	9	SOLE DISPOSITIVE POWER 0
PERSON WITH	10	SHARED DISPOSITIVE POWER 33,323

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 33,323
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES x¹
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.2%²
14	TYPE OF REPORTING PERSON HC-CO

¹ This filing does not reflect any shares of Common Stock (as defined herein) that may be deemed to be beneficially owned by The Goldman Sachs Group, Inc. as a result of membership in a “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, and The Goldman Sachs Group, Inc. disclaims such membership.

² Based on 14,156,037 shares of Common Stock outstanding on November 9, 2007, as reported in the Issuer’s Form 10-Q for the fiscal quarter ended September 30, 2007, filed with the Securities and Exchange Commission on November 9, 2007 (the “Reported Shares Outstanding”).


CUSIP No. 941057 10 1	SCHEDULE 13D	Page 3 of 23 Pages

1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Goldman, Sachs & Co.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS AF; WC; OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) 60; x
6	CITIZENSHIP OR PLACE OF ORGANIZATION New York

NUMBER OF SHARES	7	SOLE VOTING POWER 0
BENEFICIALLY OWNED BY	8	SHARED VOTING POWER 33,323
EACH REPORTING	9	SOLE DISPOSITIVE POWER 0
PERSON WITH	10	SHARED DISPOSITIVE POWER 33,323

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 33,323
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES x³
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.2%⁴
14	TYPE OF REPORTING PERSON BD-PN-IA

³ This filing does not reflect any shares of Common Stock (as defined herein) that may be deemed to be beneficially owned by Goldman, Sachs & Co. as a result of membership in a “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, and Goldman, Sachs & Co. disclaims such membership.

⁴ Based on the Reported Shares Outstanding.


CUSIP No. 941057 10 1	SCHEDULE 13D	Page 4 of 23 Pages

1	NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON GS Direct, L.L.C.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) 60; o
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF SHARES	7	SOLE VOTING POWER 0
BENEFICIALLY OWNED BY	8	SHARED VOTING POWER 0
EACH REPORTING	9	SOLE DISPOSITIVE POWER 0
PERSON WITH	10	SHARED DISPOSITIVE POWER 0

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES x⁵
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0%⁶
14	TYPE OF REPORTING PERSON OO

⁵ This filing does not reflect any shares of Common Stock (as defined herein) that may be deemed to be beneficially owned by GS Direct, L.L.C. as a result of membership in a “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, and GS Direct, L.L.C. disclaims such membership.

⁶ Based on the Reported Shares Outstanding.

ITEM 1. Security and Issuer.

This Amendment No. 1 (this “Amendment”) amends the Schedule 13D originally filed on November 1, 2007 (the “Original 13D”) on behalf of The Goldman Sachs Group, Inc. (“GS Group”), Goldman, Sachs & Co. (“Goldman Sachs”), and GS Direct, L.L.C. (“GS Direct” and collectively with GS Group and Goldman Sachs, the “Reporting Persons”) and is made by the Reporting Persons.⁷

This Amendment relates to the common stock, no par value (“Common Stock”), of Waste Industries USA, Inc. (the “Issuer”). The principal executive offices of the Issuer are located at 3301 Benson Drive, Suite 601, Raleigh, North Carolina 27609. The Original 13D is hereby amended and supplemented by the Reporting Persons as set forth in this Amendment. Capitalized terms used but not defined in this Amendment shall have the meanings given in the Original 13D.

ITEM 2. Identity and Background

Item 2 of the Original 13D is hereby amended by replacing in their entirety the Schedules I, II-A and II-B incorporated therein by reference with Schedule I, II-A and II-B hereto which Schedules I, II-A and II-B are incorporated herein by reference into this Item 2.

ITEM 3. Source and Amount of Funds or Other Consideration.

Item 3 of the Original 13D is hereby amended by adding the following paragraphs at the end thereof:

On December 17, 2007, Marlin HoldCo LP, a Delaware Limited Partnership (“Parent”) and Marlin MergeCo Inc., a North Carolina corporation and an indirect wholly-owned subsidiary of Parent (“Merger Sub”), and the Issuer entered into an Agreement and Plan of Merger (the “Merger Agreement”) which is described in Item 4 below. Parent and Merger Sub were formed by the Sponsors (as defined below), the Poole Members, and Mr. Perry for the purpose of entering into the Merger Agreement. The aggregate amount required by Parent to pay the merger consideration, refinance the Issuer’s existing indebtedness, and pay related expenses in connection with the transactions contemplated by the Merger Agreement (the “Transactions”) is approximately $752.6 million. The proceeds to pay such amount will be obtained by Parent and Merger Sub from equity contributions by the Sponsors (as defined below), senior subordinated mezzanine loan notes (the “Notes”) issued by a wholly-owned subsidiary of Parent and the direct parent of Merger Sub (“Midco”) to the Sponsors and Lonnie C. Poole, Jr. (one of the Poole Members), and senior secured debt facilities from the lender parties thereto. In addition, it is contemplated that the Poole Members and Mr. Perry will contribute shares of Common Stock to Parent in exchange for equity interests of Parent.

⁷Neither the present filing nor anything contained herein shall be construed as an admission that any Reporting Person constitutes a “person” for any purpose other than for compliance with Section 13(d) of the Securities Exchange Act of 1934, as amended.

In separate commitment letters (the “Sponsor Commitment Letters”), dated December 17, 2007, GS Direct and MIP Waste Holdings, L.P. (“MIP Waste Holdings” and collectively with GS Direct, the “Sponsors”) agreed, subject to the satisfaction or waiver of certain conditions as set forth therein, to (a) contribute an aggregate of approximately $144 million in cash to Parent in exchange for equity interests of Parent, and (b) purchase Notes for an aggregate purchase price of approximately $107 million in cash. This summary of the Sponsor Commitment Letters does not purport to be complete and is qualified in its entirety by reference to the Sponsor Commitment Letters, which are referenced herein as Exhibits 7.01 and 7.02 and incorporated by reference in their entirety into this Item 3.

In addition, the Poole Members and Mr. Perry entered into separate commitment letters, dated as of December 17, 2007 (the “Rollover Commitment Letters”), pursuant to which the Poole Members and Mr. Perry agreed, subject to the satisfaction or waiver of certain conditions as set forth therein, to contribute in the aggregate up to approximately 4.4 million shares of Common Stock, at a price of $38.00 per share, to Parent (together with any rollover shares committed after the date hereof by management or directors of the Issuer, the “Rollover Shares”) in exchange for equity interests of Parent. Lonnie C. Poole, Jr., one of the Poole Members, also agreed to purchase Notes for an aggregate purchase price of approximately $24 million in cash. This summary of the Rollover Commitment Letters does not purport to be complete and is qualified in its entirety by reference to the Rollover Sponsor Commitment Letters, which are referenced herein as Exhibits 7.03 through 7.09 and incorporated by reference in their entirety into this Item 3.

In addition, on December 17, 2007, Macquarie Infrastructure Partners International, L.P., Macquarie Infrastructure Partners Canada, L.P., Macquarie Infrastructure Partners A, L.P. (collectively the “Macquarie Entities”), and GS Direct entered into an amendment to the Debt Commitment Letter (the “Amendment to the Debt Commitment Letter”), pursuant to which the Wachovia Bank, N.A., HSBC Securities (USA) Inc., and HSBC Bank, N.A. agreed to extend their commitment to provide, subject to certain conditions as set forth therein, up to $455 million in debt financing, through a combination of term loan facilities in an aggregate principal amount of up to $310 million, capital expansion facilities in an aggregate principal amount of up to $75 million, and revolving credit facilities in an aggregate principal amount of up to $70 million, which financing will also be used to fund the merger consideration under the Merger Agreement and pay certain expenses as well as to refinance certain of the Issuer’s indebtedness and to fund general corporate expenditures for the operation of the Issuer following the closing of the Transactions. This summary of the Amendment to the Debt Commitment Letter does not purport to be complete and is qualified in its entirety by reference to the Amendment to the Debt Commitment Letter which is referenced herein as Exhibit 7.10 and the Debt Commitment Letter which was filed as Exhibit 7.04 to the Original 13D; and each is incorporated by reference in its entirety into this Item 3.

ITEM 4. Purpose of Transaction.

Item 4 of the Original 13D is hereby amended by adding the following paragraphs at the end thereof:

On December 17, 2007, Lonnie C. Poole, Jr. transferred 700,000 of his shares of Common Stock to the Damas II Charitable Remainder Unitrust U/A/D December 13, 2007 (the “Damas Trust”). On December 18, 2007, Jim W. Perry transferred 50,000 of his shares of Common Stock to the Perry 2007 Irrevocable Trust U/A/D December 13, 2007 (the “Perry Trust”). In connection therewith, the Damas Trust and the Perry Trust signed a joinder agreement to the Support Agreement (the “Joinder”) agreeing to become parties to and be bound by the Support Agreement. This summary of the Joinder does not purport to be complete and is qualified in its entirety by reference to the Joinder which is referenced herein as Exhibit 7.11 and incorporated by reference in its entirety into this Item 4.

On December 17, 2007, Parent, Merger Sub and the Issuer entered into the Merger Agreement, pursuant to which, subject to the satisfaction or waiver of the conditions as set forth therein, at the Effective Time (as defined in the Merger Agreement) Merger Sub will be merged with and into the Issuer with the Issuer surviving the merger, and pursuant to which all of the outstanding shares of Common Stock (other than Rollover Shares) will be converted into the right to receive $38.00 per share in cash. The foregoing summary of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement which is referenced herein as Exhibit 7.12 and incorporated by reference in its entirety into this Item 4.

On December 17, 2007, the Sponsors, the Poole Members, Mr. Perry, the Damas Trust and the Perry Trust entered into an Interim Investors Agreement (the “IIA”), which will govern their conduct in respect of the Transactions between the time of the signing of the Merger Agreement and the earlier of the closing of the merger contemplated thereby or the termination of the Merger Agreement, including matters such as determining whether any closing condition contained in the Merger Agreement has been satisfied or shall be waived by Parent or Merger Sub. This summary of the IIA does not purport to be complete and is qualified in its entirety by reference to the IIA, which is referenced herein as Exhibit 7.13 and incorporated by reference in its entirety into this Item 4.

In connection with the transactions contemplated by the Merger Agreement, the Sponsors, the Poole Members, Mr. Perry, the Damas Trust and the Perry Trust formed Parent, Merger Sub and Marlin Holdco GP, LLC (“Holdco GP”), a Delaware limited liability company, to act as general partner of Parent. The governing documents relating to Parent and Holdco GP generally provide that all management decisions of Parent and Holdco GP are subject to the terms of the IIA. The foregoing summary of the Limited Partnership Agreement of Parent and the Limited Liability Company Agreement of Holdco GP does not purport to be complete and is qualified in its entirety by reference to the Limited Partnership Agreement of Parent and the Limited Liability Company Agreement of Holdco GP each of which is referenced herein as Exhibits 7.14 and 7.15, respectively, and are incorporated by reference into this Item 4.

In a Limited Guarantee, dated December 17, 2007 (the “Limited Guarantee”), each of the Macquarie Entities, GS Direct, the Poole Members, Mr. Perry, the Damas Trust and the Perry Trust unconditionally and irrevocably agreed, subject to certain conditions as set forth therein, to guarantee a portion of a termination fee owed by Parent, if and when due pursuant to Section 7.2(b) of the Merger Agreement. subject to certain caps. This summary of the Limited Guarantee does not purport to be complete and is qualified in its entirety by reference to Limited Guarantee, which is referenced herein as Exhibit 7.16 and incorporated by referenced in its entirety into this Item 4.

The purpose of the Transactions is to acquire all of the outstanding Common Stock. If the Transactions are consummated, the Common Stock will be delisted from the NASDAQ Global Market, and will cease to be registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Issuer will be privately held by the Sponsors, the Poole Members, Mr. Perry and any other members of the Issuer’s management who determine to invest in the Transactions after the date hereof.

ITEM 5. Interests in Securities of the Issuer.

Item 5 of the original 13D is amended and restated as follows:

(a) As of December 17, 2007, GS Group and Goldman Sachs or another wholly-owned broker or dealer subsidiary of GS Group, may be deemed to beneficially own 33,323 shares of Common Stock, which were acquired in ordinary course trading activities by Goldman Sachs or another wholly-owned broker or dealer subsidiary of GS Group. Such 33,323 shares of Common Stock constitute approximately 0.2% of the outstanding shares of Common Stock, based on the Reported Shares Outstanding.

The aggregate shares of Common Stock described above does not include shares of Common Stock beneficially owned by any other member of any “group” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, in which GS Group, Goldman Sachs, or GS Direct may be deemed a member.

Other than as described in the following paragraph, GS Direct does not beneficially own any securities of the Issuer.

As a result of the matters described in Item 4 of the Original 13D and this Amendment, the Reporting Persons may be deemed to constitute a “group”, within the meaning of Section 13(d)(3) of the Exchange Act, with, among others, the Poole Members and Mr. Perry. The Reporting Persons do not have affirmative information about any shares that may be beneficially owned by such other persons, other than the 6,027,738 shares of Common Stock reported as beneficially owned by the Poole Members and the 1,376,864 shares of Common Stock reported as beneficially owned by Mr. Perry in the Issuer’s Schedule 14A, filed with the SEC on April 30, 2007. Each Reporting Person hereby disclaims membership in any “group” with any person and disclaims beneficial ownership of any shares of Common Stock that may be or are beneficially owned by, among others, the Poole Members and Mr. Perry.

In accordance with Securities and Exchange Commission Release No. 34-395538 (January 12, 1998) (the “Release”), this filing reflects the securities beneficially owned by certain operating units (collectively, the “Goldman Sachs Reporting Units”) of GS Group and its subsidiaries and affiliates (collectively, “GSG”). This filing does not reflect securities, if any, beneficially owned by any operating units of GSG whose ownership of securities is disaggregated from that of the Goldman Sachs Reporting Units in accordance with the Release. The Goldman Sachs Reporting Units disclaim beneficial ownership of the securities beneficially owned by (i) any client accounts with respect to which the Goldman Sachs Reporting Units or their employees have investment discretion, and (ii) certain investment entities of which the Goldman Sachs Reporting Units acts as the general partner, managing general partner or other manager, to the extent interests in such entities are held by persons other than the Goldman Sachs Reporting Units.

(b) Each Reporting Person shares the power to vote or direct the vote and to dispose or direct the disposition of shares of Common Stock beneficially owned by such Reporting Person as indicated herein.

(c) Schedule IV sets forth transactions in the Common Stock which were effected from October 23, 2007 through December 17, 2007, all of which were effected in the ordinary course of business of Goldman Sachs or another wholly-owned broker or dealer subsidiary of GS Group. The transactions in the Common Stock described in Schedule IV were effected on the NASDAQ Stock Market, the NYSE Arca or over-the-counter market.

Except as set forth in Schedule IV hereto, no transactions in the Common Stock were effected by the Reporting Persons or, to the knowledge of any of the Reporting Persons, any of the persons listed on Schedule I, Schedule II-A and Schedule II-B hereto, from October 23, 2007 through December 17, 2007.

(d) No other person is known by any Reporting Person to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Common Stock.

(e) Not applicable.

ITEM 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

The information set forth in Items 3, 4 and 5 above is incorporated by reference in its entirety into this Item 6.

ITEM 7. Material to Be Filed as Exhibits.

EXHIBIT	DESCRIPTION

7.01	GS Direct, L.L.C. Equity Commitment Letter, dated December 17, 2007.

7.02	MIP Waste Holdings, L.P. Equity Commitment Letter, dated December 17, 2007.

7.03	Lonnie C. Poole, Jr. Rollover Equity Commitment Letter, dated December 17, 2007.

7.04	Lonnie C. Poole, III Rollover Equity Commitment Letter, dated December 17, 2007.

7.05	Scott J. Poole Rollover Equity Commitment Letter, dated December 17, 2007.

7.06	Jim W. Perry Rollover Equity Commitment Letter, dated December 17, 2007.

7.07	Lonnie C. Poole, Jr. Grantor Trust Rollover Equity Commitment Letter, dated December 17, 2007.

7.08	Tailwalker Non-GST Trust Rollover Equity Commitment Letter, dated December 17, 2007.

7.09	Tailwalker Trust Rollover Equity Commitment Letter, dated December 17, 2007.

7.10	Amendment to the Debt Commitment Letter, dated December 17, 2007.

7.11	Joinder Agreement, dated December 17, 2007.

7.12	Agreement and Plan of Merger, dated December 17, 2007 by and among Waste Industries USA, Inc., Marlin HoldCo LLC, and Marlin MergeCo, Inc.

7.13	Interim Investors Agreement, dated December 17, 2007.

7.14	Agreement of Limited Partnership of Marlin HoldCo LP, dated December 17, 2007.

7.15	Limited Liability Company Agreement of Marlin HoldCo GP, LLC, dated December 17, 2007.

7.16	Limited Guarantee, dated December 17, 2007.

7.17	Power of Attorney, dated May 23, 2006, relating to The Goldman Sachs Group, Inc.

7.18	Power of Attorney, dated June 26, 2006, relating to Goldman, Sachs & Co.

7.19	Power of Attorney, dated August 24, 2007, relating to GS Direct, L.L.C. (incorporated by reference to Exhibit 7 to the Reporting Persons’ Schedule 13D filed in respect of Waste Industries USA, Inc. on November 1, 2007).

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

December 20, 2007

	THE GOLDMAN SACHS GROUP, INC.

	By:	/s/ Felicia J. Rector
		Name: Felicia J. Rector
		Title: Attorney-in-fact

	GOLDMAN, SACHS & CO.

	By:	/s/ Felicia J. Rector
		Name: Felicia J. Rector
		Title: Attorney-in-fact

	GS DIRECT, L.L.C.

	By:	/s/ Felicia J. Rector
		Name: Felicia J. Rector
		Title: Attorney-in-fact

SCHEDULE I

The name and present principal occupation of each director of The Goldman Sachs Group, Inc. is set forth below.

The business address of each person listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004.

Each person is a citizen of the United States of America except for Claes Dahlback, who is a citizen of Sweden.

NAME	PRESENT PRINCIPAL OCCUPATION
Lloyd C. Blankfein.	Chairman of the Board and Chief Executive Officer of The Goldman Sachs Group, Inc.

Gary D. Cohn	President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc.

Jon Winkelreid	President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc.

John H. Bryan	Retired Chairman and Chief Executive Officer of Sara Lee Corporation

Claes Dahlback	Senior Advisor to Investor AB and Senior Advisor to Foundation Asset Management

Stephen Friedman	Chairman of Stone Point Capital

William W. George	Professor of Management Practice at the Harvard Business School, Retired Chairman and Chief Executive Officer of Medtronic, Inc.

Rajat K. Gupta	Senior Partner of McKinsey & Company

James A. Johnson	Vice Chairman of Perseus, L.L.C.

Lois D. Juliber	Retired Vice Chairman of Colgate-Palmolive Company

Edward M. Liddy	Chairman of The Allstate Corporation

Ruth J. Simmons	President of Brown University

SCHEDULE II-A

The name and present principal occupation of each member of the Principal Investment Area GS Direct Investment Sub-Committee of Goldman, Sachs & Co., which exercises the authority of Goldman, Sachs & Co. in reviewing all material investing and harvesting transactions proposed to be entered into by GS Direct, L.L.C., are set forth below.

The business address for each member listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except as follows: The business address of Byron D. Trott and Muneer A. Satter is 71 South Wacker Drive, Chicago, IL 60606 and the business address of Bjorn P. Killmer is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England.

All members listed below are United States citizens, except as follows: Ravi Sinha is a citizen of India and the United States and Bjorn P. Killmer is a citizen of Germany.

NAME	PRESENT PRINCIPAL OCCUPATION

Richard A. Friedman	Managing Director of Goldman, Sachs & Co.

Ben I. Adler	Managing Director of Goldman, Sachs & Co.

Henry Cornell	Managing Director of Goldman, Sachs & Co.

Bjorn P. Killmer	Managing Director of Goldman Sachs International

Gregg R. Lemkau	Managing Director of Goldman, Sachs & Co.

Gavin O’Conner	Managing Director of Goldman, Sachs & Co.

Muneer A. Satter	Managing Director of Goldman, Sachs & Co.

Ravi Sinha	Managing Director of Goldman, Sachs & Co.

Byron D. Trott	Managing Director of Goldman, Sachs & Co.

Gerald J. Cardinale	Managing Director of Goldman, Sachs & Co.

SCHEDULE II-B

The name, position, and present principal occupation of each executive officer of GS Direct, L.L.C. are set forth below.

The business address for all the executive officers listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except as follows: The business address of Hughes B. Lepic, Robert R. Gheewalla, Michael M. Furth, Sanjay H. Patel, Steffen J. Kastner, Bjorn P. Killmer, Martin Hintze, Joanna Dzuibak Hislop, and Steven R. Sher is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of Sang Gyun Ahn, Hsueh J. Sung, Stephanie M. Hui, and Andrew Wolff is Cheung Kong Center, 68^th Floor, 2 Queens Road, Central, Hong Kong. The business address of Joseph P. DiSabato is 555 California Street, San Franciso, CA 94104. The business address of Muneer A. Satter is 71 South Wacker Drive, Chicago, IL 60606. The business address of Ankur A. Sahu is Roppongi Hills, Mori Tower, Level 43-48, 10-1, Roppongi 6-chome, Minato-ku, Tokyo, 106-6147, Japan.

All executive officers listed below are United States citizens, except as follows: Hughes B. Lepic is a citizen of France; Adrian M. Jones is a citizen of Ireland; Bjorn P. Killmer, Steffen J. Kastner, Martin Hintze, and Oliver Thym are citizens of Germany; Hsueh Sung is a citizen of Taiwan; Ankur A. Sahu and Sanjay H. Patel are citizens of India; Sang Gyun Ahn is a citizen of South Korea; Stephanie M. Hui is a citizen of Hong Kong; Steven R. Sher is a citizen of South Africa; Joanna Dzuibak Hislop, Sarah E. Smith, Stephanie M. Hui, and Steven R. Sher are citizens of the United Kingdom; and Michael M. Furth is a citizen of Ireland and the United States.

NAME	POSITION	PRESENT PRINCIPAL OCCUPATION

Richard A. Friedman	President	Managing Director of Goldman, Sachs & Co.

Ben I. Adler	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Sang Gyun Ahn	Managing Director and Vice President	Managing Director of Goldman Sachs (Asia) L.L.C.

John E. Bowman	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Gerald J. Cardinale	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Henry Cornell	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

John F.X. Daly	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Joseph P. DiSabato	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Katherine B. Enquist	Managing Director, Vice President and Secretary	Managing Director of Goldman, Sachs & Co.

Michael M. Furth	Managing Director and Vice President	Managing Director of Goldman Sachs International

Robert R. Gheewalla	Managing Director and Vice President	Managing Director of Goldman Sachs International

Joseph H. Gleberman	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Bradley J. Gross	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Philip W. Grovit	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Melina E. Higgins	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Martin Hintze	Managing Director and Vice President	Managing Director of Goldman Sachs International

Joanna Dzuibak Hislop	Managing Director and Vice President	Managing Director of Goldman Sachs International

Stephanie M. Hui	Managing Director and Vice President	Managing Director of Goldman Sachs (Asia) L.L.C.

Adrian M. Jones	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Steffen J. Kastner	Managing Director and Vice President	Managing Director of Goldman Sachs International

Stuart A. Katz	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Bjorn P. Killmer	Managing Director and Vice President	Managing Director of Goldman Sachs International

Michael E. Koester	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Hughes B. Lepic	Managing Director and Vice President	Managing Director of Goldman Sachs International

Sanjeev K. Mehra	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Sanjay H. Patel	Managing Director and Vice President	Managing Director of Goldman Sachs International

Kenneth A. Pontarelli	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Ankur A. Sahu	Managing Director and Vice President	Managing Director of Goldman Sachs (Japan) Ltd.

Muneer A. Satter	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Steven R. Sher	Managing Director and Vice President	Managing Director of Goldman Sachs International

Hsueh J. Sung	Managing Director and Vice President	Managing Director of Goldman Sachs (Asia) L.L.C.

Oliver Thym	Managing Director and Vice President	Managing Director of Goldman, Sachs & Co.

Andrew E. Wolff	Managing Director and Vice President	Managing Director of Goldman Sachs (Asia) L.L.C.

Christine Vollertsen	Vice President	Vice President

Mitchell S. Weiss	Vice President	Vice President of Goldman, Sachs & Co.

Elizabeth C. Fascitelli	Treasurer	Managing Director of Goldman, Sachs & Co.

Elizabeth E. Beshel	Assistant Treasurer	Managing Director of Goldman, Sachs & Co.

Steven M. Bunson	Assistant Treasurer	Managing Director of Goldman, Sachs & Co.

Sarah E. Smith	Assistant Treasurer	Assistant Treasurer

Julie Abraham	Assistant Secretary	Vice President and Assistant General Counsel of Goldman, Sachs & Co.

Beverly O’Toole	Assistant Secretary	Vice President of Goldman, Sachs & Co.

Ken Josselyn	Assistant Secretary	Managing Director of Goldman, Sachs & Co.

Esta E. Stecher	Assistant Secretary	Managing Director of Goldman, Sachs & Co.

Matthew E. Tropp	Assistant Secretary	Vice President and Associate General Counsel of Goldman, Sachs & Co.

SCHEDULE IV

Purchase (P) / Sale (S)	SHARES	PRICE	TRADE DATE	SETTLEMENT DATE
P	6	$29.06	10/23/2007	10/26/2007
P	48	$28.82	10/23/2007	10/26/2007
S	48	$28.82	10/23/2007	10/26/2007
P	71	$35.13	10/23/2007	10/26/2007
S	71	$36.22	10/23/2007	10/26/2007

EX-7.01 2 rsexh7_01.htm GS EQUITY COMMITEMENT LETTER rsexh7_01.htm

Exhibit 7.01

December 17, 2007

STRICTLY CONFIDENTIAL

Marlin HoldCo LP

Marlin MidCo Inc.

c/o Macquarie Securities (USA) Inc.

125 West 55th Street, 9th Floor

New York, NY 10019

Gentlemen:

Reference is made to that certain Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”; capitalized terms used but not defined herein shall have the meanings given to such terms in the Merger Agreement), by and among Marlin HoldCo LP (“Parent”), Marlin MergeCo Inc. (“Merger Sub”) and Waste Industries USA, Inc. (the “Company”).

The undersigned (the “Investor”) hereby commits, subject to the conditions set forth herein, to purchase, and/or cause to be purchased by certain additional co-investment entities affiliated with the Investor, equity interests of Parent (the “Equity Securities”) for an aggregate purchase price equal to the amount set forth next to the Investor’s name on Schedule A hereto (such amount, the “Equity Funding Amount”), solely for the purpose of funding a portion of the consideration payable by Parent in accordance with the Merger Agreement and related expenses.

In addition to the Equity Funding Amount, the Investor hereby commits, subject to the conditions set forth herein, to purchase, and/or cause to be purchased by certain additional co-investment entities affiliated with such Investor, senior subordinated mezzanine loan notes (the “Notes”) issued by the wholly-owned subsidiary of Parent and the direct parent of Merger Sub (“Midco”) on the terms described herein and on Exhibit A hereto (the “Term Sheet”) for an aggregate purchase price equal to the amount set forth on Schedule B hereto (such amount, the “Note Funding Amount”), the proceeds of which shall be used solely for the purpose of funding a portion of the consideration payable by Parent in accordance with the Merger Agreement and related expenses. The foregoing obligation of the Investor to purchase the Equity Securities and the Notes are subject to the satisfaction or proper waiver in accordance with the provisions of the Interim Investors Agreement, dated as of the date hereof, by and among Parent, Merger Sub and the other parties appearing on the signature pages thereto of the conditions set forth in Article VI of the Merger Agreement and the substantially contemporaneous funding of the financing contemplated by the Debt Commitment Letters and the consummation of the merger (the “Merger”) in accordance with the terms of the Merger Agreement. Under no circumstances shall the Investor be obligated to (i) contribute to Parent more than the Investor’s Equity Funding Amount and (ii) purchase Notes from Midco in an amount greater than the Investor’s Note Funding Amount.

The obligations of the Investor hereunder will terminate automatically and immediately upon the earliest to occur of (a) the Closing, (b) the termination of the Merger Agreement and (c) the Company or any of its affiliates asserting a claim against the Investor or any affiliate thereof in connection with the Merger Agreement or any of the transactions contemplated thereby (the earliest date on which any such event occurs, being the “Commitment Termination Date”).

No (a) direct or indirect holder of any equity interests or securities of any party hereto (whether such holder is a partner (limited or general), member, stockholder, or otherwise), (b) Affiliate of any party hereto, or (c) director, officer, partner (limited or general), member, stockholder, employee, representative or agent of any party hereto, any of such party’s respective Affiliates or any such direct or indirect holder of any equity interests or securities of any such party (collectively, the “Party Affiliates”) shall have any liability or obligation of any nature whatsoever in connection with or under this letter or the transactions contemplated hereby, and each party hereto hereby waives and releases all claims against such Party Affiliates related to any such liability or obligation.

This letter shall be binding on the undersigned solely for the benefit of the parties hereto, and nothing set forth in this letter shall be construed to confer upon or give to any Person other than the parties hereto any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the Investor’s obligation to fund its Equity Funding Amount, Note Funding Amount or any provisions of this letter. Parent’s creditors shall have no right to enforce this letter or cause Parent to enforce this letter.

No modification of this letter shall be binding upon or enforceable against any party hereto without the written approval of such party.

The Investor may assign any of its rights and obligations, in whole or in part, to any Affiliate of the Investor or any fund managed by an Affiliate of the Investor. Parent may not assign any of its rights and obligations hereunder to any Person without the prior consent of the Investor, and any attempted assignment in violation of the foregoing shall be null and void.

This letter, and all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) that may be based upon, arise out of or relate to this letter or the negotiation, execution or performance hereof, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Each of the parties hereto irrevocably agrees that any legal action or proceeding that may be based upon, arise out of or relate to this letter or the negotiation, execution or performance hereof (whether at law, in equity, in contract, in tort or otherwise), shall be brought and determined exclusively in the Chancery Court of the State of Delaware (or other appropriate state court in the State of Delaware), or in the event (but only in the event) that such court does not have subject matter jurisdiction over such action or proceeding, in any federal court sitting in the State of Delaware. Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the exclusive personal jurisdiction of the aforesaid courts and agrees that it will not bring any such action in any court other than the aforesaid courts.

IN NO EVENT SHALL PARENT BE ENTITLED TO SPECIFIC PERFORMANCE AGAINST THE INVESTOR WITH RESPECT TO ITS OBLIGATIONS HEREUNDER. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE TO THIS LETTER OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF.

[SIGNATURE PAGES FOLLOW]

Very truly yours,

GS DIRECT, LLC

By:	/s/ Gerald J. Cardinale
	Name: Gerald J. Cardinale
	Title: Managing Director

Accepted and agreed as of

the date first above written:

MARLIN HOLDCO LP, by its General Partner, Marlin HoldCo GP, LLC

By:	/s/ Jim W. Perry
	Name: Jim W. Perry
	Title: Vice President

MARLIN MIDCO INC.

By:	/s/ Jim W. Perry
	Name: Jim W. Perry
	Title: Vice President

SCHEDULE A

Equity Funding Amount

Investor	Equity Funding Amount
GS DIRECT, LLC	$48,000,972.06

SCHEDULE B

Note Funding Amount

Investor	Note Funding Amount
GS DIRECT, LLC	$35,691,662.28

EX-7.02 3 rsexh7_02.htm MIP EQUITY COMMITMENT LETTER rsexh7_02.htm

Exhibit 7.02

December 17, 2007

STRICTLY CONFIDENTIAL

Marlin HoldCo LP

Marlin MidCo Inc.

c/o Macquarie Securities (USA) Inc.

125 West 55th Street, 9th Floor

New York, NY 10019

Gentlemen:

No modification of this letter shall be binding upon or enforceable against any party hereto without the written approval of such party.

[SIGNATURE PAGES FOLLOW]

Very truly yours,

MIP WASTE HOLDINGS, L.P., by its General Partner, MIP Waste GP LLC

By:	/s/ Christopher Leslie
	Name: Christopher Leslie
	Title: President


By:	/s/ Mark Wong
	Name: Mark Wong
	Title: Treasurer

Accepted and agreed as of

the date first above written:

MARLIN HOLDCO LP, by its General Partner, Marlin HoldCo GP, LLC

By:	/s/ Jim W. Perry
	Name: Jim W. Perry
	Title: Vice President

MARLIN MIDCO INC.

By:	/s/ Jim W. Perry
	Name: Jim W. Perry
	Title: Vice President

SCHEDULE A

Equity Funding Amount

Investor	Equity Funding Amount
MIP WASTE HOLDINGS, L.P.	$96,001,944.12

SCHEDULE B

Note Funding Amount

Investor	Note Funding Amount
MIP WASTE HOLDINGS, L.P.	$71,383,324.56

EX-7.03 4 rsexh7_03.htm POOLE, JR. ROLLOVER EQUITY COMMITMENT LETTER rsexh7_03.htm

Exhibit 7.03

December 17, 2007

STRICTLY CONFIDENTIAL

Marlin HoldCo LP

Marlin MidCo Inc.

c/o Macquarie Securities (USA) Inc.

125 West 55th Street, 9th Floor

New York, NY 10019

Gentlemen:

The undersigned (the “Investor”) hereby commits, subject to the conditions set forth herein, to acquire equity interests of Parent in an amount set forth in Schedule A hereto (the “Equity Funding Amount”), which shall be issued to Investor in exchange for its contribution and delivery to Parent of the number of shares of Company Common Stock (the “Rollover Contribution Shares”) set forth next to such Investor’s name on Schedule A hereto, solely for the purpose of consummating the transactions contemplated by the Merger Agreement. The value of each Rollover Contribution Share shall be equal to the per share Merger Consideration.

In addition to the Equity Funding Amount, the Investor hereby commits, subject to the conditions set forth herein, to purchase senior subordinated mezzanine loan notes (the “Notes”) issued by the wholly-owned subsidiary of Parent and the direct parent of Merger Sub (“Midco”) on the terms described herein and on Exhibit A hereto (the “Term Sheet”) for an aggregate purchase price equal to the amount set forth on Schedule B hereto (the “Note Funding Amount”), the proceeds of which shall be used solely for the purpose of funding a portion of the consideration payable by Parent in accordance with the Merger Agreement and related expenses. The foregoing obligations of the undersigned to contribute the Rollover Contribution Shares and the Notes are subject to the satisfaction or proper waiver in accordance with the provisions of the Interim Investors Agreement, dated as of the date hereof, by and among Parent, Merger Sub and the other parties appearing on the signature pages thereto of the conditions set forth in Article VI of the Merger Agreement and the substantially contemporaneous funding of the financing contemplated by the Debt Commitment Letters and the consummation of the merger (the “Merger”) in accordance with the terms of the Merger Agreement.

No (a) direct or indirect holder of any equity interests or securities of any party hereto (whether such holder is a partner (limited or general), member, stockholder, or otherwise), (b) Affiliate of any party hereto, or (c) director, officer, partner (limited or general), member, stockholder, employee, representative, family member or agent of any party hereto, any of such party’s respective Affiliates or any such direct or indirect holder of any equity interests or securities of any such party (collectively, the “Party Affiliates”) shall have any liability or obligation of any nature whatsoever in connection with or under this letter or the transactions contemplated hereby, and each party hereto hereby waives and releases all claims against such Party Affiliates related to any such liability or obligation.

No modification of this letter shall be binding upon or enforceable against any party hereto without the written approval of such party.

No party hereto may assign any of its rights and obligations hereunder to any Person without the prior consent of Parent, and any attempted assignment in violation of the foregoing shall be null and void.

THE PARTIES AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS LETTER WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED. IT IS ACCORDINGLY AGREED THAT EACH PARTY HERETO SHALL BE ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OF THIS LETTER AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS OF THIS LETTER EXCLUSIVELY IN THE CHANCERY COURT OF THE STATE OF DELAWARE (OR OTHER APPROPRIATE STATE COURT IN THE STATE OF DELAWARE), OR IN THE EVENT (BUT ONLY IN THE EVENT) THAT SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH ACTION OR PROCEEDING, IN ANY FEDERAL COURT SITTING IN THE STATE OF DELAWARE, WITHOUT BOND OR OTHER SECURITY BEING REQUIRED, THIS BEING IN ADDITION TO ANY OTHER REMEDY WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE TO THIS LETTER OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF.

[SIGNATURE PAGES FOLLOW]

Very truly yours,


/s/ Lonnie C. Poole, Jr.
Lonnie C. Poole, Jr.

Accepted and agreed as of

the date first above written:

MARLIN HOLDCO LP, by its General Partner, Marlin HoldCo GP, LLC

By:	/s/ Jim W. Perry
	Name: Jim W. Perry
	Title: Vice President

MARLIN MIDCO INC.

By:	/s/ Jim W. Perry
	Name: Jim W. Perry
	Title: Vice President

SCHEDULE A

Equity Funding Amount

Investor	Number of Rollover Contribution Shares	Equity Funding Amount
Lonnie C. Poole, Jr.	1,100,000	$41,800,000.00

SCHEDULE B

Note Funding Amount

Investor	Note Funding Amount
Lonnie C. Poole, Jr.	$24,000,000.00

EX-7.04 5 rsexh7_04.htm POOLE, III ROLLOVER EQUITY COMMITMENT LETTER rsexh7_04.htm

Exhibit 7.04

December 17, 2007

STRICTLY CONFIDENTIAL

Marlin HoldCo LP

c/o Macquarie Securities (USA) Inc.

125 West 55th Street, 9th Floor

New York, NY 10019

Gentlemen:

The foregoing obligations of the undersigned to contribute the Rollover Contribution Shares is subject to the satisfaction or proper waiver in accordance with the provisions of the Interim Investors Agreement, dated as of the date hereof, by and among Parent, Merger Sub and the other parties appearing on the signature pages thereto of the conditions set forth in Article VI of the Merger Agreement and the substantially contemporaneous funding of the financing contemplated by the Debt Commitment Letters and the consummation of the merger in accordance with the terms of the Merger Agreement.

No (a) direct or indirect holder of any equity interests or securities of any party hereto (whether such holder is a partner (limited or general), member, stockholder, or otherwise), (b) Affiliate of any party hereto, or (c) director, officer, partner (limited or general), member, stockholder, employee, representative, family member or agent of any party hereto, any of such party’s respective Affiliates or any such direct or indirect holder of any equity interests or securities of any such party (collectively, the “Party Affiliates”) shall have any liability or obligation of any nature whatsoever in connection with or under this letter or the transactions contemplated hereby, and each party hereto hereby waives and releases all claims against such Party Affiliates related to any such liability or obligation.

No modification of this letter shall be binding upon or enforceable against any party hereto without the written approval of such party.

[SIGNATURE PAGES FOLLOW]

Very truly yours,


/s/ Lonnie C. Poole, III
Lonnie C. Poole, III

Accepted and agreed as of

the date first above written:

MARLIN HOLDCO LP, by its General Partner, Marlin HoldCo GP, LLC

By:	/s/ Jim W. Perry
	Name: Jim W. Perry
	Title: Vice President

SCHEDULE A

Equity Funding Amount

Investor	Number of Rollover Contribution Shares	Equity Funding Amount
Lonnie C. Poole, III	250,000	$9,500,000.00

EX-7.05 6 rsexh7_05.htm S. POOLE ROLLOVER EQUITY COMMITMENT LETTER rsexh7_05.htm

Exhibit 7.05

December 17, 2007

STRICTLY CONFIDENTIAL

Marlin HoldCo LP

c/o Macquarie Securities (USA) Inc.

125 West 55th Street, 9th Floor

New York, NY 10019

Gentlemen:

No (a) direct or indirect holder of any equity interests or securities of any party hereto (whether such holder is a partner (limited or general), member, stockholder, or otherwise), (b) Affiliate of any party hereto, or (c) director, officer, partner (limited or general), member, stockholder, employee, representative, family member or agent of any party hereto, any of such party’s respective Affiliates or any such direct or indirect holder of any equity interests or securities of any such party (collectively, the “Party Affiliates”) shall have any liability or obligation of any nature whatsoever in connection with or under this letter or the transactions contemplated hereby, and each party hereto hereby waives and releases all claims against such Party Affiliates related to any such liability or obligation.

No modification of this letter shall be binding upon or enforceable against any party hereto without the written approval of such party.

[SIGNATURE PAGES FOLLOW]

Very truly yours,


/s/ Scott J. Poole
Scott J. Poole

Accepted and agreed as of

the date first above written:

MARLIN HOLDCO LP, by its General Partner, Marlin HoldCo GP, LLC

By:	/s/ Jim W. Perry
	Name: Jim W. Perry
	Title: Vice President

SCHEDULE A

Equity Funding Amount

Investor	Number of Rollover Contribution Shares	Equity Funding Amount
Scott J. Poole	500,000	$19,000,000.00

EX-7.06 7 rsexh7_06.htm PERRY ROLLOVER EQUITY COMMITMENT LETTER rsexh7_06.htm

Exhibit 7.06

December 17, 2007

STRICTLY CONFIDENTIAL

Marlin HoldCo LP

c/o Macquarie Securities (USA) Inc.

125 West 55th Street, 9th Floor

New York, NY 10019

Gentlemen:

No (a) direct or indirect holder of any equity interests or securities of any party hereto (whether such holder is a partner (limited or general), member, stockholder, or otherwise), (b) Affiliate of any party hereto, or (c) director, officer, partner (limited or general), member, stockholder, employee, representative, family member or agent of any party hereto, any of such party’s respective Affiliates or any such direct or indirect holder of any equity interests or securities of any such party (collectively, the “Party Affiliates”) shall have any liability or obligation of any nature whatsoever in connection with or under this letter or the transactions contemplated hereby, and each party hereto hereby waives and releases all claims against such Party Affiliates related to any such liability or obligation.

No modification of this letter shall be binding upon or enforceable against any party hereto without the written approval of such party.

[SIGNATURE PAGES FOLLOW]

Very truly yours,


/s/ Jim W. Perry
Jim W. Perry

Accepted and agreed as of

the date first above written:

MARLIN HOLDCO LP, by its General Partner, Marlin HoldCo GP, LLC

By:	/s/ Jim W. Perry
	Name: Jim W. Perry
	Title: Vice President

SCHEDULE A

Equity Funding Amount

Investor	Number of Rollover Contribution Shares	Equity Funding Amount
Jim W. Perry	383,064	$14,556,432.00

EX-7.07 8 rsexh7_07.htm L. POLLE GRANTOR TRUST ROLLOVER COMM. LTR. rsexh7_07.htm

Exhibit 7.07

December 17, 2007

STRICTLY CONFIDENTIAL

Marlin HoldCo LP

c/o Macquarie Securities (USA) Inc.

125 West 55th Street, 9th Floor

New York, NY 10019

Gentlemen:

No (a) direct or indirect holder of any equity interests or securities of any party hereto (whether such holder is a partner (limited or general), member, stockholder, or otherwise), (b) Affiliate of any party hereto, or (c) director, officer, partner (limited or general), member, stockholder, employee, representative, family member or agent of any party hereto, any of such party’s respective Affiliates or any such direct or indirect holder of any equity interests or securities of any such party (collectively, the “Party Affiliates”) shall have any liability or obligation of any nature whatsoever in connection with or under this letter or the transactions contemplated hereby, and each party hereto hereby waives and releases all claims against such Party Affiliates related to any such liability or obligation.

No modification of this letter shall be binding upon or enforceable against any party hereto without the written approval of such party.

[SIGNATURE PAGES FOLLOW]

Very truly yours,

LONNIE C. POOLE, JR. GRANTOR TRUST DATED MAY 1, 1995

By:	/s/ Lonnie C. Poole, III
	Name: Lonnie C. Poole, III
	Title: Trustee


By:	/s/ Scott J. Poole
	Name: Scott J. Poole
	Title: Trustee

Accepted and agreed as of

the date first above written:

MARLIN HOLDCO LP, by its General Partner, Marlin HoldCo GP, LLC

By:	/s/ Jim W. Perry
	Name: Jim W. Perry
	Title: Vice President

SCHEDULE A

Equity Funding Amount

Investor	Number of Rollover Contribution Shares	Equity Funding Amount
Lonnie C. Poole, Jr. Grantor Trust (dated May 1, 1995)	1,741,729	$66,185,702.00

EX-7.08 9 rsexh7_08.htm TAILWALKER ROLLOVER EQUITY COMM. LTR. rsexh7_08.htm

Exhibit 7.08

December 17, 2007

STRICTLY CONFIDENTIAL

Marlin HoldCo LP

c/o Macquarie Securities (USA) Inc.

125 West 55th Street, 9th Floor

New York, NY 10019

Gentlemen:

No (a) direct or indirect holder of any equity interests or securities of any party hereto (whether such holder is a partner (limited or general), member, stockholder, or otherwise), (b) Affiliate of any party hereto, or (c) director, officer, partner (limited or general), member, stockholder, employee, representative, family member or agent of any party hereto, any of such party’s respective Affiliates or any such direct or indirect holder of any equity interests or securities of any such party (collectively, the “Party Affiliates”) shall have any liability or obligation of any nature whatsoever in connection with or under this letter or the transactions contemplated hereby, and each party hereto hereby waives and releases all claims against such Party Affiliates related to any such liability or obligation.

No modification of this letter shall be binding upon or enforceable against any party hereto without the written approval of such party.

[SIGNATURE PAGES FOLLOW]

Very truly yours,

LONNIE C. POOLE, III IRREVOCABLE TRUST (TAILWALKER NON-GST TRUST)

By:	/s/ Scott J. Poole
	Name: Scott J. Poole
	Title: Trustee

Accepted and agreed as of

the date first above written:

MARLIN HOLDCO LP, by its General Partner, Marlin HoldCo GP, LLC

By:	/s/ Jim W. Perry
	Name: Jim W. Perry
	Title: Vice President

SCHEDULE A

Equity Funding Amount

Investor	Number of Rollover Contribution Shares	Equity Funding Amount
Lonnie C. Poole, III Irrevocable Trust (Tailwalker Non-GST Trust)	407,110	$15,470,180.00

EX-7.09 10 rsexh7_09.htm TAILWALKER TRUST ROLLOVER EQUITY COMM. LTR. rsexh7_09.htm

Exhibit 7.09

December 17, 2007

STRICTLY CONFIDENTIAL

Marlin HoldCo LP

c/o Macquarie Securities (USA) Inc.

125 West 55th Street, 9th Floor

New York, NY 10019

Gentlemen:

No (a) direct or indirect holder of any equity interests or securities of any party hereto (whether such holder is a partner (limited or general), member, stockholder, or otherwise), (b) Affiliate of any party hereto, or (c) director, officer, partner (limited or general), member, stockholder, employee, representative, family member or agent of any party hereto, any of such party’s respective Affiliates or any such direct or indirect holder of any equity interests or securities of any such party (collectively, the “Party Affiliates”) shall have any liability or obligation of any nature whatsoever in connection with or under this letter or the transactions contemplated hereby, and each party hereto hereby waives and releases all claims against such Party Affiliates related to any such liability or obligation.

No modification of this letter shall be binding upon or enforceable against any party hereto without the written approval of such party.

[SIGNATURE PAGES FOLLOW]

Very truly yours,

LONNIE C. POOLE, III IRREVOCABLE TRUST (TAILWALKER TRUST)

By:	/s/ Scott J. Poole
	Name: Scott J. Poole
	Title: Trustee

Accepted and agreed as of

the date first above written:

MARLIN HOLDCO LP, by its General Partner, Marlin HoldCo GP, LLC

By:	/s/ Jim W. Perry
	Name: Jim W. Perry
	Title: Vice President

SCHEDULE A

Equity Funding Amount

Investor	Number of Rollover Contribution Shares	Equity Funding Amount
Lonnie C. Poole, III Irrevocable Trust (Tailwalker Trust)	25,736	$977,968.00

EX-7.10 11 rsexh7_10.htm AMENDMENT TO DEBT COMM. LTR. rsexh7_10.htm

Exhibit 7.10

As of December 17, 2007

GS Direct LLC

Macquarie Infrastructure Partners International, L.P.

Macquarie Infrastructure Partners Canada, L.P.

Macquarie Infrastructure Partners A, L.P.

125 West 55^th Street, 22^nd Floor

New York, NY 10019

Highly Confidential

Attn: Chris Leslie

Gerald Cardinale

Re: Commitment Letter dated as of October 22, 2007 (together with the Term Sheet attached thereto, the “Commitment Letter”) addressed to GS Direct LLC, Macquarie Infrastructure Partners International, L.P., Macquarie Infrastructure Partners Canada, L.P. and Macquarie Infrastructure Partners A, L.P. in connection with $455 Million of Senior Secured Credit Facilities relating to Project Marlin.

Ladies and Gentlemen:

Reference is made to the Commitment Letter. Capitalized terms used in this letter and not otherwise defined herein are used with the meanings ascribed to them in the Commitment Letter. The Commitment Parties, MIP and Direct LLC hereby agree as follows:

1. The sentence of the Commitment Letter containing the definition of “Termination Date” is hereby amended in full to read as follows:

“Thereafter, all commitments and undertakings of the Commitment Parties hereunder will expire on the earliest to occur (the “Termination Date”) of (a) the date that is the termination date of the Merger Agreement (as extended by agreement of the parties thereto), (b) your abandonment of the Merger or the closing of the Merger, (c) the Closing Date, (d) the “End Date” as defined in the Merger Agreement draft dated the date hereof and (e) June 30, 2008.”

2. Clause xiii of Paragraph 29 of the Term Sheet is hereby amended in full to read as follows:

“xiii. certified copies of the Merger Agreement and material documents relating thereto and no amendments or waivers thereof with respect to matters of material interest to the Lenders not consented to by the Administrative Agent (such consent not to be unreasonably withheld) (the granting of consent by Holdco pursuant to Section 5.1(a)(x) or 5.1(b) or similar provisions of the Merger Agreement or otherwise to actions otherwise prohibited by Article V of the Merger Agreement shall be deemed a waiver thereof for purposes of this clause xiii).”

3. Paragraph 42 of the Term Sheet is hereby amended in full to read as follows:

“35% of the Applicable Margin (that would apply to Libor advances) payable on the Senior Facilities. Payable on the undrawn portion of the Senior Facilities outstanding on any Interest Payment Date. The Commitment Fee will accrue in arrears from the Financial Closing Date.”

4. For all purposes of the Commitment Letter and the Fee Letter, the term “Merger Agreement” shall mean and refer to the Agreement and Plan of Merger dated the date hereof among Marlin HoldCo LLC, a Delaware limited liability company, Marlin MergeCo Inc., a North Carolina corporation and Waste Industries USA, Inc., a North Carolina corporation.

On and after the effectiveness of this letter, each reference in the Commitment Letter to “this Commitment Letter”, “this letter’, “hereunder”, “hereof” or words of like import referring to the Commitment Letter, and each reference in the Fee Letter or elsewhere to “the Commitment Letter”, “thereunder”, “thereof” or words of like import referring to the Commitment Letter, shall mean and be a reference to the Commitment Letter, as amended by this letter.

The Commitment Letter, as specifically amended by this letter, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. The execution, delivery and effectiveness of this letter shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any of the Commitment Parties under the Commitment Letter or the Fee Letter.

This letter is subject to the confidentiality provisions contained in section 5 of the Commitment Letter.

This letter may be executed in counterparts which, taken together, shall constitute an original. Delivery of an executed counterpart of this letter by facsimile or other electronic transmission (i.e. “pdf” or “tiff”) shall be effective as delivery of a manually executed counterpart thereof.

THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

Very truly yours,

	Wachovia Bank N.A., London Branch

	By:	/s/ Thomas K. Barke
		Name: Thomas K. Barke
		Title: Managing Director

	HSBC Securities (USA) Inc.

	By:	/s/ Duncan Cairo
		Name: Duncan Cairo
		Title: Managing Director

	HSBC Bank USA, National Association

	By:	/s/ Michael Whalen
		Name: Michael Whalen
		Title: Managing Director

Accepted and Agreed

as of the date first above written:

GS Direct LLC
By: /s/ Gerald J. Cardinale
Name: Gerald J. Cardinale
Title: Managing Director
Macquarie Infrastructure Partners A L.P. by its General Partner, Macquarie Infrastructure Partners U.S. GP LLC, by its Manager and Attorney-in-Fact, Macquarie Infrastructure Partners Inc.

By: /s/ Mark Wong
Name: Mark Wong
Title: Treasurer


By: /s/ Chris Leslie
Name: Chris Leslie
Title: President


Macquarie Infrastructure Partners International L.P. by its General Partner, Macquarie Infrastructure Partners U.S. GP LLC, by its Manager and Attorney- in-Fact, Macquarie Infrastructure Partners Inc.

By: /s/ Mark Wong
Name: Mark Wong
Title: Treasurer


By: /s/ Chris Leslie
Name: Chris Leslie
Title President

Macquarie Infrastructure Partners Canada, L.P. by its General Partner, Macquarie Infrastructure Partners Canada GP LTD., by its Manager and Attorney-in-Fact, Macquarie Infrastructure Partners Inc.

By: /s/ Mark Wong
Name: Mark Wong
Title: Treasurer


By: /s/ Chris Leslie
Name: Chris Leslie
Title: President

EX-7.11 12 rsexh7_11.htm JOINDER AGREEMENT rsexh7_11.htm

Exhibit 7.11

JOINDER AGREEMENT

THIS JOINDER AGREEMENT (the “Joinder Agreement”) is made and entered into by each of the DAMAS II CHARITABLE REMAINDER UNITRUST U/A/D DECEMBER 13, 2007 (the “Damas Trust”) and THE PERRY 2007 IRREVOCABLE TRUST U/A/D DECEMBER 13, 2007 (the “Perry Trust” and collectively with the Damas Trust, the “Joinder Parties”) so that they may join in and become bound and obligated by the terms of that certain Support Agreement dated October 22, 2007 (the “Agreement”) by and among those parties identified on the signature page attached thereto. Capitalized terms not otherwise defined in this Joinder Agreement shall have the same meanings as set forth in the Agreement.

WHEREAS, Lonnie C. Poole, Jr. has made a Permitted Transfer of 700,000 shares to the Damas Trust in a transaction which is a Permitted Transfer as contemplated under clause (a) of the second sentence of Section 2(b) of the Agreement (the “Poole Transfer”); and

WHEREAS, Jim W. Perry has made a Permitted Transfer of 50,000 shares to the Perry Trust in a transaction which is a Permitted Transfer as contemplated under clause (a) of the second sentence of Section 2(b) of the Agreement (the “Perry Transfer”); and

WHEREAS, the Joinder Parties are executing this Agreement in order to cause the Poole Transfer and the Perry Transfer to qualify as a Permitted Transfer under such terms of the Agreement; and

WHEREAS, the Joinder Parties desire to be bound by and enjoy the benefits of the Agreement.

NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements contained herein, the parties hereto agree as follows:

1. Joinder. The Joinder Parties shall be deemed a Party to, and subject to any and all rights and obligations that a Shareholder Party has with respect to and under, the Agreement, and each of the Joinder Parties shall be bound by the terms thereby.

2. Representations and Warranties. Each of the Joinder Parties hereby represents and warrants that each of the representations and warranties contained in Article III (Representations and Warranties of the Parties) of the Agreement applicable to it is true and correct on and as of the date hereof as if made on and as of such date.

3. Effect of Agreement. The Agreement remains in full force and effect and enforceable in accordance with its terms. All of the terms of the Agreement are incorporated herein by reference and made a part hereof.

4. Counterparts. The Parties hereto may execute this Agreement in one or more counterparts, each of which constitutes an original copy of this Joinder Agreement, and all of which collectively constitute only one agreement. This signatures of all of the Parties hereto need not appear on the same counterpart.

[Signature Page Attached]

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

JOINDER PARTIES:

DAMAS II CHARITABLE REMAINDER

UNITRUST U/A/D DECEMBER 13, 2007

By: /s/ Robert Hall

Name: Robert Hall

Title: Trustee

PERRY 2007 IRREVOCABLE TRUST

U/A/D DECEMBER 13, 2007

By: /s/ Rebecca Elliott Perry

Name: Rebecca Elliott Perry

Title: Trustee

EX-7.12 13 rsexh7_12.htm AGMT AND PLAN OF MERGER rsexh7_12.htm

EXHIBIT 7.12

EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

among

MARLIN HOLDCO LP,

MARLIN MERGECO INC.

and

WASTE INDUSTRIES USA, INC.

Dated as of December 17, 2007

TABLE OF CONTENTS

Page

Article I

THE MERGER

Section 1.1	The Merger	1

Section 1.2	Closing	1

Section 1.3	Effective Time	2

Section 1.4	Effects of the Merger	2

Section 1.5	Articles of Incorporation and Bylaws of the Surviving Corporation	2

Section 1.6	Directors	2

Section 1.7	Officers	2

Article II

CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES

Section 2.1	Effect on Capital Stock	2

Section 2.2	Exchange of Certificates	3

Section 2.3	Company Stock Options	5

Section 2.4	Timing of Equity Rollover	6

Section 2.5	Dissenters’ Rights	6

Article III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Section 3.1	Qualification, Organization, Subsidiaries, etc	7

Section 3.2	Capital Stock	10

Section 3.4	Corporate Authority Relative to this Agreement; No Violation	10

Section 3.5	Reports and Financial Statements	11

Section 3.6	Internal Controls and Procedures	12

Section 3.7	No Undisclosed Liabilities	12

Section 3.8	Compliance with Law; Permits	13

Section 3.9	Environmental Laws and Regulations	13

Section 3.10	Employee Benefit Plans	15

Section 3.11	Interested Party Transactions	17

Section 3.12	Absence of Certain Changes or Events	17

Section 3.13	Investigations; Litigation	17

Section 3.14	Proxy Statement; Other Information	18

Section 3.15	Tax Matters	18

Section 3.16	Labor Matters	20

Section 3.17	Intellectual Property	20

Section 3.18	Property	21

Section 3.19	Insurance	21

Section 3.20	Opinion of Financial Advisor	21

Section 3.21	Required Vote of the Company Shareholders	21

Section 3.22	Material Contracts	21

Section 3.23	Finders or Brokers	23

Section 3.24	State Takeover Statutes	23

Section 3.25	No Other Representations or Warranties	23

Article IV

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Section 4.1	Qualification; Organization	23

Section 4.2	Corporate Authority Relative to this Agreement; No Violation	24

Section 4.3	Proxy Statement; Other Information	25

Section 4.4	Financing	25

Section 4.5	Ownership and Operations of Merger Sub	26

Section 4.6	Finders or Brokers	26

Section 4.7	Guarantee	26

Section 4.8	No Other Representations or Warranties	26

Article V

COVENANTS AND AGREEMENTS

Section 5.1	Conduct of Business by the Company	26

Section 5.2	Investigation	29

Section 5.3	No Solicitation	30

Section 5.4	Filings; Other Actions	33

Section 5.5	Efforts	34

Section 5.6	Takeover Statute	36

Section 5.7	Public Announcements	36

Section 5.8	Indemnification and Insurance	36

Section 5.9	Financing	38

Section 5.10	Shareholder Litigation	40

Section 5.11	Notification of Certain Matters	40

Section 5.12	Rule 16b-3	41

Section 5.13	Control of Operations	41

Article VI

CONDITIONS TO THE MERGER

Section 6.1	Conditions to Each Party’s Obligation to Effect the Merger	41

Section 6.2	Conditions to Obligation of the Company to Effect the Merger	42

Section 6.3	Conditions to Obligation of Parent and Merger Sub to Effect the Merger	42

Article VII

TERMINATION

Section 7.1	Termination	43

Section 7.2	Termination Fee	45

Section 7.3	Frustration of Closing Conditions	48

Article VIII

MISCELLANEOUS

Section 8.1	No Survival of Representations and Warranties	49

Section 8.2	Expenses	49

Section 8.3	Counterparts; Effectiveness	49

Section 8.4	Governing Law	49

Section 8.5	Jurisdiction; Enforcement	49

Section 8.6	WAIVER OF JURY TRIAL	50

Section 8.7	Notices	51

Section 8.8	Assignment; Binding Effect	52

Section 8.9	Severability	52

Section 8.10	Entire Agreement; No Third-Party Beneficiaries	53

Section 8.11	Amendments; Waivers	53

Section 8.12	Headings	53

Section 8.13	Interpretation	53

Section 8.14	No Recourse	54

Section 8.15	Certain Definitions	54

AGREEMENT AND PLAN OF MERGER, dated as of December 17, 2007 (this “Agreement”), among Marlin HoldCo LP, a Delaware limited partnership (“Parent”), Marlin MergeCo Inc., a North Carolina corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and Waste Industries USA, Inc., a North Carolina corporation (the “Company”).

W I T N E S S E T H :

WHEREAS, the Board of Directors of the Company, acting upon the unanimous recommendation of the Special Committee, has unanimously determined that it is in the best interests of the holders of Company Common Stock other than any Buyer Group Party (the “Public Shareholders”) for Merger Sub to merge with and into the Company (the “Merger”) in accordance with the North Carolina Business Corporation Act, as amended (the “NCBCA”), and upon the terms of and subject to the conditions set forth herein; and

WHEREAS, the Board of Directors of the Company has approved and adopted this Agreement and has determined that the consideration to be paid for each share of Company Common Stock upon consummation of the Merger is fair and has recommended that the Public Shareholders approve this Agreement and the transactions contemplated hereby; and

WHEREAS, the board of directors of Merger Sub has approved and adopted this Agreement and Parent has authorized and approved this Agreement; and

WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and the transactions contemplated by this Agreement and also to prescribe certain conditions to the Merger as specified herein.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, Parent, Merger Sub and the Company hereby agree as follows:

ARTICLE I

THE MERGER

Section 1.1 The Merger. At the Effective Time, upon the terms and subject to the conditions set forth in this Agreement and in accordance with the applicable provisions of the NCBCA, Merger Sub shall be merged with and into the Company, whereupon the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving company in the Merger (the “Surviving Corporation”) and a wholly owned subsidiary of Parent.

Section 1.2 Closing. The closing of the Merger (the “Closing”) shall take place at the offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York at 10:00 a.m., local time, on a date to be specified by the parties (the “Closing Date” which shall be no later than the second Business Day after the satisfaction or (to the extent permitted by this Agreement and applicable Law) waiver of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by this Agreement and applicable Law, waiver of such conditions), or such other place, date and time as the Company and Parent may agree in writing, unless this Agreement has theretofore terminated pursuant to its terms.

Section 1.3 Effective Time. On the Closing Date, the Company shall cause articles of merger (the “Articles of Merger”) to be filed with the Secretary of State of the State of North Carolina in accordance with Section 55-11-05 of the NCBCA, in such form as required by and executed in accordance with the relevant provisions of the NCBCA. The Merger shall become effective at the time of such filing or at such later time as may be agreed by the parties in writing and specified in the Articles of Merger (such time as the Merger becomes effective is referred to herein as the “Effective Time”).

Section 1.4 Effects of the Merger. The Merger shall have the effects set forth in this Agreement and the applicable provisions of the NCBCA.

Section 1.5 Articles of Incorporation and Bylaws of the Surviving Corporation.

(a) The articles of incorporation of the Company, as in effect immediately prior to the Effective Time, shall be amended in the Merger to be in the form of the articles of incorporation of Merger Sub (as in effect immediately prior to the Effective Time except that Article I shall be amended to read “The name of the corporation is Waste Industries USA, Inc.”) and, as so amended, such articles of incorporation shall be the articles of incorporation of the Surviving Corporation until thereafter amended in accordance with the provisions thereof and applicable Law, in each case consistent with the obligations set forth in Section 5.8.

(b) The bylaws of Merger Sub, as in effect at the Effective Time, shall be the bylaws of the Surviving Corporation until thereafter amended in accordance with the provisions thereof and applicable Law, in each case consistent with the obligations set forth in Section 5.8.

Section 1.6 Directors. The directors of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation and shall hold office until their respective successors are duly elected and qualified, or their earlier death, resignation or removal.

Section 1.7 Officers. The officers of the Company immediately prior to the Closing Date shall be the initial officers of the Surviving Corporation and shall hold office until their respective successors are duly appointed and qualified, or their earlier death, resignation or removal.

ARTICLE II

CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES

Section 2.1 Effect on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Merger Sub or the holders of any securities of the Company or Merger Sub:

(a) Conversion of Company Common Stock. Subject to Sections 2.1(b) and 2.1(d), each issued and outstanding share of common stock, no par value per share, of the Company outstanding immediately prior to the Effective Time (such shares, collectively, “Company Common Stock,” and each, a “Share”), other than any Cancelled Shares (to the extent provided in Section 2.1(b)) and any Shares held by Dissenting Shareholders, if any, shall thereupon be converted automatically into and shall thereafter represent the right to receive $38.00 in cash (the “Merger Consideration”). All Shares that have been converted into the right to receive the Merger Consideration as provided in this Section 2.1(a) shall be automatically cancelled and retired and shall cease to exist, and each holder of a certificate (or Shares in book-entry form) which immediately prior to the Effective Time represented such Shares shall cease to have any rights with respect to such Shares other than the right to receive the Merger Consideration.

(b) Parent and Merger Sub-Owned Shares. Each Share that is owned, directly or indirectly, by Merger Sub immediately prior to the Effective Time (including each Share contributed to Parent pursuant to the Rollover Commitments and thereafter contributed to Merger Sub) or held by the Company or any of its Subsidiaries immediately prior to the Effective Time (in each case, other than any such Shares held on behalf of third parties) (the “Cancelled Shares”) shall, by virtue of the Merger and without any action on the part of the holder thereof, (i) be cancelled and retired, (ii) not be converted into the right to receive the Merger Consideration and (iii) cease to exist, and no consideration shall be delivered in exchange for such cancellation and retirement.

(c) Conversion of Merger Sub Common Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, each share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation and such shares shall constitute the only outstanding shares of capital stock of the Surviving Corporation. From and after the Effective Time, all certificates representing the common stock of Merger Sub shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Corporation into which they were converted in accordance with the immediately preceding sentence.

(d) Adjustments. If at any time during the period between the date of this Agreement and the Effective Time, any change in the outstanding shares of capital stock of the Company, or securities convertible or exchangeable into or exercisable for shares of capital stock, shall occur as a result of any reclassification, recapitalization, stock split (including a reverse stock split) or subdivision or combination, exchange or readjustment of shares, or any stock dividend or stock distribution with a record date during such period, merger, issuer tender or exchange offer, or other similar transaction, the Merger Consideration shall be equitably adjusted to reflect such change; provided that nothing herein shall be construed to permit the Company to take any action with respect to its securities that is prohibited or not expressly permitted by the terms of this Agreement.

Section 2.2 Exchange of Certificates.

(a) Paying Agent. At or prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with a U.S. bank or trust company that shall be appointed by Parent to act as a paying agent hereunder (the “Paying Agent”), in trust for the benefit of holders of the Shares, cash in U.S. dollars sufficient to pay the aggregate Merger Consideration in accordance with Section 2.1 hereof (such cash being hereinafter referred to as the “Exchange Fund”).

(b) Payment Procedures.

(i) As soon as reasonably practicable after the Effective Time and in any event not later than the fifth Business Day following the Effective Time, the Paying Agent shall mail to each holder of record of Shares whose Shares were converted into the Merger Consideration pursuant to Section 2.1, (A) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the certificates that immediately prior to the Effective Time represented Shares (“Certificates”) shall pass, only upon delivery of Certificates to the Paying Agent and shall be in such form and have such other provisions as Parent shall reasonably determine) and (B) instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) or non-certificated Shares represented by book-entry (“Book-Entry Shares”) in exchange for the Merger Consideration.

(ii) Upon surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares to the Paying Agent together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may customarily be required by the Paying Agent, the holder of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor a check in an amount equal to the product of (x) the number of Shares represented by such holder’s properly surrendered Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares multiplied by (y) the Merger Consideration. No interest will be paid or accrued on any amount payable upon due surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares. In the event of a transfer of ownership of Shares that is not registered in the transfer or stock records of the Company, a check for any cash to be paid upon due surrender of the Certificate formerly representing such Shares may be paid to such a transferee if such Certificate is presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer or other Taxes have been paid or are not applicable.

(iii) The Surviving Corporation, Parent and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable under this Agreement to any holder of Shares or holder of Company Stock Options, such amounts as are required to be withheld or deducted under the Internal Revenue Code of 1986 (the “Code”), or any provision of U.S. state or local or foreign Tax Law with respect to the making of such payment. To the extent that amounts are so withheld or deducted and paid over to the applicable Governmental Entity, such withheld or deducted amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares or holder of the Company Stock Options, in respect of which such deduction and withholding were made.

(c) Closing of Transfer Books. At the Effective Time, the stock transfer books of the Company shall be closed, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or Parent for transfer, they shall be marked “cancelled” and exchanged for a check in the proper amount pursuant to and subject to the requirements of this Article II.

(d) Termination of Exchange Fund. Any portion of the Exchange Fund (including the proceeds of any investments thereof) that remains undistributed to the former holders of Shares for one year after the Effective Time shall be delivered to the Surviving Corporation, and any former holders of Shares who have not surrendered their Shares in accordance with this Section 2.2 shall thereafter look only to the Surviving Corporation for payment of their claim for the Merger Consideration, without any interest thereon, upon due surrender of their Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares; provided, that such former holders shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporation under applicable Laws.

(e) No Liability. Notwithstanding anything herein to the contrary, none of the Company, Parent, Merger Sub, the Surviving Corporation, the Paying Agent or any other person shall be liable to any former holder of Shares for any amount properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

(f) Investment of Exchange Fund. The Paying Agent shall invest all cash included in the Exchange Fund as reasonably directed by Parent; provided, however, that any investment of such cash shall be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government. Any interest and other income resulting from such investments shall be paid to the Surviving Corporation pursuant to Section 2.2(d).

(g) Lost Certificates. In the case of any Certificate that has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Paying Agent, the provision or posting by such person of an indemnity agreement or, at the election of Parent or the Paying Agent, a bond in reasonable amount as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate a check in the amount of the number of Shares represented by such lost, stolen or destroyed Certificate multiplied by the Merger Consideration.

Section 2.3 Company Stock Options. Prior to the Effective Time, the Company shall take all actions necessary to provide that, except as otherwise agreed by Parent and the holder thereof in accordance with the Rollover Commitment, each option outstanding immediately prior to the Effective Time (whether or not then vested or exercisable) that represents the right to acquire shares of Company Common Stock (each, a “Company Stock Option”) shall be cancelled and terminated and converted at the Effective Time into the right to receive a cash amount equal to the Option Consideration for each share of Company Common Stock then subject to the Company Stock Option. Except as otherwise provided below, the Option Consideration shall be paid as soon after the Closing Date as shall be practicable. Prior to the Effective Time, the Company shall make any amendments to the terms of the Company Stock Plans and obtain any consents from holders of Company Stock Options that, in each case, are necessary to give effect to the transactions contemplated by this Section 2.3 and, notwithstanding anything to the contrary, payment may be withheld in respect of any Company Stock Option until any necessary consents are obtained. Without limiting the foregoing, except as otherwise agreed by Parent, the Company shall take all actions necessary to ensure that the Company will not at the Effective Time be bound by any options, stock appreciation rights, deferred stock units, warrants or other rights or agreements which would entitle any Person, other than Parent and its Subsidiaries, to own any capital stock of the Surviving Corporation or to receive any payment in respect thereof. Prior to the Effective Time, the Company shall take all actions necessary to terminate all its Company Stock Plans, such termination to be effective at or before the Effective Time. For purposes of this Agreement, “Option Consideration” means, with respect to any share of Company Common Stock issuable under a particular Company Stock Option, an amount equal to the excess, if any, of (i) the Merger Consideration per share of Company Common Stock over (ii) the exercise price payable in respect of such share of Company Common Stock issuable under such Company Stock Option. For purposes of this Agreement, “Company Stock Plans” shall mean the following plans of the Company: the 1997 Stock Option Plan and the 2007 Long Term Incentive Plan.

Section 2.4 Timing of Equity Rollover. For the avoidance of doubt, the parties acknowledge and agree that the contribution of Shares to Parent pursuant to the Rollover Commitments shall be deemed to occur immediately prior to the Effective Time and prior to any other above-described event.

Section 2.5 Dissenters’ Rights.

(a) Notwithstanding any other provision of this Agreement, shares of Company Common Stock that are outstanding immediately prior to the Effective Time and which are held by a holder of shares of Company Common Stock (including any Book-Entry Shares or shares held by holders that have delivered to the Company effective affidavits of loss in lieu of Certificates) who shall have:

(i) duly given written notice to the Company, prior to the taking of the vote by the Company’s shareholders at the Company Meeting, of such holder’s intent to dissent from the Merger and demand payment for such shares pursuant to and in accordance with Article 13 of the NCBCA (the “Dissenters’ Rights Provisions”);

(ii) not voted such shares in favor of the Merger; and

(iii) not withdrawn, waived or otherwise lost or forfeited such holder’s dissenter’s rights under the Dissenter’s Rights Provisions prior to the Effective Time (collectively, the “Dissenting Shares”; and the holder of any such Dissenting Shares is referred to as a “Dissenting Shareholder”),

shall not be converted into or represent the right to receive any part of the Merger Consideration. Such Dissenting Shares shall instead be converted into the right to receive from the Surviving Corporation payment of the “fair value” thereof in accordance with the Dissenters’ Rights Provisions.

(b) All Dissenting Shares held by holders who after the Effective Time shall have failed to perfect properly or who effectively shall have withdrawn, waived or otherwise lost or forfeited their dissenters’ rights under such Dissenters’ Rights Provisions shall thereupon cease to be Dissenting Shares and shall instead represent the right to receive, without any interest or dividend thereon, the Merger Consideration, upon surrender, in the manner provided in Section 2.1(a), of the Certificate or Certificates (or effective affidavits in lieu of loss thereof) or Book-Entry Shares that formerly evidenced such shares of Company Common Stock.

(c) The Company hereby represents that the Board of Directors of the Company, in connection with its approval and adoption of the Agreement, has duly adopted a resolution providing that holders of Shares shall be entitled to rights of dissent and appraisal pursuant to Article 13 of the NCBCA in connection with the consummation of the Merger.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as disclosed in the disclosure letter delivered by the Company to Parent immediately prior to the execution of this Agreement (the “Company Disclosure Letter”), it being understood and agreed that each item in a particular section of the Company Disclosure Letter applies only to such section and to any other section to which its relevance is reasonably apparent on the face of such disclosure, the Company represents and warrants to Parent and Merger Sub as follows:

Section 3.1 Qualification, Organization, Subsidiaries, etc.

(a) Each of the Company and its Subsidiaries is a legal entity duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of organization. Each of the Company and its Subsidiaries has all requisite corporate, limited liability company or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted.

(b) Each of the Company and its Subsidiaries is qualified to do business and is in good standing in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

(c) The Company has made available to Parent correct and complete copies of its articles of incorporation and bylaws (the “Company Charter Documents”) and correct and complete copies of the articles of incorporation and bylaws (or comparable organizational documents) of each of its Subsidiaries (the “Subsidiary Documents”), in each case as amended to the date of this Agreement. All such Company Charter Documents and Subsidiary Documents are in full force and effect and neither the Company nor any of its Subsidiaries is in violation of any of their respective provisions. The Company has made available to Parent and its representatives correct and complete copies of the minutes (or, in the case of minutes that have not yet been finalized, drafts thereof) of all meetings of shareholders, the Board of Directors of the Company and each committee of the Board of Directors of the Company and each of its Subsidiaries held since January 1, 2006.

(d) As used in this Agreement, any reference to any fact, circumstance, event, change, effect or occurrence having a “Company Material Adverse Effect” means any fact, circumstance, event, change, effect or occurrence that, individually or in the aggregate with all other facts, circumstances, events, changes, effects or occurrences, has or would reasonably be expected to have a material adverse effect on the assets, business, results of operation or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole; provided, however, that in no event shall any of the following facts, circumstances, events, changes, effects, or occurrences, alone or in combination, be deemed to constitute, or be taken into account, in determining whether there has been, or would be, a Company Material Adverse Effect: (A) any change in general economic, business, financial, credit or market conditions that does not disproportionately affect the Company and its Subsidiaries, taken as a whole, relative to other participants in the waste collection and disposal industry in the United States; (B) any action taken by the Company to comply with its obligations under this Agreement; (C) any occurrence generally affecting the waste collection and disposal industry that does not disproportionately affect the Company and its Subsidiaries, taken as a whole, relative to other participants in the waste collection and disposal industry in the United States; (D) any change in GAAP or applicable Law or the interpretation thereof that does not disproportionately affect the Company and its Subsidiaries, taken as a whole, relative to other participants in the waste collection and disposal industry in the United States; (E) any act of terrorism, war (whether or not declared), national disaster or any national or international calamity affecting the United States that does not disproportionately affect the Company and its Subsidiaries, taken as a whole, relative to other participants in the waste collection and disposal industry in the United States; (F) any failure to meet internal or published projections, forecasts or revenue or earnings predictions for any period (provided that the underlying causes of such failures may be taken into account); (G) any change in the price or trading volume of the Company Common Stock in and of itself (provided that the underlying causes of such change may be taken into account); (H) any loss of employees or customers resulting from the publication of the Agreement or the identity of Parent or any of its Affiliates as the acquirer of the Company; or (I) any action taken at the request of Parent or any of its Affiliates or mutually agreed to by the parties to this Agreement that, if taken without the consent of Parent, would have been prohibited by the terms of this Agreement.

Section 3.2 Capital Stock.

(a) The authorized capital stock of the Company consists of 80,000,000 shares of Company Common Stock, and 10,000,000 shares of Preferred Stock, par value $0.01 per share (“Company Preferred Stock”). As of November 30, 2007, (i) 14,167,005 shares of Company Common Stock were issued and outstanding, (ii) 1,600,000 shares of Company Common Stock were reserved for issuance under the Company Stock Plans, of which 202,910 shares of Company Common Stock were subject to outstanding options issued pursuant to such plans, no shares are outstanding pursuant to restricted stock awards under such plans and 32,489 shares are subject to outstanding deferred stock awards under such plans and (iii) no shares of Company Preferred Stock were issued or outstanding. Section 3.2(a) of the Company Disclosure Letter sets forth a correct and complete list, as of the date hereof, of all outstanding options or other rights to purchase or receive shares of Company Common Stock granted under the Company Stock Plans or otherwise, and for each such option or other right, the number of shares of Company Common Stock subject thereto, the terms of vesting, the grant and expiration dates and exercise price thereof and the name of the holder thereof. The Subsidiaries of the Company do not hold any shares of capital stock of the Company, or securities or obligations convertible or exchangeable into or exercisable for such capital stock. All outstanding shares of Company Common Stock, and all shares of Company Common Stock reserved for issuance as noted in clause (ii), when issued in accordance with the respective terms thereof, are or will be duly authorized, validly issued, fully paid and non-assessable and free of pre-emptive rights and issued in compliance with all applicable securities Laws. All Company Stock Options have an exercise price equal to no less than the fair market value of the underlying shares of Company Common Stock on the date of grant.

(b) Except as set forth in Section 3.2(a) above or as set forth in Section 3.2(b) of the Company Disclosure Letter, (i) the Company does not have any shares of its capital stock issued or outstanding other than shares of Company Common Stock that have become outstanding after November 30, 2007 upon exercise of Company Stock Options outstanding as of November 30, 2007, (ii) there are no outstanding subscriptions, options, warrants, calls, convertible securities or other similar rights, agreements or commitments relating to the issuance of capital stock or other equity interests to which the Company or any of its Subsidiaries is a party obligating the Company or any of its Subsidiaries to (A) issue, transfer or sell any shares of capital stock or other equity interests of the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or equity interests, (B) grant, extend or enter into any such subscription, option, warrant, call, convertible securities or other similar right, agreement or arrangement, (C) redeem or otherwise acquire any such shares of capital stock or other equity interests or (D) provide a material amount of funds to, or make any material investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary and (iii) neither the Company nor any of its Subsidiaries is subject to any agreement providing for the payment of amounts determined by reference to the value or appreciation of any equity securities of the Company.

(c) Neither the Company nor any of its Subsidiaries has outstanding bonds, debentures, notes or other obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the shareholders of the Company on any matter.

(d) Other than the Support Agreement and the Interim Investors Agreement, there are no shareholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or of which the Company is otherwise aware with respect to the voting of the capital stock or other equity interest of the Company or any of its Subsidiaries.

(e) No holder of securities in the Company or any of its Subsidiaries has any right to have such securities registered by the Company or any of its Subsidiaries, as the case may be.

(f) The Company does not have any shareholder rights plan in effect.

Section 3.3 Subsidiaries. Section 3.3 of the Company Disclosure Letter sets forth a complete and correct list of each Subsidiary of the Company, as well as the jurisdiction of organization and the ownership of outstanding equity interests (including partnership interests and limited liability company interests) of each such Subsidiary. All equity interests (including partnership interests and limited liability company interests) of the Company’s Subsidiaries held by the Company or any other Subsidiary have been duly and validly authorized and are validly issued, fully paid and non-assessable and were not issued in violation of any preemptive or similar rights, purchase option, call or right of first refusal or similar rights. All such equity interests are free and clear of any Liens or any other limitations or restrictions on such equity interests (including any limitation or restriction on the right to vote, pledge or sell or otherwise dispose of such equity interests).

Section 3.4 Corporate Authority Relative to this Agreement; No Violation.

(a) The Company has all requisite corporate power and authority to enter into this Agreement and, subject to receipt of the Company Shareholder Approval, to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the Merger and the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of the Company, acting upon the unanimous recommendation of the Special Committee, and, except for the Company Shareholder Approval, no other corporate proceedings on the part of the Company are necessary to authorize the consummation of the Merger and the transactions contemplated hereby. Each of the Special Committee and the Board of Directors of the Company, acting upon the unanimous recommendation of the Special Committee, determined that the Merger and the transactions contemplated hereby are fair to and in the best interests of the Public Shareholders, and approved and adopted this Agreement. As of the date hereof, each of the Special Committee and the Board of Directors of the Company, acting upon the unanimous recommendation of the Special Committee, has unanimously (as to those Board Members voting) resolved to recommend that the Company’s Public Shareholders approve this Agreement, the Merger and the transactions contemplated hereby, subject to the terms and conditions set forth herein (including the Special Committee’s recommendation, the “Recommendation”). This Agreement has been duly and validly executed and delivered by the Company, and assuming this Agreement constitutes the valid and binding agreement of Parent and Merger Sub, this Agreement constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).

(b) Other than in connection with or in compliance with (i) the provisions of the NCBCA, (ii) the Securities Exchange Act of 1934 (the “Exchange Act”), (iii) the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) and (iv) the approvals set forth on Section 3.4(b)(iv) of the Company Disclosure Letter (collectively, the “Company Approvals”), no authorization, consent or approval of, or filing with, any United States, foreign, federal, state, provincial or local governmental or regulatory agency, commission, court, body, entity or authority (each, a “Governmental Entity”) or other person is necessary, under applicable Law or otherwise, for the consummation of the transactions contemplated hereby, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or impair in any material respect the ability of the Company to perform its obligations hereunder.

(c) The execution and delivery by the Company of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not, (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of any benefit under, any loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, Company Permit, concession, franchise, right or license binding upon the Company or any of its Subsidiaries or result in the creation of any liens, claims, mortgages, encumbrances, pledges, security interests, equities or charges of any kind (each, a “Lien”) upon any of the properties or assets of the Company or any of its Subsidiaries, (ii) conflict with or result in any violation of any provision of the Company Charter Documents or Subsidiary Documents or (iii) conflict with or violate any applicable Laws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss, Lien or failure to obtain consent that would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.5 Reports and Financial Statements.

(a) The Company and its Subsidiaries have filed or furnished all forms, documents, statements and reports required to be filed or furnished prior to the date hereof by them with the Securities and Exchange Commission (the “SEC”) since January 1, 2006 (the forms, documents, statements and reports filed with or furnished to the SEC since January 1, 2006 and those filed or furnished with the SEC subsequent to the date of this Agreement, if any, including any amendments thereto, the “Company SEC Documents”). As of their respective dates, or, if amended, as of the date of the last such amendment prior to the date hereof, the Company SEC Documents complied, and each of the Company SEC Documents filed or furnished subsequent to the date of this Agreement will comply, in all material respects with the requirements of the Securities Act of 1933 (the “Securities Act”) and the Exchange Act, as the case may be, and complied or will comply, as applicable, in all material respects with the then-applicable accounting standards. None of the Company SEC Documents so filed or furnished or that will be filed or furnished subsequent to the date of this Agreement contained or will contain, as the case may be, any untrue statement of a material fact or omitted or will omit, as the case may be, to state any 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. None of the Company’s Subsidiaries is required to file periodic reports with the SEC pursuant to the Exchange Act. As of the date hereof, there are no outstanding or unresolved comments from the SEC staff with respect to any of the Company SEC Documents.

(b) The financial statements (including all related notes and schedules) of the Company and its Subsidiaries included in or incorporated by reference into the Company SEC Documents fairly present, in all material respects, the financial position of the Company and its Subsidiaries, as at the respective dates thereof, and the results of their operations and their cash flows for the respective periods then ended (subject, in the case of the unaudited statements, to normal year-end audit adjustments and to any other adjustments described therein, including the notes thereto) in conformity with United States generally accepted accounting principles (“GAAP”) (except, in the case of the unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto).

Section 3.6 Internal Controls and Procedures. The Company has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. The Company’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act are recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of the Company as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”). The management of the Company has completed its assessment of the effectiveness of the Company’s internal control over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective. The Company has disclosed, based on its most recent evaluations, to the Company’s outside auditors and the audit committee of the board of directors of the Company (A) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial data and (B) any fraud or allegation of fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. Since January 1, 2005, the Company has not identified any material weaknesses in internal controls. To the Knowledge of the Company, there are no facts or circumstances that would prevent its chief executive officer and chief financial officer from giving the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the Sarbanes-Oxley Act, without qualification, when next due.

Section 3.7 No Undisclosed Liabilities. Except (i) as reflected or reserved against in the Company’s consolidated balance sheets (or the notes thereto) included in the Company SEC Documents filed or furnished prior to the date hereof, (ii) for transactions expressly contemplated by this Agreement, (iii) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since December 31, 2006 (the “Balance Sheet Date”), (iv) for liabilities or obligations which have been discharged or paid in full in the ordinary course of business and (v) as set forth in Section 3.7 of the Company Disclosure Letter, neither the Company nor any Subsidiary of the Company has any liabilities or obligations of any nature, whether or not accrued, contingent or otherwise, whether known or unknown and whether due or to become due, that would have or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.8 Compliance with Law; Permits.

(a) Except (i) as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, or (ii) as set forth in Section 3.8(a) of the Company Disclosure Letter, the Company and its Subsidiaries are, and since January 1, 2006 have been in compliance with and are not in default under or in violation of any applicable federal, state, local or foreign or provincial law, statute, ordinance, rule, regulation, judgment, order, injunction, decree or agency requirement of or undertaking to or agreement with any Governmental Entity, including common law, (collectively, “Laws” and each, a “Law”).

(b) The Company and its Subsidiaries are in possession of all material franchises, tariffs, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental Entity necessary for the Company and its Subsidiaries to own, lease and operate their properties and assets or to carry on their businesses as they are now being conducted (the “Company Permits”). All Company Permits are in full force and effect, except where the failure to be in full force and effect would not be material to the Company and its Subsidiaries as a whole. No suspension or cancellation of any of the Company Permits is pending or, to the Knowledge of the Company, threatened, except where such suspension or cancellation would not be material to the Company and its Subsidiaries as a whole. The Company and its Subsidiaries are not, and since January 1, 2007 have not been in any material respect, in violation or breach of, or default under, any Company Permit. No event or condition has occurred or exists which would result in a violation of, breach, default or loss of a benefit under, or acceleration of an obligation of the Company or any of its Subsidiaries under, any Company Permit (in each case, with or without notice or lapse of time or both).

Section 3.9 Environmental Laws and Regulations.

(a) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) the Company, each of its Subsidiaries and each of their operations and properties are and have been in compliance with all applicable Environmental Laws, which compliance includes obtaining, maintaining and complying with Company Permits required by Environmental Laws for the operation of the Company and its Subsidiaries (“Environmental Permits”) and, to the Knowledge of the Company, no circumstances or conditions currently exist that would reasonably be expected to prevent such continued compliance or to result in the revocation, termination, non-renewal or material modification of any such Environmental Permits; (ii) there has been no release of any Hazardous Substance by the Company or any of its Subsidiaries in any manner that could reasonably be expected to result in the Company or any Subsidiary incurring any remedial obligation, corrective action requirement or other liability of any kind under applicable Environmental Laws, (iii) neither the Company, its Subsidiaries, nor any of their respective owned, leased or used properties are, or, to the Knowledge of the Company, threatened to become, subject to any liabilities relating to any suit, settlement, court order, administrative order, regulatory requirement, judgment or written claim asserted or arising under any Environmental Law; (iv) neither the Company nor any of its Subsidiaries nor any real property owned or leased by the Company or its Subsidiaries is subject to any pending or, to the Company’s Knowledge, threatened Environmental Claim and, to the Company’s Knowledge, neither the Company nor any of its Subsidiaries nor any real property currently or formerly owned or leased by the Company or its Subsidiaries is subject to any pending or threatened investigation involving Environmental Laws or Environmental Permits; and (v) to the Company’s Knowledge, no conditions currently exist with respect to the Company, its Subsidiaries or their respective operations or properties that would reasonably be expected to result in the Company and its Subsidiaries incurring unbudgeted material capital expenditures or liabilities under Environmental Laws by December 31, 2009, including such expenditures and liabilities arising out of proposed, but not yet effective, changes in Environmental Laws.

(b) The Company has provided to Parent access to all material environmental health and safety related assessments, audits, investigations, permits, or other material documentation relating to current compliance, remediation, or Environmental Claims or liabilities under Environmental Laws.

(c) To the Company’s Knowledge, the proposed transaction does not require the consent or pre-approval of any Governmental Authority with jurisdiction of the environment, including any approvals required as a result of change of control provisions in material Environmental Permits or the substitution of any material financial assurance obligations and instruments maintained by the Company to satisfy such requirements imposed by Environmental Laws.

(d) Section 3.9(d) of the Company Disclosure Letter sets forth the Company’s current material financial assurance instruments and insurance policies to satisfy the financial assurance obligations of the Company and its Subsidiaries under any Environmental Laws.

(e) For purposes of this Agreement, the following terms have the following meanings: (i) “Environmental Claim” shall mean any and all actions, suits, orders, decrees, demands, demand letters, claims, liens, notices of noncompliance, violation or potential responsibility or liability, or any proceedings, whether brought by a governmental authority or third-party (hereinafter, “Claims”) relating in any way to any Environmental Law or any Environmental Permit, including, (x) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (y) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief relating to the presence, release or threatened release of Hazardous Substances or arising from alleged injury or threat of injury to health or safety (to the extent relating to human exposure to Hazardous Substances), or the environment including, without limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural resources such as wetlands; (ii) “Environmental Laws” means any Laws relating to (x) the protection, preservation or restoration of the environment (including air, water vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource), or (y) the exposure to, or the use, presence, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Substances; and (iii) “Hazardous Substance” means any material, substance or waste listed, defined, designated, classified or characterized as hazardous, toxic, radioactive, dangerous or as a pollutant or contaminant or words of similar meaning and effect, or otherwise regulated, under any Environmental Law, including without limitation any toxic waste, pollutant, contaminant, hazardous substance, toxic substance, hazardous waste, special waste, industrial substance or petroleum or any derivative or byproduct thereof, radon, radioactive material, asbestos or asbestos containing material, urea formaldehyde, foam insulation, mold or polychlorinated biphenyls.

(f) Except as may be covered by Section 3.7, Section 3.9 provides the exclusive representations and warranties of the Company with regard to Environmental Permits, Environmental Laws, Environmental Claims and Hazardous Substances.

Section 3.10 Employee Benefit Plans.

(a) Section 3.10(a) of the Company Disclosure Letter sets forth a true and complete list, separately identified for each country in which current or former employees, consultants or directors of the Company and any of its Subsidiaries are based, of all “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), and any employment, consulting, separation, retention, severance or change in control agreement, and any other plans, agreements or arrangements (including contracts of insurance and contracts with current service providers) involving compensation or benefits relating to pension, welfare benefits, severance, retention, vacation, leaves of absence, company awards, supplemental unemployment, salary continuation for disability, retirement, deferred compensation, profit-sharing, bonus or other incentive compensation, equity and equity-based compensation, stock purchase arrangements or policies, hospitalization, medical insurance, life insurance, business travel and personal accident insurance, and educational assistance maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries has any obligation or liability, contingent or otherwise, in respect of current or former employees, consultants or directors of the Company or any of its Subsidiaries (“Company Benefit Plans”). None of the Company, the Subsidiaries or any of their Affiliates and any trade or business (whether or not incorporated) that is or has ever been under common control, or that is or has ever been treated as a single employer, with any of them under Section 414(b), (c), (m) or (o) of the Code (each, an “ERISA Affiliate”) in the past six years contributes to or has sponsored, maintained, contributed to or had any liability in respect of any “defined benefit pension plan” (as defined in Section 3(35) of ERISA) or plan subject to Section 412 of the Code or Section 302 of ERISA including any “multiemployer plan” (as defined in Section 3(37) of ERISA).

(b) True and complete copies of the following documents, in respect of each of the Company Benefit Plans (as applicable), have been delivered or made available to Parent: (i) except where form agreements substantially representative of the actual agreements have been provided, copies of all employment, consulting, separation, retention, severance or change in control agreements with current or former employees, independent contractors, consultants or directors of the Company and any of its Subsidiaries, (ii) any plans and related trust documents and all amendments thereto, or written summaries of all unwritten Employee Benefit Plans, (iii) the most recent Forms 5500 and schedules thereto, (iv) the most recent financial statements and actuarial valuations, (v) the most recent IRS determination letter, (vi) the most recent summary plan descriptions (including letters or other documents updating such descriptions), and (vii) written descriptions of all non-written agreements relating to the Company Benefit Plans.

(c) No material action, dispute, suit, claim, arbitration, or legal, administrative or other proceeding or governmental action (other than claims for benefits in the ordinary course) is pending or, to the Knowledge of the Company, threatened (x) with respect to any Company Benefit Plan by any current or former employee, officer or director of the Company or any of its Subsidiaries, (y) alleging any breach of the material terms of any Company Benefit Plan or any fiduciary duties or (z) with respect to any violation of any applicable Law with respect to such Company Benefit Plan, any of which is reasonably likely to result in a material liability.

(d) Each Company Benefit Plan has been maintained and administered in all material respects in compliance with its terms and with applicable Law, including ERISA and the Code to the extent applicable thereto. Any Company Benefit Plan intended to be qualified under Section 401(a) or 401(k) of the Code is in a prototype or master plan that has received a favorable notification letter from the United States Internal Revenue Service (the “IRS”) approving the form of the prototype or master plan and, to the Knowledge of the Company, no fact or event has occurred that would reasonably be expected to affect adversely the qualified status of any such Company Benefit Plan. Neither the Company nor any of its Subsidiaries maintains or contributes to any plan or arrangement which provides medical benefits to any employee or former employee following his retirement, except (i) as required by applicable Law or as provided in individual agreements upon a severance event or (ii) as set forth in Section 3.10(d) of the Company Disclosure Letter.

(e) With respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (i) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, (ii) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, (iii) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (iv) no material liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by the Company or any of its Subsidiaries and (v) the PBGC has not instituted proceedings to terminate any such Company Benefit Plan.

(f) All material contributions, premiums and other material payments required by Law or any Company Benefit Plan have been made under any such plan to any fund, trust or account established thereunder or in connection therewith by the due date thereof; and any and all material contributions, premiums and other payments with respect to compensation or service before and through the Closing Date, or otherwise with respect to periods before and through the Closing Date, due from any of the Company or its Subsidiaries to, under or on account of each Company Benefit Plan shall have been paid prior to the Closing Date or shall have been fully reserved and provided for or accrued on the Company’s financial statements.

(g) The consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event, (i) entitle any current or former employee, consultant or officer of the Company or any of its Subsidiaries to severance pay, retention bonuses, parachute payments, non-competition payments, unemployment compensation or any other payment, except as expressly provided in this Agreement or as required by applicable Law, (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee, consultant or officer, except as expressly provided in this Agreement or (iii) result in any forgiveness of indebtedness or obligation to fund benefits with respect to any such employee, director or officer. Neither the Company nor any of its Subsidiaries has made any payments, is obligated to make any payments, or is a party to any agreement, contract, arrangement, or plan that could obligate it to make any payments, that are or could be, separately or in the aggregate, “excess parachute payments” within the meaning of Section 280G of the Code (without regard to Section 280G(b)(4) and 280G(b)(5) thereof). No director, officer, employee or service provider is entitled to a gross-up, make whole or other payment as a result of the imposition of taxes under Section 280G or 4999 of the Code pursuant to any agreement or arrangement with the Company or any of its Subsidiaries.

(h) Section 3.10(h) of the Company Disclosure Letter sets forth a list of all deferred compensation which, to the Knowledge of the Company, is not in compliance with Section 409A of the Code.

Section 3.11 Interested Party Transactions. Except for employment Contracts filed as an exhibit to a Company SEC Document filed prior to the date hereof, Section 3.11 of the Company Disclosure Letter sets forth a correct and complete list of the contracts or arrangements that are, or were, in existence at any time since January 1, 2006 (including the contracts and arrangements entered into in connection with the transactions contemplated under this Agreement) under which the Company has any existing or future liabilities, between the Company or any of its Subsidiaries, on the one hand, and, on the other hand, any (a) present officer or director of either the Company or any of its Subsidiaries (or any person who has served as such since January 1, 2006) or any of such officer’s or director’s immediate family members, (b) record or beneficial owner of more than 5% of the Shares, or (c) to the Knowledge of the Company, any Affiliate of any such officer, director or owner (other than the Company or any of its Subsidiaries or Parent or Merger Sub or any Affiliate of Parent or Merger Sub) or any of such officer, director or owner’s immediate family members (each, an “Affiliate Transaction”). The Company has provided or made available to Parent correct and complete copies of each Contract or other relevant documentation (including any amendments or modifications thereto) providing for each Affiliate Transaction.

Section 3.12 Absence of Certain Changes or Events. Since the Balance Sheet Date, (a) except as otherwise required or expressly contemplated by this Agreement or as set forth in Section 3.12 of the Company Disclosure Letter, the businesses of the Company and its Subsidiaries have been conducted, in all material respects, in the ordinary course of business consistent with past practice and (b) there have not been any facts, circumstances, events, changes, effects or occurrences that have had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.13 Investigations; Litigation. There are no (i) inquiries, investigations or reviews pending (or, to the Knowledge of the Company, threatened) by any Governmental Entity with respect to the Company or any of its Subsidiaries or (ii) actions, suits, inquiries, investigations or proceedings pending (or, to the Knowledge of the Company, threatened) against or affecting the Company or any of its Subsidiaries or any of their respective properties at law or in equity before, and there are no orders, judgments or decrees of, any Governmental Entity in each case of clause (i) or (ii), which would have (if adversely determined), individually or in the aggregate, a Company Material Adverse Effect.

Section 3.14 Proxy Statement; Other Information. None of the information contained in the Proxy Statement will at the time of the mailing of the Proxy Statement to the shareholders of the Company, at the time of the Company Meeting, and at the time of any amendments thereof or supplements thereto, and none of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Schedule 13E-3 to be filed with the SEC concurrently with the filing of the Proxy Statement, will, at the time of its filing with the SEC, and at the time of any amendments thereof or supplements thereto, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, that no representation is made by the Company with respect to information supplied in writing by Parent or Merger Sub for inclusion therein. The Proxy Statement and the Schedule 13E-3 will comply as to form in all material respects with the Exchange Act, except that no representation is made by the Company with respect to information supplied by Parent or Merger Sub. The letter to shareholders, notice of meeting, proxy statement and forms of proxy to be distributed to shareholders in connection with the Merger to be filed with the SEC in connection with seeking the adoption and approval of this Agreement are collectively referred to herein as the “Proxy Statement.” The Rule 13E-3 Transaction Statement on Schedule 13E-3 to be filed with the SEC in connection with seeking the adoption and approval of this Agreement is referred to herein as the “Schedule 13E-3.”

Section 3.15 Tax Matters.

(a) Each of the Company and its Subsidiaries has timely filed, or has caused to be timely filed on its behalf (taking into account any extension of time within which to file), all material Tax Returns required to be filed by it or on behalf of it, in all applicable jurisdictions, and all such filed Tax Returns are true, correct and complete in all material respects. All Taxes shown to be due on such Tax Returns, or otherwise required to be paid by the Company or any of its Subsidiaries, have been fully and timely paid.

(b) The most recent financial statements contained in the Company SEC Documents reflect an adequate reserve for all Taxes payable by the Company and its Subsidiaries for all taxable periods and portion thereof through the date of such financial statements. No deficiency with respect to Taxes has been proposed, asserted or assessed against the Company or any of its Subsidiaries, except for deficiencies which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP.

(c) Neither the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 or Section 361 of the Code.

(d) No audit or other administrative or court proceedings are pending with any Governmental Entity with respect to Taxes of the Company or any of its Subsidiaries in any material amount and no written notice thereof has been received.

(e) The Company and its Subsidiaries have complied in all material respects with all applicable Laws relating to the payment and withholding of Taxes and have duly and timely withheld and paid over to the appropriate Governmental Entity all amounts required to be so withheld and paid under all applicable Laws, including any Taxes in connection with any amounts paid or owing to any present or former employee, officer, director, independent contractor, creditor, shareholder or any other third party.

(f) Neither the Company nor any of its Subsidiaries is a party to any contract, agreement, plan or other arrangement that, individually or collectively, could give rise to the payment of any amount which would not be deductible by reason of Section 162(m) or Section 280G of the Code or would be subject to withholding under Section 4999 of the Code.

(g) The Company has made available to Parent correct and complete copies of (i) all income and franchise Tax Returns of the Company and its Subsidiaries for the preceding three taxable years, (ii) any audit report issued by any Governmental Entity within the last three years (or otherwise with respect to any audit or proceeding in progress) relating to income and franchise Taxes of the Company or any of its Subsidiaries and (iii) all material, private letter rulings, closing agreements, settlement agreements, and similar documents sent to or received by the Company or any of its Subsidiaries from any Governmental Entity relating to Taxes.

(h) The Company is not, and has not been at any time within the five years prior to the closing, a “United States real property holding corporation” within the meaning of Section 897 of the Code.

(i) There are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries, other than Liens for Taxes not yet due and payable or being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established on the Company’s or the relevant Subsidiary’s financial statements in accordance with GAAP.

(j) None of the Company or any of its Subsidiaries has engaged in any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).

(k) For purposes of this Agreement: (x) “Taxes” shall mean (A) all federal, state, local or foreign taxes, charges, fees, imposts, levies or other assessments, including all net income, gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation, property and estimated taxes, custom duties, fees, assessments and charges of any kind whatsoever, (B) all interest, penalties, fines, additions to tax or additional amounts imposed by any Governmental Entity in connection with any item described in clause (A) and (C) any liability in respect of any items described in clauses (A) and/or (B) payable by reason of contract, assumption, transferee liability, operation of Law, Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof of any analogous or similar provision under Law) or as an indemnitor, guarantor, surety or in a similar capacity under any contract, arrangement, agreement, understanding or commitment (whether oral or written) or otherwise and (y) “Tax Returns” shall mean any return, report, claim for refund, estimate, information return or statement or other similar document relating to or required to be filed with any Governmental Entity with respect to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

Section 3.16 Labor Matters.

(a) Neither the Company nor any of its Subsidiaries has received notice since January 1, 2006 of the intent of any Governmental Entity responsible for the enforcement of labor, employment, occupational health and safety or workplace safety and insurance/workers compensation laws to conduct an investigation of or affecting the Company or any of its Subsidiaries and, to the Knowledge of the Company, no such investigation is in progress.

(b) Except as set forth on Section 3.16(b) of the Company Disclosure Letter, (i) there is no (and have not been since January 1, 2006) strike or lockout with respect to any employees of the Company or any of its Subsidiaries (“Employees”), (ii) to the Knowledge of the Company, there is no (and has not been since January 1, 2006) union organizing effort pending or threatened against the Company or any of its Subsidiaries, (iii) there is no (and has not been during the two year period preceding the date hereof) unfair labor practice, labor dispute (other than routine individual grievances) or labor arbitration proceeding pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, (iv) there is no (and has not been during the two year period preceding the date hereof) slowdown or work stoppage in effect or, to the Knowledge of the Company, threatened with respect to Employees, (v) the Company and its Subsidiaries are in all material respects in compliance with all applicable Laws respecting employment and employment practices, terms and conditions of employment, wages and hours, occupational safely and health and unfair labor practices, and (vi) there is no complaint, charge, or claim against the Company or its Subsidiaries pending or, to the Company’s Knowledge, threatened to be brought or filed with any Governmental Entity based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or its Subsidiaries. Neither the Company nor any of its Subsidiaries has any liabilities under the Worker Adjustment and Retraining Act of 1998 as a result of any action taken by the Company.

(c) To the Company’s Knowledge, no officer, employee, agent, or consultant of the Company or any of its Subsidiaries is in violation of any term of any employment, consultant, non-disclosure, non-competition, confidentiality, or other similar agreement.

Section 3.17 Intellectual Property. Either the Company or a Subsidiary of the Company owns, or is licensed or otherwise possesses legally enforceable rights to use, all material trademarks, trade names, service marks, service names, mark registrations, logos, assumed names, domain names, registered and unregistered copyrights, patents or applications and registrations used in their respective businesses as currently conducted (collectively, the “Intellectual Property”). Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) there are no pending or, to the Knowledge of the Company, threatened claims by any person alleging intellectual property infringement by, or other liability on the part of, the Company or any of its Subsidiaries for their use of the Intellectual Property of the Company or any of its Subsidiaries, (ii) to the Knowledge of the Company, the conduct of the business of the Company and its Subsidiaries does not infringe any intellectual property rights of any person, (iii) neither the Company nor any of its Subsidiaries has made any claim of a violation or infringement by others of its or their rights to or in connection with the Intellectual Property of the Company or any of its Subsidiaries, and (iv) to the Knowledge of the Company, no person is infringing any Intellectual Property of the Company or any of its Subsidiaries.

Section 3.18 Property. The Company or a Subsidiary of the Company owns and has good and indefeasible title to all of its owned real property and good title to all its personal property and has valid leasehold interests under enforceable leases in all of its leased properties free and clear of all Liens (except for title exceptions, defects, encumbrances and other matters, whether or not of record, which in the aggregate do not materially affect the continued use of the property for the purposes for which the property is currently being used and contemplated to be used by the Company or a Subsidiary of the Company). Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, all leases under which the Company or any of its Subsidiaries lease any real or personal property are valid and effective against the Company or any of its Subsidiaries and, to the Company’s Knowledge, the counterparties thereto, in accordance with their respective terms, and there is not, under any of such leases, any existing default by the Company or any of its Subsidiaries, or to the Company’s Knowledge, the counterparties thereto, or event which, with notice or lapse of time or both, would become a default by the Company or any of its Subsidiaries or, to the Company’s Knowledge, the counterparties thereto.

Section 3.19 Insurance. The Company and its Subsidiaries maintain, or are entitled to the benefits of, insurance covering their properties, operations, personnel and businesses against such losses and risks as are reasonably adequate to protect them and their businesses. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, none of the Company or its Subsidiaries has received notice from any insurer or agent of such insurer that coverage will be terminated, specially rated or not renewed, or that substantial capital improvements or other expenditures will have to be made in order to continue such insurance, and all such insurance is outstanding and duly in force.

Section 3.20 Opinion of Financial Advisor. The Special Committee has received the opinion of J.P. Morgan Securities Inc., dated as of the date of this Agreement, to the effect that, as of the date hereof, the Merger Consideration is fair to the Public Shareholders from a financial point of view.

Section 3.21 Required Vote of the Company Shareholders. The affirmative vote of the holders of outstanding shares of Company Common Stock, representing at least a majority of all the votes entitled to be cast thereupon by holders of Company Common Stock, is the only vote of holders of securities of the Company which is required to approve this Agreement, the Merger and the other transactions contemplated hereby under the NCBCA, the Company Charter Documents and the rules and regulations of the Nasdaq Stock Market (the “Company Shareholder Approval”). All issued and outstanding shares of Company Common Stock are entitled to vote.

Section 3.22 Material Contracts.

(a) Except for the Company Benefit Plans listed on Section 3.10(a) of the Company Disclosure Letter, as set forth in Section 3.22(a) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by, as of the date hereof, any Contract (whether written or oral) (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (ii) that purports to limit, curtail or restrict the ability of the Company or any of its existing or future Subsidiaries or Affiliates to compete in any geographic area or line of business or restrict the Persons to whom the Company or any of its existing or future Subsidiaries or Affiliates may sell products or deliver services, (iii) that is a partnership or joint venture agreement, (iv) for the acquisition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise) entered into since January 1, 2007, (v) with any (x) Governmental Entity that is not a customer, client or supply Contract or (y) director or officer of the Company or any of its Subsidiaries or any Affiliate of the Company, (vi) that is a loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any Contract or instrument pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries having an outstanding principal amount in excess of $1 million individually, (vii) that is a financial derivatives master agreement or confirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities, (viii) that is a voting agreement or registration rights agreement, (ix) that is a mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any material property or assets of the Company or any of its Subsidiaries, (x) that is a customer, client or supply Contract that involves consideration in fiscal year 2007 in excess of $5 million or that is reasonably likely to involve consideration in fiscal year 2007 in excess of $5 million, (xi) that is a Contract (other than customer, client or supply Contracts) that involves consideration (whether or not measured in cash) of greater than $5 million, (xii) that is a collective bargaining agreement, (xiii) that is a “standstill” or similar agreement, (xiv) that is a Contract that restricts or otherwise limits the payment of dividends or other distributions on equity securities, (xv) to the extent material to the business or financial condition of the Company and its Subsidiaries, taken as a whole, that is a (1) lease or rental Contract, (2) product design or development Contract, (3) consulting Contract, (4) indemnification Contract, (5) license or royalty Contract, (6) merchandising, sales representative or distribution Contract or (7) Contract granting a right of first refusal or first negotiation, or (xvi) that is a commitment or agreement to enter into any of the foregoing (the Contracts and other documents described in clauses (i) through (xvi) of this Section 3.22(a) and to which the Company and any of its Subsidiaries is a party to or bound by, all contracts set forth in Section 3.22(a) of the Company Disclosure Letter and all contracts which have been filed with the SEC prior to the date hereof, being referred to herein as “Company Material Contracts”). Neither the Company nor any of its Subsidiaries is a party to any Contract that purports to be binding on, or imposes any obligations on, Parent or any Affiliate of Parent other than (i) the Company or its Subsidiaries or (ii) any employee, officer or director of the Company or any of its Subsidiaries (in such capacity).

(b) (i) Each Company Material Contract is valid and binding on the Company and any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, (ii) the Company and each of its Subsidiaries has performed all obligations required to be performed by it under each Company Material Contract, except where such failure to perform would not be material to the Company and its Subsidiaries taken as a whole, and (iii) neither the Company nor any of its Subsidiaries knows of, or has received notice of, the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any such Company Material Contract, except where such default would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

Section 3.23 Finders or Brokers. Except for J.P. Morgan Securities Inc., neither the Company nor any of its Subsidiaries has engaged any investment banker, broker or finder in connection with the transactions contemplated by this Agreement who might be entitled to any fee or any commission in connection with or upon consummation of the Merger or the other transactions contemplated hereby. The Company has provided to Parent prior to or contemporaneous with the execution of this Agreement a true and complete copy of its engagement letter with J.P. Morgan Securities Inc. and there are no amounts payable, or commitments made, to J.P. Morgan Securities Inc. in connection with this Agreement and the transactions contemplated by this Agreement other than as set forth in such engagement letter.

Section 3.24 State Takeover Statutes. The provisions of Articles 9 and 9A of the NCBCA are not applicable to the Company or its shareholders or an exemption is available therefrom and no other “moratorium,” “control share,” “fair price,” “affiliate transaction,” “business combination” or other anti-takeover statute or regulation enacted under any state law applicable to the Company is applicable to the Merger, or the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby.

Section 3.25 No Other Representations or Warranties. Except for the representations and warranties contained in this Agreement, including any modification or qualification thereto included in the Company Disclosure Letter (but subject to the limitation described in the introduction of Article III with respect to the Company Disclosure Letter), neither the Company nor any other person or entity on its behalf makes any other express or implied representation or warranty with respect to the Company or any information provided to Parent or Merger Sub.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Except as disclosed in the disclosure letter delivered by Parent to the Company immediately prior to the execution of this Agreement (the “Parent Disclosure Letter”), it being understood and agreed that each item in a particular section of the Parent Disclosure Letter applies only to such section and to any other section to which its relevance is reasonably apparent on the face of such disclosure, Parent and Merger Sub represent and warrant to the Company as follows:

Section 4.1 Qualification; Organization.

(a) Each of Parent and Merger Sub is a legal entity duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of organization. Each of Parent and Merger Sub has all requisite corporate, limited partnership, or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted.

(b) Each of Parent and Merger Sub is qualified to do business and is in good standing as a foreign corporation or limited partnership, as applicable, in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not or would not reasonably be expected to, individually or in the aggregate, prevent or materially delay or materially impair the ability of Parent or Merger Sub to consummate the Merger and the other transactions contemplated hereby (a “Parent Material Adverse Effect”).

Section 4.2 Corporate Authority Relative to this Agreement; No Violation.

(a) Each of Parent and Merger Sub has all requisite corporate or limited partnership, as applicable, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the general partner of Parent and the Board of Directors of Merger Sub, and by Parent as the sole shareholder of Merger Sub, and no other corporate proceedings on the part of Parent or Merger Sub are necessary to authorize the consummation of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Parent and Merger Sub and, assuming this Agreement constitutes the valid and binding agreement of the Company, this Agreement constitutes the valid and binding agreement of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).

(b) Other than in connection with or in compliance with (i) the provisions of the NCBCA, (ii) the Exchange Act and (iii) the HSR Act, no authorization, consent or approval of, notification to or filing with, any Governmental Entity is necessary, under applicable Law, for the consummation by Parent or Merger Sub of the transactions contemplated hereby, except for such authorizations, consents, approvals or filings that, if not obtained or made, would not have or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

(c) The execution and delivery by Parent and Merger Sub of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (i) result in any violation of, or default (with or without notice or lapse of time, or both) under, require consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of any benefit under any loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license binding upon Parent or Merger Sub or result in the creation of any Lien upon any of the properties or assets of Parent or Merger Sub, (ii) conflict with or result in any violation of any provision of the articles of incorporation or by-laws or other equivalent organizational document, in each case as amended, of Parent or Merger Sub or (iii) conflict with or violate any applicable Laws, other than, in the case of clauses (i) and (iii), any such violation, conflict, default, termination, cancellation, acceleration, right, loss, Lien or failure to obtain consent that would not have or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

Section 4.3 Proxy Statement; Other Information. None of the information supplied or to be supplied by Parent or Merger Sub in writing for inclusion or incorporation by reference in the Proxy Statement will at the time of the mailing of the Proxy Statement to the shareholders of the Company, at the time of the Company Meeting, and at the time of any amendments thereof or supplements thereto, and none of the information supplied or to be supplied by Parent or Merger Sub and contained in the Schedule 13E-3 to be filed with the SEC concurrently with the filing of the Proxy Statement, will, at the time of its filing with the SEC, and at the time of any amendments thereof or supplements thereto, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

Section 4.4 Financing. Parent has delivered to the Company true, correct and complete copies, as of the date hereof, of (i) executed commitment letters and Rollover Commitments (collectively, the “Buyer Group Commitments”), pursuant to which certain Buyer Group Parties have agreed to provide equity financing to Parent and debt financing to a wholly owned subsidiary of Parent in connection with the Merger (collectively, the “Buyer Group Financing”), and (ii) executed debt commitment letters and related term sheets (the “Debt Commitment Letters” and together with the Buyer Group Commitments, the “Financing Commitments”), pursuant to which, and subject to the terms and conditions thereof, the lenders specified therein have committed to provide Parent or the Surviving Corporation with loans in the amounts described therein, the proceeds of which will be used as described therein to consummate the Merger and the other transactions contemplated hereby (the “Debt Financing” and together with the Buyer Group Financing, the “Financing”). As of the date hereof, the Financing Commitments are in full force and effect and have not been withdrawn or terminated or otherwise amended or modified in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof and, as of the date hereof, the Financing Commitments (or, if applicable, any New Financing Commitments entered into pursuant to Section 5.9) are the valid, binding and enforceable obligations of Parent and Merger Sub and any Buyer Group Party a party thereto, as applicable, and to the Knowledge of Parent, the other parties thereto. The Financing, subject to the terms and conditions of the Financing Commitments, and cash on hand in the Company constitute all of the financing required for the consummation of the Merger and the other transactions contemplated hereby, and are sufficient for the payment of the aggregate Merger Consideration and the aggregate Option Consideration. As of the date of this Agreement, Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing. The Financing Commitments contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein. Notwithstanding anything in this Agreement to the contrary, the Debt Commitment Letters may be superseded at the option of Parent or Merger Sub after the date of this Agreement but prior to the Effective Time by New Financing Commitments, subject to, and in accordance with Section 5.9. In such event, the term “Financing Commitments” as used herein shall be deemed to include the New Financing Commitments to the extent then in effect and the term “Financing” shall be deemed to be similarly modified.

Section 4.5 Ownership and Operations of Merger Sub. As of the date of this Agreement, the authorized capital stock of Merger Sub consists of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will be, owned by Parent or a direct or indirect wholly owned Subsidiary of Parent. Neither Parent nor Merger Sub has conducted any business other than incident to its formation and pursuant to this Agreement, the Merger and the other transactions contemplated hereby and the financing of such transactions.

Section 4.6 Finders or Brokers. Except for Macquarie Securities (USA) Inc. (“Macquarie”) and Goldman, Sachs & Co. (“Goldman Sachs”), neither Parent nor any of its Subsidiaries has engaged any investment banker, broker or finder in connection with the transactions contemplated by this Agreement who might be entitled to any fee or any commission in connection with or upon consummation of the Merger or the other transactions contemplated hereby.

Section 4.7 Guarantee. There has been delivered to the Company on the date hereof a Guarantee dated the date hereof which has been executed by the parties signatory thereto (the “Guarantee”). The Guarantee has not been replaced, amended or modified. The Guarantee is in full force and effect.

Section 4.8 No Other Representations or Warranties. Except for the representations and warranties contained in this Agreement, including any modification or qualification thereto included in the Parent Disclosure Letter (but subject to the limitation described in the introduction of Article IV with respect to the Parent Disclosure Letter) neither Parent nor Merger Sub nor any other person or entity on its behalf makes any other express or implied representation or warranty with respect to Parent or Merger Sub or any information provided to the Company.

ARTICLE V

COVENANTS AND AGREEMENTS

Section 5.1 Conduct of Business by the Company.

(a) From and after the date hereof and prior to the Effective Time or the date, if any, on which this Agreement is earlier terminated pursuant to Section 7.1 (the “Termination Date”), and except (w) as may be required by applicable Law, (x) with the prior written consent of Parent, (y) as expressly contemplated or permitted by this Agreement or (z) as disclosed in Section 5.1 of the Company Disclosure Letter, the Company shall, and shall cause each of its Subsidiaries to (i) conduct its business in the ordinary course consistent with past practices, (ii) use reasonable best efforts to maintain and preserve intact its business organization to maintain its rights, franchises, licenses and other authorizations issued by Governmental Entities and to retain the services of its key officers and key employees and (iii) take no action which would reasonably be expected to materially impair or materially delay the ability of any of the parties hereto from obtaining any necessary approvals of any regulatory agency or other Governmental Entity required for the transactions contemplated hereby, performing its covenants and agreements under this Agreement or consummating the transactions contemplated hereby.

(b) The Company agrees with Parent, on behalf of itself and its Subsidiaries, that between the date hereof and the Effective Time, except as set forth in Section 5.1(b) of the Company Disclosure Letter or expressly contemplated by this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Parent:

(i) adjust, split, combine or reclassify any capital stock or otherwise amend the terms of its capital stock or other equity interests;

(ii) make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire or encumber, any shares of its capital stock or other equity interests or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock or other equity interests, except in connection with cashless exercises or similar transactions pursuant to the exercise of stock options issued and outstanding as of the date hereof under the Company Stock Plan;

(iii) grant any person any right to acquire any shares of its capital stock or other equity interests;

(iv) issue any additional shares of capital stock or other equity interests except pursuant to the exercise of stock options issued under the Company Stock Plans issued and outstanding as of the date hereof and listed on Section 3.2(a) of the Company Disclosure Letter and in accordance with the terms of such instruments;

(v) purchase, sell, transfer, mortgage, encumber or otherwise dispose of any properties or assets having a value in excess of $5 million in the aggregate;

(vi) make any investment or acquisition of another person or business, whether by purchase of stock or securities, contributions to capital, property transfers, or purchases of property or assets in excess of $5 million in the aggregate;

(vii) make any capital expenditures not contemplated by the capital expenditure budget having an aggregate value in excess of $5 million for any 12 consecutive month period;

(viii) incur, assume, guarantee, or become obligated with respect to, any debt, which, when taken together with all other debt of the Company and its Subsidiaries, would result in there being indebtedness of the Company and its Subsidiaries greater than $180 million in the aggregate outstanding at any given time (excluding intercompany debt), or any debt which contains covenants that restrict the Merger or that are inconsistent with the Financing Commitments;

(ix) enter into, renew, extend, amend or terminate (A) any Company Material Contract or Contract which if entered into prior to the date hereof would be a Company Material Contract, in each case, other than any Contract relating to indebtedness that would not be prohibited under clause (viii) of this Section 5.1(b), or (B) any Contracts not in the ordinary course, involving the commitment or transfer of value in excess of $5 million in the aggregate in any year;

(x) enter into, amend or terminate any material reinsurance, coinsurance, modified coinsurance or any similar Contract (including any surplus relief or financial reinsurance Contract), whether as reinsurer or reinsured;

(xi) except to the extent required by Law or by Contracts in existence as of the date hereof (complete copies of which have been provided or made available to Parent prior to the date hereof), (A) increase in any manner the compensation or benefits of any of its employees, directors, consultants, independent contractors or service providers, except, with respect to non-officer employees, in the ordinary course of business consistent with past practice, (B) pay any pension, severance or retirement benefits not required by any existing plan or agreement to any such employees, directors, consultants, independent contractors or service providers, (C) except to comply with Sections 2.3 or 5.12, enter into, amend, alter, adopt, implement or otherwise commit itself to any compensation or benefit plan, program, policy, arrangement or agreement including any pension, retirement, profit-sharing, bonus or other employee benefit or welfare benefit plan, policy, arrangement or agreement or employment or consulting agreement with or for the benefit of any employee, director, consultant, independent contractor or service provider, (D) cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan, or (E) materially change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or applicable Law;

(xii) waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages not in excess of $1 million in the aggregate, or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amount, in each case, other than in the ordinary course consistent with past practice;

(xiii) amend or waive any provision of, or modify, the Company Charter Documents or Subsidiary Documents;

(xiv) take or omit to take any action that is intended or would reasonably be expected to, individually or in the aggregate, result in any of the conditions to the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement;

(xv) enter into any “non-compete” or similar agreement that would materially restrict the businesses of the Surviving Corporation or its Subsidiaries following the Effective Time or that would in any way restrict the businesses of Parent or its Affiliates (excluding the Surviving Corporation and its Subsidiaries) or take any action that may impose new or additional regulatory requirements on any Affiliate of Parent (excluding the Surviving Corporation and its Subsidiaries);

(xvi) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity;

(xvii) implement or adopt any material change in its existing underwriting, claim handling, loss control, investment, actuarial (or any material assumption underlying an actuarial practice or policy) or Tax or financial accounting principles, practices or methods, other than as required by GAAP, applicable Law or regulatory guidelines;

(xviii) (A) enter into any closing agreement with respect to material Taxes, (B) settle or compromise any material liability for Taxes, (C) make, revoke or change any material Tax election, (D) file or surrender any claim for a material refund of Taxes, (E) file any amended Tax Return involving a material amount of Taxes, or (F) prepare any Tax Returns in a manner which is not consistent in all material respects with the past practice of the Company and its Subsidiaries;

(xix) enter into any new, or materially amend or otherwise materially alter any current, Affiliate Transaction or transaction which would be an Affiliate Transaction if such transaction occurred prior to the date hereof; or

(xx) agree to take, make any commitment to take, or adopt any resolutions of its Board of Directors in support of, any of the actions prohibited by this Section 5.1(b).

Notwithstanding anything to the contrary herein, any action or failure to act by any of Lonnie C. Poole, Jr., Jim W. Perry or Lonnie C. Poole, III, or at their direction, will not be deemed to be actions of the Company for purposes of this Section 5.1 unless such action or failure to act was taken with the support of a majority of the independent members of the Board of Directors of the Company.

Section 5.2 Investigation.

(a) From the date hereof until the Effective Time and subject to the requirements of applicable Laws, the Company shall (i) provide to Parent, its counsel, financial advisors, auditors and other authorized representatives reasonable access during normal business hours to the offices, properties, books and records of the Company and its Subsidiaries, (ii) furnish to Parent, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information as such persons may reasonably request (including furnishing to Parent the financial results of the Company in advance of any filing by the Company with the SEC containing such financial results), and (iii) instruct the employees, counsel, financial advisors, auditors and other authorized representatives of the Company and its Subsidiaries to cooperate with Parent in its investigation of the Company and its Subsidiaries. Any investigation pursuant to this Section 5.2(a) shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries. No information or knowledge obtained by Parent or Merger Sub in any investigation pursuant to this Section 5.2(a) shall affect or be deemed to modify accordingly any representation or warranty made by the Company in Article III.

(b) Except for disclosures permitted by the terms of the Confidentiality Agreement, dated as of April 9, 2007, between Macquarie and the Company and the Confidentiality Agreement, dated as of April 9, 2007, between GS Direct, L.L.C. and the Company (as each may be amended from time to time, the “Confidentiality Agreements”), Parent and its Representatives shall hold information received from the Company pursuant to this Section 5.2 in confidence in accordance with the terms of the Confidentiality Agreements; provided that Macquarie and GS Direct, L.L.C. shall be entitled to share such information with prospective co-investors or limited partners of the members of Macquarie and GS Direct, L.L.C.; providedfurther, however, that any prospective co-investors or limited partners of the members of Macquarie and GS Direct, L.L.C. to whom Macquarie or GS Direct, L.L.C. provides such information shall be informed of and agree to abide by the confidentiality provisions of the applicable Confidentiality Agreement.

Section 5.3 No Solicitation.

(a) Subject to Sections 5.3(c)-(j) or as otherwise permitted or contemplated by this Agreement, the Company agrees that it shall not, nor shall it authorize or permit any of its Subsidiaries or any of its or their Representatives (including any retained by the Special Committee) to, directly or indirectly, (i) initiate, solicit, encourage (including by providing information) or facilitate any inquiries, proposals or offers with respect to an Alternative Proposal, or facilitate the making or completion of an Alternative Proposal, (ii) engage or participate in any negotiations concerning, or provide or cause to be provided any non-public information or data relating to the Company or any of its Subsidiaries in connection with, or have any discussions with any person relating to, an actual or proposed Alternative Proposal, or otherwise knowingly encourage or facilitate any effort or attempt to make or implement an Alternative Proposal, (iii) adopt, endorse or recommend, or propose publicly to adopt, endorse or recommend, any Alternative Proposal, (iv) adopt, endorse or recommend, or propose to adopt, endorse or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to any Alternative Proposal, (v) amend, terminate, waive or fail to enforce, or grant any consent under, any confidentiality, standstill or similar agreement, or (vi) resolve to propose or agree to do any of the foregoing. Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by any Subsidiary of the Company or Representatives of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.3 by the Company.

(b) The Company shall (and shall cause each of its Subsidiaries and Representatives to) immediately cease any existing solicitations, discussions or negotiations with any Person (other than the parties hereto) regarding any Alternative Proposal or intention to make an Alternative Proposal.

(c) Notwithstanding anything to the contrary in Section 5.3(a) and (b), the Company (acting through its Special Committee) may, in response to an unsolicited Alternative Proposal which did not result from or arise in connection with a breach of Section 5.3(a) or (b) and with respect to which the Board of Directors of the Company makes a prior determination, in good faith and after consultation with its outside counsel and financial advisors, that such Alternative Proposal would reasonably be expected to lead to a Superior Proposal and that failing to take the actions referred to in the immediately following clauses (i) and (ii) with respect to such Alternative Proposal would be inconsistent with the Board of Directors of the Company’s or the Special Committee’s exercise of its fiduciary duties under applicable Law, (i) furnish information with respect to the Company and its Subsidiaries to the person making such Alternative Proposal and its Representatives pursuant to a customary confidentiality agreement no less restrictive of the other party than the Confidentiality Agreements and (ii) participate in discussions or negotiations with such person and its Representatives regarding such Alternative Proposal; provided, however, that (i) Parent shall be entitled to receive an executed copy of such confidentiality agreement prior to the Company furnishing information to the person making such Alternative Proposal or its Representatives and (ii) the Company shall simultaneously provide or make available to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided to the person making such Alternative Proposal or its Representatives which was not previously provided or made available to Parent.

(d) Subject to Section 7.1(c)(ii), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw, modify, qualify or amend in a manner adverse to Parent or Merger Sub, or publicly propose to withdraw, modify, qualify or amend in a manner adverse to Parent or Merger Sub, the Recommendation, (ii) approve any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or similar agreement relating to any Alternative Proposal, (iii) approve or recommend, or publicly propose to approve, endorse or recommend, any Alternative Proposal, (iv) fail to include the Recommendation in the Proxy Statement or (v) knowingly take any other action or knowingly make any public statement that is inconsistent in any material respect with the Recommendation (collectively, a “Change in Recommendation”). Notwithstanding the foregoing, but subject to Section 5.4(b), if, prior to receipt of the Company Shareholder Approval, the Board of Directors of the Company or the Special Committee determines in good faith, in response to a Superior Proposal (and after complying with the provisions described in the definition of Superior Proposal), after consultation with outside counsel, that failure to make a Change in Recommendation would be inconsistent with the Board of Directors of the Company’s or the Special Committee’s exercise of its fiduciary duties under applicable Law, the Board of Directors of the Company, the Special Committee or any other committee of the Board of Directors of the Company may make a Change in Recommendation.

(e) The Company promptly (and in any event within 24 hours) shall advise Parent orally and in writing of (i) any Alternative Proposal or inquiry with respect to or that would reasonably be expected to lead to any Alternative Proposal, (ii) any request for non-public information relating to the Company or its Subsidiaries, other than requests for information in the ordinary course of business and consistent with past practice and not reasonably expected to be related to an Alternative Proposal, and (iii) any inquiry or request for discussion or negotiation regarding an Alternative Proposal, including in each case the identity of the person making any such Alternative Proposal or inquiry and the material terms of any such Alternative Proposal or inquiry (including copies of any document or correspondence evidencing such Alternative Proposal or inquiry). The Company shall keep Parent reasonably informed on a current basis of the status (including any change to the terms thereof) of any such Alternative Proposal or inquiry. Notwithstanding the foregoing, if any Alternative Proposal or inquiry is made, or any other information with respect to such Alternative Proposal or inquiry is provided, solely to Lonnie C. Poole, Jr., Jim W. Perry or Lonnie C. Poole, III, the Company shall have no obligations under this Section 5.3(e) with respect to such Alternative Proposal, inquiry, or information until such time as any member of the Special Committee is made aware of such Alternative Proposal, inquiry, or information.

(f) Nothing contained in this Agreement shall prohibit the Company or the Board of Directors of the Company (or the Special Committee) from making any disclosure to its shareholders if the failure so to disclose would be inconsistent with the Board of Directors of the Company’s (or the Special Committee’s) fiduciary duties, or any disclosure requirements, under applicable Law, or from disclosing to its shareholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act; providedhowever, that the Recommendation shall be deemed to have been withdrawn for all purposes of Sections 7.1(d)(ii), 7.1(d)(iii) and 7.2 hereunder if the Board of Directors of the Company (or the Special Committee) makes any such disclosure (other than a “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) unless the Board of Directors (or the Special Committee) expressly publicly reaffirms, without qualification, the Recommendation at least 2 Business Days prior to the Company Meeting.

(g) As used in this Agreement, “Alternative Proposal” means (i) any proposal or offer from any Person or group of Persons other than Parent or one of its Subsidiaries for a merger, consolidation, business combination, share exchange, recapitalization, reorganization, dissolution, liquidation or other similar transaction involving the Company or any of its Subsidiaries, (ii) any proposal for the issuance by the Company of over 25% of the Company Common Stock or other equity securities or (iii) any proposal or offer to acquire in any manner, directly or indirectly, (A) over 25% of the Company Common Stock or other equity securities of the Company or (B) assets of the Company and its Subsidiaries (including securities of Subsidiaries) equal to 25% or more of the Company’s consolidated assets or to which 25% or more of the Company’s revenues or earnings on a consolidated basis are attributable, in each case other than the Merger.

(h) As used in this Agreement, “Superior Proposal” means any Alternative Proposal made by any person (A) on terms which the Board of Directors of the Company (or the Special Committee) determines in good faith, after consultation with the Company’s (or the Special Committee’s) outside legal counsel and financial advisors, to be more favorable to the Public Shareholders than the Merger, taking into account all the terms and conditions of such proposal, and this Agreement (including any proposal or offer by Parent to amend the terms of this Agreement and the Merger) and (B) that is reasonably capable of being completed substantially prior to the End Date set forth herein, taking into account all financial, regulatory, legal and other aspects of such proposal (and without taking into account any actual or apparent impediment to completion of such proposal posed by the existence or effect of the Support Agreement or any statement to the Company by any party thereto of an intention to act in accordance therewith); provided that, for purposes of this Section 5.3(h), the references to “over 25%” and “25% or more” in the defined term “Alternative Proposal” shall be deemed to be replaced by “75% or more”; and provided that the Board of Directors of the Company (or the Special Committee) shall not so determine that any such proposal is a Superior Proposal prior to the time that is five Business Days after the time by which the Company has notified Parent and Merger Sub under Section 5.3(e). During such five Business Day period, the Company shall, and shall cause its financial and legal advisors to, negotiate with Parent and Merger Sub (to the extent Parent and Merger Sub wish to do so) to enable Parent and Merger Sub to make a proposal that renders the Superior Proposal no longer a Superior Proposal.

(i) Notwithstanding anything to the contrary herein, the Company shall not be entitled to enter into any agreement (other than a confidentiality agreement in accordance with Section 5.3(c)) with respect to a Superior Proposal unless this Agreement shall have been or is concurrently terminated in a manner permitted hereunder and the Company shall have paid to Parent the Company Termination Fee payable pursuant to Section 7.2.

(j) Notwithstanding anything to the contrary above, in no event shall any action or failure to act taken by, or at the express direction of Lonnie C. Poole, Jr., Jim W. Perry or Lonnie C. Poole, III (other than any such action or failure to act taken with the support of a majority of the independent members of the Board of Directors of the Company), constitute a violation by the Company of this Section 5.3. Nothing contained in this Section 5.3 shall prohibit the Company from responding to any unsolicited proposal or inquiry solely by advising the Person making such proposal or inquiry of the terms of this Section 5.3.

Section 5.4 Filings; Other Actions.

(a) As promptly as reasonably practicable following the date of this Agreement, the Company shall prepare the Proxy Statement (which shall include the Recommendation), and the Company and Parent shall prepare the Schedule 13E-3. Parent and the Company shall cooperate with each other in connection with the preparation of the foregoing documents. The Company will use its reasonable best efforts to have the Proxy Statement, and Parent and the Company will use their reasonable best efforts to have the Schedule 13E-3, cleared by the SEC as promptly as reasonably practicable after such filing. The Company will use its reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s shareholders as promptly as practicable after the Proxy Statement is cleared by the SEC. The Company shall as promptly as practicable notify Parent of the receipt of any oral or written comments from the SEC relating to the Proxy Statement. The Company shall cooperate and provide Parent with a reasonable opportunity to review and comment on the draft of the Proxy Statement (including each amendment or supplement thereto), and Parent and the Company shall cooperate and provide each other with a reasonable opportunity to review and comment on the draft Schedule 13E-3 (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the SEC, prior to filing such with or sending such to the SEC, and Parent and the Company will provide each other with copies of all such filings made and correspondence with the SEC. If at any time prior to the Effective Time, any information should be discovered by any party hereto which should be set forth in an amendment or supplement to the Proxy Statement or the Schedule 13E-3 so that the Proxy Statement or the Schedule 13E-3 would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and disseminated by the Company to the shareholders of the Company.

(b) The Company shall (i) take all action necessary in accordance with the NCBCA and the Company Charter Documents to duly call, give notice of, convene and hold a meeting of its shareholders as promptly as reasonably practicable following the mailing of the Proxy Statement for the purpose of obtaining the Company Shareholder Approval (such meeting or any adjournment or postponement thereof, the “Company Meeting”), and (ii) subject to Section 5.3(d), use reasonable best efforts to solicit from its shareholders proxies in favor of the approval of this Agreement, the Merger and the other transactions contemplated hereby; provided that, in the event of a Change in Recommendation pursuant to Section 5.3(d), notwithstanding clause (ii) of this Section 5.4(b), (x) the Company may disclose the fact of such Change in Recommendation in any solicitation made by the Company to its shareholders and (y) the Company shall not be required to solicit proxies in favor of the Company Shareholder Approval unless the Board of Directors of the Company or Special Committee thereafter reaffirms the Recommendation.

Section 5.5 Efforts.

(a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall, and the Company shall cause each of its Subsidiaries to, use its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) obtaining all necessary actions or nonactions, waivers, consents and approvals, including the Company Approvals, from Governmental Entities or other persons and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby.

(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly, but in no event later than fourteen (14) Business Days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act as promptly as reasonably practicable, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use reasonable best efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state or foreign antitrust enforcement authorities or competition authorities, other Governmental Entities, or other state or federal regulatory authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date) and (iv) subject to applicable legal limitations and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement, including to the extent permitted by Law promptly furnishing the other with copies of notices or other communications sent or received by the Company or Parent, as the case may be, or any of their Subsidiaries, to or from any third party and/or any Governmental Entity with respect thereto, and permit the other to review in advance any proposed written communication by such party to any supervisory or Governmental Entity. Notwithstanding anything in this Agreement to the contrary, except as provided below, nothing contained in this Agreement shall be deemed to require Parent or any of its Affiliates, or the Company (unless requested by Parent) or any of its Subsidiaries or the Surviving Corporation or any of its Affiliates to take or agree to take any Action of Divestiture or Limitation. For purposes of this Agreement, an “Action of Divestiture or Limitation” shall mean (i) executing or carrying out agreements or submitting to the requirements of any Governmental Entity providing for a license, sale or other disposition of any assets or businesses or categories of assets or businesses of the Company and its Subsidiaries or the holding separate of any assets or businesses or Company capital stock or imposing or seeking to impose any limitation on the ability of the Company or any of its Subsidiaries to own such assets or to acquire, hold or exercise full rights of ownership of the Company’s business or on the ability of the Company to conduct the business of the Company and its Subsidiaries, (ii) modification of a Company Permit or the terms of any Contract with any customer of the Company or any of its Subsidiaries in a manner that would materially reduce the economic benefits of such Company Permit or Contract or (iii) the imposition of any material condition or limitation that restricts the business of Parent or its Affiliates. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Notwithstanding anything in this Agreement to the contrary, the Company shall, upon the request of Parent, agree to take any Action of Divestiture or Limitation with respect to the Company or any of its Subsidiaries so long as such Action of Divestiture or Limitation is binding on the Company and its Subsidiaries only in the event the Closing occurs. Notwithstanding anything in this Agreement to the contrary, the Company shall not, and shall cause its Subsidiaries not to, undertake any Action of Divestiture or Limitation with respect to the Company or any of its Subsidiaries without the consent of Parent, which may be withheld in Parent’s sole discretion.

(c) Subject to the rights of Parent in Section 5.10, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.5, if any administrative or judicial action or proceeding, including any proceeding by a private party, is (or has been prior to the date hereof) instituted (or threatened to be instituted) challenging the Merger or any other transaction contemplated by this Agreement, each of the Company and Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or any other transactions contemplated hereby. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.5 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with its obligations under this Section 5.5.

(d) For purposes of this Agreement, “Regulatory Law” means any and all state, federal and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Merger and the transactions contemplated thereby, including (i) the Sherman Act of 1890, the Clayton Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) any Law governing the direct or indirect ownership or control of any of the operations or assets of the Company and its Subsidiaries or (iii) any Law with the purpose of protecting the national security or the national economy of any nation.

Section 5.6 Takeover Statute. If any “fair price,” “moratorium,” “control share acquisition,” “affiliate transaction,” “business combination” or other form of anti-takeover statute or regulation shall become applicable to the Merger, the Rollover Commitments or the other transactions contemplated by this Agreement to which an available exemption is not available therefrom, each of the Company and Parent and the members of the Company’s Board of Directors shall grant such approvals and take such actions as are necessary so that the Merger, the Rollover Commitments and the other transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated herein and otherwise act to eliminate or minimize the effects of such statute or regulation on the Merger, the Rollover Commitments and the other transactions contemplated hereby.

Section 5.7 Public Announcements. The Company and Parent will consult with and provide each other the opportunity to review and comment upon any press release or other public statement or comment prior to the issuance of such press release or other public statement or comment relating to this Agreement or the transactions contemplated herein and shall not issue any such press release or other public statement or comment prior to such consultation except as may be required by applicable Law or by obligations pursuant to any listing agreement with any national securities exchange. Parent and the Company agree to issue a joint press release announcing the execution and delivery of this Agreement.

Section 5.8 Indemnification and Insurance.

(a) Parent and Merger Sub agree that all rights to exculpation, advancement of expenses and indemnification for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, now existing in favor of the current or former directors, officers or employees (in their capacity as such and not as shareholders or option holders of the Company or its Subsidiaries), as the case may be, of the Company or its Subsidiaries as provided in the Company Charter Documents or Subsidiary Documents, or in any agreement in effect on the date of this Agreement, shall survive the Merger and shall continue in full force and effect. For a period of six (6) years from the Effective Time, to the extent permitted under applicable Law, Parent shall cause the Surviving Corporation to adopt or maintain exculpation, advancement of expenses and indemnification provisions no less favorable than those set forth in the Company Charter Documents and Subsidiary Documents in effect immediately prior to the Effective Time, and shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any individuals who at the Effective Time were current or former directors, officers or employees of the Company or any of its Subsidiaries; provided, however, that all rights to indemnification, advancement of expenses and exculpation in respect of any Action pending or asserted or any claim made within such six (6) year period shall continue until the disposition of such Action or resolution of such claim.

(b) From and after the Effective Time, Parent shall cause the Surviving Corporation to indemnify and hold harmless, to the fullest extent permitted under applicable Law, each current and former director or officer of the Company or of a Subsidiary of the Company (each, together with such person’s heirs, executors, administrators or personal representatives, an “Indemnified Party” and, collectively, the “Indemnified Parties”) against any costs or expenses, judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, based on or arising out of (i) the fact that such Indemnified Party was a director or officer of the Company or such Subsidiary or (ii) acts or omissions by an Indemnified Party in the Indemnified Party’s capacity as a director or officer of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary, in each case under (i) or (ii), at, or at any time prior to, the Effective Time (including any claim, suit, action, proceeding or investigation relating in whole or in part to the transactions contemplated by this Agreement) (each, an “Action”); provided, however, that the Surviving Corporation shall not be liable for any settlement effected without the Surviving Corporation’s prior written consent, and the Surviving Corporation shall not be obligated to pay the fees and expenses of more than one counsel (selected by a plurality of the applicable Indemnified Parties) for all Indemnified Parties in any one jurisdiction with respect to any single Action except to the extent there is, in the opinion of counsel to an Indemnified Party, under applicable standards of professional conduct, a conflict on any significant issue between positions of such Indemnified Party and any other Indemnified Party or Indemnified Parties.

(c) For a period of six (6) years from the Effective Time, Parent shall either cause to be maintained in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and its Subsidiaries or provide substitute policies or purchase or cause the Surviving Corporation to purchase a “tail policy” for such period, in either case, of at least the same coverage and amounts containing terms and conditions that are not less advantageous in the aggregate than such policy with respect to matters arising on or before the Effective Time; provided, however, that after the Effective Time, Parent shall not be required to pay with respect to such insurance policies in respect of any one policy year more than 250% of the last annual premium paid by the Company prior to the date hereof in respect of the coverages required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount; and provided, further that if the Surviving Corporation purchases a “tail policy” and the same coverage costs more than 250% of such last annual premium, the Surviving Corporation shall purchase the maximum amount of coverage that can be obtained for 250% of such last annual premium.

(d) The rights of each Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the Company Charter Documents or Subsidiary Documents or the organizational documents of the Surviving Corporation, any other indemnification arrangement, the NCBCA or otherwise. The provisions of this Section 5.8 shall survive the consummation of the Merger and expressly are intended to benefit, and are enforceable by, each of the Indemnified Parties.

(e) In the event Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any person, then, and in either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.8. The Surviving Corporation shall pay all reasonable expenses, including, without limitation, reasonable attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligation provided in this Section 5.8.

Section 5.9 Financing.

(a) Parent shall use its reasonable best efforts to obtain the Financing on the terms and conditions described in the Financing Commitments, including using its reasonable best efforts (i) to negotiate definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments, (ii) to satisfy all conditions applicable to Parent, or Merger Sub in such definitive agreements, (iii) to comply with its obligations under the Financing Commitments, (iv) to obtain alternative financing commitments on terms no less favorable to Parent, Merger Sub or the Company than the current Financing Commitments if the current Financing Commitments become unavailable, and (v) to not agree to any amendment or modification to be made to, or any waiver of any material provision or remedy under the Financing Commitments, if such amendment, modification, waiver or remedy reduces the aggregate amount of the Financing or amends the conditions precedent to the Financing in a manner that would reasonably be expected to delay or prevent the consummation of the Merger or make the funding of the Financing less likely to occur. Parent shall give the Company prompt notice upon becoming aware of any material breach by any party of the Financing Commitments or any termination of the Financing Commitments. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company copies of all documents related to the Financing Commitments and the Financing (other than any ancillary documents subject to confidentiality agreements, including fee letters and engagement letters). In the event that (i) all conditions in Sections 6.1 and 6.3 have been satisfied (or, with respect to certificates to be delivered at the Closing, are capable of being satisfied upon the Closing) at the time when the Closing would have occurred but for the failure of the Financing Commitments to be funded, (ii) the financing provided for by the Debt Commitments has been funded or Parent has received written notification that it will be funded at the Closing if the Buyer Group Commitments are funded at the Closing, and (iii) the Company has irrevocably confirmed that if the Financing is funded such that the Closing pursuant to Section 1.2 could occur, the Company is willing to waive all conditions in Section 6.2, then Parent shall enforce its rights under the Financing Commitments to cause the Financing Commitments to be funded at the Closing. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letters, (A) Parent and Merger Sub shall promptly notify the Company and (B) Parent and Merger Sub shall use their reasonable best efforts to seek to arrange and obtain alternative financing from alternative sources on terms no less favorable to Parent, Merger Sub or the Company than the current Financing Commitments in an amount sufficient to consummate the merger which would not reasonably be expected to prevent, materially impede or delay the consummation of the transactions contemplated by this Agreement. Parent shall give the Company prompt notice of any material breach by any party to the Financing Commitments or of any condition not likely to be satisfied, in each case, of which Parent or Merger Sub becomes aware or any termination of the Financing Commitments. Parent and Merger Sub acknowledge and agree that the obtaining of the Financing, or any alternative Financing, is not a condition to Closing. In connection with its obligations under this Section 5.9, Parent shall not be restricted from amending, modifying or replacing the Debt Commitment Letters with new Financing Commitments, including through co-investment by or financing from one or more other additional parties (the “New Financing Commitments”) if the same does not reduce the aggregate amount of Parent’s financing or amend the conditions to drawdown in a manner adverse to the Company’s interests hereunder or otherwise delay or prohibit consummation of the Merger or other transactions contemplated hereby.

(b) The Company shall provide, and shall cause its Subsidiaries and each of its and their respective Representatives, including legal and accounting, to provide, all cooperation reasonably requested by Parent and that is customary in connection with the arrangement of the Financing, and the other transactions contemplated by this Agreement, provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company, including (i) providing information as promptly as practicable relating to the Company and its Subsidiaries to the parties providing the Financing, (ii) participating in a reasonable number of meetings, drafting sessions and due diligence sessions in connection with the Financing, (iii) providing assistance in the preparation of (A) one or more offering documents or confidential information memoranda for any of the Debt Financing (including the execution and delivery of one or more customary representation letters in connection therewith) and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing and syndicating efforts for any of the Debt Financing, including providing (A) assistance in the preparation for, and participating in, meetings, due diligence sessions and similar presentations to and with, among others, prospective lenders, investors and rating agencies and (B) for the use of the Company’s logo in connection with such marketing and syndicating efforts (provided that such logo is used solely in a manner that is not intended to nor reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries and its or their marks), (v) executing and delivering (or obtaining from advisors), and causing its Subsidiaries to execute and deliver (or obtain from advisors), customary certificates (including solvency certificates), comfort letters, legal opinions or other documents and instruments relating to guarantees, the pledge of collateral and other matters ancillary to the Financing as may be reasonably requested by Parent in connection with the Financing and otherwise facilitating the pledge of collateral and providing of guarantees contemplated by the Debt Commitment Letter; provided, however, that no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument (other than the representation letters referred to above) shall be effective until the Effective Time and none of the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability in connection with the Financing prior to the Effective Time, and (vi) providing Parent with (A) customary pay-off letters with respect to the current credit facilities of the Company and its Subsidiaries and (B) recordable form lien releases, canceled notes and other documents reasonably requested by Parent prior to the Closing indicating that all Liens resulting from such credit facilities shall be satisfied, terminated and discharged on or prior to the Closing Date. The Company shall request, and Parent shall promptly, upon such request, reimburse Company for all reasonable and documented out-of-pocket costs incurred by the Company or any of its Subsidiaries in connection with the foregoing cooperation and shall indemnify and hold harmless the Company, its Subsidiaries, and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with such cooperation or the Financing. All material, non-public information regarding the Company and its Subsidiaries provided to Parent or Merger Sub or their Representatives pursuant to this Section 5.9 shall be kept confidential by them in accordance with the Confidentiality Agreements except for disclosure to potential financing sources as required in connection with the Financing Commitments (and then subject to customary confidentiality protections).

Section 5.10 Shareholder Litigation.

(a) The Company shall give Parent the opportunity to participate at its own expense in the defense or settlement of any shareholder litigation against the Company and/or its directors relating to the Merger or any other transactions contemplated hereby; provided, however, that no such settlement shall be agreed to without Parent’s consent, which shall not be unreasonably withheld, conditioned or delayed.

(b) The Company shall give Parent prompt notice of any claims received by it relating to any Dissenting Shares or Dissenting Shareholders, and Parent shall have the right to participate in all negotiations and proceedings with respect to such claims. The Company shall not settle or compromise prior to the Effective Time any claim of a Dissenting Shareholder without the prior written consent of Parent, which shall not be unreasonably withheld, conditioned or delayed. Parent and Merger Sub consent to the Company providing its shareholders with dissenters’ rights in connection with the Merger in accordance with Article 13 of the NCBCA.

Section 5.11 Notification of Certain Matters. The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) any notice or other communication received by such party from any Governmental Entity in connection with the Merger or the other transactions contemplated hereby or from any person alleging that the consent of such person is or may be required in connection with the Merger or the other transactions contemplated hereby, if the subject matter of such communication or the failure of such party to obtain such consent could reasonably be expected to be material to the Company, the Surviving Corporation or Parent or any of their Subsidiaries, (ii) any actions, suits, claims, investigations or proceedings commenced or, to such party’s Knowledge, threatened against, relating to or involving or otherwise affecting such party or any of its Subsidiaries which relate to the Merger or the other transactions contemplated hereby, (iii) the discovery of any fact or circumstance that, or the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would or would reasonably be expected to cause or result in any of the conditions to the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement; provided, however, that the delivery of any notice pursuant to this Section 5.11 shall not (x) cure any breach of, or non-compliance with, any other provision of this Agreement or (y) limit the remedies available to the party receiving such notice. The Company shall notify Parent, on a current basis, of any events or changes with respect to any criminal or regulatory investigation or action involving the Company or any of its Subsidiaries, and shall reasonably cooperate with Parent or its Affiliates in efforts to mitigate any adverse consequences to Parent or its Affiliates which may arise (including by coordinating and providing assistance in meeting with regulators).

Section 5.12 Rule 16b-3. Prior to the Effective Time, the Company shall take all commercially reasonable steps to cause dispositions of Company equity securities (including derivative securities) pursuant to the transactions contemplated by this Agreement by each individual who is a director or officer of the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act.

Section 5.13 Control of Operations. Without in any way limiting any party’s rights or obligations under this Agreement, the parties understand and agree that (i) nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s operations prior to the Effective Time, and (ii) prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations.

ARTICLE VI

CONDITIONS TO THE MERGER

Section 6.1 Conditions to Each Party’s Obligation to Effect the Merger. The respective obligations of each party to effect the Merger shall be subject to the fulfillment (or waiver by all parties, to the extent any such condition may be waived in compliance with applicable Law and this Agreement) at or prior to the Effective Time of the following conditions:

(a) The Company shall have obtained the requisite shareholder approval to adopt this Agreement, the Merger and transactions contemplated hereby under the NCBCA, the Company Charter Documents and the rules and regulations of the Nasdaq Stock Market as specified in Section 3.21;

(b) No restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger and/or the other transactions contemplated by this Agreement shall be in effect; and

Section 6.2 Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the fulfillment or waiver of the following conditions:

(a) The representations and warranties of Parent and Merger Sub set forth in this Agreement, disregarding all qualifications and exceptions contained therein relating to “Parent Material Adverse Effect” or “materiality,” shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where the failure to be true and correct would not have or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided, however, that representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in this Section 6.2(a)) only as of such date or period;

(b) Parent shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the Effective Time; and

(c) Parent shall have delivered to the Company a certificate, dated the Effective Time and signed by the general partner of Parent, certifying to the effect that the conditions set forth in Sections 6.2(a) and 6.2(b) have been satisfied.

Section 6.3 Conditions to Obligation of Parent and Merger Sub to Effect the Merger. The obligation of Parent and Merger Sub to effect the Merger is further subject to the fulfillment or waiver of the following conditions:

(a) (i) The representations and warranties of the Company contained in Sections 3.1(a), 3.2, 3.21 and 3.24 shall be true and correct in all respects (except, in the case of Sections 3.1(a) and 3.2 for such inaccuracies as are de minimis in the aggregate), in each case at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date and (ii) the representations and warranties of the Company set forth in this Agreement (other than those referred to in clause (i) of this Section 6.3(a)), disregarding all qualifications and exceptions contained therein relating to “Company Material Adverse Effect” or “materiality,” shall be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date, except where in the case of this clause (ii) the failure to be true and correct would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, however, that, with respect to clauses (i) and (ii) hereof, representations and warranties that are made as of a particular date or period shall be true and correct (in the manner set forth in clauses (i) or (ii), as applicable) only as of such date or period;

(b) The Company shall have in all material respects performed all obligations and complied with all covenants required by this Agreement to be performed or complied with by it prior to the Effective Time;

(c) The Company shall have delivered to Parent a certificate, dated the Effective Time and signed by its Chief Financial Officer or another senior executive officer, certifying to the effect that the conditions set forth in Sections 6.3(a) and 6.3(b) have been satisfied;

(d) Since the date of this Agreement there shall not have occurred and be continuing any Company Material Adverse Effect; and

(e) Holders of no more than ten percent (10%) of the outstanding Company Common Stock shall be Dissenting Shareholders.

ARTICLE VII

TERMINATION

Section 7.1 Termination. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the shareholders of the Company:

(a) by the mutual written consent of the Company and Parent;

(b) by either the Company or Parent, if:

(i) the Effective Time shall not have occurred on or before June 30, 2008 (subject to the following proviso, the “End Date”), and the party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not have breached its obligations under this Agreement in any manner that shall have caused the failure to consummate the Merger on or before the End Date; provided, however, that in the event the conditions set forth in Section 6.1(c) shall not have been satisfied on or before the End Date, Parent may unilaterally extend, by notice delivered to the Company on or prior to the original End Date, the End Date until September 30, 2008, in which case the End Date shall be deemed for all purposes to be such date;

(ii) an injunction, other legal restraint or order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and such injunction, other legal restraint or order shall have become final, provided that the party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have used its reasonable best efforts to remove such injunction, other legal restraint or order to the extent required to do so by Section 5.5; or

(iii) the Company Meeting (including any adjournments thereof) shall have concluded and the Company Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right of the Company to terminate this Agreement under this Section 7.1(b)(iii) shall not be available to it if it has failed to comply in all material respects with its obligations under Section 5.3 or 5.4;

(i) Parent shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (A) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (B) cannot be cured by the End Date, provided that the Company shall have given Parent written notice, delivered at least ten (10) days prior to such termination, stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(c)(i) and the basis for such termination; providedfurther that in the event any court of competent jurisdiction determines that Parent failed to consummate the Merger despite an obligation under the terms of the Agreement to do so, such determination shall be grounds for the Company to terminate this Agreement; or

(ii) prior to the receipt of the Company Shareholder Approval, (A) the Board of Directors of the Company (or the Special Committee) has received a Superior Proposal, (B) in light of such Superior Proposal a majority of the disinterested directors of the Company (or the Special Committee) shall have determined in good faith, after consultation with outside counsel, that the failure to make a Change in Recommendation would be inconsistent with the Board of Directors of the Company’s (or the Special Committee’s) fiduciary duty under applicable Law, (C) the Company is in compliance, in all material respects, with Section 5.3, and (D) the Board of Directors of the Company has approved, and the Company concurrently with the termination of this Agreement enters into, a definitive agreement providing for the implementation of such Superior Proposal; provided that the Company has notified Parent in writing of the determinations described in clause (B) above, and at least five Business Days following receipt by Parent of such notice, and taking into account any revised proposal made by Parent since receipt of such notice, such Superior Proposal remains a Superior Proposal and a majority of the disinterested directors of the Company (or the Special Committee) has again made the determinations referred to in clause (B) above, and providedfurther that the Company concurrently with the termination of this Agreement pays the fee due under Section 7.2;

(iii) (A) all conditions in Sections 6.1 and 6.3 remain satisfied (or, with respect to certificates to be delivered at the Closing, are capable of being satisfied upon the Closing), (B) the Company has irrevocably confirmed that it is willing to waive all conditions in Section 6.2, and (C) Parent provides written notice to the Company that it is not willing to consummate the Merger; or

(iv) after a period of forty-five (45) days following the giving of written notice from Company to Parent if, at the time of the provision of such notice, (A) all conditions in Sections 6.1 and 6.3 remain satisfied (or, with respect to certificates to be delivered at the Closing, are capable of being satisfied upon the Closing), (B) the Company has irrevocably confirmed that all conditions set forth in Section 6.2 have been satisfied or that it is willing to waive all conditions in Section 6.2, and (C) the Closing has not taken place;

(d) by Parent, if:

(i) the Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (A) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (B) cannot be cured by the End Date, provided that Parent shall have given the Company written notice, delivered at least ten (10) days prior to such termination, stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(d)(i) and the basis for such termination;

(ii) the Board of Directors of the Company or the Special Committee makes a Change in Recommendation;

(iii) the Company or any of its Subsidiaries or Representatives willfully and materially breaches its obligations under Section 5.3 or 5.4 or if the Company gives Parent the notification contemplated by Section 7.1(c)(ii); or

(iv) since the date of this Agreement (A) there shall have been a Company Material Adverse Effect that cannot be cured by the End Date, or (B) any fact, circumstance, event, change, effect or occurrence shall have occurred that, individually or in the aggregate with all other facts, circumstances, events, changes, effects or occurrences would be reasonably likely to prevent or materially delay or materially impair the ability of the Company to perform its obligations hereunder or to consummate the Merger or the other transactions contemplated hereby, and that cannot be cured by the End Date.

In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the Confidentiality Agreements and the provisions of Section 7.2 and Article VIII), and there shall be no other liability or obligation on the part of the Company or Parent and Merger Sub to the other, except as specified in Section 7.2 (subject to any limitations or other provisions pertaining thereto expressly set forth in this Agreement) or liability or obligation as provided for in the Confidentiality Agreements; provided, however, that nothing in this Section 7.1 or otherwise in this Agreement shall be deemed to limit or restrict the pursuit of the remedies available to Parent and Merger Sub specified in Section 8.5, which shall be cumulative, and not exclusive, of any other remedies provided hereunder (including those specified in Section 7.2), regardless of any actual or purported termination of this Agreement.

Section 7.2 Termination Fee.

(a) In the event that:

(i) (A) an Alternative Proposal shall have been made to the Company on or after the date hereof, or shall have been made directly to its shareholders generally on or after the date hereof, or any person shall have publicly announced on or after the date hereof an intention (whether or not conditional or withdrawn) to make an Alternative Proposal and thereafter, (B) this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i) or 7.1(b)(iii), or by Parent pursuant to 7.1(d)(i) and (C) the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by any Alternative Proposal within twelve (12) months of the date this Agreement is terminated;

(ii) (A) no Alternative Proposal is made to the Company after the date hereof, or made directly to its shareholders generally after the date hereof, and no person shall have publicly announced, after the date hereof, an intention (whether or not conditional or withdrawn) to make an Alternative Proposal, (B) this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i) or 7.1(b)(iii), or by Parent pursuant to 7.1(d)(i) and (C) the Company enters into a definitive agreement with respect to, or consummates, a transaction within twelve (12) months of the date this Agreement is terminated with any person who made or whose Affiliate made an Alternative Proposal prior to the date hereof to the Company or directly to its shareholders or who publicly announced prior to the date hereof an intention to make an Alternative Proposal;

(iii) this Agreement is terminated by the Company pursuant to Section 7.1(c)(ii); or

(iv) this Agreement is terminated by Parent pursuant to Section 7.1(d)(ii), or pursuant to Section 7.1(d)(iii);

then in any such event under clause (i), (ii), (iii) or (iv) or of this Section 7.2(a), the Company shall pay to Parent a termination fee of $19,027,627 in cash (the “Company Termination Fee”), it being understood that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion.

(b) In the event that this Agreement is terminated by the Company pursuant to Section 7.1(c)(i), 7.1(c)(iii) or 7.1(c)(iv), then Parent shall pay to the Company a termination fee of $29,900,556 in cash (the “Parent Termination Fee”), it being understood that in no event shall the Parent be required to pay the Parent Termination Fee on more than one occasion.

In the event that an Alternative Proposal shall have been made to the Company on or after the date hereof or shall have been made directly to its shareholders generally on or after the date hereof or any person shall have publicly announced on or after the date hereof an intention (whether or not conditional or withdrawn) to make an Alternative Proposal and thereafter this Agreement is terminated by the Company or Parent pursuant to Section 7.1(b)(i), 7.1(b)(iii) or by Parent pursuant to Section 7.1(d)(i) and no Company Termination Fee is yet payable in respect thereof pursuant to Section 7.2(a)(i), then the Company shall pay to Parent all of the Expenses of Parent and Merger Sub and thereafter the Company shall be obligated to pay to Parent the Company Termination Fee (less the amount of Expenses previously actually paid to Parent pursuant to this sentence) in the event such fee is payable pursuant to Section 7.2(a)(i); provided, however, that the Company will under no circumstances be required to pay Expenses exceeding $8.75 million (the “Expense Cap”), and in no event shall the Company be required to pay Expenses on more than one occasion. As used herein, “Expenses” shall mean all reasonable, itemized, and documented out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, consultants, financial advisors and investment bankers of Parent and its shareholders and Affiliates), incurred by Parent or Merger Sub or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and the Financing and all other matters related to the Merger.

In the event that an Alternative Proposal shall have been made to the Company or shall have been made directly to its shareholders generally or any person shall have publicly announced an intention (whether or not conditional or withdrawn) to make an Alternative Proposal and thereafter this Agreement is terminated by Parent pursuant to Section 7.1(d)(i) and no Company Termination Fee is yet payable in respect thereof pursuant to Section 7.2(a)(ii), then the Company shall pay to Parent all of the Expenses of Parent and Merger Sub and thereafter the Company shall be obligated to pay to Parent the Company Termination Fee (less the amount of Expenses previously actually paid to Parent pursuant to this sentence) in the event such fee is payable pursuant to Section 7.2(a)(ii); provided, however, that the Company will under no circumstances be required to pay Expenses exceeding the Expense Cap, and in no event shall the Company be required to pay Expenses on more than one occasion.

In the event that Parent terminates this Agreement pursuant to Section 7.1(d)(i) as a result of a failure of a condition set forth in Section 6.3(a)(i), the Company shall pay to Parent all of the Expenses of Parent and Merger Sub up to the Expense Cap (it being understood that in no event shall the Company be required to pay Expenses on more than one occasion), and thereafter the Company shall be obligated to pay to Parent the Company Termination Fee (less the amount of Expenses previously actually paid to Parent pursuant to this sentence) in the event the Company enters into a definitive agreement with respect to, or consummates any Alternative Proposal within twelve (12) months of the date this Agreement is terminated. For purposes of this Section 7.2 only, in all references to the defined term “Alternative Proposal,” the figure “25%” will be deemed to be replaced by the figure “40%.”

(c) Any payment required to be made pursuant to Section 7.2(a)(i) or pursuant to Section 7.2(a)(ii) shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or the consummation of, any transaction contemplated by an Alternative Proposal (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment); any payment required to be made pursuant to Section 7.2(a)(iii) shall be made to Parent concurrently with, and as a condition to the effectiveness of, the termination of this Agreement by the Company pursuant to Section 7.1(c)(ii); any payment required to be made pursuant to Section 7.2(a)(iv) shall be made to Parent promptly following termination of this Agreement by Parent pursuant to Section 7.1(d)(ii) or (iii), as applicable (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment); any payment pursuant to Section 7.1(d)(i) as a result of a failure of a condition set forth in Section 6.3(a)(i) shall be made to Parent promptly following termination of this Agreement by Parent, provided that if the Company Termination Fee shall become payable thereafter, such Company Termination Fee shall be made to Parent promptly following the earlier of the execution of a definitive agreement with respect to, or the consummation of, any Alternative Proposal (and in any event not later than two Business Days after delivery to the Company of notice of demand for payment). Any payment required to be made pursuant to Section 7.2(b) shall be made to the Company promptly following termination of this Agreement by the Company (and in any event not later than two Business Days after delivery to Parent of notice of demand for payment). In circumstances in which Expenses are payable, such payment shall be made to Parent not later than two Business Days after delivery to the Company of an itemization setting forth all Expenses of Parent (which itemization may be supplemented and updated from time to time by such party until the 60th day after such party delivers such notice of demand for payment). Any payments required hereunder shall be made by wire transfer of immediately available funds to an account designated by Parent or the Company as the case may be.

(d) In the event that any Person shall fail to fully pay the Company Termination Fee, Parent Termination Fee and/or Expenses, as applicable, required pursuant to this Section 7.2 when due, such fee and/or Expenses, as the case may be, shall accrue interest for the period commencing on the date such fee, and/or Expenses, as the case may be, became past due, at a rate equal to the rate of interest payable upon a judgment for breach of contract entered by a North Carolina State court. In addition, if any Party shall fail fully to pay such fee and/or Expenses, as the case may be, when due, such Person shall also pay to the other Person all of such party’s costs and expenses (including attorneys’ fees) in connection with efforts to collect such fee and/or Expenses, as the case may be. The parties acknowledge that the Company Termination Fee, Parent Termination Fee, Expense reimbursement and the other provisions of this Section 7.2 are an integral part of the Merger and that, without these agreements, neither party would enter into this Agreement and that actual damages for breaches of this Agreement may be impractical and difficult to ascertain accurately; that the Company Termination Fee, Parent Termination Fee, Expense reimbursement and the other provisions of this Section 7.2 are fair and reasonable estimates of, damages likely to be suffered by the respective parties in the event of occurrence of the circumstances giving rise to such respective payments; and that any amounts payable pursuant to this Section 7.2 therefore constitute liquidated damages and not a penalty.

(e) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE COMPANY’S RIGHT TO RECEIVE PAYMENT FROM PARENT OF THE PARENT TERMINATION FEE AND ENFORCE THE GUARANTEE SHALL BE THE SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW, IN EQUITY, IN CONTRACT , IN TORT OR OTHERWISE) OF THE COMPANY AND ITS SUBSIDIARIES AGAINST PARENT AND MERGER SUB OR ANY OF THEIR RESPECTIVE FORMER, CURRENT OR FUTURE GENERAL OR LIMITED PARTNERS, STOCKHOLDERS, MANAGERS, MEMBERS, DIRECTORS, OFFICERS OR AFFILIATES FOR THE LOSS SUFFERED AS A RESULT OF THE FAILURE OF THE MERGER TO BE CONSUMMATED OR FOR A BREACH OR FAILURE TO PERFORM HEREUNDER OR OTHERWISE, AND UPON PAYMENT OF SUCH AMOUNT NONE OF PARENT AND MERGER SUB OR ANY OF THEIR FORMER, CURRENT OR FUTURE GENERAL OR LIMITED PARTNERS, STOCKHOLDERS, MANAGERS, MEMBERS, DIRECTORS, OFFICERS OR AFFILIATES SHALL HAVE ANY FURTHER LIABILITY OR OBLIGATION RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. IN NO EVENT SHALL THE COMPANY BE ENTITLED TO SEEK THE REMEDY OF SPECIFIC PERFORMANCE OF THIS AGREEMENT.

Section 7.3 Frustration of Closing Conditions. Neither the Company nor Parent may rely, either as a basis for not consummating the Merger, terminating this Agreement and abandoning the Merger or preventing the other party from exercising its rights to terminate this Agreement under Section 7.1, on the failure of any condition set forth in Section 6.1, 6.2 or 6.3, as the case may be, to be satisfied if such failure was caused by such party’s breach in any material respect of this Agreement or any covenant set forth herein.

ARTICLE VIII

MISCELLANEOUS

Section 8.1 No Survival of Representations and Warranties. None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Merger.

Section 8.2 Expenses. Except as set forth in Section 7.2 or as elsewhere provided in this Agreement, whether or not the Merger is consummated, all costs and expenses incurred in connection with the Merger, this Agreement and the transactions contemplated hereby shall be paid by the party incurring or required to incur such expenses.

Section 8.3 Counterparts; Effectiveness. This Agreement may be executed in two or more consecutive counterparts (including by facsimile), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.

Section 8.4 Governing Law. This Agreement shall be solely governed by and construed pursuant to the laws of the State of North Carolina, and all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance hereof, shall be governed solely by the laws of the State of North Carolina, all without giving effect to any choice or conflict of law provision or rule (whether of the State of North Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of North Carolina.

Section 8.5 Jurisdiction; Enforcement.

(a) The parties agree that irreparable damage would occur to Parent and Merger Sub in the event that any of the provisions of this Agreement were not performed by the Company in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parent and Merger Sub shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement exclusively in Superior Court in Wake County of the State of North Carolina, or in the event (but only in the event) that such court does not have subject matter jurisdiction over such action or proceeding, in the United States District Court for the Eastern District of North Carolina, without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. In addition, each of the parties hereto irrevocably agrees that any legal action or proceeding that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance hereof (whether at law, in equity, in contract, in tort or otherwise), shall be brought and determined exclusively in Superior Court in Wake County of the State of North Carolina, or in the event (but only in the event) that such court does not have subject matter jurisdiction over such action or proceeding, in the United States District Court for the Eastern District of North Carolina. Each party further consents and agrees that any action commenced in a Superior Court in North Carolina may be assigned to a Special Superior Court Judge for Complex Business Cases and thereby adjudicated pursuant to the rules of the North Carolina Business Court. Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the exclusive jurisdiction of the aforesaid courts and agrees that it will not bring any such action in any court other than the aforesaid courts. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PARENT AND MERGER SUB ACKNOWLEDGE THAT, IF AN INJUNCTION IN FAVOR OF THE PARENT OR MERGER SUB IS GRANTED OR PARENT IS ENTITLED TO A COMPANY TERMINATION FEE AND/OR EXPENSES FROM THE COMPANY AS PROVIDED BY SECTION 7.2 FOR LOSSES SUFFERED AS A RESULT OF THE FAILURE OF THE MERGER TO BE CONSUMMATED OR FOR A BREACH OR FAILURE TO PERFORM HEREUNDER OR OTHERWISE, SUCH REMEDIES SHALL BE PARENT’S SOLE AND EXCLUSIVE REMEDY AGAINST THE COMPANY OR ANY OF ITS FORMER, CURRENT OR FUTURE STOCKHOLDERS, DIRECTORS, OFFICERS, OR AFFILIATES; AND UPON PAYMENT OF SUCH AMOUNT OR PERFORMANCE (AS APPLICABLE), NONE OF COMPANY OR ANY OF ITS FORMER, CURRENT OR FUTURE STOCKHOLDERS, DIRECTORS, OFFICERS OR AFFILIATES SHALL HAVE ANY FURTHER LIABILITY OR OBLIGATION RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(b) Notwithstanding the rights accorded to Parent and Merger Sub under Section 8.5(a) or anything to the contrary in this Agreement, each of the parties hereto agrees that the Company shall not be entitled to an injunction or injunctions or other equitable remedies to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement and the sole and exclusive remedy available to the Company under this Agreement shall be the Company’s right to receive and judicially enforce payment from Parent of the Parent Termination Fee and judicially enforce the Guarantee. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above named courts, (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by the applicable Law, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Each party hereby represents and agrees that its designee for notices as identified in Section 8.7 below shall have full authority to act as an agent for the acceptance of service of process for such party.

Section 8.6 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF.

Section 8.7 Notices. Any notice required to be given hereunder shall be sufficient if in writing, and sent by personal delivery, by confirmed facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business Day), by reliable overnight delivery service (with proof of service) or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:

To Parent or Merger Sub:

Marlin HoldCo LP

c/o Macquarie Securities (USA) Inc.

125 West 55th Street, 9th Floor

New York, NY 10019

Telecopy: (212) 231-1828

Attention: Christopher Leslie

with a copy (which shall not constitute notice to Parent or Merger Sub) to:

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

Telecopy: (212) 310-8007

Attention: Frederick S. Green

Michael E. Lubowitz

and

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P.

230 N. Elm Street, Suite 2000

Greensboro, NC 27401

Telecopy: (336) 378-1001

Attention: William G. McNairy

J. Lee Lloyd

To the Company:

Waste Industries USA, Inc.

3301 Benson Drive, Suite 601

Raleigh, NC 27609

Telecopy: (919) 325-3013

Attention: D. Stephen Grissom

with a copy (which shall not constitute notice to Company) to:

Robinson, Bradshaw & Hinson, P.A.

101 North Tryon Street, Suite 1900

Charlotte, NC 28246

Telecopy: (704) 378-4000

Attention: Robin L. Hinson

Patrick S. Bryant

Wyrick Robbins Yates & Ponton LLP

The Summit

4101 Lake Boone Trail, Suite 300

Raleigh, NC 27607-7506

Telecopy: (919) 781-4865

Attention: James M. Yates, Jr.

or to such other address as any party shall specify by written notice so given, and such notice shall be deemed to have been delivered as of the date so telecommunicated, personally delivered or otherwise received. Any party to this Agreement may notify any other party of any changes to the address or any of the other details specified in this paragraph; provided, however, that such notification shall only be effective on the date specified in such notice or three (3) Business Days after the notice is given, whichever is later. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver.

Section 8.8 Assignment; Binding Effect. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or transferred by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties, except that (i) Parent may reorganize in a state other than the state of Delaware and (ii) Merger Sub may assign, in its sole discretion, any of or all of its rights, interest and obligations under this agreement to Parent or to any direct or indirect wholly-owned subsidiary of Parent, but no such assignment shall relieve Merger Sub of its obligations hereunder, and any purported assignment or transfer without such consent shall be null and void. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Section 8.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced under any Law, all other provisions of this Agreement remain in full force and effect so long as the economic and legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to any party hereto. If any court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith in an attempt to agree to another provision (instead of the provision held to be invalid, illegal or unenforceable) that is valid, legal and enforceable and carries out the parties’ intentions to the greatest lawful extent under this Agreement.

Section 8.10 Entire Agreement; No Third-Party Beneficiaries. This Agreement (including the exhibits and letters hereto) and the Confidentiality Agreements constitute the entire agreement, and supersede all other prior or contemporaneous agreements and understandings, both written and oral, between the parties, or any of them, with respect to the subject matter hereof and thereof and, except as set forth in Section 5.8, is not intended to and shall not confer upon any person other than the parties hereto any rights or remedies hereunder.

Section 8.11 Amendments; Waivers. Subject to Section 6.1, at any time prior to the Effective Time, any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Company (approved by the Special Committee), Parent and Merger Sub, or in the case of a waiver, by the party against whom the waiver is to be effective (and, in the case of the Company, as approved by the Special Committee); provided, however, that after receipt of Company Shareholder Approval, if any such amendment or waiver shall by applicable Law or in accordance with the rules and regulations of the Nasdaq Stock Market require further approval of the shareholders of the Company, the effectiveness of such amendment or waiver shall be subject to the approval of the shareholders of the Company. Notwithstanding the foregoing, no failure or delay by the Company or Parent in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.

Section 8.12 Headings. Headings of the Articles and Sections of this Agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever. The table of contents to this Agreement is for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

Section 8.13 Interpretation. When a reference is made in this Agreement to an Article or Section, such reference shall be to an Article or Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant thereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement or instrument referred to herein or in any agreement or instrument that is referred to herein means such agreement or instrument as from time to time amended, modified or supplemented, including by waiver or consent, and to all attachments thereto and instruments incorporated therein. Each of the parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement must be construed as if it is drafted by all the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement. Any statute defined or referred to herein or in any agreement or instrument referred to herein shall mean such statute as from time to time amended, modified or supplemented, including by succession of comparable successor statutes, and all rules and regulations promulgated under such statute.

Section 8.14 No Recourse. Notwithstanding anything to the contrary set forth in this Agreement, this Agreement may only be enforced (but subject to the express limitation on the equitable remedy of specific performance referenced in Section 7.2) against, and any claims or causes 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 (except to the extent provided in the Guarantee) no past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, shareholder, agent, attorney or representative of any party hereto 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 negotiation, execution or performance of this Agreement or the transactions contemplated hereby.

Section 8.15 Certain Definitions. For purposes of this Agreement, the following terms will have the following meanings when used herein:

(a) “Affiliates” shall mean, as to any person, any other person which, directly or indirectly, controls, or is controlled by, or is under common control with, such person. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.

(b) “Business Day” shall mean any day other than a Saturday, Sunday or a day on which the banks in New York are authorized by law or executive order to be closed.

(c) “Buyer Group Party” shall mean and include Parent, Merger Sub, any investor in Parent or Merger Sub or any Affiliate of the foregoing participating or acting directly or indirectly with or on behalf of Parent or Merger Sub to effect the acquisition of the Company as contemplated in this Agreement.

(d) “Contracts” means any contracts, agreements, licenses, notes, bonds, mortgages, indentures, commitments, leases or other instruments or obligations, whether written or oral.

(e) “Interim Investors Agreement” means the agreement among certain shareholders of the Company and certain equity holders of Parent governing certain actions of Parent.

(f) “Knowledge” means (i) with respect to Parent, the actual knowledge of the individuals listed on Section 8.15(f)(i) of the Parent Disclosure Letter, and the actual knowledge that such individuals should possess after a reasonable inquiry under the circumstances in light of each individual’s office or position, and (ii) with respect to the Company, the actual knowledge of the individuals listed on Section 8.15(f)(ii) of the Company Disclosure Letter, and the actual knowledge that such individuals should possess after a reasonable inquiry under the circumstances in light of each individual’s office or position. With respect to any other person, “Knowledge” means the actual knowledge of that person, and the knowledge that such person should possess after a reasonable inquiry under the circumstances in light of such individual’s office or position.

(g) “Orders” or “orders” means any orders, judgments, injunctions, awards, decrees or writs handed down, adopted or imposed by, including any consent decree, settlement agreement or similar written agreement with, any Governmental Entity.

(h) “Person” or “person” shall mean an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity, group (as such term is used in Section 13 of the Exchange Act) or organization, including a Governmental Entity, and any permitted successors and assigns of such person.

(i) “Representatives” or “representatives” of a Person means the officers, directors, employees, accountants, counsel, financial advisors, consultants, financing sources, agents and other advisors or representatives of such Person.

(j) “Rollover Commitment” means the commitment made by a Person listed on Section 8.15(j) of the Parent Disclosure Letter (and, following the date hereof, a Person subsequently added by Parent (in its sole discretion) to Section 8.15(j) of the Parent Disclosure Letter) in such Person’s equity rollover letter to Parent, dated as of the date hereof.

(k) “Special Committee” means a committee of the Board of Directors of the Company, the members of which are not affiliated with Merger Sub and are not members of the Company’s management, formed for the purpose of evaluating, and making a recommendation to the full Board of Directors of the Company with respect to, this Agreement and the transactions contemplated hereby, including the Merger, and shall include any successor committee to the Special Committee existing as of the date of this Agreement or any reconstitution thereof.

(l) “Subsidiaries” of any party shall mean any corporation, limited liability company, partnership, association, trust or other form of legal entity of which (i) 50% or more of the outstanding voting securities are directly or indirectly owned by such party, or (ii) such party or any Subsidiary of such party is a general partner.

(m) “Support Agreement” means the support agreement entered into by certain shareholders of the Company and certain equity holders of Parent pursuant to which, among other things, such shareholders have agreed to vote to approve this Agreement and to take certain other actions in furtherance of the Merger.

(n) Each of the following terms is defined in the Sections set forth opposite such term:

Action	37
Action of Divestiture or Limitation	35
Affiliate Transaction	17
Affiliates	54
Agreement	1
Alternative Proposal	32
Articles of Merger	2
Balance Sheet Date	13
Book-Entry Shares	4
Business Day	54
Buyer Group Commitments	25
Buyer Group Financing	25
Buyer Group Party	54
Cancelled Shares	3
Certificates	4
Change in Recommendation	31
Claims	14
Closing	1
Closing Date	1
Code	4
Company	1
Company Approvals	11
Company Benefit Plans	15
Company Charter Documents	7
Company Common Stock	3
Company Disclosure Letter	7
Company Material Adverse Effect	8
Company Material Contracts	22
Company Meeting	34
Company Permits	13
Company Preferred Stock	8
Company SEC Documents	11
Company Shareholder Approval	22
Company Stock Option	5
Company Stock Plans	6
Company Termination Fee	47
Confidentiality Agreements	30
Contracts	55
control	54
controlled corporation	19
Debt Commitment Letters	25
Debt Financing	25
Dissenters’ Rights Provisions	6
Dissenting Shareholder	6
Dissenting Shares	6
distributing corporation	19
Effective Time	2
Employees	20
End Date	43
Environmental Claim	14
Environmental Laws	14
Environmental Permits	13
ERISA	15
ERISA Affiliate	15
Exchange Act	10
Exchange Fund	4
Expense Cap	47
Expenses	47
Financing	25
Financing Commitments	25
GAAP	12
Governmental Entity	11
Guarantee	26
Hazardous Substance	15
HSR Act	10
Indemnified Parties	37
Indemnified Party	37
Intellectual Property	21
Interim Investors Agreement	55
IRS	16
Knowledge	55
Law	13
Laws	13
Lien	11
Macquarie	26
Merger	1
Merger Consideration	3
Merger Sub	1
NCBCA	1
New Financing Commitments	39
Option Consideration	6
orders	55
Orders	55
Parent	1
Parent Disclosure Letter	23
Parent Material Adverse Effect	24
Parent Termination Fee	47
Paying Agent	4
PBGC	16
person	55
Person	55
Proxy Statement	18
Public Shareholders	1
Recommendation	10
Regulatory Law	36
representatives	55
Representatives	55
Rollover Commitment	55
Sarbanes-Oxley Act	12
Schedule 13E-3	18
SEC	11
Securities Act	11
Share	3
Special Committee	55
Subsidiaries	55
Subsidiary Documents	7
Superior Proposal	32
Support Agreement	56
Surviving Corporation	1
Tax Returns	20
Taxes	19
Termination Date	26
United States real property holding corporation	19

IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first above written.

	MARLIN HOLDCO LP, by its General partner, Marlin HoldCo GP, LLC

	By:	/s/ Lonnie C. Poole, Jr.
		Name: Lonnie C. Poole, Jr.
		Title: President

	MARLIN MERGECO INC.

	By:	/s/ Lonnie C. Poole, Jr.
		Name: Lonnie C. Poole, Jr.
		Title: President

	WASTE INDUSTRIES USA, INC.

	By:	/s/ Paul F. Hardiman
		Name: Paul F. Hardiman
		Title: Chairman of the Special Committee of the Board of Directors of Waste Industries USA, Inc.

EX-7.13 14 rsexh7_13.htm INTERIM INVESTORS AGREEMENT rsexh7_13.htm

Exhibit 7.13

INTERIM INVESTORS AGREEMENT

This Interim Investors Agreement (the “Agreement”) is made as of December 17, 2007 by and among Marlin HoldCo LP, a Delaware limited partnership (“Parent”), Marlin MergeCo Inc., a North Carolina corporation and an indirect wholly-owned subsidiary of Parent (“Merger Sub”), and the other parties appearing on the signature pages hereto (the “Investors”).

RECITALS

1. On the date hereof, Parent, Merger Sub and Waste Industries USA, Inc., a North Carolina corporation (the “Company”), have executed an Agreement and Plan of Merger (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”) pursuant to which Merger Sub will be merged with and into the Company (the “Merger”).

2. Each of the Investors has executed a letter agreement in favor of Parent in which each such Investor has agreed, subject to the terms and conditions set forth therein, to make an equity investment in Parent at the Closing (as defined below), in the form of a cash investment and/or through a contribution of shares of common stock of the Company, and certain of such Investors also have agreed, subject to the terms and conditions set forth therein, to purchase for cash senior subordinated mezzanine loan notes to be issued by Marlin MidCo Inc. (“Marlin MidCo”) at the Closing (each, a “Commitment Letter”).

3. The Investors and Parent wish to agree to certain terms and conditions that will govern the actions of Parent, Merger Sub and the relationship among the Investors with respect to the Merger Agreement and the Commitment Letters, and the transactions contemplated by each.

AGREEMENT

Therefore, the parties hereto hereby agree as follows:

1. EFFECTIVENESS; DEFINITIONS.

1.1 Effectiveness. This Agreement shall become effective on the date hereof and shall terminate (except with respect to Sections 1.1, 1.2, 2.2, 2.6.1, 2.7, 2.9, 2.10 and Articles 3 and 4) upon the earlier of (i) the closing of the Merger under the Merger Agreement (the “Closing”) and (ii) the termination of the Merger Agreement; provided that any liability for failure to comply with the terms of this Agreement shall survive such termination.

1.2 Definitions. Certain terms are used in this Agreement as specifically defined herein. Capitalized terms used herein but not defined herein shall have the meanings given to them in the Merger Agreement.

2. AGREEMENTS AMONG THE INVESTORS.

2.1 Actions of Parent and Actions Under the Merger Agreement. Subject to the terms and conditions of this Agreement and the Merger Agreement, the Sponsor Investors, acting jointly, shall administer the operations of Parent, Marlin MidCo and Merger Sub between the date hereof and the Closing Date and shall cause Parent and Merger Sub to take any action or refrain from taking any action in order for Parent and Merger Sub to comply with their obligations under the Merger Agreement, including satisfying the conditions to Closing specified in Sections 6.1 and 6.2 of the Merger Agreement, and exercising their rights under the Merger Agreement, including the right to cause Parent to terminate the Merger Agreement or not effect the Closing if either Sponsor Investor determines that one or more closing conditions set forth in Sections 6.1 or 6.3 of the Merger Agreement have not been satisfied. Except as contemplated in the previous sentence, any Material Decision of Parent and Merger Sub that is to be taken or refrained from being taken in connection with the transactions contemplated by the Merger Agreement shall require approval from the Requisite Investors. A “Material Decision” is a material decision that Parent or Merger Sub must make in connection with the transactions contemplated by the Merger Agreement other than as contemplated in the first sentence of this Section 2.1, which material decisions include, without limitation, a proposed modification to the Merger Consideration, a waiver of compliance by the Company with any of its representations or warranties or covenants contained in the Merger Agreement (including any timeframe by which the Company is required to comply with an action set forth in the Merger Agreement), any other material amendment or waiver to the Merger Agreement, a modification to any material term of the Debt Financing and the settlement, or the consent to settlement, of any litigation instituted after the date hereof with respect to the Merger Agreement, the Merger or actions taken in furtherance thereof.

2.2 Breach of Commitment.

2.2.1 If, following satisfaction or valid waiver of the closing conditions set forth in Sections 6.1 and 6.3 of the Merger Agreement as determined in accordance with Section 2.1 hereof, any Sponsor Investor is unable or unwilling to fund its Commitment upon the Closing as required by the terms of such Sponsor Investor’s Commitment Letter, as evidenced in writing to the other Investors, fails upon request of the Funding Majority (defined below) to confirm promptly in writing its ability and willingness to fund timely its Commitment in accordance with its Commitment Letter, and/or does not timely fund its Commitment as required by the terms of such Sponsor Investor’s Commitment Letter (a “Non-Funding Sponsor”), then Parent, acting at the direction of the Investors that collectively hold a majority of the Commitments and who are willing and able to fund their respective Commitments upon the Closing (the “Funding Majority”), may elect to terminate the participation of the Non-Funding Sponsor(s) in the transactions contemplated by the Merger Agreement by written notice at any time and, in the event the Merger is not consummated, recover from such Non-Funding Sponsor(s) all Expenses of the other Investors incurred before such termination of participation of the Non-Funding Sponsor(s).

2.2.2 If, following satisfaction or valid waiver of the closing conditions set forth in Sections 6.1 and 6.3 of the Merger Agreement as determined in accordance with Section 2.1 hereof, any Rollover Investor is unable or unwilling to fund its Commitment upon the Closing as required by the terms of such Rollover Investor’s Commitment Letter, as evidenced in writing to the other Investors, fails upon request of the Funding Sponsors (defined below) to confirm promptly in writing its ability and willingness to fund timely its Commitment in accordance with its Commitment Letter, and/or does not timely fund its Commitment as required by the terms of such Rollover Investor’s Commitment Letter (a “Non-Funding Rollover Investor”), then Parent, acting at the direction of the Sponsor Investors who are willing and able to fund their respective Commitments upon the Closing (the “Funding Sponsors”), may elect, as to any Non-Funding Rollover Investor, (a) to terminate the participation of such Rollover Investor in the transactions contemplated by the Merger Agreement by written notice at any time and, in the event the Merger is not consummated, recover from such Rollover Investor all Expenses of the other Investors incurred before such termination of participation of such Rollover Investor; or (b) seek specific performance of such Rollover Investor’s Commitment Letter (i.e., contribution of shares of common stock of the Company and/or of cash as specified in such Commitment Letter) and of such Rollover Investor’s obligations under this Agreement, together with recovery from such Rollover Investor of all costs incurred by Parent in seeking such specific performance, provided that upon such specific performance and cost recovery such Rollover Investor shall receive the benefits of such Commitment Letter and of this Agreement. Parent, acting at the direction of the Funding Sponsors, may elect pursuant to the preceding sentence to pursue different remedies with respect to different Rollover Investors that have breached their obligations under the Commitment Letter as described above; provided, however, that Parent, acting at the direction of the Funding Sponsors, shall not pursue an available remedy against any such Rollover Investor unless it also pursues an available remedy against each other Rollover Investor that has breached its obligations under the Commitment Letter as described above.

2.3 Debt Financing. The Funding Sponsor(s), acting jointly if both Sponsor Investors are Funding Sponsors, shall cause Merger Sub to, and the Investors shall seek to cause the Company to, enter into and borrow under the definitive agreements relating to the debt financing to be provided at the Closing on the terms set forth in the Debt Commitment Letters and in any amendments or modifications thereto that may be approved by the Requisite Investors.

2.4 Share Purchase. In connection with, and immediately prior to, the Merger, the Sponsor Investors agree to purchase from certain Rollover Investors and/or their successor or assigns as provided herein (the “Selling Investors”), and the Selling Investors shall sell to the Sponsor Investors (pro rata based on the Common Equity Commitments of each Sponsor Investor) (the "Sale") free and clear of all Liens (except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States), the number of shares of Company Common Stock set forth on Schedule A hereto (the "Shares") . The Rollover Investors as set forth on Schedule A commit to sell those Shares beside each Rollover Investor’s name on Schedule A, but such Rollover Investor may assign such right to sell some or all of the same number of Shares to another Company shareholder that is part of the attribution group under Internal Revenue Code Section 318 of such Rollover Investor. No other rights under this Agreement of a Rollover Investor may be assigned to such other Company shareholder or any other Person, except as expressly permitted herein. The Sponsor Investors agree to pay such Selling Investors the per share cash Merger Consideration for each Share sold to the Sponsor Investors. Each Rollover Investor identified on Schedule A owns of record as of the date hereof, and each Selling Investor will own immediately prior to the consummation of the Sale, all of the Shares listed opposite his or its name on Schedule A hereto. Each Rollover Investor owns (and each Selling Investor will own immediately prior to the Sale) all such Shares free and clear of any Lien (except for such transfer restrictions of general applicability as may be provided under the Securities Act and the “blue sky” laws of the various states of the United States). Each Rollover Investor has (and each Selling Investor will have at the time of the Sale) sole voting power and sole power of disposition with respect to all such Shares, with no restrictions on such Rollover Investor’s (or Selling Investor's as the case may be) rights of voting or disposition pertaining thereto. No Person other than such Rollover Investor (or Selling Investor as the case may be) has any right to direct or approve the voting or disposition of any such Shares, and the Sale will not conflict with the terms of any Contract to which such Rollover Investor or Selling Investor is party. The Sale shall be effected pursuant to a customary stock power reasonably acceptable to the Sponsors and the Selling Investors. The Rollover Investors shall not be entitled to specific performance of this Section 2.4 against either Sponsor Investor unless such Sponsor Investor is a Funding Sponsor and the Merger will occur immediately following the Sale.

2.5 Limited Partnership Agreement. Each Investor agrees to enter into, concurrently with the Closing, an amended limited partnership agreement of Parent and an amended limited liability company agreement of the general partner of Parent that will together govern the actions of Parent and the Investors from and after the Closing (respectively, the “Limited Partnership Agreement” and the “GP Agreement”) and will contain substantially the same terms contained in the Amended and Restated Limited Liability Company Agreement (the “LLC Agreement”) in the form attached hereto as Exhibit A and with such additional or modified terms as (i) are necessary to cause the terms of the LLC Agreement to be reflected in the Limited Partnership Agreement and GP Agreement or (ii) may be approved by the written consent of Investors whose vote would be sufficient to approve such additional or modified terms had the LLC Agreement been in effect at the time of such modification.

2.6 Commitments.

2.6.1 Each Investor and Parent hereby affirms and agrees that Parent, acting at the direction of the Funding Sponsors, shall be entitled to enforce the provisions of each Commitment Letter of each Rollover Investor. Parent shall not attempt to enforce any Commitment Letter of a Rollover Investor until the closing conditions set forth in Sections 6.1 and 6.3 of the Merger Agreement have been satisfied or validly waived as permitted under Section 2.1 hereof. Parent shall have no right (i) to specifically enforce any Commitment Letter of any Sponsor Investor or (ii) to specifically enforce, unless acting at the direction of one or both Funding Sponsors, any Commitment Letter of any Rollover Investor, and no Investor shall have any right to enforce any of the Commitment Letters other than the right as Funding Sponsors to direct Parent’s enforcement of the Commitment Letters of any Rollover Investor.

2.6.2 All securities issued by Parent at the Closing shall be equity securities and shall be issued to the Investors in accordance with the Limited Partnership Agreement and the Commitment Letters. All securities issued by Marlin MidCo to the Investors at the Closing shall be debt securities and shall be issued to the Investors in accordance with the Commitment Letters.

2.6.3 Prior to the Closing, no Investor shall transfer, directly or indirectly, its rights or obligations under its Commitment Letters, other than (i) a transfer permitted as provided for in the applicable Commitment Letter, (ii) with respect to a Rollover Investor, a transfer to a transferee of common stock of the Company in a permitted transfer under the Support Agreement, provided such transferring Rollover Investor remains liable for such Rollover Investor’s obligations under its Commitment Letter, (iii) with respect to a Sponsor Investor, a transfer to one or more affiliated funds or affiliated entities with a common investment advisor or funds managed by affiliates of Macquarie Group Limited (with respect to MIP Waste Holdings, L.P.) and affiliates of Goldman, Sachs & Co. (with respect to GS Direct, L.L.C.), provided such Sponsor Investor remains liable for its obligations under its Commitment Letter or (iv) a transfer approved by the Requisite Investors, provided that in each case the transferee agrees to be bound by the provisions of this Agreement applicable to the transferor.

2.7 Merger Agreement Payments.

2.7.1 Parent shall, and the Sponsor Investors shall cause Parent to, arrange that any Company Termination Fee paid by the Company or any of its affiliates pursuant to the Merger Agreement shall be promptly paid as follows, provided that an Investor whose participation in the transactions contemplated by the Merger Agreement has been terminated pursuant to Section 2.2 hereof (each, a “Terminated Investor”) shall not share in any portion of the Company Termination Fee:

(a)

First, reimbursement to each Investor of all documented and reasonable expenses and fees of legal counsel, accountants, financial advisors and other consultants and advisors incurred by it in connection with the transactions contemplated by the Merger Agreement whether incurred before or after the execution of the Merger Agreement (the “Expenses”), provided that no Investor shall be reimbursed for Expenses for any budgeted item in excess of 125% of the amount shown on Exhibit C, subject to any amendments thereof as contemplated in Section 2.9.1;

(b)	Second, payment to each Investor of an amount equal to 122.5%¹ of such Investor’s Expenses;

(c)	Third, payment to Harry Habets and Steve Grissom of an aggregate amount equal to $650,000,² to be split between them in proportion to the maximum remuneration each would be entitled to based on its compensation arrangements with the Company on the date hereof; and

(d)	Fourth, distribution of the balance of the Company Termination Fee to the Investors pro rata, based on the Common Equity Commitments of each Investor as compared to the Common Equity Commitments of the other Investors.

2.7.2 Parent shall, and the Sponsor Investors shall cause Parent to, arrange that any Expenses paid by the Company or any of its affiliates pursuant to the Merger Agreement shall be promptly distributed to each Investor in an amount equal to the Expenses actually incurred by such Investor, provided that no Investor shall be reimbursed for Expenses for any budgeted item in excess of 125% of the amount shown on Exhibit C, subject to any amendments thereof as contemplated in Section 2.9.1; provided further that if the aggregate amount of Expenses incurred by the Investors (“Aggregate Expenses”) exceeds the amount of the Expense reimbursement received from the Company (the “Company Reimbursement Amount”), the amount distributed to each Investor shall equal the amount of Expenses actually incurred by such Investor multiplied by a fraction, the numerator of which is the Company Reimbursement Amount and the denominator of which is the Aggregate Expenses.

2.7.3 In the event a Parent Termination Fee is due and payable under the Merger Agreement, each Investor shall be required to pay Parent, no later than immediately prior to the time such fee is required to be paid by Parent to the Company in accordance with the Merger Agreement, by wire transfer of immediately available funds, the amount set forth next to such Investor’s name on Schedule A to the Limited Guarantee. Notwithstanding the foregoing, in the event a Parent Termination Fee is due and payable under the Merger Agreement as a result of a breach described under Section 2.2.1 or 2.2.2 hereof by a Terminated Investor, the Terminated Investors shall be required to pay the full amount of the Parent Termination Fee (pro rata based on each Terminated Investor’s Common Equity Commitments) as described above. In addition, in the event one or both Sponsor Investors determines that it does not intend to fund its Commitment upon the Closing because it has concluded, pursuant to Section 2.1, that one or more closing conditions set forth in Section 6.1 or 6.3 of the Merger Agreement have not been satisfied and the Funding Majority disagreed with such conclusion, as evidenced in writing to such Sponsor Investor(s) but it is later determined by a court of competent jurisdiction that such closing condition(s) had been satisfied at the time such Sponsor Investor(s) claimed such closing condition(s) had not been satisfied, such Sponsor Investor or Sponsor Investors, as applicable, shall be required, if a Parent Termination Fee is due and payable under the Merger Agreement, to pay the full amount of the Parent Termination Fee and pay all Expenses of the other Investors, in each case pro rata (based on the Common Equity Commitments of the Sponsor Investors), incurred before the Sponsor Investor provided written notice to the other Investors of its conclusion that one or more of the conditions set forth in Section 6.1 or 6.3 of the Merger Agreement had not been satisfied.

2.8 Notice of Closing. Parent will use its reasonable best efforts to keep the Investors informed, on a current basis, of developments relating to the Merger, including the likely Closing Date. If Parent receives any notice under the Merger Agreement, it shall notify each Investor at the address designated by such Investor in writing to Parent. The failure of Parent to perform its obligations under this Section 2.8 will not relieve an Investor of its obligations under this Agreement.

2.9 Expense Responsibility.

2.9.1 Attached hereto as Exhibit C is an estimate of the Expenses incurred by the Buying Group prior to the date hereof and an estimate of the Expenses anticipated to be incurred between the date hereof and the Closing. Subject to Section 2.2 and Section 2.9.2, each Investor shall be responsible for and bear its pro rata portion (based on the Common Equity Commitments of each Investor as compared to the Common Equity Commitments of the other Investors) of all Expenses actually incurred in relation to the Expenses identified on Exhibit C, provided that the Expenses incurred in relation to any item on Exhibit C is no greater than 125% of the amount shown for such item. If an Investor anticipates actual Expenses related to an item identified on Exhibit C will exceed the stated estimate by 25%, such Investor shall provide written notice to the other Investors seeking their approval to amend the amount and stating the proposed amended amount. If the Requisite Investors consent to such request, which consent shall not be unreasonably withheld, conditioned or delayed, Exhibit C shall be deemed amended and each Investor shall be responsible for its pro rata portion of such amended amount.

2.9.2 Notwithstanding anything to the contrary, (i) other than as contemplated in Section 2.2.2, no Rollover Investor shall be liable for or have any obligation with respect to any Expense incurred by either Sponsor Investor, and (ii) other than as contemplated in Section 2.2.1 or Section 2.7.3, no Sponsor Investor shall be liable for or have any obligation with respect to any Expense incurred by any Rollover Investor. Further, subject to Section 2.2 and Section 2.7.3, collectively the Rollover Investors shall not be liable for, or have any obligation to Parent or the Sponsor Investors with respect to, any amount of the Parent Termination Fee or Expenses of the Sponsor Investors in excess of $4 million in the aggregate.

2.9.3 Upon the Closing of the Merger, (i) Parent shall cause the Company to reimburse each Investor for all Expenses actually incurred prior to the date hereof through Closing by such Investor in accordance with Section 2.9.1, and (ii) in consideration of the financial risk assumed by the Sponsors and Lonnie C. Poole, Jr. in pursuing and supporting the Merger, Parent shall cause the Company to pay each Sponsor Investor and Lonnie C. Poole Jr. an additional amount equal to 50% of the amount payable to such Investor under clause (i) hereof.

2.10 Representations and Warranties; Covenants. Each Investor hereby represents, warrants and covenants to the other Investors that:

(a)	none of the information supplied in writing by such Investor for inclusion or incorporation by reference in the Schedule 13E-3 and the Proxy Statement will cause a breach of the representation and warranty of Parent set forth in Section 4.3 of the Merger Agreement; and

(b)

it has not entered, and will not enter, into any agreement, arrangement or understanding with any other Investor, any other potential investor or acquiror or group of potential investors or acquirors or the Company with respect to the subject matter of this Agreement or the Merger Agreement, other than (i) the agreements contemplated or permitted by this Agreement, the Support Agreement or the Merger Agreement, (ii) any debt financing agreements and (iii) any agreements, arrangements or understandings with affiliates of such Investor.

3. DEFINITIONS. For purposes of this Agreement, the following terms shall have the following meanings:

3.1.1 “Commitments” shall mean the aggregate amount of cash committed to be invested in Parent or Marlin MidCo, as applicable, as set forth in each Investor’s Commitment Letter and the aggregate value (based on the Merger Consideration) of the common stock of the Company committed to be contributed to Parent as set forth in each Investor’s Commitment Letter, copies of all of which are attached as Exhibit B1 and B2 hereto.

3.1.2 “Common Equity Commitments” shall mean the Commitments of the Investors to invest in Parent in exchange for Class B Units of Parent in accordance with the terms of the applicable Commitment Letter.

3.1.3 “Requisite Investors” shall mean Investors holding at least 87% of the Common Equity Commitments as identified in the applicable Commitment Letters.

3.1.4 “Rollover Investors” means the Shareholder Parties as defined in the Support Agreement, and their respective successors and permitted assigns.

3.1.5 “Sponsor Investors” means MIP Waste Holdings, L.P. and GS Direct, L.L.C., and their respective successors and permitted assigns.

3.1.6 “Support Agreement” means the support agreement, dated as of October 22, 2007, as it may be amended from time to time by and among the Investors.

4. MISCELLANEOUS.

4.1 Amendment. This Agreement may be amended or modified and the provisions hereof may be waived, only by an agreement in writing signed by the Requisite Investors; provided that no provision of this Agreement may be amended or modified in a manner that disproportionately materially adversely affects an Investor without such Investor’s consent.

4.2 Severability. In the event that any provision hereof would, under applicable law, be invalid or unenforceable in any respect, such provision shall be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law. The provisions hereof are severable, and in the event any provision hereof should be held invalid or unenforceable in any respect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.

4.3 Remedies. Neither Parent, Marlin MidCo nor any other party to this Agreement will have the right to recover lost profits or benefit of the bargain damages or any special, indirect, or consequential damages (other than recovery of Expenses or costs as set forth in Section 2.2 or the Parent Termination Fee pursuant to Section 2.7.3) from any other party to this Agreement. Notwithstanding anything to the contrary in this Agreement, the parties agree that if the Merger Agreement is terminated, no Investor (or any of such Investor’s current or future stockholders, directors, officers or affiliates) who has paid the full amount of the Parent Termination Fee or otherwise satisfied all obligations to the Company and each of the other Investors’ Expenses, in each case as may be required by the terms of this Agreement, shall have any further liability hereunder to any other Investor, Parent, Marlin MidCo, Merger Sub or any Investor’s current or future stockholders, directors, officers or affiliates.

4.4 No Recourse. Subject to the guarantee of the obligations of MIP Waste Holdings, L.P., by the signatories thereto, dated the date hereof and delivered in connection herewith, notwithstanding anything that may be expressed or implied in this Agreement, and notwithstanding the fact that Parent and certain of the Investors may be partnerships or limited liability companies, Parent and each Investor covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any former, current or future directors, officers, agents, affiliates, general or limited partners, members, managers or stockholders of Parent or any Investor or any former, current or future directors, officers, agents, affiliates, employees, general or limited partners, members, managers or stockholders of any of the foregoing, as such, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any current or future director, officer, employee, general or limited partner or member or manager of Parent or any Investor or of any partner, member, manager or affiliate thereof, as such, for any obligation of Parent or any Investor under this Agreement or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.

4.5 Governing Law; Arbitration. This Agreement, and all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance hereof, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Any dispute, claim or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be finally determined by arbitration in North Carolina before a single arbitrator (the “Sole Arbitrator”). The arbitration shall be administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules of the AAA (the “Rules”). The selection of the Sole Arbitrator shall be made pursuant to the Rules. Each party shall be entitled, in its discretion, to the deposition of at least three fact witnesses and any expert witness designated to testify at the hearing, and the parties may seek additional depositions or other discovery. No deposition shall exceed two days unless the Sole Arbitrator permits otherwise for good cause. Judgment on any award may be entered in any court having jurisdiction, and shall include injunctive or other equitable relief to the extent awarded by the Sole Arbitrator. If the Sole Arbitrator determines that a frivolous claim or defense was asserted by a party, the Sole Arbitrator shall, in the award, direct that such party pay the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the other party, that are attributable to the disposition of such frivolous claim or defense .

4.6 Exercise of Rights and Remedies. No delay of or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any such delay, omission nor waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.

4.7 Other Agreements; Assignment. This Agreement, together with the agreements referenced herein, constitutes the entire agreement, and supersedes all prior agreements, understandings, negotiations and statements, both written and oral, among the parties or any of their affiliates with respect to the subject matter contained herein except for such other agreements as are referenced herein which shall continue in full force and effect in accordance with their terms. Other than as provided herein, this Agreement shall not be assigned without the prior written consent of the parties hereto.

4.8 Tax-Free Rollover. Parent, each Rollover Investor and each Sponsor Investor will cooperate to structure the contribution of the common stock of the Company to Parent pursuant to the Commitment Letter executed by each Rollover Investor as a tax-free exchange to the extent permitted by law; provided, however, that under no circumstances shall any party be required to take any action or agree to any amendment, waiver or modification of the Merger Agreement or any related agreement (including this Agreement) pursuant to this Section 4.8 if such action or amendment, waiver or modification would be materially adverse to such party (provided that the incurrence of immaterial costs or expenses shall not be deemed to be adverse for purposes of this sentence). In addition, none of the Parent or any Sponsor Investor may take any action to amend, modify or waive any provision of the Merger Agreement or any related agreement (including this Agreement) if such amendment, waiver or modification would result in a material adverse change in the ability of any Rollover Investor to contribute common stock of the Company to Parent pursuant to such Rollover Investor’s Commitment Letter as a tax-free exchange.

4.9 Non-Circumvention. Each party hereto agrees that it shall not indirectly accomplish that which it is not permitted to accomplish directly under this Agreement.

4.10 General. Nothing in this Agreement shall be deemed to constitute a partnership between any of the parties, nor constitute any part the agent of any other party for any purpose. This Agreement may be executed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Notwithstanding anything in this Agreement to the contrary, in no event shall the obligations of any party set forth in this Agreement convey to any other party or any other person voting power in the election of directors of the Company, sole or shared ownership of any shares of common stock of the Company, or sole or shared power to vote any shares of common stock of the Company or to direct the exercise of voting power of any such shares.

[SIGNATURE PAGES FOLLOW]

¹ 122.5% where the actual break fee paid is 3.5%, 110% where the actual break fee paid is 3%, 100% where the actual break fee paid is 2%, and 0% where the actual break fee paid is under 2%. In the event the actual break fee paid falls between two of the numbers above then the percentage mark up shall be applied on a straight line basis between the higher and lower percentage break fee amounts.

² $650,000 where the actual break fee paid is 3.5%, $600,000 where the actual break fee paid is 3%, $500,000 where the actual break fee paid is 2%, and $0.00 where the actual break fee paid is under 2%. In the event the actual break fee paid falls between two of the numbers above then the payment shall be applied on a straight line basis between the higher and lower percentage break fee amounts.

IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first above written.

	MARLIN HOLDCO LP, by its General partner, Marlin HoldCo GP, LLC

	By:	/s/ Jim W. Perry
		Name: Jim W. Perry
		Title: Vice President

	MARLIN MERGECO INC.

	By:	/s/ Jim W. Perry
		Name: Jim W. Perry
		Title: Vice President

	MIP WASTE HOLDINGS, L.P., by its General Partner, MIP Waste GP LLC

	By:	/s/ Christopher Leslie
		Name: Christopher Leslie
		Title: President

	By:	/s/ Mark Wong
		Name: Mark Wong
		Title: Treasurer

	GS DIRECT, LLC

	By:	/s/ Gerald J. Cardinale
		Name: Gerald J. Cardinale
		Title: Managing Director

		/s/ Lonnie C. Poole, Jr.
		Lonnie C. Poole, Jr.

		/s/ Jim W. Perry
		Jim W. Perry

		/s/ Lonnie C. Poole, III
		Lonnie C. Poole, III

		/s/ Scott J. Poole
		Scott J. Poole

	LONNIE C. POOLE, III IRREVOCABLE TRUST (TAILWALKER TRUST)

	By:	/s/ Scott J. Poole
		Name: Scott J. Poole
		Title: Trustee

	LONNIE C. POOLE, III IRREVOCABLE TRUST (TAILWALKER NON-GST TRUST)

	By:	/s/ Scott J. Poole
		Name: Scott J. Poole
		Title: Trustee

	LONNIE C. POOLE, JR GRANTOR TRUST DATED MAY 1, 1995

	By:	/s/ Lonnie C. Poole, III
		Name: Lonnie C. Poole, III
		Title: Trustee

	By:	/s/ Scott J. Poole
		Name: Scott J. Poole
		Title: Trustee

	PERRY 2007 IRREVOCABLE TRUST U/A/D DECEMBER 13, 2007

	By:	/s/ Rebecca Elliott Perry
		Name: Rebecca Elliott Perry
		Title: Trustee

	DAMAS II CHARITABLE REMAINDER UNITRUST U/A/D 12/13/07

	By:	/s/ Robert Hall
		Name: Robert Hall
		Title: Trustee

EX-7.14 15 rsexh7_14.htm AGMT OF LIMITED PARTNERSHIP rsexh7_14.htm

Exhibit 7.14

AGREEMENT OF LIMITED PARTNERSHIP

MARLIN HOLDCO LP

This Agreement of Limited Partnership (this “Agreement”) of Marlin HoldCo LP is entered into this 17th day of December 2007 by Marlin HoldCo GP, LLC (the “General Partner”) and each of the Persons listed on the signature pages hereto as the limited partners (together with any other limited partners that may hereafter be admitted to the Partnership as a limited partner pursuant to the terms of this Agreement, the “Limited Partners” and, collectively with the General Partner, the “Partners”) pursuant to and in accordance with the Delaware Revised Uniform Limited Partnership Act (6 Del.C.§ 17-101, et seq.), as amended from time to time (the “Act”).

1. Name. The name of the partnership governed hereby is Marlin HoldCo LP (the “Partnership”).

2. Certificate of Limited Partnership. The General Partner has filed a Certificate of Limited Partnership for the Partnership with the Secretary of State of the State of Delaware, and the Partners shall take such further actions as shall be appropriate to comply with all requirements of law for the formation and operation of a limited partnership in the State of Delaware, and all other counties and states where the Partnership may elect to do business.

3. Purpose. The Partnership is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Partnership is, engaging in all lawful activities for which partnerships may be formed under the Act.

4. Powers. The Partnership shall have the power to do any and all acts reasonably necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance of the purpose and business described herein and for the protection and benefit of the Partnership and shall have, without limitation, any and all of the powers that may be exercised on behalf of the Partnership by the General Partner pursuant to this Agreement, including Section 15.

5. Principal Business Office. The principal place of business and office of the Partnership shall be located at, and the Partnership’s business shall be conducted from, such place or places as may hereafter be determined by the General Partner.

6. Registered Office. The address of the registered office of the Partnership in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808.

7. Registered Agent. The name and address of the registered agent of the Partnership for service of process on the Partnership in the State of Delaware are Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808.

8. Term. The term of the Partnership commenced on the date of filing of the Certificate of Limited Partnership of the Partnership in accordance with the Act and shall continue until dissolution of the Partnership in accordance with Section 21 of this Agreement.

9. Limitation on Liabilities of Limited Partners. Notwithstanding any provision of this Agreement, the Limited Partners shall not be liable for any of the losses, debts or liabilities of the Partnership in excess of their respective Capital contributions.

10. Capital Contributions. Each Partner is deemed admitted as a Partner of the Partnership upon his or its execution and delivery of this Agreement. The initial contributions of the Partners consist of the assets set forth on Schedule A attached hereto. The total capital of a Partner in the Partnership from time to time shall be referred to as such Partner’s “Capital.”

11. Additional Contributions. The Partners are not required to make additional capital contributions to the Partnership.

12. Capital Accounts. Separate capital accounts (“Capital Accounts”) shall be maintained for each Partner on the books of the Partnership, which Capital Accounts shall set forth the Capital of such Partner in the Partnership. Each Capital Account shall be adjusted to reflect such Partner’s shares of allocations and distributions and any additional capital contributions to the Partnership or withdrawals of Capital from the Partnership. Such Capital Accounts shall further be adjusted to conform to the Treasury Regulations under Section 704(b) of the Internal Revenue Code of 1986, as amended (the “Code”), as interpreted in good faith by the General Partner.

13. Profits and Losses. The Profits or Losses incurred by the Partnership for each taxable year shall be determined on an annual basis. For each taxable year in which the Partnership realizes Profits or Losses, such Profits or Losses, respectively, shall be allocated to each Partner in accordance with the ratio which such Partner’s Capital in the Partnership bears to the total Capital of all Partners in the Partnership at the time of such allocation. As used herein, “Profits” and “Losses” mean, for each fiscal year or other period, an amount equal to the Partnership’s taxable income or loss for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments:

(i) Any income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses shall be added to such taxable income or loss; or

(ii) Any expenditures of the Partnership described in Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) of the Code expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses shall be subtracted from such taxable income or loss.

14. Management.

a. The business and affairs of the Partnership shall be managed by the General Partner. Subject to the express limitations contained in any provision of this Agreement, the General Partner shall have complete and absolute control of the affairs and business of the Partnership, and shall possess all powers necessary, convenient or appropriate to carrying out the purposes and business of the Partnership, including, without limitation, doing all things and taking all actions necessary to carrying out the terms and provisions of this Agreement.

b. Subject to the rights and powers of the General Partner and the limitations thereon contained herein, the General Partner may delegate to any person any or all of its powers, rights and obligations under this Agreement and may appoint, contract or otherwise deal with any person to perform any acts or services for the Partnership as the General Partner may reasonably determine.

c. No Partner (other than the General Partner) shall participate in the management or control of the business of, or shall have any rights or powers with respect to, the Partnership except those expressly granted to it by the terms of this Agreement, or those conferred on it by law.

d. The General Partner shall not be compensated for its services as the general partner of the Partnership without the consent of the Partners that have contributed at least 87% or more of the capital to the Partnership.

15. Officers. The General Partner may, from time to time as it deems advisable, appoint officers of the Partnership (the “Officers”) and assign in writing titles (including, without limitation, President, Vice President, Secretary and Treasurer) to any such person. Unless the General Partner decides otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute the delegation to such person of the authorities and duties that are normally associated with that office. Any delegation pursuant to this Section 15 may be revoked at any time by the General Partner.

16. Other Business. The Partners may engage in or possess an interest in other business ventures (unconnected with the Partnership) of every kind and description, independently or with others. The Partnership shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.

17. Liability of General Partner.

a. The General Partner shall not be liable, responsible or accountable in damages to the Limited Partners or the Partnership for (x) any act or omission on behalf of the Partnership performed or omitted to be taken by it in good faith and in a manner reasonably believed by it to be within the scope of the authority granted to it by this Agreement and in, or not opposed to, the best interests of the Partnership, provided that the General Partner is not guilty of gross negligence or willful misconduct, (y) any action or omission taken or suffered by any other Partner or (z) any mistake, negligence, dishonesty or bad faith of any broker or other agent of the Partnership selected by the General Partner with reasonable care. To the extent that, at law or in equity, the General Partner has duties (including fiduciary duties) and liabilities relating thereto to the Partnership or to another Partner, the General Partner acting under this Agreement shall not be liable to the Partnership or such other Partner for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they expand or restrict the duties and liabilities of the General Partner otherwise existing at law or in equity, are agreed by the Partners to modify to that extent such other duties and liabilities of the General Partner. To the fullest extent permitted by law, the Partnership shall indemnify the General Partner against any loss, damage or expense (including amounts paid in satisfaction of judgments, in settlements, as fines and penalties and legal and other costs and expenses of investigation or defense) incurred by it by reason of any act or omission so performed or omitted by it (and not involving gross negligence or willful misconduct) and any such amount shall be paid by the Partnership to the extent assets are available, but the Limited Partners shall not have any personal liability to the General Partner or the Partnership on account of such loss, damage or expense.

b. The General Partner may consult with legal counsel, accountants and other professional experts selected by it and any act or omission suffered or taken by it on behalf of the Partnership or in furtherance of the interests of the Partnership in good faith in reliance upon and in accordance with the advice of such counsel, accountants or other professional experts shall be full justification for any such act or omission, and the General Partner shall be fully protected in so acting or omitting to act, provided such counsel, accountants or other professional experts were selected with reasonable care.

c. To the fullest extent permitted by law, expenses incurred by the General Partner in defense or settlement of any claim that may, at the determination of the General Partner, be subject to a right of indemnification hereunder may be paid by the Partnership in advance of the final disposition thereof upon receipt of an undertaking by or on behalf of the General Partner to repay such amount to the Partnership if it shall be determined, by a court of competent jurisdiction pursuant to a final non-appealable judgment, order or decree, that the General Partner is not entitled to be indemnified hereunder.

18. Admission of Additional Partners. One (1) or more additional persons may be admitted to the Partnership as Partners with the written consent of the General Partner.

19. Dissolution of the Partnership. Subject to Section 21, the termination, dissolution, death, bankruptcy or adjudicated incompetency of a Partner shall not cause a dissolution of the Partnership, but the rights of such Partner to share in the Profits and Losses of the Partnership, to receive distributions and to assign his or its interest in the Partnership pursuant to Section 20 shall, on the happening of such an event, devolve on his or its legal representative for the purpose of settling his estate or administering its property.

20. Assignments. A Partner may not transfer, assign, pledge or hypothecate, in whole or in part, his or its limited partnership interest without the prior written consent of the General Partner, except that each of MIP Waste Holdings L.P. and GS Direct, LLC may transfer, assign, pledge or hypothecate in its sole discretion, in whole or in part its limited partnership interest to Macquarie Group Limited, or Goldman, Sachs & Co., as applicable, and its subsidiaries and affiliates and funds managed by Macquarie Group Limited, or Goldman, Sachs & Co., as applicable, and its subsidiaries and affiliates.

21. Dissolution.

a. The Partnership shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (i) the decision of the General Partner, (ii) the termination, dissolution, bankruptcy or other event of withdrawal of the General Partner or at any time there are no limited partners, unless the business of the Partnership is continued in accordance with the Act and (iii) the entry of a decree of judicial dissolution under Section 17-802 of the Act.

b. In the event of dissolution, the Partnership shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Partnership in an orderly manner).

22. Tax Matters Partner. MIP Waste Holdings L.P. is hereby designated as the tax matters partner within the meaning of Section 6231(a)(7) of the Code (the “Tax Matters Partner”). In such capacity, the Tax Matters Partner shall have all of the rights, authority and power, and shall be subject to all of the regulations of, a tax matters partner to the extent provided in the Code; provided, that any decision or action of the Tax Matters Partner that would have a material adverse effect on the Partnership, will be subject to the prior approval of the General Partner. All expenses incurred by the Tax Matters Partner in connection with its duties as Tax Matters Partner shall be expenses of the Partnership.

23. Elections. The General Partner shall determine the accounting methods and conventions under the tax laws of any and all applicable jurisdictions as to the treatment of income, gain, loss, deduction and credit of the Partnership or any other method or procedure related to the preparation of such tax returns. The General Partner may cause the Partnership to make or refrain from making any and all elections permitted by such tax laws, and the General Partner shall not be liable for any consequences to any previously admitted or subsequently admitted Partners resulting from their making or failing to make any such elections.

24. Separability of Provisions. Each provision of this Agreement shall be considered separable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal.

25. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement.

26. Entire Agreement. Subject to Section 27, this Agreement constitutes the entire agreement of the Partners with respect to the subject matter hereof.

27. Interim Investors Agreement. Notwithstanding anything to the contrary in this Agreement, all matters addressed in the Interim Investors Agreement shall be governed in accordance with the terms of the Interim Investors Agreement, and in the event of any inconsistency between the terms of this Agreement and the terms of the Interim Investors Agreement, the terms of the Interim Investors Agreement shall govern.

28. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware (without regard to conflict of laws principles thereof), and all rights and remedies shall be governed by such laws. Any dispute, claim or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be finally determined by arbitration in North Carolina before a single arbitrator (the “Sole Arbitrator”). The arbitration shall be administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules of the AAA (the “Rules”). Judgment on any award may be entered in any court having jurisdiction, and shall include injunctive or other equitable relief to the extent awarded by the Sole Arbitrator. If the Sole Arbitrator determines that a frivolous claim or defense was asserted by a party, the Sole Arbitrator shall, in the award, direct that such party pay the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys' fees of the other party, that are attributable to the disposition of such frivolous claim or defense. This Section 28 shall not preclude parties from seeking provisional remedies in aid of arbitration from a North Carolina state court or federal court sitting in North Carolina, including but not limited to temporary restraining orders and preliminary injunctions pending the award of the Sole Arbitrator.

29. Amendments. This Agreement may not be modified, altered, supplemented or amended except pursuant to a written agreement executed and delivered by Partners that have contributed at least 87% or more of the capital to the Partnership.

IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Agreement as of the date first written above

	GENERAL PARTNER:

	MARLIN HOLDCO GP, LLC

	By:	/s/ Jim W. Perry
		Name: Jim W. Perry
		Title: Vice President

	LIMITED PARTNERS:

		/s/ Lonnie C. Poole, Jr.
		Lonnie C. Poole, Jr.

		/s/ Lonnie C. Poole, III
		Lonnie C. Poole, III

		/s/ Scott J. Poole
		Scott J. Poole

		/s/ Jim W. Perry
		Jim W. Perry

	LONNIE C. POOLE, III IRREVOCABLE TRUST (TAILWALKER TRUST)

	By:	/s/ Scott J. Poole
		Name: Scott J. Poole
		Title: Trustee

	LONNIE C. POOLE, III IRREVOCABLE TRUST (TAILWALKER NON-GST TRUST)

	By:	/s/ Scott J. Poole
		Name: Scott J. Poole
		Title: Trustee

	LONNIE C. POOLE, JR. GRANTOR TRUST DATED MAY 1, 1995

	By:	/s/ Lonnie C. Poole, III
		Name: Lonnie C. Poole, III
		Title: Trustee

	By:	/s/ Scott J. Poole
		Name: Scott J. Poole
		Title: Trustee

	PERRY 2007 IRREVOCABLE TRUST U/A/D DECEMBER 13, 2007

	By:	/s/ Rebecca Elliott Perry
		Name: Rebecca Elliott Perry
		Title: Trustee

	DAMAS II CHARITABLE REMAINDER UNITRUST U/A/D 12/13/07

	By:	/s/ Robert Hall
		Name: Robert Hall
		Title: Trustee

	MIP WASTE HOLDINGS, L.P., by its General Partner, MIP Waste GP LLC

	By:	/s/ Christopher Leslie
		Name: Christopher Leslie
		Title: President

	By:	/s/ Mark Wong
		Name: Mark Wong
		Title: Treasurer

	GS DIRECT, LLC

	By:	/s/ Gerald J. Cardinale
		Name: Gerald J. Cardinale
		Title: Managing Director

EX-7.15 16 rsexh7_15.htm LIMITED LIABILITY COMPANY AGMT rsexh7_15.htm

Exhibit 7.15

LIMITED LIABILITY COMPANY AGREEMENT

MARLIN HOLDCO GP, LLC

(a Delaware limited liability company)

__________________________________

Dated as of December 17, 2007

__________________________________

This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of Marlin HoldCo GP, LLC (the “Company”), dated as of December 17, 2007, is made by each of the individuals or entities executing this Agreement or joined to this Agreement from time to time hereafter.

ARTICLE I

Organization

1.1 Formation; Term. The Company has been formed by an authorized person pursuant to and in accordance with the provisions of the Delaware Limited Liability Company Act (as it may be amended from time to time, the “Act”). The authorized person filed, on behalf of the Company, a certificate of formation (“Certificate”) conforming to the Act in the office of the Secretary of State of the State of Delaware. The term of the Company began upon the filing of the Certificate and shall continue until a certificate of cancellation of the Company has been filed with the Secretary of State of Delaware in accordance with the Act.

1.2 Name. The name of the Company is Marlin HoldCo GP, LLC. The Members (as defined below) may change the name of the Company from time to time. In any such event, the Members shall promptly file or caused to be filed in the office of the Secretary of State of the State of Delaware an amendment to the Certificate reflecting such change of name.

1.3 Purpose. The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing.

1.4 Registered Office and Agent. The Company’s initial registered agent and the address of its initial registered office in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The initial principal place of business of the Company is located at c/o Macquarie Infrastructure Partners Inc., 125 West 55th Street, 9th Floor, New York, New York 10019, Attention: Chris Leslie. The Members may change such registered office, registered agent or principal place of business from time to time. The Company may from time to time have such other place or places of business within or outside the State of Delaware as may be determined by the Members.

1.5 Fiscal Year. The fiscal year of the Company shall end on December 31 of each calendar year unless, for United States federal income tax purposes, another fiscal year is required. The Company shall have the same fiscal year for United States federal income tax purposes and for accounting purposes.

ARTICLE II

Capital Contributions

2.1 Capital Contributions. The members of the Company (the “Members”) and the initial contribution and membership interest (“Membership Interest”) of each Member are set forth on Schedule A hereto. The Members are not required to make any additional capital contributions to the Company. The capital contribution commitments of the Members (whether now or hereafter made) are solely for the benefit of the Members, as among themselves, and may not be enforced by any creditor, receiver, or trustee of the Company or by any other person.

2.2 No Interest. The Members shall not be entitled to interest on their capital contributions, and any interest actually received by reason of investment of any part of the Company's funds shall be included in the Company's property.

2.3 Member Loans. If the Company shall have insufficient cash to pay its obligations, the Members may advance such funds to the Company on such terms and conditions as the Members may determine. Each such advance shall constitute a loan from such Member to the Company and shall not constitute a capital contribution.

ARTICLE III

Rights and Obligations of the Members; Members

3.1 Management. In accordance with Section 18-402 of the Act, management of the Company shall be vested in the Members. Subject to Section 7.4, a majority in interest of the Members as calculated by Membership Interest shall have (i) the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members of a limited liability company under the laws of the State of Delaware, and (ii) the authority to bind the Company.

3.2 Subject to the rights and powers of the Members and the limitations thereon contained herein, the Members may delegate to any person any or all of their powers, rights and obligations under this Agreement and may appoint, contract or otherwise deal with any person to perform any acts or services for the Company as the Members may reasonably determine.

3.3 Action by Written Consent . Subject to Section 7.4, any matter required or permitted to be decided at any meeting of the Members may be taken without a meeting, without prior notice and without a vote, if a consent or consents is signed in writing setting forth the matter so decided shall be delivered to the Company. Subject to Section 7.4, written consent shall be effective to take the action referred to therein on the date as of which the Company has received, in accordance with this Section 3.3, a written consent signed by a majority in interest of the Members as calculated by Membership Interest.

3.4 Liability of the Members. Except as otherwise required by the Act, the debts, obligations, and liabilities of the Company, whether arising in contract, tort, or otherwise, shall be the debts, obligations, and liabilities solely of the Company, and the Members shall not be obligated personally for any of such debts, obligations, or liabilities solely by reason of being a Member.

3.5 Officers. The Members may (i) elect one or more officers of the Company with such titles as the Members may deem necessary, appropriate, or desirable, and (ii) delegate any or all of its rights, powers, and authority to one or more of such officers as the Members may from time to time determine.

3.6 Reimbursement of Expenses. The Company shall promptly reimburse the Members and their affiliates for all reasonable costs and other obligations paid or incurred by them on behalf of the Company.

ARTICLE IV

Exculpation and Indemnification

4.1 Exculpation and Indemnification.

(a) No present or former Member, officer, or any direct or indirect officer, director, stockholder, Affiliate or partner of a Member (each, an “Indemnitee”), shall be liable, responsible or accountable in damages or otherwise to the Company or to any Member, for any act or failure to act by such Indemnitee in connection with the conduct of the business of the Company, or by any other such Indemnitee in performing or participating in the performance of the obligations of the Company, in each case in such Indemnitee’s capacity as a Member, officer of the Company or any officer, director, stockholder, Affiliate or partner of a Member, so long as such Indemnitee acted in the good faith belief that such action or failure to act was in the best interests, or not opposed to the best interests, of the Company and/or its subsidiaries and such action or failure to act was not in violation of this Agreement and did not constitute gross negligence or willful misconduct. The provisions of this Section 4.1(a) are intended by the parties to apply even if such provisions have the effect of exculpating the Indemnitee from legal responsibility for the consequences of such Indemnitee’s own simple, full, partial or concurrent negligence. Except as otherwise required by the Act, no person who is a Member, an officer, or any combination of the foregoing, shall be personally liable under any judgment of a court, or in any other manner, for any debt, obligation, or liability of the Company, whether that liability or obligation arises in contract, tort, or otherwise, solely by reason of being a Member, officer or any combination of the foregoing. Any duties (including fiduciary duties) of an Indemnitee to the Company or to any other Indemnitee that would otherwise apply at law or in equity are hereby eliminated to the fullest extent permitted under the Act and any other applicable law, provided that (i) the foregoing shall not eliminate the obligation of each Indemnitee to act in compliance with the express terms of this Agreement and (ii) the foregoing shall not be deemed to eliminate the implied contractual covenant of good faith and fair dealing. Notwithstanding anything to the contrary contained in this Agreement, each of the Members hereby acknowledges and agrees that each Member, in determining whether or not to vote in support of or against any particular decision for which the Members’ consent is required, may act in and consider the best interest of the Member and shall not be required to act in or consider the best interests of the Company, any subsidiary of the Company or any other Members.

(b) The Company shall indemnify and hold harmless each Indemnitee to the fullest extent permitted by law, so long as such Indemnitee acted in the good faith belief that such action or failure to act was in the best interests, or not opposed to the best interests, of the Company and/or its subsidiaries and such action or failure to act was not in violation of this Agreement and did not constitute gross negligence or willful misconduct, against losses, damages, liabilities, costs or expenses (including reasonable attorneys’ fees and expenses and amounts paid in settlement) incurred by any such Indemnitee in connection with any action, suit or proceeding to which such Indemnitee may be made a party or otherwise involved or with which it shall be threatened by reason of its being a Member, Officer, or any direct or indirect officer, director, stockholder or partner of a Member, or while acting as (or on behalf of) a Member on behalf of the Company or in the Company’s interest. Such attorneys’ fees and expenses shall be paid by the Company as they are incurred upon receipt, in each case, of an undertaking by or on behalf of the Indemnitee to repay such amounts if it is ultimately determined that such Indemnitee is not entitled to indemnification with respect thereto.

(c) The right of an Indemnitee to indemnification hereunder shall not be exclusive of any other right or remedy that a Member or Officer may have pursuant to applicable law or this Agreement.

(d) An Indemnitee shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Indemnitee reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid.

(e) The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of an Indemnitee to the Company or its Members otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities of such Indemnitee.

(f) The satisfaction of any indemnification or expense advancement obligation pursuant to this 4.1 shall be from and limited to the assets (including insurance) of the Company, and no Member, in such capacity, shall be subject to personal liability therefor.

(g) The foregoing provisions of this 4.1 shall survive any termination of this Agreement, and to the extent the provisions are amended or repealed on a future date, Indemnitees shall be fully protected under this 4.1 to the extent the Indemnitees’ liability arose prior to such amendment or repeal.

ARTICLE V

Distributions

5.1 Distributions. Distributions shall be made in accordance with the Interim Investors Agreement and Section 6.2 hereof.

ARTICLE VI

Dissolution and Termination

6.1 Dissolution. The Company shall be dissolved upon the first to occur of the following events: (i) the election of the Members to dissolve the Company at any time; or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act. Upon dissolution, the Company shall cease carrying on its business but shall not terminate until the winding up of the affairs of the Company is completed, the assets of the Company shall have been distributed as provided below and a certificate of cancellation of the Company has been filed with the Secretary of State of Delaware in accordance with the Act.

6.2 Liquidation. Upon dissolution of the Company, sole and plenary authority to effectuate the liquidation of the assets of the Company shall be vested in the Members, which shall have full power and authority, in the name of, and for and on behalf of the Company, to (i) prosecute and defend actions, suits and proceedings, whether civil, criminal or administrative, (ii) gradually settle and close the Company's operations, business and affairs, (iii) dispose of and convey the Company's assets and property, (iv) discharge or make reasonable provision for the Company's liabilities, and (v) distribute any remaining assets to the Members. Upon the liquidation of the Company, the assets shall be distributed in the following order of priority: (i) first, to the creditors of the Company (including any of the Members if it is a creditor), in the order of priority provided by law, in satisfaction of all liabilities and obligations of the Company (of any nature whatsoever, including, fixed or contingent, matured or unmatured, legal or equitable, secured or unsecured), whether by payment or the making of reasonable provision for payment thereof; and (ii) thereafter, to the Members in accordance with the terms of the Interim Investors Agreement.

6.3 Termination. The liquidation and winding up of the Company shall be completed when all of its debts, liabilities, and obligations have been paid and discharged or reasonably adequate provision therefor has been made, and all of the remaining assets and properties of the Company have been distributed to the Members. Upon the completion of the liquidation and winding up of the Company, a certificate of cancellation of the Company shall be filed with the Secretary of State of Delaware and the legal existence of the Company shall terminate.

6.4 No Negative Capital Account Obligation. Notwithstanding any other provision of this Agreement to the contrary, in no event shall a Member if it has a negative capital account upon final distribution of all cash and other property of the Company be required to restore such negative capital account to zero.

6.5 No Other Cause of Dissolution. The Company shall not be dissolved, or its legal existence terminated, for any reason whatsoever except as expressly provided in this Article VI.

ARTICLE VII

Miscellaneous

7.1 Amendment. No change, modification, or amendment of this Agreement shall be valid or binding unless such change, modification, or amendment shall be in writing and duly executed by Members holdings at least 87% of the Membership Interests.

7.2 Assignment. A Member may sell, assign, or otherwise transfer all or any portion of its interest in the Company only with the approval of the Members, except that MIP Waste Holdings L.P. and GS Direct, LLC may sell, assign or otherwise transfer in its sole discretion, all or any of its interest in the Company to Macquarie Group Limited or Goldman, Sachs & Co., as applicable, and its subsidiaries and affiliates and funds managed by Macquarie Group Limited or Goldman, Sachs & Co., as applicable, and its subsidiaries and affiliates. Upon any such transfer, the transferee shall succeed to the rights and obligations of the Member in respect of the interest in the Company so transferred and, with the prior written consent of a majority in interest of the Members, shall become a member of the Company in respect of such interest. Upon such transfer of a Member's entire interest in the Company, such transferring Member shall be entitled to be deemed to have automatically resigned and withdrawn as a Member of the Company without any further action on the part of any Member or other person.

7.3 Entire Agreement. Subject to Section 7.4, this Agreement constitutes the entire agreement of the Members in respect of the subject matter hereof and supersedes any prior agreement or understanding in respect of such subject matter. All duties and liabilities (fiduciary and otherwise) of the Members and its affiliates are restricted to those expressly stated in this Agreement.

7.4 Interim Investors Agreement. Notwithstanding anything to the contrary in this Agreement, all matters addressed in the Interim Investors Agreement shall be governed in accordance with the terms of the Interim Investors Agreement, and in the event of any inconsistency between the terms of this Agreement and the terms of the Interim Investors Agreement, the terms of the Interim Investors Agreement shall govern.

7.5 Severability. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid under the applicable law of any jurisdiction, the remainder of this Agreement or the application of such provision to other persons or circumstances or in other jurisdictions shall not be affected thereby. Also, if any provision of this Agreement is invalid or unenforceable under any applicable law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such law. Any provision hereof that may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.

7.6 Governing Law. This Agreement, and all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance hereof, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Any dispute, claim or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be finally determined by arbitration in North Carolina before a single arbitrator (the “Sole Arbitrator”). The arbitration shall be administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules of the AAA (the “Rules”). Judgment on any award may be entered in any court having jurisdiction, and shall include injunctive or other equitable relief to the extent awarded by the Sole Arbitrator. If the Sole Arbitrator determines that a frivolous claim or defense was asserted by a party, the Sole Arbitrator shall, in the award, direct that such party pay the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys' fees of the other party, that are attributable to the disposition of such frivolous claim or defense. This Section 7.6 shall not preclude parties from seeking provisional remedies in aid of arbitration from a North Carolina state court or federal court sitting in North Carolina, including but not limited to temporary restraining orders and preliminary injunctions pending the award of the Sole Arbitrator.

7.7 Exercise of Rights and Remedies. No delay of or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any such delay, omission nor waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.

7.8 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Members and their successors and assigns.

7.9 Headings. The section and article headings in this Agreement are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provision hereof.

7.10 Other Terms. All references to “Articles” and “Sections” contained in this Agreement are, unless specifically indicated otherwise, references to Articles and Sections of this Agreement. Whenever in this Agreement the singular number is used, the same shall include the plural where appropriate (and vice versa), and words of any gender shall include each other gender where appropriate. As used in this Agreement, the following words or phrases shall have the meanings indicated: (i) “or” means “and/or”; (ii) “day” means a calendar day; (iii) “include”, “including”, or their derivatives means “including without limitation”; (iv) “laws” means statutes, regulations, rules, judicial orders, and other legal pronouncements having the effect of law; and (v) “person” means any individual, corporation, general or limited partnership, limited liability company, joint venture, trust, unincorporated association, or other form of business or legal entity or governmental entity.

* * * * *

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first written above.

	MARLIN HOLDCO GP, LLC

	By:	/s/ Jim W. Perry
		Name: Jim W. Perry
		Title: Vice President

	MIP WASTE HOLDINGS, L.P., by its General Partner, MIP Waste GP LLC

	By:	/s/ Christopher Leslie
		Name: Christopher Leslie
		Title: President

	By:	/s/ Mark Wong
		Name: Mark Wong
		Title: Treasurer

	GS DIRECT, LLC

	By:	/s/ Gerald J. Cardinale
		Name: Gerald J. Cardinale
		Title: Managing Director

		/s/ Lonnie C. Poole, Jr.
		Lonnie C. Poole, Jr.

		/s/ Lonnie C. Poole, III
		Lonnie C. Poole, III

		/s/ Scott J. Poole
		Scott J. Poole

		/s/ Jim W. Perry
		Jim W. Perry

	LONNIE C. POOLE, III IRREVOCABLE TRUST (TAILWALKER TRUST)

	By:	/s/ Scott J. Poole
		Name: Scott J. Poole
		Title: Trustee

	LONNIE C. POOLE, III IRREVOCABLE TRUST (TAILWALKER NON-GST TRUST)

	By:	/s/ Scott J. Poole
		Name: Scott J. Poole
		Title: Trustee

	LONNIE C. POOLE, JR. GRANTOR TRUST DATED MAY 1, 1995

	By:	/s/ Lonnie C. Poole, III
		Name: Lonnie C. Poole, III
		Title: Trustee

	By:	/s/ Scott J. Poole
		Name: Scott J. Poole
		Title: Trustee

	DAMAS II CHARITABLE REMAINDER UNITRUST U/A/D DECEMBER 13, 2007

	By:	/s/ Robert Hall
		Name: Robert Hall
		Title: Trustee

	PERRY 2007 IRREVOCABLE TRUST U/A/D DECEMBER 13, 2007

	By:	/s/ Rebecca Elliott Perry
		Name: Rebecca Elliott Perry
		Title: Trustee

EX-7.16 17 rsexh7_16.htm LIMITED GUARANTEE rsexh7_16.htm

Exhibit 7.16

EXECUTION VERSION

LIMITED GUARANTEE

Limited Guarantee, dated as of December 17, 2007 (this “Limited Guarantee”), by each of the undersigned (each a “Guarantor”), in favor of Waste Industries USA, Inc., a North Carolina corporation (the “Guaranteed Party”). Capitalized terms used herein without definition have the meanings given to them in the Merger Agreement (as defined below).

1. LIMITED GUARANTEE. To induce the Guaranteed Party to enter into that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), by and among Marlin HoldCo LP, a Delaware limited partnership in which the Guarantors propose to invest (“Parent”), Marlin MergeCo Inc., a North Carolina corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), and the Guaranteed Party, pursuant to which, subject to the satisfaction or proper waiver of the conditions set forth therein, Merger Sub will merge with and into the Guaranteed Party, the Guarantors hereby irrevocably, absolutely and unconditionally guarantee to the Guaranteed Party on a several (and not joint) basis up to the amount of each Guarantor’s respective Cap Amount (as defined below) Parent’s obligations to pay the Parent Termination Fee, if and when due pursuant to Section 7.2(b) of the Merger Agreement, plus the reasonable fees and expenses that may be incurred by the Guarantor Party pursuant to the second to last sentence of Section 3 of this Limited Guarantee (with respect to each Guarantor, such Guarantor’s “Guaranteed Obligation”); provided, however, that in no event shall the liability of any Guarantor under this Limited Guarantee exceed the amount set forth next to such Guarantor’s name on Schedule A hereto (such amount for each Guarantor, the “Cap Amount”) plus its pro rata share of the reasonable fees and expenses that may be incurred by the Guarantor Party pursuant to second to last sentence of Section 3 of this Limited Guarantee, it being understood and agreed that this Limited Guarantee may not be enforced without giving effect to each Guarantor’s respective Cap Amount.

2. NATURE OF GUARANTEE. The Guaranteed Party shall not be obligated to file any claim relating to the Guaranteed Obligation in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the obligations of the Guarantors hereunder. Subject to Section 8 of this Limited Guarantee, in the event that any payment to the Guaranteed Party hereunder is rescinded or must otherwise be returned to any Guarantor for any reason whatsoever, such Guarantor shall remain liable hereunder as if such payment had not been made (subject to the terms hereof). This is an unconditional guarantee of payment and not of collectibility. The respective obligations of each Guarantor hereunder are several and not joint and in all cases subject to each Guarantor’s respective Cap Amount. The Guaranteed Party agrees that any claims by the Guaranteed Party for breach by any Guarantor of the representations and warranties and agreements contained in this Limited Guarantee, including, without limitation, the representations and warranties contained in Section 5, shall be subject to the Cap Amount, and that any payments to the Guaranteed Party by any Guarantor in satisfaction of such claims shall reduce the amount of such Guarantor’s Obligations.

3. CHANGES IN OBLIGATION, CERTAIN WAIVERS. Each Guarantor agrees that the Guaranteed Obligation of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (a) any change in the time, manner or place of payment of, the Guaranteed Obligation, or any rescission, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement (other than any amendment or modification which affects the Parent Termination Fee) or any other agreement evidencing, securing or otherwise executed in connection with the Guaranteed Obligation; (b) the failure (or delay) on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent or Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement, including any other Guarantor (collectively, the “Other Guarantors”); (c) the addition, substitution or release of any Person primarily or secondarily liable for the Guaranteed Obligation, (d) any change in the existence, structure or ownership of Parent, Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor); (e) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent or Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor); (f) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Guaranteed Obligation; (g) the existence of any claim, set-off or other right which such Guarantor may have at any time against Parent or Merger Sub or the Guaranteed Party, whether in connection with the Guaranteed Obligation or otherwise, (h) the death, disability or incapacity of any Guarantor or (i) any other circumstance that might otherwise constitute a legal or equitable discharge of, or a defense, set-off or counterclaim available to, Parent, Merger Sub or any Guarantor other than the indefeasible payment in full of the Guaranteed Obligation. To the fullest extent permitted by law, each Guarantor hereby expressly waives any and all rights or defenses arising by reason of any law which would otherwise require any election of remedies by the Guaranteed Party. Each Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Guaranteed Obligation, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the Guaranteed Obligation incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than fraud or willful misconduct by the Guaranteed Party or any of its subsidiaries or affiliates, defenses to the payment of the Guaranteed Obligation that are available to Parent or Merger Sub under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.

The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its subsidiaries and affiliates not to institute, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby, against any Guarantor or Parent Affiliate (as defined below), except for claims against the Guarantors under this Limited Guarantee or a claim against Parent to pay Parent Termination Fee in accordance with, and subject to, the terms of the Merger Agreement. The Guarantors hereby covenant and agree that they shall not institute, and shall cause their respective subsidiaries and affiliates not to institute, any proceeding asserting that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms, and further agree to reimburse upon demand all reasonable costs and expenses, including the reasonable fees and expenses of counsel, incurred or paid by, the Guaranteed Party in connection with any suit, action or proceeding to enforce or protect any rights of the Guaranteed Party hereunder to the extent it is determined by a court of competent jurisdiction that the Guarantors were obligated to pay the Guaranteed Party under this Limited Guarantee. Notwithstanding anything to the contrary contained in this Limited Guarantee, the Guaranteed Party hereby agrees that to the extent Parent’s obligation to pay the Parent Termination Fee under the Merger Agreement is reduced, each Guarantor’s Guaranteed Obligation shall be similarly reduced.

4. No Subrogation. The Guarantors will not exercise any rights of subrogation or contribution against Parent, Merger Sub, other Guarantors or any other Person in connection with the transactions contemplated by the Merger Agreement, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation has been paid in full. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in cash of the Guaranteed Obligation and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligation.

5. NO WAIVER; CUMULATIVE RIGHTS. No failure on the part of the Guaranteed Party to exercise, and no delay in exercising, any right, remedy or power hereunder or under the Merger Agreement shall operate as a waiver thereof, nor shall any single or partial exercise by the Guaranteed Party of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power. Each and every right, remedy and power hereby granted to the Guaranteed Party or allowed it by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by the Guaranteed Party at any time or from time to time.

6. REPRESENTATIONS AND WARRANTIES. Each Guarantor, severally and not jointly, hereby represents and warrants, as to itself only and not as to the other Guarantor, that:

(a) the execution, delivery and performance of this Limited Guarantee have been duly authorized by all necessary action and do not contravene any provision of such Guarantor’s charter, partnership agreement, operating agreement or similar organizational documents or any law, regulation, rule, decree, order, judgment or contractual restriction binding on such Guarantor or its assets;

(b) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by such Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;

(c) this Limited Guarantee constitutes a legal, valid and binding obligation of such Guarantor enforceable against such Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at law); and

(d) such Guarantor has the financial capacity to pay and perform its Guaranteed Obligation under this Limited Guarantee.

7. ASSIGNMENT. Neither this Limited Guarantee nor any the rights, interests or Guaranteed Obligation hereunder shall be assigned or transferred by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the Guaranteed Party (in the case of an assignment by a Guarantor) or the Guarantors (in the case of an assignment by the Guaranteed Party); provided, however, that any Guarantor may assign all or a portion of its obligations hereunder to an affiliate or to an entity managed or advised by an affiliate of such Guarantor, provided that no such assignment shall relieve such Guarantor of any liability or obligation hereunder except to the extent actually performed and satisfied by such assignee.

8. NOTICES. Any notice required to be given hereunder shall be sufficient if in writing, and sent by personal delivery, by confirmed facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee’s location on any Business Day after 5:00 p.m. (addressee’s local time) shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business Day), by reliable overnight delivery service (with proof of service) or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows (or at such other address for a party as shall be specified in a notice given in accordance with this Section 7):

if to a Guarantor:

c/o Macquarie Infrastructure Partners Inc.

125 West 55th Street, 9th Floor

New York, NY 10019

Telecopy: (212) 231-1828

Attention: Christopher Leslie

and

c/o GS Direct, LLC

85 Broad Street

New York, NY 10004

Telecopy: (212) 357-5505

Attention: Gerald Cardinale

with copies to:

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

Telecopy: (212) 310-8007

Attention: Frederick S. Green

Michael E. Lubowitz

and

Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza

New York, NY 10004

Telecopy: (212) 357-5505

Attention: Robert C. Schwenkel

and

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P.

230 N. Elm Street, Suite 2000

Greensboro, NC 27401

Telecopy: (336) 378-1001

Attention: William G. McNairy

J. Lee Lloyd

if to the Guaranteed Party:

Waste Industries USA, Inc.

3301 Benson Drive, Suite 601

Raleigh, NC 27609

Telecopy: (919) 325-3013

Attention: D. Stephen Grissom

with copies to:

Robinson, Bradshaw & Hinson, P.A.

101 North Tryon Street, Suite 1900

Charlotte, NC 28246

Telecopy: (704) 378-4000

Attention: Robin L. Hinson

Patrick S. Bryant

and

Wyrick Robbins Yates & Ponton LLP

Raleigh Office-Research Triangle Area

The Summit

4101 Lake Boone Trail, Suite 300

Raleigh, NC 27607-7506

Telecopy: (919) 781-4865

Attention: James M. Yates, Jr.

9. CONTINUING GUARANTEE. This Limited Guarantee is a continuing guaranty and may not be revoked or terminated and shall remain in full force and effect and shall be binding on the Guarantors and their heirs, estates, survivors, conservators, personal representatives, successors and assigns until the Guaranteed Obligation of such Guarantor payable under this Limited Guarantee has been paid in full. Notwithstanding the foregoing, this Limited Guarantee shall terminate and the Guarantors shall have no further obligations under this Limited Guarantee as of the earliest of (a) the Effective Time, (b) the termination of the Merger Agreement in circumstances where no Parent Termination Fee is payable, (c) the first anniversary of the End Date, unless a claim hereunder has been made prior to such date, in which case the date such claim is finally satisfied or otherwise resolved by agreement of the parties hereto or by a final, non-appealable judgment of a Governmental Entity of competent jurisdiction and (d) the Guaranteed Obligation payable under this Limited Guarantee has been paid in full. Notwithstanding the foregoing, in the event that the Guaranteed Party or any of its subsidiaries or affiliates asserts in any litigation or other proceeding that the provisions hereof (including, without limitation, Section 1 hereof) limiting the Guarantors’ respective liability or any other provisions of this Limited Guarantee are illegal, invalid or unenforceable in whole or in part, or asserting any theory of liability against any Guarantor or any Guarantor Affiliate or Parent or Merger Sub with respect to the transactions contemplated by the Merger Agreement or this Limited Guarantee other than liability of any Guarantor under this Limited Guarantee (as limited by the provisions hereunder, including Section 1), then (x) the Guaranteed Obligations of the Guarantors under this Limited Guarantee shall terminate ab initio and be null and void, (y) if any Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party, and (z) neither the Guarantors nor any Guarantor or Parent Affiliates shall have any liability to the Guaranteed Party or any of its affiliates with respect to the transactions contemplated by the Merger Agreement or under this Limited Guarantee. Subject to the foregoing, in the event that any payment to the Guaranteed Party hereunder is rescinded or must otherwise be returned to any Guarantor for any reason whatsoever, such Guarantor shall remain liable hereunder as if such payment had not been made (subject to the terms hereof).

10. NO RECOURSE. The Guaranteed Party acknowledges that the sole asset of Parent is cash in a de minimis amount, and its rights under the Merger Agreement, and that no additional funds are expected to be contributed to Parent unless and until the Closing occurs. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered contemporaneously herewith, and notwithstanding the fact that a Guarantor may be a partnership or limited liability company, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party acknowledges and agrees that it has no right of recovery against, and no personal liability shall attach to, any past, present or future affiliate, director, officer, employee, incorporator, member, manager, partner, shareholder, agent, attorney, representative or assignee of any Guarantor or any past, present or future affiliate, director, officer, employee, incorporator, member, manager, partner, shareholder, agent, attorney, representative or assignee of the foregoing (collectively, but not including Parent or Merger Sub, each a “Guarantor or Parent Affiliate”), through Parent or otherwise, whether by or through attempted piercing of the corporate (or limited liability company) veil, by or through a claim by or on behalf of Parent against any Guarantor or Parent Affiliate (including a claim to enforce the Buyer Group Commitments, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable law, or otherwise, except for its rights to recover from such Guarantor (but not any Guarantor or Parent Affiliate) under and to the extent provided in this Limited Guarantee and subject to the limitations described herein. Recourse against the Guarantors under and pursuant to the terms of this Limited Guarantee shall be the sole and exclusive remedy of the Guaranteed Party and all of its subsidiaries and affiliates against the Guarantors and Guarantor or Parent Affiliates in respect of any liabilities or obligation arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby or this Limited Guarantee.

11. RELEASE. (a) By its acceptance of this Limited Guarantee, the Guaranteed Party hereby covenants and agrees that (1) neither the Guaranteed Party nor any of its subsidiaries or affiliates, and the Guaranteed Party agrees that none of its officers, directors, security holders or representatives has or shall have any right of recovery under or in connection with the Merger Agreement, or the transactions contemplated thereby or otherwise relating thereto, and to the extent that it has or obtains any such right it, to the maximum extent permitted by law, hereby waives (on its own behalf and on behalf of each of the aforementioned persons) each and every such right against, and hereby releases, the Guarantors and each of the Guarantor or Parent Affiliates from and with respect to any claim, known or unknown, now existing or hereafter arising, in connection with any transaction contemplated by or otherwise relating to the Merger Agreement or the transactions contemplated thereby, whether by or through attempted piercing of the corporate (or limited liability company) veil, by or through a claim by or on behalf of Parent or Merger Sub or any other person against any Guarantor or Parent Affiliate, or otherwise under any theory of law or equity, other than claims against any Guarantor pursuant to this Limited Guarantee (subject to the limitations described herein); and (2) recourse against the Guarantors under this Limited Guarantee (and subject to the limitations described herein) shall be the sole and exclusive remedy of the Guaranteed Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its affiliates not to institute, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby or otherwise relating thereto, against any Guarantor or Parent Affiliate except claims against the Guarantors under this Limited Guarantee (subject to the limitations described herein).

12. GOVERNING LAW. This Limited Guarantee shall be solely governed by and construed pursuant to the laws of the State of New York, and all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) that may be based upon, arise out of or relate to this Limited Guarantee or the negotiation, execution or performance hereof, shall be governed solely by the laws of the State of New York, all without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. Any claim against any party to this Limited Guarantee arising out of or relating to this Limited Guarantee shall be brought in any state or federal court sitting in the state of North Carolina and each of the parties hereto hereby submits to the exclusive jurisdiction of such courts for the purpose of any such claim and agrees that it will not bring any such claim in any court other than the aforesaid courts.

13. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE ACTIONS OF EACH OF THE PARTIES HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.

14. COUNTERPARTS. This Limited Guarantee may be executed in two or more consecutive counterparts (including by facsimile), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.

15. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this Limited Guarantee will be valid and binding unless it is in writing and signed, in the case of an amendment, by the Guarantors and the Guaranteed Party, or in the case of waiver, by the party against whom the waiver is to be effective. No waiver by any party of any breach or violation of, or default under, this Limited Guarantee, whether intentional or not, will be deemed to extend to any prior or subsequent breach, violation or default hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No delay or omission on the part of any party in exercising any right, power or remedy under this Limited Guarantee will operate as a waiver thereof.

15. ENTIRE AGREEMENT. This Limited Guarantee constitutes the entire agreement with respect to the subject matter hereof and supersedes any and all prior discussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, among Parent, Merger Sub and the Guarantors or any of their Affiliates on the one hand, and the Guaranteed Party or any of its Affiliates on the other hand, except for the Merger Agreement.

16. SEVERABILITY. To the extent any provision of this Limited Guarantee is prohibited by or invalid under the applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity. No party hereto shall assert that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Limited Guarantee so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

IN WITNESS WHEREOF, the undersigned have executed and delivered this Limited Guarantee as of the date first above written.

	MACQUARIE INFRASTRUCTURE PARTNERS A L.P., by its General Partner, Macquarie Infrastructure Partners U.S. GP LLC, by its Manager and Attorney-in-Fact, Macquarie Infrastructure Partners Inc.

	By:	/s/ Christopher Leslie
		Name: Christopher Leslie
		Title: President

	By:	/s/ Mark Wong
		Name: Mark Wong
		Title: Treasurer

	MACQUARIE INFRASTRUCTURE PARTNERS INTERNATIONAL L.P., by its General Partner, Macquarie Infrastructure Partners U.S. GP LLC, by its Manager and Attorney-in-Fact, Macquarie Infrastructure Partners Inc.

	By:	/s/ Christopher Leslie
		Name: Christopher Leslie
		Title: President

	By:	/s/ Mark Wong
		Name: Mark Wong
		Title: Treasurer

	MACQUARIE INFRASTRUCTURE PARTNERS CANADA, L.P., by its General Partner, Macquarie Infrastructure Partners Canada GP LTD., by its Manager and Attorney-in-Fact, Macquarie Infrastructure Partners Inc.

	By:	/s/ Christopher Leslie
		Name: Christopher Leslie
		Title: President

	By:	/s/ Mark Wong
		Name: Mark Wong
		Title: Treasurer

	GS DIRECT, LLC

	By:	/s/ Gerald J. Cardinale
		Name: Gerald J. Cardinale
		Title: Managing Director

		/s/ Lonnie C. Poole, Jr.
		Lonnie C. Poole, Jr.

		/s/ Jim W. Perry
		Jim W. Perry

		/s/ Lonnie C. Poole, III
		Lonnie C. Poole, III

		/s/ Scott J. Poole
		Scott J. Poole

	LONNIE C. POOLE, III IRREVOCABLE TRUST (TAILWALKER TRUST)

	By:	/s/ Scott J. Poole
		Name: Scott J. Poole
		Title: Trustee

	LONNIE C. POOLE, III IRREVOCABLE TRUST (TAILWALKER NON-GST TRUST)

	By:	/s/ Scott J. Poole
		Name: Scott J. Poole
		Title: Trustee

	LONNIE C. POOLE, JR GRANTOR TRUST DATED MAY 1, 1995

	By:	/s/ Lonnie C. Poole, III
		Name: Lonnie C. Poole, III
		Title: Trustee


	By:	/s/ Scott J. Poole
		Name: Scott J. Poole
		Title: Trustee

	PERRY 2007 IRREVOCABLE TRUST U/A/D DECEMBER 13, 2007

	By:	/s/ Rebecca Elliott Perry
		Name: Rebecca Elliott Perry
		Title: Trustee

	DAMAS II CHARITABLE REMAINDER UNITRUST U/A/D 12/13/07

	By:	/s/ Robert Hall
		Name: Robert Hall
		Title: Trustee

	Accepted and agreed as of the date first above written:

	WASTE INDUSTRIES USA, INC.

	By:	/s/ Paul F. Hardiman
		Name: Paul F. Hardiman
		Title: Chairman of the Special Committee of the Board of Directors of Waste Industries USA, Inc.

EX-7.17 18 rsexh7_17.htm POWER OF ATTORNEY rsexh7_17.htm

Exhibit 7.17

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS that THE GOLDMAN SACHS GROUP, INC. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Yvette Kosic, Andrea Louro DeMar, John M. O'Rourke, Felicia J. Rector, Michael T. Seeley, and Stephen Wong, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in it name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates.

IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of May 23, 2006.

THE GOLDMAN SACHS GROUP, INC.

/s/ GREGORY K. PALM

GREGORY K. PALM

Executive Vice President and General Counsel

EX-7.18 19 rsexh7_18.htm POWER OF ATTORNEY rsexh7_18.htm

Exhibit 7.18

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN, SACHS & CO. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Yvette Kosic, Andrea Louro DeMar, John M. O'Rourke, Felicia J. Rector, Michael T. Seeley, and Stephen Wong, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.

IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 26, 2006.

GOLDMAN, SACHS & CO.

/s/ GREGORY K. PALM

GREGORY K. PALM

Managing Director