If
the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule
13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.
¨
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 (“
Act
”)
or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act.
CUSIP No. 00790X101
1
|
|
Name of reporting person.
Canada Pension Plan Investment Board
|
2
|
|
Check the appropriate box if a member of a group (see instructions)
(a)
¨
(b)
x
|
3
|
|
SEC use only
|
4
|
|
Source of funds (see instructions)
OO
|
5
|
|
Check if disclosure of legal proceedings is required pursuant to
Items 2(d) or 2(e)
¨
|
6
|
|
Citizenship or place of organization
Canada
|
Number of
shares
beneficially
owned by
each
reporting
person with
|
|
7
|
Sole voting power
16,572,106 shares
|
|
8
|
Shared voting power
0 shares
|
|
9
|
Sole dispositive power
16,572,106 shares
|
|
10
|
Shared dispositive power
0 shares
|
11
|
|
Aggregate amount beneficially owned by each reporting person
16,572,106 shares
|
12
|
|
Check if the aggregate amount in Row (11) excludes certain shares
(see instructions)
¨
|
13
|
|
Percent of class represented by amount in Row (11)
18.7%
(1)
|
14
|
|
Type of reporting person (see instructions)
CO
|
|
(1)
|
Calculated based on the 88,787,548 shares of Common Stock, $0.01 par value per share (“
Common Stock
”) of
Advanced Disposal Services, Inc. (the “Company” or the “Issuer”) outstanding as of March 25, 2019, as reported
in the Issuer’s Definitive Proxy Statement on Schedule 14A filed on April 3, 2019.
|
Explanatory Note
This Amendment No. 2 to
Schedule 13D (this “
Amendment No. 2
”) amends and supplements the Schedule 13D originally filed with the United
States Securities and Exchange Commission on October 12, 2016, as amended on June 15, 2018 (as so amended, the “
Statement
”).
The Statement shall not be modified except as specifically provided herein.
Information reported in
the Statement remains in effect except to the extent that it is amended or superseded by information contained in this Amendment
No. 2.
Item 2. Identity and Background
The last paragraph of Item
2 of the Statement is hereby amended and replaced with the following, and Schedule I of the Statement is hereby amended and replaced
with Schedule I attached hereto:
In accordance with the
provisions of General Instruction C to Schedule 13D, with respect to the Reporting Person, information concerning the name, business
address, principal occupation and citizenship of its general partners, executive officers and board of directors and each person
controlling the Reporting Person (collectively, the “
Covered Persons
”), required by Item 2 of Schedule 13D,
is provided on Schedule I and is incorporated by reference herein. To the Reporting Person’s knowledge, none of the Covered
Persons listed on Schedule I has been, during the last five years, (i) convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors), or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Item 4. Purpose of the Transaction
Item 4 of the Statement
is hereby amended and supplemented by adding the following:
On April 14, 2019, the
Company, Waste Management, Inc. (“
Parent
”) and Everglades Merger Sub Inc. (“
Merger Sub
”)
entered into an Agreement and Plan of Merger (the “
Merger Agreement
”), pursuant to which Merger Sub will merge
with and into the Company, with the Company surviving, on the terms and conditions set forth therein (the “
Merger
”).
Under the terms of the Merger Agreement, upon the consummation of the Merger, each share of common stock of the Company (“
Share
”)
will be converted into the right to receive $33.15 per Share in cash.
On April 14, 2019, the
Reporting Person and Parent entered into a Voting and Support Agreement (the “
Voting Agreement
”). The Reporting
Person owns 16,572,106 shares of Common Stock (the “
Covered Shares
”) as of the date of this filing.
Subject to the terms and
conditions of the Voting Agreement, including the absence of any change of recommendation of the Merger by the Company’s
board of directors under circumstances defined in the Merger Agreement, the Reporting Person has agreed, among other things, to
vote (i) its Covered Shares in favor of the approval and adoption of the Merger Agreement and (ii) against certain other matters,
including the following: (a) any action or agreement that would reasonably be expected to result in a breach of the Merger Agreement
or a failure of timely satisfaction of closing conditions under the Merger Agreement, (b) any acquisition proposal or other proposal
made in opposition to, in competition with, or inconsistent with, the Merger or the Merger Agreement and (c) any other action,
agreement or proposal that could reasonably be expected to delay, postpone or adversely affect the consummation of the Merger and
the other transactions contemplated by the Merger Agreement.
The Voting Agreement terminates
upon the earliest to occur of: (i) the Merger contemplated by the Merger Agreement becomes effective, (ii) the Merger Agreement
is validly terminated in accordance with the terms thereof, or (iii) the Reporting Person’s election to terminate in its
sole discretion promptly following any amendment to the Merger Agreement that reduces or changes the form of consideration payable.
The Voting Agreement also
restricts the Reporting Person, among other things, from transferring the Covered Shares without the consent of Parent. Exceptions
include transfers to affiliated transferees who agree to be bound by the terms of the Voting Agreement and transfers incident to
ordinary course financing transactions following the receipt of the required stockholder approval of the Merger by the Company’s
stockholders.
The foregoing description
of the Voting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Voting
Agreement, which is filed as Exhibit E hereto and incorporated by reference herein.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer
Item 6 of the Statement is hereby amended and supplemented by inserting
the following:
The information set forth in Item 4 above is hereby incorporated
by reference in response to Item 6.
Item 7. Material to be filed as exhibits.
Item 7 is hereby amended and supplemented by adding the following:
Exhibit E
|
Voting and Support Agreement, dated as of April 14, 2019, between Waste Management, Inc. and Canada Pension Plan Investment Board.
|
SIGNATURE
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.
|
April 16, 2019
|
|
Date
|
|
|
|
CANADA PENSION PLAN INVESTMENT BOARD
|
|
|
|
/s/ Patrice Walch-Watson
|
|
Signature
|
|
|
|
Patrice Walch-Watson
|
|
Senior Managing Director, General Counsel & Corporate Secretary
|
|
Name/Title
|
[Signature page to 13D/A re: Advanced Disposal Services, Inc.]
Schedule I
The following sets forth
the name, business address, and present principal occupation and citizenship of each manager, executive officer and controlling
person of the Reporting Person.
Directors of the Reporting Person
Heather Munroe-Blum
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Corporate Director
Citizenship: Canada
Sylvia Chrominska
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Corporate Director
Citizenship: Canada
Ashleigh Everett
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Corporate Executive, Royal Canadian Securities
Limited
Citizenship: Canada
Tahira Hassan
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Corporate Director
Citizenship: Canada, Pakistan
John Montalbano
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Corporate Director
Citizenship: Canada
Chuck Magro
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Corporate Executive, Nutrien Ltd
Citizenship: Canada
Mary Phibbs
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Corporate Director
Citizenship: Great Britain, Australia
Karen Sheriff
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Corporate Director
Citizenship: Canada, United States
Kathleen Taylor
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Corporate Director
Citizenship: Canada
Jo Mark Zurel
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Corporate Director
Citizenship: Canada
Executive Officers of the Reporting Person
Mark Machin
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: President & Chief Executive Officer
Citizenship: Great Britain
Neil Beaumont
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director & Chief Financial
and Risk Officer
Citizenship: Canada
Alain Carrier
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director & Head of International,
Head of Europe
Citizenship: Canada and Great Britain
Edwin D. Cass
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director & Global Head
of Real Assets
Citizenship: Canada
Shane Feeney
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director & Global Head
of Private Equity
Citizenship: Canada
John Graham
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director & Global Head
of Credit Investments
Citizenship: Canada and Great Britain
Suyi Kim
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director & Head of Asia
Pacific, CPPIB
Citizenship: South Korea
Michel Leduc
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director & Global Head
of Public Affairs and Communications
Citizenship: Canada
Deborah Orida
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director & Global Head
of Active Equities
Citizenship: Canada
Geoffrey Rubin
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director & Chief Investment
Strategist
Citizenship: United States
Kelly Shen
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director & Chief Technology
and Data Officer
Citizenship: United States
Mary Sullivan
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director & Chief Talent
Officer
Citizenship: Canada
Patrice Walch-Watson
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director, General Counsel
& Corporate Secretary
Citizenship: Canada
Poul Winslow
c/o Canada Pension Plan Investment Board, One Queen Street East,
Suite 2500, Toronto, ON M5C 2W5
Principal Occupation: Senior Managing Director & Global Head
of Capital Markets and Factor Investing
Citizenship: Denmark
Exhibit E
Execution Version
VOTING AND SUPPORT AGREEMENT
This Voting and Support
Agreement (this “
Agreement
”) is made and entered into as of April 14, 2019, by and between Waste Management,
Inc., a Delaware corporation (“
Parent
”), and the person whose name appears on the signature pages hereto (the
“
Stockholder
”).
RECITALS
A. Concurrently
with the execution and delivery of this Agreement, Parent, Everglades Merger Sub Inc., a Delaware corporation and indirect subsidiary
of Parent (“
Merger Sub
”), and Advanced Disposal Services, Inc., a Delaware corporation (the “
Company
”),
are entering into an Agreement and Plan of Merger (as it may be amended, supplemented or otherwise modified from time to time,
the “
Merger Agreement
”) that, among other things and subject to the terms and conditions set forth therein,
provides for the merger of Merger Sub with and into the Company, with the Company being the surviving entity in such merger (the
“
Merger
”).
B. As
an inducement and condition for Parent and Merger Sub to enter into the Merger Agreement, the Stockholder agrees to enter into
this Agreement with respect to all shares of common stock, par value $0.01 per share, of the Company (the “
Common Stock
”)
that the Stockholder owns, beneficially (as defined in Rule 13d-3 under the Exchange Act) or of record as of the date hereof, and
any additional shares of Common Stock that such Stockholder may acquire beneficial (as defined in Rule 13d-3 under the Exchange
Act) or record ownership of after the date hereof (collectively, the “
Covered Shares
”).
C. As
of the date hereof, the Stockholder is the beneficial or legal owner of record, and has sole voting power over, 16,572,106 of shares
of Common Stock.
D. The
Stockholder is party to (i) that certain Stockholders Agreement, dated as of October 12, 2016, by and among the Company, the Stockholder
and the other parties thereto (the “
Stockholders Agreement
”), (ii) that certain Registration Rights Agreement,
dated as of October 12, 2016, by and among the Company and certain shareholders of the Company (the “
Registration Rights
Agreement
”) and (iii) that certain Subscription Agreement by and between Star Atlantic Waste Holdings II, L.P. and the
Stockholder dated as of August 3, 2016 (the “
Subscription Agreement
”).
NOW, THEREFORE, in consideration
of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1.
Definitions.
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger
Agreement. When used in this Agreement, the following terms shall have the meanings assigned to them in this
Section 1.
“
Expiration Time
”
shall mean the earlier to occur of (a) the Effective Time and (b) such date and time as the Merger Agreement shall be validly terminated
pursuant to Article VIII thereof.
“
Transfer
”
shall mean (a) any direct or indirect offer, sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer
(by operation of Law or otherwise), either voluntary or involuntary, or entry into any option or other Contract, arrangement or
understanding with respect to any offer, sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer
(by operation of Law or otherwise), of any Covered Shares or any interest in any Covered Shares (in each case other than this Agreement),
(b) the deposit of such Covered Shares into a voting trust, the entry into a voting agreement or arrangement (other than this Agreement)
with respect to such Covered Shares or the grant of any proxy or power of attorney (other than this Agreement) with respect to
such Covered Shares, (c) entry into any hedge, swap or other transaction or Contract which is designed to (or is reasonably expected
to lead to or result in) a transfer of the economic consequences of ownership of any Covered Shares, whether any such transaction
is to be settled by delivery of Covered Shares, in cash or otherwise or (d) any Contract or commitment (whether or not in writing)
to take any of the actions referred to in the foregoing clauses (a), (b) or (c) above.
2.
Agreement
to Not Transfer the Covered Shares.
2.1
No
Transfer of Covered Shares.
Until the Expiration Time, the Stockholder agrees not to Transfer or cause or permit the
Transfer of any Covered Shares, other than with the prior written consent of Parent (to be granted or withheld in
Parent’s sole discretion);
provided
,
however,
that nothing herein shall prohibit (i) a Transfer to an
Affiliate of the Stockholder, but only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably
satisfactory in form and substance to Parent, to assume all of the obligations of the Stockholder under, and be bound by all
of the terms of, this Agreement, and (ii) from and after the date of the Stockholders Meeting at which the Company Requisite
Vote is obtained, the Stockholder and its Affiliates shall be permitted to engage in Transfers to the extent incident to or
resulting from the pledging of the Covered Shares as collateral as part of the ordinary course financing activity of the
Stockholder and its Affiliates. Any Transfer or attempted Transfer of any Covered Shares in violation of this
Section
2.1
shall be null and void and of no effect whatsoever.
2.2
Update
of Beneficial Ownership Information.
Promptly following the written request of Parent, or upon the Stockholder’s or
any of its Affiliates’ acquisition of beneficial (as defined in Rule 13d-3 under the Exchange Act) or record ownership
of additional shares of Common Stock after the date hereof, the Stockholder will send to Parent a written notice setting
forth the number of Covered Shares beneficially owned by such Stockholder or any of its Affiliates and indicating the
capacity in which such Covered Shares are owned. The Stockholder agrees to cause any of its Affiliates that acquires
beneficial ownership of any shares of Common Stock on or after the date hereof to execute an agreement in a form reasonably
acceptable to Parent to be bound with respect to this Agreement with respect to such shares to the same extent such shares
would be subject to this Agreement had they been beneficially acquired by the Stockholder.
3.
Agreement
to Vote the Covered Shares.
3.1 Until
the Expiration Time, at every meeting of the Company’s stockholders at which any of the following matters are to be voted
on (and at every adjournment or postponement thereof), and on any action or approval of Company’s stockholders by written
consent with respect to any of the following matters, the Stockholder shall vote (including via proxy) the Covered Shares (or
cause the holder of record on any applicable record date to vote (including via proxy) the Covered Shares):
(a) unless
the Company Board has made a Change of Recommendation that has not been rescinded or otherwise withdrawn, in favor of the adoption
of the Merger Agreement; and
(b) unless
the Company Board has made a Change of Recommendation that has not been rescinded or otherwise withdrawn, against (A) any action
or agreement that would reasonably be expected to result in a breach of the Merger Agreement or result in any condition set forth
in Article VII of the Merger Agreement not being satisfied on a timely basis, (B) any Acquisition Proposal, or any other proposal
made in opposition to, in competition with, or inconsistent with the Merger Agreement, the Merger or the transactions contemplated
by the Merger Agreement and (C) any other action, agreement or proposal which could reasonably be expected to delay, postpone or
adversely affect consummation of the Merger and the other transactions contemplated by the Merger Agreement.
3.2 Until
the Expiration Time, at every meeting of the Company’s stockholders (and at every adjournment or postponement thereof),
the Stockholder shall be represented in person or by proxy at such meeting (or cause the holders of record on any applicable
record date to be represented in person or by proxy at such meeting) in order for the Covered Shares to be counted as present
for purposes of establishing a quorum.
3.3 Except
as explicitly set forth in this Section 3, nothing in this Agreement shall limit the right of the Stockholder to vote (or
cause to be voted), including by proxy, if applicable, in favor of, or against or to abstain with respect to, any other
matters presented to the stockholders of the Company. Without limiting the foregoing, nothing herein shall limit the
Stockholder’s ability to vote for directors of the Company.
4.
Waiver
of Appraisal Rights.
The Stockholder hereby waives all appraisal rights under Section 262 of the DGCL with respect to all Covered
Shares owned (beneficially or of record) by such Stockholder.
5.
No
Solicitation.
5.1 Until
the Expiration Time, the Stockholder shall not, and shall cause its Representatives not to, directly or indirectly, take any
of the actions set forth in clauses (i) through (iv) of Section 6.1(a) of the Merger Agreement. The Stockholder shall, and
shall cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations
conducted before the date of this Agreement with any persons other than Parent with respect to any Acquisition Proposal.
Notwithstanding anything in this Agreement to the contrary, (i) the Stockholder shall not be responsible for the actions of
the Company or its Board of Directors (or any committee thereof), any Subsidiary of the Company or any officers, directors
(in their capacity as such), employees and professional advisors of any of the foregoing, including with respect to any
matters referred to in Section 6.1 of the Merger Agreement.
5.2 Notwithstanding
the foregoing, solely to the extent the Company is permitted, pursuant to Section 6.1(b) of the Merger Agreement, to have
discussions or negotiations with a person making a
bona fide
Acquisition Proposal, the Stockholder and its
Representatives shall be permitted to participate in such discussions or negotiations with such person making such
Acquisition Proposal.
6.
No
Legal Action.
The Stockholder shall not, and shall cause its Representatives not to, bring, commence, institute, maintain,
prosecute or voluntarily aid any claim, appeal, or proceeding which (a) challenges the validity of or seeks to enjoin the operation
of any provision of this Agreement or (b) alleges that the execution and delivery of this Agreement by the Stockholder (or its
performance hereunder) breaches any fiduciary duty of the Company Board (or any member thereof) or any duty that the Stockholder
has (or may be alleged to have) to the Company or to the other holders of the Common Stock.
7.
Capacity.
No Person who is a representative of the Stockholder, who is or becomes during the term hereof a director of the Company, shall
be deemed to make any agreement or understanding in this Agreement in such Person’s capacity as a director of the Company.
The Stockholder is entering into this Agreement solely in its capacity as the record holder or beneficial owner of the Covered
Shares and nothing herein shall limit or affect any actions taken (or any failures to act) by a representative of the Stockholder
in such representative’s capacity as a director of the Company. The taking of any actions (or any failures to act) by any
representative of the Stockholder in his or her capacity as a director of the Company shall not be deemed to constitute a breach
of this Agreement, regardless of the circumstances related thereto.
8.
Notice
of Certain Events.
The Stockholder shall notify Parent in writing promptly of (a) any fact, event or circumstance that would
cause, or reasonably be expected to cause or constitute, a breach of the representations and warranties of the Stockholder under
this Agreement or (b) the receipt by the Stockholder of any notice or other communication from any Person alleging that the consent
of such Person is or may be required in connection with this Agreement.
9.
Stockholders,
Registration Rights and Subscription Agreements.
The Stockholder, on
behalf of itself and its Affiliates, hereby agrees that upon the Effective Time, (i) the Stockholder and its Affiliates shall
cease to have any rights under the Stockholders Agreement, the Registration Rights Agreement or the Subscription Agreement, (ii)
the Stockholders Agreement, Registration Rights Agreement and Subscription Agreement shall be terminated without any further action
of the Stockholder or its Affiliates and (iii) the Stockholder and its Affiliates release the Surviving Corporation and its Affiliates,
and the Parent on behalf of itself and its Affiliates (including the Surviving Corporation) release the Stockholder and its Affiliates,
from all liabilities or obligations arising under the Stockholders Agreement the Registration Rights Agreement or the Subscription
Agreement, it being agreed, for the avoidance of doubt, that the foregoing shall not limit the rights under Section 6.10 of the
Merger Agreement of any director nominee appointed pursuant to the Stockholders Agreement.
10.
Representations
and Warranties of the Stockholder.
The Stockholder hereby represents and warrants to Parent that:
10.1
Due Authority.
The Stockholder has the full power and capacity to make, enter into and carry out the terms of this Agreement. The Stockholder
is duly organized, validly existing and in good standing in accordance with the laws of its jurisdiction of formation. The execution
and delivery of this Agreement, the performance of the Stockholder’s obligations hereunder, and the consummation of the transactions
contemplated hereby have been validly authorized, and no other consents or authorizations are required to give effect to this Agreement
or the transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by the Stockholder
and constitutes a valid and binding obligation of the Stockholder enforceable against it in accordance with its terms, except as
enforcement may be limited by general principles of equity whether applied in a court of law or a court of equity and by bankruptcy,
insolvency and similar Laws affecting creditors’ rights and remedies generally.
10.2
Ownership of the
Covered Shares.
(a) The Stockholder is, as of the date hereof, the beneficial or record owner of the Covered Shares, free and
clear of any and all Liens, other than those created by this Agreement or the agreements referred to in Section 9 hereof and (b)
the Stockholder has sole voting power over all of the Covered Shares beneficially owned by the Stockholder. The Stockholder has
not entered into any agreement to Transfer any Covered Shares. As of the date hereof, the Stockholder does not own, beneficially
or of record, any shares of Common Stock or other voting shares of the Company (or any securities convertible, exercisable or exchangeable
for, or rights to purchase or acquire, any shares of Common Stock or other voting shares of the Company) other than the Covered
Shares.
10.3
No Conflict; Consents.
(c) The
execution and delivery of this Agreement by the Stockholder does not, and the performance by the Stockholder of its obligations
under this Agreement and the compliance by the Stockholder with any provisions hereof does not and will not: (a) conflict with
or violate any Laws applicable to the Stockholder, or (b) result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or result in the creation of a Lien on any of the Covered Shares beneficially owned by the Stockholder pursuant
to any Contract or obligation to which the Stockholder is a party or by which the Stockholder is subject.
(d) No
consent, approval, order or authorization of, or registration, declaration or, except as required by the rules and regulations
promulgated under the Exchange Act, filing with, any Governmental Entity or any other Person, is required by or with respect to
the Stockholder in connection with the execution and delivery of this Agreement or the consummation by them of the transactions
contemplated hereby.
10.4
Absence of Litigation.
As of the date of this Agreement, there is no legal action pending against, or, to the knowledge of the Stockholder, threatened
against or affecting the Stockholder that could reasonably be expected to materially impair or materially adversely affect the
ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely
basis.
11.
Representations
and Warranties of Parent.
Parent hereby represents and warrants to the Stockholder that:
11.1
Due Authority.
Parent has the full power and capacity to make, enter into and carry out the terms of this Agreement. Parent is duly organized,
validly existing and in good standing in accordance with the laws of its jurisdiction of formation. The execution and delivery
of this Agreement, the performance of Parent’s obligations hereunder, and the consummation of the transactions contemplated
hereby has been validly authorized, and no other consents or authorizations are required to give effect to this Agreement or the
transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by Parent and constitutes
a valid and binding obligation of Parent enforceable against it in accordance with its terms, except as enforcement may be limited
by general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency and similar
Laws affecting creditors’ rights and remedies generally.
11.2
No Conflict; Consents.
(e) The
execution and delivery of this Agreement by Parent does not, and the performance by Parent of its obligations under this Agreement
and the compliance by Parent with the provisions hereof do not and will not: (a) conflict with or violate any Laws applicable to
Parent, or (b) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become
a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, pursuant to
any Contract or obligation to which Parent is a party or by which Parent is subject.
(f) No
consent, approval, order or authorization of, or registration, declaration or, except as required by the rules and regulations
promulgated under the Exchange Act, filing with, any Governmental Entity or any other Person, is required by or with respect to
Parent in connection with the execution and delivery of this Agreement or the consummation by Parent of the transactions contemplated
hereby.
11.3
Absence of Litigation.
As of the date of this Agreement, there is no legal action pending against, or, to the knowledge of Parent, threatened against
or affecting Parent that could reasonably be expected to materially impair or materially adversely affect the ability of Parent
to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
12.
Miscellaneous.
12.1
No Ownership Interest.
Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership
of or with respect to the Covered Shares. All rights, ownership and economic benefits of and relating to the Covered Shares shall
remain vested in and belong to the Stockholder, and Parent shall have no authority to direct the Stockholder in the voting or disposition
of any of the Covered Shares, except as otherwise provided herein.
12.2
Certain
Adjustments.
In the event of a stock split, stock dividend or distribution, or any change in the Common Stock by reason
of any split-up, reverse stock split, recapitalization, combination, reclassification, exchange of shares or the like, the
terms “Common Stock” and “Covered Shares” shall be deemed to refer to and include such shares as well
as all such stock dividends and distributions and any securities into which or for which any or all of such shares may be
changed or exchanged or which are received in such transaction.
12.3
Amendments and Modifications.
This Agreement may not be modified, amended, altered or supplemented except upon the execution
and delivery of a written agreement executed by all of the parties hereto.
12.4
Expenses.
All
costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.
12.5
Notices.
All
notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by facsimile
(upon confirmation of receipt) on the first (1st) Business Day following the date of dispatch if delivered by a recognized next
day courier service, or on the third (3rd) Business Day following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth below, or pursuant to such other
instructions as may be designated in writing by the party to receive such notice:
|
(i)
|
if to the Stockholder, to:
|
Canada Pension Plan Investment Board
One Queen Street East
Suite 2500
Toronto, ON
M5C 2W5
Canada
Attn: Ryan Barry, Managing Director, Legal
Email: rbarry@cppib.com
Canada Pension Plan Investment Board
One Queen Street East
Suite 2500
Toronto, ON
M5C 2W5
Canada
Attn: Sean Cheah, Principal, Relationship Investments,
Active Equities
Email: scheah@cppib.com
with a copy to (which shall not be considered notice):
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Attention: Kevin M. Schmidt
Email: kmschmidt@debevoise.com
Waste Management, Inc.
1001 Fannin
Houston, Texas 77002
Attn: John Morris, Executive Vice President and Chief
Operating Officer
E-mail: JMorris@wm.com
with a copy to:
General Counsel
E-mail: gclegal@wm.com
with a copy to (which shall not be considered notice):
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Fax: (212) 455-2502
Attn: Alan M. Klein
E-mail: aklein@stblaw.com
and
Simpson Thacher & Bartlett LLP
600 Travis Street, Suite 5400
Houston, Texas 77002
Fax: (713) 821-5602
Attn: Christopher R. May
E-mail: cmay@stblaw.com
Advanced Disposal Services, Inc.
90 Fort Wade Road, Suite 200
Ponte Vedra Beach, FL 32081
Attn: Richard Burke and Michael K. Slattery
E-mail: Richard.Burke@AdvancedDisposal.com
E-mail: Michael.Slattery@AdvancedDisposal.com
with a copy to (which shall not constitute notice):
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
Fax: (212) 848-7179
Attn: Scott Petepiece and Daniel Litowitz
E-mail: spetepiece@shearman.com; Daniel.Litowitz@shearman.com
12.6
Jurisdiction; Waiver of Jury.
(g) Each
of the parties irrevocably submits to the exclusive jurisdiction of the Delaware Court of Chancery and any state appellate
court therefrom within the State of Delaware (unless the Delaware Court of Chancery shall decline to accept jurisdiction over
a particular matter, in which case, of any Delaware state or federal court within the State of Delaware) for the purpose of
any claim directly or indirectly based upon, arising out of or relating to this Agreement, any of the transactions
contemplated by this Agreement or the actions of Parent or the Stockholder in the negotiation, administration, performance
and enforcement hereof and thereof. Each of the parties (i) consents to submit itself to the personal jurisdiction of the
Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (unless the Delaware Court of
Chancery shall decline to accept jurisdiction over a particular matter, in which case, of any Delaware state or federal court
within the State of Delaware) with respect to any matter relating to or arising under this Agreement, (ii) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and
(iii) agrees that it will not bring any such proceeding in any court other than the Delaware state or federal courts
within the State of Delaware, as described above. Each of Parent and the Stockholder irrevocably consents to the service of
process out of any of the aforementioned courts in any such action, suit or proceeding by the mailing of copies thereof by
registered mail, postage prepaid, to such party at its address specified pursuant to
Section 12.5,
such service of
process to be effective upon acknowledgment of receipt of such registered mail.
(h) EACH
OF PARENT AND THE STOCKHOLDER 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 AGREEMENT, ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR THE ACTIONS OF PARENT OR THE STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF AND
THEREOF.
12.7
Documentation and
Information.
The Stockholder consents to and authorizes the publication and disclosure by Parent and the Company of the Stockholder’s
identity and holding of the Covered Shares, and the terms of this Agreement (including, for the avoidance of doubt, the disclosure
of this Agreement), in any press release, the Proxy Statement and any other disclosure document required in connection with the
Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement;
provided,
that prior to any such
publication or disclosure Parent and the Company have provided the Stockholder with an opportunity to review and comment upon such
announcement or disclosure, which comments Parent and the Company will consider in good faith.
12.8
Further
Assurances.
The Stockholder agrees, from time to time, at the reasonable request of Parent and without further
consideration, to execute and deliver such additional documents and take all such further action as may be reasonable
required to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this
Agreement.
12.9
Stop Transfer Instructions.
At all times commencing with the execution and delivery of this Agreement and continuing until the Expiration Time, in furtherance
of this Agreement, the Stockholder hereby authorizes the Company or its counsel to notify the Company’s transfer agent that
there is a stop transfer order with respect to all of the Covered Shares (and that this Agreement places limits on the voting and
transfer of the Covered Shares), subject to the provisions hereof and provided that any such stop transfer order and notice will
immediately be withdrawn and terminated by the Company following the Expiration Time.
12.10
Specific Performance.
Each of Parent and the Stockholder agrees that irreparable damage would occur if any of the provisions of this Agreement were not
performed in accordance with their specific terms on a timely basis or were otherwise breached. It is accordingly agreed that Parent
and the Stockholder shall be entitled to injunctive or other equitable relief to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court identified in
Section 12.6(a)
above, this being in
addition to any other remedy to which they are entitled at law or in equity.
12.11
Entire Agreement.
This Agreement contains the entire understanding of the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings, both written and oral, between the parties with respect to such subject matter. For the avoidance
of doubt, nothing in this Agreement shall be deemed to amend, alter or modify, in any respect, any of the provisions of the Merger
Agreement.
12.12
Reliance.
The
Stockholder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon the
Stockholder’s execution and delivery of this Agreement.
12.13
Interpretation.
This Agreement and any documents or instruments delivered pursuant hereto or in connection herewith shall be construed without
regard to the identity of the person who drafted the various provisions of the same. Each and every provision of this Agreement
and such other documents and instruments shall be construed as though all of the parties participated equally in the drafting of
the same. Consequently, the parties acknowledge and agree that any rule of construction that a document is to be construed against
the drafting party shall not be applicable either to this Agreement or such other documents and instruments. 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, and Section references are to this Agreement unless otherwise
specified. 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 headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. In this Agreement,
all references to “dollars” or “$” are to United States dollars. References to a party or to the parties
to this Agreement refers to the Parent and the Stockholder, individually or collectively, as the case may be.
12.14
Assignment.
Neither this Agreement nor any of the rights, interests or obligations of any party hereunder shall be assigned by any of the parties
hereto (whether by operation of Law or otherwise) without the prior written consent of the other party.
12.15
Severability.
Any term or provision of this Agreement which is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without
rendering invalid, illegal or unenforceable the remaining terms and provisions of this Agreement or affecting the validity, legality
or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction, and if any provision of this Agreement
is determined to be so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable,
in all cases so long as neither the economic nor legal substance of the transactions contemplated hereby is affected in any manner
materially adverse to any party or its stockholders. Upon any such determination, the parties shall negotiate in good faith in
an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.
12.16
Counterparts.
This Agreement may be executed by facsimile and in counterparts, all of which shall be considered an original and one and the same
agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties,
it being understood that all parties need not sign the same counterpart.
12.17
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware (without giving effect
to choice of law principles thereof).
12.18
Termination.
This Agreement shall automatically terminate without further action by any of the parties hereto and shall have no further force
or effect as of the earliest to occur of (i) the Expiration Time, or (ii) the election of the Stockholder in its sole discretion
to terminate this Agreement promptly following any amendment of any term or provision of the original unamended Merger Agreement
dated as of the date hereof that reduces or changes the form of consideration payable pursuant to and in accordance with such Merger
Agreement;
provided
that the provisions of this
Article XII
shall survive any such termination. Notwithstanding the
foregoing, termination of this Agreement shall not prevent any party from seeking any remedies (at law or in equity) against any
other party for that party’s breach of any of the terms of this Agreement prior to the date of termination.
[
Signature page follows
]
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed and delivered on the date and year first above written.
|
WASTE MANAGEMENT, INC.
|
|
|
|
By:
|
/s/ John J. Morris Jr.
|
|
|
Name: John J. Morris Jr.
|
|
|
Title: Executive Vice President and Chief Operating Officer
|
[Signature Page to Voting and Support Agreement]
|
CANADA PENSION PLAN INVESTMENT BOARD
|
|
|
|
By:
|
/s/ Deborah K. Orida
|
|
|
Name: Deborah K. Orida
|
|
|
Title: Senior Managing Director & Global Head of Active Equities
|
|
|
|
By:
|
/s/ Kevin Godwin
|
|
|
Name: Kevin Godwin
|
|
|
Title: Senior Principal, Relationship Investments, Active Equities
|
[Signature Page to Voting and Support Agreement]