FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
FIRST
AMENDMENT TO
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
(this “Amendment”), dated as of
July 31, 2008, is by and among Republic Services, Inc., a
Delaware corporation (“Republic”), RS Merger
Wedge, Inc., a Delaware corporation and a wholly owned
subsidiary of Republic (“Merger Sub”), and
Allied Waste Industries, Inc., a Delaware corporation
(“Allied”).
RECITALS
WHEREAS, Republic, Merger Sub and Allied entered into
that certain Agreement and Plan of Merger, dated June 22,
2008 (the “Agreement”); and
WHEREAS, Republic, Merger Sub and Allied desire to amend
the terms of the Agreement in accordance with the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and of
the representations, warranties, covenants and agreements
contained in this Agreement, the parties to this Agreement
(each, a “party” and collectively, the
“parties”) agree as follows:
1. Recitals. The foregoing recitals are
true and correct and are incorporated by reference herein.
2. Definitions. Except as otherwise
defined in this Amendment, all capitalized terms used and not
defined herein shall have the meanings given to them in the
Agreement.
3. Amendments to Agreement. The following
amendments to the Agreement shall become effective immediately
upon the execution of this Amendment:
(a) The reference to Section 3.05 in the Table of
Contents of the Agreement is hereby deleted in its entirety and
the reference to Section 3.04 in the Table of Contents of
the Agreement is hereby deleted in its entirety and replaced
with the following:
“Section 3.04 By-laws of Republic”
(b) The reference to Exhibit B in the Table of
Contents of the Agreement is hereby deleted in its entirety and
the reference to Exhibit A in the Table of Contents
of the Agreement is hereby deleted in its entirety and replaced
with “EXHIBIT A — NEW REPUBLIC BY-LAWS.”
(c) The defined term “Republic Charter
Amendment” contained in Article I of the Agreement
is hereby deleted in its entirety.
(d) The defined term “Republic Share
Issuance” contained in Article I of the Agreement
is hereby amended and restated in its entirety as follows:
“Republic Share Issuance” means the issuance,
as a result of or in connection with the Merger or this
Agreement, of: (i) Republic Common Stock to holders of
Allied Common Stock or to holders of Allied securities (or
former Allied securities) that are or were (whether currently or
upon the occurrence of a contingency) convertible into,
exercisable for or settled in Allied Common Stock; and
(ii) securities of Republic that are or could become
(whether currently or upon the occurrence of a contingency)
convertible into, exercisable for or settled in Republic Common
Stock in place of securities of Allied that are or could become
(whether currently or upon the occurrence of a contingency)
convertible into, exercisable for or settled in Allied Common
Stock.”
(e) Section 3.04 of the Agreement is hereby deleted in
its entirety and replaced with the following:
“Section 3.04 By-laws of
Republic. Republic shall take all actions
necessary to cause the by-laws of Republic at the Effective Time
to be in the form of Exhibit A (the “New
Republic By-laws”), subject to
Section 7.14(d).”
(f) Section 3.05 of the Agreement is hereby deleted in
its entirety.
(g) Section 5.04(a) of the Agreement is hereby amended
and restated in its entirety effective as of June 22, 2008
as follows:
“(a) Each of Republic and Merger Sub has all requisite
corporate power and authority to execute and deliver this
Agreement. The execution, delivery and performance by Republic
and Merger Sub of this Agreement and the consummation by each of
them of the transactions contemplated hereby, including the
Merger and the Republic Share Issuance, have been duly
authorized by all necessary corporate action on the part of
Republic and Merger Sub other than, as of the date hereof, the
receipt of the Republic Stockholder Approval and adoption of
this Agreement by Republic as the sole stockholder of Merger
Sub, and except, as of the date hereof, for the Republic
Stockholder Approval in the case of the Republic Share Issuance
and adoption of this Agreement by Republic as the sole
stockholder of Merger Sub, no other corporate action on the part
of Republic or Merger Sub is necessary to authorize the
consummation of the Merger and the other transactions
contemplated hereby. This Agreement has been duly executed and
delivered by Republic and Merger Sub and constitutes (assuming
the due authorization, execution and delivery by Allied) the
valid and binding obligation of Republic and Merger Sub,
enforceable against each of them in accordance with its terms,
except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, moratorium or other similar
Laws affecting the enforcement of creditors’ rights
generally and subject to general principles of equity.”
(h) Section 5.04(b) of the Agreement is hereby amended
and restated in its entirety effective as of June 22, 2008
as follows:
“(b) The Republic Board, at a meeting duly called and held
prior to execution of this Agreement, unanimously:
(i) approved and declared advisable this Agreement and the
transactions contemplated hereby; (ii) determined that this
Agreement and the transactions contemplated hereby are fair to
and in the best interests of Republic and its stockholders; and
(iii) resolved to recommend that the holders of Republic
Common Stock grant the Republic Stockholder Approval.”
(i) Section 5.04(c) of the Agreement is hereby amended
and restated in its entirety effective as of June 22, 2008
as follows:
“(c) Assuming the accuracy of the representations and
warranties contained in Section 4.22, the only vote
of holders of Republic Common Stock necessary to approve this
Agreement and the transactions contemplated hereby is
(i) the approval of the Republic Share Issuance by the
affirmative vote of a majority of votes cast at the Republic
Stockholder Meeting, provided that the total votes cast on the
Republic Share Issuance represent over 50% in interest of all
securities entitled to vote on the Republic Share Issuance and
(ii) the approval of the Republic Share Issuance by the
affirmative vote of the holders of a majority of the voting
power of the shares of Republic Common Stock present in person
or by proxy at the Republic Stockholder Meeting and entitled to
vote on the Republic Share Issuance, provided, that, in the case
of each of (i) and (ii) immediately above, the holders
of a majority of the voting power of the outstanding shares of
Republic Common Stock entitled to vote at the Republic
Stockholder Meeting must be present thereat, in person or by
proxy (collectively, the “Republic Stockholder
Approval”).”
(j) Section 7.02(b) of the Agreement is hereby amended
and restated in its entirety as follows:
“(b) Except as otherwise permitted by this Agreement or as
may be necessary to avoid violation of applicable Law and
subject to Section 6.02, (i) Republic shall use
all commercially reasonable efforts in accordance with and
subject to the DGCL and other applicable Law, the Republic
Charter and Republic By-laws and the rules of the NYSE to cause
a meeting of its stockholders (the “Republic Stockholder
Meeting”) to be duly called and held as soon as
reasonably practicable for the purpose of securing the Republic
Stockholder Approval, (ii) the Joint Proxy
Statement/Prospectus shall contain the recommendation of the
Republic Board that the Republic’s stockholders approve the
Republic Share Issuance (the “Republic
Recommendation”), and (iii) Republic shall not
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withhold, withdraw, modify or qualify (or publicly propose to or
publicly state that it intends to withhold, withdraw, modify or
qualify) in any manner adverse to Allied such recommendation or
take any other action or make any other public statement in
connection with the Republic Stockholder Meeting inconsistent
with the Republic Recommendation (any actions in clause
(iii) a “Change in Republic
Recommendation”).”
(k) Section 7.12 of the Agreement is hereby amended
and restated in its entirety as follows:
“7.12 Stock Exchange
Listing. Republic shall use its best efforts to
cause the shares of Republic Common Stock to be issued as a
result of or in connection with the Merger to be approved for
listing on the NYSE, subject to official notice of the issuance,
prior to the Closing Date.”
(l) Section 8.01(d) of the Agreement is hereby amended
and restated in its entirety as follows:
“(d) Stock Exchange Listing. The shares of Republic
Common Stock issuable as contemplated by this Agreement shall
have been approved for listing on the NYSE, subject to official
notice of issuance.”
(m) The document attached as Exhibit A to the
Agreement as of June 22, 2008 is hereby deleted in its
entirety and the document attached as Exhibit B to
the Agreement as of June 22, 2008 is hereby renamed
Exhibit A.
4. Miscellaneous. Except as expressly
modified by this Amendment, all of the terms and conditions of
the Agreement shall remain in full force and effect. In the
event that any one or more of the provisions contained in this
Amendment shall, for any reason, be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Amendment. This Amendment may be executed in several
counterparts, and it shall not be necessary that the signatures
of all parties hereto be contained on any one counterpart
hereof; each counterpart shall be deemed an original, but all of
which together shall constitute one and the same instrument.
From and after the date hereof, all references to the Agreement
shall be deemed to be references to the Agreement as amended by
this Amendment. This Amendment, and all disputes between the
parties under or related to this Amendment or the facts and
circumstances leading to its execution, whether in contract,
tort or otherwise, shall be governed by, and construed in
accordance with, the Laws of the State of Delaware, without
reference to conflicts of laws principles. In the event of a
conflict between the terms and conditions of this Amendment and
the Agreement, the terms and conditions of this Amendment shall
control in all respects.
(Intentionally
left blank)
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IN WITNESS WHEREOF, Republic, Merger Sub and Allied have
duly executed this Amendment as of the date first written above.
REPUBLIC SERVICES, INC.
By: |
/s/ Xxxxx
X. X’Xxxxxx
|
Name: Xxxxx X. X’Xxxxxx
Title: | Chairman of the Board and |
Chief Executive Officer
RS MERGER WEDGE, INC.
By: |
/s/ Xxxxx
X. X’Xxxxxx
|
Name: Xxxxx X. X’Xxxxxx
Title: | President |
ALLIED WASTE INDUSTRIES, INC.
By: |
/s/ Xxxx
X. Xxxxxxx
|
Name: Xxxx X. Xxxxxxx
Title: | Chairman of the Board and |
Chief Executive Officer
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