AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AMENDMENT
TO
THIS SECOND AMENDMENT, to the Agreement and Plan of Merger (the “Second Amendment”),
dated as of December 5, 2008, is entered into by and among Republic Services, Inc. a Delaware
corporation (“Republic”), RS Merger Wedge, Inc., a Delaware corporation and a wholly owed
subsidiary of Republic (“Merger Sub”), and Allied Waste Industries, Inc., a Delaware
corporation (“Allied”).
W I T N E S S E T H:
WHEREAS, on June 22, 2008, Republic, Merger Sub, and Allied entered into an Agreement and Plan
of Merger, as amended by the First Amendment, dated July 31, 2008 (the “Merger Agreement”),
pursuant to which Merger Sub shall be merged with and into Allied, at which time Merger Sub shall
cease to exist, and Allied shall be the surviving corporation and shall be a wholly owned, direct
subsidiary of Republic; and
WHEREAS, Republic, Merger Sub and Allied now desire to further amend the Merger Agreement as
set forth below.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. | Section 3.03 of the Merger Agreement is hereby deleted in its entirety and replaced with: |
“Section 3.03 Intentionally omitted.”
2. | Section 7.04(c) of the Merger Agreement is hereby amended by deleting the first word. “Notwithstanding,” and replacing it with: |
“Except as set forth in Section 7.04(d), notwithstanding”
3. | Section 7.04 of the Merger Agreement is hereby amended by adding the following subparagraph (d): |
“(d) Republic and Allied acknowledge that, before Republic may acquire the transfer
stations and landfills owned by Allied (“Allied’s
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Ohio Assets”) and located in the state of Ohio, Ohio law (Ohio Revised Code
Section 3734.42(F)(1)) requires that Republic file certain disclosure statements
with the Director of the Ohio EPA at least 180 days prior to the proposed change in
ownership. Republic has received an exemption from this 180-day requirement
pursuant to Ohio Revised Code Section 3734.02(G) (the “.02(G) Exemption”).
If the Ohio EPA subsequently disapproves this change in ownership based on those
disclosure statements and such disapproval is final and non-appealable, the change
in ownership of Allied’s Ohio Assets will automatically be null and void.
Obtaining approval of the change in ownership for Allied’s Ohio Assets based on
certain disclosure statements filed by Republic (the “Disclosure Statement
Approval”) is a condition subsequent to the Closing. The parties acknowledge
that by proceeding with the Closing prior to receiving the Disclosure Statement
Approval, the parties must include in this Agreement a provision expressly making
the change in ownership subject to the approval of the Ohio EPA and expressly
unwinding the transfer of Allied’s Ohio Assets if it is disapproved by the Ohio
EPA. This provision, therefore, is required to be included in this Agreement
pursuant to Ohio Revised Code § 3734.42(F)(2). In the event that Disclosure
Statement Approval is not obtained for any reason after Republic’s commercially
reasonable efforts to obtain Disclosure Statement Approval, the parties shall take
such steps as shall be necessary to carry out the intentions set forth in this
provision.”
4. | Full Force and Effect. Except as expressly amended hereby, the provisions of the Merger Agreement shall remain in full force and effect in accordance with their terms. |
5. | Counterparts. This Second Amendment may be executed in multiple counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument. |
6. | Governing Law. This Second Amendment will be subject to the Governing Law provisions of the Merger Agreement as if fully set forth in this Amendment. |
7. | Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Merger Agreement. |
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to the Agreement
and Plan of Merger as of the date first set forth above.
Republic Services, Inc. |
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By: | /s/ Xxxxx X. X'Xxxxxx | |||
Name: | Xxxxx X. X’Xxxxxx | |||
Title: | Chairman of the Board and Chief Executive Officer | |||
RS Merger Wedge, Inc. |
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By: | /s/ Xxxxx X. X'Xxxxxx | |||
Name: | Xxxxx X. X’Xxxxxx | |||
Title: | President | |||
Allied Waste Industries, Inc. |
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By: | /s/ Xxxx X. Xxxxxxx | |||
Name: | Xxxx X. Xxxxxxx | |||
Title: | Chairman of the Board and Chief Executive Officer | |||
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