FIRST AMENDMENT TO
AGREEMENT AND PLAN OF
MERGER
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). ”
