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EXHIBIT 2.1
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
OF
WASTE INDUSTRIES, INC.
WITH AND INTO
WASTE INDUSTRIES MERGECO, LLC
The following Amended and Restated Agreement and Plan of Merger and
Reorganization provides for the merger (the "Merger") of Waste Industries, Inc.,
a North Carolina corporation, with and into Waste Industries MergeCo, LLC, a
North Carolina limited liability company.
ARTICLE I
The limited liability company existence of Waste Industries MergeCo, LLC,
with all its purposes, powers and objects, shall continue unaffected and
unimpaired by the Merger, and the identity and existence of Waste Industries,
Inc., which is sometimes referred to herein as the "Corporation", shall be
merged with and into Waste Industries MergeCo, LLC, which shall be the surviving
entity and which is sometimes referred to herein as the "LLC".
ARTICLE II
The name of the merging business entity that shall survive the Merger is
"Waste Industries MergeCo, LLC", subject to the amendment of such name as set
forth in Article V below.
ARTICLE III
The terms and conditions of the Merger shall be as follows:
1. The Articles of Organization of the surviving entity shall be the
Articles of Organization of the LLC as such Articles of Organization are in
effect at the effective time of the Merger until the same shall be thereafter
amended in accordance with law and said Articles.
2. The Operating Agreement of the surviving entity shall be the Operating
Agreement of the LLC, as in effect as of the effective time of the Merger, until
the same shall be further amended in accordance with law, the Articles of
Organization of the LLC and said Operating Agreement.
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3. The officers of the surviving entity shall be the officers of the
Corporation immediately prior to the effective time of the Merger, each to serve
until his or her successor shall have been duly elected and qualified or until
his or her earlier death, resignation or removal. The manager and directors of
the surviving entity shall be as specified in the Operating Agreement of the LLC
as in effect as of the effective time of the Merger.
4. Except insofar as the same may be continued by law or in order to
carry out the purposes of this Agreement and Plan of Merger and Reorganization,
and except as continued in and merged into the LLC, the separate existence of
the Corporation shall cease as of the effective time of the Merger, and the LLC
shall have and possess all of the rights, privileges, powers, immunities and
franchises and all property of the Corporation, and shall be responsible and
liable for all of the debts, duties, contracts, liabilities and obligations of
the Corporation.
ARTICLE IV
The manner and basis of converting the shares of the Corporation and
membership interests of the LLC participating in the Merger shall be as follows:
1. Each share of common stock of the Corporation outstanding at the
effective time of the Merger shall be converted into one share of common stock
of Waste Holdings, Inc., a North Carolina corporation and the sole member of the
LLC ("Waste Holdings") without any action on the part of the holder thereof at
the effective time of the Merger. Promptly following the effective time of the
Merger, Waste Holdings will cause its exchange agent to mail letters of
transmittal to each holder of record of a certificate that represented common
stock of the Corporation immediately prior to the effective time accompanied by
instructions for use in effecting the surrender of the certificates or
instruments in exchange for common stock of Waste Holdings. Similar
documentation will be delivered by Waste Holdings to each holder of options to
purchase common stock of the Corporation. After receipt of such transmittal
form, each of such holders may, at such holder's option, surrender their
certificates or instruments, together with a duly completed and executed
transmittal form, to the exchange agent, as indicated on the transmittal form,
and each such holder will receive in exchange therefor a certificate or
instrument representing an identical number of shares of common stock of Waste
Holdings or the right to purchase an identical number of shares of common stock
of Waste Holdings, as the case may be. It shall not be necessary for
shareholders or optionees of the Corporation to exchange their existing stock
certificates or instruments for certificates or instruments of Waste Holdings.
Until so surrendered and exchanged, each certificate or instrument evidencing
common stock of the Corporation or options to purchase common stock of the
Corporation will be deemed for all purposes to evidence the identical number of
shares of common stock of Waste Holdings or replacement options to purchase
common stock of Waste Holdings, as the case may be.
2. The membership interests in the LLC shall not be converted, exchanged
or altered in any manner as a result of the Merger, and will remain outstanding
membership interests of the LLC.
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ARTICLE V
Pursuant to (S)57C-9A-21(a)(5) of the General Statutes of North Carolina,
effective upon the consummation of the Merger, the Articles of Organization of
Waste Industries MergeCo, LLC shall be amended by deleting the entire text of
Paragraph 1 thereof and substituting in its place the following new Paragraph 1:
"1. The name of the limited liability company is Waste Industries, LLC."
ARTICLE VI
The consummation of the Merger is contingent upon (1) receipt of all
required shareholder approvals and (2) an opinion that the Merger will be
treated as a tax-free reorganization under the Internal Revenue Code.
ARTICLE VII
If for any reason the consummation of the Merger is inadvisable in the
opinion of the Board of Directors of the Corporation or the sole member of the
LLC, this Agreement and Plan of Merger and Reorganization may be terminated at
any time before the effective time of the Merger by notice from one party to the
other. Upon termination by notice as provided in this Article, this Agreement
and Plan of Merger and Reorganization shall be void and of no further force or
effect.
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ARTICLE VIII
The Merger shall be effective upon filing of the Articles of Merger with
the Secretary of State of North Carolina or such date and time designated in the
Articles of Merger.
Date: November 16, 2000
WASTE INDUSTRIES, INC.
By: /s/ Lonnie C. Poole, Jr.
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Name: Lonnie C. Poole, Jr.
Title: Chairman and CEO
WASTE INDUSTRIES MERGECO, LLC
By: Waste Holdings, Inc., Manager and Sole
Member
By: /s/ Jim W. Perry
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Name: Jim W. Perry
Title: President
WASTE HOLDINGS, INC.
By: /s/ Jim W. Perry
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Name: Jim W. Perry
Title: President
