Exhibit 99.2
Amendment No. 3
To Agreement
and Plan of Merger
The Agreement and Plan of Merger dated as of January 12, 1999 (the
"Agreement"), by and among Casella Waste Systems, Inc., a Delaware corporation
("Buyer"), Rutland Acquisition Sub, Inc., a New Jersey corporation and a direct,
wholly-owned subsidiary of Buyer ("Sub") and KTI, Inc., a New Jersey corporation
("Seller"), as amended by Amendment No. 1 to Agreement and Plan of Merger dated
May 12, 1999 ("Amendment No. 1") and by Amendment No. 2 to Agreement and Plan of
Merger dated September 8, 1999 ("Amendment No. 2"), is hereby amended as follows
as of this 23rd day of September, 1999. Capitalized terms not otherwise defined
herein shall have the meanings set forth in the Agreement.
1. The sixth "WHEREAS" clause of the Agreement, which refers to the
pooling of interests accounting of the Merger, is hereby deleted.
2. Section 3.14 is hereby deleted, and the following shall be inserted in
lieu thereof:
"Section 3.14 Tax Matters. To its knowledge, after consulting with
its legal counsel, neither Seller nor any of its Affiliates (as defined
in Section 6.10) has taken or agreed to take any action which would
prevent the Merger from constituting a transaction qualifying as a
reorganization under 368(a) of the Code."
3. Section 4.14 is hereby deleted, and the following shall be inserted in
lieu thereof:
"Section 4.14 Tax Matters. To its knowledge, after consulting with
its legal counsel, neither Buyer nor any of its Affiliates has taken or
agreed to take any action which would prevent the Merger from
constituting a transaction qualifying as a reorganization under 368(a) of
the Code."
4. Section 6.09 is hereby deleted, and the following shall be inserted in
lieu thereof: "Intentionally omitted."
5. Section 6.10 is hereby deleted, and the following shall be inserted in
lieu thereof:
"Section 6.10 Affiliate Agreements. Upon the execution of this
Agreement, Seller will provide Buyer with a list of those persons who
are, in Seller's reasonable judgment, "affiliates" of Seller within the
meaning of Rule 145 (each such person who is an "affiliate" of Seller
within the meaning of Rule 145 is referred to as an "Affiliate")
promulgated under the Securities Act ("Rule 145"). Seller shall provide
Buyer such information and documents as Buyer shall reasonably request
for purposes of reviewing such list and shall notify Buyer in writing
regarding any change in the identity of its Affiliates prior to the
Closing Date. Seller has delivered or caused to be delivered to Buyer,
prior to the execution of this Agreement, from each of its Affiliates, an
executed Affiliate Agreement, in substantially the form appended hereto
as Exhibit C-3 (in the case of Seller Affiliates) (collectively, the
"Affiliate Agreements"). Buyer shall be entitled to place appropriate
legends on the certificates evidencing any Buyer Common Stock to be
received by such Affiliates of Seller pursuant to the terms of this
Agreement, and to issue appropriate stop transfer instructions to the
transfer agent for the Buyer Common Stock, consistent with the terms of
the Affiliate Agreements (provided that such legends or stop transfer
instructions shall be removed, two years after the Effective Date, upon
the request of any stockholder that is not then an Affiliate of Buyer).
Seller agrees that any Affiliate Agreements signed by affiliates of Buyer
in connection with the Agreement are hereby terminated.
6. Section 7.01(f) is hereby deleted, and the following shall be inserted
in lieu thereof: "Intentionally omitted."
7. Section 8.03(a) is hereby deleted, and the following shall be inserted
in lieu thereof:
"(a) If the Merger is consummated as provided for herein, all fees
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the Buyer. Except as set forth in this
Section 8.03, in the event that the Merger is not consummated as provided for
herein, all fees and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses; provided, however, Seller and Buyer shall share equally all fees and
expenses, other than attorneys' fees, incurred with respect to the printing and
filing of the Joint Proxy Statement (including any related preliminary
materials) and the Registration Statement (including financial statements and
exhibits) and any amendments or supplements."
8. In all other respects, the Agreement shall remain in full force and
effect, and all references in the Agreement to "this Agreement" shall mean the
Agreement as amended hereby.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, Buyer, Sub and Seller have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
CASELLA WASTE SYSTEMS, INC.
By: /s/ John W. Casella
------------------------------------
John W. Casella, Chairman and CEO
RUTLAND ACQUISITION SUB, INC.
By: /s/ John W. Casella
------------------------------------
John W. Casella, President
KTI, INC.
By: /s/ Ross Pirasteh
------------------------------------
Ross Pirasteh, Chairman
[Signature page to Amendment No. 3 to Agreement and Plan of Merger]
Exhibit C-3
Amended and Restated Seller Affiliate Agreement
AFFILIATE AGREEMENT
September ___, 1999
Casella Waste Systems, Inc.
25 Green Hills Lane
Rutland, VT 05701
KTI, Inc.
7000 Boulevard East
Guttenberg, NJ 07093
Ladies and Gentlemen:
An Agreement and Plan of Merger dated as of January 12, 1999 (the
"Agreement"), as amended as of May 12, 1999, September 8, 1999 and September
___, 1999, has been entered into by and among KTI, Inc., a New Jersey
corporation ("Seller"), Casella Waste Systems, Inc., a Delaware corporation
("Buyer"), and Rutland Acquisition Sub, Inc., a New Jersey corporation and a
wholly-owned subsidiary of Buyer (the "Merger Sub"). The Agreement provides for
the merger of the Merger Sub with and into Seller (the "Merger"). In accordance
with the Agreement, shares of common stock, no par value per share, of Seller
(the "Seller Common Stock") shall be converted into shares of common stock, $.01
par value per share, of Buyer (the "Buyer Common Stock"), as described in the
Agreement.
The undersigned has been advised that as of the date of this agreement
the undersigned may be deemed to be an "affiliate" of Seller, as the term
"affiliate" is defined for purposes of paragraphs (c) and (d) of Rule 145 of the
Rules and Regulations of the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act").
In consideration of the mutual agreements, provisions and covenants set
forth in the Agreement and hereinafter in this agreement, the undersigned
represents and agree as follows:
1. Amendment and Restatement. This letter amends and restates and
supersedes in its entirety the Affiliate Agreement among Seller, Buyer and the
undersigned dated as of January 12, 1999, which shall be of no further force or
effect.
2. Rule 145. The undersigned will not offer, sell, pledge, hypothecate,
transfer or otherwise dispose of, or reduce its interest in or risk relating to,
any of the shares of Buyer Common Stock issued to the undersigned in the Merger
unless at such time either: (i) such transaction is permitted pursuant to the
provisions of Rule 145 under the Securities Act; (ii) the undersigned shall have
furnished to Buyer an opinion of counsel, reasonably satisfactory to Buyer to
the effect that such transaction is otherwise exempt from the registration
requirements of the Securities Act; or (iii) a registration statement under the
Securities Act covering the proposed offer, sale, pledge, hypothecation,
transfer or other disposition shall be effective under the Securities Act.
3. Legend.
(a) The undersigned understands that all certificates representing Buyer
Common Stock delivered to the undersigned pursuant to the Merger shall bear a
legend in substantially the form set forth below, until the earlier to occur of
(i) one of the events referred to in Section 2 above or (ii) the date on which
the undersigned requests removal of such legend, provided, that such request
occurs at least two years from the Effective Time (as defined in the Agreement)
and that the undersigned is not at the time of such request, and has not been
during the three months period preceding to such request, an affiliate of Buyer.
"The shares represented by this certificate were issued in a
transaction to which Rule 145 of the Securities Act of 1933
applies and may only be transferred in accordance with the
provisions of such rule. In addition, the shares represented by
this certificate may only be transferred in accordance with the
terms of an affiliate agreement dated September ___, 1999
between the initial holder hereof and Buyer, a copy of which
agreement may be inspected by the holder of this certificate at
the principal offices of Buyer, or furnished by Buyer to the
holder of this certificate upon written request without charge."
(b) Buyer in its discretion may cause stop transfer orders to be placed
with its transfer agent with respect to the certificates for the shares of Buyer
Common Stock that are required to bear the foregoing legend.
4. General Provisions. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAWS. This agreement shall be binding on the
undersigned's successors and assigns, including his or her heirs, executors and
administrators.
Execution of this letter should not be considered an admission on the
part of the undersigned that the undersigned is an "affiliate" of Seller as
described in the second paragraph of this letter, or as a waiver of any rights
the undersigned may have to object to, or any claim that the undersigned is such
an affiliate on or after the date of this letter.
The undersigned has carefully read this agreement and discussed its
requirements, to the extent the undersigned believed necessary, with its counsel
or counsel for Buyer.
Very truly yours,
__________________________________
Signature
__________________________________
Print Name
Accepted:
KTI, INC.
By:_____________________________
Name:___________________________
Title:__________________________
Dated:__________________________
CASELLA WASTE SYSTEMS, INC.
By:_____________________________
Name:___________________________
Title:__________________________
Dated:__________________________