Exhibit 10.41
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made this 23 day of
December, 1998 between CERTIFIED TRANSPORT, LLC, a limited liability company
organized and existing under the laws of the State of Indiana (hereinafter
referred to as ACTL@), VENTURE LOGISTICS, LLC, a limited liability company
organized and existing under the laws of the State of Indiana (hereinafter
referred to as AVLL@), XXXXXXX XXXXXX GROUP, INC., a corporation organized and
existing under the laws of the State of Florida (hereinafter referred to as
ACFG@), XXXXXXX XXXXXX PAYROLL, INC., a corporation organized and existing
under the laws of the State of Florida (hereinafter referred to as ACFP@),
XXXXXXX XXXXXX LOGISTICS, INC., a corporation organized and existing under the
laws of the State of Florida (hereinafter referred to as ACFL@), K. J.
TRANSPORTATION, INC., a corporation organized and existing under the laws of
the State of New York (hereinafter AKJT@), TRANSIT GROUP MERGER SUB, INC., a
corporation organized and existing under the laws of the State of Delaware
(hereinafter referred to as ATGMS@) and TRANSIT GROUP TRANSPORTATION, LLC, a
limited liability company organized and existing under the laws of the State of
Delaware (hereinafter referred to as Transit@) (collectively CTL, VLL, CFG,
CFP, CFL, KJT, TGMS and Transit are referred to herein as the ACompanies@),
pursuant to the provisions of Section 607.1108 of the Florida Code, Section
23-18-7-1 of the Code of Indiana, Section 901 of the New York Business
Corporation Act, and Section 18-209 of the Delaware Limited Liability Company
Act (the ACorporate Laws@).
WHEREAS, the Board of Directors of each of the Companies
deems it advisable and generally to the advantage and welfare of the respective
Companies and their respective shareholders that the Companies merge pursuant
to the applicable Corporate Laws, with Transit being the surviving limited
liability company.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained and of the mutual benefits hereby provided,
the sufficiency of which is hereby acknowledged, it is agreed by and between
the parties hereto as follows:
1. Xxxxxx. XXX, XXX, XXX, XXX, XXX, KJT and TGMS will be merged with and into
Transit, and Transit shall be the surviving limited liability company (the
AMerger@). The stock and/or membership interest of each of the Companies shall
be converted as follows:
1.1 Conversion of CTL Interest. The entire membership interest of CTL
(the ACTL Membership Interest@) shall be converted into and become an
additional one percent (1%) membership interest in Transit, as the surviving
entity.
1.2 Conversion of VLL Interest. The entire membership interest of VLL
(the "VLL Membership Interest") shall be converted into and become an
additional one percent (1%) membership interest in Transit, as the surviving
entity.
1.3 Conversion of CFG Common Stock. The 100 shares of common stock of
CFG, $.01 par value (the ACFG Common Stock@), that are issued and outstanding
immediately prior to the Merger shall be converted into and become an
additional one percent (1%) membership interest in Transit, as the surviving
entity.
1.4 Conversion of CFP Common Stock. The 250 shares of common stock of
CFP, $1.00 par value (the ACFP Common Stock@), that are issued and outstanding
immediately prior to the Merger shall be converted into and become an
additional one percent (1%) membership interest in Transit, as the surviving
entity.
1.5 Conversion of CFL Common Stock. The 1000 shares of common stock of
CFL, $1.00 par value (the ACFL Common Stock@), that are issued and outstanding
immediately prior to the Merger shall be converted into and become an
additional one percent (1%) membership interest in Transit, as the surviving
entity.
1.6 Conversion of KJT Common Stock. The 100 shares of common stock of
KJT, $.01 par value (the AKJT Common Stock@), that are issued and outstanding
immediately prior to the Merger shall be converted into and become an
additional one percent (1%) membership interest in Transit, as the surviving
entity.
1.7 Conversion of TGMS Common Stock. The 108 shares of common stock of
TGMS, $.01 par value (the ATGMS Common Stock@), that are issued and outstanding
immediately prior to the Merger shall be converted into and become an
additional one percent (1%) membership interest in Transit, as the surviving
entity.
1.8 Transit Membership Interests. The membership interest of Transit
immediately prior to the Merger will remain following the Merger. Immediately
prior to the Merger, one member of Transit (the AMember@) owned 100% of the
membership interests of Transit and all of the stock and membership interests
of the Companies, and therefore, immediately following the Merger and the
conversion of the equity of the Companies into additional membership interests
in Transit, the Member will continue to own 100% of the membership interest of
Transit.
2. Effect of Merger. At the conclusion of the Merger (a) the separate existence
of CTL, VLL, CFG, CFP, CFL, KJT and TGMS will cease and will be merged with and
into Transit, and Transit will be the surviving entity pursuant to the terms of
the Certificate of Merger; (b) the Certificate of Formation and Operating
Agreement of Transit will be the Certificate of Formation and Operating
Agreement of the surviving entity; (c) each membership Interest of CTL and VLL
and each share of CFG, CFP, CFL, KJT and TGMS Common Stock outstanding
immediately prior to the Merger will be converted as provided above; (d) the
members of Transit in effect at the time of the Merger will be the members of
Transit as the surviving entity, and the managers of Transit will be the
managers of Transit as the surviving entity; (e) the membership interest of
Transit immediately prior to the Merger will remain following the Merger; and
(f) the Merger will have all of the effects provided by applicable law.
3. Effective Time. The Merger will be effective January 1, 1999 at 12:02 a.m.
4. Managers of Transit. Transit shall be managed by managers whose names and
business addresses are as follows:
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxxx
Suite 1740, 0000 Xxxxx Xxxxx Xxxx Xxxxx 0000, 0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
N. Xxxx XxXxxxx
Suite 1740, 0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
5. Rights and Liabilities of Transit. At and after the Merger, without further
act or deed, all of the rights, privileges and powers, and all of the property,
real, personal and mixed of, and all debts due to CTL, VLL, CFG, CFP, CFL, KJT
and TGMS, as well as all of the things and causes of action belonging to each
of CTL, VLL, CFG, CFP, CFL, KJT and TGMS shall be the property of Transit as
they were the property of each of CTL, VLL, CFG, CFP, CFL, KJT and TGMS, and
the title to any real estate vested by deed or otherwise in CTL, VLL, CFG, CFP,
CFL, KJT and TGMS shall not revert or be in any way impaired by reason of the
Merger; all rights of creditors and all liens upon any property of any of the
parties hereto shall be preserved unimpaired, and all debts, liabilities, and
duties of the respective parties hereto shall thenceforth attach to Transit and
may be enforced against it to the same extent as if such debts, liabilities,
and duties had been incurred or contracted by it.
6. Service of Process on Transit. Transit agrees that it may be served with
process in the States of Indiana, Florida and New York in any proceeding for
enforcement of any obligation of CTL, VLL, CFG, CFP, CFL, KJT and TGMS as well
as for the enforcement of any obligation of Transit arising from the Merger,
including any suit or other proceeding to enforce the right of any shareholder
as determined in appraisal proceedings pursuant to the provisions of the
applicable Corporate Laws.
7. Termination. This Agreement and Plan of Merger may be terminated and
abandoned by action of the Board of Directors or Managers, as applicable, of
any of the Companies at any time prior to the effective date of the Merger,
whether before or after approval by the shareholders or members of the parties
hereto.
IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement and Plan of Merger this 23 day of December, 1998.
CERTIFIED TRANSPORT, LLC
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Manager
{Signatures Continue on Following Page}
VENTURE LOGISTICS, LLC
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Manager
XXXXXXX XXXXXX GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman
XXXXXXX XXXXXX PAYROLL, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman
XXXXXXX XXXXXX LOGISTICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman
K. J. TRANSPORTATION, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman
TRANSIT GROUP TRANSPORTATION, LLC
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Manager
TRANSIT GROUP MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman/President
