AGREEMENT OF MERGER
AGREEMENT OF MERGER dated as of April 25, 1999 (the "Agreement"),
between EMONS TRANSPORTATION GROUP, INC., a Delaware corporation ("ETG"), with
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its principal place of business located at 00 Xxxxx Xxxxxx Xxxxxx, Xxxx, XX
00000 and ETG Merger Corporation, a Delaware corporation ("NEWCO"), with its
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principal place of business located at 00 Xxxxx Xxxxxx Xxxxxx, Xxxx, XX 00000.
NEWCO is a corporation duly organized and existing under the laws of
the State of Delaware, and has an authorized capital stock consisting solely of
1,000 shares of common stock, par value $.01 per share (the "NEWCO Common
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Stock"), of which 100 shares are issued and outstanding. NEWCO is a wholly-owned
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subsidiary of ETG.
The Boards of Directors of NEWCO and ETG, deeming is desirable that
NEWCO be merged with and into ETG as permitted by the Delaware General
Corporation Law, as amended (the "DGCL"), under and pursuant to the terms and
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conditions hereinafter set forth, have by resolutions duly approved and adopted
this Agreement and have directed that this Agreement be submitted to their
respective stockholders for approval and adoption.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto do agree as
follows:
ARTICLE I
THE MERGER, THE SURVIVING CORPORATION
AND THE EFFECTIVE DATE
1.1 The Merger. In accordance with the provisions of the DGCL, on
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the Effective Date (as hereinafter defined), NEWCO shall be merged with and into
ETG (the "Merger"), which shall be, and is herein sometimes referred to as, the
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"Surviving Corporation." Upon the Effective Date, the name of the Surviving
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Corporation shall be "Emons Transportation Group, Inc." NEWCO and ETG are herein
sometimes referred to as the "Constituent Corporations."
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1.2 The Surviving Corporation. From and after the Effective Date,
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the corporate existence of ETG, with all its rights, privileges, immunities,
powers and purposes, shall continue unaffected and unimpaired by the Merger, and
the corporate existence of NEWCO, with all its rights, privileges and
immunities, shall be merged into ETG and ETG shall, as the Surviving
Corporation, be fully vested therewith in accordance with the applicable laws of
the State of Delaware. The separate existence and corporate organization of
NEWCO, except insofar as they may be continued by statute, shall cease on the
Effective Date.
1.3 Closing and Effective Date. The closing of the transactions
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contemplated by this Agreement shall take place at the offices of ETG, 00 Xxxxx
Xxxxxx Xxxxxx, Xxxx, Xxxxxxxxxxxx 00000 on June 23, 1999 or on such later date
as is agreed to by the parties (except as otherwise provided herein). The
Merger shall become effective at the close of business on the date of the filing
of a Certificate of Merger in accordance with the DGCL. The date on which the
Merger shall become effective is herein called the "Effective Date."
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ARTICLE II
CERTIFICATE OF INCORPORATION
BY-LAWS, BOARD OF DIRECTORS AND
OFFICERS OF SURVIVING CORPORATION
2.1 Certificate of Incorporation. From and after the Effective Date,
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the Certificate of Incorporation of ETG shall be the certificate of
incorporation of the Surviving Corporation, until altered, amended or repealed
in accordance with the provisions thereof and of applicable law.
2.2 By-Laws. The by-laws of ETG, in effect at the Effective Date,
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shall be the by-laws of the Surviving Corporation, until altered, amended or
repealed in accordance with the provisions thereof, of the certificate of
incorporation and of applicable law.
2.3 Board of Directors and Officers. The directors and officers of
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ETG on the Effective Date shall be the directors and officers of the Surviving
Corporation as of the Effective Date. Such directors and officers shall serve
until their respective successors are duly elected and qualified.
ARTICLE III
TREATMENT OF SHARES OF EACH
CONSTITUENT CORPORATION
3.1 Common Stock of NEWCO. On the Effective Date, each share of
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NEWCO Common Stock outstanding immediately prior to the Merger shall be
canceled.
3.2 Common Stock of ETG. On the Effective Date, each share of ETG
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common stock, par value $.01 per share, outstanding immediately prior to the
Merger ("ETG Common Stock") shall remain outstanding and each Share of $.14
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Series A Cumulative Convertible Preferred Stock, par value $.01 per share
("Convertible Preferred Stock") (other than Convertible Preferred Stock as to
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which dissenters' rights of appraisal have been perfected under the DGCL) will
be exchanged for 1.1 fully-paid and nonassessable shares of ETG Common Stock.
3.3 Sole Rights. From and after the Effective Date, the holders of
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certificates evidencing ownership of shares of NEWCO Common Stock outstanding
immediately prior thereto shall cease to have any rights with respect to such
stock except as otherwise provided herein or by law.
ARTICLE IV
TRANSFER OF ASSETS AND LIABILITIES
4.1 Certain Effects of Merger. At the Effective Date, all rights,
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privileges, powers and franchises, of a public as well as of a private nature,
of each of the Constituent Corporations shall be possessed by the Surviving
Corporation, subject to all the restrictions, disabilities and duties of each of
the Constituent Corporations; and all the rights, privileges, powers and
franchises of each of the Constituent Corporations, and all property, real,
personal
and mixed, and all debts due to either of the Constituent Corporations on
whatever account, as well for stock subscriptions as all other things in action
or belonging to each of the Constituent Corporations, shall be vested in the
Surviving Corporation, and all property, rights, privileges, powers and
franchises and all and every other interest shall be thereafter as effectually
the property of the Surviving Corporation as they were of the respective
Constituent Corporations, and the title to any real estate vested by deed or
otherwise under the laws of the State of Delaware or otherwise in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the Merger; but all rights of creditors and all liens upon any property of
either of the Constituent Corporations shall be preserved unimpaired, and all
debts, liabilities and duties of the respective Constituent Corporations shall
at the Effective Date attach to the Surviving Corporation, and may be enforced
against it to the same extent as if such debts, liabilities and duties had been
incurred or contracted by it.
4.2 Supplementary Action. If at any time after the Effective Date
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any further assignments or assurances in law or any other things are necessary
or desirable to vest or to perfect or confirm or record in the Surviving
Corporation the title to any property or rights of either of the Constituent
Corporations, or otherwise to carry out the provisions of the Agreement, the
proper officers and directors of the respective Constituent Corporations as of
the Effective Date shall execute and deliver any and all proper deeds,
assignments and assurances in law, and do all things necessary or proper to vest
or to perfect or confirm title to such property or rights in the Surviving
Corporation, and otherwise to carry out the purposes and provisions of this
Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF NEWCO
NEWCO represents and warrants to ETG as follows:
5.1 Organization and Existence. NEWCO is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware.
5.2 Capitalization. The authorized capital stock of NEWCO consists
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of 1,000 shares of NEWCO Common Stock, of which 100 shares are issued and
outstanding on the date hereof. Each outstanding share of NEWCO Common Stock is
duly and validly issued, fully paid and nonassessable, and has not been issued
in violation of any preemptive right of stockholders.
5.3 Subsidiaries and Affiliates. NEWCO does not directly or
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indirectly own more than 50% of the outstanding capital stock of any other
corporation.
5.4 Stock Options and Conversion Rights. NEWCO does not have
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outstanding any stock, other security, option or warrant, nor does there exist
any other legal or contractual right, which entitles the holder thereof to
purchase or otherwise acquire any capital stock or other security of or other
interest in NEWCO or to convert the same into any capital stock or other
security of or other interest in NEWCO.
5.5 Authority and Approval. NEWCO has full corporate power and
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authority to execute, deliver and perform this Agreement, and, upon the
requisite approval thereof by ETG, its sole stockholder, all corporate action of
NEWCO necessary for such execution, delivery and performance will have been duly
taken. Such execution, delivery and performance do not require any action or
consent of, or any registration with, any governmental regulatory body or other
authority or of any other party under any contract, agreement or other
undertaking, or under any order or decree to which NEWCO or any subsidiary or
affiliate is a party to which any of their properties or assets are subject and
will not conflict with or entitle any party to terminate or call a default
under, any such contract, agreement, undertaking, order or decree.
5.6 Litigation. There is no action, suit or other litigation or
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proceeding or governmental investigation pending, or to the knowledge of the
officers of NEWCO, threatened or in prospect with respect to its businesses,
properties or assets, which, if adversely determined, would have a material
adverse effect upon the assets or business of NEWCO.
5.7 Material Contracts. NEWCO is not a party to any material
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contract, instrument or undertaking.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF ETG
ETG represents and warrants to NEWCO as follows:
6.1 Organization and Existence. ETG is a corporation duly organized,
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validly existing and in good standing under the laws of the State of Delaware.
All the issued and outstanding shares of capital stock of ETG have been duly
authorized by all necessary corporate action, and are validly issued, fully paid
and nonassessable.
6.2 Authority and Approvals. ETG has full corporate power and
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authority to execute, deliver and perform this Agreement and, upon the requisite
approval thereof by its stockholders, all corporate action of ETG necessary for
such execution, delivery and performance does not require any action or consent
of, or any registration with, any governmental regulatory body or other
authority or of any other party under any contract, agreement or other
undertaking or under any order or decree to which ETG is a party or to which any
of its properties or assets are subject and will not conflict with, or entitle
any party to terminate or call a default under, any such contract, agreement
undertaking, order or decree.
ARTICLE VII
COVENANTS OF ETG
7.1 Stockholders' Meeting. ETG will call a special meeting of its
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stockholders (the "ETG Special Stockholders Meeting") to be held on June 23,
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1999 (or such later date upon which the parties shall agree) to submit this
Agreement and the transaction contemplated hereby for their approval.
7.2 ETG Proxy Statement. ETG will prepare and send to its
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stockholders, for purposes of considering and voting upon this Agreement at the
ETG Special Stockholders' Meeting, a proxy statement satisfying the applicable
requirements of Delaware law and complying as to form in all material respects
with all applicable state and federal law and the rules and regulations
thereunder (such proxy statement in the form mailed by ETG to its stockholders,
together with any and all amendments and supplements thereto, herein referred to
as the "ETG Proxy Statement").
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ARTICLE VIII
COVENANTS OF NEWCO AND ETG
8.1 Certain other Covenants. Prior to the Effective Date, NEWCO and
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ETG will make every reasonable effort to obtain such written consents,
approvals, authorizations, modifications, rulings and opinions from third
parties or take such measures and actions as may be necessary or appropriate to
allow the consummation of the transactions contemplated hereby.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF ETG
The obligations of ETG to effect the transactions contemplated hereby
are subject to the satisfaction of the condition set forth in Section 8.1 and,
at its option, the satisfaction or waiver of the following other conditions:
9.1 ETG Stockholders' Approval. The requisite approval of this
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Agreement shall have been given by the stockholders of ETG.
9.2 Consents, Approvals, Authorizations, Modifications and Rulings.
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All consents, approvals, authorizations, modifications and rulings required or,
in the opinion of ETG, necessary in connection with the execution, delivery and
performance of this Agreement and the consummation of the Merger and related
transactions shall have been obtained (whether from government authorities or
other persons) and shall be in form and substance satisfactory to ETG.
9.3 Representations, Warranties and Agreements of NEWCO. All
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representations and warranties made herein by NEWCO shall be true in all
material respects as of the date made and as of the Effective Date; NEWCO shall
have performed in all material respects the obligations and agreements
undertaken by NEWCO herein to be performed at or prior to the Effective Date;
and NEWCO shall have delivered to ETG a certificate to such effect, dated the
Effective Date, signed by the President and the Treasurer or Secretary of NEWCO.
9.4 Absence of Litigation. No claim, action, suit or proceeding
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shall be pending or threatened against any of the parties hereto or any of their
affiliates which, if adversely determined, would prevent or hinder consummation
of the Merger contemplated by this Agreement, result in the payment of
substantial damages as a result of such Merger and the transactions contemplated
hereby or otherwise impair the benefits contemplated hereby.
ARTICLE X
CONDITIONS TO OBLIGATIONS OF NEWCO
The obligation of NEWCO to effect the transactions contemplated hereby
are subject to the satisfaction of the condition set forth in Section 8.1 and,
at its option, the satisfaction or waiver of the following other conditions.
10.1 NEWCO Stockholders' Approval. The requisite approval of this
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Agreement shall have been given by the stockholder of NEWCO.
10.2 Consents, Approvals, Authorizations, Modifications and Rulings.
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All consents, approvals, authorizations, modifications and rulings required or,
in the opinion of NEWCO, necessary in connection with the execution, delivery
and performance of this Agreement and the consummation of the Merger and related
transactions shall have been obtained (whether from governmental authorities or
other persons) and shall be in form and substance satisfactory to NEWCO.
10.3 Representations, Warranties and Agreements of ETG. All
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representations and warranties made herein by ETG shall be true in all material
respects as of the date made and as of the Effective Date; ETG shall have
performed in all material respects the obligations and agreements undertaken by
ETG herein to be performed at or prior to the Effective Date; and ETG shall have
delivered to NEWCO a certificate to such effect, dated the Effective Date,
signed by an executive officer thereof.
10.4 Absence of Litigation. No claim, action, suit or proceeding
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shall be pending or threatened against any of the parties hereto or any of their
affiliates which, if adversely determined, might prevent or hinder consummation
of the Merger contemplated by this Agreement, result in the payment of
substantial damages as a result of such Merger and the transactions contemplated
hereby or otherwise impair the benefits contemplated hereby.
ARTICLE XI
CONDITIONS TO OBLIGATIONS OF ETG AND NEWCO
The obligations of ETG and NEWCO to effect the transactions
contemplated hereby are subject to the satisfaction or waiver of the conditions
set forth as follows:
11.1 Stockholder Approval. This Agreement shall have been approved
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and adopted by the stockholders of both of the Constituent Corporations in
accordance with Delaware Law.
11.2 No Prohibition. No provision of any applicable law or
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regulation and no judgment, injunction, order or decree shall prohibit the
consummation of the Merger.
ARTICLE XII
TERMINATION
12.1 Termination. This Agreement may be terminated at any time prior
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to the Effective Date, notwithstanding approval of the Agreement by the NEWCO
Stockholder, by mutual written consent of the Boards of Directors of NEWCO and
ETG; or
12.2 Effect of Termination. In the event that this Agreement is
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terminated, this Agreement shall forthwith become void and of no further force
or effect and there shall be no obligation on the part of NEWCO, ETG or their
respective officers, directors or stockholders.
ARTICLE XIII
MISCELLANEOUS
13.1 Non-Survival of Representations and Warranties. The
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representation and warranties contained herein shall expire at the Effective
Date.
13.2 Tax Treatment. It is expressly understood and agreed that ETG
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and NEWCO and their respective officers and agents have not made any warranty or
agreement express or implied as to the tax consequences of this transaction.
13.3 Notices. Any notice hereunder to a party shall be deemed to be
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properly served if in writing and delivered or mailed to (with a contemporaneous
copy by telex or facsimile transmission), in the case of ETG:
Emons Transportation Group, Inc.
00 Xxxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx
and, in the case of NEWCO:
ETG Merger Corporation
00 Xxxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx
or to such other address as may have been furnished in writing by such party to
the other party to this Agreement, and shall be deemed to have been given as of
the time delivered or mailed registered or certified mail, postage paid, except
that notice of termination pursuant hereto shall be effective only upon receipt.
13.4 Prior Agreements; Modifications; Waivers. This Agreement shall
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supersede all other prior agreements, documents or other instruments with
respect to the matters covered hereby. This Agreement may be amended or
modified at any time prior to the Effective Date by written agreement of the
Board of Directors of the parties hereto, or officers authorized by such Boards,
at any time before or after approval thereof by the stockholders of either or
both Constituent Corporations.
13.5 Captions. The captions in this Agreement are for convenience
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only and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
13.6 Governing Law. The terms of this Agreement shall be governed
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by, and interpreted and construed in accordance with the provisions of, the laws
of the State of Delaware.
13.7 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which when so executed shall constitute an original copy
hereof.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed by its duly authorized officers as of the date first
above written.
Attest: EMONS TRANSPORTATION GROUP, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
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Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx
Secretary President
Attest: ETG MERGER CORPORATION
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
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Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx
Secretary President
