EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger
Agreement") is made as of December 6, 2001, by and between UNITED SHIPPING &
TECHNOLOGY, INC., a Utah corporation ("UST"), and Velocity Express Corporation,
a Delaware corporation ("Velocity"). UST and Velocity are sometimes referred to
as the "Constituent Corporations."
WHEREAS, Velocity is a wholly-owned subsidiary of UST; and
WHEREAS, the authorized capital stock of UST consists of one hundred
fifty million (150,000,000) shares of Common Stock, par value $0.004 per share,
fifty million (50,000,000) shares of Preferred Stock, par value $0.004 per
share, and upon effectuation of the merger contemplated by this agreement,
Velocity will have an identical capitalization; and
WHEREAS, UST has outstanding: 17,146,399 shares of Common Stock
("Common Stock"), 2,806,797 shares of Series B Convertible Preferred Stock
("Series B Preferred"), 2,000,000 shares of Series C Convertible Preferred Stock
("Series C Preferred"), 1,894,873 shares of Series D Convertible Preferred Stock
("Series D Preferred") and 641,412 shares of Series F Convertible Preferred
Stock ("Series F Preferred"), collectively referred to as the "UST Preferred,"
and
WHEREAS, the directors of the Constituent Corporations deem it
advisable and in the best interests of the Constituent Corporations and their
respective shareholders that UST merge with and into Velocity upon the terms and
conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that UST shall merge
into Velocity on the following terms, conditions and other provisions:
I. TERMS AND CONDITIONS.
1.1 MERGER. UST shall be merged with and into Velocity (the "Merger"),
and Velocity shall be the surviving corporation (hereinafter sometimes referred
to as the "Surviving Corporation") effective upon the date when this Merger
Agreement or a Certificate of Merger is filed with the Secretary of State of the
State of Delaware (the "Effective Date").
1.2 SUCCESSION. On the Effective Date, Velocity shall continue its
corporate existence under the laws of the State of Delaware, and the separate
existence and corporate organization of UST, except insofar as it may be
continued by operation of law, shall be terminated and cease.
1.3 TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date, the
rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all of the disabilities,
duties and restrictions of or upon each of the Constituent Corporations;
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and all singular rights, privileges, powers and franchises of each of the
Constituent Corporations, and all property, real, personal and mixed, of each of
the Constituent Corporations, and all debts due to each of the Constituent
Corporations on whatever account, and all things in action or belonging to each
of the Constituent Corporations shall be transferred to and vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest, shall be thereafter the property
of the Surviving Corporation as they were of the Constituent Corporations, and
the title to any real estate vested by deed or otherwise in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the Merger; provided, however, that the liabilities of the Constituent
Corporations and of their shareholders, directors and officers shall not be
affected and all rights of creditors and all liens upon any property of either
of the Constituent Corporations shall be preserved unimpaired, and any claim
existing or action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted to judgment as if the Merger had not taken place
except as they may be modified with the consent of such creditors and all debts,
liabilities and duties of or upon each of the Constituent Corporations shall
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.
1.4 COMMON STOCK OF UST AND VELOCITY. On the Effective Date, by virtue
of the Merger and without any further action on the part of the Constituent
Corporations or their shareholders, (i) each share of Common Stock of UST issued
and outstanding immediately prior thereto shall be converted into shares of
fully paid and nonassessable shares of the Common Stock of Velocity at a ratio
of 1 to 1, (ii) each share of Series B Preferred, Series C Preferred, Series D
Preferred and Series F Preferred of UST issued and outstanding immediately prior
thereto shall be converted into substantially identical shares and series of
Velocity preferred stock at a ratio of 1 to 1, and (iii) each share of Common
Stock of Velocity issued and outstanding immediately prior thereto shall be
cancelled and returned to the status of authorized but unissued shares.
1.5 STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of UST
Common Stock or of the UST Preferred shall be deemed for all purposes to
evidence ownership of and to represent the shares of Velocity into which the
shares of UST represented by such certificates have been converted as herein
provided and shall be so registered on the books and records of the Surviving
Corporation or its transfer agents. The registered owner of any such outstanding
stock certificate shall, until such certificate shall have been surrendered for
transfer or conversion or otherwise accounted for to the Surviving Corporation
or its transfer agent, have and be entitled to exercise any voting and other
rights with respect to, and to receive any dividend and other distributions
upon, the shares of Velocity evidenced by such outstanding certificate as above
provided.
1.6 OPTIONS AND WARRANTS. On the Effective Date, the Surviving
Corporation will assume and continue UST's 1996 Director Stock Option Plan, 1995
Stock Option Plan and 2000 Stock Option Plan, and the outstanding and
unexercised portions of all options to purchase Common Stock of UST, including
without limitation all options outstanding under such stock plan and any other
outstanding options, shall be converted into options of Velocity, such that an
option for shares of UST shall be converted into an option for shares of
Velocity at a ratio of 1 to 1. No other changes in the terms and conditions of
such options will occur. On the Effective
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Date, Velocity will assume all warrants to purchase Common Stock of UST, which
warrants shall be converted into identical obligations of Velocity and so noted
on the books and records of Velocity, and Velocity hereby assumes the
obligations of UST pursuant to such warrants. Effective on the Effective Date,
Velocity hereby assumes the outstanding and unexercised portions of such options
and the obligations of UST with respect thereto.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS.
2.1 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of Velocity in effect on the Effective Date shall
continue to be the Certificate of Incorporation and Bylaws of the Surviving
Corporation.
2.2 DIRECTORS. The directors of UST immediately preceding the Effective
Date shall become the directors of the Surviving Corporation on and after the
Effective Date to serve until the expiration of their terms and until their
successors are elected and qualified.
2.3 OFFICERS. The officers of UST immediately preceding the Effective
Date shall become the officers of the Surviving Corporation on and after the
Effective Date to serve at the pleasure of its Board of Directors.
III. MISCELLANEOUS.
3.1 FURTHER ASSURANCES. From time to time, and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of UST such deeds and other instruments, and there shall
be taken or caused to be taken by it such further and other action, as shall be
appropriate or necessary in order to vest or perfect in or to conform of record
or otherwise in the Surviving Corporation the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of UST and otherwise to carry out the purposes of this Merger
Agreement, and the officers and directors of the Surviving Corporation are fully
authorized in the name and on behalf of UST or otherwise to take any and all
such action and to execute and deliver any and all such deeds and other
instruments.
3.2 AMENDMENT. At any time before or after approval by the shareholders
of UST, this Merger Agreement may be amended in any manner (except that, after
the approval of the Merger Agreement by the shareholders of UST, the principal
terms may not be amended without the further approval of the shareholders of
UST) as may be determined in the judgment of the respective Board of Directors
of UST and Velocity to be necessary, desirable, or expedient in order to clarify
the intention of the parties hereto or to effect or facilitate the purpose and
intent of this Merger Agreement.
3.3 CONDITIONS TO MERGER. The obligations of the Constituent
Corporations to effect the transactions contemplated hereby is subject to
satisfaction of the following conditions (any or all of which may be waived by
either of the Constituent Corporations in its sole discretion to the extent
permitted by law): (a) the Merger shall have been approved by the shareholders
of UST in accordance with applicable provisions of the Business Corporations Act
of the State of Utah; and (b) UST, as sole stockholder of Velocity, shall have
approved the Merger in accordance with the General Corporation Law of the State
of Delaware; and any and
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all consents, permits, authorizations, approvals, and orders deemed in the sole
discretion of UST to be material to consummation of the Merger shall have been
obtained.
3.4 ABANDONMENT OR DEFERRAL. At any time before the Effective Date,
this Merger Agreement may be terminated and the Merger may be abandoned by the
Board of Directors of either UST or Velocity or both, notwithstanding the
approval of this Merger Agreement by the shareholders of UST or Velocity, or the
consummation of the Merger may be deferred for a reasonable period of time if,
in the opinion of the Boards of Directors of UST and Velocity, such action would
be in the best interest of such corporations. In the event of termination of
this Merger Agreement, this Merger Agreement shall become void and of no effect
and there shall be no liability on the part of either Constituent Corporation or
its Board of Directors or shareholders with respect thereto, except that UST
shall pay all expenses incurred in connection with the Merger or in respect of
this Merger Agreement or relating thereto. In addition, the Board of Directors
of UST may elect to abandon the Merger if shareholders of UST holding more than
one percent of the issued and outstanding Common Stock or more than one percent
of any series of the issued and outstanding Preferred Stock of UST dissent and
seek appraisal rights.
3.5 COUNTERPARTS. In order to facilitate the filing and recording of
this Merger Agreement, the same may be executed in any number of counterparts,
each of which shall be deemed to be an original.
IN WITNESS WHEREOF, this Merger Agreement, having first been duly
approved by the respective Boards of Directors of UST and Velocity, is hereby
executed on behalf of each said corporation and attested by their respective
officers thereunto duly authorized.
UNITED SHIPPING & TECHNOLOGY, INC. VELOCITY EXPRESS CORPORATION
A Utah corporation A Delaware corporation
By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxxx
-------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer Title: Chief Executive Officer
ATTEST: ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxx /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxxxxxxx
Title: Secretary Title: Secretary
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