Exhibit 10.40
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made this 23 day of
December, 1998 between and among TRANSPORTATION RESOURCES AND MANAGEMENT, INC.,
a corporation organized and existing under the laws of the State of Indiana
(hereinafter referred to as ATRM@), TRANSIT LEASING, INC., a corporation
organized and existing under the laws of the State of Indiana (hereinafter
referred to as ATLI@), CERTIFIED TRANSPORT, INC., a corporation organized and
existing under the laws of the State of Indiana (hereinafter referred to as
ACTI@), FREIGHT MOVERS, INC., a corporation organized and existing under the
laws of the State of Indiana (hereinafter referred to as AFMI@), DIVERSIFIED
TRUCKING CORP., a corporation organized and existing under the laws of the
State of Alabama (hereinafter referred to as ADTC@), NORTHSTAR TRANSPORTATION,
INC. , a corporation organized and existing under the laws of the State of
Alabama (hereinafter referred to as ANTI@), SERVICE EXPRESS, INC., a
corporation organized and existing under the laws of the State of Alabama
(hereinafter referred to as ASEI@), GPS ACQUISITION CORP., a corporation
organized and existing under the laws of the State of North Carolina
(hereinafter referred to as AGPS@), CAROLINA-PACIFIC DISTRIBUTORS, INC., a
corporation organized and existing under the laws of the State of North
Carolina (hereinafter referred to as ACPD@), and TRANSIT GROUP MERGER SUB,
INC., a corporation organized and existing under the laws of the State of
Delaware (hereinafter referred to as ATransit@) (collectively TRM, TLI, CTI,
FMI, DTC, NTI, SEI, GPS, CPD and Transit are referred to herein as the
ACorporations@), pursuant to the provisions of Section 23-1-40-1(b) of the
Indiana Code, Section 10-2B-11.01 of the Code of Alabama, Section 55-11-01 of
the North Carolina Business Corporation Act and Section 252 of the Delaware
General Corporation Law (the ACorporate Laws@).
WHEREAS, the Board of Directors of each of the Corporations
deem it advisable and generally to the advantage and welfare of the respective
Corporations and their respective shareholders that the Corporations merge
pursuant to the applicable Corporate Laws with Transit being the survivor
corporation.
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, between and
among the parties hereto as follows:
1. Merger. TRM, TLI, CTI, FMI, DTC, NTI, SEI, GPS, and CPD will be merged at
the Effective Time with and into Transit and Transit shall be the surviving
corporation (the AMerger@). The stock of each of the Corporations shall be
converted as follows:
1.1 Conversion of TRM Common Stock. The 100 shares of common stock of
TRM, $.01 par value (the ATRM Common Stock@), that are issued and outstanding
immediately prior to the Merger will be converted into and become one share of
common stock of Transit ("Transit Common Stock"), as the surviving corporation,
that is to be issued and outstanding immediately after the Merger.
1.2 Conversion of TLI Common Stock. The 300 shares of common stock of
TLI, $.01 par value (the ATLI Common Stock@), that are issued and outstanding
immediately prior to the Merger will be converted into and become one share of
Transit Common Stock, as the surviving corporation, that is to be issued and
outstanding immediately after the Merger.
1.3 Conversion of CTI Common Stock. The 100 shares of common stock of
CTI, $.01 par value (the ACTI Common Stock@), that are issued and outstanding
immediately prior to the Merger will be converted into and become one share of
Transit Common Stock, as the surviving corporation, that is to be issued and
outstanding immediately after the Merger.
1.4 Conversion of FMI Common Stock. The 100 shares of common stock of
FMI, $.01 par value (the AFMI Common Stock@), that are issued and outstanding
immediately prior to the Merger will be converted into and become one share of
Transit Common Stock, as the surviving corporation, that is to be issued and
outstanding immediately after the Merger.
1.5 Conversion of DTC Common Stock. The 100 shares of common stock of
DTC, $.01 par value (the ADTC Common Stock@), that are issued and outstanding
immediately prior to the Merger will be converted into and become one share of
Transit Common Stock, as the surviving corporation, that is to be issued and
outstanding immediately after the Merger.
1.6 Conversion of NTI Common Stock. The 100 shares of common stock of
NTI, $.01 par value (the ANTI Common Stock@), that are issued and outstanding
immediately prior to the Merger will be converted into and become one share of
Transit Common Stock, as the surviving corporation, that is to be issued and
outstanding immediately after the Merger.
1.7 Conversion of SEI Common Stock. The 100 shares of common stock of
SEI, $.01 par value (the ASEI Common Stock@), that are issued and outstanding
immediately prior to the Merger will be converted into and become one share of
Transit Common Stock, as the surviving corporation, that is to be issued and
outstanding immediately after the Merger.
1.8 Conversion of GPS Common Stock. The 10,000 shares of common stock
of GPS, $.01 par value (the AGPS Common Stock@), that are issued and
outstanding immediately prior to the Merger will be converted into and become
one share of Transit Common Stock, as the surviving corporation, that is to be
issued and outstanding immediately after the Merger.
1.9 Conversion of CPD Common Stock. The 100 shares of common stock of
CPD, $.01 par value (the ACPD Common Stock@), that are issued and outstanding
immediately prior to the Merger will be converted into and become one share of
Transit Common Stock, as the surviving corporation, that is to be issued and
outstanding immediately after the Merger.
1.10 Transit Common Stock. Each share of Transit Common Stock
outstanding immediately prior to the Merger will remain outstanding following
the Merger.
1.11 Fractional Shares. No fractional shares of Transit
Common Stock will be issued in connection with the Merger.
2. Effect of Merger. At the conclusion of the Merger (a) the separate existence
of TRM, TLI, CTI, FMI, DTC, NTI, SEI, GPS, and CPD will cease and TRM, TLI,
CTI, FMI, DTC, NTI, SEI, GPS and CPD will be merged with and into Transit and
Transit will be the surviving corporation pursuant to the terms of the Articles
of Merger; (b) the Articles of Incorporation and Bylaws of Transit will be the
Articles of Incorporation and Bylaws of the surviving corporation; (c) each
share of TRM, TLI, CTI, FMI, DTC, NTI, SEI, GPS and CPD Common Stock
outstanding immediately prior to the Merger will be converted as provided
above; (d) the directors of Transit in effect at the time of the Merger will be
the directors of Transit as the surviving corporation, and the officers of
Transit will be the officers of Transit as the surviving corporation; (e) each
share of Transit Common Stock outstanding immediately prior to the Merger will
remain outstanding 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
12:01 a.m. (the AEffective Time@).
4. Rights and Liabilities of Transit. At and after the Merger, Transit shall
succeed to and possess, without further act or deed, all of the rights,
privileges, powers, and franchises, and all of the property, real, personal and
mixed of, and all debts due to, TRM, TLI, CTI, FMI, DTC, NTI, SEI, GPS, or CPD
on whatever account; all property, rights, privileges, powers and franchises
and all and every other interest shall be as effectually the property of
Transit as they were of the respective parties hereto, and the title to any
real estate vested by deed or otherwise in TRM, TLI, CTI, FMI, DTC, NTI, SEI,
GPS, and CPD 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.
5. Service of Process on Transit. Transit agrees that it may be served with
process in the States of Alabama, North Carolina and Indiana in any proceeding
for enforcement of any obligation of TRM, TLI, CTI, FMI, DTC, NTI, SEI, GPS, or
CPD 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 Business Corporation Law.
6. Termination. This Agreement and Plan of Merger may be terminated and
abandoned by action of the Board of Directors of any of the Corporations at any
time prior to the effective date of the Merger, whether before or after
approval by the shareholders 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.
TRANSPORTATION RESOURCES AND MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman
TRANSIT LEASING, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman
CERTIFIED TRANSPORT, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman
FREIGHT MOVERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman
DIVERSIFIED TRUCKING CORP.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman
NORTHSTAR TRANSPORTATION, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman
SERVICE EXPRESS, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman
GPS ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, President/CEO
CAROLINA-PACIFIC DISTRIBUTORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman
TRANSIT GROUP MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX, Chairman/President
CERTIFICATE OF THE SECRETARY
OF
TRANSIT GROUP MERGER SUB, INC.
(a Delaware Corporation)
I, Xxxxx X. Xxxxxxx, the Secretary of Transit Group Merger Sub, Inc.,
hereby certify that the Agreement and Plan of Merger to which this certificate
is attached, after having been first duly signed on behalf of the corporation
by the Chairman and President under the corporate seal of said corporation, was
duly approved and adopted by the stockholders by unanimous consent in lieu of a
meeting.
WITNESS my hand and seal of said Xxxxx X. Xxxxxxx this 23 day of
December,1998.
(SEAL)
/s/ Xxxxx X. Xxxxxxx
XXXXX X. XXXXXXX, Secretary
