FORM OF AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
FORM OF
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “Plan of Merger”), dated as of _____________,
2010 is entered into between Swift Corporation, a Nevada corporation (“Swift Corporation”),
and Swift Transportation Company, a Delaware corporation (“Swift Transportation”). Swift
Corporation and Swift Transportation are hereinafter sometimes collectively referred to as the
“Constituent Corporations.”
W I T N E S S E T H :
WHEREAS, Swift Corporation is a corporation duly organized and existing under the laws of the
State of Nevada.
WHEREAS, Swift Transportation is a corporation duly organized and existing under the laws of
the State of Delaware.
WHEREAS, on the date of this Plan of Merger Swift Transportation has authority to issue one
thousand (1,000) shares of common stock, $0.01 par value (“Swift Transportation Common
Stock”), of which one thousand (1,000) shares are issued and outstanding.
WHEREAS, as of the effective time of the Merger (as defined below), Swift Transportation shall
have authority to issue five hundred million (500,000,000) shares of Class A common stock, $0.01
par value, two hundred fifty million (250,000,000) shares of Class B common stock, $0.01 par value
and ten million (10,000,000) shares of preferred stock, $0.01 par value.
WHEREAS, Swift Corporation has authority to issue one hundred sixty million (160,000,000)
shares of common stock, $0.001 par value (the “Swift Corporation
Common Stock”), of which approximately sixty million, one hundred sixteen thousand, seven
hundred thirteen (60,116,713) shares are issued and outstanding, and one million (1,000,000) shares
of preferred stock, $0.001 par value, of which zero (0) shares are issued and outstanding.
WHEREAS, the respective Board of Directors of Swift Corporation and Swift Transportation have
determined that it is advisable and in the best interests of each of such corporations that Swift
Corporation merge with and into Swift Transportation upon the terms and subject to the conditions
set forth in this Plan of Merger.
WHEREAS, the stockholders of Swift Corporation have approved this Plan of Merger, by execution
of written consents in accordance with Section 78.320 of the Nevada Revised Statutes, and Swift
Corporation, the sole stockholder of Swift Transportation, has approved this Plan of Merger by
execution of a written consent in accordance with Section 228(a) of the Delaware General
Corporation Law.
NOW, THEREFORE, in consideration of the premises and mutual agreements and covenants herein
contained, Swift Corporation and Swift Transportation hereby agree as follows:
1. Merger. Swift Corporation shall be merged with and into Swift Transportation (the
“Merger”) such that Swift Transportation shall be the surviving corporation (hereinafter
sometimes referred to as the “Surviving Corporation”). Appropriate documents necessary to
effectuate the Merger shall be filed with the Secretary of State of the States of Nevada and
Delaware and the Merger shall become effective at the time provided by applicable law (the
“Effective Time”).
2. Governing Documents. The Certificate of Incorporation
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and By-laws of Swift Transportation shall be amended and restated at the Effective Time in the
forms attached as Exhibit A and Exhibit B hereto, respectively.
3. Officers and Directors. The persons who are officers and directors of Swift
Corporation immediately prior to the Effective Time shall, after the Effective Time, be the
officers and directors of the Surviving Corporation, without change until their successors have
been duly elected and qualified in accordance with the Certificate of Incorporation and By-laws of
the Surviving Corporation.
4. Succession. At the Effective Time, the separate corporation existence of Swift
Corporation shall cease. At the Effective Time (i) all the rights, privileges, powers and
franchises of a public and private nature of each of the Constituent Corporation, subject to all
the restrictions, disabilities and duties of each of the Constituent Corporations; (ii) all assets,
property, real, personal and mixed, belonging to each of the Constituent Corporations; and (iii)
all debts due to each of the Constituent Corporations on whatever account, including stock
subscriptions and all other things in action; shall succeed to, be vested in and become the
property of the Surviving Corporation without any further act or deed as they were of the
respective Constituent Corporations. The title to any real estate vested by deed or otherwise and
any other asset, in either of such 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
Swift Corporation shall be preserved unimpaired. To the extent permitted by law, any claim
existing or action or proceeding pending by or against either of the Constituent Corporations may
be prosecuted as if the Merger had not taken place. All debts, liabilities and duties of the
respective Constituent Corporations shall thenceforth attach to the
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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. All corporate acts, plans, policies,
agreements, arrangements, approvals and authorizations of Swift Corporation, its stockholders,
Board of Directors and committees thereof, officers and agents which were valid and effective
immediately prior to the Effective Time, shall be taken for all purposes as the acts, plans,
policies, agreements, arrangements, approvals and authorizations of the Surviving Corporation and
shall be as effective and binding thereon as the same were with respect to Swift Corporation. The
employees and agents of Swift Corporation shall become the employees and agents of the Surviving
Corporation and continue to be entitled to the same rights and benefits which they enjoyed as
employees and agents of Swift Corporation.
5. Further Assurances. From time to time, as and when required by the Surviving
Corporation or by its successors or assigns, there shall be executed and delivered on behalf of
Swift Corporation such deeds and other instruments, and there shall be taken or caused to be taken
by it all such further and other action, as shall be appropriate, advisable or necessary in order
to vest, perfect or confirm, of record or otherwise, in the Surviving Corporation the title to and
possession of all property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Swift Corporation, and otherwise to carry out the purposes of this Plan of Merger.
The officers and directors of the Surviving Corporation are fully authorized in the name and on
behalf of Swift Corporation or otherwise, to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
6. Conversion of Shares. At the Effective Time, by virtue of
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the Merger and without any action on the part of the holder thereof (i) each share of Swift
Corporation Common Stock issued and outstanding immediately prior to the Effective Time shall be
changed and converted into and shall be one fully paid and non assessable share of Class B common
stock of Swift Transportation, par value $0.01 and (ii) each share of Swift Transportation Common
Stock issued and outstanding immediately prior to the Effective Time shall be canceled and shall
cease to exist. Each option to purchase Swift Corporation Common Stock, whether granted under
Swift Corporation’s 2007 Omnibus Incentive Plan, as amended and restated, or otherwise (a
“Swift Corporation Stock Option”), outstanding immediately prior to the Effective Time
shall be converted into an option to acquire, on the same terms and conditions as were applicable
under such Swift Corporation Stock Option immediately prior to the Effective Time, the same number
of shares of Class A common stock of Swift Transportation, par value $0.01. From and after the
Effective Time, all certificates representing shares of Swift Corporation Common Stock shall be
deemed for all purposes to represent the number of shares of Swift Transportation common stock as
provided for in clause (i) of this Section 6, until the Board of Swift Transportation issues new
certificates in respect of such shares.
7. Amendment. The parties hereto, by mutual consent of their respective Boards of
Directors, may amend, modify or supplement this Plan of Merger prior to the Effective Time.
8. Termination. This Plan of Merger may be terminated and the Merger and others
transactions herein provided for abandoned at any time prior to the Effective Time, if the Board of
Directors of either Swift Corporation or Swift Transportation determines that the consummation of
the transactions provided for herein
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would not, for any reason be in the best interests of the constituent corporations and the
stockholders.
9. Counterparts. This Plan of Merger may be executed in one or more counterparts, and
each such counterpart hereof shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
10. Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect the meaning or
interpretation of this Plan of Merger.
11. Governing Law. This Plan of Merger shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to the choice or conflict
of law provisions contained therein.
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IN WITNESS WHEREOF, the parties have caused this Plan of Merger to be executed and delivered
as of the date first written above.
| SWIFT TRANSPORTATION COMPANY |
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| Title: | ||||
| SWIFT CORPORATION |
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