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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ROADWAY EXPRESS, INC.
(A DELAWARE CORPORATION),
ROADWAY MERGER CORP.
(A DELAWARE CORPORATION)
AND
ROADWAY CORPORATION
(A DELAWARE CORPORATION)
DATED AS OF MAY 29, 2001
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "AGREEMENT"), dated as of May
29, 2001, is by and among ROADWAY EXPRESS, INC., a Delaware corporation
("ROADWAY EXPRESS"), ROADWAY CORPORATION, a Delaware corporation and a
wholly-owned subsidiary of Roadway Express ("ROADWAY HOLDINGS"), and ROADWAY
MERGER CORP., a Delaware corporation and a wholly-owned subsidiary of Roadway
Holdings ("MERGER SUB").
RECITALS
A. This Agreement provides for the merger of the Merger Sub with and
into Roadway Express (the "MERGER"), with Roadway Express as the surviving
corporation, in accordance with Section 251(g) of the General Corporation Laws
of the State of Delaware (the "DGCL"), and the terms and conditions set forth
herein. The purpose of the Merger is to implement a holding company
organizational structure under which Roadway Holdings will be the holding
company for Roadway Express and Roadway Express will be a direct wholly-owned
subsidiary of Roadway Holdings.
B. The respective Boards of Directors of Roadway Express, Roadway
Holdings and Merger Sub have approved the Merger upon the terms and subject to
the conditions set forth herein.
STATEMENT OF AGREEMENT
Accordingly, in consideration of the mutual promises and agreements set
forth herein, and in order to set forth the terms and conditions of the Merger
and the mode of carrying the same into effect, the parties hereby agree as
follows:
1. THE MERGER.
1.1 The Merger. At the Effective Time (as defined in Section 1.3
hereof), and subject to the terms and conditions of this Agreement and the DGCL,
Merger Sub shall be merged with and into Roadway Express, the separate corporate
existence of Merger Sub shall thereupon cease, and Roadway Express shall be the
surviving corporation in the Merger (the "SURVIVING CORPORATION").
1.2 Surviving Corporation. At the Effective Time, Roadway Express shall
continue its corporate existence under the laws of the State of Delaware and
shall thereupon and thereafter possess all rights, privileges, powers and
franchises and all property of Merger Sub and shall be subject to all debts,
liabilities and duties of Merger Sub, all as provided under the DGCL.
1.3 Effective Time of the Merger. The Merger shall become effective and
be consummated when the Surviving Corporation shall have caused the certificate
of merger ("CERTIFICATE OF MERGER") to be filed with the Secretary of State of
the State of Delaware in accordance with the DGCL or such later time as is
specified in the Certificate of Merger (the "EFFECTIVE TIME").
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1.4 Certificate of Incorporation of the Surviving Corporation.
Immediately following the Effective Time, the Certificate of Incorporation of
Roadway Express, as in effect immediately prior to the Effective Time, as
amended and restated, shall thereafter serve as the Certificate of Incorporation
of the Surviving Corporation until further amended or restated as provided
therein and under the DGCL. The Certificate of Incorporation of Roadway Express
shall be amended as of the Effective Date of the Merger so that: (i) Article
Fourth of such Certificate of Incorporation reads in its entirety as follows:
"The total number of shares of stock which the Corporation shall have authority
to issue is one thousand (1,000) shares of Common Stock each having a par value
of $0.01 per share," and (ii) Article Tenth shall be added to such Certificate
of Incorporation which reads in its entirety as follows: "Any act or transaction
by or involving the Corporation that requires for its adoption under the
Delaware General Corporation Law or this Certificate of Incorporation the
approval of the stockholders of the Corporation shall, pursuant to Subsection
251(g) of the Delaware General Corporation Law, require, in addition, the
approval of the stockholders of Roadway Corporation (or any successor by
merger), by the same vote as is required by the Delaware General Corporation Law
and/or by this Certificate of Incorporation." The amended and restated
Certificate of Incorporation is attached as Exhibit A.
1.5 By-Laws of the Surviving Corporation. The By-Laws of Roadway
Express, as in effect immediately prior to the Effective Time, shall thereafter
serve as the By-Laws of the Surviving Corporation until thereafter amended or
repealed as provided therein and under the DGCL.
1.6 Directors and Officers of the Surviving Corporation. At the
Effective Time, the directors and executive officers of the Surviving
Corporation shall be the directors and executive officers of Roadway Express, in
the case of directors, to serve until their successors are elected and qualified
and, in the case of officers, to serve at the pleasure of the Board of Directors
of the Surviving Corporation.
1.7 Effects. The Merger shall have the effects set forth in Section 259
of the DGCL.
2. CONVERSION OF SECURITIES AND ASSUMPTION OF CERTAIN OBLIGATIONS.
2.1 Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of Roadway Express, Roadway Holdings,
Merger Sub or the holders of any securities of the foregoing corporations:
2.1.1 Common Stock of Merger Sub. Each share of common stock, par
value $0.01 per share, of Merger Sub issued and outstanding immediately prior to
the Effective Time shall be converted into one share of common stock, par value
$0.01 per share, of the Surviving Corporation.
2.1.2 Common Stock of Roadway Express. Each share of common stock,
par value $0.01 per share, of Roadway Express ("ROADWAY EXPRESS COMMON STOCK")
issued and outstanding or held in its treasury immediately prior to the
Effective Time shall be converted into one share of common stock, par value
$0.01 per share, of Roadway Holdings ("ROADWAY HOLDINGS COMMON STOCK"), and
shall have the same designations, rights and powers and
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preferences, and the qualifications, limitations and restrictions thereof, as
the Roadway Express Common Stock being converted. Each certificate representing
shares of Roadway Express Common Stock immediately prior to the Effective Time
shall be deemed to represent the same number of shares of Roadway Holdings
Common Stock.
2.1.3 Common Stock of Roadway Holdings. Each share of Roadway
Holdings Common Stock issued and outstanding immediately prior to the Effective
Time shall automatically be cancelled and retired and shall cease to exist.
2.2 Roadway Express Compensation and Benefit Plans. Roadway Holdings
shall assume sponsorship and continue all the rights and obligations of Roadway
Express under each of the Roadway Express, Inc. Management Incentive Stock Plan,
Roadway Express, Inc. 2001 Employee Stock Purchase Plan, Roadway Express, Inc.
Equity Ownership Plan, Roadway Express, Inc. Non-employee Directors' Equity and
Deferred Compensation Plan, and Roadway Express, Inc. Non-employee Directors'
Stock Option Plan (collectively, the "STOCK INCENTIVE PLANS"). Any outstanding
options and other awards assumed by Roadway Holdings shall be exercisable upon
the same terms and conditions as under the Stock Incentive Plans immediately
prior to the Effective Time, except that, where applicable, upon the exercise of
each such option or award, shares of Roadway Holdings Common Stock shall be
issuable in lieu of each share of Roadway Express Common Stock issuable upon the
exercise thereof immediately prior to the Effective Time.
2.3 Successor Issuer. It is the intent of the parties hereto that
Roadway Holdings, as of the Effective Time, be deemed a "successor issuer" for
all purposes under the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended.
2.4 Roadway Express Stock Transfer Books. At the Effective Time, the
stock transfer books for the shares of Roadway Express Common Stock which will
be converted to Roadway Holdings Common Stock pursuant to Section 2.1 hereof
shall be deemed closed, and no transfer of such shares shall thereafter be made
or consummated.
2.5 Other Agreements. At the Effective Time, Roadway Holdings shall
assume any obligation of Roadway Express to deliver or make available shares of
Roadway Express Common Stock under any agreement. Any reference to Roadway
Express Common Stock under any such agreement or employee benefit plan shall be
deemed to be a reference to Roadway Holdings Common Stock and one share of
Roadway Holdings Common Stock shall be issuable in lieu of each share of Roadway
Express Common Stock required to be issued by any such agreement or employee
benefit plan, subject to subsequent adjustment as provided in any such agreement
or employee benefit plan.
3. CONDITIONS TO THE MERGER. The obligations of Roadway Express,
Roadway Holdings and Merger Sub to consummate the Merger are subject to the
satisfaction of the following conditions:
3.1 Listing of Roadway Holdings Common Stock. The Roadway Holdings
Common Stock to be issued and initially reserved for issuance pursuant to the
transactions contemplated
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herein shall have been approved for quotation, upon official notice of issuance,
by the Nasdaq National Market.
3.2 Tax Opinion. Roadway Express shall have obtained an opinion from
its counsel, Xxxxx, Day, Xxxxxx & Xxxxx, that the stockholders of Roadway
Express will not recognize gain or loss for United States federal income tax
purposes as a result of the Merger.
4. MISCELLANEOUS.
4.1 Amendment. At any time prior to the Effective Time, the parties
hereto may, to the extent permitted by the DGCL, by written agreement signed by
all of the parties hereto, amend, modify or supplement any provision of this
Agreement.
4.2 Termination. This Agreement may be terminated and the Merger
abandoned by the Board of Directors or a duly authorized committee thereof of
Roadway Express at any time prior to the filing of the certified copy of this
Agreement (or the Certificate of Merger in lieu thereof) with the Delaware
Secretary of State. In the event of termination of this Agreement as provided in
this Section 4.2, this Agreement shall become null and void and have no effect,
without liability or obligation on the part of Roadway Express, Roadway Holdings
or Merger Sub.
4.3 Filings. At or prior to the Effective Time, the Surviving
Corporation shall cause the Certificate of Merger to be executed and filed with
the Delaware Secretary of State. At the Effective Time, to the extent necessary
to effectuate the amendments to the certificates of incorporation of the
Surviving Corporation and Roadway Holdings contemplated by this Agreement, each
of the Surviving Corporation and Roadway Holdings shall cause to be filed with
the Delaware Secretary of State such certificates or documents required to give
effect thereto.
4.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely within such State.
4.5 Readings. The headings set forth herein are for convenience only
and shall not be used in interpreting the text of the section in which they
appear.
4.6 Counterparts. This Agreement may be executed in one or more
counterparts which together shall constitute a single agreement.
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IN WITNESS WHEREOF, Roadway Express, Roadway Holdings and Merger Sub,
pursuant to the approval and authority duly given by resolutions adopted by
their respective Boards of Directors, have caused this Agreement to be executed
as of the date first above written by their respective officers thereunto duly
authorized.
ROADWAY EXPRESS, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
-------------------------------------
Title: VP, General Counsel and Secretary
------------------------------------
ROADWAY MERGER CORP.
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
-------------------------------------
Title: Vice President and Secretary
------------------------------------
ROADWAY CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
-------------------------------------
Title: VP, General Counsel and Secretary
------------------------------------
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EXHIBIT A
Amended and Restated Certificate of Incorporation
of Roadway Express, Inc.
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THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ROADWAY EXPRESS, INC.
(Pursuant to Sections 228, 242, and 245 of the General
Corporation Law of the State of Delaware)
Roadway Express, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware
DOES HEREBY CERTIFY:
1. That the name of this corporation is Roadway Express, Inc., and that
this corporation was originally incorporated on February 15, 1954, pursuant to
the General Corporation Law.
2. That the Board of Directors duly adopted resolutions proposing to
amend and restate the Certificate of Incorporation of this corporation,
declaring said amendment and restatement to be advisable and in the best
interests of this corporation and its stockholders, and authorizing the
appropriate officers of this corporation to solicit the consent of the
stockholders therefore, which resolution setting forth the proposed amendment
and restatement is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended and restated in its entirety to read as follows:
FIRST: The name of the corporation (the "Corporation") is Roadway
Express, Inc.
SECOND: The address of the Corporation's registered office in the State
of Delaware is 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx,
Xxxxxxxx 00000.
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The name of the Corporation's registered agent at such address is the
Corporation Trust Company.
THIRD: The nature of the business and the objects and purposes proposed
to be transacted, promoted, and carried on, are to do any or all the things
herein mentioned, as fully and to the same extent as natural persons might or
could do, and in any part of the world, viz:
(a) Transport Traffic for hire by any means or methods;
(b) Contract or arrange for the provision of the transportation of
Traffic by others as an independent contractor, agent, or broker;
(c) Deal in Transport Instrumentalities and in the Securities of a
Person who Deals therein, or who is engaged in the transportation of Traffic;
(d) Invest in, control, solely or jointly, or in common with other
Persons, any Person who is engaged in any one or more of the above described
businesses; and
(e) Any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is one thousand (1,000) shares of Common Stock each
having a par value of $0.01 per share ("Common Stock").
Each share of Common Stock shall be equal to each other share of Common
Stock. The holders of Common Stock shall be entitled to one vote for each such
share upon all questions presented to the stockholders.
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Except as otherwise provided in this Certificate of Incorporation, the
Common Stock shall have the exclusive right to vote for the election of
Directors and for all other purposes.
This Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all purposes and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not this Corporation
shall have notice thereof, except as expressly provided by applicable laws.
FIFTH: The business and affairs of the Corporation shall be managed by
and under the direction of the Board of Directors. In furtherance of, and not in
limitation of, the powers conferred by statute, the Board of Directors is
expressly authorized and empowered:
(a) To adopt, amend or repeal the By-Laws of this Corporation;
provided, however, that the By-Laws adopted by the Board of Directors under the
powers hereby conferred may be amended or repealed by the Board of Directors or
by the stockholders having power with respect thereto, except that Section 2 of
Article I, Section 4 of Article I, all of Article II, Section 1 (first
paragraph) of Article III, Section 2 (second paragraph) of Article III, Section
3 (first paragraph) of Article III and Section 4 of Article VI of the By-Laws
shall not be amended or repealed, nor shall any provision inconsistent with such
By-Laws be adopted, without the affirmative vote of the holders of at least 80
percent of the combined voting power of all shares of this Corporation entitled
to vote generally in the election of Directors, voting together as a single
class. Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least 80 percent of
the combined voting power of all shares of this Corporation entitled to vote
generally in the election of Directors, voting
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together as a single class, shall be required to amend, repeal or adopt any
provision inconsistent with this Section (a) of Article FIFTH; and
(b) From time to time to determine whether and to what extent, and at
what times and places, and under what conditions and regulations, the accounts
and books of this Corporation, or any of them, shall be open to inspection of
stockholders; and no stockholder shall have any right to inspect any account,
book or document of this Corporation except as conferred by applicable law.
SIXTH: Subject to the rights of the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect additional Directors under specific circumstances:
(a) Any action required or permitted to be taken by the stockholders of
this Corporation must be effected at a duly called annual or special meeting of
stockholders of this corporation and may not be effected by any consent in
writing of such stockholders.
(b) Special meetings of the stockholders of the Corporation may be
called only (i) by the Chairman of the Board of Directors, and (ii) shall be
called within 10 days after receipt of the written request of the Board of
Directors, pursuant to a resolution approved by a majority of the Whole Board;
and
(c) The business permitted to be conducted at any special meeting of
the stockholders is limited to the business brought before the meeting by the
Chairman or by the Secretary at the request of a majority of the Board of
Directors.
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of at least 80 percent of the combined
voting power of all shares of
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the Corporation entitled to vote generally in the election of Directors voting
together as a single class, shall be required to amend, repeal or adopt any
provision consistent with this Article SIXTH. For purposes of this Certificate
of Incorporation, the "Whole Board" is defined as a total number of Directors
which this Corporation would have if there were no vacancies.
SEVENTH: Section 1. Number and Election of Directors.
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Subject to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation to
elect additional Directors under specified circumstances, the number of
Directors of this Corporation shall be fixed by the By-Laws of the Corporation
and may be increased or decreased from time to time in such manner as may be
prescribed by the By-Laws, but in no case shall the number be less than three.
Election of Directors need not be by written ballot except and to the
extent provided for in the By-Laws of this Corporation.
Section 2. Stockholder Nomination of Director Candidates.
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Advance notice of stockholder nominations for the election of Directors
and advance notice of business to be brought by stockholders before an annual
meeting shall be given in the manner provided in the By-Laws of this
Corporation.
Section 3. Newly Created Directorships and Vacancies.
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Subject to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation to
elect additional Directors under specified circumstances, newly created
directorships resulting from any increase in the number of Directors and any
vacancy on the Board of Directors resulting from death,
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resignation, disqualification, removal or other cause shall be filled solely by
the affirmative vote of a majority of the remaining Directors then in office,
even though less than a quorum of the Board of Directors, or by a sole remaining
Director. Any Director elected in accordance with the preceding sentence shall
hold office for the remainder of the full term of the class of Directors in
which the new directorship was created or the vacancy occurred and until such
Director's successor shall have been elected and qualified. No decrease in the
number of Directors constituting the Board of Directors shall shorten the term
of an incumbent Director.
Section 4. Removal of Directors.
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Subject to the rights of the holders of any class or series of stock
having preference over the Common Stock as to dividends or upon liquidation to
elect additional Directors under special circumstances, any Director may be
removed from office only by the affirmative vote of the holders of at least 80
percent of the combined voting power of the outstanding shares of Voting Stock
(as defined below), voting together as a single class.
For purposes of this Article SEVENTH, "Voting Stock" shall mean the
outstanding shares of capital stock of this Corporation entitled to vote
generally in the election of Directors. In any vote required by or provided for
in this Article EIGHTH, each share of Voting Stock shall have the number of
votes granted to it generally in the election of Directors.
Section 5. Amendment.
---------------------
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least 80 percent of
the combined voting power of the outstanding shares of the Voting Stock, voting
together as a single class, shall be required to amend, repeal or adopt any
provision inconsistent with this Article SEVENTH.
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EIGHTH: Section 1. Elimination of Certain Liability of Directors.
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To the full extent permitted by the General Corporation Law of the
State of Delaware or any other applicable laws presently or hereafter in effect,
no Director of this Corporation shall be personally liable to this Corporation
or its stockholders for or with respect to any acts or omissions in the
performance of his duties as a Director of this Corporation. Any amendment or
repeal of this Article EIGHTH shall not adversely affect any right or protection
of a Director of this Corporation existing immediately prior to such amendment
or repeal.
Section 2. Indemnification.
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Each person who is or was or had agreed to become a Director or officer
of this Corporation, or each person who is or was serving or who agreed to serve
at the request of the Board of Directors or an officer of this Corporation as an
employee or agent of this Corporation or as a Director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise (including the heirs, executors, administrators or estate of such
person), shall be indemnified by this Corporation to the full extent permitted
from time to time by the General Corporation Law of the State of Delaware or any
other applicable laws as presently or hereafter in effect. Without limiting the
generality or the effect of the foregoing, this corporation may enter into one
or more agreements with any person which provide for indemnification greater or
different than that provided in this Article EIGHTH. Any amendment or repeal of
this Article EIGHTH shall not adversely affect any right or protection existing
hereunder immediately prior to such amendment or repeal.
NINTH: This Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by
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statute, and this Certificate of Incorporation, and all rights conferred upon
stockholders herein are created subject to this reservation.
TENTH: Any act or transaction by or involving the Corporation that
requires for its adoption under the Delaware General Corporation Law or this
Certificate of Incorporation the approval of the stockholders of the Corporation
shall, pursuant to Subsection 251(g) of the Delaware General Corporation Law,
require, in addition, the approval of the stockholders of Roadway Corporation
(or any successor by merger), by the same vote as is required by the Delaware
General Corporation Law and/or this Certificate of Incorporation.
IN WITNESS WHEREOF, Roadway Express, Inc. has caused this Certificate
to be executed by Xxxx X. Xxxxxxxxxx, its Vice President, General Counsel and
Secretary, as of May ___, 2001.
ROADWAY EXPRESS, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Its: Vice President, General Counsel and
Secretary
ATTEST
By: /s/ Xxxxxx X. Xxxx, III
--------------------------------------------
Name: Xxxxxx X. Xxxx, III
Its: Treasurer
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