PLAN AND AGREEMENT OF MERGER
Exhibit 3.39
THIS Plan and Agreement of Merger (hereinafter called the “Agreement”), made February 16, 1982, by and among NEW PENN MOTOR EXPRESS, INC. (hereinafter called “New Penn”), a Pennsylvania corporation, XXXXXX INDUSTRIES, INC. (hereinafter called “Holding Company”), a Pennsylvania corporation and a wholly owned subsidiary of New Penn, and NPME, INC. (hereinafter called “NPME”), a Pennsylvania corporation and a wholly owned subsidiary of Holding Company.
WHEREAS, the parties hereto have determined that it is advisable and generally to the advantage and welfare of said corporations and their respective stockholders that New Penn be merged with and into NPME, upon the terms herein set forth and in accordance with the applicable provisions of the laws of the Commonwealth of Pennsylvania that permit such merger.
NOW THEREFORE, in consideration of the premises and of the mutual agreements, covenants, and provisions hereinafter contained, the parties hereto agree as follows:
I. Merger
1.1 Subject to and upon satisfaction of all requirements of law and the terms and the conditions specified in this Agreement, the merger provided for herein shall become effective on March 31, 1982, at 5:00 p.m. (hereinafter called the “Effective Date”).
1.2 On the Effective Date, the separate existence and corporate organization of New Penn shall cease, and said corporation shall be merged into NPME, which shall be, and is hereinafter sometimes called, the Surviving Corporation, and the name of which shall be changed to “New Penn Motor Express, Inc.,” and thereupon New Penn and NPME shall be a single corporation. NPME, as the Surviving Corporation, shall possess all the rights, privileges, powers, and franchises of a public as well as a private nature, and shall be subject to all the restrictions, disabilities, and duties of each of the Constituent Corporations, and all and singular the rights, privileges, powers, and franchises of each of the Constituent Corporations, and all property, real, personal, and mixed, and all debts due to any of the Constituent Corporations on whatever account 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 Constituent Corporations; provided, however, that all rights of creditors and all liens upon any property of any of the Constituent Corporations shall be preserved unimpaired and all debts, liabilities, and duties of the Constituent Corporations shall thenceforth attach to the Surviving Corporation and may be enforced against it to the same extent as if said debts, liabilities, and duties had been incurred or contracted by it.
Exhibit “A”
1.3 If, at any time, the Surviving Corporation shall consider or be advised that any further assignments or assurances in law or any other things are necessary or desirable to vest, perfect, or confirm, of record or otherwise, in the Surviving Corporation the title to any property or right of New Penn acquired or to be acquired by reason of or as a result of the merger, the proper officers and directors of New Penn in office immediately prior to the Effective Date shall in the name and on behalf of New Penn execute and deliver all such proper deeds, assignments and assurances in law and do all things necessary and proper to vest, perfect, or confirm title to such property or rights in the Surviving Corporation, and otherwise to carry out the purposes of this Agreement and the proper officers and directors of the Surviving Corporation are hereby authorized in the name of New Penn or otherwise to take any and all such action.
II. Conversion of Shares
2.1 On the Effective Date, each share of common stock of NPME outstanding immediately prior to the Effective Date shall continue to be an issued and outstanding share of stock of NPME. Each certificate representing immediately prior to the Effective Date issued and outstanding shares of common stock of NPME shall continue to evidence ownership of the same number of fully paid, non-assessable shares of common stock of NPME.
2.2 On the Effective Date, each share of common stock of New Penn (hereinafter called “New Penn Common Stock”) which is issued and outstanding immediately prior to the Effective Date shall thereupon become and be converted into two (2) shares of common stock of Holding Company (hereinafter called “Holding Company Common Stock”), and each certificate representing immediately prior to the Effective Date outstanding shares of New Penn Common Stock shall thereupon become and be deemed for all purposes to evidence the ownership of twice the number of fully paid, non-assessable shares of Holding Company Common Stock.
2.3 Each holder of a certificate representing immediately prior to the Effective Date outstanding shares of New Penn Common Stock will be entitled, upon surrender of such certificate for cancellation after the Effective Date, to receive in exchange a certificate representing twice the number of shares of Holding Company Common Stock, previously represented by the certificate surrendered. If any such certificate is to be issued in a name other than that which the certificate surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such exchange shall pay any transfer or other taxes required by reason of the issuance of the new Holding Company certificates in a name other than the registered holder of the certificate surrendered, or establish to the satisfaction of Holding Company or its transfer agent that such tax has been paid or is not applicable.
2.4 On the Effective Date, all shares of common stock of Holding Company owned and held by New Penn immediately prior to the Effective Date shall be surrendered and cancelled.
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2.5 On the Effective Date, it shall be deemed that the stock transfer books of New Penn are closed, and no transfer of shares of New Penn Common Stock shall thereafter be made or consummated.
III. Articles of Incorporation, By-Laws,
Board of Directors, Officers
3.1 From and after the Effective Date, and until thereafter amended as provided by law, the Articles of Incorporation of NPME shall continue in force and effect as the Articles of Incorporation of the Surviving Corporation.
3.2 The By-Laws of New Penn in effect and as they exist on the Effective Date shall be the By-Laws of the Surviving Corporation until altered, amended, or repealed as therein provided or in accordance with the applicable provisions of the Business Corporation Law of the Commonwealth of Pennsylvania.
3.3 On the Effective Date, the directors and officers of NPME shall be, respectively, those persons who were the directors and officers of New Penn immediately prior to the Effective Date, to hold office until their respective successors shall be elected and qualified as provided in the By-Laws of NPME.
IV. Conditions
4.1 Effectuation of the merger herein provided for is subject to the satisfaction prior to the Effective Date of the following conditions:
(a) The merger herein provided for shall have received the requisite approval of the holders of the common capital stock of New Penn.
(b) There shall have been obtained a Ruling of the Internal Revenue Service, satisfactory in form and substance to New Penn and its counsel, to the effect that the merger herein provided for will constitute a tax-free reorganization, and neither gain nor loss will be recognized by New Penn, Holding Company, NPME, or stockholders of New Penn by reason of the consummation of such merger and as to such further matters related to the tax consequences of the transactions contemplated herein as the Board of Directors of New Penn or the Board of Directors of NPME may deem advisable.
(c) Procurement of all other consents and approvals, and satisfaction of all other requirements prescribed by law which are necessary for consummation of the merger.
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V. Termination
5.1 This Agreement may be terminated and the merger herein provided for abandoned at any time prior to the Effective Date, whether before or after approval of this Agreement by the stockholders of New Penn or NPME:
(a) By the mutual consent of the Board of Directors of New Penn and the Board of Directors of NPME; or
(b) By the Board of Directors of New Penn or the Board of Directors of NPME if any order, consent or approval, governmental or otherwise, which in the opinion of either such Board is required by law or advisable to permit or enable NPME to succeed, on the Effective Date, to all or any part of the rights, assets, liabilities, and obligations of New Penn, or to conduct, on and after the Effective Date, all or any part of the business or activities theretofore conducted by New Penn, shall not have been obtained; or
(c) By the Board of Directors of New Penn or the Board of Directors of NPME, if either such Board shall determine in its sole discretion that it is inadvisable to consummate the merger herein provided for.
VI. Accomplishment of Merger
6.1 New Penn, Holding Company, and NPME each agrees to take such action on its part as may be necessary or desirable to consummate the merger and other transaction hereinafter provided for, subject, however, to the rights herein provided for the termination of this Agreement.
6.2 For the convenience of the parties and to facilitate the filing and recording of this Plan and Agreement, any number of counterparts hereof may be executed and each such counterpart shall be deemed to be an original instrument.
IN WITNESS WHEREOF, each of the parties hereto, pursuant to authority duly granted by its Board of Directors, pursuant to a resolution of each Board of Directors, has caused this Agreement to be executed in a number of counterparts (each of which constitutes an original) on its behalf and its corporate seal to be hereunto affixed as of the day first written above, and witness the signatures hereof of Directors of New Penn and NPME.
| ATTEST: | NEW PENN MOTOR EXPRESS, INC. | |||||
| /s/ XXXXX X. XXXXX |
By | /s/ X. X. XXXXXX | ||||
| (Assistant) Secretary | President | |||||
| (Corporate Seal) | “New Penn” | |||||
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| /s/ X. X. XXXXXX |
/s/ XXXXX X. XXXXX | |||||
| X. X. XXXXXX, Director | XXXXX X. XXXXX, Director | |||||
| /s/ XXXXXX X. XXXXXXXX III |
/s/ XXXXXXX X. XXXXX | |||||
| XXXXXX X. XXXXXXXX III, Director | XXXXXXX X. XXXXX, Director | |||||
| /s/ XXXXXX X. XXXXXXX |
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| XXXXXX X. XXXXXXX, Director | ||||||
| ATTEST: | XXXXXX INDUSTRIES, INC. | |||||
| /s/ XXXXX X. XXXXX |
By | /s/ X. X. XXXXXX | ||||
| (Assistant) Secretary | President | |||||
| (Corporate Seal) | “Holding Company” | |||||
| ATTEST: | NPME, INC. | |||||
| /s/ XXXXX X. XXXXX |
By | /s/ X. X. XXXXXX | ||||
| (Assistant) Secretary | President | |||||
| (Corporate Seal) | “NPME” | |||||
| /s/ X. X. XXXXXX |
/s/ XXXXX X. XXXXX | |||||
| X. X. XXXXXX, Director | XXXXX X. XXXXX, Director | |||||
| /s/ XXXXXX X. XXXXXXXX III |
/s/ XXXXXXX X. XXXXX | |||||
| XXXXXX X. XXXXXXXX III, Director | XXXXXXX X. XXXXX, Director | |||||
| /s/ XXXXXX X. XXXXXXX |
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| XXXXXX X. XXXXXXX, Director | ||||||
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FOR LKWA, INC. AND NEW PENN MOTOR EXPRESS, INC.
FIRST: NEW PENN MOTOR EXPRESS, INC., a corporation organized under the laws of the State of Pennsylvania, shall merge with and into itself and assume the assets, liabilities and obligations of LKWA, Inc., a corporation organized under the laws of the State of Delaware. The name of the surviving corporation is NEW PENN MOTOR EXPRESS, INC.
SECOND: The presently issued and outstanding shares of stock of LKWA, INC., the merging corporation, shall be surrendered and canceled. No shares of stock of the surviving corporation shall be issued in exchange therefor.
THIRD: The Articles of Incorporation of NEW PENN MOTOR EXPRESS, INC. shall be the Articles of Incorporation of the corporation surviving the merger. No changes or amendments shall be made to the Articles of Incorporation because of the merger.
FOURTH: The by-laws of NEW PENN MOTOR EXPRESS, INC. shall be the by-laws of the Corporation surviving the merger.
FIFTH: The directors and officers of NEW PENN MOTOR EXPRESS, INC. shall be the directors and officers of the corporation surviving the merger and shall serve until their successors are selected.
SIXTH: The officers of each corporation party to the merger shall be and hereby are authorized to do all acts and things necessary and proper to effect the merger.
SEVENTH: The merger shall be effective on November 7, 1991.
IN WITNESS WHEREOF, the parties to this agreement, pursuant to the approval and authority duly given by resolutions adopted by the respective boards of directors and shareholders have caused this document to be executed by the undersigned officers as the deed and act of each of said corporations on this 7th day of November, 1991.
| ATTEST | NEW PENN MOTOR EXPRESS, INC. | |||
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| Secretary | President | |||
| ATTEST | LKWA, INC. | |||
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| Secretary | President | |||
| Microfilm Number | Filed with the Department of State on DEC 27 1996 | |||
| Entity Number [ILLEGIBLE] | /s/ [Illegible] | |||
| Secretary of the Commonwealth | ||||
ARTICLES OF MERGER—DOMESTIC BUSINESS CORPORATION
In compliance with the requirements of 15 Pa.C.S. § 1926 (relating to articles of merger or consolidation), the undersigned business corporation, desiring to effect a merger, hereby states that:
| 1. | The name of the corporation surviving the merger is: | |
| NEW PENN MOTOR EXPRESS, INC. | ||
| 2. | The surviving entity is a domestic business corporation and the address of its current registered office in this Commonwealth is: | |
| 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Lebanon County | ||
| 3. | The plan of merger shall be effective at noon on December 27, 1996. | |
| 4. | The manner in which the plan of merger was adopted by each domestic corporation is as follows: | |
| NEW PENN MOTOR Adopted by the directors pursuant | ||
| EXPRESS, INC. to 15 Pa.C.S. § 1924 (b) (2). | ||
| 5. | The plan was authorized, adopted or approved, as the case may be, by TUDOR LANE, INC., the nonqualified foreign business corporation party to the plan, in accordance with the laws of Delaware, the jurisdiction in which it is incorporated. | |
| 6. | Pursuant to 15 Pa.C.S. § 1901 (relating to omissions of certain provisions from filed plans) the provisions, if any, of the Plan of Merger that amend or constitute the operative Articles of Incorporation of the surviving corporation as in effect subsequent to the effective date of the plan are as follows: The Articles of Incorporation of NEW PENN MOTOR EXPRESS, INC, shall constitute the Articles of Incorporation of the Surviving Corporation. | |
| The full text of the plan of merger is on file at the principal place of business of the surviving corporation, the address of which is: | ||
| 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Lebanon County | ||
IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles of Merger to be signed by a duly authorized officer thereof, this 26th day of December, 1996.
| ATTEST: | NEW PENN MOTOR EXPRESS, INC. | |||
| /s/ Xxxxx X. Xxxxx |
By: | /s/ Xxxxxxx X. Xxxxx | ||
| Secretary | President | |||
| Microfilm Number | Filed with the Department of State on DEC 27 1996 | |||
| Entity Number [ILLEGIBLE] | /s/ [ILLEGIBLE] | |||
| Secretary of the Commonwealth | ||||
ARTICLES OF MERGER—DOMESTIC BUSINESS CORPORATION
In compliance with the requirements of 15 Pa.C.S. § 1926 (relating to articles of merger or consolidation), the undersigned business corporation, desiring to effect a merger, hereby states that:
| 1. | The name of the corporation surviving the merger is: | |
| NEW PENN MOTOR EXPRESS, INC. | ||
| 2. | The surviving entity is a domestic business corporation and the address of its current registered office in this Commonwealth is: | |
| 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Lebanon County | ||
| 3. | The plan of merger shall be effective at 3:00 p.m. on December 30, 1996. | |
| 4. | The manner in which the plan of merger was adopted by each domestic corporation is as follows: | |
| NEW PENN MOTOR Adopted by the directors pursuant | ||
| EXPRESS, INC. to 15 Pa.C.S. § 1924 (b) (2). | ||
| 5. | The plan was authorized, adopted or approved, as the case may be, by NTL, INC., the nonqualified foreign business corporation party to the plan, in accordance with the laws of Delaware, the jurisdiction in which it is incorporated. | |
| 6. | Pursuant to 15 Pa.C.S. § 1901 (relating to omissions of certain provisions from filed plans) the provisions, if any, of the Plan of Merger that amend or constitute the operative Articles of Incorporation of the surviving corporation as in effect subsequent to the effective date of the plan are as follows: The Articles of Incorporation of NEW PENN MOTOR EXPRESS, INC. shall constitute the Articles of Incorporation of the Surviving Corporation. | |
| The full text of the plan of merger is on file at the principal place of business of the surviving corporation, the address of which is: | ||
| 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Lebanon County | ||
IN TESTIMONY WHEREOF, each of the undersigned corporations has caused these Articles of Merger to be signed by a duly authorized officer thereof, this 26th day of December, 1996.
| ATTEST: | NEW PENN MOTOR EXPRESS, INC. | |||||
| /s/ Xxxxx X. Xxxxx |
By: | /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxx X. Xxxxx, Secretary | Xxxxxxx X. Xxxxx, President | |||||
| ATTEST: | NTL, INC. | |||||
| /s/ Xxxx X. Xxxxxx |
By: | /s/ Xxxxxx X. Xxxxxxx | ||||
| Xxxx X. Xxxxxx Assistant Secretary |
Xxxxxx X. Xxxxxxx President | |||||
| Microfilm Number | Filed with the Department of State on DEC 27 1996 | |||
| Entity Number [ILLEGIBLE] | /s/ [ILLEGIBLE] | |||
| Secretary of the Commonwealth | ||||
ARTICLES OF MERGER—DOMESTIC BUSINESS CORPORATION
In compliance with the requirements of 15 Pa.C.S. § 1926 (relating to articles of merger or consolidation), the undersigned business corporation, desiring to effect a merger, hereby states that:
| 1. | The name of the corporation surviving the merger is: | |
| NEW PENN MOTOR EXPRESS, INC. | ||
| 2. | The surviving entity is a domestic business corporation and the address of its current registered office in this Commonwealth is: | |
| 625 South Fifth Avenue, Lebanon, PA 17042, Lebanon County | ||
| 3. | The name and address of the registered office of each other domestic business corporation and qualified foreign business corporation which is a party to the plan of merger are as follows: | |
| E & A TRUCKSERVICE, INC. | ||
| 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Dauphin County | ||
| 4. | The plan of merger shall be effective at noon on December 30, 1996. | |
| 5. | The manner in which the plan of merger was adopted by each domestic corporation is as follows: | |
| NEW PENN MOTOR Adopted by the directors pursuant | ||
| EXPRESS, INC. to 15 Pa.C.S. § 1924 (b) (2). | ||
| 6. | Pursuant to 15 Pa.C.S. § 1901 (relating to omissions of certain provisions from filed plans) the provisions, if any, of the Plan of Merger that amend or constitute the operative Articles of Incorporation of the surviving corporation as in effect subsequent to the effective date of the plan are as follows: The Articles of Incorporation of NEW PENN MOTOR EXPRESS, INC. shall constitute the Articles of Incorporation of the Surviving Corporation. | |
| The full text of the plan of merger is on file at the principal place of business of the surviving corporation, the address of which is: | ||
| 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Lebanon County | ||
IN TESTIMONY WHEREOF, each of the undersigned corporations has caused these Articles of Merger to be signed by a duly authorized officer thereof, this 26th day of December, 1996.
| ATTEST: | NEW PENN MOTOR EXPRESS, INC. | |||||
| /s/ Xxxxx X. Xxxxx |
By: | /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxx X. Xxxxx, Secretary | Xxxxxxx X. Xxxxx, President | |||||
| ATTEST: | E & A TRUCKSERVICES, INC. | |||||
| /s/ Xxxxxxxxx X. Xxxx, III |
By: | /s/ Xxxxxx X. Xxxxxxxx, Xx. | ||||
| Xxxxxxxxx X. Xxxx, III Secretary |
Xxxxxx X. Xxxxxxxx, Xx. President | |||||
| Microfilm Number | Filed with the Department of State on JAN 21 1997 | |||
| Entity Number 750158 |
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| Secretary of the Commonwealth | ||||
ARTICLES OF MERGER—DOMESTIC BUSINESS CORPORATION
In compliance with the requirements of 15 Pa.C.S. § 1926 (relating to articles of merger or consolidation), the undersigned business corporation, desiring to effect a merger, hereby states that:
| 1. | The name of the corporation surviving the merger is: | |
| NEW PENN MOTOR EXPRESS, INC. | ||
| 2. | The surviving entity is a domestic business corporation and the address of its current registered office in this Commonwealth is: | |
| 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Lebanon County | ||
| 3. | The plan of merger shall be effective at 3:00 p.m. on January 21, 1997. | |
| 4. | The manner in which the plan of merger was adopted by each domestic corporation is as follows: | |
| NEW PENN MOTOR Adopted by the directors pursuant | ||
| EXPRESS, INC. to 15 Pa.C.S. § 1924 (b) (2). | ||
| 5. | The plan was authorized, adopted or approved, as the case may be, by NPME, INC., the nonqualified foreign business corporation party to the plan, in accordance with the laws of Delaware, the Jurisdiction in which it is incorporated. | |
| 6. | Pursuant to 15 Pa.C.S, § 1901 (relating to omissions of certain provisions from filed plans) the provisions, if any, of the Plan of Merger that amend or constitute the operative Articles of Incorporation of the surviving corporation as in effect subsequent to the effective date of the plan are as follows: The Articles of Incorporation of NEW PENN MOTOR EXPRESS, INC. shall constitute the Articles of Incorporation of the surviving Corporation. | |
| The full text of the plan of merger is on file at the principal place of business of the surviving corporation, the address of which is: | ||
| 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Lebanon County | ||
IN TESTIMONY WHEREOF, each of the undersigned corporations has caused these Articles of Merger to be signed by a duly authorized officer thereof, this 21st day of January, 1997.
| ATTEST: | NEW PENN MOTOR EXPRESS, INC. | |||||
| /s/ Xxxxx X. Xxxxx |
By: | /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxx X. Xxxxx, Secretary | Xxxxxxx X. Xxxxx, President | |||||
| ATTEST: | NPME, INC. | |||||
| /s/ Xxxx X. Xxxxxx |
By: | /s/ Xxxxxx X. Xxxxxxx | ||||
| Xxxx X. Xxxxxx Assistant Secretary |
Xxxxxx X. Xxxxxxx President | |||||
