Exhibit 2.4
AMENDMENT NO. 2 dated as of August 25, 1998
(this "Amendment") to the AGREEMENT AND PLAN OF
---------
MERGER dated as of June 23, 1998, by and among
PALESTRA ACQUISITION CORP., a Delaware
corporation ("Purchaser"), CHEMICAL LEAMAN
---------
CORPORATION, a Pennsylvania corporation (the
"Company"), and THE SHAREHOLDERS OF THE COMPANY
--------
NAMED ON SCHEDULE I ATTACHED TO THE ORIGINAL
----------
AGREEMENT (each, a "Shareholder", and
-----------
collectively, the "Shareholders"), as amended by
------------
Amendment No. 1 dated July 27, 1998 (as so
amended, the "Original Agreement" and, as amended
------------------
by this Amendment, this "Agreement"). Capitalized
---------
terms used but not defined herein shall have the
meanings ascribed to them in the Original
Agreement.
WHEREAS, the Board of Directors of the Company has adopted resolutions
approving this Amendment and the transactions to which the Company is a party
contemplated hereby, and has agreed, upon the terms and subject to the
conditions set forth herein, to recommend that the Company's shareholders
approve this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
benefits to be derived from this Amendment and the representations, warranties,
covenants, agreements and conditions hereinafter set forth, the parties hereto
hereby agree as follows:
ARTICLE I
AMENDMENTS
1.1 LETTERS OF TRANSMITTAL.
- --- ----------------------
(a) Section 2.2(b) of the Original Agreement is hereby amended by
deleting "(together with a letter of transmittal signed by such holder in
substantially the form of EXHIBIT A attached hereto)" and "and such letter of
---------
transmittal" therefrom.
(b) EXHIBIT D to the Original Agreement is hereby deleted in its
---------
entirety.
1.2 CONDITIONS.
- --- ----------
(a) Purchaser acknowledges and agrees that the conditions set forth in
Section 7.3(p) is hereby deemed waived or satisfied and any further compliance
thereunder is hereby waived.
(b) Section 7.3(l) of the Original Agreement is hereby deleted in its
entirety and replaced with the following: Subject to Section 6.14, the Company
shall have filed a General Information Notice (GIN) with the NJDEP with respect
to the Real Property located in New Jersey."
1.3 INDEMNIFICATION.
- --- ---------------
(a) Section 8.4(e)(i) of the Original Agreement is hereby amended by
deleting the following therefrom: "rate of interest on the notes sold by the
Surviving Corporation or its Affiliates in connection with the consummation of
the transactions contemplated by this Agreement" and replacing it with "10%."
(b) Section 8.6(b) of the Original Agreement is hereby amended by
deleting the following therefrom: "the sum of (i) $8,250,000 (the "Cap"), plus
--- ----
(ii) an amount equal to the Indemnity Cap Adjustment Amount (as adjusted, the
"Adjusted Cap")" and replacing it with the following "the sum of (i) $10,750,000
- -------------
(the "Cap"), plus (ii) the stated value of all shares of New Preferred Stock
--- ----
issued at the Effective Time in connection with the Merger (the "Closing Date
------------
Shares"), plus (iii) the stated value of all shares of New Preferred Stock
- ------ ----
issued as a payment-in-kind dividend ("PIK Shares") that are issued or are
----------
required to be issued pursuant to the terms of the New Preferred Stock as a
payment-in-kind dividend on Closing Date Shares (the "Initial PIK Shares") (the
------------------
sum of (i), (ii) and (iii), the "Adjusted Cap")."
------------
(c) Section 8.7 of the Original Agreement is hereby amended by (i)
deleting the words "L/C Cap" and replacing it with the words "Cap" each time
"L/C Cap" appears therein and (ii) deleting the last sentence thereof in its
entirety and adding the following:
"With respect to any Purchaser Losses (including, without
limitation, payments referred to in Section 8.4) arising out of
conditions identified on Schedule 7.3(p)(2), the Purchaser shall only
------------------
draw upon the Qualified Letter of Credit and shall not reduce the
stated value of the outstanding shares of New Preferred Stock. With
respect to any payments referred to in Section 8.4 only (other than
those Purchaser Losses arising out of conditions identified on
Schedule 7.3(p)(2)), the Purchaser shall be entitled, in its sole
------------------
discretion, to either draw against the Qualified Letter of Credit or
reduce the stated value of the outstanding shares of New Preferred
Stock. In such event, Purchaser may make an election to draw against
the Qualified Letter of Credit by delivering a written notice to such
effect to the Shareholders' Representative. In the absence of such
notice, the Purchaser will be deemed to have elected to reduce the
stated value of the outstanding shares of New Preferred Stock.
Notwithstanding anything to the contrary contained in this Agreement,
David R. Hamilton and George McFadden shall be entitled to deliver the
Qualified Letters of Credit after the Effective Time. If the Purchaser
does not receive the Qualified Letters of Credit at the Effective
Time, it shall reduce the Cash Merger Consideration to be paid to each
Shareholder by the product of (x) such Shareholders Common Equity
2
Percentage and (y) the amount of the Cap (the "Holdback Amount"). The
---------------
aggregate Holdback Amount shall be deposited by the Purchaser in a
segregated interest-bearing bank account and shall secure, in part,
the Shareholders' obligations pursuant to Article VIII. Purchaser
shall be entitled to withdraw amounts from such segregated bank
account to the same extent that it would have been entitled to draw
upon the Qualified Letters of Credit. Promptly after receipt of the
Qualified Letters of Credit, the Purchaser shall pay the Holdback
Amount to the Shareholders (together with interest earned thereon),
subject to any reductions pursuant to the immediately preceding
sentence.
Without limiting the foregoing, Mr. Hamilton and Mr. McFadden
agree to use their best efforts to obtain the Qualified Letters of
Credit within ninety days immediately following the Closing Date."
(d) Annex I to the Original Agreement is hereby amended by deleting
the definitions of "Indemnity Cap Adjustment Amount" and "Preferred Stock
Adjustment Amount" therefrom.
1.4 SETOFFS.
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Section 8.8 of the Original Agreement is hereby deleted in its entirety and
replaced with the following: "Except as expressly contemplated by this Agreement
or the terms of the New Preferred Stock, sums due under this Article VIII shall
------------
not be set off against or subject to set-off by, other sums due to and from the
parties hereto."
1.5 NEW PREFERRED.
- --- -------------
Exhibit 2.1(b) to the Original Agreement is hereby amended by deleting
the first paragraph in the second column of the row entitled "Stated Value" and
replacing it with the following:
"$5,000,000. The stated value of the outstanding shares of New
Preferred Stock (including Initial PIK Shares but excluding all other
PIK Shares) will be reduced by $1 for each $1 of Purchaser Losses
(including, without limitation, payments referred to in Section 8.4)
in respect of which the Purchaser does not elect (if applicable) to
draw against the Qualified Letter of Credit in accordance with and as
limited by Section 8.7 of the Agreement.
In the event that any Person sells, transfers or otherwise
disposes of shares of New Preferred Stock to any Person (including the
Company) in accordance with the terms thereof, such Person shall
deposit simultaneously with such sale, transfer or other disposition
the then applicable Escrow Amount with an escrow agent selected by the
Company (the "Escrow Agent"). The Escrow Amount shall be held by the
------------
Escrow Agent pursuant to an escrow agreement that is satisfactory to
the Purchaser and the Shareholders' Representative. The Escrow Agent
shall pay to the Purchaser Indemnified Person such amounts and at such
times
3
as the stated value of the sold, transferred or disposed of shares of
New Preferred Stock would have been reduced pursuant to the terms
thereof (together with interest earned thereon). The remaining Escrow
Amount shall be released to such Person upon resolution of the matters
referred to in Section 8.4 and payment of amounts due thereunder. For
purposes hereof, "Escrow Amount" shall mean the Stated Value of all
-------------
shares of New Preferred Stock that are being sold, transferred or
otherwise disposed of."
1.6 D&O INSURANCE.
- --- -------------
The Original Agreement is hereby amended by adding a new Section 6.18,
which shall read in its entirety as follows:
"6.18 D&O Insurance. Purchaser acknowledges that prior to the
-------------
Effective Time, the Company may obtain and pay for an insurance policy
pursuant to which the officers and directors of the Company and its
Subsidiaries shall have, for a period of six years following the Effective
Time, fully-paid and non-cancelable directors and officers insurance
relating to events occurring prior to the Closing Date. The parties agree
that the fees and expenses incurred or to be incurred in connection with
such insurance policy, including any premiums related thereto, shall
constitute Transaction Expenses. Purchaser agrees (a) not to cancel or
otherwise amend or modify the terms of such insurance and (b) to reasonably
cooperate with the Shareholders Representative, the Company issuing and
underwriting such insurance policy and the broker relating thereto as
necessary or appropriate from time to time in connection with such
insurance and/or claims thereunder (it being understood that after the
Effective Time, none of the Purchaser, the Company or any of their
respective Affiliates shall have any obligation to incur any expenses in
connection with any such cooperation). Nothing contained in this Section
6.18 shall limit or eliminate any existing indemnity obligation that the
Company currently has to its directors and officers under any
indemnification or employment agreement, under the Company's Articles of
Incorporation or By-laws (in each case, as disclosed to Purchaser pursuant
to this Agreement) each as in effect on the date hereof) or under
applicable law."
1.7 ARTICLES OF INCORPORATION.
- --- -------------------------
(a) EXHIBIT A and EXHIBIT B to the Original Agreement are hereby
--------- ---------
deleted in their entirety and replaced with EXHIBIT A and EXHIBIT B hereto,
--------- ---------
respectively.
(b) Section 1.4 of the Original Agreement is hereby amended by
deleting "and restated in their entirety to read as set forth in EXHIBIT C
---------
hereto" and replacing it with the following: "as set forth in the exhibit to
the Delaware Certificate of Merger."
(c) EXHIBIT C to the Original Agreement is hereby deleted in its
---------
entirety.
4
ARTICLE II
MISCELLANEOUS PROVISIONS
2.1 AGREEMENT.
- --- ---------
Except as modified by this Amendment, the Original Agreement shall remain
in full force and effect, enforceable in accordance with its terms.
2.2 COUNTERPARTS.
- --- ------------
This Amendment may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute one agreement.
2.3 GOVERNING LAW.
- --- -------------
THIS AMENDMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK, OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL
LAW OF THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF
THIS AMENDMENT, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT OF
LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY
APPLY. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT OR ANY
RELATED DOCUMENT MAY BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY
EXECUTION AND DELIVERY OF THIS AMENDMENT, EACH PARTY HERETO HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF OR HIMSELF AND IN RESPECT OF ITS OR HIS PROPERTY AND ASSETS,
GENERALLY AND UNCONDITIONALLY THE JURISDICTION OF THE AFORESAID COURTS.
* * *
5
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
THE PURCHASER:
PALESTRA ACQUISITION CORP.
By: /s/ Charles J. O'Brien, Jr.
---------------------------------
Name: Charles J. O'Brien, Jr.
Title:
THE COMPANY:
CHEMICAL LEAMAN CORPORATION
By: /s/ David M. Boucher
---------------------------------
Name: David M. Boucher
Title: Senior Vice President &
Secretary
DAVID R. HAMILTON
CATHARINE C. HAMILTON
CATHARINE ELIZABETH HAMILTON
TENNESSEE ALEXIS HAMILTON
HAMILTON FAMILY TRUST
SAMUEL C. HAMILTON
GEORGE MCFADDEN
JOHN H. MCFADDEN
TRUSTEES U/W/O ALEXANDER B.
MCFADDEN, DECEASED, F/B/O JOHN,
MARY AND GEORGE MCFADDEN
TRUSTEES U/W/O GEORGE MCFADDEN,
DECEASED, F/B/O GEORGE MCFADDEN
TRUSTEES U/W/O GEORGE MCFADDEN
DECEASED, F/B/O JOHN H. MCFADDEN
TRUSTEES U/W/O GEORGE MCFADDEN,
DECEASED, F/B/O MARY JOSEPHINE
MCFADDEN
LESLEY TAYLOR
TRUSTEES F/B/O ELIZABETH CUTTING
MCFADDEN
EUGENE C. PARKERSON
DAVID M. BOUCHER
PHILIP J. RINGO
REUBEN M. ROSENTHAL
JACK H. ELROD
J. STEPHEN HAMILTON
LEON F. PALMER
DENNIS R. COPELAND
F.C. COLON-OSORIO
G. MICHAEL CRONK
KAREN SZABO LLOYD
FRANK LLOYD
By: /s/ George McFadden
---------------------------------
George McFadden
Attorney-in-Fact
DAVID R. HAMILTON
CATHARINE C. HAMILTON
CATHARINE ELIZABETH HAMILTON
TENNESSEE ALEXIS HAMILTON
HAMILTON FAMILY TRUST
SAMUEL C. HAMILTON
GEORGE MCFADDEN
JOHN H. MCFADDEN
TRUSTEES U/W/O ALEXANDER B.
MCFADDEN, DECEASED, F/B/O JOHN,
MARY AND GEORGE MCFADDEN
TRUSTEES U/W/O GEORGE MCFADDEN,
DECEASED, F/B/O GEORGE MCFADDEN
TRUSTEES U/W/O GEORGE MCFADDEN
DECEASED, F/B/O JOHN H. MCFADDEN
TRUSTEES U/W/O GEORGE MCFADDEN,
DECEASED, F/B/O MARY JOSEPHINE
MCFADDEN
LESLEY TAYLOR
TRUSTEES F/B/O ELIZABETH CUTTING
MCFADDEN
EUGENE C. PARKERSON
DAVID M. BOUCHER
PHILIP J. RINGO
REUBEN M. ROSENTHAL
JACK H. ELROD
J. STEPHEN HAMILTON
LEON F. PALMER
DENNIS R. COPELAND
F.C. COLON-OSORIO
G. MICHAEL CRONK
KAREN SZABO LLOYD
FRANK LLOYD
By: /s/ David R. Hamilton
---------------------------
David R. Hamilton
Attorney-in-Fact
CERTIFICATE OF MERGER
OF
PALESTRA ACQUISITION CORP.
INTO
CHEMICAL LEAMAN CORPORATION
Pursuant to Section 252 of the
Delaware General Corporation Law
The undersigned corporation organized and existing under and by
virtue of the General Corporation Law of Delaware.
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
NAME State of Incorporation
---- ----------------------
PALESTRA ACQUISITION Delaware
CORP.
CHEMICAL LEAMAN Pennsylvania
CORPORATION
SECOND: That an Agreement and Plan of Merger between the parties to
the merger has been approved, adopted, certified, executed and acknowledged by
each of the constituent corporations in accordance with the requirements of
Section 252 of the General Corporation Law of Delaware.
THIRD: That the name of the surviving corporation of the merger is
Chemical Leaman Corporation.
FOURTH: That the existing Articles of Incorporation of the surviving
corporation shall be amended as set forth in Exhibit A attached hereto.
---------
FIFTH: That the executed Agreement and Plan of Merger is on file at
the principal place of business of the surviving corporation, the address of
which is 102 Pickering Way, Exton, PA 19341-0200.
SIXTH: That a copy of the Agreement and Plan of Merger will be
furnished by the surviving corporation, on request and without cost, to any
stockholder of any constituent corporation.
SEVENTH: That the surviving corporation may be served with process in
the State of Delaware in any proceeding for enforcement of any obligation of the
constituent corporation of this State, as well as for enforcement of any
obligation of the surviving corporation arising from the merger, including any
suit or other proceeding to enforce the right of any stockholders as determined
in appraisal proceedings pursuant to the provisions of Section 262 of the
General Corporation Law of the State of Delaware, and irrevocably appoints the
Secretary of State of the State of Delaware as its agent to accept service of
process in any such suit or proceedings. The address to which a copy of such
process shall be mailed by the Delaware Secretary of State is 102 Pickering Way,
Exton, PA 19341-0200.
EIGHTH: That this Certificate of Merger shall be effective upon its
filing with the Secretary of State of Delaware.
* * * * * * * * * *
Dated: August __, 1998
CHEMICAL LEAMAN CORPORATION
By:______________________
Name:
Title:
(CHANGES) BUREAU USE ONLY:
DOCKETING STATEMENT DSCB: 15-134B (Rev 95) ___ REVENUE ____ LABOUR & INDUSTRY
___ OTHER ________________________
FILING FEE: NONE FILE CODE ________________________
FILED DATE _______________________
This form (file in triplicate) and all accompanying documents shall be mailed
to:
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
P.O.BOX 8722
HARRISBURG, PA 17105-8722
Part I. COMPLETE FOR EACH FILING:
Current name of entity or registrant affected by the submittal to
which this statement relates: (survivor or new entity if merger or
consolidation)
Chemical Leaman Corporation
----------------------------------------------------------------------------------------------------------------------
Entity number, if known: 647190 NOTE: ENTITY NUMBER is the computer index number assigned to an entity upon initial
------
filing in the Department of State.
Incorporation/qualification date in Pa.: March 2, 1977 State of Incorporation: Pennsylvania
------------- ------------
Federal Identification Number: ___________________________________________________________
Specified effective date, if any: Upon filing
----------------------------------------------------------
Part II. COMPLETE FOR EACH FILING This statement is being submitted with (check proper box):
_____ AMENDMENT: complete Section A only
x MERGER, CONSOLIDATION OR DIVISION: complete Section B, C or D
-----
_____ CONSOLIDATION: complete Section C
_____ DIVISION: complete Section D
_____ CONVERSION: complete Section A and E only
_____ STATEMENT OF CORRECTION: complete Section A only
_____ STATEMENT OF TERMINATION: complete Section H
_____ STATEMENT OF REVIVAL: complete Section G
_____ DISSOLUTION BY SHAREHOLDERS OR INCORPORATORS BEFORE COMMENCEMENT OF BUSINESS: complete Section F only
PART III. COMPLETE IF APPROPRIATE: The delayed effective date of the accompanying submittal is:
___________________________________________________________________
month day year hour, if any
DSCB: 15-134B (Rev 95)-2
_____ Section A. CHANGES TO BE MADE TO THE ENTITY NAMED IN PART I: (Check box/boxes which pertain)
______ Name: ____________________________________________________________________________________________________
______ Registered Office: _______________________________________________________________________________________
Number & street/RD number & box number City State Zip County
______ Purpose: _________________________________________________________________________________________________
______ Stock: aggregate number of shares authorized ______________________ (attach additional provisions, if any)
______ Term of Existence: _______________________________________________________________________________________
______ Other: ___________________________________________________________________________________________________
X SECTION B. MERGER (Complete Section A if any changes to surviving entity):
- ----
MERGING ENTITIES ARE: (List ONLY the MERGING ENTITIES-SURVIVOR IS LISTED IN PART 1)
1. Name: Chemical Leaman Corporation
--------------------------------------------------------------------------------------------------------
Entity Number, if known: 647190 Inc./quali. date in Pa.: 3/2/77 State of Incorporation: PA
--------------- --------------- -----
2. Name: Palestra Acquisition Corp.
--------------------------------------------------------------------------------------------------------
Entity Number, if known: _______________ Inc./quali. date in Pa.:_____________ State of Incorporation: DE
-------
Attach sheet containing above corporate information if there are any additional merging entities.
____ SECTION C. CONSOLIDATION (NEW entity information should be completed in Part 1. Also, complete and attach
DOCKETING STATEMENT DSCB:15-134A for the NEW entity formed.)
CONSOLIDATING ENTITIES ARE:
1. Name: ________________________________________________________________________________________________________
Entity Number, if known: _______________ Inc./quali. date in Pa.: _____________ State of Incorporation: ______
2. Name: ________________________________________________________________________________________________________
Entity Number, if known: _______________ Inc./quali. date in Pa.: _____________ State of Incorporation: ______
Attach sheet containing above corporate information if there additional consolidating entities.
_______ SECTION D. DIVISION (Forming NEW entity(s) named below. Also, complete
and attach DOCKETING STATEMENT DSCB:15-134A For EACH new
entity formed by division.)
_____________ 1. ______________________________________________________
Entity Number Name
_____________ 1. ______________________________________________________
Entity Number Name
Attach sheet if there are additional entities to be named:
CHECK ONE:
______ Entity named in Part I survives. (Any changes, complete Section
A)
______ Entity named in Part I does not survive.
_______ SECTION E. CONVERSION (Complete Section A)
CHECK ONE:
______ Converted from nonprofit to profit
______ Converted from profit to nonprofit
_______ SECTION F. DISSOLVED BY SHAREHOLDERS OR INCORPORATORS BEFORE
COMMMENCEMENT OF BUSINESS
_______ SECTION G. STATEMENT OF REVIVAL Entity named in Part I hereby revives
its charter or articles which were
forfeited by Proclamation or expired.
(Complete Section A if any changes
have been made to the revived
entity.)
_______ SECTION H. STATEMENT OF TERMINATION
_____________________ filed in the Department of State on
(type of filing made)
___________________________________ is/are hereby terminated.
month day year hour, if any
If merger, consolidation or division, list all entities involved, other
than that listed in Part I:
_____________ 1. ______________________________________________________
Entity Number Name
_____________ 2. ______________________________________________________
Entity Number Name
Attach sheet containing above information if there are additional
entities involved.
Microfilm Number________ Filed with the Department of State on___________
Entity Number_____________
Secretary of the Commonwealth
ARTICLES OF MERGER-DOMESTIC BUSINESS CORPORATION
DSCB: 15-1926(Rev 90)
In compliance with the requirements of 15 Pa.C.S.(S) 1926 (relating to
articles of merger or consolidation), the undersigned business corporations,
desiring to effect a merger, hereby state that:
1. The name of the corporation surviving the merger is: Chemical Leaman
---------------
Corporation
-----------
2. (CHECK AND COMPLETE ONE OF THE FOLLOWING):
X The surviving corporation is a domestic business corporation and the
---
(a) ADDRESS of its current registered office in this Commonwealth or
(b) NAME of its commercial registered office provider and the county
of venue is (the Department is hereby authorized to correct the
following information to conform to the records of the Department):
(a)_________________________________________________________________________
Number and Street City State Zip County
(b) c/o: CT Corporation System, 1635 Market Street, Philadelphia, PA 19103 Philadelphia
-----------------------------------------------------------------------------------
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office provider, the
county in (b) shall be deemed the county in which the corporation is located for
venue and official publication purposes.
_______ The surviving corporation is a qualified foreign business corporation
incorporated under the laws of _______________ and the (a) ADDRESS of its
current registered office in this Commonwealth or (b) NAME of its commercial
registered office provider and the county of venue is (the Department is hereby
authorized to correct the following information to conform to the records of the
Department):
(a)___________________________________________________________________
Number and Street City State Zip County
(b) c/o:______________________________________________________________
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office provider, the
county in (b) shall be deemed the county in which the corporation is located
for venue and official publication purposes.
______ The surviving corporation is a nonqualified foreign business corporation
incorporated under the laws of __________ and the address of its principal
office under the laws of such domiciliary jurisdiction is:
______________________________________________________________________
Number and Street City State Zip
3. The NAME and the ADDRESS of the registered office in this Commonwealth or
NAME of its commercial registered office provider and the county of venue
of each other domestic business corporation and qualified foreign business
corporation which is a party to the plan of merger are as follows:
NAME OF CORPORATION ADDRESS OF REGISTERED OFFICE OR NAME OF COMMERCIAL REGISTERED OFFICE PROVIDER COUNTY
C.T.Corporation System 1635 Market Street, Philadelphia, PA 19103 Philadelphia
------------------------------------------------------------------------------------------------------------------------
________________________________________________________________________________________________________________________
4. (CHECK, AND IF APPROPRIATE COMPLETE, ONE OF THE FOLLOWING):
X The plan of merger shall be effective upon filing these Articles of
----
Merger in the Department of State.
The plan of merger shall be effective on:__________________ at______________
----
Date Hour
5. The manner in which the plan of merger was adopted by each domestic corporation is as follows:
NAME OF CORPORATION MANNER OF ADOPTION
Chemical Leaman Corporation Adopted by the directors pursuant to 15 Pa. C.C.(S) 1924(a)
-----------------------------------------------------------------------------------------------
Palestra Acquisition Corp. Adopted by the directors pursuant to 15 Pa. C.C.(S) 1924(a)
-----------------------------------------------------------------------------------------------
6. (STRIKE OUT THIS PARAGRAPH IF NO FOREIGN CORPORATION IS A PARTY TO THE
MERGER). The plan was authorized, adopted or approved, as the case may be,
by the foreign business corporation (or each of the foreign business
corporations) party to the plan in accordance with the laws of the
jurisdiction in which it is incorporated.
7. (CHECK, AND IF APPROPRIATE COMPLETE, ONE OF THE FOLLOWING):
The plan of merger is set forth in full in Exhibit A attached hereto
and made a part hereof.
----
X Pursuant to 15 Pa.C.S.(S) 1901 (relating to omission of certain
----
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 set
forth in full in Exhibit A attached hereto and made a part hereof.
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:
102 Pickering Way Exton Pennsylvania 19341-0200
------------------------------------------------------------------------------------------------------------------
Number and street City State Zip County
IN TESTIMONY WHEREOF, the undersigned corporation or each undersigned
corporation has caused these Articles of Merger to be signed by a duly
authorized officer thereof this________ day of __________, 19_____.
Chemical Leaman Corporation Palestra Acquisition Corp.
- --------------------------- -------------------------------
(Name of Corporation) (Name of Corporation)
BY:________________________ BY:____________________________
(Signature) (Signature)
TITLE:_____________________ TITLE:_________________________
EXHIBIT A
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
________________
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
CHEMICAL LEAMAN CORPORATION
________________
In compliance with the Business Corporation Law of 1988 and pursuant
to authorizing resolutions of the board of directors, the articles of
incorporation of Chemical Leaman Corporation are hereby amended as follows:
A. The first paragraph of Section 5 of the Articles of Incorporation
is hereby deleted and replaced with the following:
"5. The aggregate number of shares which the Corporation shall have
authority to issue is Eleven Thousand (11,000) shares, of which One
Thousand (1,000) shares shall be shares of Preferred Stock without par
value, and Ten Thousand (10,000) shares shall be shares of Common Stock
with a par value of $0.01 per share. Nothing contained herein shall amend
or modify in any way the Statements With Respect to Shares relating to the
Corporation's outstanding shares of Preferred Stock or adversely affect in
any way the terms thereof."
B. The Articles of Incorporation are hereby amended by adding the
following new Paragraphs 8, 9 and 10 thereto:
"8. A director of the corporation shall not be personally liable to
the corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its shareholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, or (iii) for any transaction from which the director derived
any improper personal benefit. If the Business Corporation Law is amended after
the date of incorporation of the corporation to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the corporation shall be eliminated or limited to the
fullest extent permitted by the Business Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the shareholders
of the corporation shall not adversely affect any right or protection of a
director of the corporation existing at the time of such repeal or modification.
9. For the management of the business and for the conduct of the affairs
of the corporation, and in further definition, limitation and regulation of the
powers of the corporation and of its directors and shareholders, it is further
provided:
(a) In furtherance and not in limitation of the powers conferred by the
laws of the Commonwealth of Pennsylvania, the Board of Directors is expressly
authorized and empowered:
(i) to make, alter, amend or repeal the By-laws in any manner not
inconsistent with the laws of the Commonwealth of Pennsylvania or these Articles
of Incorporation;
(ii) without the assent or vote of the shareholders, to authorize
and issue securities and obligations of the corporation, secured or unsecured,
and to include therein such provisions as to redemption, conversion or other
terms thereof as the Board of Directors in its sole discretion may determine,
and to authorize the mortgaging or pledging, as security therefor, of any
property of the corporation, real or personal, including after-acquired
property;
(iii) to determine whether any, and if any, what part, of the net
profits of the corporation or of its surplus shall be declared in dividends and
paid to the shareholders, and to direct and determine the use and disposition of
any such net profits or such surplus; and
(iv) to fix from time to time the amount of net profits of the
corporation or of its surplus to be reserved as working capital or for any other
lawful purpose.
In addition to the powers and authorities herein or by statute expressly
conferred upon it, the Board of Directors may exercise all such powers and do
all such acts and things as may be exercised or done by the corporation,
subject, nevertheless, to the provisions of the laws of the Commonwealth of
Pennsylvania, of these Articles of Incorporation and of the By-laws of the
corporation.
(b) Any director or any officer elected or appointed by the shareholders
or by the Board of Directors may be removed at any time in such manner as shall
be provided in the By-laws of the corporation.
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(c) From time to time any of the provisions of these Articles of
Incorporation may be altered, amended, or repealed, and other provisions
authorized by the laws of the Commonwealth of Pennsylvania at the time in force
may be added or inserted, in the manner and at the time prescribed by said laws,
and all rights at any time conferred upon the shareholders of the corporation by
these Articles of Incorporation are granted subject to the provisions of this
paragraph (c).
10. Whenever a compromise or arrangement is proposed between the
corporation and its creditors or any class of them and/or between the
corporation and its shareholders or any class of them, any court of equitable
jurisdiction within the Commonwealth of Pennsylvania may, on the application in
a summary way of the corporation or of any creditor or shareholder thereof or on
the application of any receiver or receivers appointed for the corporation or on
the application of trustees in dissolution, order a meeting of the creditors or
class of creditors, and/or of the shareholders or class of shareholders of the
corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the shareholders or class of
shareholders of the corporation, as the case may be, agree on any compromise or
arrangement and to any reorganization of the corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the shareholders or class of shareholders, of the corporation, as the case
may be, and also on the corporation."
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