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EXHIBIT 2.1
COPP ID # 0503710
FILED
STATE OF NORTH CAROLINA 3:30 pm
AUG 20 1999
ARTICLES OF MERGER Effective ____________
ELAINE F. MARSHALL
OF SECRETARY OF STATE
NORTH CAROLINA
THE J.H. HEAFNER COMPANY, INC.
A NORTH CAROLINA CORPORATION
INTO
HEAFNER TIRE GROUP, INC.
A DELAWARE CORPORATION
Pursuant to ss.ss. 55-11-07, 55-11-04, and 55-11-05 of the North
Carolina Business Corporation Act (the "NYBCA"), Heafner Tire Group, Inc., a
corporation organized under the laws of Delaware (the "Surviving Corporation"),
hereby submits these Articles of Merger for the purpose of merging The J.H.
Heafner Company, Inc., a corporation organized under the laws of North Carolina
(the "Merging Corporation"), with and into the Surviving Corporation (such
transaction being the "Merger").
1. With respect to each corporation which is a party to the Merger, the
Plan of Merger attached hereto as Exhibit A and made a part hereof was duly
authorized and approved by unanimous consent and in the manner prescribed by law
by the Board of Directors of the Merging Corporation and was duly authorized and
approved by a majority of the shareholders of the Merging Corporation as
required by the NCBCA and the General Corporation Law of Delaware (the "DGCL").
2. The Merging Corporation owns all of the outstanding shares of each
class of stock of the Surviving Corporation. Pursuant to Section 55-11-04 of the
NCBCA and Section 253 of the DGCL, the Merger does not require the vote of the
shareholders of the Surviving Corporation.
3. The Merger is permitted by the law of the state of incorporation of
each foreign entity which is a party to the Merger.
4. Each foreign entity which is a party to the merger has complied or
shall comply with the applicable laws of its state of incorporation regarding
such Merger.
5. These Articles of Merger shall be effective upon filing.
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This 10th day of August 1999.
Heafner Tire Group, Inc.,
a Delaware corporation
By: /s/ DONALD C. ROOF
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Name: Donald C. Roof
President and Chief Executive Officer
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EXHIBIT A
PLAN OF MERGER
THIS PLAN OF MERGER ("Plan") made as of August 10, 1999, by and
between Heafner Tire Group, Inc., a corporation organized under the laws of
Delaware ("Heafner") and The J. H. Heafner Company, Inc., a corporation
organized under the laws of North Carolina (the "Merging Corporation")
(collectively, Heafner and the Merging Corporation are herein referred to as
"Constituent Corporations").
W I T N E S S E T H:
WHEREAS, Heafner is a wholly-owned subsidiary of the Merging
Corporation;
WHEREAS, the Board of Directors of the Merging Corporation has
determined that it is advisable and in the best interests of such corporations
for the Merging Corporation to be merged with and into Heafner (the "Merger")
upon the terms and conditions set forth herein and in accordance with the
Delaware General Corporation Law and the North Carolina Business Corporation
Act for the sole purpose of re-domesticating the Surviving Corporation in the
State of Delaware;
WHEREAS, the Board of Directors of Merging Corporation intends for the
Merger to be effective for the sole purpose of reincorporating the Merging
Company in Delaware.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Subject to the terms and conditions contained herein,
at the Effective Time (as defined below), the Merging Corporation shall be
merged with and into Heafner, with Heafner being the surviving corporation (the
"Surviving Corporation"). Upon the effectiveness of the Merger, the Surviving
Corporation shall possess all of the rights, privileges, powers and franchises
of the Constituent Corporations, and all property (real, personal and mixed)
and other assets (tangible and intangible) belonging to the Constituent
Corporations shall be vested in the Surviving Corporation, and all such
property, assets, rights, privileges, powers and franchises shall thereafter
belong to the Surviving Corporation, and the title to any real estate vested by
deed or otherwise in the 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 the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities and duties of the Constituent
Corporations shall, following the Merger, 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 the Surviving Corporation. The
debts, liabilities and duties of the Merging Corporation which, following the
Merger, shall attach to and shall be assumed by 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 the Surviving Corporation shall
include, but not be limited to, (i) all debts, liabilities and duties of the
Merging Corporation under an Indenture dated as of May 15, 1998, among the
Merging Corporation, certain of its subsidiaries and First Union
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National Bank, as trustee, (ii) all debts, liabilities and duties of the
Merging Corporation under an Indenture dated as of December 1, 1998, among the
Merging Corporation, certain of its subsidiaries and First Union National Bank,
as trustee (the "Series D Indenture"), and the $150,000,000 Series D 10% Senior
Notes Due 2008 issued under the Series D Indenture.
1.2 Consummation of the Merger. Promptly following and subject to the
satisfaction of the conditions set forth in Article IV herein, the parties
hereto shall cause Articles of Merger to be filed with the Secretary of State
of North Carolina in such form as required by, and executed in accordance with,
the relevant provisions of the North Carolina Business Corporation Act.
Furthermore, promptly following and subject to the satisfaction of the
conditions set forth in Article IV herein, the Merging Corporation shall cause
a Certificate of Ownership and Merger to be filed with the Secretary of State
of Delaware in such form as required by, and executed in accordance with, the
relevant provisions of the Delaware General Corporation Law. The Merger shall
be effective upon the completed filing of the Articles of Merger and the
Certificate of Ownership and Merger (the "Effective Time").
1.3 Further Assurances. If at any time after the Effective Time the
Surviving Corporation shall consider or be advised that any further deeds,
assignments, assurances or any other acts are necessary, desirable or proper to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation,
the title to any property or right of the Constituent Corporations acquired or
to be acquired by reason, or as a result, of the Merger, the Merging
Corporation agrees that the Surviving Corporation and its officers shall
execute and deliver all such deeds, assignments and assurances and do all acts
necessary, desirable or proper to vest, perfect or confirm title to such
property or right in the Surviving Corporation, and the officers of the
Surviving Corporation are fully authorized in the name of the Merging
Corporation or otherwise to take any and all such action.
ARTICLE II
THE SURVIVING CORPORATION
2.1 Certificate of Incorporation. Following the Effective Time, the
Certificate of Incorporation of Heafner shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter amended or repealed
in accordance with the terms thereof and applicable law.
2.2 By-Laws. Following the Effective Time, the By-Laws of Heafner
shall be the By-Laws of the Surviving Corporation until amended or repealed in
accordance with the provisions thereof, the Certificate of Incorporation of the
Surviving Corporation and applicable law.
2.3 Directors. Following the Effective Time, the directors of Merging
Corporation shall continue to be the directors of the Surviving Corporation
until their respective successors are duly elected and qualified in the manner
provided in the By-Laws and the Certificate of Incorporation of the Surviving
Corporation and applicable law, or until their earlier resignation or removal.
2.4 Officers. Following the Effective Time, the officers of the
Merging Corporation shall be the officers of the Surviving Corporation until
their successors are duly elected and qualified in the manner provided in the
By-Laws and the Certificate of Incorporation of the
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Surviving Corporation and applicable law, or until their earlier resignation or
removal.
ARTICLE III
CONVERSION AND CANCELLATION OF SHARES, WARRANTS AND OPTIONS
3.1 Conversion and Cancellation of Shares, Warrants and Options. As of
the Effective Time, by virtue of the Merger and without any further action on
the part either of the Constituent Corporations or any holder of any of the
capital stock thereof or any holder of any warrants or options for such capital
stock:
(a) Each issued and outstanding share of Class A Common
Stock of the Merging Corporation shall be converted into the right to
receive one share of Class A Common Stock of Heafner.
(b) Each issued and outstanding share of Class B Common
Stock of the Merging Corporation shall be converted into the right to
receive one share of Class B Common Stock of Heafner.
(c) Each issued and outstanding share of Series A
Preferred Stock of the Merging Corporation shall be converted into the
right to receive one share of Series A Preferred Stock of Heafner.
(d) Each issued and outstanding share of Series B
Preferred Stock of the Merging Corporation shall be converted into the
right to receive one share of Series B Preferred Stock of Heafner.
(e) Each warrant to purchase Class A Common Stock of the
Merging Corporation issued and outstanding shall be converted into a
right to receive a warrant to purchase Class A Common Stock of
Heafner.
(f) Each option to purchase Class A Common Stock of the
Merging Corporation issued and outstanding shall be converted into a
right to receive an option to purchase Class A Common Stock of
Heafner.
(g) Each share of Class A Common Stock of Heafner issued
and outstanding and owned by Merging Corporation immediately prior to
the Effective Time shall cease to exist and shall be deemed cancelled,
retired and eliminated.
3.2 Equal Exchange. The exchange and conversion of the warrants and
the options of the Merging Corporation into warrants and options of the
Surviving Corporation is an equal exchange and will not result in a
modification, extension or renewal of any warrant or option under applicable
tax laws.
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ARTICLE IV
CONDITIONS TO CLOSING
The obligations of the Constituent Corporations to consummate the
transactions contemplated by this Plan are subject only to the approval of the
Merger at or before the Effective Time, by the affirmative vote or by the
written consent of a majority of the shareholders of the Merging Corporation
pursuant to Section 55-11-04 of the North Carolina Business Corporation Act.
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IN WITNESS WHEREOF, the parties hereto have executed this Plan as of
the date first written above.
THE J. H. HEAFNER COMPANY, INC., a North
Carolina corporation
By: /s/ Donald C. Roof
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Donald Roof
President and Chief Executive Officer
HEAFNER TIRE GROUP, INC, a Delaware
corporation
By: /s/ Donald C. Roof
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Name: Donald C. Roof
President and Chief Executive Officer