Boyd Bros Transportation Inc – ‘8-K’ for 12/8/97 – EX-2.2

As of:  Friday, 12/19/97   ·   For:  12/8/97   ·   Accession #:  950144-97-13512   ·   File #:  0-23948

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Current Report   —   Form 8-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Boyd Bros. Transportation Inc. Form 8-K                5     15K 
 2: EX-2.1      Acquisition Agreement                                 51    196K 
 3: EX-2.2      Plan of Merger                                         5     15K 
 4: EX-99.1     Press Release                                          2     12K 

EX-2.2   —   Plan of Merger
Exhibit Table of Contents

EX-2.2
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 EXHIBIT 2.1.1

PLAN OF MERGER

       THIS PLAN OF MERGER (hereinafter referred to as the "Plan of Merger")
is by and between W.T. ACQUISITION CORP., an Alabama corporation (sometimes     
hereinafter referred to as "Sub" or "Surviving Corporation") and WELBORN        
TRANSPORT, INC., an Alabama corporation ("Welborn") (Sub and Welborn are        
sometimes hereinafter collectively referred to as the "Constituent              
Corporations").                                                                 

W I T N E S S E T H:

     The following constitutes the terms and conditions to the merger of
Welborn with and into Sub:                                                      

1.       Merger.                                              

               1.1 Names of Constituent Corporations; Merger. The names of
the corporations proposing to merge hereunder are W.T. Acquisition Corp., an    
Alabama corporation, and Welborn Transport, Inc., an Alabama corporation. At the
Effective Time (as defined in Section 1.2 hereof), Welborn shall be merged with 
and into Sub and the separate existence of Welborn shall cease. The Constituent 
Corporations shall become a single corporation which shall be Sub and which     
shall continue in existence as the Surviving Corporation under the name "Welborn
Transport, Inc." Except as otherwise specifically set forth herein, the         
identity, existence, purposes, powers, franchises, rights and immunities of the 
Surviving Corporation shall continue unaffected and unimpaired by the merger.   

                  1.2 Effective Time. This Plan of Merger shall become effective
at the time the Articles of Merger referred to in Section 4 hereof have been    
filed as required by the laws of the State of Alabama (the "Effective Time").   

2.       Terms and Conditions of the Merger.                  

         2.1 Articles of Incorporation and Bylaws of Surviving
Corporation. At the Effective Time, the Articles of Incorporation and Bylaws of 
Sub as in effect immediately prior to the Effective Time shall be the Articles  
of Incorporation and Bylaws of the Surviving Corporation, except that the       
Articles of Incorporation and Bylaws of the Sub shall be amended to change the  
name to "Welborn Transport, Inc.," and otherwise shall continue as the Articles 
of Incorporation and Bylaws of the Surviving Corporation until altered or       
amended as provided therein or in accordance with the laws of the State of      
Alabama.                                                                        

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               2.2 Officers and Directors of the Surviving Corporation. At
the Effective Time, the officers and directors of the Sub shall be deemed to be 
the officers and directors of the Surviving Corporation until their successors  
have been duly elected and qualified.                                           

            2.3 Property and Liabilities. At the Effective Time, the
separate existence of Welborn shall cease and Welborn shall be merged with and  
into Sub as the Surviving Corporation. The Surviving Corporation shall from and 
after the Effective Time possess all the rights, privileges, immunities and     
franchises, of a public as well as private nature, of each Constituent          
Corporation. Ownership of, and title to, all property, real, personal and mixed,
and all debts due on any account, including subscriptions to shares, and all    
other choses in action, and every other interest of, or belonging to, or due to 
each Constituent Corporation shall be vested in the Surviving Corporation. The  
title to any real estate or any interest therein vested in either Constituent   
Corporation shall not revert to any predecessor in interest, or in any way      
become impaired by reason of the merger. All liabilities and obligations of the 
Constituent Corporations shall be the liabilities and obligations of the        
Surviving Corporation. Any claim of, or action or pending proceeding by, or     
against, the Constituent Corporations may be prosecuted as if the merger had not
taken place, or the Surviving Corporation may be substituted in any such action 
or proceeding. Neither the rights of creditors nor any claims upon the property 
of the Constituent Corporations shall be impaired by the merger.                

 3.       Manner and Basis of Conversion and Exchange of Shares.

        3.1 Stock of Sub. Each share of capital stock of Sub
outstanding immediately prior to the Effective Time shall continue in effect,   
unchanged, as a share of capital stock of Surviving Corporation, and these      
shares shall be the only outstanding shares of capital stock of the Surviving   
Corporation following the Effective Time.                                       

            3.2 Stock of Welborn. All of the common stock of Welborn
issued and outstanding immediately prior to the Effective Time shall, at the    
Effective Time, be exchanged for and converted into, and become rights to       
receive (i) Three Hundred Ninety Three Thousand Nine Hundred Forty shares of the
common stock, $.001 par value, of Boyd Bros. Transportation Inc. ("Parent"),    
(ii) a promissory note in the amount of Two Million Eight Hundred Seventy-Five  
Thousand Dollars ($2,875,000.00) (the "Cash Consideration Note") and (iii) a    
promissory note in the amount of Three Hundred Seventy-Five Thousand Dollars    
($375,000.00) (the "Escrow Cash Note"; the Cash Consideration Note and the      
Escrow Cash Note referred to together as the "Notes"). The stock and payment    
under such promissory notes shall be allocated and distributed among the persons
who are shareholders of Welborn immediately prior to the merger in the manner   
set forth on Schedule 1 hereto. All treasury shares of Welborn, if any, shall be
cancelled and cease to exist as of the Effective Time.                          

              3.3 Exchange of Share Certificate.  At the Effective Time,
each non-dissenting holder of an outstanding certificate or certificates which  
prior thereto represented shares of capital stock of Welborn shall surrender the
same, duly endorsed (with signatures guaranteed) and executed                   

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as the Surviving Corporation may require, to the Surviving Corporation for      
cancellation, and such shareholder shall receive in exchange therefor, upon such
surrender, his allocable share of the stock of Parent and such shareholder's    
sole rights shall be to receive common stock of Parent as set forth in Section  
3.2.                                                                            

4.       Miscellaneous.                     

                  Following the approval of the shareholders of Welborn and Sub,
Welborn and Sub shall cause Articles of Merger and such other documents as may  
be required under the laws of the State of Alabama to be executed and the       
Surviving Corporation shall cause such Articles of Merger and other documents to
be filed as required by the laws of the State of Alabama, and shall cause all   
fees with respect thereto to be paid and all notices with respect thereto to be 
properly given or published. This Plan of Merger may be abandoned by the board  
of directors of either Constituent Corporation at any time prior to the filing  
of the Articles of Merger.                                                      

[Signatures appear on following page.]

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                  W.T. ACQUISITION CORP.

                                ____________________________________

                                By:_________________________________

                                Name:_______________________________

                                Title:______________________________

                   WELBORN TRANSPORT, INC.

                                ____________________________________

                                By:_________________________________

                                Name:_______________________________

                                Title:______________________________

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Schedule 1

ALLOCATION AND DISTRIBUTION OF
 BOYD BROS. TRANSPORTATION INC. SHARES AND
 PRINCIPAL AMOUNT UNDER THE NOTES RECEIVED
AS A RESULT OF THE MERGER OF WELBORN TRANSPORT, INC.
 INTO W.T. ACQUISITION CORP.

                                                        [Enlarge/Download Table]

                           PAYMENT UNDER            PAYMENT UNDER                  NUMBER OF  
                           ESCROW CASH              CASH CONSIDERATION             SHARES TO  
SHAREHOLDER                NOTE                     NOTE                           BE ISSUED  
----------------------------------------------------------------------------------------------
                                                                                              
Miller Welborn             $ 125,000.01             $  958,333.36                  262,626.665

Steven Rumsey              $ 249,999.99             $1,916,666.64                  131,313.335

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