Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Merger Agreement") is entered into
as of July 24, 1997 by and between EASTERN TELECOM INC., a Georgia corporation
("ETI"), and INTERSTATE FIBERNET, INC., a Delaware corporation formerly known as
ITC Transmission Systems, Inc. ("IFN" or the "Surviving Corporation").
WHEREAS, IFN is a corporation duly organized and existing under the
laws of the State of Delaware;
WHEREAS, ETI is a corporation duly organized and existing under the
laws of the State of Georgia;
WHEREAS, IFN has an authorized capitalization of Ten Thousand (10,000)
shares of Common Stock, par value $.01 per share ("IFN Common Stock");
WHEREAS, 100 shares of IFN Common Stock are currently outstanding, all
of which are owned by ITC Holding Company, Inc. (the "IFN Stockholder");
WHEREAS, ETI has an authorized capitalization of One Hundred Thousand
(100,000) shares of Common Stock, par value $1.00 per share ("ETI Common
Stock");
WHEREAS, 530 shares of ETI Common Stock are currently outstanding, all
of which are owned by ITC Holding Company, Inc. (the "ETI Stockholder");
WHEREAS, each of the respective Boards of Directors of IFN and ETI has
determined that it is advisable that ETI be merged into IFN (the "Merger") on
the terms and conditions hereinafter set forth and has, by resolutions duly
adopted, approved this Merger Agreement; and
WHEREAS, each of the respective Boards of Directors of IFN and ETI
has, by resolutions duly adopted and directed that this Merger Agreement be
submitted to the IFN Stockholder or the ETI Stockholder, as the case may be, for
approval; and
WHEREAS, by written consents, each dated July 23, 1997, the IFN
Stockholder and the ETI Stockholder have approved this Merger Agreement and
related documents, and the ETI Stockholder has waived the exercise of any
dissenting shareholder rights under Section 14-2-1302(1)(A) of the Georgia
Business Corporation Code, as amended (the "GBCC"), or any successor act; and
WHEREAS, the Merger is intended to qualify for federal income tax
purposes as a "reorganization" under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the parties hereby agree, in accordance with the
applicable provisions of the laws of the States of Delaware and Georgia and
subject to the conditions set forth herein, that ETI shall be merged into IFN,
and such parties further hereby adopt and agree to the following agreements,
terms and conditions relating to the Merger and the manner of carrying the same
into effect:
1. Merger. ETI shall be merged with and into IFN, and IFN shall be
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the surviving corporation (hereinafter sometimes referred to as the "Surviving
Corporation"). Subject to and in accordance with the terms and conditions of
this Merger Agreement, the General Corporation Law of the State of Delaware, as
amended (the "DGCL") and the GBCC, (i) this Merger Agreement (or in lieu thereof
a certificate of merger) shall be executed, acknowledged and filed with the
Secretary of State of the State of Delaware and the Secretary of State of the
State of Georgia, with such other documents, instruments or certificates as may
be required by the DGCL or the GBCC, and (ii) the Merger shall become effective
at 9:00 a.m. Eastern Standard Time on the 24th day of July, 1997 (the "Effective
Time"), and each document filed pursuant to the DGCL and the GBCC shall
expressly so state. At the Effective Time, the separate corporate existence of
ETI shall cease forthwith.
2. Governing Documents. (a) The Certificate of Incorporation of IFN
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as in effect immediately prior to the Effective Time shall be the Certificate of
Incorporation of the Surviving Corporation without change or amendment until
thereafter amended in accordance with the provisions thereof and applicable law.
(b) The Bylaws of IFN as in effect immediately prior to the Effective
Time shall be the Bylaws of the Surviving Corporation without change or
amendment until thereafter amended in accordance with the provisions thereof and
applicable law.
3. Officers and Directors. The persons who are officers and
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directors of IFN immediately prior to the Effective Time shall, after the
Effective Time, be the officers and directors of the Surviving Corporation,
without change until their successors have been duly elected and qualified.
4. Effect of Merger. At the Effective Time, the separate corporate
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existence of ETI shall cease, and the Surviving Corporation shall possess all
the rights, privileges, powers and franchises of a public and private nature and
be subject to all the restrictions, disabilities and duties of ETI; and all and
singular, the rights, privileges, powers and franchises of ETI, and all
property, real, personal and mixed, and all debts due to ETI on whatever
account, as well as for share subscriptions and all other things in action,
shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and
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every other interest shall be thereafter as effectually the property of the
Surviving Corporation as they were of ETI, and the title to any real estate
vested by deed or otherwise 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
ETI shall be preserved unimpaired, and all debts, liabilities and duties of ETI
shall thenceforth attach to the Surviving Corporation and may be enforced
against it to the same extent as if such debts, liabilities and duties had been
incurred or contracted by it. All corporate acts, plans, policies, agreements,
arrangements, approvals and authorizations of ETI, the ETI Stockholder, Board of
Directors and committees thereof, officers and agents which were valid and
effective immediately prior to the Effective Time shall be taken for all
purposes as the acts, plans, policies, agreements, arrangements, approvals and
authorizations of the Surviving Corporation and shall be as effective and
binding thereon as the same were with respect to ETI. The employees and agents
of ETI shall become the employees and agents of the Surviving Corporation and
continue to be entitled to the same rights and benefits which they enjoyed as
employees and agents of ETI.
5. Further Assurances Regarding ETI. From time to time, as and when
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required by the Surviving Corporation or by its successors and assigns, there
shall be executed and delivered by the former officers and directors of ETI on
behalf of ETI such deeds, assignments and other instruments, and there shall be
taken or caused to be taken by them all such further and other action, as shall
be appropriate or necessary in order to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation the title to and possession of all
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of ETI and otherwise to carry out the purposes of this Merger
Agreement, and the officers and directors of the Surviving Corporation are fully
authorized, in the name and on behalf of ETI or otherwise, to take any and all
such action and to execute and deliver any and all such deeds, assignments and
other instruments.
6. Conversion of Shares. At the Effective Time, by virtue of the
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Merger and without any action on the part of the holder thereof, each share of
ETI Common Stock outstanding immediately prior to the Effective Time, whether
certificated or uncertificated, shall be converted into one fully paid and
nonassessable share of IFN Common Stock. No fractional shares of Common Stock
shall be issued pursuant to such conversion, and any fractions resulting from
such conversion shall be eliminated in each case by rounding upward to the
nearest whole share.
7. Stock Certificates; Uncertificated Shares. (a) At and after the
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Effective Time, all of the outstanding certificates which immediately prior to
the Effective Time represented shares of ETI Common Stock shall be deemed for
all purposes to evidence ownership of, and to represent shares of, IFN Common
Stock into which the shares of ETI Common Stock, as the case may be, formerly
represented by such certificates have been converted as herein provided, and no
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certificates representing such shares need be surrendered. The registered owner
on the books and records of ETI or its transfer agent of any such outstanding
stock certificate shall, until such certificate shall have been surrendered for
transfer or otherwise accounted for to the Surviving Corporation or its transfer
agent, have and be entitled to exercise any voting and other rights with respect
to and to receive any dividends and other distributions upon the shares of IFN
Common Stock evidenced by such outstanding certificate as above provided. After
the Effective Time, when any such certificate shall be surrendered for transfer
or otherwise accounted for to the Surviving Corporation or its transfer agent,
the certificates issued will reflect the name and state of incorporation of the
Surviving Corporation.
(b) At and after the Effective Time, with respect to any
uncertificated shares of ETI, the registered owner on the books and records of
ETI or its transfer agent shall, until a request shall have been made to the
Surviving Corporation or its transfer agent for certificated shares of the
Surviving Corporation, have and be entitled to exercise any voting and other
rights with respect to and to receive any dividends and other distributions upon
an equal number of shares of IFN Common Stock. At and after the Effective Time,
the ownership by such registered owner of uncertificated shares shall be
reflected on the books and records of IFN or its transfer agent, and, upon
request therefor by such registered owner to the Surviving Corporation pursuant
to the bylaws of the Surviving Corporation and applicable law, the certificates
issued to evidence any or all of such uncertificated shares will reflect the
name and state of incorporation of the Surviving Corporation.
8. Conditions. Consummation of the Merger and related transactions
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is subject to satisfaction of the following conditions prior to the Effective
Time:
(a) The Merger shall have been approved by the ETI Stockholder and the
IFN Stockholder, and all necessary action shall have been taken to authorize the
execution, delivery and performance of this Merger Agreement by ETI and IFN.
(b) All regulatory approvals necessary or desirable in connection with
the consummation of the Merger and the transactions contemplated thereby shall
have been obtained.
(c) No suit, action, proceeding or other litigation shall have been
commenced or threatened to be commenced which, in the opinion of ETI or IFN,
would pose a material restriction on or impair consummation of the Merger,
performance of this Merger Agreement or the conduct of the business of IFN after
the Effective Time, or create a risk of subjecting ETI or IFN, or their
respective shareholders, officers, or directors, to material damages, costs,
liability or other relief in connection with the Merger or this Merger
Agreement.
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9. Amendment. Subject to applicable law and subject to the rights of
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the ETI Stockholder further to approve any amendment which would have a material
adverse effect on such stockholder, this Merger Agreement may be amended,
modified or supplemented by written agreement of the parties hereto at any time
prior to the Effective Time (including after approval by the ETI Stockholder)
with respect to any of the terms contained herein.
10. Deferral or Abandonment. At any time prior to the Effective
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Time, this Merger Agreement may be terminated and the Merger may be abandoned or
the time of consummation of the Merger may be deferred for a reasonable time by
the Board of Directors of either ETI or IFN or both, notwithstanding approval of
this Merger Agreement by the ETI Stockholder or the IFN Stockholder, or both, if
circumstances arise which, in the opinion of the Board of Directors of ETI or
IFN, make the Merger inadvisable or such deferral of the time of consummation
advisable.
11. Governing Law. This Merger Agreement shall be governed by and
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construed in accordance with the laws of the State of Georgia applicable to
contracts entered into and to be performed wholly within the State of Georgia,
except to the extent that the laws of the State of Delaware are mandatorily
applicable to the Merger.
12. Counterparts. This Merger Agreement may be executed in any
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number of counterparts each of which when taken alone shall constitute an
original instrument and when taken together shall constitute but one and the
same Agreement.
13. Further Assurances of ETI and IFN. ETI and IFN agree to execute
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any and all documents, and to perform such other acts, which may be necessary or
expedient to further the purposes of this Merger Agreement.
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IN WITNESS WHEREOF, ETI and IFN have caused this Agreement and Plan of
Merger to be signed by their respective duly authorized officers and delivered
as of this 24th day of July, 1997.
EASTERN TELECOM, INC.
A Georgia corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer and
President
ATTEST
By: /s/ J. Xxxxxxx Xxx
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Name: J. Xxxxxxx Xxx
Title: Assistant Secretary
INTERSTATE FIBERNET, INC.
A Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer and
President
ATTEST:
By: /s/ J. Xxxxxxx Xxx
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Name: J. Xxxxxxx Xxx
Title: Assistant Secretary
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CERTIFICATE OF THE SECRETARY OF INTERSTATE FIBERNET, INC.,
A DELAWARE CORPORATION
The undersigned, the Secretary of Interstate FiberNet, Inc. a Delaware
corporation ("IFN"), does hereby certify that the Agreement and Plan of Merger
(the "Merger Agreement") to which this Certificate is attached, relating to the
merger of Eastern Telecom, Inc., a Georgia corporation, with and into IFN, after
first having been duly adopted and approved by the Board of Directors of IFN and
executed and acknowledged by IFN in accordance with Section 252 of the DGCL, has
been duly approved and adopted by the sole stockholder of IFN entitled to vote
thereon in accordance with Section 252 of the DGCL, as of July 23, 1997 by
written consent in accordance with Section 228 of the DGCL.
This Certificate shall be deemed an integral part of the Merger Agreement
to which it is attached.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the
24th day of July, 1997.
/s/ J. Xxxxxxx Xxx
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J. Xxxxxxx Xxx
Assistant Secretary
CERTIFICATE OF THE SECRETARY OF EASTERN TELECOM, INC.,
A GEORGIA CORPORATION
The undersigned, the Secretary of Eastern Telecom, Inc., a Georgia
corporation ("ETI"), does hereby certify that the Agreement and Plan of Merger
(the "Merger Agreement") to which this Certificate is attached, relating to the
merger of ETI with and into Interstate FiberNet, Inc., a Delaware corporation
("IFN"), after first having been duly adopted and approved by the Board of
Directors of ETI and executed and acknowledged by ETI in accordance with Section
14-2-120 of the GBCC, has been duly approved and adopted by the sole stockholder
of ETI entitled to vote thereon in accordance with Section 14-2-1103 of the
GBCC, as of July 23, 1997 by written consent in accordance with Section 14-2-704
of the GBCC.
This Certificate shall be deemed an integral part of the Merger Agreement
to which it is attached.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the
24th day of July, 1997.
/s/ J. Xxxxxxx Xxx
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J. Xxxxxxx Xxx
Assistant Secretary
