Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Merger Agreement") is entered into
as of July 24, 1997 by and between ITC TRANSMISSION SYSTEMS II, INC., a Delaware
corporation ("Transmission II"), and INTERSTATE FIBERNET, INC., a Delaware
corporation formerly known as ITC Transmission Systems, Inc. ("IFN" or the
"Surviving Corporation").
WHEREAS, IFN and Transmission II are each corporations duly organized
and existing under the laws of the State of Delaware;
WHEREAS, IFN has an authorized capitalization of Ten Thousand (10,000)
shares of Common Stock, par value $.01 per share ("IFN Common Stock");
WHEREAS, 630 shares of IFN Common Stock are currently outstanding, all
of which are owned by ITC Holding Company, Inc. (the "IFN Stockholder");
WHEREAS, Transmission II has an authorized capitalization of Ten
Thousand (10,000) shares of Common Stock, par value $.01 per share
("Transmission II Common Stock");
WHEREAS, 1,000 shares of Transmission II Common Stock are currently
outstanding, all of which are owned by ITC Holding Company, Inc. (the
"Transmission II Stockholder");
WHEREAS, each of the respective Boards of Directors of IFN and
Transmission II has determined that it is advisable that Transmission II 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
Transmission II has, by resolutions duly adopted and directed that this Merger
Agreement be submitted to the IFN Stockholder or the Transmission II
Stockholder, as the case may be, for approval; and
WHEREAS, by written consents, each dated July 23, 1997, the IFN
Stockholder and the Transmission II Stockholder have approved this Merger
Agreement and related documents; 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 State of Delaware and subject to
the conditions set forth herein, that Transmission II 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. Transmission II shall be merged with and into IFN, and
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IFN shall be 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 and the General Corporation Law of the State
of Delaware, as amended (the "DGCL"), (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, with such other documents,
instruments or certificates as may be required by the DGCL, and (ii) the Merger
shall become effective [at 9:15 a.m. Eastern Standard Time on the 24th day of
July, 1997] (the "Effective Time"), and each document filed pursuant to the DGCL
shall expressly so state. At the Effective Time, the separate corporate
existence of Transmission II 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 Certifcate 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 Transmission II 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 Transmission II; and all and singular, the rights, privileges, powers and
franchises of Transmission II, and all property, real, personal and mixed, and
all debts due to Transmission II 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 every other interest shall be thereafter as effectually the property of
the Surviving Corporation as they were of Transmission II, 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
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of creditors and all liens upon any property of Transmission II shall be
preserved unimpaired, and all debts, liabilities and duties of Transmission II
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 Transmission II, the Transmission
II 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 Transmission II.
The employees and agents of Transmission II 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 Transmission
II.
5. Further Assurances Regarding Transmission II. From time to time,
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as and when required by the Surviving Corporation or by its successors and
assigns, there shall be executed and delivered by the former officers and
directors of Transmission II on behalf of Transmission II 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
Transmission II 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 Transmission II 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
Transmission II 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 Transmission II 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 Transmission II Common Stock, as the
case may be, formerly represented by such certificates have been converted as
herein provided, and no certificates representing such shares need be
surrendered. The
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registered owner on the books and records of Transmission II 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 Transmission II, the registered owner on the books and
records of Transmission II 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 Transmission II
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 Transmission II 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 Transmission II
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 Transmission II or
IFN, or their respective shareholders, officers, or directors, to material
damages, costs, liability or other relief in connection with the Merger or
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this Merger Agreement.
9. Amendment. Subject to applicable law and subject to the rights of
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the Transmission II 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
Transmission II Stockholder) with respect to any of the terms contained herein.
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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 Transmission II or IFN or both, notwithstanding
approval of this Merger Agreement by the Transmission II Stockholder or the IFN
Stockholder, or both, if circumstances arise which, in the opinion of the Board
of Directors of Transmission II 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 Delaware applicable to
contracts entered into and to be performed wholly within the State of Delaware.
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 Transmission II and IFN. Transmission II
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and IFN agree to execute 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, Transmission II 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.
ITC TRANSMISSION SYSTEMS II, INC.
A Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer and President
ATTEST
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇
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Name: J. ▇▇▇▇▇▇▇ ▇▇▇
Title: Asst. Secretary
INTERSTATE FIBERNET, INC.
A Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer and President
ATTEST:
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇
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Name: J. ▇▇▇▇▇▇▇ ▇▇▇
Title: Asst. Secretary
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CERTIFICATE OF THE SECRETARY OF INTERSTATE FIBERNET, INC.,
A DELAWARE CORPORATION
The undersigned, the Assistant 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 ITC Transmission Systems II, Inc., a Delaware 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
251 of the DGCL, has been duly approved and adopted by the sole stockholder of
IFN entitled to vote thereon in accordance with Section 251 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. ▇▇▇▇▇▇▇ ▇▇▇
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J. ▇▇▇▇▇▇▇ ▇▇▇
Assistant Secretary
CERTIFICATE OF THE SECRETARY OF ITC TRANSMISSION SYSTEMS, II, INC.,
A DELAWARE CORPORATION
The undersigned, the Assistant Secretary of ITC Transmission Systems II,
Inc. a Delaware corporation ("Transmission II"), does hereby certify that the
Agreement and Plan of Merger (the "Merger Agreement") to which this Certificate
is attached, relating to the merger of Transmission II with and into Interstate
FiberNet, Inc., a Delaware corporation, after first having been duly adopted and
approved by the Board of Directors of Transmission II and executed and
acknowledged by Transmission II in accordance with Section 251 of the DGCL, has
been duly approved and adopted by the sole stockholder of Transmission II
entitled to vote thereon in accordance with Section 251 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. ▇▇▇▇▇▇▇ ▇▇▇
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J. ▇▇▇▇▇▇▇ ▇▇▇
Assistant Secretary