Exhibit 2.3
STOCK ASSIGNMENT AND CONTRIBUTION AGREEMENT
This STOCK ASSIGNMENT AND CONTRIBUTION AGREEMENT (this "AGREEMENT") is made
and entered into as of July 25, 1997 by and between ITC HOLDING COMPANY, INC., a
Delaware corporation ("ITC Holding"); ITC/\DELTACOM, INC., a Delaware
corporation ("ITC/\"); INTERSTATE FIBERNET, INC., a Delaware corporation
formerly known as ITC Transmission Systems, Inc. ("IFN"); Gulf States
Transmission Systems, Inc., a Delaware corporation ("GSTS"); and DeltaCom, Inc.,
an Alabama corporation ("DeltaCom") (collectively, the "Companies").
WHEREAS, each of the Companies is party to that certain Placement Agreement
dated May 29, 1997 (the "PLACEMENT AGREEMENT"), pursuant to which ITC/\ issued
and sold to the Placement Agents (as defined in the Placement Agreement)
$200,000,000 in aggregate principal amount of 11% Senior Notes due 2007 (the
"NOTES"); and
WHEREAS, ITC/\ and United States Trust Company of New York (the "TRUSTEE")
have entered into that certain Indenture dated June 3, 1997 (as amended,
restated, supplemented or otherwise modified from time to time, the
"INDENTURE"), pursuant to which ITC/\ issued the Notes on June 3, 1997;
WHEREAS, on June 3, 1997 pursuant to the Placement Agreement and the
Indenture, ITC/\ caused to be deposited with the Trustee proceeds from the
sale of the Notes in the amount of $194 million (the "FUNDS");
WHEREAS, pursuant to, and in accordance with the provisions of, that
certain Pledge and Security Agreement dated as of June 3, 1997 (the "PLEDGE
AGREEMENT") the Trustee invested the Funds in the Collateral (as more fully
described in the Pledge Agreement), which has been held by the Trustee for the
benefit of the Holders of the Notes to secure ITC/\'s obligation to (i)
provide for payment in full of the first six scheduled interest payments due on
the Notes, (ii) secure repayment of the principal, premium and interest on the
Notes in the event that the Notes become due and payable prior to such time as
the first six scheduled interest payments thereon shall have been paid in full
and (iii) redeem all of the Notes in the event that the Reorganization (as
defined in the Indenture) were not consummated by September 15, 1997;
WHEREAS, consummation of the Reorganization is a condition precedent to
disbursement by the Trustee pursuant to Section 7(c) of the Pledge Agreement of
certain Funds and/or Cash Equivalents to, or as directed by, ITC/\;
WHEREAS, the respective Boards of Directors of each of ITC Holding and
ITC/\ have, by resolutions duly adopted, approved and authorized all actions
necessary or appropriate, in the judgment of officers of the respective
corporations, to consummate the Reorganization; and
WHEREAS, as part of the Reorganization, the officers of ITC Holding have
determined that it is in the best interests of ITC Holding to assign and
contribute to ITC/\ all of the shares of capital stock of each of IFN, GSTS
and DeltaCom owned by ITC Holding;
NOW, THEREFORE, in consideration of the mutual promises set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. Defined Terms. Unless otherwise specified or defined herein,
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capitalized terms used herein shall have the meanings ascribed to them in the
Pledge Agreement.
2. Assignment and Acceptance. Effective as of the date hereof, ITC
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Holding hereby transfers and assigns to ITC/\, and ITC/\ hereby accepts, all of
ITC Holding's ownership interests in IFN, GSTS and DeltaCom, consisting of the
following:
(i) all of the outstanding capital stock of IFN, consisting of 1,630 shares
of common stock, par value $.01 per share, all of which shares are duly
authorized, validly issued, fully paid and nonassessable;
(ii) all of the outstanding capital stock of GSTS, consisting of 1,000
shares of common stock, par value $.01 per share, all of which shares are duly
authorized, validly issued, fully paid and nonassessable; and
(iii) all of the outstanding capital stock of DeltaCom, consisting of
80,000 shares of common stock, par value $.01 per share, all of which shares are
duly authorized, validly issued, fully paid and nonassessable.
3. Further Agreements. ITC Holding and ITC/\ hereby direct, and each of
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IFN, GSTS or DeltaCom, as the case may be, hereby agree (in each case subject to
their respective bylaws and certificates of incorporation and applicable law)
(i) to take all actions necessary or appropriate to reflect in their official
corporate and stock records the assignment and transfer of stock effected by
this Agreement; (ii) to cancel any stock certificates issued and outstanding in
the name of ITC Holding; and (iii) to issue such stock certificates as may be
requested by ITC/\ to evidence ITC/\'s record ownership of such stock.
4. Effectiveness of Agreement. The time of effectiveness of this
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Agreement shall be concurrent with the effectiveness of the First Union Release.
5. Section Headings. Section headings contained in this Agreement are
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inserted for convenience of reference only, shall not be deemed to be a part of
this
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Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
6. Governing Law. This Agreement, the rights and obligations of the
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parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of the State of Delaware (but not
including the choice of law rules thereof).
7. Counterparts. To facilitate execution, this Agreement may be executed
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in as many counterparts as may be required. It shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart, but it shall be
sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties.
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IN WITNESS WHEREOF, each party has executed this Stock Assignment and
Contribution Agreement by its duly authorized representative as of the date
first above written.
ITC HOLDING COMPANY, INC., a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxx
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Its: Chairman and Chief Executive Officer
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ITC/\DELTACOM, INC., a Delaware corporation
By: Xxxxxx X. Xxxxxx
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Its: Chief Executive Officer
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INTERSTATE FIBERNET, INC., a Delaware corporation
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By: /s/ Xxxxxx X. Xxxxxx
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Its: Chief Executive Officer and President
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GULF STATES TRANSMISSION SYSTEMS, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxx
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Its: Chief Executive Officer and President
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DELTACOM, INC., an Alabama corporation
By: /s/ Xxxxxx X. Xxxxxx
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Its: Chief Executive Officer
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