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EXHIBIT 2.2
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
among
NEXTEL COMMUNICATIONS, INC.,
TOWER PARENT CORP.,
TOWER MERGER VEHICLE, INC.,
TOWER ASSET SUB, INC.,
THE TRANSFERRING SUBSIDIARIES PARTY THERETO,
SPECTRASITE HOLDINGS, INC.,
SPECTRASITE COMMUNICATIONS, INC.,
AND
SHI MERGER SUB, INC.
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April 20, 1999
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AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment"),
dated as of April 20, 1999, by and among Nextel Communications, Inc., a
Delaware corporation, Tower Parent Corp., a Delaware corporation Tower Merger
Vehicle, Inc., a Delaware corporation, Tower Asset Sub, Inc., a Delaware
corporation, Nextel Communications of the Mid-Atlantic, Inc., a Delaware
corporation, Nextel of California, Inc., a Delaware corporation, Nextel of New
York, Inc., a Delaware corporation, Nextel South Corp., a Georgia corporation,
Nextel of Texas, Inc., a Texas corporation, Nextel West Corp., a Delaware
corporation, SpectraSite Holdings, Inc., a Delaware corporation, SpectraSite
Communications, Inc., a Delaware corporation, and SHI Merger Sub, Inc., a
Delaware corporation.
A. On February 10, 1999, the parties hereto entered into the
Agreement and Plan of Merger (the "Initial Agreement") that is being amended
hereby;
B. Section 2.1 of the Initial Agreement provides that the
Transferring Subsidiaries shall transfer to Parent Co. and Parent Co. shall
transfer to Tower Sub the Tower Assets;
C. the definition of Tower Assets set forth in the Initial
Agreement refers to certain site locations listed in Sections 2.1 and 2.6 of
the Nextel Disclosure Statement;
D. the parties to the Initial Agreement desire to amend Section 2.1
of the Nextel Disclosure Statement to delete certain site locations listed
thereon;
E. the parties to the Initial Agreement further desire to amend
certain provisions of the Initial Agreement to provide for an additional
purchaser of Series C Preferred Stock;
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NOW THEREFORE, the parties to the Initial Agreement mutually agree
as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined have the same meanings attributed to them in the Initial Agreement.
2. Amendments to Section 1 of the Initial Agreement.
(a) The definition of "Amended and Restated Certificate of
Incorporation" in Section 1 is hereby amended by deleting the definition of
"Amended and Restated Certificate of Incorporation" and inserting in its place
the following:
"Amended and Restated Certificate of Incorporation": The Amended
and Restated Certificate of Incorporation of Tower
Aggregator in the form attached as Exhibit H-1 (to be filed
immediately prior to the Effective Time), except that Exhibit
H-1 is hereby amended as follows: (i) the number
"155,599,625" in clause THIRD (a)(ii) is replaced by the
number "165,749,625"; (ii) the number "85,000,000" in clause
THIRD (a)(ii)(x) is replaced by the number "95,000,000";
(iii) the number "70,599,625" in clause THIRD (a)(ii)(y) is
replaced by the number "70,749,625"; (iv) the number
"60,136,795" in clause THIRD (a)(ii)(y) is replaced by the
number "60,286,795"; the number "155,599,625" in clause SIXTH
is replaced by the number "165,749,625"; (v) the phrase
"Eighty Five Million (85,000,000)" in clause SIXTH is
replaced by the number "95,000,000"; (vi) the phrase "Seventy
Million, Five Hundred Ninety-Nine Thousand Six Hundered
Twenty-Five (70,599,625)" in clause SIXTH is replaced by the
number "70,749,625"; and (vii) the phrase "Sixty Million One
Hundred Thirty-Six Thousand Seven Hundred Ninety-Five
(60,136,795)" in clause SIXTH is replaced by the number
"60,286,795".
(b) The definition of "Strategic Transaction" in Section 1 is
hereby amended by deleting the number "$250,000,000" therein and inserting in
its place the number "$340,003,656".
3. Amendment to Section 2.1 of the Nextel Disclosure Statement.
Section 2.1 of the Nextel Disclosure Statement is hereby amended by deleting
the tower site locations listed on Attachment A hereto.
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4. Amendment to Section 7.5(a) of the Initial Agreement. Section
7.5(a) of the Initial Agreement is hereby amended as follows:
(a) in the third sentence therof, deleting the number
"155,599,625" and inserting in its place the number "165,749,625";
(b) in the third sentence thereof, deleting the number
"60,136,795" and inserting in its place the number "60,286,795";
(c) in the third sentence thereof, deleting the number
"85,000,000" and inserting in its place the number "95,000,000";
(d) in the third sentence thereof, deleting the number
"7,386,135" and inserting in its place the number "7,436,135"; and
(e) in the fifth sentence thereof, deleting the number
"60,136,795" and inserting in its place the number "60,286,795".
5. Governing Law. This Amendment and all disputes hereunder will
be governed by and construed and enforced in accordance with the internal laws
of the State of Delaware, without regard to the principles of conflict of laws
thereof.
6. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7. Continuing Effect. Except as expressly amended by this
Amendment, the Initial Agreement (including, without limitation, Section 5.3(f)
thereof) shall continue in full force and effect in accordance with the terms
thereof.
8. No Presumption Against Drafter. Each of the parties hereto
has jointly participated in the negotiation and drafting of this Amendment. In
the event of any ambiguity or a question of intent or interpretation arises,
this Amendment shall be construed as if drafted jointly by all of the parties
hereto and no presumptions or
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burdens of proof shall arise favoring any party by virtue of the authorship of
any of the provisions of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be signed by their respective duly authorized officers as of the date first
above written.
NEXTEL COMMUNICATIONS, INC. NEXTEL OF TEXAS, INC.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Vice President and General Counsel Title: Vice President
NEXTEL COMMUNICATIONS OF THE NEXTEL WEST CORP.
MID-ATLANTIC, INC.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Vice President Title: Vice President
NEXTEL OF CALIFORNIA, INC. TOWER PARENT CORP.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Vice President Title: President
NEXTEL OF NEW YORK, INC. TOWER ASSET SUB, INC.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Vice President Title: President
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NEXTEL SOUTH CORP. TOWER MERGER VEHICLE, INC.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Vice President Title: President
SPECTRASITE HOLDINGS, INC. SPECTRASITE COMMUNICATIONS, INC.
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer Title: Chief Financial Officer
SHI MERGER SUB, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
