AGREEMENT AND PLAN OF MERGER
Exhibit
2.2
AGREEMENT
AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of January 31,
2007 (this “Agreement”), is between SunCom
Wireless Holdings, Inc., a Delaware corporation (the
“Company” ), and SunCom Merger Corp., a
Delaware corporation (“Merger Sub”).
WHEREAS, Merger Sub is a wholly-owned subsidiary of the Company;
WHEREAS, simultaneously with the execution of this Agreement,
the Company, SunCom Wireless Investment Company LLC, a Delaware
limited liability company (“SunCom
Investment”), a wholly-owned subsidiary of the Company,
and SunCom Wireless, Inc. (f/k/a Triton PCS, Inc.)
(“Wireless”), a wholly-owned subsidiary of
SunCom Investment, have entered into an Exchange Agreement (as
it may be amended, supplemented, modified or waived from time to
time, the “Exchange Agreement”), which
provides, among other things, for the contribution by the
Company to SunCom Investment of up to 48,304,431 shares of
Class A common stock, par value $0.01 per share, of
the Company (“Class A Common Stock”),
which will in turn be exchanged (the
“Exchange”) by SunCom Investment for
$302,115,000 principal amount of the
93/8% Senior
Subordinated Notes due 2011 and $377,139,000 principal amount of
the
83/4% Senior
Subordinated Notes due 2011 (collectively, the “SunCom
Wireless Notes”) of Wireless, which are currently held
by the certain bondholders of Wireless (the “Consenting
Noteholders”), upon the terms and subject to the
conditions set forth in the Exchange Agreement;
WHEREAS, the Company and Merger Sub desire that Merger Sub merge
with and into the Company, with the Company as the surviving
entity (the “Merger”), with all of the issued
and outstanding common stock, par value $0.01 per share, of
Merger Sub ( “Merger Sub Stock”) being canceled;
WHEREAS, the Board of Directors of the Company has determined
that this Agreement and the Merger and the other transactions
contemplated hereby are fair to, advisable and in the best
interest of the Company and its stockholders and has approved
and adopted this Agreement and the Merger, on the terms and
subject to the conditions provided for in this Agreement;
WHEREAS, the Board of Directors of Merger Sub has determined
that this Agreement and the Merger and the other transactions
contemplated hereby are fair to, advisable and in the best
interest of Merger Sub and its stockholders and has approved and
declared advisable this Agreement and the Merger, on the terms
and subject to the conditions provided for in this Agreement;
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this
Agreement, and intending to be legally bound hereby, the Company
and Merger Sub hereby agree as follows:
ARTICLE I
The
Merger
Section 1.1. The
Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with
the General Corporation Law of the State of Delaware (the
“DGCL”), at the Effective Time (as defined
below) Merger Sub shall be merged with and into the Company, and
the separate existence of Merger Sub shall thereupon cease, and
the Company shall continue as the surviving corporation after
the Merger. The Company as the surviving corporation after the
Merger is sometimes referred to herein as the “Surviving
Corporation”.
Section 1.2. Closing. The
closing of the Merger (the “Closing”) shall
take place immediately upon the satisfaction or waiver of the
conditions to closing set forth in Article V hereof
(the “Closing Date”), at the offices of Weil,
Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, unless another time, date or place is agreed to by
the parties hereto.
Section 1.3. Effective
Time. Subject to the provisions of this
Agreement, as soon as practicable on the Closing Date the
parties shall file with the Secretary of State of the State of
Delaware a certificate of merger, executed in accordance with
the relevant provisions of the DGCL (the “Certificate of
Merger”). The Merger shall become effective upon the
filing of the Certificate of Merger or at such later time as is
agreed to by the parties hereto and specified in the Certificate
of Merger (the date and time at which the Merger becomes
effective is herein referred to as the “Effective
Time”).
Section 1.4. Effects
of the Merger. The Merger shall have the
effects set forth in the DGCL. Without limiting the generality
of the foregoing, and subject thereto, at the Effective Time,
(a) all the properties, rights, privileges, immunities,
powers and franchises of the Company and Merger Sub shall vest
in the Surviving Corporation, and (b) all debts,
liabilities, obligations and duties of Merger Sub shall become
the debts, liabilities, obligations and duties of the Surviving
Corporation.
Section 1.5. Certificate
of Incorporation and Bylaws of the Surviving Corporation.
(a) At the Effective Time, the Certificate of Incorporation
of the Surviving Corporation shall be amended to read in its
entirety as set forth on Exhibit A hereto until
thereafter changed or amended as provided therein or by
applicable law.
(b) At the Effective Time, the bylaws of the Company in
effect immediately prior to the Effective Time shall be the
bylaws of the Surviving Corporation until thereafter changed or
amended as provided therein or by applicable law.
Section 1.6. Directors
and Officers of the Surviving Corporation.
(a) The directors of the Company immediately prior to the
Effective Time shall be the directors of the Surviving
Corporation immediately following the Effective Time, to serve
as such until the earlier of their respective successors are
duly elected or appointed and qualified or their earlier death,
resignation or removal in accordance with the certificate of
incorporation or bylaws of the Surviving Corporation or as
otherwise provided by the DGCL.
(b) The officers of the Company immediately prior to the
Effective Time shall be the officers of the Surviving
Corporation until the earlier of their respective successors are
duly appointed and qualified or their earlier death, resignation
or removal in accordance with the certificate of incorporation
or bylaws of the Surviving Corporation or as otherwise provided
by the DGCL.
ARTICLE II
Effect of
the Merger on the Capital Stock of the Constituent
Corporations
Section 2.1 Effect
on Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of the
holder of any shares of Company Common Stock (as defined below)
or any shares of Merger Sub Stock:
(a) Merger Sub Stock. All of the
issued and outstanding shares of Merger Sub Stock shall
automatically be canceled, shall no longer be outstanding and
shall cease to exist, and no consideration shall be delivered in
exchange for such cancellation. From and after the Effective
Time, the Company, as the holder of all of the Merger Sub Stock,
shall have no further rights with respect to such interests
except as provided herein or by applicable law.
(b) Company Common Stock. Each
share of Company Common Stock (as defined below) shall be
converted into (1) 0.1 validly issued, fully paid and
nonassessable share of Class A common stock, par value
$0.01 per share, of the Surviving Corporation
(“Surviving Corporation Common Stock”) and
(2) the right to receive the contingent consideration
payable in accordance with Section 2.1(c), if any
(the “Contingent Merger Consideration”).
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(c) Contingent Merger
Consideration. The Contingent Merger
Consideration shall be payable, if at all, as follows:
(i) In the event that, following the consummation of the
Merger (x) the board of directors of the Surviving
Corporation determines that any Sale Transaction process should
be terminated (other than in accordance with
Section 2.1(c)(iii)) and (y)(1) the board of
directors of the Surviving Corporation shall not have hired an
investment bank of nationally recognized standing (the
“New Investment Bank”) for the purpose of
soliciting a sale transaction or transaction(s) (whether by way
of merger(s), consolidation(s), stock purchase(s) or otherwise)
of substantially all of the business of the Company (and,
following the Merger, the business of the Surviving Corporation
and its subsidiaries) as presently conducted (a “Sale
Transaction”) or (2) such New Investment Bank, if
hired, or the Company shall not have distributed customary sales
brochures, information memoranda and other marketing materials
(the “Sales Materials”) to potential strategic
and financial purchasers of the Surviving Corporation, then each
holder of Company Common Stock outstanding immediately prior to
the Effective Time of the Merger shall be entitled to receive an
additional 0.029412 share of Surviving Corporation Common
Stock for each share of Company Common Stock held by such holder
immediately prior to the Effective Time of the Merger.
(ii) In the event that (x) the Contingent Merger
Consideration set forth in Section 2.1(c)(i) is not
payable due to the hiring of the New Investment Bank and the
distribution of the Sales Materials in accordance with the
requirements of such Section and (y) within 90 days
following the distribution of the Sales Materials by the New
Investment Bank, the board of directors of the Surviving
Corporation terminates the Sale Transaction process (other than
in accordance with Section 2.1(c)(iii)), then each
holder of Company Common Stock outstanding immediately prior to
the Effective Time of the Merger shall be entitled to receive an
additional 0.014451 share of Surviving Corporation Common
Stock for each share of Company Common Stock held by such holder
immediately prior to the Effective Time of the Merger.
(iii) Notwithstanding anything to the contrary contained
herein, in no event shall any Contingent Merger Consideration be
required to be issued in the event that at least 90% of the
board of directors of the Surviving Corporation determine at a
board meeting duly called and held that any Sale Transaction
process should be terminated.
(d) Additional Matters Related to the Contingent
Merger Consideration. The right to receive
the Contingent Merger Consideration represented by each share of
Company Common Stock outstanding immediately prior to the Merger
shall be uncertificated. Such right shall be personal to the
holders of record (on their own behalf and on behalf of the
beneficial owners for which they are the record holder) of the
Company Common Stock at the Effective Time of the Merger and
shall not be transferable by such holders. A certificate
representing the whole number of shares of Surviving Corporation
Common Stock, if any, which are required to be issued in respect
of the right to the Contingent Merger Consideration shall be
issued to each holder of Company Common Stock outstanding at the
effective time of the Merger promptly (and in no event more than
five (5) business days) following the occurrence of the event
requiring the payment of such Contingent Merger Consideration as
set forth in Section 2.1(c)(i) or
Section 2.1(c)(ii), as applicable, and cash in lieu
of any fractional shares will be paid to such holder in
accordance with the provisions of Section 2.1(f).
The right of the holders of Company Common Stock outstanding at
the effective time of the Merger to receive any Contingent
Merger Consideration shall automatically terminate and be
extinguished on the first date, if any, that the circumstances
requiring the issuance of such Contingent Merger Consideration
as set forth in Section 2.1(c)(i) or
Section 2.1(c)(ii) are no longer applicable.
(e) Exchange of Certificates. On
or promptly following the Closing Date, the Surviving
Corporation shall deposit with Computershare or such bank or
trust company as may be designated by the Surviving Corporation
(the “Exchange Agent”), for exchange in
accordance with this Article II, through the Exchange
Agent, certificates representing the shares of Surviving
Corporation Common Stock issuable pursuant to
Section 2.1(b)(1) in exchange for outstanding shares
of Company Common Stock. Promptly
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after the Effective Time, the Surviving Corporation shall cause
the Exchange Agent to mail to each holder of record of a
certificate of Company Common Stock (a
“Certificate”) whose shares of Company Common
Stock were converted pursuant to Section 2.1(b)(1)
into shares of Surviving Corporation Common Stock, (i) a
letter of transmittal (which shall specify that delivery shall
be effected, and risk of loss and title to the Certificates
shall pass, only upon delivery of the Certificates to the
Exchange Agent, and which shall be in such form and shall have
such other provisions as the Surviving Corporation may
reasonably specify) and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for
certificates of Surviving Corporation Common Stock. Upon
surrender of a Certificate for cancellation to the Exchange
Agent, together with such letter of transmittal, duly completed
and validly executed in accordance with the instructions (and
such other customary documents as may reasonably be required by
the Exchange Agent), the holder of such Certificate shall be
issued (A) a certificate representing that number of whole
shares of Surviving Corporation Common Stock that such holder
has the right to receive pursuant to the provisions of
Section 2.1(b)(1) after taking into account all the
shares of Company Common Stock then held by such holder under
all such Certificates so surrendered, and (B) cash in lieu
of any fractional shares of Surviving Corporation Common Stock
to which such holder is entitled pursuant to
Section 2.1(f), and the Certificate so surrendered
shall forthwith be canceled. In the event of a transfer of
ownership of shares of Company Common Stock that is not
registered in the transfer records of the Company, a certificate
representing the proper number of shares of Surviving
Corporation Common Stock that the holder of such Certificate has
the right to receive pursuant to the provisions of
Section 2.1(b)(1) may be issued to a person other
than the person in whose name the Certificate so surrendered is
registered, if, upon presentation to the Exchange Agent, such
Certificate shall be properly endorsed or shall otherwise be in
proper form for transfer and the person requesting such issuance
shall have paid any transfer and other taxes required by reason
of the issuance of shares of Surviving Corporation Common Stock
to a person other than the registered holder of such Certificate
or shall have established to the reasonable satisfaction of the
Surviving Corporation that such tax either has been paid or is
not applicable. It is understood and agreed that the exchange of
Certificates for Surviving Corporation Common Stock pursuant to
this Section 2.1(e) does not apply to the issuance,
if any, of Surviving Corporation Common Stock as Contingent
Merger Consideration pursuant to Section 2.1(c),
which shall be issued, if at all, in accordance with the
provisions of Section 2.1(d). Notwithstanding the
failure of a holder of Company Common Stock to effect the
exchange of certificates in accordance with this
Section 2.1(e), after the Effective Time, such holder shall
have all rights as a holder of Surviving Corporation Common
Stock issuable pursuant to the Merger.
(f) No Fractional Shares. No
certificates or scrip representing fractional shares of
Surviving Corporation Common Stock shall be issued upon
(i) the surrender for exchange of shares of Company Common
Stock for Surviving Corporation Common Stock pursuant to
Section 2.1(b)(1) or (ii) the payment of shares
of Surviving Corporation Common Stock, if any, as Contingent
Merger Consideration pursuant to Section 2.1(c), no
dividends or other distributions of the Surviving Corporation
shall relate to such fractional share interests and such
fractional share interests will not entitle the owner thereof to
vote or to any rights of a stockholder of the Surviving
Corporation. In lieu of such fractional share interests, each
holder of shares of Company Common Stock entitled to receive
such fractional shares of Surviving Corporation Common Stock
pursuant to Section 2.1(b)(1) or as Contingent
Merger Consideration pursuant to Section 2.1(c)
shall be entitled to receive from the Surviving Corporation an
amount in cash equal to (x) in the case of fractional
shares that would otherwise be issued pursuant to
Section 2.1(b)(1), the product obtained by
multiplying (A) the fractional share interest to which such
holder (after taking into account all shares of Company Common
Stock held at the Effective Time by such holder) would otherwise
be entitled by (B) the per share closing price of the
Surviving Corporation Common Stock on the Closing Date as listed
on the New York Stock Exchange, and (y) in the case of
fractional shares that would otherwise be issued, if any, as
Contingent Merger Consideration pursuant to
Section 2.1(c), the product obtained by multiplying
(A) the fractional share interest to which such holder
(after taking into account all shares of Company Common Stock
held at the Effective Time by such holder) would otherwise be
entitled by (B) the per share closing price of the
Surviving Corporation Common Stock on the date such Contingent
Merger Consideration is paid in accordance with
Section 2.1(d) as listed on the
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New York Stock Exchange (in each case, as reported by The
Wall Street Journal (Northeast edition), or, if not reported
thereby, as reported by any other authoritative source).
ARTICLE III
Representations
and Warranties of Merger Sub
Merger Sub represents and warrants to the Company as follows:
Section 3.1. Organization,
Standing and Corporate Power.
(a) Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the state of
Delaware and has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby.
Section 3.2. Authority;
Noncontravention.
(a) Merger Sub has all necessary corporate power and
authority to execute and deliver this Agreement and, subject to
obtaining the approval of the Company, as the sole stockholder
of Merger Sub, for the adoption of this Agreement (the
“Merger Sub Stockholder Approval”), to perform
its obligations hereunder and to consummate the Merger. The
execution, delivery and performance by Merger Sub of this
Agreement, and the consummation of the Merger, have been duly
authorized and approved by its Board of Directors and no other
corporate action on the part of the Board of Directors of Merger
Sub is necessary to authorize the execution, delivery and
performance by Merger Sub of this Agreement and the consummation
by it of the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Merger Sub and, assuming
due authorization, execution and delivery hereof by the other
party hereto, constitutes a legal, valid and binding obligation
of Merger Sub, enforceable against Merger Sub in accordance with
its terms, except that such enforceability (i) may be
limited by bankruptcy, insolvency, fraudulent transfer,
moratorium and other similar laws of general application
affecting or relating to the enforcement of creditors’
rights generally and (ii) is subject to general principles
of equity, whether considered in a proceeding at law or in
equity (the “Bankruptcy and Equity Exception”).
(b) Neither the execution and delivery of this Agreement by
Merger Sub nor the consummation by Merger Sub of the Merger, nor
compliance by Merger Sub with any of the terms or provisions
hereof, will (i) conflict with or violate any provision of
the Certificate of Incorporation or Bylaws of Merger Sub or
(ii) violate any material law, judgment, writ or injunction
of any governmental authority applicable to Merger Sub or any of
its material properties or assets. Except for the Merger Sub
Stockholder Approval, no consent, waiver, approval, order,
permit or authorization of, or declaration or filing with, or
notification to, any person or governmental body is required on
the part of Merger Sub in connection with the execution and
delivery of this Agreement or the consummation of the
transactions contemplated hereby.
Section 3.3. Capitalization
of Merger Sub.
(a) Merger Sub has authorized the issuance of
1,000 shares of common stock, $0.01 par value per
share. As of the date of this Agreement, 1,000 shares were
issued and outstanding, and all such shares are held of record
by the Company. All of the issued and outstanding shares of
Merger Sub Stock are duly authorized and validly issued and are
fully paid, nonassessable and not subject to preemptive rights.
(b) There is no existing option, warrant, call, right, or
contract of any character to which Merger Sub is a party
requiring, and there are no securities of Merger Sub outstanding
which upon conversion or exchange would require, the issuance of
any shares of Merger Sub Stock or other securities convertible
into, exchangeable for or evidencing the right to subscribe for
or purchase Merger Sub Stock. Merger Sub is not a party to any
voting trust or other contract with respect to the voting,
redemption, sale, transfer or other disposition of the Merger
Sub Stock.
Section 3.4. No
Activities or Liabilities. Merger Sub has
not, since the date of its organization, conducted any business,
entered into any contracts, arrangements or understandings with
any third party, or incurred any obligation or liability
whatsoever, contingent or otherwise, other than pursuant to this
Agreement.
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At the Effective Time, Merger Sub will have no liability whether
outstanding, current, deferred, contingent, or future, of any
kind.
ARTICLE IV
Representations
and Warranties of the Company
The Company represents and warrants to Merger Sub as follows:
Section 4.1. Organization,
Standing and Corporate Power. The Company is
a corporation duly organized, validly existing and in good
standing under the laws of the state of Delaware and has all
requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
Section 4.2. Authority;
Noncontravention.
(a) The Company has all necessary corporate power and
authority to execute and deliver this Agreement and, subject to
obtaining the approval of the stockholders of record owning a
majority of the outstanding Company Class A Common Stock
(as defined below) adopting this Agreement (the “Company
Stockholder Approval”), to perform its obligations
hereunder and to consummate the Merger. The execution, delivery
and performance by the Company of this Agreement, and the
consummation of the Merger, have been duly authorized and
approved by its Board of Directors, and no other action on the
part of the Board of Directors of the Company is necessary to
authorize the execution, delivery and performance by the Company
of this Agreement and the consummation by it of the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by the Company and, assuming due authorization,
execution and delivery hereof by the other party hereto,
constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, except that such enforceability may be limited by the
Bankruptcy and Equity Exception.
(b) Neither the execution and delivery of this Agreement by
the Company, nor the consummation by the Company of the Merger
nor compliance by the Company with any of the terms or
provisions hereof, will (i) conflict with or violate any
provision of the certificate of incorporation or bylaws of the
Company or (ii) violate any material law, judgment, writ or
injunction of any governmental authority applicable to the
Company or any of its material properties or assets. Except for
the Company Stockholder Approval and the filing of a certificate
of merger with the Delaware Secretary of State, no consent,
waiver, approval, order, permit or authorization of, or
declaration or filing with, or notification to, any person or
governmental body is required on the part of the Company in
connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby.
Section 4.3. Capitalization
of the Company. As of the date of this
Agreement, the authorized capital stock of the Company consists
of (i) 580,000,000 shares of Common Stock of the
Company, par value $0.01 per share (“Company Common
Stock”), of which (a) 520,000,000 shares are
designated Class A Common Stock (“Company
Class A Common Stock”), and
(b) 60,000,000 shares are designated Class B
Non-Voting Common Stock (“Company Class B Common
Stock”), and (ii) 70,000,000 shares of
preferred stock, par value $0.01 per share
(“Company Preferred Stock”), of which
(w) 1,000,000 shares are designated Series A
Convertible Preferred Stock, (x) 50,000,000 shares are
designated Series B Preferred Stock,
(y) 3,000,000 shares are designated Series C
Convertible Preferred Stock, and (z) 16,000,000 shares
are designated Series D Convertible Preferred Stock. As of
the close of business on October 31, 2006,
(A) 65,112,383 shares of Company Class A Common
Stock were issued and 63,454,910 shares of Company
Class A Common Stock were outstanding,
(B) 1,657,473 shares of Company Class A Common
Stock were held by the Company in its treasury, (C) no
shares of Company Class A Common Stock were reserved for
issuance pursuant to any outstanding option, warrant or other
convertible security, except for 7,926,099 shares of
Company Class A Common Stock issuable upon conversion of
the outstanding Company Class B Common Stock,
(D) 7,926,099 shares of Company Class B Common
Stock were issued and outstanding (all of which shall be
converted into Company Class A Common Stock prior to the
Effective Time), and (E) no shares of Company Preferred
Stock were issued or outstanding. All of the issued and
outstanding shares of Company Common
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Stock are duly authorized and validly issued and are fully paid,
nonassessable and not subject to preemptive rights. As of the
date of this Agreement, there is no existing option, warrant,
call, right, or contract of any character to which the Company
is a party requiring, and, except for the Company Class B
Common Stock, there are no securities of the Company outstanding
which upon conversion or exchange would require, the issuance of
any shares of Company Common Stock or other securities
convertible into, exchangeable for or evidencing the right to
subscribe for or purchase Company Common Stock.
ARTICLE V
Certain
Agreements
Section 5.1. Delivery
of Merger Sub Stockholder
Approval. Immediately following the execution
and delivery of this Agreement, the Company, as the sole
stockholder of Merger Sub, will execute a written consent as the
sole stockholder of Merger Sub granting the Merger Sub
Stockholder Approval.
ARTICLE VI
Conditions
Precedent
Section 6.1. Conditions
to Each Party’s Obligation to Effect the
Merger. The respective obligations of each
party hereto to effect the Merger shall be subject to the
satisfaction on or prior to the Closing Date of the following
conditions:
(a) Company Stockholder
Approval. The Company Stockholder Approval
shall have been obtained in accordance with applicable law and
the certificate of incorporation and bylaws of the Company.
(b) Conversion of Class B Common
Stock. All of the outstanding Company
Class B Common Stock shall have been converted in
accordance with its terms into Company Class A Common Stock
prior to the record date for the meeting of the Company’s
stockholders for the purpose of obtaining the Company
Stockholder Approval and no shares of Company Class B
Common Stock shall be outstanding after such conversion.
ARTICLE VII
Survival
of Representations and Warranties
All representations and warranties contained in this Agreement
shall terminate as of the Effective Time of the Merger.
ARTICLE VIII
Miscellaneous
Section 8.1. Entire
Agreement. This Agreement and the other
documents referred to herein represent the entire understanding
and agreement between the parties hereto with respect to the
subject matter hereof.
Section 8.2. Amendments
and Waivers. To the fullest extent permitted
by law, this Agreement can be amended, supplemented or changed
whether before or after the Company Stockholder Approval has
been obtained, and any provision hereof can be waived, only by
written instrument making specific reference to this Agreement
signed by the party against whom enforcement of any such
amendment, supplement, modification or waiver is sought;
provided that after the Company Stockholder Approval has been
obtained, Sections 2.1(b) and 2.1(c) shall not be amended,
supplemented or changed in a manner that is adverse to holders
of Company Common Stock without the prior written consent of
such holders. No action taken pursuant to this Agreement,
including any investigation by or on behalf of any party, shall
be deemed to constitute a waiver by the party taking such action
of compliance with any representation, warranty, or agreement
contained herein. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be
construed as a
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further or continuing waiver of such breach or as a waiver of
any other or subsequent breach. No failure on the part of any
party to exercise, and no delay in exercising, any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of such right, power or remedy by
such party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
Section 8.3. Termination. This
Agreement may be terminated at any time prior to the Effective
Time, whether before or after the Company Stockholder Approval
has been obtained, by the mutual written consent of each of the
Company and Merger Sub.
Section 8.4 Binding
Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns. Nothing in this
Agreement shall create or be deemed to create any third party
beneficiary rights in any person or entity not a party to this
Agreement except (i) after the Effective Time, for the
right to receive the Contingent Merger Consideration in
accordance with Article II of this Agreement and
(ii) as otherwise explicitly provided this Agreement. No
assignment of this Agreement or of any rights or obligations
hereunder may be made by any of the parties hereto without the
prior written consent of the other parties and any attempted
assignment without the required consents shall be void. No
assignment of any obligations hereunder shall relieve the
parties hereto of any such obligations.
Section 8.5. Counterparts. This
Agreement may be executed in any number of counterparts, each of
which will be deemed to be an original copy of this Agreement
and all of which, when taken together, will be deemed to
constitute one and the same agreement.
Section 8.6. Governing
Law; Jurisdiction; Waiver of Jury Trial. This
Agreement, and all claims or causes of action (whether in
contract or tort) that may be based upon, arise out of or relate
to this Agreement or the negotiation, execution or performance
of this Agreement, shall be governed by and construed in
accordance with the internal laws of the State of Delaware. By
its execution and delivery of this Agreement, each of the
parties hereto hereby irrevocably and unconditionally agrees for
itself that any legal action, suit or proceeding against it with
respect to any matter under or arising out of or in connection
with this Agreement or for recognition or enforcement of any
judgment rendered in any such action, suit or proceeding, may be
brought in either a state or federal court of competent
jurisdiction in the State of New York. By execution and delivery
of this Agreement, each of the parties hereto hereby irrevocably
accepts and submits itself to the nonexclusive jurisdiction of
each such court, generally and unconditionally, with respect to
any such action, suit or proceeding.
Section 8.7. Notices. All
notices, requests and other communications to any party
hereunder shall be in writing and shall be deemed given if
delivered personally, facsimiled (which is confirmed) or sent by
overnight courier (providing proof of delivery) to the following
addresses:
If to the Company:
If to Merger Sub:
SunCom Merger Corp.
c/o SunCom Wireless Holdings, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Facsimile: 000-000-0000
c/o SunCom Wireless Holdings, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Facsimile: 000-000-0000
or such other address or facsimile number as such party may
hereafter specify by like notice to the other parties hereto.
All such notices, requests and other communications shall be
deemed received on the date of receipt by the recipient thereof
if received prior to 5:30 P.M. in the place of receipt and
such day is a business
8
day in the place of receipt. Otherwise, any such notice, request
or communication shall be deemed not to have been received until
the next succeeding business day in the place of receipt.
Section 8.8. Severability. If
any term or other provision of this Agreement is invalid,
illegal, or incapable of being enforced by any law or public
policy, all other terms or provisions of this Agreement shall
nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision
is invalid, illegal, or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated
to the greatest extent possible.
Section 8.9. No
Recourse. This Agreement may only be enforced
against, and any claims or causes of action that may be based
upon, arise out of or relate to this Agreement, or the
negotiation, execution or performance of this Agreement may only
be made against the entities that are expressly identified as
parties hereto and no past, present or future affiliate,
director, officer, employee, incorporator, member, manager,
partner, stockholder, agent, attorney or representative of any
party hereto shall have any liability for any obligations or
liabilities of the parties to this Agreement or for any claim
based on, in respect of, or by reason of, the transactions
contemplated hereby.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
9
IN WITNESS WHEREOF, the undersigned have executed this Agreement
and Plan of Merger as of the date first written above.
| By: |
/s/ Xxxx
Xxxxxxx
|
Name: Xxxx Xxxxxxx
| Title: | Executive Vice President and Chief Financial Officer |
SUNCOM MERGER CORP.
| By: |
/s/ Xxxx
Xxxxxxx
|
Name: Xxxx Xxxxxxx
| Title: | Vice President, Secretary and Treasurer |
