Exhibit 2.1
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") is made
and entered into as of November 7, 2006 by and among NextWave Wireless Inc., a
Delaware corporation ("PARENT"), NextWave Merger LLC, a Delaware limited
liability company and a wholly-owned subsidiary of Parent ("MERGER SUB") and
NextWave Wireless LLC, a Delaware limited liability company (the "COMPANY").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Board of Managers of the Company believes it is
in the best interests of the Company and its members for the Company to
consummate, and the members of the Company have approved, the transactions
contemplated by this Agreement and the Merger.
WHEREAS, the Board of Directors of Parent believe it is in the
best interests of Parent and Merger Sub, for Merger Sub to merge with and into
the Company, and for the Company to become a wholly-owned subsidiary of Parent
(the "MERGER") and, in the furtherance thereof, have deemed advisable, approved
and adopted this Agreement; and
WHEREAS, Section 18-209 of the Delaware Limited Liability
Company Act, 6 Del.C. ss.18-101, et seq. (the "DELAWARE ACT") authorizes the
merger of a Delaware limited liability company with and into another Delaware
limited liability company; and
NOW, THEREFORE, in consideration of the premises, covenants,
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged and intending to be
legally bound, the parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01. The Merger.
(a) After satisfaction or, to the extent permitted hereunder,
waiver of all conditions to the Merger as the Company shall determine, the
Company, which shall be the surviving entity, shall file a certificate of merger
substantially in the form of Exhibit 1 hereto (the "CERTIFICATE OF MERGER") with
the Secretary of State of the State of Delaware and make all other filings or
recordings required by Delaware law in connection with the Merger. The Merger
shall become effective at such time as is specified in the Certificate of Merger
(the "EFFECTIVE TIME").
(b) At the Effective Time, Merger Sub shall be merged with and
into the Company, whereupon the separate existence of Merger Sub shall cease,
and the Company shall be the surviving entity of the Merger (the "SURVIVING
LLC") in accordance with Section 18-209 of the Delaware Act.
SECTION 1.02. Interests.
(a) At the Effective Time, the limited liability company
interests in the Company ("COMPANY INTEREST") outstanding immediately prior to
the Effective Time shall, by virtue of the Merger and without any action on the
part of any holder thereof, be canceled and extinguished and converted into and
exchangeable for one share of Parent common stock, par value $0.001 per share
("COMMON STOCK") for every six Company Interests (the "EXCHANGE RATIO") and cash
in lieu of fractional shares pursuant to Section 1.02(c).
(b) At the Effective Time, all Company Interests outstanding
shall cease to exist, and each certificate (a "LLC CERTIFICATE") formerly
representing any such unit of Company Interest shall thereafter represent only
the right to receive the applicable shares of Common Stock and cash in lieu of
fractional shares pursuant to Section 1.02(c). As a result, each holder of a
Company Interest will, by virtue of the Merger, have exchanged such Interest for
shares of Common Stock.
(c) At the Effective Time, each limited liability company
interest in Merger Sub outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of the holder
thereof, remain unchanged and continue to remain outstanding as a limited
liability company interest in the Surviving LLC. As a result, Parent shall, by
virtue of the Merger have acquired, and be the sole owner of all of the limited
liability interests in the Company. By virtue of the Merger, Parent shall not be
deemed to assume any liability created by any holder of Company Interests that
may attach to such interests.
(d) No certificates or scrip representing fractional shares of
Common Stock shall be issued upon the surrender for exchange of Company
Interests. In lieu of such fractional shares, Parent shall pay to each holder of
Company Interests an amount in cash equal to the product obtained by multiplying
(A) the fractional shares to which such holder (after taking into account all
Company Interests held at the Effective Time by such holder) would otherwise be
entitled by (B) $1.00.
(e) The Merger is intended to constitute an exchange of
Company Interests for Common Stock pursuant to Section 351 of the Internal
Revenue Code of 1986, as amended (the "CODE").
SECTION 1.03. Unit Awards.
(a) Prior to the Effective Time, the compensation committee of
the Board of Managers of the Company shall adopt such resolutions or take such
other actions as may be required to effect the following:
(i) adjust the terms of all outstanding awards, including any
option, restricted unit, performance award, phantom unit, bonus units
or other unit-based award (collectively, the "AWARDS"), granted under
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the Nextwave Wireless LLC 2005 Units Plan (the "2005 UNITS PLAN"),
whether vested or unvested, as necessary to provide that, at the
Effective Time, each Award outstanding immediately prior to the
Effective Time shall be amended and converted into an option or
comparable right to acquire the number of shares of Common Stock
(rounded down to the nearest whole share) determined by multiplying the
number of units of the Company subject to such Award by the Exchange
Ratio, at a price per share of Common Stock equal to (A) the aggregate
exercise price for the units of the Company otherwise purchasable
pursuant to such Award divided by (B) the aggregate number of shares of
Common Stock deemed purchasable pursuant to such Award (each, as so
adjusted, an "Adjusted Option"), provided that such exercise price
shall be rounded up to the nearest whole cent; and
(ii) make such other changes to the 2005 Units Plan as Parent
and the Company may agree are appropriate to give effect to the Merger.
(b) At the Effective Time, Parent shall assume the 2005 Unit
Plan, with the result that all obligations of the Company under the 2005 Unit
Plan, including with respect to Awards outstanding at the Effective Time
(adjusted pursuant to Section 1.03(a)), shall be obligations of Parent following
the Effective Time.
(c) As soon as practicable after the Effective Time, Parent
shall deliver to the holders of Awards appropriate notices setting forth such
holders' rights pursuant to the 2005 Unit Plan and the agreements evidencing the
grants of such Awards after giving effect to the Merger and the adjustments
required by this Section 1.03.
All restrictions or limitations on transfer and vesting with respect to Awards
awarded under the 2005 Unit Plan or any other plan, program or arrangement of
the Company, to the extent that such restrictions or limitations shall not have
already lapsed, shall remain in full force and effect with respect to such
Awards after giving effect to the Merger and the assumption by Parent as set
forth above.
SECTION 1.04. Warrants. All warrants issued by the Company
that are not exercised prior to the Effective Time shall be converted into
warrants to purchase Common Stock pursuant to their terms.
SECTION 1.05 Withholding Taxes. Parent and the Paying Agent
shall be entitled to deduct and withhold from the consideration otherwise
payable to a holder of the Company Interests pursuant to this Agreement such
amounts as may be required to be deducted and withheld with respect to the
making of such payment under the Code and the rules and regulations promulgated
thereunder, or under any provision of state, local or foreign tax law. Such
withheld amounts shall be treated for all purposes of this Agreement as having
been paid to the person in respect of which such deduction and withholding was
made.
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ARTICLE II
THE SURVIVING LIMITED LIABILITY COMPANY
SECTION 2.01. Certificate of Formation and Limited Liability
Company Agreement. The certificate of formation of the Company in effect at the
Effective Time shall be the certificate of formation of the Surviving LLC unless
and until amended in accordance with its terms and applicable law. The Amended
and Restated Limited Liability Company Agreement of the Company (the "LLC
AGREEMENT"), as in effect immediately prior to the Effective Time, shall be
amended in the Merger to be in the form of Exhibit 2 hereto and, as so amended,
such LLC Agreement shall be the LLC Agreement of the Surviving LLC until
thereafter amended in accordance with its terms and applicable law. The name of
the Surviving LLC shall be NextWave Wireless LLC.
SECTION 2.02. Managers and Officers. From and after the
Effective Time, the managers of Merger Sub immediately prior to the Effective
Time shall be the managers of the Surviving LLC and the officers of Merger Sub
immediately prior to the Effective Time shall be the officers of the Surviving
LLC, in each case until the earlier of their respective deaths, resignations or
removals or until their respective successors are duly elected or appointed and
qualified, as the case may be.
ARTICLE III
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
SECTION 3.01. Transfer, Conveyance and Assumption. At the
Effective Time, the Company shall continue in existence as the Surviving LLC,
and without further transfer, succeed to and possess all of the rights,
privileges and powers of Merger Sub, and all of the assets and property of
whatever kind and character of the Merger Sub shall vest in the Company without
further act or deed; thereafter, the Company, as the Surviving LLC, shall be
liable for all of the liabilities and obligations of the Merger Sub, and any
claim or judgment against Merger Sub may be enforced against the Company, as the
Surviving LLC, in accordance with Section 18-209 of the Delaware Act.
SECTION 3.02. Further Assurances. If at any time the Company
shall consider or be advised that any further assignment, conveyance or
assurance is necessary or advisable to vest, perfect or confirm of record in the
Surviving LLC the title to any property or right of Merger Sub, or otherwise to
carry out the provisions hereof, the proper representatives of the Merger Sub as
of the Effective Time shall execute and deliver any and all proper deeds,
assignments, and assurances and do all things necessary or proper to vest,
perfect or convey title to such property or right in the Surviving LLC, and
otherwise to carry out the provisions hereof.
ARTICLE IV
COVENANTS OF PARENT
SECTION 4.01. PacketVideo Option Plan. From and after the
Effective Time, Parent shall constitute a "Corporate Parent" under the 2005
Equity Incentive Plan of PacketVideo Corporation and shall take all actions
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required under such plan in connection with any public offering of the Common
Stock on Form S-1, including reserving the appropriate number of shares of
Common Stock for issuance upon the exercise of options and other awards under
such plan in accordance with Section 12 of the plan.
SECTION 4.02. CYGNUS Option Plan. From and after the Effective
Time, Parent shall constitute a "Corporate Parent" under the 2004 Stock Option
Plan of CYGNUS Communications, Inc. ("CYGNUS") and shall take all actions
required under such plan and the Amendment to Standard Terms and Conditions
Relating to Incentive Stock Options from and after the Listing Date, as defined
in such plan, including issuing the appropriate number of shares of Common Stock
as provided therein.
SECTION 4.03. Non-Recourse Notes. As soon as practicable
following the Effective Time, in accordance with Section 7.01 of the Indenture
(the "INDENTURE"), dated as of April 13, 2005, by and between the Company and
JPMorgan Chase Bank, N.A. (the "TRUSTEE"), Parent shall take all actions
necessary or required pursuant to the Indenture.
ARTICLE V
TERMINATION
SECTION 5.01. Termination. This Agreement may be terminated
and the Merger may be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of each of the parties to this
Agreement;
(b) by any of the parties to this Agreement, if there shall be
any law or regulation that makes consummation of the Merger illegal or otherwise
prohibited, or if any judgment, injunction, order or decree enjoining the
transactions contemplated by this Agreement is entered and such judgment,
injunction, order or decree shall become final and nonappealable.
SECTION 5.02. Effect of Termination. If this Agreement is
terminated pursuant to Section 5.01 of this Agreement, this Agreement shall
become void and of no effect with no liability on the part of any party hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Amendments; No Waivers.
(a) Any provision of this Agreement may, subject to applicable
law, be amended or waived prior to the Effective Time if, and only if, such
amendment or waiver is in writing and signed by each of the parties hereto.
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(b) No failure or delay by any party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 6.02. Integration. All prior or contemporaneous
agreements, contracts, promises, representations, and statements, if any,
between the Company and Merger Sub, or their representatives, are merged into
this Agreement, and this Agreement shall constitute the entire understanding
between the Company and Merger Sub with respect to the subject matter hereof.
SECTION 6.03. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto.
SECTION 6.04. Governing Law. This Agreement shall be construed
in accordance with and governed by the laws of the State of Delaware, without
giving effect to principles of conflicts of law.
SECTION 6.05. Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received the counterpart hereof signed by the other party hereto.
SECTION 6.06. Headings. The headings contained in this
Agreement are for the sole purpose of convenience of reference, and shall not in
any way limit or affect the meaning or interpretation of any of the terms or
provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
NEXTWAVE WIRELESS INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
NEXTWAVE MERGER LLC
By its Member, NextWave Wireless nc.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
NEXTWAVE WIRELESS LLC
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
EXHIBIT 1
FORM OF CERTIFICATE OF MERGER
CERTIFICATE OF MERGER
OF
NEXTWAVE MERGER LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
INTO
NEXTWAVE WIRELESS LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
Dated: ____________, 2006
Pursuant to Section 18-209 of the Delaware Limited Liability
Company Act, the undersigned limited liability company formed and existing under
the laws of the State of Delaware,
DOES HEREBY CERTIFY THAT:
FIRST: The name and jurisdiction of formation or organization
of each of the constituent entities which is to merge are as follows:
Jurisdiction of
Name Formation or Organization
---- -------------------------
NextWave Wireless LLC Delaware
NextWave Merger LLC Delaware
SECOND: An Agreement and Plan of Merger has been approved,
adopted, executed and acknowledged by (i) NextWave Merger LLC, a Delaware
limited liability company (the "Non-Surviving LLC") and (ii) NextWave Wireless
LLC, a Delaware limited liability company (the "Surviving LLC").
THIRD: The name of the surviving domestic limited liability
company is NextWave Wireless LLC.
FOURTH: The merger of the Non-Surviving LLC into the Surviving
LLC shall be effective upon the filing of this Certificate of Merger with the
Secretary of State of the State of Delaware.
FIFTH: The executed Agreement and Plan of Merger is on file at
a place of business of the Surviving LLC. The address of such place of business
of the Surviving LLC is 00 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxx
00000.
SIXTH: A copy of the Agreement and Plan of Merger will be
furnished by the Surviving LLC, on request and without cost, to any member or
person holding an interest in Surviving LLC and any member or person holding an
interest in the Non-Surviving LLC.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, NextWave Wireless LLC has caused this
Certificate of Merger to be duly executed as of the date first written above.
NEXTWAVE WIRELESS LLC
By:_____________________________
Name:
Title:
EXHIBIT 2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
NEXTWAVE WIRELESS LLC
AGREEMENT dated as of November __, 2006 by the party set forth on the
signature page of this Agreement.
RECITALS
NextWave Wireless LLC (the "Company") was formed as a limited liability
company in the State of Delaware on June 3, 1996. NextWave Wireless Inc., a
Delaware corporation (the "Member"), is the sole member of the Company and is
executing this Agreement, which shall constitute a "limited liability company
agreement" under the Delaware Limited Liability Company Act, to provide for the
management of the Company and the Company's affairs and the conduct of the
Company's business.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Member agrees as follows:
1. All items of profit, loss, interest, gain and deduction, and all
distributions of cash and other property of the Company (collectively,
"Ownership Interests") shall be made to the holder of the Ownership Interests.
As of the date hereof, the Member holds 100% of the Ownership Interests.
2. The management of the Company and the Company's affairs and the
conduct of the Company's business is vested in the Member or such other person
or entity as shall be appointed as manager of the Company by written consent of
the holders of the Ownership Interests.
3. The Ownership Interests in the Company constitute "securities" for
purposes of Article 8 of the Uniform Commercial Code as in effect in the State
of Delaware, as the same may be amended from time to time. The Ownership
Interests shall be represented by certificates issued by the Company in
substantially the form attached hereto as EXHIBIT A.
4. Upon a transfer of any or all of the Ownership Interests pursuant to
and as contemplated by the Pledge and Security Agreement, dated as of July 17,
2006, in favor of the Collateral Agent (as amended, supplemented and otherwise
modified from time to time, the "Pledge Agreement"), which transfer may include
any transfer to any person pursuant to a foreclosure sale, in each case without
any further action or consent by the Company or the Member, such transferee
shall automatically be admitted as a member of the Company with respect to the
Ownership interest transferred to such transferee.
5. This Agreement shall be governed by the laws of the state of
Delaware (without giving effect to the conflict or choice of laws provisions
thereof that would give rise to the application of the domestic substantive law
of any other jurisdiction), and may be amended by the holder(s) of the Ownership
Interests at any time, subject to Section 5.23 of the Note Purchase Agreement,
dated as of July 17, 2006 (as amended, supplemented or otherwise modified from
time to time, the "Purchase Agreement"), by and among NextWave Wireless LLC, a
Delaware limited liability company (the "Borrower"), guarantors thereunder from
time to time party thereto, the purchasers thereunder and named therein and The
Bank of New York, as Collateral Agent (in such capacity, the "Collateral
Agent").
[REMAINDER OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the day and year first above written.
Member
NEXTWAVE WIRELESS INC.
By:__________________________________
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and
Secretary
EXHIBIT A
THE OWNERSHIP INTERESTS IN NEXTWAVE WIRELESS LLC CONSTITUTE "SECURITIES" FOR
PURPOSES OF ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN THE STATE
OF DELAWARE, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.
NEXTWAVE WIRELESS LLC
***a Delaware Limited Liability Company***
LIMITED LIABILITY COMPANY CERTIFICATE
No. 1
THIS CERTIFIES that NextWave Wireless Inc., a Delaware corporation (the
"Member"), is the owner of all of the Ownership Interests in NextWave Wireless
LLC, a limited liability company formed pursuant to the Delaware Limited
Liability Company Act (the "Company"), transferable only upon the Company's
books by the holder hereof in person or by Attorney upon surrender of this
Certificate properly endorsed.
The rights, powers and interests in the Company that are represented by
the Ownership Interests are set forth in the Company's AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT dated as of November __, 2006, as it may be
amended or amended and restated from time to time (the "LLC Agreement") after
such date, a copy of which is available at the principal executive offices of
the undersigned at 00000 Xxxx Xxxxx Xxxxx, Xxx Xxxxx, XX 00000.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES OR BLUE SKY LAWS OF ANY
STATE OR OTHER JURISDICTION AND MAY NOT BE OFFERED OR SOLD UNLESS IT HAS BEEN
REGISTERED UNDER SUCH ACT AND THE APPLICABLE SECURITIES OR BLUE SKY LAWS OF ANY
SUCH STATE OR OTHER JURISDICTION OR UNLESS AN EXEMPTION FROM REGISTRATION IS
AVAILABLE.
IN WITNESS WHEREOF, the Company has executed this LIMITED LIABILITY
COMPANY CERTIFICATE as of November __, 2006.
NEXTWAVE WIRELESS LLC
By: NextWave Wireless Inc., Its Sole Member
By: _____________________________
Name:
Title:
THE OWNERSHIP INTERESTS IN NEXTWAVE WIRELESS LLC CONSTITUTE "SECURITIES" FOR
PURPOSES OF ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN THE STATE
OF DELAWARE, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.
TRANSFER CERTIFICATE
FOR
OWNERSHIP INTERESTS IN NEXTWAVE WIRELESS LLC
FOR VALUE RECEIVED,___________________________________________ hereby sells,
assigns and transfers unto _________________________________ the Ownership
Interests represented by the within Certificate and do hereby irrevocably
constitute and appoint ____________________________ Attorney to transfer said
Ownership Interests on the books of NextWave Wireless LLC with full power of
substitution in the premises.
Dated: ________________________
By: _____________________________
Name:
Title:
