EXHIBIT 2.1
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[EXECUTION COPY]
AMENDMENT NO. 1 TO
EXCHANGE AGREEMENT
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This Amendment No. 1 to Exchange Agreement (this "Amendment"), dated as
of May 15, 2007, is made by and among:
(a) The undersigned holders (each, a "Consenting Noteholder" and
collectively Consenting Noteholders") of certain 9-3/8% Senior
Subordinated Notes due 2011 (the "9-3/8% Notes") and/or 8-3/4%
Senior Subordinated Notes due 2011 (the "8-3/4% Notes" and together
with the 9-3/8% Notes, the "Notes"), in each case issued by SunCom
Wireless, Inc. (f/k/a Triton PCS, Inc.) ("Wireless"); and
(b) SunCom Wireless Holdings, Inc. ("Holdings"), the indirect parent of
Wireless, and SunCom Wireless Investment Company LLC ("Investco"),
the direct subsidiary of Holdings and direct parent of Wireless
(each of the foregoing, together with the Consenting Noteholders, a
"Party", and collectively, the "Parties").
RECITALS
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WHEREAS, the Parties have previously entered into that certain Exchange
Agreement, dated as of January 31, 2007 (the "Exchange Agreement");
WHEREAS, pursuant to Section 14.5(c) of the Exchange Agreement, such
Exchange Agreement may be amended by a written instrument executed by Holdings,
Investco and the Requisite Noteholders;
WHEREAS, Holdings, Investco and the Consenting Noteholders signatories
hereto, which constitute the Requisite Noteholders, wish to amend the Exchange
Agreement in accordance with the terms set forth in this Amendment; and
NOW, THEREFORE, in consideration of the foregoing and the promises, mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the Parties agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
For purposes of this Amendment, defined terms used herein and not
otherwise defined herein have the meaning given to such terms in the Exchange
Agreement.
SECTION 2. AMENDMENTS TO EXCHANGE AGREEMENT.
2.1. JOINDER.
Highland Credit Opportunities CDO, Ltd., by execution of this Amendment,
does hereby join and become a party to the Exchange Agreement, as amended by
this Amendment, as a Consenting Noteholder, subject to all of the rights,
restrictions, conditions and obligations applicable to the Consenting
Noteholders set forth in the Exchange Agreement as amended by this Amendment, as
if such Party were a signatory thereto as a Consenting Noteholder.
2.2. EXCHANGE.
Subject to the terms and conditions of this Amendment and the Exchange
Agreement, at the Closing, each Consenting Noteholder will exchange its Relevant
Interests, by transferring the applicable Notes to Investco pursuant to Section
2.2 of the Exchange Agreement, for the number of shares of Class A Stock
specified opposite such Consenting Noteholder's name on the revised Schedule I
to this Amendment. Schedule I to this Amendment amends, supersedes and replaces
in its entirety Schedule I attached to the Exchange Agreement or any prior
modifications thereof. At Closing, each Consenting Noteholder shall be obligated
to deliver the applicable Notes on Schedule I hereto in accordance with the
terms of the Exchange Agreement.
2.3. BOARD MAKEUP.
Section 9.1 of the Exchange Agreement is hereby amended and restated in
its entirety to read as follows:
"9.1. BOARD MAKEUP
(a) Effective immediately upon consummation of the Exchange, the Board
will be reconstituted as follows (collectively, the "New Board"): (i) Xxxxxxx X.
Xxxxxxxx, the Chairman and Chief Executive Officer of Holdings, and Xxxxx X.
Xxxxxxxx, Chairman of the Audit Committee of the Board (together, the
"Continuing Directors"), will remain on the Board and (ii) the remaining three
current directors will resign from the Board. Prior to the effectiveness of the
resignations of any of the members of the existing Board, the Board will act to
(A) increase the size of the Board to ten members and (B) approve the
appointment, effective immediately following the resignation of the three
current directors other than the Continuing Directors and the Closing, of (i)
two (2) new directors designated by Highland Capital Management, L.P., (ii)
three (3) new directors designated by Pardus Capital Management L.P., a number
(not less than one (1)) to be determined of whom will be independent (as
determined by the New Board) under New York Stock Exchange Rules (the "NYSE
Rules") and (iii) one (1) new directors designated by XxXxxx Xxxxx Capital LLC,
who will be independent (as determined by the New Board) under NYSE Rules, to
fill six of the vacant board seats created by the resignation of such directors
and the expansion of the Board. In addition, after the Closing, the eight
members of the New Board shall consider the appointment of (i) one (1)
additional new director designated by Highland Capital Management, L.P., who
will be independent (as determined by the New Board) under NYSE Rules and (ii)
one (1) additional new director designated by XxXxxx Xxxxx Capital LLC, who will
be independent (as determined by the New Board) under NYSE Rules, to fill the
two remaining vacant board seats created by the expansion of the size of the New
Board to ten members at Closing (the "Post-Closing Designees"). The Parties
agree that after Closing but on or prior to May 31, 2007, the New Board shall
consider as candidates for the Post-Closing Designees those Persons set forth on
Schedule II to this Amendment (the "Initial Post-Closing Designees"), and call
such vote or solicitation of unanimous written consent of the New Board as is
necessary to determine whether either or both of such Initial Post-Closing
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Designees shall receive unanimous approval of the eight members of the New Board
as required by the immediately following paragraph of this Section 9.1(a).
In the event that after Closing the New Board does not approve the
election or appointment of any Initial Post-Closing Designee or subsequently
submitted Post-Closing Designee by a unanimous favorable vote of the eight
members of the New Board, such Post-Closing Designee shall be automatically
deemed (without further action by the Parties) no longer eligible for membership
on the New Board and the Party or Parties with board appointment rights for such
director candidate shall submit successive replacement Post-Closing Designees
until a unanimous favorable vote or written consent of the entire eight members
of the New Board shall be obtained for each of the two Post-Closing Designees.
Notwithstanding the designation rights of particular Consenting Noteholders or
the requirements of Board unanimity set forth in this clause (a), each of the
Post-Closing Designees appointed to the New Board shall have relevant background
and experience and shall otherwise be reasonably acceptable to and consented to
by each then-incumbent member of the New Board, which consent shall not be
unreasonably withheld or delayed.
(b) The directors appointed by the Persons set forth in clause (B) of
the second sentence of the first paragraph of the immediately preceding clause
(a) (together with the Person making such appointment) are set forth on Schedule
II hereto. Each such newly appointed director will be elected to the director
class (e.g. class I, II or III) provided for in Holdings' certificate of
incorporation indicated next to such director's name on Schedule II hereto. The
two Post-Closing Designees to be appointed after Closing pursuant to the
immediately preceding clause (a) shall be elected to the director class
indicated under the name of the Person with the applicable appointment right as
set forth on Schedule II.
(c) If either of the two Continuing Directors ceases to serve as a
director for any reason at any time prior to the earlier of the consummation of
a Sale Transaction (as defined below) and the termination of the Sale
Transaction process by the New Board, the remaining Continuing Director will be
entitled to select a replacement with relevant qualifications and experience,
and Holdings and the Parties hereto with board appointment rights shall use
their commercially reasonable efforts to cause such selected replacement to be
appointed by the New Board to fill the vacancy; provided that any such
replacement must be reasonably acceptable to and consented to by the majority of
the New Board, which consent shall not be unreasonably withheld or delayed.
(d) In the event that a director designated pursuant to clause (a) of
this Section 9.1 (other than a Continuing Director) ceases to serve as director
for any reason after Closing (and, with respect to Post-Closing Designees, after
such director has been approved and elected by unanimous favorable vote or
consent of the New Board) but prior to the 2008 Annual Meeting of Stockholders
of Holdings, the vacancy resulting thereby shall be filled by an individual
designated and nominated by the Person that nominated the director who has
ceased to serve, provided that the individual so nominated shall have relevant
background and experience and shall otherwise be reasonably acceptable to and
consented to by the remainder of the New Board, which consent shall not be
unreasonably withheld or delayed, and Holdings and the Parties hereto with board
appointment rights shall take all action necessary to promptly elect, if
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necessary, such successor or replacement director to the New Board as soon as
practicable after the date of such vacancy.
(e) Each director appointed to the New Board shall execute a
confidentiality agreement in form and substance reasonably satisfactory to
Holdings prior to assuming his or her position on the New Board. The Parties
agree that the Recapitalization Documents, including any proxy solicitation
materials, shall reflect the arrangements set forth in this paragraph as and to
the extent required by law.
(f) Notwithstanding Section 14.5(c) of the Exchange Agreement, Holdings
shall not be authorized to execute or otherwise consent to any subsequent
amendment to this Section 9.1 after Closing without first obtaining the
unanimous favorable vote or consent of the New Board."
Schedule II to this Amendment amends, supersedes and replaces in its
entirety Schedule II attached to the Exchange Agreement or any prior
modifications thereof.
SECTION 3. MISCELLANEOUS TERMS.
3.1. EXCHANGE AGREEMENT REMAINS IN FULL FORCE AND EFFECT.
Except as specifically provided in this Amendment, the Exchange Agreement
shall remain in full force and effect and is ratified in all respects. On and
after the effectiveness of this Amendment, each reference in the Exchange
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import, and each reference to the Exchange Agreement in any other agreements,
documents or instruments executed and delivered pursuant to the Exchange
Agreement shall mean and be a reference to the Exchange Agreement, as amended by
this Amendment.
3.2. HEADINGS.
The headings of all sections of this Amendment are inserted solely for the
convenience of reference and are not a part of and are not intended to govern,
limit or aid in the construction or interpretation of any term or provision
hereof.
3.3. EXECUTION OF AMENDMENT.
This Amendment may be executed and delivered (by facsimile or otherwise)
in any number of counterparts, each of which, when executed and delivered, shall
be deemed an original, and all of which together shall constitute the same
agreement. Each individual executing this Amendment on behalf of a Party has
been duly authorized and empowered to execute and deliver this Amendment on
behalf of said Party.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date set forth above.
SUNCOM WIRELESS HOLDINGS, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SUNCOM WIRELESS INVESTMENT COMPANY LLC
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
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PARDUS EUROPEAN SPECIAL OPPORTUNITIES MASTER
FUND L.P.
By: Pardus Capital Management LP, its Investment
Manager
By: Pardus Capital Management LLC, its general
partner
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Sole Member
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CAPITAL RESEARCH AND MANAGEMENT COMPANY, for
and on behalf of American High-Income Trust
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Secretary
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for and
on behalf of The Bond Fund of America, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Secretary
CAPITAL RESEARCH AND MANAGEMENT COMPANY, for and
on behalf of The Income Fund of America, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Secretary
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XXXXXXXXX XXXXXX CREDIT (MASTER), LTD
By: XxXxxx Xxxxx Capital LLC, its investment
manager
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Partner and Chief Operating Officer
POND VIEW CREDIT (MASTER), L.P.
By: XxXxxx Xxxxx Capital LLC, its investment
manager
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Partner and Chief Operating Officer
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HIGHLAND CREDIT OPPORTUNITIES CDO, L.P.
By: Highland Credit Opportunities CDO GP, L.P.,
its general partner
By: Highland Credit Opportunities CDO GP, LLC,
its general partner
By: Highland Capital Management, L.P., its sole
member
By: Strand Advisors, Inc., its general partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Executive Vice President Strand
Advisors, Inc., General Partner of
Highland Capital Management, L.P.
HIGHLAND SPECIAL OPPORTUNITIES HOLDING COMPANY
By: /s/ J. Xxxxx Xxxxxxxx
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Name: J. Xxxxx Xxxxxxxx
Title: Officer
HIGHLAND CREDIT OPPORTUNITIES CDO, LTD.
By: Highland Capital Management, L.P., As
Collateral Manager
By: Strand Advisors, Inc., its general partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Executive Vice President Strand
Advisors, Inc., General Partner of
Highland Capital Management, L.P.
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HIGHLAND CRUSADER OFFSHORE PARTNERS, L.P.
By: Highland Crusader Fund GP, L.P., its general
partner
By: Highland Crusader GP, LLC., its general
partner
By: Highland Capital Management, L.P., its sole
member
By: Strand Advisors, Inc., its general partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Executive Vice President Strand
Advisors, Inc., General Partner of
Highland Capital Management, L.P.
HIGHLAND CREDIT STRATEGIES MASTER FUND, L.P.
By: Highland General Partner, L.P., its general
partner
By: Highland GP Holdings LLC, its general
partner
By: Highland Capital Management, LP, its sole
member
By: Strand Advisors, Inc., its general partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Executive Vice President Strand
Advisors, Inc., General Partner of
Highland Capital Management, L.P.
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HIGHLAND CDO OPPORTUNITY MASTER FUND, L.P.
By: Highland CDO Opportunity Fund GP, L.P., its
general partner
By: Highland CDO Opportunity Fund GP, LLC., its
general partner
By: Highland Capital Management, L.P., its sole
member
By: Strand Advisors, Inc., its general partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Executive Vice President Strand
Advisors, Inc., General Partner of
Highland Capital Management, L.P.
HIGHLAND CAPITAL MANAGEMENT SERVICES, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Officer
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HIGHLAND CREDIT STRATEGIES FUND
By: /s/ M. Xxxxx Xxxxxxxxx
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Name: M. Xxxxx Xxxxxxxxx
Title: Treasurer
RESTORATION OPPORTUNITIES FUND
By: /s/ M. Xxxxx Xxxxxxxxx
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Name: M. Xxxxx Xxxxxxxxx
Title: Treasurer
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ORIX FINANCE CORP.
By: /s/ Xxxxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxxxx X. Xxxxx
Title: Authorized Representative
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XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Partner, MD
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X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Associate
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