AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of February ___, 2001, by
and among Sunshine PCS Corporation, a Delaware corporation (the "Corporation"),
and Fortunet Communications, L.P., a limited partnership (the Partnership"),
said Corporation and Partnership being herein sometimes collectively called the
"Constituent Entities."
WITNESSETH:
WHEREAS, the Constituent Entities desire that the Partnership merge
with and into the Corporation with the Corporation being the surviving entity;
WHEREAS, the Board of Directors and sole stockholder of the Corporation
and the sole General Partner and sole Limited Partner of the Partnership have
approved this Agreement and Plan of Merger and deem it desirable, upon the terms
herein stated, for the Partnership to merge (the "Merger") with and into the
Corporation, with the Corporation being the surviving entity (the Corporation
sometimes being referred to during the period following the Merger as the
"Surviving Corporation"), with the equity interest of the sole General Partner
in the partnership being converted into shares of Class B Common Stock of the
Corporation and the equity interest of the sole Limited Partner being converted
into shares of Class A Common Stock of the Corporation; and
NOW, THEREFORE, the parties hereto have agreed as follows:
SECTION 1
TERMS
1.1 Upon the Effective Date of the Merger (as hereinafter
defined), the Partnership shall merge with and into the Corporation, with the
Corporation being the Surviving Corporation.
1.2 Upon the Effective date of the Merger:
(a) The one outstanding share of Common Stock of the
Corporation shall remain outstanding as one share of Class B Common Stock.
(b) The equity interest of the sole General Partner
in the Partnership shall, by virtue of the merger and without any action on the
part of the General Partner, be converted into [2,833,075] shares of Class B
Common Stock of the Corporation.
(c)The equity interest of the sole Limited Partner in
the Partnership shall, by virtue of the merger and without any action on the
part of the Limited Partner, be converted into [2,821,766] shares of Class A
Common Stock of the Corporation.
1.3 Each of the General Partner and Limited Partner of the
Partnership after the Effective Date of the Merger shall be entitled to receive
a stock certificate or certificates representing the correct number of shares of
Class A or Class B Common Stock, as the case may be, as described in subsection
1.2 above.
SECTION 2
EFFECTIVE DATE
2.1 The merger shall become effective upon compliance with the
laws of the State of Delaware, herein sometimes referred to as the "effective
Date of the Merger."
SECTION 3
REPRESENTATIONS AND WARRANTIES
Each Constituent Entity represents and warrants to the other
Constituent Entity, as follows:
3.1 Corporate Organization. Such Constituent Entity has been
duly organized and is validly existing as a corporation or limited partnership,
as the case may be, in good standing under the laws of the State of Delaware and
has the corporate power and authority to own or lease its properties and to
conduct its business as it is now being conducted.
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3.2 Due Authorization. Such Constituent Entity has all
requisite corporate power and authority to execute and deliver this Agreement
and to perform all obligations to be performed by it thereunder. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized and approved, in the
case of the Corporation, by the Board of Directors and stockholders of the
Corporation and, in the case of the Partnership, by the sole General Partner and
sole Limited Partner of the Partnership.
SECTION 4
CERTIFICATE OF INCORPORATION AND BY-LAWS; CAPITAL; OFFICERS AND DIRECTORS
4.1 The Certificate of Incorporation of the Corporation, as
set forth in Exhibit A annexed hereto, and all the terms and provisions thereof
are hereby incorporated in this Agreement and made a part hereof with the same
force and effect as if herein set forth in full; and, from and after the
Effective Date of the Merger and, until further amended as provided by law, said
Exhibit A, separate and apart from this Agreement, shall be and may be
separately certified as, the Certificate of Incorporation of the Surviving
Corporation.
4.2 The By-Laws of the Corporation as set forth in Exhibit B
annexed hereto shall be the By-Laws of the Surviving Corporation, to remain
unchanged until amended in accordance with the provisions thereof and of
applicable law.
4.3 The directors of the Surviving Corporation on the
Effective Date of the Merger will be the directors of the Corporation
immediately preceding the Merger.
Such directors will continue in their capacities in accordance with applicable
law, the Certificate of Incorporation and the Laws of the Surviving Corporation.
4.4 The officers of the Surviving Corporation on the Effective
Date of the Merger will be the officers of the Corporation immediately preceding
the Merger.
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Such officers will continue in their capacities in accordance with applicable
law, the Certificate of Incorporation and the Laws of the Surviving Corporation.
IN WITNESS WHEREOF, the Corporation and the Partnership have
each caused this Agreement to be executed all as of the date first above
written.
ATTEST: SUNSHINE COMMUNICATIONS CORPORATION
_______________ By: ___________________
Xxxxxx X. Xxxxx Xxxxx X. Xxxxxxx
Asst. Secretary President
FORTUNET COMMUNICATIONS, L.P.
By Fortunet Wireless Communications
Corporation, its sole General Partner
By: ____________________
Xxxxx X. Xxxxxxx
President
And by
XXXXX PCS CORPORATION A, its sole
ATTEST: Limited Partner
________________ By: ____________________
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxx
Secretary President
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