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Exhibit 10.29
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of October 31, 1997, between
US Towers, Inc., a Delaware corporation ("US Towers" or the "Surviving
Corporation") and SpectraSite Communications, LLC, an Arkansas limited liability
company ("SpectraSite Communications") (such entities are herein sometimes
collectively called the "Constituent Entities").
RECITALS
US Towers is a corporation duly organized and existing under the laws of
the State of Delaware, having been incorporated on November 13, 1996, by a
Certificate of Incorporation filed with the Secretary of State of the State of
Delaware and recorded in the Office of the Recorder of Deeds of the County of
New Castle, Delaware, on that date. The registered office of US Towers in the
State of Delaware is located at 0000 Xxxxxx Xxxx, xx xxx Xxxx xx Xxxxxxxxxx,
Xxxxxx of New Castle, and the name of its registered agent at such office is
Corporation Service Company.
SpectraSite Communications is a limited liability company duly organized
and existing under the laws of the State of Arkansas, having been organized on
August 4, 1995, by Articles of Organization filed with the Secretary of State of
the State of Arkansas on that date. The registered office of SpectraSite
Communications in the State of Arkansas is located at 0000 Xxxxxxxxx Xxxx,
Xxxxxx Xxxx, Xxxxxxxx, and the name of its registered agent at such office is
Price X. Xxxxxxx.
US Towers has an authorized capitalization consisting of 5,000,000 shares
of Common Stock, $0.001 par value per share ("US Towers Common Stock"), 850,000
of which have been validly issued, are outstanding and owned by SpectraSite
Holdings, Inc., a Delaware corporation ("SpectraSite Holdings").
SpectraSite Communications has an authorized capitalization consisting of
one hundred units of membership interests, all of which have been validly
issued, are outstanding and owned by SpectraSite Holdings.
The Boards of Directors, stockholders, and members of the Constituent
Entities deem it desirable, upon the terms and subject to the conditions herein
stated, that SpectraSite Communications be merged with and into US Towers (the
"Merger") and that US Towers be the Surviving Corporation, with the outstanding
membership interests of SpectraSite Communications converted into shares of US
Towers Common Stock.
AGREEMENT
NOW, THEREFORE, it is agreed as follows:
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Section 1
Terms
1.1 On the Effective Date (as hereinafter defined) of the Merger,
SpectraSite Communications shall be merged with and into US Towers with US
Towers being the Surviving Corporation.
1.2 On the Effective Date of the Merger, the Surviving Corporation will
have the name "SpectraSite Communications, Inc."
1.3 On the Effective Date of the Merger: (a) each of the then
outstanding membership interests of SpectraSite Communications, by virtue of the
Merger and without any action on the part of the holder thereof, shall be
cancelled and shall cease to exist; and (b) all of the membership interests of
SpectraSite Communications held in the treasuries of SpectraSite Communications
and all of the membership interests of SpectraSite Communications owned by
SpectraSite Holdings shall be cancelled and shall cease to exist.
1.4 On the Effective Date of the Merger, all of the assets and
properties of SpectraSite Communications shall be vested in the Surviving
Corporation without reversion or impairment, and the Surviving Corporation shall
be liable for all liabilities of SpectraSite Communications.
Section 2
Effective Date
2.1 As provided by the applicable laws of the States of Delaware and
Arkansas, as appropriate, this Agreement shall be adopted by written consent of:
(a) the sole stockholder of the Surviving Corporation; and (b) the sole member
of SpectraSite Communications. Following such adoption and if this Agreement is
not terminated as contemplated by Section 4, a Certificate of Merger, executed
in accordance with the laws of the State of Delaware, shall be filed with the
Secretary of State of the State of Delaware, and Articles of Merger, executed in
accordance with the laws of the State of Arkansas, shall be filed with the
Secretary of State of the State of Arkansas.
2.2 The Merger shall become effective at 11:59 p.m. Eastern Standard
Time (10:59 p.m. Central Standard Time), October 31, 1997, the time and date
specified in the Certificate of Merger filed with the Secretary of State of the
State of Delaware, and in the Articles of Merger filed with the Secretary of
State of the State of Arkansas, herein sometimes referred to as of the
"Effective Date" of the Merger.
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Section 3
Certificate of Incorporation and Bylaws; Directors
3.1 The Certificate of Incorporation and Bylaws of US Towers, as in
effect immediately prior to the Effective Date, shall be the Certificate of
Incorporation and Bylaws of the Surviving Corporation until further amended as
provided by law.
3.2 The Board of Directors of US Towers immediately prior to the
Effective Date of the Merger shall be the Board of Directors of the Surviving
Corporation.
Section 4
Amendment and Termination
4.1 To the extent permitted by law, this Agreement may be amended by an
agreement in writing, before or after action by the sole stockholder of US
Towers, and the sole member of SpectraSite Communications, at any time prior to
the Effective Date of the Merger, with respect to any of the terms contained
herein.
4.2 To the extent permitted by law, this Agreement may be terminated
and abandoned by the Board of Directors of US Towers or the Board of Directors
of SpectraSite Communications, before or after action by the sole stockholder of
US Towers and the sole member of SpectraSite Communications, at any time prior
to the Effective Date of the Merger.
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IN WITNESS WHEREOF, US Towers, SpectraSite Communications, and SpectraSite
Holdings have each caused this Agreement to be executed by its President and
attested by its Secretary, all as of the date first above written.
ATTEST: US TOWERS, INC.
/s/ XXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXX
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Xxxxx X. Xxxxxx, Secretary Xxxxxxx X. Xxxxx, President
SPECTRASITE COMMUNICATIONS, LLC
ATTEST: By: SpectraSite Holdings, Inc.
Its Sole Member
/s/ XXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXX
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Xxxxx X. Xxxxxx, Secretary Xxxxxxx X. Xxxxx, President
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CERTIFICATE OF THE SECRETARY
OF
US TOWERS, INC.
I, Xxxxx X. Xxxxxx, the Secretary of US Towers, Inc., hereby certify that
the Agreement and Plan of Merger to which this certificate is attached, after
having been first duly signed on behalf of the corporation by the President and
Secretary, was duly approved and adopted by written consent in lieu of a meeting
of the sole stockholder of US Towers, Inc. dated October 31, 1997.
WITNESS my hand and seal of said corporation this 31st day of October,
1997.
/s/ XXXXX X. TOMMICK
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Xxxxx X. Xxxxxx, Secretary
CERTIFICATE OF THE SECRETARY
OF
SPECTRASITE HOLDINGS, INC.
I, Xxxxx X. Xxxxxx, the Secretary of SpectraSite Holdings, Inc., the sole
member of SpectraSite Communications, LLC, hereby certify that the Agreement and
Plan of Merger to which this certificate is attached, after having been first
duly signed on behalf of the company by the President and Secretary, was duly
approved and adopted by written consent in lieu of a meeting of the sole member
of SpectraSite Communications, LLC dated October 31, 1997.
WITNESS my hand and seal of said corporation this 31st day of October,
1997.
/s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx, Secretary
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