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EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
ALAMOSA PCS HOLDINGS, INC.
ALAMOSA SUB I, INC.
AND
ALAMOSA HOLDINGS, INC.
July 31, 2000
An Index of Defined Terms begins on Page iii
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TABLE OF CONTENTS
Page
ARTICLE 1 Mergers.......................................................................................A-3
1.1 The Mergers...................................................................................A-3
(a) The Mergers............................................................................A-3
(b) Consummation...........................................................................A-3
(c) Effective Time of the Merger...........................................................A-3
(d) Effect of the Merger...................................................................A-4
(e) The Surviving Corporation's Certificate of Incorporation;
Bylaws; Directors and Officers.........................................................A-4
1.2 Terms of the Merger...........................................................................A-4
(a) Conversion of Public Stock.............................................................A-4
(b) Conversion of Merger Sub Stock.........................................................A-4
(c) Rights as Holders of Public Stock and Merger Sub Stock.................................A-4
(d) Treasury Stock.........................................................................A-4
1.3 Stock Options.................................................................................A-5
(a) Options................................................................................A-5
(b) Option Plans...........................................................................A-5
(c) Stock Reserve; Form S-8; Listing Application...........................................A-5
1.4 Exchange Agent................................................................................A-5
1.5 Exchange Procedure............................................................................A-6
1.6 Distributions with Respect to Unexchanged Shares. ............................................A-6
1.7 Cancellation and Retirement of Shares.........................................................A-7
1.8 Termination of Exchange Fund..................................................................A-7
1.9 No Liability..................................................................................A-7
1.10 Tax Withholding...............................................................................A-7
ARTICLE 2 Closing the Transaction.......................................................................A-8
2.1 Closing.......................................................................................A-8
ARTICLE 3 Conditions To Consummating the Transaction....................................................A-8
3.1 Obligations of Public, Superholdings and Merger Sub...........................................A-8
(a) Stockholder Approval...................................................................A-8
(b) HSR Act................................................................................A-8
(c) No Litigation..........................................................................A-8
(d) Other Conditions to Closing............................................................A-9
ARTICLE 4 Termination...................................................................................A-9
4.1 Reasons for Termination.......................................................................A-9
4.2 Effect of Termination.........................................................................A-9
ARTICLE 5 Covenants of the Parties......................................................................A-9
5.1 Satisfaction of Conditions to Closing.........................................................A-9
(a) Defending the Agreement................................................................A-9
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(b) Lifting Injunctions....................................................................A-9
(c) Other Actions..........................................................................A-9
5.2 Section 16(b) Resolution - Superholdings.....................................................A-10
5.3 Section 16(b) Resolution - Public............................................................A-10
5.4 Public Stockholders Meeting..................................................................A-10
ARTICLE 6 Miscellaneous................................................................................A-10
6.1 Successors and Assigns.......................................................................A-10
6.2 Entire Agreement.............................................................................A-11
6.3 Amendment....................................................................................A-11
6.4 Governing Law................................................................................A-11
6.5 Extension; Waiver............................................................................A-11
6.6 Notices, Etc.................................................................................A-11
6.7 Third Party Beneficiary, Etc.................................................................A-12
6.8 Reformation; Severability....................................................................A-12
6.9 Counterparts.................................................................................A-12
6.10 Titles and Subtitles.........................................................................A-12
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INDEX OF DEFINED TERMS
Page
Agreement.........................................................................................................A-1
Articles.........................................................................................................A-12
Certificates of Merger............................................................................................A-3
Closing...........................................................................................................A-8
Closing Date......................................................................................................A-8
Code..............................................................................................................A-2
DGCL..............................................................................................................A-3
Effective Time....................................................................................................A-3
Exchange Agent....................................................................................................A-5
Exchange Fund.....................................................................................................A-6
HSR Act...........................................................................................................A-8
Merger Consideration..............................................................................................A-4
Merger Sub........................................................................................................A-1
Merger Sub Stock..................................................................................................A-1
Option Plan.......................................................................................................A-5
Options...........................................................................................................A-5
Parent Mergers....................................................................................................A-1
Public............................................................................................................A-1
Public Stock......................................................................................................A-4
Public Stockholders Meeting......................................................................................A-10
Reorganization....................................................................................................A-2
Xxxxxxx Agreement.................................................................................................A-1
Xxxxxxx LLC.......................................................................................................A-1
Xxxxxxx LLC Holdings..............................................................................................A-1
Xxxxxxx Merger....................................................................................................A-1
Sections.........................................................................................................A-12
Sister Agreements.................................................................................................A-3
Subsidiary Merger.................................................................................................A-2
Subsidiary Merger Surviving Corporation...........................................................................A-3
Substitute Option.................................................................................................A-5
Superholdings.....................................................................................................A-1
Superholdings Stock...............................................................................................A-1
Tax...............................................................................................................A-6
Taxes.............................................................................................................A-6
WOW Agreement.....................................................................................................A-1
WOW LLC...........................................................................................................A-1
WOW LLC Holdings..................................................................................................A-1
WOW Merger........................................................................................................A-1
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is entered
into as of July 31, 2000, by and among Alamosa PCS Holdings, Inc., a Delaware
corporation ("Public"), Alamosa Holdings, Inc., a Delaware corporation
("Superholdings"), and Alamosa Sub I, Inc., a Delaware corporation and
wholly-owned direct subsidiary of Superholdings ("Merger Sub").
R E C I T A L S
- - - - - - - -
A. The Board of Managers of Xxxxxxx Wireless Communications, L.L.C.
("Xxxxxxx LLC") has deemed it advisable and in the best interests of
its members that Xxxxxxx LLC and its members form a limited liability
company to hold all of such members' interests of Xxxxxxx LLC ("Xxxxxxx
LLC Holdings"), and that Xxxxxxx LLC Holdings merge with and into
Superholdings (the "Xxxxxxx Merger") pursuant to that certain Amended
and Restated Agreement and Plan of Reorganization by and among Public,
Superholdings, Merger Sub, Xxxxxxx LLC and the members of Xxxxxxx LLC,
dated as of July 31, 2000 (the "Xxxxxxx Agreement").
B. The Board of Managers of Washington Oregon Wireless, LLC ("WOW LLC")
has deemed it advisable and in the best interests of its members that
WOW LLC and its members form WOW Holdings, LLC, an Oregon limited
liability company ("WOW LLC Holdings") to hold all of such members'
interests of WOW LLC, and that WOW LLC Holdings merge with and into
Superholdings (the "WOW Merger" and together with the Xxxxxxx Merger,
the "Parent Mergers") pursuant to that certain Amended and Restated
Agreement and Plan of Reorganization by and among Public,
Superholdings, Merger Sub, WOW LLC, WOW Holdings LLC and certain
members of WOW LLC, dated as of July 31, 2000 (the "WOW Agreement").
C. As of the date hereof, there are no shares of common stock of
Superholdings, par value $0.01 per share ("Superholdings Stock"),
issued and outstanding and as of the date hereof, Superholdings holds
of record all of the issued and outstanding shares of common stock of
Merger Sub, par value $0.01 per share ("Merger Sub Stock").
D. The Board of Directors of Public has determined that in order to
complete the Parent Mergers in a tax-efficient manner, such
acquisitions should be structured as transactions described in Section
351(a) of the Internal Revenue Code of
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1986, as amended (the "Code"), which will require Public to form a new
holding company. The parties desire that the Parent Mergers, except as
provided in Sections 1.2(a)(ii) (Cash) and 1.8(b) (Cash Payments) of
the Xxxxxxx Agreement and the WOW Agreement, qualify as transactions
described in Section 351(a) of the Code.
E. The Board of Directors of Public deems it advisable and in the best
interests of its stockholders to consummate the merger of Merger Sub
and Public (the "Subsidiary Merger") simultaneously with the
consummation of the Parent Mergers. In furtherance thereof, the Board
of Directors of Public has approved the Subsidiary Merger, upon the
terms and subject to the conditions set forth herein, and has
recommended that the stockholders of Public approve the Subsidiary
Merger, upon the terms and subject to the conditions set forth herein.
F. The parties desire that the Subsidiary Merger qualify as a transaction
described in Sections 351(a) and 368(a)(1)(A) of the Code by virtue of
Section 368(a)(2)(E) of the Code. It is contemplated that the
Subsidiary Merger will be completed substantially simultaneously with
the merger or consolidation of Superholdings or one or more of its
subsidiaries with or into one or more business entities (including,
without limitation, the Parent Mergers) in a transaction of the type
described in Section 351(a) of the Code.
G. Similarly, the Board of Directors of Superholdings deems it advisable
to consummate the Subsidiary Merger simultaneously with the
consummation of the Parent Mergers. In furtherance thereof, the Board
of Directors of Superholdings has approved the Subsidiary Merger, upon
the terms and subject to the conditions set forth herein.
H. Further, the Board of Directors of Merger Sub deems it advisable and in
the best interests of its stockholders to consummate the Subsidiary
Merger simultaneously with the consummation of the Parent Mergers. In
furtherance thereof, the Board of Directors of Merger Sub has approved
the Subsidiary Merger, upon the terms and subject to the conditions set
forth herein, and has recommended that the sole stockholder of Merger
Sub approve the Subsidiary Merger, upon the terms and subject to the
conditions set forth herein. The Parent Mergers, the Subsidiary Merger
and the other transactions contemplated herein are collectively
referred to as the "Reorganization."
I. Public, Superholdings and Merger Sub acknowledge that they have
received adequate consideration for entering into, and have relied upon
the promises, covenants, representations and warranties contained in,
this Agreement, and that they will be benefitted by the transactions
contemplated herein.
J. Public, Superholdings and Merger Sub may enter into other agreements
(any such other agreements, the Xxxxxxx Agreement and the WOW Agreement
being
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collectively referred to herein as the "Sister Agreements")
pursuant to which other business entities join in the Reorganization.
A G R E E M E N T
-----------------
Based on the recitals set forth above and the representations,
warranties, covenants and agreements contained herein, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE 1
Mergers
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1.1 The Mergers.
(a) The Mergers. Upon the terms and subject to the
conditions set forth in this Agreement:
(i) Subsidiary Merger. Simultaneously with the
Parent Mergers, Merger Sub will merge with and into Public, in accordance with
the terms set forth herein. From and after the Effective Time, the separate
corporate existence of Merger Sub shall cease. Public shall continue as the
surviving corporation in the Subsidiary Merger (the "Subsidiary Merger Surviving
Corporation") and shall continue to be governed by the laws of the State of
Delaware. At the sole discretion of the Board of Directors of Public, as an
alternative structure to the Subsidiary Merger, Public may merge directly with
and into Superholdings, and Superholdings shall continue as the surviving
corporation and shall continue to be governed by the laws of the State of
Delaware.
(b) Consummation. Certificates of Merger (herein so called)
shall be filed with the secretary of state of the State of Delaware in the
following order: (i) a Certificate of Merger with respect to the Xxxxxxx Merger,
(ii) a Certificate of Merger with respect to the WOW Merger, (iii) a Certificate
of Merger with respect to the Subsidiary Merger and (iv) Certificates of Merger,
if any, with respect to any other Sister Agreements, together with all other
documents, notices and filings required by the Delaware General Corporation Law
("DGCL").
(c) Effective Time of the Merger. The Certificate of Merger
shall provide that the Subsidiary Merger shall be effective as of the date and
time set forth in the Certificate of Merger filed with the Secretary of State of
the State of Delaware (the "Effective Time").
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(d) Effect of the Merger. At the Effective Time, the effect of
the Subsidiary Merger shall be as provided in Section 259 and Section 261 of the
DGCL.
(e) The Surviving Corporation's Certificate of Incorporation;
Bylaws; Directors and Officers. The certificate of incorporation and bylaws of
Public, as in effect at the Effective Time, shall be the certificate of
incorporation and bylaws of the Subsidiary Merger Surviving Corporation. At the
Effective Time, the Board of Directors and officers of the Subsidiary Merger
Surviving Corporation shall be composed of the entire Board of Directors of
Public and officers of Public serving immediately before the Effective Time who
shall hold office until their respective successors are duly elected or
appointed and qualified.
1.2 Terms of the Merger. The consideration payable to the Stockholders
as set forth below in this Section 1.2 in connection with the Subsidiary Merger
is sometimes referred to herein as the "Merger Consideration."
(a) Conversion of Public Stock. Each share of common stock of
Public, par value $0.01 (the "Public Stock"), issued and outstanding immediately
prior to the Effective Time together with the related rights distributed to
holders of Public Stock pursuant to the Rights Agreement, dated as of January
31, 2000, between Public and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent (other than shares of Public Stock held in Public's treasury) shall, at
the Effective Time, by virtue of the Subsidiary Merger and without any action on
the part of the holder thereof, be converted into, as specified and pursuant to
the terms of this Section 1.2(a), the right to receive one duly authorized,
validly issued, fully paid and nonassessable share of Superholdings Stock, along
with any dividends or distributions thereon after the Effective Time.
(b) Conversion of Merger Sub Stock. Each share of Merger Sub
Stock issued and outstanding immediately prior to the Effective Time (other than
shares of Merger Sub Stock held in Merger Sub's treasury) shall, at the
Effective Time, by virtue of the Subsidiary Merger and without any action on the
part of the holder thereof, be converted into one duly authorized, validly
issued, fully paid nonassessable share of stock of the Subsidiary Merger
Surviving Corporation.
(c) Rights as Holders of Public Stock and Merger Sub Stock. On
and after the Effective Time, holders of certificates which immediately prior to
the Effective Time represented issued and outstanding shares of Public Stock or
Merger Sub Stock shall cease to have any rights as stockholders of Public or
Merger Sub, respectively, except the right to receive the consideration set
forth herein in Section 1.2(a) (Conversion of Public Stock) or Section 1.2(b)
(Conversion of Merger Sub Stock) with respect to each share held by them.
(d) Treasury Stock. At the Effective Time all shares of Public
Stock and Merger Sub Stock that are owned by Public or Merger Sub, respectively,
as
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treasury stock shall be cancelled and shall cease to exist and no stock of
Superholdings or other consideration shall be delivered in exchange therefor.
1.3 Stock Options.
(a) Options. At the Effective Time, each then-outstanding
option to purchase Public Stock under Public's 1999 Long Term Incentive Plan
(collectively, the "Options" under the "Option Plan"), whether or not then
exercisable or fully vested, shall be assumed by Superholdings for all purposes
and shall be converted into an option (a "Substitute Option") to acquire, on
substantially the same terms and subject to substantially the same conditions as
were applicable under such Option (including without limitation term, exercise
price per share, vesting, exercisability, status as an "incentive stock option"
(if applicable) under Section 422 of the Code or as an employee stock purchase
plan option (if applicable) under Section 423 of the Code, and termination
provisions), a number of shares of Superholdings Stock determined by
multiplying the number of shares of Public Stock subject to such Option
immediately prior to the Effective Time by 1.0.
(b) Option Plans. Public shall use its reasonable best efforts
to obtain all necessary waivers, consents or releases from holders of Options
under the Option Plan, if any, and take any such other action as may be
reasonably necessary to give effect to the transactions contemplated by this
Section 1.3.
(c) Stock Reserve; Form S-8; Listing Application.
Superholdings shall take all corporate action necessary to reserve for issuance
a sufficient number of shares of Superholdings Stock for delivery upon exercise
of Substitute Options pursuant to the terms set forth in Section 1.3(a)
(Options). Within a reasonable time after the Effective Time, the shares of
Superholdings Stock subject to Substitute Options will be covered by an
effective registration statement on Form S-8 (or any successor form) or another
appropriate form, and Superholdings shall use its reasonable best efforts to
maintain the effectiveness of such registration statement for so long as the
Substitute Options remain exercisable and outstanding. In addition,
Superholdings shall use its reasonable best efforts to cause the shares of
Superholdings Stock subject to Substitute Options to be listed on The Nasdaq
Stock Market and such other exchanges, if any, as Superholdings shall determine.
1.4 Exchange Agent. Prior to or concurrently with the Effective Time,
Superholdings shall enter into an agreement with such bank or trust company as
may be designated by Superholdings (the "Exchange Agent"), which shall provide
that Superholdings shall deposit with the Exchange Agent as of the Effective
Time, for the benefit of the holders of Public Stock and for exchange in
accordance with this Agreement, through the Exchange Agent, (a) certificates
representing the shares of Superholdings Stock, (b) any dividends or
distributions with respect thereto with a
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record date after the Effective Time, and (c) any cash payable in lieu of any
fractional shares of Superholdings Stock. All things deposited with and held by
the Exchange Agent pursuant to this Section 1.4 are collectively referred to as
the "Exchange Fund."
1.5 Exchange Procedure. After the Effective Time, each holder of Public
Stock that is entitled to receive Merger Consideration pursuant to Section 1.2
(Terms of the Merger) shall surrender the certificates representing same to the
Exchange Agent, together with a Release and an Indemnification Agreement.
Subject to Section 1.10 (Tax Withholding), at the time of such surrender or
delivery, the Merger Consideration applicable to such Public Stock held by such
Public stockholder shall be delivered to such holder of Public Stock. The Merger
Consideration shall be deemed, when paid or issued hereunder, to have been paid
or issued, as the case may be, in full satisfaction of all rights and
obligations pertaining to the surrendered Public Stock. No interest shall be
paid or accrued on any cash payable upon the surrender of any shares of Public
Stock.
After the Effective Time, there shall be no transfers on the
stock transfer books of Public of the shares of Public Stock which were issued
and outstanding immediately prior to the Effective Time. If a cash payment is to
be made, or shares of Superholdings Stock are to be issued, to a person other
than the person who surrendered the Public Stock, it shall be a condition of
payment that the Public Stock so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the person requesting such
payment shall pay any transfer or other Taxes required by reason of the payment
to a person other than the registered holder of the surrendered Public Stock, or
established to the satisfaction of Superholdings that such Taxes have been paid
or are not applicable.
As used herein, the term "Taxes" means all federal, state,
local, foreign and other governmental net income, gross income, gross receipts,
sales, use, ad valorem, transfer, franchise, profits, license, lease, service,
service use, withholding, payroll, employment, unemployment, excise, severance,
stamp, occupation, premium, property, windfall profits, customs, duties or other
taxes, fees, assessments or charges of any kind whatever, together with any
interest and any penalties, additions to tax or additional amounts with respect
thereto, and the term "Tax" means any one of the foregoing Taxes.
1.6 Distributions with Respect to Unexchanged Shares. No dividends or
other distributions with respect to Superholdings Stock shall be paid to the
holder of any unsurrendered Public Stock with respect to the shares of
Superholdings Stock issuable upon the surrender of such Public Stock pursuant to
Section 1.5 (Exchange Procedure), and all such dividends and other distributions
shall be paid by Superholdings to the Exchange Agent and shall be included in
the Exchange Fund, in each case until the surrender of such Public Stock
pursuant to Section 1.5 (Exchange Procedure). Subject to the effect of
applicable escheat or similar laws and subject to Section 1.10 (Tax
Withholding), after the surrender of a stock certificate in accordance
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with this Section 1.6, the record holder thereof shall be entitled to receive
any such dividends or other distributions, without any interest thereon, which
theretofore had become payable with respect to shares of Superholdings Stock
represented by such stock certificate. No holder of an unsurrendered stock
certificate shall be entitled, until the surrender of such certificate, to vote
the shares of Superholdings Stock into which the shares of Public Stock
represented thereby shall have been converted.
1.7 Cancellation and Retirement of Shares. As of the Effective Time,
all shares of Public Stock and Merger Sub Stock issued and outstanding
immediately prior to the Effective Time shall cease to be outstanding and shall
automatically be canceled and retired and shall cease to exist.
1.8 Termination of Exchange Fund. Any portion of the Exchange Fund
which remains undistributed to the holders of Public Stock for 180 days after
the Effective Time shall be delivered to Superholdings, upon demand, and any
holders of Public Stock that have not theretofore complied with this Article 1
shall thereafter look only to Superholdings, and only as general creditors
thereof, for payment of their claim for any Merger Consideration and any
dividends or distributions with respect to Superholdings Stock, as provided
herein.
1.9 No Liability. None of Public, Superholdings, Merger Sub, Subsidiary
Merger Surviving Corporation or the Exchange Agent shall be liable to any person
in respect of any payments or distributions payable from the Exchange Fund
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law. If any Public Stock shall not have been surrendered
prior to five years after the Effective Time (or immediately prior to such
earlier date on which any Merger Consideration in respect of such Public Stock
would otherwise escheat to or become the property of any governmental entity),
any amounts payable in respect of such Public Stock shall, to the extent
permitted by applicable law, become the property of Superholdings, free and
clear of all claims or interest of any person previously entitled thereto.
1.10 Tax Withholding. Superholdings shall be entitled to deduct and
withhold, or cause to be deducted or withheld, from the consideration otherwise
payable pursuant to this Agreement to any holder of Public Stock, options or
warrants to acquire Public Stock such amounts as are required to be deducted and
withheld with respect to the making of such payment under the Code, or any
provision of applicable state, local or foreign tax law. To the extent that
amounts are so deducted and withheld, such deducted and withheld amounts shall
be treated for all purposes of this Agreement as having been paid to such
holders in respect of which such deduction and withholding was made.
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ARTICLE 2
Closing the Transaction
-----------------------
2.1 Closing. On the third business day after the satisfaction or
written waiver of the latest to occur of the conditions set forth in Article 3
(Conditions to Consummating the Transaction) hereof (other than execution,
filing or delivery of agreements, certificates, legal opinions or other
instruments to be delivered at Closing), or as otherwise agreed by the parties
hereto, the consummation of the transactions provided for herein (the "Closing")
shall take place at the offices of Xxxxxx and Xxxxx, LLP, counsel to
Superholdings, Public and Merger Sub, located at 0000 X. Xxxxxxx Xxxx., Xxxxx
0000, Xxxxxxxxxx, Xxxxx 00000, at 10:00 a.m., local time, or at such other place
or by such other means as the parties hereto may agree; provided, however, that
at the option of Superholdings and Public, the Closing of this Agreement may be
delayed in order to achieve satisfaction or waiver of the conditions contained
in one or more Sister Agreements, but not later than March 31, 2001; provided,
further, that the Closing shall not occur if either this Agreement has been
validly terminated pursuant to the provisions of Article 4 (Termination) hereof
or all Sister Agreements have been validly terminated in accordance with their
terms. The time and date of the Closing are referred to herein as the "Closing
Date."
ARTICLE 3
Conditions To Consummating the Transaction
------------------------------------------
3.1 Obligations of Public, Superholdings and Merger Sub. The
obligations of Public, Superholdings and Merger Sub to consummate the
transactions provided for in this Agreement are subject to the satisfaction, at
or prior to the Closing, of the following conditions:
(a) Stockholder Approval. This Agreement shall have been
adopted by the affirmative vote of the holders of the requisite number of shares
of capital stock of Public in the manner required pursuant to Public's
certificate of incorporation and bylaws, the DGCL and other applicable law.
(b) HSR Act. The waiting period prescribed by the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the rules and
regulations promulgated thereunder (the "HSR Act") shall have expired or early
termination of the waiting period under the HSR Act shall have been granted.
(c) No Litigation. No action, suit or proceeding (other than
such an action, suit or proceeding directly or indirectly instituted by a party
hereto) shall be threatened or pending, and no preliminary or permanent
injunction, order, decree or ruling shall be in effect, seeking to restrain or
prohibit, or to obtain damages or other relief in connection with, the execution
and delivery of this Agreement or the consummation of the transactions
contemplated by the foregoing.
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(d) Other Conditions to Closing. All conditions precedent to
the consummation of at least one of the Sister Agreements shall have been
satisfied or duly waived in accordance with the terms of such applicable
agreement; provided, however, that the condition precedent of such applicable
agreement which states that all conditions to the consummation of the Subsidiary
Merger shall have been satisfied, need not be satisfied.
ARTICLE 4
Termination
-----------
4.1 Reasons for Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Effective Time, notwithstanding adoption thereof by the stockholders of Public,
Superholdings or Merger Sub, only by following the termination procedures set
forth in this Article 4, for the following reason:
Termination of the Xxxxxxx and WOW Agreements. If all of the
Sister Agreements are terminated prior to the consummation of the Parent
Mergers.
4.2 Effect of Termination. Upon termination hereof pursuant to this
Article 4, no party shall have any liability or continuing obligation to another
party arising out of this Agreement, or out of actions taken in connection
herewith, except that Article 6 (Miscellaneous) shall survive termination
hereof.
ARTICLE 5
Covenants of the Parties
------------------------
5.1 Satisfaction of Conditions to Closing. Each party shall use its
reasonable best efforts to satisfy the conditions to the obligations of the
parties hereunder, and to consummate and make effective as promptly as
practicable the transactions provided for herein including:
(a) Defending the Agreement. Defending lawsuits or
other legal proceedings challenging this Agreement or the consummation of the
transactions provided for in this Agreement;
(b) Lifting Injunctions. Using reasonable best efforts
to lift or rescind any injunction, restraining order or other order adversely
affecting the ability of the parties to consummate the transactions provided
for in this Agreement; and
(c) Other Actions. Taking such other reasonable actions that
are necessary, appropriate or advisable, including, without limitation, using
reasonable best
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efforts to obtain all approvals, and all consents of third parties to contracts
as are necessary for the consummation of the Reorganization. In case at any time
after the Effective Time any further action is necessary or desirable to carry
out the purposes of this Agreement, each party and its officers and directors
shall use their reasonable best efforts to take all such action.
5.2 Section 16(b) Resolution - Superholdings. Prior to the Closing
Date, the Board of Directors of Superholdings shall pass a resolution approving,
for purposes of Rule 16b-3 of the Exchange Act, the issuance of Superholdings
Stock and other equity securities (derivative on nonderivative) pursuant to the
Subsidiary Merger, to the directors, officers and other persons subject to
potential liability under Section 16(b) of the Exchange Act, which resolution
shall specifically refer to such directors, officers and other persons and the
number of shares of Superholdings Stock and other equity securities (derivative
on nonderivative) issued to such persons pursuant to the Subsidiary Merger.
5.3 Section 16(b) Resolution - Public. Prior to the Closing Date, the
Board of Directors of Public shall pass a resolution approving, for purposes of
Rule 16b-3 of the Exchange Act, the disposition of Public Stock and other equity
securities (derivative on nonderivative) pursuant to the Subsidiary Merger, by
the directors, officers and other persons subject to potential liability under
Section 16(b) of the Exchange Act, which resolution shall specifically refer to
such directors, officers and other persons and the number of shares of Public
Stock and other equity securities (derivative on nonderivative) disposed of by
such persons pursuant to the Subsidiary Merger.
5.4 Public Stockholders Meeting. Public shall take all action
necessary, in accordance with the DGCL, the Exchange Act and other applicable
law and its certificate of incorporation and bylaws, to convene and hold a
special meeting of the stockholders of Public (the "Public Stockholders
Meeting") as promptly as practicable after the date hereof for the purpose of
considering and voting upon this Agreement.
ARTICLE 6
Miscellaneous
-------------
6.1 Successors and Assigns. The provisions hereof shall inure to the
benefit of, and be binding upon, the permitted assigns, successors, heirs,
executors and administrators of the parties hereto. This Agreement may not be
assigned without the written consent of Public, Superholdings and Merger Sub and
any attempted assignment without such consent shall be null and void; provided,
however, Public, Superholdings and Merger Sub may assign any of its rights
and obligations hereunder to one of its affiliates (as such term is defined in
Rule 405 promulgated under the
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Securities Act of 1933, as amended); provided, further, that any assignment
hereunder shall not relieve any party of any obligations or liabilities
hereunder and will not adversely impact the intended tax treatment of the
Reorganization as described in Recital F hereof.
6.2 Entire Agreement. This Agreement and the other documents delivered
pursuant hereto and referenced herein constitute the full and entire
understanding and agreement between the parties and supersede any other
agreement, written or oral, with regard to the subject matter hereof.
6.3 Amendment. Subject to any applicable provisions of the DGCL, at any
time prior to the Effective Time, the parties hereto may modify or amend this
Agreement by written agreement executed and delivered by duly authorized
officers of the respective parties; provided, however, that after adoption of
this Agreement at the Public Stockholders Meeting, no amendment shall be made
which would reduce the amount or change the type of consideration into which
shares of Public Stock shall be converted upon consummation of the
Reorganization.
6.4 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware.
6.5 Extension; Waiver. At any time prior to the Effective Time, the
parties may (a) extend the time for the performance of any of the obligations or
other acts of the other parties, (b) waive any inaccuracies in the
representations and warranties of the other parties contained in this Agreement
or in any document delivered pursuant to this Agreement, or (c) subject to
Section 6.3 (Amendment), waive compliance with any of the agreements or
conditions of the other parties contained in this Agreement. Any agreement on
the part of a party to any such extension or waiver shall be valid only if set
forth in a written instrument executed and delivered by a duly authorized
officer on behalf of such party. The failure of any party to this Agreement to
assert any of its rights under this Agreement or otherwise shall not constitute
a waiver of such rights.
6.6 Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by certified or
registered mail, postage prepaid with return receipt requested, telecopy (with
hard copy delivered by overnight courier service), or delivered by hand,
messenger or overnight courier service, and shall be deemed given when received
at the addresses or telecopy numbers of the parties set forth below, or at such
other address or telecopy number furnished in writing to the other parties
hereto:
If to Public, Superholdings Alamosa PCS Holdings, Inc.
or Merger Sub: 0000 X. Xxxx 000
Xxxxx 000
Xxxxxxx, Xxxxx 00000
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Attention: Xxxxx X. Xxxxxxxx,
Chief Executive Officer
(000) 000-0000 (fax)
with copies to: Xxxxxx and Xxxxx, LLP
0000 Xxxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
(000) 000-0000 (fax)
6.7 Third Party Beneficiary, Etc. There shall be no third party
beneficiary hereof. Neither the availability of, nor any limit on, any remedy
hereunder limits the remedies of any party hereto against third parties.
6.8 Reformation; Severability. In case any provision hereof shall be
invalid, illegal or unenforceable, such provision shall be reformed to best
effectuate the intent of the parties and permit enforcement hereof, and the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. If such provision is not capable of
reformation, it shall be severed from this Agreement and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
6.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument. Any counterpart may be delivered
by facsimile and shall be treated as an original, provided that attachment
thereof shall constitute the representation and warranty of the person
delivering such signature that such person has full power and authority to
attach such signature and to deliver this Agreement.
6.10 Titles and Subtitles. The titles of the paragraphs and
subparagraphs hereof are for convenience of reference only and are not to be
considered in construing this Agreement. References to "Articles" and "Sections"
herein are references to articles and sections of this Agreement, respectively.
The words "herein," "hereof," "hereto" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
* * * * *
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This Agreement has been executed and delivered as of the date first
written above.
ALAMOSA PCS HOLDINGS, INC.:
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
ALAMOSA SUB I, INC.:
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
ALAMOSA HOLDINGS, INC.:
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
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