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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), dated as of
October 18, 1999, is by and between Aether Systems, Inc., a Delaware corporation
(the "Corporation"), and Aether Systems LLC, a Delaware limited liability
company (formerly Aether Technologies International, L.L.C., and referred to
herein as the "LLC").
WITNESSETH
WHEREAS, the LLC has determined (i) to offer equity securities to
the public (the "IPO") pursuant to a registration statement on Form S-1 filed
with the Securities and Exchange Commission (the "Registration Statement") and
(ii) in connection with the IPO, to convert into a corporation; and
WHEREAS, the Board of Directors and the sole stockholder of the
Corporation have approved and adopted this Agreement, and the Managers and
Members of the LLC have approved and adopted this Agreement by Super Majority
Approval.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties to this Agreement covenant and agree
as follows:
ARTICLE I
THE MERGER
1.1 The Merger; Surviving Corporation. Subject to the terms and
conditions set forth in this Agreement, at the Effective Time (as defined in
Section 1.3 below), the LLC shall be merged with and into the Corporation,
pursuant to Section 264 of the Delaware General Corporation Law (the "DGCL") and
Section 18-209 of the Delaware Limited Liability Company Act (the "DLLCA"), and
the separate existence of the LLC shall cease. The Corporation shall be the
surviving entity (the "Surviving Corporation") and shall continue to be governed
by the DGCL.
1.2 Condition to the Merger. The LLC and the Corporation shall not
consummate the Merger unless and until there shall have occurred the closing of
the transactions contemplated by the Agreement and Plan of Contribution pursuant
to which the Corporation will issue shares of common stock, par value $.01
("Common Stock"), in exchange for Units contributed by the Members of the LLC.
The LLC and the Corporation agree that the foregoing condition shall not be
waived.
1.3 Effective Time. The Merger shall become effective upon filing of
the Certificate of Merger with the Secretary of State of the State of Delaware
(the "Effective Time"). The Certificate of Merger shall be filed at such time as
the Corporation and the LLC shall direct.
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1.4 Cancellation of the Limited Liability Company. In accordance
with Section 18-209(e) of the DLLCA, the Certificate of Merger filed pursuant to
Section 1.3 hereof shall be deemed a certificate of cancellation of the LLC.
ARTICLE II
THE SURVIVING CORPORATION
2.1 Name. The name of the Surviving Corporation shall continue to be
Aether Systems, Inc.
2.2 Certificate of Incorporation and Bylaws; Defined Terms. The
Certificate of Incorporation and Bylaws of the Surviving Corporation shall be as
set forth in Exhibit A and Exhibit B to this Agreement, respectively, unless and
until amended in accordance with their terms and applicable law.
2.3 Directors and Officers. The directors of the Corporation
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation and until his or her
successor is duly elected and qualified or until his or her earlier resignation
or removal. The officers of the Corporation immediately prior to the Effective
Time shall be the initial officers of the Surviving Corporation, each to hold
office in accordance with the Certificate of Incorporation and Bylaws of the
Surviving Corporation and until his or her successor is duly appointed and
qualified or until his or her earlier resignation or removal.
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ARTICLE III
CONVERSION OF SECURITIES
3.1 Conversion of LLC Interests.
(a) Except as otherwise provided in Section 3.1(b), at the
Effective Time, by virtue of the Merger and without any action on the part of
the Corporation, the LLC or any Member of the LLC, (i) all Units in the LLC
shall, from and after the Effective Time, be converted into 2.5 shares of Common
Stock of the Surviving Corporation and (ii) all options and warrants to acquire
membership interests shall, from and after the Effective Time, be converted into
options and warrants to acquire 2.5 shares of Common Stock of the Surviving
Corporation, each at an exercise price equal to the exercise price in effect
prior to the Effective Time divided by 2.5.
(b) Each share of Common Stock held in treasury of the LLC and
each Unit issued and outstanding immediately prior to the Effective Time which
is then owned beneficially or of record by the Corporation shall by virtue of
the Merger, and without any action on the part of the holder thereof, be
canceled and retired and cease to exist, without any conversion thereof and no
payment or distribution shall be made with respect thereto.
3.2 No Fractional Shares. No fractional shares of capital stock of
the Surviving Corporation shall be issued in the Merger. In lieu of any
fractional share that any holder would otherwise be entitled to receive, such
holder shall instead receive one whole share of the same class and series.
ARTICLE IV
TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES
4.1 Transfer, Conveyance and Assumption. At the Effective Time,
the Corporation shall continue in existence as the Surviving Corporation and,
without further transfer, succeed to and possess all the rights, privileges and
powers of the LLC, and all the assets and property of whatever kind and
character of the LLC shall vest in the Surviving Corporation without further act
or deed. Thereafter, the Corporation, as the Surviving Corporation, shall be
liable for all of the liabilities and obligations of the LLC, and any claim or
judgment against the LLC may be enforced against the Corporation, as the
Surviving Corporation.
4.2 Further Assurances. If at any time the Corporation 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
Corporation the title to any property or right of the LLC, or otherwise, to
carry out the provisions hereof, the proper representatives of the LLC as of
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the Effective Time shall execute and deliver any and all proper deeds,
assignments and assurances, and do all things necessary and proper to vest,
perfect or convey title to such property or right in the Surviving Corporation
and otherwise to carry out the provisions hereof.
ARTICLE V
TERMINATION
5.1 Termination. This Agreement shall automatically terminate in the
event that the conditions to the Merger set forth in Section 1.2 of this
Agreement shall not have been satisfied on or before June 30, 2000, or if the
Managers of the LLC abandon that certain Plan of Conversion dated as of October
12, 1999.
5.2 Effect of Termination. If this Agreement is terminated pursuant
to Section 5.1, this Agreement shall become void and of no effect with no
liability on the part of any party hereto.
ARTICLE VI
MISCELLANEOUS
6.1 Entire Agreement. This Agreement contains the parties' entire
understanding and agreement with respect to its subject matter, and any and all
conflicting or inconsistent discussions, agreements, promises, representations
and statements, if any, between the parties or their representatives that are
not incorporated in this Agreement shall be null and void and are merged into
this Agreement.
6.2 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, but all of which
together shall constitute a single agreement.
6.3 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
conflicts of law principles.
6.4 Headings. The various section headings are inserted for purposes
of reference only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
6.5 Definitions. Capitalized terms used but not defined herein shall
have the respective meanings assigned to such terms in the Limited Liability
Agreement for Aether Systems LLC, dated as of October 29, 1998, as amended.
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6.6 Severability. The provisions of this Agreement shall be
severable, and any invalidity, unenforceability or illegality of any provision
or provisions of this Agreement shall not affect any other provision or
provisions of this Agreement, and each term and provision of this Agreement
shall be construed to be valid and enforceable to the full extent permitted by
law.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
AETHER SYSTEMS LLC
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title:Chairman, CEO and President
AETHER SYSTEMS, INC.
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title:Chairman, CEO and President
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