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Exhibit 2.2
AGREEMENT AND PLAN OF
MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of
January 31, 2007 (this " Agreement "), is between
SunCom Wireless Holdings, Inc., a Delaware corporation (the "
Company " ), and SunCom Merger Corp., a Delaware corporation
(" Merger Sub ").
WHEREAS, Merger Sub is a wholly-owned subsidiary
of the Company;
WHEREAS, simultaneously with the execution of
this Agreement, the Company, SunCom Wireless Investment Company
LLC, a Delaware limited liability company (" SunCom
Investment "), a wholly-owned subsidiary of the Company, and
SunCom Wireless, Inc. (f/k/a Triton PCS, Inc.) (" Wireless
"), a wholly-owned subsidiary of SunCom Investment, have entered
into an Exchange Agreement (as it may be amended, supplemented,
modified or waived from time to time, the " Exchange
Agreement "), which provides, among other things, for the
contribution by the Company to SunCom Investment of up to
48,304,431 shares of Class A common stock, par value
$0.01 per share, of the Company (" Class A Common
Stock "), which will in turn be exchanged (the "
Exchange ") by SunCom Investment for $302,115,000 principal
amount of the 9 3 / 8 % Senior
Subordinated Notes due 2011 and $377,139,000 principal amount of
the 8 3 /
4 % Senior Subordinated
Notes due 2011 (collectively, the " SunCom Wireless Notes ")
of Wireless, which are currently held by the certain bondholders of
Wireless (the " Consenting Noteholders "), upon the terms
and subject to the conditions set forth in the Exchange
Agreement;
WHEREAS, the Company and Merger Sub desire that
Merger Sub merge with and into the Company, with the Company as the
surviving entity (the " Merger "), with all of the issued
and outstanding common stock, par value $0.01 per share, of
Merger Sub ( " Merger Sub Stock ") being
canceled;
WHEREAS, the Board of Directors of the Company
has determined that this Agreement and the Merger and the other
transactions contemplated hereby are fair to, advisable and in the
best interest of the Company and its stockholders and has approved
and adopted this Agreement and the Merger, on the terms and subject
to the conditions provided for in this Agreement;
WHEREAS, the Board of Directors of Merger Sub has
determined that this Agreement and the Merger and the other
transactions contemplated hereby are fair to, advisable and in the
best interest of Merger Sub and its stockholders and has approved
and declared advisable this Agreement and the Merger, on the terms
and subject to the conditions provided for in this
Agreement;
NOW, THEREFORE, in consideration of the
representations, warranties, covenants and agreements contained in
this Agreement, and intending to be legally bound hereby, the
Company and Merger Sub hereby agree as follows:
ARTICLE I
The Merger
Section 1.1.
The Merger. Upon the terms and subject to
the conditions set forth in this Agreement, and in accordance with
the General Corporation Law of the State of Delaware (the "
DGCL "), at the Effective Time (as defined below) Merger Sub
shall be merged with and into the Company, and the separate
existence of Merger Sub shall thereupon cease, and the Company
shall continue as the surviving corporation after the Merger. The
Company as the surviving corporation after the Merger is sometimes
referred to herein as the " Surviving Corporation ".
Section 1.2.
Closing. The closing of the Merger (the "
Closing ") shall take place immediately upon the
satisfaction or waiver of the conditions to closing set forth in
Article V hereof (the " Closing Date "), at the
offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue,
New York, New York 10153, unless another time, date or place is
agreed to by the parties hereto.
Section 1.3.
Effective Time. Subject to the provisions of
this Agreement, as soon as practicable on the Closing Date the
parties shall file with the Secretary of State of the State of
Delaware a certificate of merger, executed in accordance with the
relevant provisions of the DGCL (the " Certificate of Merger
"). The Merger shall become effective upon the filing of the
Certificate of Merger or at such later time as is agreed to by the
parties hereto and specified in the Certificate of Merger (the date
and time at which the Merger becomes effective is herein referred
to as the " Effective Time ").
Section 1.4.
Effects of the Merger. The Merger shall have
the effects set forth in the DGCL. Without limiting the generality
of the foregoing, and subject thereto, at the Effective Time,
(a) all the properties, rights, privileges, immunities, powers
and franchises of the Company and Merger Sub shall vest in the
Surviving Corporation, and (b) all debts, liabilities,
obligations and duties of Merger Sub shall become the debts,
liabilities, obligations and duties of the Surviving
Corporation.
Section 1.5.
Certificate of Incorporation and Bylaws of the Surviving
Corporation.
(a) At the Effective Time, the Certificate
of Incorporation of the Surviving Corporation shall be amended to
read in its entirety as set forth on Exhibit A hereto
until thereafter changed or amended as provided therein or by
applicable law.
(b) At the Effective Time, the bylaws of the
Company in effect immediately prior to the Effective Time shall be
the bylaws of the Surviving Corporation until thereafter changed or
amended as provided therein or by applicable law.
Section 1.6.
Directors and Officers of the Surviving
Corporation.
(a) The directors of the Company immediately
prior to the Effective Time shall be the directors of the Surviving
Corporation immediately following the Effective Time, to serve as
such until the earlier of their respective successors are duly
elected or appointed and qualified or their earlier death,
resignation or removal in accordance with the certificate of
incorporation or bylaws of the Surviving Corporation or as
otherwise provided by the DGCL.
(b) The officers of the Company immediately
prior to the Effective Time shall be the officers of the Surviving
Corporation until the earlier of their respective successors are
duly appointed and qualified or their earlier death, resignation or
removal in accordance with the certificate of incorporation or
bylaws of the Surviving Corporation or as otherwise provided by the
DGCL.
ARTICLE II
Effect of the Merger on the
Capital Stock of the Constituent Corporations
Section 2.1
Effect on Capital Stock. At the Effective
Time, by virtue of the Merger and without any action on the part of
the holder of any shares of Company Common Stock (as defined below)
or any shares of Merger Sub Stock:
(a) Merger Sub Stock.
All of the issued and outstanding shares of Merger Sub
Stock shall automatically be canceled, shall no longer be
outstanding and shall cease to exist, and no consideration shall be
delivered in exchange for such cancellation. From and after the
Effective Time, the Company, as the holder of all of the Merger Sub
Stock, shall have no further rights with respect to such interests
except as provided herein or by applicable law.
(b) Company Common Stock.
Each share of Company Common Stock (as defined below)
shall be converted into (1) 0.1 validly issued, fully paid and
nonassessable share of Class A common stock, par value
$0.01 per share, of the Surviving Corporation (" Surviving
Corporation Common Stock ") and (2) the right to receive
the contingent consideration payable in accordance with
Section 2.1(c) , if any (the " Contingent Merger
Consideration ").
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(c) Contingent Merger
Consideration. The Contingent Merger
Consideration shall be payable, if at all, as follows:
(i) In the event that, following the
consummation of the Merger (x) the board of directors of the
Surviving Corporation determines that any Sale Transaction process
should be terminated (other than in accordance with
Section 2.1(c)(iii) ) and (y)(1) the board of directors
of the Surviving Corporation shall not have hired an investment
bank of nationally recognized standing (the " New Investment
Bank ") for the purpose of soliciting a sale transaction or
transaction(s) (whether by way of merger(s), consolidation(s),
stock purchase(s) or otherwise) of substantially all of the
business of the Company (and, following the Merger, the business of
the Surviving Corporation and its subsidiaries) as presently
conducted (a " Sale Transaction ") or (2) such New
Investment Bank, if hired, or the Company shall not have
distributed customary sales brochures, information memoranda and
other marketing materials (the " Sales Materials ") to
potential strategic and financial purchasers of the Surviving
Corporation, then each holder of Company Common Stock outstanding
immediately prior to the Effective Time of the Merger shall be
entitled to receive an additional 0.029412 share of Surviving
Corporation Common Stock for each share of Company Common Stock
held by such holder immediately prior to the Effective Time of the
Merger.
(ii) In the event that (x) the
Contingent Merger Consideration set forth in
Section 2.1(c)(i) is not payable due to the hiring of
the New Investment Bank and the distribution of the Sales Materials
in accordance with the requirements of such Section and
(y) within 90 days following the distribution of the
Sales Materials by the New Investment Bank, the board of directors
of the Surviving Corporation terminates the Sale Transaction
process (other than in accordance with
Section 2.1(c)(iii) ), then each holder of Company
Common Stock outstanding immediately prior to the Effective Time of
the Merger shall be entitled to receive an additional
0.014451 share of Surviving Corporation Common Stock for each
share of Company Common Stock held by such holder immediately prior
to the Effective Time of the Merger.
(iii) Notwithstanding anything to the
contrary contained herein, in no event shall any Contingent Merger
Consideration be required to be issued in the event that at least
90% of the board of directors of the Surviving Corporation
determine at a board meeting duly called and held that any Sale
Transaction process should be terminated.
(d) Additional Matters Related to the
Contingent Merger Consideration. The right to
receive the Contingent Merger Consideration represented by each
share of Company Common Stock outstanding immediately prior to the
Merger shall be uncertificated. Such right shall be personal to the
holders of record (on their own behalf and on behalf of the
beneficial owners for which they are the record holder) of the
Company Common Stock at the Effective Time of the Merger and shall
not be transferable by such holders. A certificate representing the
whole number of shares of Surviving Corporation Common Stock, if
any, which are required to be issued in respect of the right to the
Contingent Merger Consideration shall be issued to each holder of
Company Common Stock outstanding at the effective time of the
Merger promptly (and in no event more than five (5) business days)
following the occurrence of the event requiring the payment of such
Contingent Merger Consideration as set forth in
Section 2.1(c)(i) or Section 2.1(c)(ii) ,
as applicable, and cash in lieu of any fractional shares will be
paid to such holder in accordance with the provisions of
Section 2.1(f) . The right of the holders of Company
Common Stock outstanding at the effective time of the Merger to
receive any Contingent Merger Consideration shall automatically
terminate and be extinguished on the first date, if any, that the
circumstances requiring the issuance of such Contingent Merger
Consideration as set forth in Section 2.1(c)(i) or
Section 2.1(c)(ii) are no longer applicable.
(e) Exchange of Certificates.
On or promptly following the Closing Date, the
Surviving Corporation shall deposit with Computershare or such bank
or trust company as may be designated by the Surviving Corporation
(the " Exchange Agent "), for exchange in accordance with
this Article II, through the Exchange Agent, certificates
representing the shares of Surviving Corporation Common Stock
issuable pursuant to Section 2.1(b)(1) in exchange for
outstanding shares of Company Common Stock. Promptly
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after the Effective Time, the Surviving Corporation shall cause
the Exchange Agent to mail to each holder of record of a
certificate of Company Common Stock (a " Certificate ")
whose shares of Company Common Stock were converted pursuant to
Section 2.1(b)(1) into shares of Surviving Corporation
Common Stock, (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to
the Exchange Agent, and which shall be in such form and shall have
such other provisions as the Surviving Corporation may reasonably
specify) and (ii) instructions for use in effecting the
surrender of the Certificates in exchange for certificates of
Surviving Corporation Common Stock. Upon surrender of a Certificate
for cancellation to the Exchange Agent, together with such letter
of transmittal, duly completed and validly executed in accordance
with the instructions (and such other customary documents as may
reasonably be required by the Exchange Agent), the holder of such
Certificate shall be issued (A) a certificate representing
that number of whole shares of Surviving Corporation Common Stock
that such holder has the right to receive pursuant to the
provisions of Section 2.1(b)(1) after taking into
account all the shares of Company Common Stock then held by such
holder under all such Certificates so surrendered, and
(B) cash in lieu of any fractional shares of Surviving
Corporation Common Stock to which such holder is entitled pursuant
to Section 2.1(f) , and the Certificate so surrendered
shall forthwith be canceled. In the event of a transfer of
ownership of shares of Company Common Stock that is not registered
in the transfer records of the Company, a certificate representing
the proper number of shares of Surviving Corporation Common Stock
that the holder of such Certificate has the right to receive
pursuant to the provisions of Section 2.1(b)(1) may be
issued to
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