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Exhibit 2.1(a)
AGREEMENT AND PLAN OF MERGER
This Agreement
and Plan of Merger (" Agreement ") is entered into on this
6th day of April, 2004, by and among MetroPCS
Communications, Inc., a Delaware corporation ("
Parent "), MPCS Holdco Merger Sub, Inc., a
Delaware corporation (" Merger Sub "), and
MetroPCS, Inc., a Delaware corporation ("
MetroPCS ").
RECITALS:
A. The
boards of directors of Parent, MetroPCS and Merger Sub have each
determined that it is advisable and in the best interests of each
corporation and its respective stockholders for MetroPCS and Merger
Sub to combine into a single company through the statutory merger
of Merger Sub with and into MetroPCS (the " Merger ").
B. In
furtherance thereof, the board of directors of each of Parent,
MetroPCS and Merger Sub has approved this Agreement and the Merger
in accordance with the applicable provisions of the Delaware
General Corporation Law (the " DGCL "), including
Section 251(g) of the DGCL, and upon the terms and conditions
set forth in this Agreement, pursuant to which the capital stock of
MetroPCS outstanding immediately prior to the Effective Time will
be converted into the right to receive shares of capital stock of
Parent, as set forth herein.
C. As
of the date hereof, MetroPCS holds of record all of the outstanding
shares of Parent capital stock and no shares of Parent capital
stock are issued but not outstanding and Parent holds of record all
of the outstanding shares of Merger Sub capital stock and no shares
of Merger Sub capital stock are issued but not outstanding.
D. It
is contemplated that no gain or loss will be recognized for United
States federal income tax purposes by the stockholders of MetroPCS
as a result of the exchange of shares of capital stock of MetroPCS
for shares of capital stock of Parent pursuant to the Merger and
that this Agreement constitutes a plan of reorganization for United
States federal income tax purposes.
AGREEMENT
NOW, THEREFORE,
in consideration of the covenants and representations set forth
herein, and for other good and valuable consideration, the parties
agree as follows:
ARTICLE I
THE MERGER
1.1
The Merger.
Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the
applicable provisions of the DGCL, Merger Sub shall be merged with
and into MetroPCS, the separate existence of Merger Sub shall cease
and MetroPCS shall continue as the surviving entity. MetroPCS, as
the surviving corporation in the Merger, is hereinafter sometimes
referred to as the " Surviving Corporation. "
1.2
Effective Time.
Upon authorization and execution of this
Agreement by the parties, the parties hereto shall file a
Certificate of Merger in the form attached hereto as
Exhibit A (the " Certificate of Merger ") with
the Secretary of State of the State of Delaware (the " Secretary
of State "). The Merger shall become effective at such time
(the " Effective Time ") as shall be stated in the
Certificate of Merger; provided that prior to the Effective Time
the board of directors of MetroPCS
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shall not have altered or rescinded its
determination that the MetroPCS stockholders shall not recognize
gain or loss for United States federal income tax purposes as a
result of the Merger.
1.3
Effect of the Merger.
At the Effective Time, the effect of the
Merger shall be as provided in this Agreement, the Certificate of
Merger and the applicable provisions of the DGCL. Without limiting
the generality of the foregoing, and subject thereto, at the
Effective Time, all the properties, rights, privileges, powers and
franchises of MetroPCS and Merger Sub shall vest in the Surviving
Corporation, and all debts, liabilities and duties of MetroPCS and
Merger Sub shall become the debts, liabilities and duties of the
Surviving Corporation.
1.4
Certificate of Incorporation;
Bylaws.
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(a) At
the Effective Time, the Certificate of Incorporation of MetroPCS,
as in effect immediately prior to the Effective Time (the "
Certificate of Incorporation "), shall continue in full
force and effect as the Certificate of Incorporation of the
Surviving Corporation; provided that in connection with the Merger
the Certificate of Incorporation shall be amended to include a
provision providing that any act or transaction by or involving the
Surviving Corporation, other than the election or removal of
directors, that requires for its adoption, either under the DGCL or
the Certificate of Incorporation of the Surviving Corporation, the
approval of the stockholders of the Surviving Corporation shall, by
specific reference to Section 251(g) of the DGCL, require, in
addition, the approval of the stockholders of Parent (or any
successor by merger), by the same vote as is required by the DGCL
and/or the Certificate of Incorporation.
(b) The
Bylaws of MetroPCS, as in effect immediately prior to the Effective
Time, shall continue in full force and effect as the Bylaws of the
Surviving Corporation, until thereafter amended as provided by the
DGCL, the Certificate of Incorporation and such Bylaws.
1.5
Directors and Officers.
At the Effective Time, the directors of
MetroPCS immediately prior to the Effective Time shall be the
directors of the Surviving Corporation, until their respective
successors are duly elected or appointed and qualified. The
officers of MetroPCS immediately prior to the Effective Time shall
be the officers of the Surviving Corporation, until their
respective successors are duly elected or appointed and
qualified.
ARTICLE II
CONVERSION OF SHARES
2.1
Effect on Capital Stock.
By virtue of the Merger and without any
action on the part of Parent, MetroPCS, Merger Sub or the holders
of any of MetroPCS' securities:
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(a)
MetroPCS Class A Common Stock.
At the Effective Time, each share of
Class A Common Stock, par value $0.0001 per share, of MetroPCS
(" MetroPCS Class A Common Stock ") issued and
outstanding, if any, immediately prior to the Effective Time shall
be automatically converted into the right to receive one share of
Class A Common Stock, par value $0.0001 per share, of Parent
(" Parent Class A Common Stock ").
(b)
MetroPCS Class B Common Stock.
At the Effective Time, each share of
Class B Common Stock, par value $0.0001 per share, of MetroPCS
(" MetroPCS Class B Common Stock ") issued and
outstanding, if any, immediately prior to the Effective Time shall
be automatically converted into the right to receive one share of
Class B Common Stock, par value $0.0001 per share, of Parent
(" Parent Class B Common Stock ").
(c)
MetroPCS Class C Common Stock.
At the Effective Time, each share of
Class C Common Stock, par value $0.0001 per share, of MetroPCS
(" MetroPCS Class C Common Stock ") issued and
outstanding, if any, immediately prior to the Effective Time shall
be automatically
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converted into the right to receive one share of
Class C Common Stock, par value $0.0001 per share, of Parent
(" Parent Class C Common Stock ").
(d)
MetroPCS Preferred Stock.
At the Effective Time, each share of
Series D Convertible Preferred Stock, par value $0.0001 per
share, of MetroPCS (" MetroPCS Series D Preferred Stock
") issued and outstanding, if any, immediately prior to the
Effective Time shall be automatically converted into the right to
receive one share of Series D Convertible Preferred Stock, par
value $0.0001 per share, of Parent (" Parent Series D
Preferred Stock " and, together with the Parent Class A
Common Stock, Parent Class B Common Stock and Parent
Class C Common Stock, the " Parent Capital Stock
").
(e)
Exchange of Certificates.
Promptly following the Effective Time,
Parent shall deliver to each person who has become entitled to
receive Parent Capital Stock by virtue of the Merger, a certificate
or certificates evidencing the class and number of shares of Parent
Capital Stock to which such person is entitled as provided herein,
in exchange for the certificates representing the MetroPCS
Class A Common Stock, MetroPCS Class B Common Stock,
MetroPCS Class C Common Stock and MetroPCS Series D
Preferred Stock (collectively, " MetroPCS Capital Stock ")
of such person outstanding immediately prior to the Effective Time.
The designations, rights, powers and preferences, and the
qualifications, limitations and restrictions thereof, of the Parent
Capital Stock are the same as those of the MetroPCS Capital
Stock.
(f)
Merger Sub Common Stock.
At the Effective Time, each share of Common
Stock, par value $0.0001 per share, of Merger Sub issued and
outstanding immediately prior to the Effective Time shall be
automatically converted into one share of Common Stock, par value
$0.0001 per share, of Surviving Corporation.
2.2
No Further Ownership Rights in MetroPCS
Capital Stock. As a result of the
Merger and without any action on the part of the holders thereof,
at the Effective Time, all shares of MetroPCS Cap
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