Exhibit 2.1
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
AMONG
SPRINT NEXTEL CORPORATION,
IRELAND ACQUISITION CORPORATION
AND
IPCS, INC.
DATED AS OF OCTOBER 18, 2009
TABLE OF CONTENTS
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Page
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ARTICLE I
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THE OFFER AND THE MERGER
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2
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Section 1.1.
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The Offer
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2
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Section 1.2.
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Company Actions
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4
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Section 1.3.
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Directors
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5
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Section 1.4.
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The Merger
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6
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Section 1.5.
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Effective Time; Closing
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7
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Section 1.6.
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Effect of the Merger
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7
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Section 1.7.
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Conversion of Company Common
Stock
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7
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Section 1.8.
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Dissenting Shares
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8
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Section 1.9.
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Stock Options and Restricted
Stock
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8
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Section 1.10.
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Surrender of Shares of Company
Common Stock; Stock Transfer Books
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9
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Section 1.11.
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Top-Up Option
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11
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ARTICLE II
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THE SURVIVING CORPORATION
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12
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Section 2.1.
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Certificate of
Incorporation
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12
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Section 2.2.
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Bylaws
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13
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Section 2.3.
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Directors and Officers
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13
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ARTICLE III
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REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
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13
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Section 3.1.
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Organization and Standing
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13
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Section 3.2.
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Capitalization
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14
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Section 3.3.
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Authority for Agreement
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15
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Section 3.4.
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No Conflict
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15
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Section 3.5.
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Required Filings and
Consents
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16
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Section 3.6.
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Compliance
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17
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Section 3.7.
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Licenses and Permits
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17
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Section 3.8.
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Reports; Financial Statements;
Internal Controls
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18
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Section 3.9.
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Absence of Certain Changes or
Events
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19
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Section 3.10.
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Taxes
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20
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Section 3.11.
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Title to Assets
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21
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Section 3.12.
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Change of Control
Agreements
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21
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Section 3.13.
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Litigation
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22
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Section 3.14.
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Contracts and Commitments
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22
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Section 3.15.
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Information Supplied
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23
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Section 3.16.
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Employee Benefit Plans
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23
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Section 3.17.
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Labor and Employment
Matters
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24
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Section 3.18.
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Environmental Compliance
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25
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Section 3.19.
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Intellectual Property
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25
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Section 3.20.
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Undisclosed Liabilities
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26
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Section 3.21.
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Brokers
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27
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Section 3.22.
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Related Party
Transactions
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27
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Section 3.23.
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Anti-Takeover Provisions
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27
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Section 3.24.
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Company Indentures
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27
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Section 3.25.
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Disclaimer
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28
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ARTICLE IV
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REPRESENTATIONS AND WARRANTIES OF PARENT AND
BUYER
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28
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Section 4.1.
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Organization and Standing
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28
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Section 4.2.
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Authority for Agreement;
Enforceability
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28
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Section 4.3.
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No Conflict
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29
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Section 4.4.
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Required Filings and
Consents
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29
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Section 4.5.
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Information Supplied
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29
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Section 4.6.
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Brokers
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29
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Section 4.7.
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No Prior Activities
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30
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Section 4.8.
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Available Funds
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30
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Section 4.9.
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Ownership of Company Common Stock;
Affiliates and Associates
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30
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Section 4.10.
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Disclaimer
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30
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ARTICLE V
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COVENANTS
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30
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Section 5.1.
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Conduct of the Business Pending the
Merger
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30
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Section 5.2.
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Access to Information;
Confidentiality
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32
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Section 5.3.
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Notification of Certain
Matters
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33
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Section 5.4.
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Further Assurances
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34
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Section 5.5.
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Board Recommendations
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36
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Section 5.6.
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Stockholder Litigation
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37
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Section 5.7.
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Indemnification
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37
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Section 5.8.
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Public Announcements
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39
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Section 5.9.
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Acquisition Proposals
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39
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Section 5.10.
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Stockholders’ Meeting; Proxy
Statement
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40
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Section 5.11.
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Director Resignations
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42
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Section 5.12.
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Benefits Continuation;
Severance
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42
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Section 5.13.
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Section 16
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44
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Section 5.14.
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Rule 14d-10(d) Matters
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44
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ARTICLE VI
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CONDITIONS
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44
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Section 6.1.
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Conditions to the Obligation of Each
Party
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44
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ARTICLE VII
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TERMINATION, AMENDMENT AND WAIVER
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45
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Section 7.1.
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Termination
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45
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Section 7.2.
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Effect of Termination
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46
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Section 7.3.
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Amendments
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47
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Section 7.4.
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Waiver
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47
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ARTICLE VIII
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GENERAL PROVISIONS
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48
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Section 8.1.
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No Third Party
Beneficiaries
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48
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Section 8.2.
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Entire Agreement
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48
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Section 8.3.
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Succession and Assignment
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48
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Section 8.4.
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Counterparts
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48
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Section 8.5.
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Governing Law; Venue; Service of
Process, Waiver of Jury Trial
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48
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Section 8.6.
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Severability
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49
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ii
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Section 8.7.
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Specific Performance
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49
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Section 8.8.
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Construction
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49
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Section 8.9.
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Non-Survival of Representations and
Warranties and Agreements
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50
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Section 8.10.
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Certain Definitions
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50
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Section 8.11.
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Fees and Expenses
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50
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Section 8.12.
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Notices
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50
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Section 8.13.
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Cross-References to Certain Terms
Defined Elsewhere in This Agreement
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51
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EXHIBITS
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Exhibit A
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Conditions to the Offer
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Exhibit B
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Certificate of
Incorporation
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Exhibit C
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Bylaws
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iii
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “
Agreement ”), dated as of October 18, 2009, by
and among SPRINT NEXTEL CORPORATION, a Kansas corporation (“
Parent ”), IRELAND ACQUISITION CORPORATION, a Delaware
corporation (“ Buyer ”) and wholly owned
subsidiary of Parent, and IPCS, INC., a Delaware corporation (the
“ Company ”).
W I T N E S S E T H:
WHEREAS, the parties to this
Agreement desire to effect the acquisition of the Company by
Buyer;
WHEREAS, in furtherance of the
foregoing, Parent shall cause Buyer to make a tender offer to
purchase for cash all the outstanding shares of common stock of the
Company, par value $0.01 per share (the “ Company Common
Stock ”), at a price per share of Company Common Stock of
$24.00 (such amount, or any other higher amount per share of
Company Common Stock paid pursuant to the Offer and this Agreement,
the “ Offer Price ”) subject to any required
withholding Taxes as described in Section 1.10(e) and
without interest, on the terms and subject to the conditions of
this Agreement (as it may be amended from time to time as permitted
under this Agreement, the “ Offer ”);
WHEREAS, also in furtherance of the
foregoing, upon the terms and subject to the conditions of this
Agreement and in accordance with the Delaware General Corporation
Law (the “ DGCL ”), following the consummation
of the Offer, Buyer shall merge with and into the Company (the
“ Merger ”) in accordance with the provisions of
the DGCL, with the Company as the surviving corporation;
WHEREAS, concurrently with the
execution and delivery of this Agreement, and as a condition and
inducement to Parent’s entering into this Agreement, certain
stockholders of the Company have entered into a stockholders
agreement, dated as of the date hereof (the “ Stockholders
Agreement ”), pursuant to which, among other things, such
stockholders have agreed to tender their shares of Company Common
Stock pursuant to the Offer and to vote their respective shares of
Company Common Stock in favor of the Merger, subject to the terms
and conditions contained therein;
WHEREAS, concurrently with the
execution and delivery of this Agreement, and as a condition and
inducement to Parent’s and the Company’s entering into
this Agreement, Parent and the Company and certain of their
respective subsidiaries have entered into a settlement agreement
and mutual release, dated as of the date hereof (the “
Settlement Agreement ”), pursuant to which, among
other things, the parties thereto have agreed to compromise and
settle certain claims among them, subject to the terms and
conditions contained therein;
WHEREAS, the Board of Directors of
the Company has unanimously approved this Agreement, the Offer, the
Merger and the transactions contemplated hereby , which
approval was based in part on (1) the opinion of UBS
Securities LLC (“ UBS ”), an independent
financial advisor to the Board of Directors of the Company, that,
based on the assumptions, qualifications and limitations contained
therein, the Offer Price to be received by the
holders of Company
Common Stock in the Offer is, as of the date of
such opinion, fair, from a financial point of view, to such
holders, and (2) the opinion of Morgan
Stanley & Co. Incorporated (“ Morgan Stanley
” and, together with UBS, the “ Independent
Advisors ”), an independent financial advisor to the
Board of Directors of the Company, that based on the assumptions,
qualifications and limitations contained therein, the consideration
to be received by the Company’s stockholders for their shares
of Company Common Stock pursuant to this Agreement is, as of the
date of such opinion, fair, from a financial point of view, to
those stockholders; and
WHEREAS, the Board of Directors of
the Company has unanimously (i) determined that this Agreement
and the other transactions contemplated hereby, including the Offer
and the Merger, are fair to and in the best interests of the
Company and the holders of shares of Company Common Stock (the
“ Company Stockholders ”), (ii) approved
and declared advisable this Agreement and the Settlement Agreement
and the transactions contemplated hereby and thereby, including the
Offer and the Merger and (iii) recommended that the Company
Stockholders accept the Offer, tender their shares of Company
Common Stock pursuant to the Offer and, to the extent applicable,
adopt this Agreement and approve the Merger.
NOW, THEREFORE, in consideration of
the foregoing and the respective representations, warranties,
covenants and agreements contained in this Agreement and intending
to be legally bound hereby, the parties agree as
follows:
ARTICLE I
THE OFFER AND THE MERGER
Section 1.1.
The
Offer .
(a)
Subject to the
provisions of this Agreement, as promptly as practicable but in no
event later than October 28, 2009, Buyer shall, and Parent
shall cause Buyer to, commence the Offer within the meaning of the
applicable rules and regulations of the Securities and
Exchange Commission (the “ SEC ”). The
obligations of Buyer to, and of Parent to cause Buyer to, accept
for payment, and pay for, any shares of Company Common Stock
tendered pursuant to the Offer shall be subject only to the
conditions set forth in Exhibit A . The initial
expiration date of the Offer shall be the 20th business day
following the commencement of the Offer (determined using
Rule 14d-1(g)(3) of the SEC). Buyer expressly
reserves the right to waive any condition to the Offer or modify
the terms of the Offer, except that, without the consent of the
Company, Buyer shall not (i) reduce the number of shares of
Company Common Stock subject to the Offer, (ii) reduce the
Offer Price, (iii) amend or waive the Minimum Tender
Condition, (iv) add to the conditions set forth in
Exhibit A or modify any condition set forth in
Exhibit A , (v) extend the Offer (except as set
forth in the following two sentences), (vi) change the
form of consideration payable in the Offer or (vii) otherwise
amend or modify the Offer in any manner adverse to the holders of
Company Common Stock (it being agreed that a waiver by Buyer of any
condition, in its sole discretion, shall not be deemed to be
adverse to the holders of Company Common Stock).
Notwithstanding the foregoing, but subject to the terms and
conditions contained herein, Buyer may, but shall not be obligated
to, without the consent of the Company, (i) extend the Offer
if, at the scheduled expiration date of the Offer, any of the
conditions to Buyer’s obligation to purchase shares of
Company Common Stock are not satisfied, until such time as such
conditions are satisfied or waived, in increments of not more than
five business days
2
each, (ii) extend the
Offer for any period required by any rule, regulation,
interpretation or position of the SEC or the staff thereof
applicable to the Offer and (iii) extend the Offer for a
period of time not to exceed ten business days if, at the scheduled
expiration date of the Offer, the Board of Directors of the Company
shall have withdrawn, qualified or modified, or proposed publicly
to withdraw, qualify or modify, its approval or recommendation of
the Offer or the Merger; provided, however , that if at the
scheduled expiration date of the Offer (A) the only condition
to Buyer’s obligation to purchase shares of Company Common
Stock that is not satisfied is the condition set forth in clause
(g) of Exhibit A (the “ Outstanding
Condition ”) and (B) none of the matters set forth
in the foregoing clauses (ii) or (iii) are applicable,
then (x) Buyer shall be permitted to extend the Offer for up
to two additional five business day periods (but in no event to a
date later than the business day immediately prior to the Outside
Date) as contemplated by the foregoing clause (i) (the last of
such periods being, the “ Final Extension Period
”) in order to provide additional time for the Outstanding
Condition to be satisfied and (y) if the Outstanding Condition
is not satisfied by the last day of the Final Extension Period then
(1) if so directed by Buyer, the Company will abandon the
license or authorization that is the subject of the Outstanding
Condition and (2) Buyer shall waive the Outstanding Condition
and consummate the Offer on the last day of the Final Extension
Period (assuming that all other conditions on Exhibit A
remain satisfied at such time). In addition, if
at the otherwise scheduled expiration date of the Offer any
condition to the Offer is not satisfied, Buyer shall, and Parent
shall cause Buyer to, extend the Offer at the request of the
Company for such periods as the Company may request;
provided that Parent and Buyer shall not be obligated to
extend the Offer beyond January 31, 2010 (the “
Outside Date ”), provided further that
if on January 31, 2010, all of the conditions set forth in
Exhibit A are satisfied or waived other than any condition set
forth in clause (f) or clause (g) of Exhibit A, the
Outside Date shall be March 15, 2010. In addition, Buyer
may and, if requested by the Company, Buyer shall, make available a
“subsequent offering period”, in accordance with
Rule 14d-11 of the SEC, of not less than 10 business days. On
the terms and subject to the conditions of the Offer and this
Agreement, Buyer shall, and Parent shall cause Buyer to, accept for
payment and pay for all shares of Company Common Stock validly
tendered and not withdrawn pursuant to the Offer promptly after the
expiration of the Offer. Notwithstanding the foregoing, if at
any time consummation of the Offer is not practicable due to
(A) any general suspension of trading in, or limitation on
prices for, securities on any national securities exchange or in
the over-the-counter market or (B) the declaration of any
banking moratorium or any suspension of payments in respect of
banks or any material limitation (whether or not mandatory) on the
extension of credit by lending institutions in the United States,
consummation of the Offer will be delayed until such time as such
events no longer make it impracticable to consummate the
Offer. Buyer shall not terminate the Offer prior to any
scheduled expiration date without the prior written consent of the
Company, except if this Agreement is terminated pursuant to
Article VII. If this Agreement is terminated pursuant to
Article VII, Buyer shall, and Parent shall cause Buyer to,
promptly (and in any event within 24 hours of such termination)
terminate the Offer and shall not acquire any shares of Company
Common Stock pursuant thereto. If the Offer is terminated by
Buyer, or this Agreement is terminated prior to the acquisition of
shares of Company Common Stock in the Offer, Buyer shall promptly
return, and shall cause any depositary acting on behalf of Buyer to
return, in accordance with applicable Law, all tendered shares of
Company Common Stock that have not then been purchased in the Offer
to the registered holders thereof.
3
(b)
On the date of
commencement of the Offer, Parent and Buyer shall file with the SEC
a Tender Offer Statement on Schedule TO with respect to the Offer,
which shall contain an offer to purchase and a related letter of
transmittal and such other ancillary documents pursuant to which
the Offer will be made (such Schedule TO and the documents included
therein pursuant to which the Offer will be made, together with any
supplements or amendments thereto and such other ancillary
documents, the “ Offer Documents ”). The
Offer Documents will contain all information which is required to
be included therein in accordance with the Securities Exchange Act
of 1934, as amended (the “ Exchange Act ”), and
the rules and regulations thereunder and any other applicable
Laws. For purposes of this Agreement, “ Law
” means any United States federal, state or local or any
foreign statute, law, rule, regulation, ordinance, code, order,
judgment, decree or any other requirement or rule of law. Each
of Parent, Buyer and the Company shall promptly correct any
information provided by it for use in the Offer Documents if and to
the extent that such information shall have become false or
misleading in any material respect, and each of Parent and Buyer
shall take all steps necessary to amend or supplement the Offer
Documents and to cause the Offer Documents as so amended or
supplemented to be filed with the SEC and to be disseminated to the
Company Stockholders, in each case as and to the extent required by
applicable federal securities Laws and any other applicable
Laws. The Company and its counsel shall be given the
opportunity to review and comment on the Offer Documents and any
supplements or amendments thereto prior to the filing thereof with
the SEC and Parent and Buyer shall give due consideration to any
such comments proposed by the Company. Parent and Buyer shall
provide the Company and its counsel in writing with any comments
Parent, Buyer or their counsel may receive from the SEC or its
staff with respect to the Offer Documents promptly after the
receipt of such comments.
(c)
Parent shall
provide or cause to be provided to Buyer on a timely basis the
funds necessary to purchase any shares of Company Common Stock that
Buyer becomes obligated to purchase pursuant to the
Offer.
Section 1.2.
Company Actions
.
(a)
The Company
hereby consents to the Offer, and on the date the Offer Documents
are filed with the SEC, the Company shall simultaneously file with
the SEC a Tender Offer Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as
amended from time to time, the “ Schedule 14D-9
”) describing the recommendations referred to in
Section 3.3(b) and shall mail the Schedule 14D-9 to the
Company Stockholders. Each of the Company, Parent and Buyer
shall promptly correct any information provided by it for use in
the Schedule 14D-9 if and to the extent that such information shall
have become false or misleading in any material respect, and the
Company shall take all steps necessary to amend or supplement the
Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or
supplemented to be filed with the SEC and disseminated to the
Company Stockholders, in each case as and to the extent required by
applicable federal securities Laws and any other applicable
Laws. Parent and Buyer and their counsel shall be given the
opportunity to review and comment on the Schedule 14D-9 and any
supplements or amendments thereto prior to the filing thereof with
the SEC and the Company shall give due consideration to any such
comments proposed by Parent and Buyer. The Company shall
provide Parent and its counsel in writing with any comments or
other communications the Company or its counsel may
4
receive from the SEC or its
staff with respect to the Schedule 14D-9 promptly after the receipt
of such comments or other communications.
(b)
Parent and Buyer
will take all steps necessary to cause the Offer Documents to be
disseminated to the Company Stockholders in accordance with
applicable state and federal Laws. In connection with the
Offer, the Company shall cause its transfer agent to furnish Buyer
promptly, but in any event within three business days after the
date of this Agreement, with mailing labels containing the names
and addresses of the record holders of Company Common Stock as of a
recent date and of those persons becoming record holders subsequent
to such date, together with copies of all lists of stockholders,
security position listings and computer files and all other
information in the Company’s possession or control regarding
the beneficial owners of Company Common Stock, and shall furnish to
Buyer such information and assistance (including updated lists of
stockholders, security position listings and computer files) as
Parent may reasonably request in communicating the Offer to the
Company Stockholders. Subject to the requirements of
applicable Law, and except for such steps as are necessary to
disseminate the Offer Documents and any other documents necessary
to consummate the Offer, Parent and Buyer shall, and shall cause
their agents to, hold in confidence the information contained in
any such labels, listings and files, shall use such information
only in connection with the Offer and the Merger and, if this
Agreement shall be terminated, shall, upon request, promptly
deliver to the Company all copies of such information then in their
possession or under their control.
Section 1.3.
Directors .
(a)
Promptly after
the acceptance for payment of shares of Company Common Stock
tendered pursuant to the Offer representing at least a majority of
the outstanding shares of Company Common Stock on a fully diluted
basis (the time of such acceptance being, “ Appointment
Time ”) and, from time to time thereafter, as shares of
Company Common Stock are accepted for payment by Buyer, Buyer shall
be entitled to designate such number of members of the Board of
Directors of the Company (the “ Buyer Designees
”), rounded up to the nearest whole number, as will give
Buyer representation on the Board of Directors of the Company equal
to the product of the total number of members of the Board of
Directors of the Company (after giving effect to any increase in
the number of the directors elected pursuant to this sentence)
multiplied by the percentage that the number of shares of Company
Common Stock beneficially owned by Parent or Buyer at such time
(including shares of Company Common Stock so accepted for payment)
bears to the total number of shares of Company Common Stock then
outstanding. In furtherance thereof, the Company shall, upon
the request of, and as specified by, Buyer, promptly either
increase the size of the Board of Directors of the Company or
secure the resignations of such number of the Company’s
incumbent directors, or both, as is necessary to enable Buyer
Designees to be so elected or appointed to the Board of Directors
of the Company and the Company shall take all actions available to
the Company to cause Buyer Designees to be so elected or appointed.
At such time, if requested by Buyer, the Company shall also take
all action necessary to cause persons designated by Buyer to
constitute at least the same percentage (rounded up to the next
whole number) as is on the Board of Directors of the Company of
each committee of the Board of Directors of the Company, to the
extent permitted by applicable Law and the rules of any stock
exchange or trading market on which the Company Common Stock is
listed and traded. The provisions of this Section 1.3
are in addition
to and shall
5
not limit any rights which
Buyer, Parent or any of their affiliates (as such term is defined
in Rule 405 promulgated under the Securities Act of 1933, as
amended (the “ Securities Act ”)) may have as a
holder or beneficial owner of shares of Company Common Stock as a
matter of applicable Law with respect to the election of directors
or otherwise.
(b)
The
Company’s obligation to appoint the Buyer Designees to the
Board of Directors of the Company in accordance with
Section 1.3(a) shall be subject to
Section 14(f) of the Exchange Act. The Company shall take
all actions required in order to fulfill its obligations under
Section 1.3(a), including mailing to its stockholders the
information required by Section 14(f) of the Exchange Act
and Rule 14f-1 promulgated thereunder as part of the Schedule
14D-9; provided , however , that Parent and Buyer
shall supply to the Company in writing prior to the filing with the
SEC of the Schedule 14D-9 any information with respect to Parent
and Buyer and Buyer Designees to the extent required by such
Section 14(f) and Rule 14f-1.
(c)
Notwithstanding
the provisions of this Section 1.3, the parties hereto shall
use their respective reasonable best efforts to ensure that at
least two of the members of the Board of Directors of the Company
shall, at all times following the Appointment Time and prior to the
Effective Time, be directors of the Company who (i) were
directors of the Company on the date hereof, (ii) are not
officers of the Company and (iii) are independent directors
for purposes of continuing listing requirements of NASDAQ (the
“ Continuing Directors ”); provided ,
however , that, if at any time there shall be in office less
than two Continuing Directors for any reason, the Board of
Directors of the Company shall cause the person meeting the
foregoing criteria and designated by the remaining Continuing
Director to fill such vacancy and such person shall be deemed to be
a Continuing Director for all purposes of this Agreement, or if no
Continuing Directors then shall remain, the other directors of the
Company then in office shall designate two persons meeting the
foregoing criteria to fill such vacancies who will not be
directors, officers, employees or affiliates of Parent or Buyer and
such persons shall be deemed to be Continuing Directors for all
purposes of this Agreement. From and after the time, if any,
that Buyer Designees constitute a majority of the Board of
Directors of the Company and prior to the Effective Time, subject
to the terms hereof, any amendment or modification of this
Agreement, any termination of this Agreement by the Company, any
extension of time for performance of any of the obligations of
Parent or Buyer hereunder, any waiver of any condition to the
Company’s obligations hereunder or any of the Company’s
rights hereunder and any other action of the Company hereunder
which adversely affects the Company Stockholders (other than Parent
or Buyer) may be effected only if (in addition to the approval of
the Board of Directors of the Company as a whole) there are in
office one or more Continuing Directors and such action is approved
by a majority of the Continuing Directors then in office.
Following the Appointment Time and prior to the Effective Time,
neither Parent nor Buyer shall take any other action to remove any
Continuing Director.
Section 1.4.
The
Merger . Upon the terms and
subject to the conditions of this Agreement, and in accordance with
the DGCL, at the Effective Time, Buyer shall be merged with and
into the Company. As a result of the Merger, the separate
corporate existence of Buyer shall cease and the Company shall
continue as the surviving corporation following the Merger (the
“ Surviving Corporation ”). The corporate
existence of the Company, with all its purposes, rights,
privileges, franchises, powers and objects, shall continue
unaffected and unimpaired by the Merger and, as the Surviving
Corporation, it shall be governed by the DGCL.
6
Section 1.5.
Effective
Time; Closing . As promptly as
practicable (and in any event within five business days) after the
satisfaction or waiver of the conditions set forth in
Article VI (other than those conditions which by their terms
can only be satisfied at the Closing, but subject to the
satisfaction or waiver of such conditions at the Closing), the
parties shall cause the Merger to be consummated by filing a
certificate of merger or a certificate of ownership and merger, as
applicable (the “ Certificate of Merger ”), with
the Secretary of State of the State of Delaware and by making all
other filings or recordings required under the DGCL in connection
with the Merger, in such form as is required by, and executed in
accordance with the relevant provisions of, the DGCL. The
Merger shall become effective at such time as the Certificate of
Merger is duly filed with the Secretary of State of the State of
Delaware, or at such other time (but not earlier than the time that
the Certificate of Merger is filed) as the parties agree shall be
specified in the Certificate of Merger (the date and time the
Merger becomes effective, the “ Effective Time
”). On the date of such filing, a closing (the “
Closing ”) shall be held at 10:00 a.m. Eastern
time, at the offices of King & Spalding LLP, 1180
Peachtree Street, Atlanta, Georgia 30309, or at such other time and
location as the parties shall otherwise agree.
Section 1.6.
Effect of the
Merger. At the Effective Time,
the effect of the Merger shall be as provided in the applicable
provisions of the DGCL. Without limiting the generality of
the foregoing, and subject thereto, at the Effective Time all the
property, rights, privileges, powers and franchises of the Company
and Buyer shall vest in the Surviving Corporation, and all debts,
liabilities, obligations, restrictions, disabilities and duties of
the Company and Buyer shall become the debts, liabilities,
obligations, restrictions, disabilities and duties of the Surviving
Corporation.
Section 1.7.
Conversion of
Company Common Stock . At the Effective
Time, by virtue of the Merger and without any action on the part of
Buyer, the Company or the holders of any of the securities
described in this Section 1.7:
(a)
Each share of
Company Common Stock issued and outstanding immediately prior to
the Effective Time (other than shares canceled pursuant to
Section 1.7(b) and Dissenting Shares, if any) shall be
canceled and, by virtue of the Merger and without any action on the
part of the holder thereof, shall be converted automatically into
the right to receive the Offer Price (the “ Merger
Consideration ”), subject to any required withholding
Taxes as described in Section 1.10(e) and without
interest, payable to the holder of such share of Company Common
Stock, upon surrender of the certificate that formerly
evidenced such share of Company Common Stock in the manner provided
in Section 1.10;
(b)
Each share of
Company Common Stock issued and outstanding immediately prior to
the Effective Time that is owned by Parent or Buyer and each share
of Company Common Stock that is owned by the Company as treasury
stock shall be canceled and retired and cease to exist and no
payment or distribution shall be made with respect
thereto;
(c)
All shares of the
Company Common Stock converted pursuant to
Section 1.7(a) shall no longer be outstanding and shall
automatically be canceled and retired and cease to exist, and each
holder of a certificate (“ Certificate
”)
7
representing any
such shares of Company Common Stock shall cease to have any rights
with respect thereto, except the right to receive the Merger
Consideration in accordance with Section 1.7(a);
and
(d)
Each share of
common stock, par value $0.01 per share, of Buyer issued and
outstanding immediately prior to the Effective Time shall be
converted into and become one validly issued, fully paid and
nonassessable share of common stock, par value $0.01 per share, of
the Surviving Corporation and shall constitute the only outstanding
shares of capital stock of the Surviving Corporation.
Section 1.8.
Dissenting
Shares .
(a)
Notwithstanding
anything in this Agreement to the contrary, shares of Company
Common Stock that are issued and outstanding immediately prior to
the Effective Time and which are held by the Company Stockholders
who have demanded and perfected their demands for appraisal of such
shares of Company Common Stock in the time and manner provided in
Section 262 of the DGCL and, as of the Effective Time, have
neither effectively withdrawn nor lost their rights to such
appraisal and payment under the DGCL (the “ Dissenting
Shares ”) shall not be converted as described in
Section 1.7(a), but shall, by virtue of the Merger, be
entitled to only such rights as are granted by Section 262 of
the DGCL; provided , however , that if such holder
shall have failed to perfect or shall have effectively withdrawn or
lost such holder’s right to appraisal and payment under the
DGCL, such holder’s shares of Company Common Stock shall
thereupon be deemed to have been converted, at the Effective Time,
as described in Section 1.7(a), as applicable, into the right
to receive the Merger Consideration set forth in such provisions,
without any interest thereon.
(b)
The Company shall
give Parent (i) prompt notice of any demands for appraisal
pursuant to Section 262 of the DGCL received by the Company,
withdrawals of such demands, and any other instruments served
pursuant to the DGCL with respect to demands for appraisal and
received by the Company and (ii) the opportunity to direct all
negotiations and proceedings with respect to demands for appraisal
under the DGCL. The Company shall not, except with the prior
written consent of Parent or as otherwise required by applicable
Law, make any payment with respect to any such demands for
appraisal or offer to settle or settle any such
demands.
Section 1.9.
Stock Options
and Restricted Stock .
(a)
The Company shall
ensure that all outstanding options to acquire Company Common Stock
(the “ Company Options ”) granted under the
Horizon PCS, Inc. Amended and Restated 2004 Stock Incentive
Plan and the iPCS, Inc. Third Amended and Restated 2004
Long-Term Incentive Plan (the “ Company Stock Option
Plans ”) that are not exercised prior to the Appointment
Time shall terminate and be canceled at the Appointment Time, and
the Surviving Corporation shall pay such holder, immediately after
the Effective Time, in exchange for the cancellation of such
holder’s Company Options, an amount in cash determined by
multiplying (a) the excess, if any, of the Merger
Consideration over the applicable exercise price per share of the
Company
8
Option by
(b) the number of shares of Company Common Stock such holder
had the right to purchase at the Appointment Time, less any
withholding Taxes as described in Section 1.10(e) and
without interest. The parties agree that the Appointment Time
shall constitute a change in control for purposes of the Company
Stock Plans; provided , however , that for purposes
of this Section 1.9(a), no holder’s right to exercise a
Company Option shall accelerate and fully vest at the Appointment
Time unless he or she is employed (either as an employee, director
or consultant) by the Company or a Subsidiary at the Appointment
Time unless otherwise required by the terms of any award agreement
evidencing a Company Stock Option or any Employment Agreement
between the Company (or any of its affiliates) and an
optionholder. The committee for each of the Company Stock
Option Plans shall not exercise any discretion to take any action
with respect to any Company Option except for the action expressly
called for in this Section 1.9(a).
(b)
Immediately after
the Appointment Time, each outstanding share of restricted common
stock of the Company granted under the Company Stock Option Plans
(“ Restricted Stock ”), the restrictions of
which have not lapsed immediately prior to the Appointment Time,
shall become fully vested; provided , however , the
committee for each of the Company Stock Option Plans shall not
exercise any discretion to take any action with respect to any
Restricted Stock.
Section 1.10.
Surrender of
Shares of Company Common Stock; Stock Transfer Books
.
(a)
Prior to the
Effective Time, Parent shall designate a bank or trust company,
reasonably acceptable to the Company, to act as agent (the “
Paying Agent ”) for the Company Stockholders to
receive the funds necessary to make the payments to the Company
Stockholders pursuant to Section 1.7 upon surrender of the
Company Stockholders’ Certificates. Parent shall, at or
prior to the Effective Time, deposit with the Paying Agent the
aggregate Merger Consideration to be paid in respect of the shares
of Company Common Stock (the “ Fund ”).
The Fund shall be invested by the Paying Agent as directed by
Parent. Any net profit resulting from, or interest or income
produced by, such investments, shall be payable to Parent.
Parent shall replace any monies lost through any investment made
pursuant to this Section 1.10(a). The Paying Agent shall
make the payments provided in Section 1.7.
(b)
Promptly after
the Effective Time, Parent shall cause to be mailed to each person
who was, at the Effective Time, a holder of record of shares of
Company Common Stock entitled to receive the Merger Consideration
pursuant to Section 1.7 (i) a form of letter of
transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the Certificates shall pass, only
upon proper delivery of the Certificates to the Paying Agent) and
(ii) instructions for use in effecting the surrender of the
Certificates pursuant to such letter of transmittal. Upon
surrender to the Paying Agent of a Certificate, together with such
letter of transmittal, duly completed and validly executed in
accordance with the instructions thereto, and such other documents
as may be required pursuant to such instructions, the holder of
such Certificate shall be entitled to receive, in exchange
therefor, the Merger Consideration for each share of each series of
Company Common Stock formerly evidenced by such Certificate, and
such Certificate
9
shall then be
canceled. Until so surrendered, each such Certificate shall,
at and after the Effective Time, represent for all purposes only
the right to receive such Merger Consideration. No interest
shall accrue or be paid to any beneficial owner of shares of
Company Common Stock or any holder of any Certificate with respect
to the Merger Consideration payable upon the surrender of any
Certificate. If payment of the Merger Consideration is to be
made to a person other than the person in whose name the
surrendered Certificate is registered on the stock transfer books
of the Company, it shall be a condition of payment that the
Certificate so surrendered shall be endorsed in blank or to the
Paying Agent or otherwise be in proper form for transfer, in the
sole discretion of the Paying Agent, and that the person requesting
such payment shall have paid all transfer and other Taxes required
by reason of the payment of the Merger Consideration to a person
other than the registered holder of the Certificate surrendered or
shall have established to the satisfaction of Parent that such
Taxes either have been paid or are not applicable. If any
Certificate shall have been lost, stolen or destroyed, upon making
of an affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed and, if required by
Parent, the posting by such person of a bond, in such reasonable
amount as Parent may direct, as indemnity against any claim that
may be made against it with respect to such Certificate, the Paying
Agent shall issue in exchange for such lost, stolen or destroyed
Certificate the applicable Merger Consideration such holder is
entitled to receive pursuant to Section 1.7.
(c)
At any time
following the date that is six months after the Effective Time,
Parent shall be entitled to require the Paying Agent to deliver to
it any portion of the Fund that had been made available to the
Paying Agent and not disbursed to the Company Stockholders
(including all interest and other income received by the Paying
Agent in respect of all amounts held in the Fund or other funds
made available to it), and thereafter each such holder shall be
entitled to look only to Parent (subject to abandoned property,
escheat and other similar Laws), and only as general creditors
thereof, with respect to any Merger Consideration that may be
payable upon due surrender of the Certificates held by such
holder. If any Certificates representing shares of Company
Common Stock shall not have been surrendered immediately prior to
such date on which the Merger Consideration in respect of such
Certificate would otherwise escheat to or become the property of
any Governmental Entity, any such cash, shares, dividends or
distributions payable in respect of such Certificate shall become
the property of Parent, free and clear of all claims or interest of
any person previously entitled thereto. Notwithstanding the
foregoing, none of the Surviving Corporation, Parent, Buyer or the
Paying Agent shall be liable to any Company Stockholder for any
Merger Consideration delivered in respect of such share of Company
Common Stock to a public official pursuant to any abandoned
property, escheat or other similar Law.
(d)
At the Effective
Time, the stock transfer books of the Company shall be closed, and
thereafter there shall be no further registration of transfers of
shares of Company Common Stock on the records of the Company.
From and after the Effective Time, except for Parent and Buyer, the
Company Stockholders holding shares of Company Common Stock
outstanding immediately prior to the Effective Time shall cease to
have any rights with respect to such shares of Company Common Stock
except as otherwise provided herein or by applicable Law, and the
Merger Consideration paid
10
pursuant to this
Article I upon the surrender or exchange of Certificates shall
be deemed to have been paid in full satisfaction of all rights
pertaining to the shares of Company Common Stock theretofore
represented by such Certificates.
(e)
Parent, Buyer,
the Surviving Corporation and the Paying Agent, as the case may be,
shall be entitled to deduct and withhold from the Merger
Consideration and any other amount otherwise payable pursuant to
this Agreement to any Company Stockholder or any holder of a
Company Option or Restricted Stock (each, a “ Payee
”) such amounts that Parent, Buyer, the Surviving Corporation
or the Paying Agent is required to deduct and withhold with respect
to the making of such payment under the Internal Revenue Code of
1986 (the “ Code ”), the rules and
regulations promulgated thereunder or any provision of state, local
or foreign Tax Law. Any amounts so withheld shall be treated
for all purposes of this Agreement as having been paid to
Payee.
Section 1.11.
Top-Up
Option .
(a)
The Company
hereby grants to the Buyer an irrevocable option (the “
Top-Up Option ”), exercisable only upon the terms and
subject to the conditions set forth herein, to purchase at the
Offer Price an aggregate number of shares of Company Common Stock
(the “ Top-Up Shares ”) equal to the lowest
number of shares of Company Common Stock that, when added to the
number of shares of Company Common Stock owned by Parent, Buyer and
their affiliates at the time of such exercise, shall constitute one
share of Company Common Stock more than 90% of the outstanding
shares of Company Common Stock on a fully diluted basis;
provided, however , that in no event shall the Top-Up Option
be exercisable for a number of shares of Company Common Stock in
excess of the number of authorized but unissued shares of Company
Common Stock as of immediately prior to the issuance of the Top-Up
Shares (giving effect to shares of Company Common Stock reserved
for issuance under all outstanding stock options, restricted stock
and any other rights to acquire Company Common Stock as if such
shares of Company Common Stock were outstanding); provided further,
that the Top-Up Option shall terminate upon the earlier of:
(x) the fifth business day after the later of (1) the
expiration date of the Offer and (2) the expiration of any
“subsequent offering period”; and (y) the
termination of this Agreement in accordance with its terms. The
Top-Up Option shall not be exercisable until such time as Buyer
shall have accepted for payment the shares of Company Common Stock
tendered pursuant to the Offer and all shares tendered in any
“subsequent offering period” and in no event shall the
Top-Up Option be exercisable if the Minimum Tender Condition shall
have been waived.
(b)
The parties shall
cooperate to ensure that the issuance of the Top-Up Shares is
accomplished consistent with all applicable legal requirements of
all Governmental Entities, including compliance with an applicable
exemption from registration of the Top-Up Shares under the
Securities Act.
(c)
To exercise the
Top-Up Option, the Buyer shall send to the Company a written notice
(a “ Top-Up Exercise Notice ”) specifying
(i) the number of shares of Company Common Stock that shall be
owned by Parent, Buyer and their affiliates immediately preceding
the purchase of the Top-Up Shares and (ii) the place,
time
11
and date (which
date shall be no later than the fifth business day following the
date of the Top-Up Exercise Notice) for the closing of the purchase
and sale of the Top-Up Shares (the “ Top-Up Closing
”). The Company shall, promptly after receipt of the Top-Up
Exercise Notice, deliver a written notice to the Buyer confirming
the number of Top-Up Shares and the aggregate purchase price
therefor (the “ Top-Up Notice Receipt ”). At the
Top-Up Closing, the Buyer shall pay the Company, in the manner set
forth in Section 1.11(d) hereof, the aggregate price
required to be paid for the Top-Up Shares, in an aggregate
principal amount equal to that specified in the Top-Up Notice
Receipt, and the Company shall cause to be issued and delivered to
the Buyer a certificate or certificates representing the Top-Up
Shares or, at the Buyer’s request or otherwise if the Company
does not then have certificated shares of Company Common Stock, the
applicable number of uncertificated shares represented by book
entry (“ Book-Entry Shares ”). Such certificates
or Book-Entry Shares may include any legends that are required by
applicable Law.
(d)
Buyer may pay the
Company the aggregate price required to be paid for the Top-Up
Shares either (i) entirely in cash or (ii) at
Buyer’s election, by (x) paying in cash an amount equal
to not less than the aggregate par value of the Top-Up Shares and
(y) executing and delivering to the Company a promissory note
having a principal amount equal to the balance of the aggregate
purchase price pursuant to the Top-Up Option less the amount paid
in cash pursuant to the preceding clause (x) (a “
Promissory Note ”). Any such Promissory Note shall be
full recourse against Parent and the Buyer and (i) shall bear
interest at the rate of 2% per annum, (ii) shall mature on the
first anniversary of the date of execution and delivery of such
Promissory Note and (iii) may be prepaid, in whole or in part,
without premium or penalty.
(e)
Parent and Buyer
acknowledge that the shares of Company Common Stock which Buyer may
acquire upon exercise of the Top-Up Option shall not be registered
under the Securities Act and shall be issued in reliance upon an
exemption for transactions not involving a public offering. Parent
and Buyer represent and warrant to the Company that Buyer is, or
shall be upon any purchase of Top-Up Shares, an “
accredited investor ,” as defined in Rule 501 of
Regulation D under the Securities Act. Buyer agrees that the Top-Up
Option, and the Top-Up Shares to be acquired upon exercise of the
Top-Up Option, if any, are being and shall be acquired by Buyer for
the purpose of investment and not with a view to, or for resale in
connection with, any distribution thereof (within the meaning of
the Securities Act).
ARTICLE II
THE SURVIVING
CORPORATION
Section 2.1.
Certificate of
Incorporation . The certificate of
incorporation of the Surviving Corporation shall be amended as of
the Effective Time to be substantially the same as the certificate
of incorporation attached hereto as Exhibit B , until
the same shall thereafter be altered, amended or repealed in
accordance with applicable Law or such certificate of
incorporation.
12
Section 2.2.
Bylaws
. The
bylaws of the Surviving Corporation shall be amended as of the
Effective Time to be substantially the same as the bylaws attached
hereto as Exhibit C , until the same shall thereafter
be altered, amended or repealed in accordance with applicable Law,
the certificate of incorporation of the Surviving Corporation or
such bylaws.
Section 2.3.
Directors and
Officers . From and after the
Effective Time, until the earlier of their resignation or removal
or until their respective successors are duly elected or appointed
and qualified in accordance with applicable Law, (a) the
directors of Buyer at the Effective Time shall be the directors of
the Surviving Corporation and (b) the officers of Buyer at the
Effective Time shall be the officers of the Surviving
Corporation.
ARTICLE III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Except as disclosed in (a) a
publicly available final registration statement, prospectus,
report, form, schedule or proxy statement filed since
January 1, 2009 by the Company with the SEC pursuant to the
Securities Act or the Exchange Act (collectively, the “
Company SEC Reports ”) and prior to the date hereof,
but excluding any risk factor disclosure contained in any such
Company SEC Report under the heading “Risk Factors” or
“Forward-Looking Statements” or similar heading, or
(b) the disclosure letter (the “ Company Disclosure
Letter ”) delivered by the Company to the other parties
hereto concurrently with the execution of this Agreement (which
letter sets forth items of disclosure with specific reference to
the particular Section or subsection of this Agreement to
which the information in the Company Disclosure Letter relates;
provided, however , that any information set forth in one
section of the Company Disclosure Letter will be deemed to apply to
each other Section or subsection of this Agreement to which
its relevance is reasonably apparent; provided, further ,
that, notwithstanding anything in this Agreement to the contrary,
the inclusion of an item in such letter as an exception to a
representation or warranty will not be deemed an admission that
such item represents a material exception or material fact, event
or circumstance or that such item has had or would reasonably be
expected to have a Material Adverse Effect), the Company represents
and warrants to each of the other parties as follows:
Section 3.1.
Organization
and Standing . Each of the Company
and each direct or indirect subsidiary of the Company (a “
Subsidiary ”) (a) is a corporation, limited
liability company or partnership duly organized, validly existing
and in good standing under the Laws of the jurisdiction of its
organization or formation, (b) has full corporate or other
power and authority to own, lease and operate its properties and
assets and to conduct its business as presently conducted and
(c) is duly qualified or licensed to do business as a foreign
corporation or other entity and is in good standing in each
jurisdiction where the character of the properties owned, leased or
operated by it or the nature of its business makes such
qualification or licensing necessary, except where failure to have
such approvals or to be so qualified or licensed has not had, and
would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. The Company has
furnished or made available to Parent true and complete copies of
the Company’s certificate of incorporation (the “
Company Certificate of Incorporation ”) and the
Company’s bylaws (the “ Company Bylaws ”)
and the certificate of incorporation and bylaws (or equivalent
organizational documents) of each Subsidiary, each as
13
amended to date. Such
certificates of incorporation and bylaws (or equivalent
organizational documents) are in full force and effect, and neither
the Company nor any Subsidiary is in violation of any provision of
its certificate of incorporation or bylaws (or equivalent
organizational documents).
Section 3.2.
Capitalization
. The
authorized capital stock of the Company consists of 75,000,000
shares of Company Common Stock and 25,000,000 shares of preferred
stock, par value $0.01 per share (the “ Company Preferred
Stock ”). As of October 13, 2009 with respect
to subsections (a) and (b) of this sentence and as of the
date hereof for all other subsections of this sentence,
(a) 17,262,954 shares of Company Common Stock are issued and
outstanding, all of which are validly issued, fully paid and
nonassessable and free of preemptive rights,
(b) 689,263 shares of Company Common
Stock (which are included in clause (a)) are held in the treasury
of the Company, (c) 1,701,736 Company Options are
outstanding pursuant to the Company Stock Option Plans, each such
option entitling the holder thereof to purchase one share of
Company Common Stock, (d) no shares of Company Preferred Stock
are issued and outstanding, (e) 143,850 shares of Restricted
Stock (which are included in clause (a)) are issued and outstanding
and (f) no shares of Company Common Stock are reserved for
issuance upon exercise of outstanding stock options or otherwise,
except for shares reserved for issuance pursuant to Company
Options. During the period from October 13, 2009 through
the date of this Agreement, the Company has not issued or redeemed
any shares of Company Common Stock except pursuant to a previously
announced 10b5-1 plan of the Company. Section 3.2 of the
Company Disclosure Letter sets forth a true and complete list of
the outstanding Company Options, with the exercise price of each
such Company Option. Except as set forth above, there are no
options, warrants, convertible securities, subscriptions, stock
appreciation rights, phantom stock plans or stock equivalents or
other rights, agreements, arrangements or commitments (contingent
or otherwise) of any character issued or authorized by the Company
or any Subsidiary relating to the issued or unissued capital stock
of the Company or any Subsidiary or obligating the Company or any
Subsidiary to issue or sell any shares of capital stock of, or
options, warrants, convertible securities, subscriptions or other
equity interests in, the Company or any Subsidiary. All
shares of Company Common Stock subject to issuance as aforesaid,
upon issuance on the terms and conditions specified in the
instruments pursuant to which they are issuable, shall be duly
authorized, validly issued, fully paid and nonassessable.
There are no outstanding contractual obligations of the Company or
any Subsidiary to repurchase, redeem or otherwise acquire any
shares of Company Common Stock or any capital stock of any
Subsidiary or to pay any dividend or make any other distribution in
respect thereof or to provide funds to, or make any investment (in
the form of a loan, capital contribution or otherwise) in, any
person. Each outstanding share of capital stock of each
Subsidiary is duly authorized, validly issued, fully paid and
nonassessable and free of any preemptive rights. The Company
owns (either directly or indirectly) beneficially and of record all
of the issued and outstanding capital stock of each Subsidiary,
free and clear of all security interests, liens, claims, pledges,
options, rights of first refusal, agreements, limitations on the
Company’s or such other Subsidiary’s voting rights,
charges and other encumbrances of any nature whatsoever and does
not own an equity interest in any other corporation, partnership or
entity, other than in the Subsidiaries. No bonds, debentures,
notes or other indebtedness of the Company or the Subsidiaries
having the right to vote on any matter on which stockholders may
vote are issued or outstanding.
14
Section 3.3.
Authority for
Agreement .
(a)
The Company has
all necessary corporate power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and, subject
to obtaining necessary stockholder approval, to consummate the
Merger and the other transactions contemplated by this
Agreement. The execution, delivery and performance by the
Company of this Agreement, and the consummation by the Company of
the Merger and the other transactions contemplated by this
Agreement have been duly authorized by all necessary corporate
action (including the unanimous approval of the Board of Directors
of the Company), and no other corporate proceedings on the part of
the Company are necessary to authorize this Agreement or to
consummate the Merger or the other transactions contemplated by
this Agreement (other than, with respect to the Merger, the
adoption of this Agreement by the affirmative vote of holders of a
majority of the voting power of the then issued and outstanding
shares of Company Common Stock and the filing and recordation of
the Certificate of Merger as required by the DGCL). This
Agreement has been duly executed and delivered by the Company and,
assuming the due authorization, execution and delivery by Parent
and Buyer, constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms. The affirmative vote of holders of a majority of the
issued and outstanding shares of Company Common Stock is the only
vote of the Company’s equity holders necessary to adopt this
Agreement and approve the Merger and the other transactions
contemplated by this Agreement.
(b)
At a meeting duly
called and held on October 18, 2009, the Board of Directors of
the Company unanimously (i) determined that this Agreement and
the other transactions contemplated hereby, including the Offer and
the Merger, are, on the terms and subject to the conditions
contained herein, fair to and in the best in
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