UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE
SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO. )
Filed by the Registrant
þ
Filed by a Party other than the Registrant
o
Check the appropriate box:
o
Preliminary
Proxy Statement
o
Confidential,
for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
þ
Definitive
Proxy Statement
o
Definitive
Additional Materials
o
Soliciting
Material Pursuant to
§ 240.14a-12
(Name of Registrant as Specified In
Its Charter)
(Name of Person(s) Filing Proxy
Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
|
|
o
|
No fee required.
|
|
þ
|
Fee computed on table below per Exchange Act
Rules 14a-6(i)(1)
and 0-11.
|
|
|
|
|
(1)
|
Title of each class of securities to which transaction applies:
|
Common stock, par value $0.001 per share, of Airvana, Inc. (the
Airvana common stock).
|
|
|
|
(2)
|
Aggregate number of securities to which transaction applies:
|
63,073,600 shares of Airvana common stock and options to
purchase 13,343,199 shares of Airvana common stock.
|
|
|
|
(3)
|
Per unit price or other underlying value of transaction computed
pursuant to Exchange Act
Rule 0-11
(set forth the amount on which the filing fee is calculated and
state how it was determined):
|
The maximum aggregate value was determined based on the sum of:
(a) 63,073,600 shares of Airvana common stock
multiplied by $7.65 per share; and
(b) 13,343,199 shares of Airvana common stock
underlying outstanding stock options with exercise prices less
than $7.65 per share multiplied by $4.041 (which is the
difference between $7.65 per share and the weighted average
exercise price per share). The filing fee was determined by
multiplying $0.00007130 by the maximum aggregate value of the
transaction as determined in accordance with the preceding
sentence.
|
|
|
|
(4)
|
Proposed maximum aggregate value of transaction:
|
$536,432,907
$38,248
|
|
|
|
þ
|
Fee paid previously with preliminary materials.
|
|
|
o
|
Check box if any part of the fee is offset as provided by
Exchange Act
Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
|
|
|
|
|
(1)
|
Amount Previously Paid:
|
|
|
|
|
(2)
|
Form, Schedule or Registration Statement No.:
|
AIRVANA, INC.
19 Alpha Road
Chelmsford, Massachusetts 01824
March 11,
2010
Dear Fellow Stockholder:
Airvana, Inc., a Delaware corporation (Airvana or
the Company), entered into an Agreement and Plan of
Merger dated as of December 17, 2009 (the merger
agreement) with 72 Mobile Holdings, LLC, a Delaware
limited liability company (Parent), and 72 Mobile
Acquisition Corp. (Merger Sub), a wholly-owned
subsidiary of Parent. Parent is a newly formed entity to be
owned, directly and indirectly, by affiliates of S.A.C. Private
Capital Group, LLC, GSO Capital Partners LP, Zelnick Media and
funds advised by Sankaty Advisors, LLC upon consummation of the
merger. In addition, Randall Battat, President and Chief
Executive Officer of the Company, and Vedat Eyuboglu and Sanjeev
Verma, Vice Presidents and co-founders of the Company (together,
with certain of their affiliates, the Rollover
Stockholders), will exchange a portion of their Airvana
shares for an equity interest in Parent.
Under the terms of the merger agreement, Merger Sub will be
merged with and into the Company, with the Company continuing as
the surviving corporation (the merger). If the
merger is completed, you will be entitled to receive $7.65 in
cash, without interest and less any applicable withholding
taxes, for each share of Airvana common stock that you own.
A special meeting of our stockholders will be held on
April 9, 2010, at 10:00 a.m., local time, to vote on a
proposal to adopt the merger agreement so that the merger can
occur. The special meeting will be held at the offices of Wilmer
Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts 02109. Notice of the special meeting and the
related proxy statement is enclosed.
The accompanying proxy statement gives you detailed information
about the special meeting and the merger and includes the merger
agreement as Annex A. The receipt of cash in exchange for
shares of Airvana common stock in the merger will constitute a
taxable transaction for U.S. federal income tax purposes.
We encourage you to read the proxy statement and the merger
agreement carefully.
Our board of directors has determined that the merger and the
merger agreement are advisable and fair to and in the best
interests of Airvana and its unaffiliated stockholders, and
approved the merger agreement and the transactions contemplated
thereby, including the merger. This recommendation is based, in
part, upon the unanimous recommendation of a special committee
of the board of directors consisting of four independent and
disinterested directors.
Your vote is very important.
We cannot
complete the merger unless holders of a majority of all
outstanding shares of Airvana common stock entitled to vote on
the matter vote to adopt the merger agreement.
Our board of
directors recommends that you vote FOR the proposal
to adopt the merger agreement. The failure of any stockholder to
vote on the proposal to adopt the merger agreement will have the
same effect as a vote against the adoption of the merger
agreement
.
Whether or not you plan to attend the special meeting, please
complete, date, sign and return, as promptly as possible, the
enclosed proxy by mail in the accompanying reply envelope, or
submit your proxy by telephone or the Internet. Stockholders who
attend the meeting may revoke their proxies and vote in
person.
Our board of directors and management appreciate your continuing
support of the Company, and we urge you to support this
transaction.
Sincerely,
Anthony S. Thornley
Chair of the Special Committee and
Lead Director of the Board
Neither the Securities and Exchange Commission nor any state
securities regulatory agency has approved or disapproved the
merger, passed upon the merits or fairness of the merger or
passed upon the adequacy or accuracy of the disclosure in this
document. Any representation to the contrary is a criminal
offense.
The proxy statement is dated March 11, 2010, and is first being
mailed to stockholders on or about March 12, 2010.
AIRVANA, INC.
19 Alpha Road
Chelmsford, Massachusetts 01824
NOTICE OF SPECIAL MEETING OF
STOCKHOLDERS
to be held on April 9,
2010
Dear Airvana Stockholder:
Airvana, Inc., a Delaware corporation (the Company),
will hold a special meeting of stockholders at the offices of
Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street,
Boston, Massachusetts 02109, at 10:00 a.m., local time, on
April 9, 2010, for the following purposes:
1. To consider and vote on a proposal to adopt the
Agreement and Plan of Merger, dated as of December 17, 2009
(the merger agreement), by and among the Company, 72
Mobile Holdings, LLC, a Delaware limited liability company
(Parent), and 72 Mobile Acquisition Corp., a
wholly-owned subsidiary of Parent (Merger Sub), as
such agreement may be amended from time to time.
2. To approve the adjournment of the special meeting, if
necessary, to solicit additional proxies in the event there are
not sufficient votes in favor of adoption of the merger
agreement at the time of the special meeting.
3. To act upon other business as may properly come before
the special meeting and any and all adjourned or postponed
sessions thereof.
Only record holders of Airvana common stock at the close of
business on February 23, 2010 are entitled to receive
notice of, and will be entitled to vote at, the special meeting,
including any adjournments or postponements of the special
meeting.
We urge you to read the accompanying proxy statement carefully
as it sets forth details of the proposed merger and other
important information related to the merger.
Under Delaware law, if the merger is completed, holders of
Airvana common stock who do not vote in favor of adoption of the
merger agreement will have the right to seek appraisal of the
fair value of their shares as determined by the Delaware Court
of Chancery. In order to exercise your appraisal rights, you
must submit a written demand for an appraisal prior to the
stockholder vote on the merger agreement, not vote in favor of
adoption of the merger agreement and comply with other Delaware
law procedures explained in the accompanying proxy statement.
Your vote is important and we urge you to complete, sign, date
and return your proxy card as promptly as possible by mail in
the accompanying reply envelope, whether or not you expect to
attend the special meeting. If you are unable to attend in
person and you return your proxy card, your shares will be voted
at the special meeting in accordance with your proxy. You may
also submit a proxy by telephone by calling
1-800-662-7232
in the United States and
781-575-2300
from foreign countries or through the Internet at
www.investorvote.com/AIRV using the control number on your proxy
card. If your shares are held in street name by your
broker or other nominee, only that holder can vote your shares
unless you obtain a valid legal proxy from such broker or
nominee. You should follow the directions provided by your
broker or nominee regarding how to instruct such broker or
nominee to vote your shares.
The merger is described in the accompanying proxy statement,
which we urge you to read carefully. A copy of the merger
agreement is attached as Annex A to the proxy statement.
By Order of the Board of Directors,
Peter C. Anastos
Vice President, General Counsel and Secretary
Chelmsford, Massachusetts
March 11, 2010
TABLE OF
CONTENTS
|
|
|
|
|
|
|
|
1
|
|
|
|
|
1
|
|
|
|
|
4
|
|
|
|
|
5
|
|
|
|
|
8
|
|
|
|
|
13
|
|
|
|
|
13
|
|
|
|
|
28
|
|
|
|
|
33
|
|
|
|
|
34
|
|
|
|
|
44
|
|
|
|
|
45
|
|
|
|
|
45
|
|
|
|
|
48
|
|
|
|
|
50
|
|
|
|
|
51
|
|
|
|
|
53
|
|
|
|
|
53
|
|
|
|
|
53
|
|
|
|
|
54
|
|
|
|
|
54
|
|
|
|
|
57
|
|
|
|
|
57
|
|
|
|
|
61
|
|
|
|
|
63
|
|
|
|
|
64
|
|
|
|
|
65
|
|
|
|
|
66
|
|
|
|
|
66
|
|
|
|
|
66
|
|
|
|
|
66
|
|
|
|
|
67
|
|
|
|
|
67
|
|
|
|
|
67
|
|
|
|
|
67
|
|
|
|
|
67
|
|
|
|
|
67
|
|
|
|
|
68
|
|
|
|
|
68
|
|
|
|
|
68
|
|
|
|
|
69
|
|
|
|
|
69
|
|
|
|
|
69
|
|
|
|
|
69
|
|
|
|
|
70
|
|
|
|
|
|
|
|
|
|
70
|
|
|
|
|
70
|
|
|
|
|
70
|
|
|
|
|
71
|
|
|
|
|
71
|
|
|
|
|
71
|
|
|
|
|
72
|
|
|
|
|
72
|
|
|
|
|
74
|
|
|
|
|
75
|
|
|
|
|
76
|
|
|
|
|
76
|
|
|
|
|
78
|
|
|
|
|
80
|
|
|
|
|
82
|
|
|
|
|
83
|
|
|
|
|
84
|
|
|
|
|
85
|
|
|
|
|
86
|
|
|
|
|
87
|
|
|
|
|
87
|
|
|
|
|
88
|
|
|
|
|
89
|
|
|
|
|
89
|
|
|
|
|
90
|
|
|
|
|
93
|
|
|
|
|
93
|
|
|
|
|
97
|
|
|
|
|
98
|
|
|
|
|
98
|
|
|
|
|
98
|
|
|
|
|
102
|
|
|
|
|
102
|
|
|
|
|
105
|
|
|
|
|
106
|
|
|
|
|
106
|
|
|
|
|
106
|
|
|
|
|
106
|
|
|
|
|
107
|
|
|
|
|
107
|
|
|
|
|
A-1
|
|
|
|
|
B-1
|
|
|
|
|
C-1
|
|
|
|
|
D-1
|
|
References to Airvana, the Company,
we, our or us in this proxy
statement refer to Airvana, Inc., and its subsidiaries unless
otherwise indicated by context.
ii
SUMMARY
TERM SHEET
This Summary Term Sheet, together with the Questions
and Answers About the Special Meeting and the Merger,
summarizes the material information in the proxy statement. You
should carefully read this entire proxy statement and the other
documents to which this proxy statement refers you for a more
complete understanding of the matters being considered at the
special meeting. In addition, this proxy statement incorporates
by reference important business and financial information about
Airvana. You may obtain the information incorporated by
reference into this proxy statement without charge by following
the instructions in Where You Can Find More
Information beginning on page 107.
The
Merger and the Merger Agreement
|
|
|
|
|
The Parties to the Merger (see
page 66).
Airvana, Inc., a Delaware
corporation, helps operators transform the mobile experience for
users worldwide. Airvanas high-performance technology and
products, from core mobile network infrastructure to
comprehensive femtocell solutions, enable operators to deliver
compelling and consistent broadband services to mobile
subscribers, wherever they are. Airvanas products are
deployed in over 70 commercial networks on six continents. 72
Mobile Holdings, LLC, which we refer to as Parent,
is a newly formed Delaware limited liability company that was
formed solely for the purpose of entering into the merger
agreement and consummating the transactions contemplated by the
merger agreement. Parent has not engaged in any business except
for activities incident to its formation and in connection with
the transactions contemplated by the merger agreement. 72 Mobile
Acquisition Corp, which we refer to as Merger Sub,
is a Delaware corporation and a wholly owned subsidiary of
Parent. Merger Sub was formed solely for the purpose of entering
into the merger agreement and consummating the transactions
contemplated by the merger agreement. Merger Sub has not engaged
in any business except for activities incident to its
incorporation and in connection with the transactions
contemplated by the merger agreement.
|
|
|
|
|
|
The Merger (see page 70).
You are being
asked to vote to adopt an agreement and plan of merger dated as
of December 17, 2009 by and among Airvana, Parent and
Merger Sub, as it may be amended from time to time, which
agreement we refer to as the merger agreement.
Pursuant to the merger agreement, Merger Sub will merge with and
into Airvana, which we refer to as the merger.
Airvana will be the surviving corporation in the merger, which
we refer to as the surviving corporation, and will
continue to do business as Airvana following the
merger. As a result of the merger, Airvana will cease to be an
independent, publicly traded company.
|
|
|
|
|
|
Merger Consideration (see page 71).
If
the merger is completed, each share of our common stock, other
than as provided below, will be converted into the right to
receive $7.65 in cash, without interest and less any applicable
withholding taxes. We refer to this consideration per share of
common stock to be paid in the merger as the merger
consideration. The following shares of our common stock
will not be converted into the right to receive the merger
consideration in connection with the merger: (a) shares
held by any of our stockholders who are entitled to and who
properly exercise, and do not withdraw or lose, appraisal rights
under Delaware law, (b) shares held by any of our wholly
owned subsidiaries and (c) shares held by Parent or any of
its wholly owned subsidiaries, including shares that each of
Randall Battat, Vedat Eyuboglu and Sanjeev Verma, and certain of
their affiliates, either personally or as trustees of certain
trusts, whom we collectively refer to in such capacities as the
Rollover Stockholders, have agreed to contribute to
Parent immediately prior to the completion of the merger in
exchange for equity interests in Parent. Mr. Battat is the
Companys President and CEO. Dr. Eyuboglu is our Chief
Technology Officer and a founder of the Company. Mr. Verma
is our Vice President, Femtocell Business and Corporate
Development and a founder of the Company. The Rollover
Stockholders and their respective affiliates collectively owned
approximately 10.0% of the Airvana common stock outstanding as
of the record date for the special meeting.
|
|
|
|
|
|
Treatment of Options (see page 72).
Upon
consummation of the merger, each outstanding option to purchase
shares of Airvana common stock will be fully vested, to the
extent not already fully vested, and cancelled, and thereafter
will solely represent the right to receive from the surviving
corporation in
|
1
|
|
|
|
|
exchange, at the effective time of the merger or as soon as
practicable thereafter, a cash payment equal to the product of
(i) the number of shares of Airvana common stock subject to
such option immediately prior to the effective time of the
merger, multiplied by (ii) the excess, if any, of the
merger consideration of $7.65 per share of Airvana common stock
over the exercise price per share of Airvana common stock
subject to such option.
|
|
|
|
|
|
Conditions to Closing the Merger (see
page 80).
The obligations of the parties to
consummate the merger is subject to the satisfaction or waiver
of a number of conditions, including the following:
|
|
|
|
|
|
the adoption of the merger agreement by the affirmative vote of
the holders of a majority of the outstanding shares of Airvana
common stock;
|
|
|
|
the expiration or termination of the waiting period applicable
to the merger under the
Hart-Scott-Rodino
Antitrust Improvements Act of 1976, which we refer to as the
HSR Act;
|
|
|
|
other than the filing of the certificate of merger, all
authorizations of, filings with, or expirations of waiting
periods imposed by, any governmental entity in connection with
the merger having been obtained, filed or occurred except for
failures not reasonably like to have a Buyer Material
Adverse Effect or a Company Material Adverse
Effect (each as defined in the merger agreement);
|
|
|
|
the absence of an order suspending the use of this proxy
statement or a proceeding for that purpose initiated or
threatened in writing by the Securities and Exchange Commission,
which we refer to as the SEC, or its staff;
|
|
|
|
the absence of any governmental orders that have the effect of
making the merger illegal or otherwise preventing the
consummation of the merger;
|
|
|
|
each partys respective representations and warranties in
the merger agreement being true and correct as of the closing
date of the merger in the manner described in
The
Merger Agreement Conditions to Closing the
Merger
;
|
|
|
|
each partys performance in all material respects of its
obligations required to be performed under the merger agreement
on or prior to the closing date of the merger;
|
|
|
|
the absence of a Company Material Adverse Effect
since the date of the merger agreement;
|
|
|
|
our Adjusted EBITDA (as defined in
The
Merger Agreement Definition of Adjusted
EBITDA
) for the twelve month period ended at least
30 days prior to the closing date of the merger being not
less than $95 million; and
|
|
|
|
Parents delivery to us of a solvency certificate
substantially similar in form and substance to the solvency
certificate to be delivered by Parent to its lenders that are
financing, in part, this transaction.
|
|
|
|
|
|
Restrictions on Solicitation of Other Offers (see
page 83) or Restrictions on Change of Recommendation
to Stockholders (see page 84)
. We generally have agreed
not to:
|
|
|
|
|
|
solicit, initiate or knowingly encourage any inquiries or the
making of any proposal or offer that constitutes, or could
reasonably be expected to lead to, any acquisition
proposal; or
|
|
|
|
enter into, continue or otherwise participate in any discussions
or negotiations regarding, or furnish to any person any
non-public information in response to, or otherwise for the
purpose of encouraging or facilitating, any acquisition proposal.
|
We have agreed to promptly (and in any event within one business
day) advise Parent of our receipt of any written acquisition
proposal and the material terms and conditions of any such
acquisition proposal.
We have also agreed not to grant any waiver, amendment or
release under any standstill agreement without the prior written
consent of Parent.
2
If an unsolicited acquisition proposal is made that our board of
directors determines constitutes or is reasonably likely to lead
to a superior proposal, then we generally may, prior
to the adoption of the merger agreement by the affirmative vote
of the holders of a majority of the outstanding shares of our
common stock:
|
|
|
|
|
furnish information with respect to the Company to the person
making such acquisition proposal; and
|
|
|
|
engage in discussions or negotiations with such person.
|
We have agreed that our board of directors will not
(a) withdraw its recommendation that our stockholders adopt
the merger agreement, (b) cause or permit us to enter into
an agreement concerning another acquisition proposal or
(c) adopt, approve or recommend another acquisition
proposal, except that our board of directors may take such an
action in certain circumstances if it determines in good faith,
after consultation with independent financial advisors and
outside legal counsel, that another acquisition proposal would
constitute a superior proposal if no changes were made to the
merger agreement and the failure to take such action would be
inconsistent with its fiduciary obligations under applicable
law. In addition, our board of directors may withdraw its
recommendation that our stockholders adopt the merger agreement,
other than in response to another acquisition proposal, if it
determines in good faith, after consultation with outside legal
counsel, that a failure to take such action would be
inconsistent with its fiduciary obligations under applicable law.
|
|
|
|
|
Termination (see page 85).
Airvana,
Parent and Merger Sub may agree to terminate the merger
agreement at any time prior to the effective time of the merger,
even after our stockholders have adopted the merger agreement.
The merger agreement may also be terminated in certain other
circumstances, including:
|
|
|
|
|
|
by either Airvana or Parent, if:
|
|
|
|
|
|
the merger has not been consummated by June 15, 2010,
except that this termination right will not be available to any
party whose failure to fulfill any obligation under the merger
agreement has been a principal cause of or resulted in the
failure of the merger to occur on or before such date;
|
|
|
|
a governmental entity of competent jurisdiction has issued a
nonappealable final order, decree or ruling or taken any other
nonappealable final action, in each case having the effect of
permanently restraining, enjoining or otherwise prohibiting the
merger, except that this termination right will not be available
to any party whose failure to fulfill any obligation under the
merger agreement has been a principal cause of or resulted in
such order, decree, ruling or other action; or
|
|
|
|
our stockholders do not vote to adopt the merger agreement at
the special meeting.
|
|
|
|
|
|
(a) our board of directors fails to recommend the approval
of the merger in the proxy statement distributed to our
stockholders or withholds, withdraws, amends or modifies its
recommendation of the merger to our stockholders in a manner
adverse to Parent, (b) our board of directors adopts,
approves, endorses or recommends to our stockholders another
acquisition proposal, (c) a tender offer or exchange offer
for our outstanding common stock is commenced and our board of
directors recommends that our stockholders tender their shares
in such tender or exchange offer or, within ten (10) business
days after the public announcement of such tender or exchange
offer, fails to recommend that our stockholders reject such
offer and reaffirm its recommendation that our stockholders
adopt the merger agreement, (d) we enter into an agreement
concerning another acquisition proposal or (e) we or our
board of directors publicly announces an intention to do any of
the foregoing; or
|
|
|
|
we breach or fail to perform any of our representations,
warranties, covenants or agreements in the merger agreement and
such breach or failure to perform would cause the conditions to
the obligations of Parent and Merger Sub to consummate the
closing not to be satisfied and such breach or failure to
perform is not timely cured or is not capable of being cured,
except that Parent
|
3
|
|
|
|
|
does not have the right to terminate the merger agreement if it
or Merger Sub is then in material breach of any of its
representations, warranties, covenants or agreements and such
breach would cause the conditions to our obligation to
consummate the closing not to be satisfied.
|
|
|
|
|
|
our board of directors pursuant to and in compliance with our
non-solicitation obligations under the merger agreement, adopts,
approves, endorses or recommends to our stockholders another
acquisition proposal (or publicly proposes to do so) and prior
to or simultaneously with such termination we pay to Parent in
cash a $15 million termination fee;
|
|
|
|
Parent or Merger Sub breaches or fails to perform any of their
representations, warranties, covenants or agreements in the
merger agreement and such breach or failure to perform would
cause the conditions to our obligation to consummate the closing
not to be satisfied and such breach or failure to perform is not
timely cured or is not capable of being cured, except that the
we do not have the right to terminate the merger agreement if we
are then in material breach of any of our representations,
warranties, covenants or agreements and such breach would cause
the conditions to the obligations of Parent and Merger Sub to
consummate the closing not to be satisfied; or
|
|
|
|
all of the conditions to the obligations of Parent and Merger
Sub to consummate the merger have been satisfied and Parent and
Merger Sub fail to consummate the merger within ten
(10) business days following the date the closing should
have otherwise occurred.
|
|
|
|
|
|
Termination Fees (see page 86) and Expense
Reimbursement (see page 87)
. If the merger
agreement is terminated, depending upon the certain
circumstances under which such termination occurs:
|
|
|
|
|
|
we may be obligated to pay Parent a termination fee of
$15 million (less any expenses of Parent reimbursed by us
in connection with such termination);
|
|
|
|
we may be obligated to reimburse Parent for expenses actually
incurred related to the transactions contemplated by the merger
agreement, up to a total cap of $3 million; or
|
|
|
|
Parent may be obligated to pay us a reverse termination fee of
$25 million.
|
|
|
|
|
|
Limitations on Remedies and Liability Cap (see
page 87).
|
|
|
|
|
|
Each of Parent and Merger Sub is entitled to an injunction to
prevent breaches of the merger agreement by us and to enforce
specifically the terms of the merger agreement against us, in
addition to any other remedy to which it may be entitled.
However, we are not entitled to enforce specifically the terms
of the merger agreement against either of Parent or Merger Sub.
|
|
|
|
Parents liability relating to the merger agreement is
limited to the $25 million reverse termination fee plus
interest (at the prime rate) and reimbursement of reasonable
costs and expenses we may incur in enforcing our right to
payment of such reverse termination fee.
|
|
|
|
Our liability relating to the merger agreement is limited to the
$15 million termination fee plus interest (at the prime
rate) and reimbursement of reasonable costs and expenses Parent
may incur in enforcing its right to payment of such termination
fee. However, such liability limitation will in no way limit the
rights of each of Parent and Merger Sub to seek an injunction to
prevent breaches of the merger agreement by us and to enforce
specifically the terms of the merger agreement against us.
|
The
Special Meeting
See
Questions and Answers About the Merger and the
Special Meeting
beginning on page 8 and
The Special Meeting
beginning on page 67.
4
Other
Important Considerations
|
|
|
|
|
Recommendation of the Special Committee (see
page 28).
The special committee is a
committee of our board of directors that was formed on
July 9, 2009. The special committee has authority to
establish, monitor and direct the process and procedures related
to the review and evaluation of one or more proposals made to
the Company by S.A.C. Private Capital Group, LLC, which we refer
to as SAC PCG, and any alternative transaction. The
special committee had the authority to solicit other proposals,
to determine not to proceed with any such proposal or
transaction, to reject or approve any such proposal or
transaction, or recommend such rejection or approval to the
board of directors, and to recommend to the board of directors
whether any such proposal or transaction is advisable and is
fair to, and in the best interests of, the Company and its
stockholders. The special committee unanimously determined that
the merger, the consideration to be paid in the merger, and the
other terms and provisions of the merger agreement are fair to,
advisable and in the best interests of the Company and its
unaffiliated stockholders (by which we mean, for purposes of
this determination, holders of Airvana common stock other than
officers or directors of the Company or Rollover Stockholders).
The special committee recommended that the board of directors
accept the merger agreement and the terms and conditions of the
merger and the merger agreement as being fair to, advisable and
in the best interests of the Company and its unaffiliated
stockholders, approve and adopt the merger agreement, and
recommend adoption of the merger agreement by the holders of
Airvana common stock.
|
|
|
|
Recommendation of the Board of Directors (see
page 33)
. The Companys board of
directors, acting upon the unanimous recommendation of the
special committee and without the participation of
Messrs. Battat and Verma, recommends that Airvanas
stockholders vote FOR the adoption of the merger
agreement, and FOR the adjournment of the special
meeting, if necessary, to solicit additional proxies in the
event there are not sufficient votes in favor of adoption of the
merger agreement at the time of the special meeting.
|
|
|
|
|
|
Voting by Airvanas Directors and Executive Officers
(see page 68)
. As of February 23, 2010,
the record date, the directors and executive officers of Airvana
and their affiliates held and are entitled to vote, in the
aggregate, shares of Airvana common stock representing
approximately 48.6% of the outstanding shares of Airvana common
stock. The directors and executive officers have informed
Airvana that they currently intend to vote all of these shares
of Airvana common stock FOR the adoption of the
merger agreement and FOR the adjournment proposal.
|
|
|
|
|
|
Interests of the Companys Directors and Executive
Officers in the Merger (see page 57)
. Upon
the consummation of the merger, all stock options held by our
directors and executive officers will vest, and each vested and
unexercised stock option will be cashed out in an amount equal
to the excess of $7.65 over the option exercise price. As of
January 3, 2010, our directors and executive officers and
their affiliates, as a group, beneficially owned, excluding all
shares of common stock to be rolled over by the Rollover
Stockholders, 27,174,700 shares of Airvana common stock and
vested and unvested options to purchase 4,798,645 shares of
Airvana common stock. Together, these securities represent 41.8%
of the total Airvana securities that are subject to purchase as
part of the merger. The maximum total amount of all cash
payments our directors and executive officers may receive in
respect of their beneficially owned Airvana securities upon the
consummation of the merger is approximately $229.8 million,
as more fully described on page 59. In considering the
recommendation of our board of directors, you should be aware
that some of our directors and executive officers have interests
in the merger that are different from, or in addition to, your
interests as a stockholder and that may present actual or
potential conflicts of interest. These interests include, among
others:
|
|
|
|
|
|
accelerated vesting of stock options with exercise prices of
less than $7.65 per share;
|
|
|
|
the expected ownership of equity interests in Parent or its
affiliates by the Rollover Stockholders after completion of the
merger in exchange for certain shares of Airvana common stock
which they currently own;
|
5
|
|
|
|
|
the anticipated entry into new employment arrangements by
certain of our executive officers, including Messrs. Battat
and Verma and Dr. Eyuboglu in connection with the
completion of the merger;
|
|
|
|
the anticipated establishment of an equity-based compensation
plan and grants of equity awards to our executive officers and
other key employees after completion of the merger; and
|
|
|
|
continued indemnification and directors and officers
liability insurance applicable to the period prior to completion
of the merger.
|
Our special committee and board of directors were aware of these
interests and considered them, among other matters, prior to
making their determinations to recommend the adoption of the
merger agreement by the Companys stockholders. These and
other interests of our directors and executive officers, some of
which may be different than those of our stockholders generally,
are more fully described, together with a more detailed
description of the total cash payments our directors and
executive officers will receive in connection with the merger,
under
Special Factors Interests of the
Companys Directors and Executive Officers in the
Merger
beginning on page 57.
|
|
|
|
|
Opinion of the Special Committees Financial Advisor
(see page 34).
|
|
|
|
|
|
Goldman, Sachs & Co., which we refer to as
Goldman Sachs, delivered its opinion to the special
committee that, as of December 17, 2009 and based upon and
subject to the factors and assumptions set forth therein, the
$7.65 per share in cash to be paid to the holders (other than
the Rollover Stockholders) of the outstanding shares of the
Company common stock pursuant to the merger agreement was fair
from a financial point of view to such holders.
|
|
|
|
The full text of the written opinion of Goldman Sachs, dated
December 17, 2009, which sets forth assumptions made,
procedures followed, matters considered and limitations on the
review undertaken in connection with the opinion, is attached as
Annex B to this proxy statement. Goldman Sachs provided its
opinion for the information and assistance of the special
committee in connection with its consideration of the merger
agreement. The Goldman Sachs opinion is not a recommendation as
to how any holder of the Company common stock should vote with
respect to the merger or any other matter. Pursuant to an
engagement letter among the special committee, the Company and
Goldman Sachs, the Company has agreed to pay Goldman Sachs a
transaction fee equal to approximately $6.3 million,
$5.8 million of which is contingent upon consummation of
the merger.
|
|
|
|
|
|
Financing of the Merger (see
page 54).
The merger agreement does not
contain any condition relating to the receipt of financing by
Parent or Merger Sub. Parent estimates that the aggregate amount
of financing necessary to complete the merger and the payment of
related fees and expenses will be approximately
$530 million. This amount is expected to be funded by
Parent and Merger Sub with a combination of the equity financing
contemplated by the commitment letters described below, debt
financing contemplated by the commitment letter described below
and cash of the Company. The equity and debt financings are
subject to the satisfaction of the conditions set forth in the
commitment letters pursuant to which such financings will be
provided.
|
|
|
|
|
|
Equity Financing.
Parent has received an
equity commitment letter from S.A.C. Capital Management, LLC to
purchase, or cause to be purchased, up to $103.1 million of
equity of Parent. Approximately $92.5 million of that
commitment has been assigned to 72 Mobile Investors, LLC, which
we refer to as Investment Vehicle. Parent has also
received an equity commitment letter from GSO Capital Partners
LP, which we refer to as GSO, to purchase, or cause
to be purchased, up to $10 million of equity of Parent. In
addition, the Rollover Stockholders have agreed to contribute to
Parent an aggregate of 3,738,562 shares of our common stock
(with an aggregate value of approximately $28.6 million,
based on the merger consideration).
|
Investment Vehicle has received an equity commitment letter from
Sankaty Credit Opportunities II, L.P., Sankaty Credit
Opportunities III, L.P., Sankaty Credit Opportunities IV, L.P.
and Sankaty Credit Opportunities (Offshore Master) IV, L.P.,
which we refer to collectively as Sankaty, to
purchase, or
6
cause to be purchased, up to $25 million of equity of
Investment Vehicle. Investment Vehicle has also received an
equity commitment letter from ZM Capital, L.P., which we refer
to as ZM Capital, to purchase, or cause to be
purchased, up to $17.5 million of equity of Investment
Vehicle. We refer to Sankaty and ZM Capital collectively as the
Co-Investors. Additionally, Investment Vehicle has
received an equity commitment letter from 72 Private
Investments, L.P. to purchase, or cause to be purchased, up to
approximately $50 million of equity of Investment Vehicle.
Any of the foregoing commitments may be assigned under
circumstances set forth in such commitment letters.
|
|
|
|
|
Debt Financing.
Parent has received a debt
financing commitment letter that provides for up to
$170.0 million of debt financing from GSO, on behalf of
certain funds managed by GSO. On January 13, 2010, the debt
financing commitment letter was amended.
|
|
|
|
|
|
Regulatory Approvals (see page 53)
. Under
the HSR Act and the rules promulgated thereunder by the Federal
Trade Commission, which we refer to as the FTC, the
merger may not be completed until notification and report forms
have been filed with the FTC and the Antitrust Division of the
Department of Justice, which we refer to as the DOJ,
and the applicable waiting period has expired or been
terminated. Airvana and Parent filed notification and report
forms under the HSR Act with the FTC and the Antitrust Division
of the DOJ on January 15, 2010. The FTC and DOJ terminated
the mandatory waiting period under the HSR Act on
January 27, 2010.
|
|
|
|
Material U.S. Federal Income Tax Consequences of the
Merger to Our Stockholders (see
page 61)
. The conversion of shares of our
common stock into the right to receive the $7.65 per share cash
merger consideration will be a taxable transaction to our
stockholders for U.S. federal income tax purposes.
|
|
|
|
Appraisal Rights (see page 90).
Holders
of our common stock who object to the merger may elect to pursue
their appraisal rights to receive the judicially determined
fair value of their shares, which could be more or
less than, or the same as, the per share merger consideration
for the common stock, but only if they comply with the
procedures required under Delaware law. In order to qualify for
these rights, you must (1) not vote in favor of adoption of
the merger agreement, nor consent thereto in writing,
(2) make a written demand for appraisal prior to the taking
of the vote on the adoption of the merger agreement at the
special meeting and (3) otherwise comply with the Delaware
law procedures for exercising appraisal rights. For a summary of
these Delaware law procedures, see
Appraisal
Rights
beginning on page 90. An executed proxy that is
not marked AGAINST or ABSTAIN will
be voted for adoption of the merger agreement and will
disqualify the stockholder submitting that proxy from demanding
appraisal rights. A copy of Section 262 of the General
Corporation Law of the State of Delaware, or DGCL, is also
included as Annex C to this proxy statement. Failure to
follow the procedures set forth in Section 262 of the DGCL
will result in the loss of appraisal rights.
|
|
|
|
Market Price of Airvana Common Stock (see
page 102).
The closing sale price of Airvana
common stock on The NASDAQ Stock Market, which we refer to as
NASDAQ, on December 17, 2009, the last trading
day prior to the announcement of the merger, was $6.24 per
share. The $7.65 per share to be paid for each share of Airvana
common stock in the merger represents a premium of approximately
23% to the closing price on December 17, 2009. On March 10,
2010, which is the most recent practicable trading date prior to
the date of the proxy statement, the closing trading price of
our common stock was $7.72 per share.
|
7
QUESTIONS
AND ANSWERS ABOUT THE MERGER AND THE SPECIAL MEETING
The following questions and answers are intended to address
briefly some commonly asked questions regarding the merger, the
merger agreement and the special meeting. These questions and
answers do not address all questions that may be important to
you as an Airvana stockholder. Please refer to the Summary
Term Sheet and the more detailed information contained
elsewhere in this proxy statement, the annexes to this proxy
statement and the documents referred to or incorporated by
reference in this proxy statement, which you should read
carefully.
The
Proposed Merger
|
|
|
|
|
|
|
Q:
|
|
What will I receive for my shares of Airvana common stock in
the merger?
|
|
A:
|
|
Upon completion of the merger, you will receive $7.65 in cash,
without interest and less any applicable withholding taxes, for
each share of our common stock that you own, unless you properly
exercise, and do not withdraw or lose, appraisal rights under
Delaware law.
|
Q:
|
|
What effects will the proposed merger have on the Company?
|
|
A:
|
|
Upon completion of the proposed merger, Airvana will cease to be
a publicly traded company and will be wholly owned by Parent. As
a result, you will no longer have any interest in our future
earnings or growth, if any. Following completion of the merger,
the registration of our common stock and our reporting
obligations with respect to our common stock under the
Securities Exchange Act of 1934, as amended, which we refer to
as the Exchange Act, are expected to be terminated.
In addition, upon completion of the proposed merger, shares of
Airvana common stock will no longer be listed on the NASDAQ.
|
Q.
|
|
What happens if the merger is not completed?
|
|
A.
|
|
If the merger agreement is not adopted by our stockholders, or
if the merger is not completed for any other reason, our
stockholders will not receive any payment for their shares
pursuant to the merger agreement. Instead, Airvana will remain
as a public company and our common stock will continue to be
registered under the Exchange Act and listed and traded on the
NASDAQ. Under specified circumstances, Airvana may be required
to pay Parent a termination fee or reimburse Parent for up to
$3 million of its out of pocket expenses or Parent may be
required to pay Airvana a termination fee, in each case, as
described in
The Merger Agreement
Termination Fees
beginning on page 86.
|
Q.
|
|
When is the merger expected to be completed?
|
|
A.
|
|
We are working toward completing the merger as quickly as
possible, and we anticipate that it will be completed in April
2010 or as soon as practicable thereafter. In order to complete
the merger, we must obtain stockholder approval and the other
closing conditions under the merger agreement must be satisfied
or waived (as permitted by law). See
The Merger
Agreement Conditions to Closing the Merger
beginning on page 80.
|
The Special Meeting
|
|
|
|
|
|
|
|
Q.
|
|
When and where is the special meeting?
|
|
A.
|
|
The special meeting of stockholders of Airvana will be held on
April 9, 2010, at 10:00 a.m. local time, at the
offices of Wilmer Cutler Pickering Hale and Dorr LLP, 60 State
Street, Boston, Massachusetts 02109.
|
Q.
|
|
What matters will be voted on at the special meeting?
|
|
A.
|
|
You will be asked to consider and vote on the following
proposals:
|
8
|
|
|
|
|
|
|
|
|
|
|
|
|
to adopt the merger
agreement, as it may be amended from time to time;
|
|
|
|
|
|
|
to approve the
adjournment of the special meeting, if necessary, to solicit
additional proxies in the event there are not sufficient votes
in favor of adoption of the merger agreement at the time of the
special meeting; and
|
|
|
|
|
|
|
to act upon other
business as may properly come before the special meeting and any
and all adjourned or postponed sessions thereof.
|
Q
|
|
Who is entitled to vote at the special meeting?
|
|
A.
|
|
Stockholders of record holding Airvana common stock as of the
close of business on February 23, 2010, the record date for
the special meeting, are entitled to vote at the special
meeting. As of the record date, there were
63,560,767 shares of Airvana common stock issued and
outstanding. Every holder of Airvana common stock is entitled to
one vote for each such share the stockholder held as of the
record date.
|
Q.
|
|
What vote is required for Airvanas stockholders to
adopt the merger agreement?
|
|
A.
|
|
An affirmative vote of the holders of a majority of all issued
and outstanding shares of Airvana common stock is required to
adopt the merger agreement.
|
Q.
|
|
What vote is required for Airvanas stockholders to
approve a proposal to adjourn the special meeting, if necessary,
to solicit additional proxies?
|
|
A.
|
|
The proposal to adjourn the special meeting, if necessary, to
solicit additional proxies requires the affirmative vote of a
majority of the votes cast on the matter by holders of Airvana
common stock present, in person or represented by proxy, at the
special meeting, provided that a quorum is present, in person or
represented by proxy at the special meeting.
|
Q.
|
|
Who is soliciting my vote?
|
|
A.
|
|
This proxy solicitation is being made and paid for by Airvana.
In addition, we have retained Georgeson Inc., which we refer to
as Georgeson, to assist in the solicitation. We will
pay Georgeson approximately $8,500 plus
out-of-pocket
expenses for its assistance. Our directors, officers and
employees may also solicit proxies by personal interview, mail,
e-mail,
telephone, facsimile or by other means of communication. These
persons will not be paid additional remuneration for their
efforts. We will also request brokers and other fiduciaries to
forward proxy solicitation material to the beneficial owners of
shares of Airvana common stock that the brokers and fiduciaries
hold of record. We will reimburse them for their reasonable
out-of-pocket
expenses.
|
Q.
|
|
What do I need to do now?
|
|
A.
|
|
Even if you plan to attend the special meeting, after carefully
reading and considering the information contained in this proxy
statement, if you hold your shares in your own name as the
stockholder of record, please vote your shares by completing,
signing, dating and returning the enclosed proxy card; using the
telephone number printed on the enclosed proxy card; or using
the Internet voting instructions printed on the enclosed proxy
card. You can also attend the special meeting and vote, or
change your prior vote, in person.
Do NOT enclose or return
your stock certificate(s) with your proxy
. If you hold your
shares in street name through a broker, bank or
other nominee, then you received this proxy statement from the
nominee, along with the nominees proxy card which includes
voting instructions and instructions on how to change your vote.
|
9
|
|
|
|
|
|
|
Q.
|
|
How do I submit my proxy? How can I revoke my proxy?
|
|
A.
|
|
You may submit your proxy by signing and dating each proxy card
you receive and returning it in the enclosed prepaid envelope or
as described below if you hold your shares in street
name. If you return your signed proxy card, but do not
mark the boxes showing how you wish to vote, your shares will be
voted FOR the proposal to adopt the merger agreement
and FOR the adjournment proposal. You have the right
to revoke your proxy at any time before the vote taken at the
special meeting:
|
|
|
|
|
|
|
if you hold your
shares in your name as a stockholder of record, by notifying our
Secretary at 19 Alpha Road, Chelmsford, Massachusetts 01824;
|
|
|
|
|
|
|
by attending the
special meeting and voting in person (your attendance at the
meeting will not, by itself, revoke your proxy; you must vote in
person at the meeting);
|
|
|
|
|
|
|
by submitting a
later-dated proxy card; or
|
|
|
|
|
|
|
if you have instructed
a broker, bank or other nominee to vote your shares, by
following the directions received from your broker, bank or
other nominee to change those instructions.
|
Q.
|
|
Can I submit my proxy by telephone or electronically?
|
|
A.
|
|
If you hold your shares in your name as a stockholder of record,
you may submit your proxy by telephone or electronically through
the Internet by following the instructions included with your
proxy card.
|
|
|
|
|
|
|
If your shares are held by your broker, bank or other nominee,
often referred to as held in street name, please
check your proxy card or contact your broker, bank or nominee to
determine whether you will be able to vote by telephone or
electronically.
|
Q.
|
|
If my shares are held in street name by my
broker, bank or other nominee, will my broker, bank or other
nominee vote my shares for me?
|
|
A.
|
|
Your broker, bank or other nominee will only be permitted to
vote your shares if you instruct your broker, bank or other
nominee how to vote. You should follow the procedures provided
by your broker, bank or other nominee regarding the voting of
your shares. If you do not instruct your broker, bank or other
nominee to vote your shares, your shares will not be voted and
the effect will be the same as a vote against the adoption of
the merger agreement and will not have an effect on the proposal
to adjourn the special meeting.
|
Q.
|
|
What do I do if I receive more than one proxy or set of
voting instructions?
|
|
A.
|
|
If you hold shares in street name and also directly
as a record holder, you may receive more than one proxy
and/or
set
of voting instructions relating to the special meeting.
These
should each be voted
and/or
returned separately as described elsewhere in this proxy
statement in order to ensure that all of your shares are
voted
.
|
10
|
|
|
|
|
|
|
Q.
|
|
How are votes counted?
|
|
A.
|
|
For the proposal to adopt the merger agreement, you may vote
FOR, AGAINST or ABSTAIN. Abstentions will not be counted as
votes cast or shares voting on the proposal to adopt the merger
agreement, but will count for the purpose of determining whether
a quorum is present. If you abstain, it will have the same
effect as if you vote against the adoption of the merger
agreement. In addition, if your shares are held in the name of a
broker, bank or other nominee, your broker, bank or other
nominee will not be entitled to vote your shares in the absence
of specific instructions. These non-voted shares, or
broker non-votes, if any, will not be counted as
shares present, and will have the same effect as if you vote
against the adoption of the merger agreement.
|
|
|
|
|
|
|
For a proposal to adjourn the special meeting, if necessary, to
solicit additional proxies, you may vote FOR, AGAINST or
ABSTAIN. For purposes of determining the presence of a quorum,
abstentions will be counted as shares present, however, broker
non-votes, if any, will not be counted as shares present.
Abstentions and broker non-votes will have no effect on the vote
to adjourn the meeting, which requires the vote of a majority of
the votes cast on the matter by holders of Airvana common stock
present, in person or represented by proxy, at the special
meeting, provided that a quorum is present, in person or
represented by proxy, at the special meeting.
|
|
|
|
|
|
|
If you sign your proxy card without indicating your vote, your
shares will be voted FOR the adoption of the merger
agreement and FOR the adjournment of the special
meeting, if necessary, to solicit additional proxies, and in
accordance with the recommendations of our board of directors on
any other matters properly brought before the special meeting
for a vote.
|
Q.
|
|
Who will count the votes?
|
|
A.
|
|
A representative of our transfer agent, Computershare Investor
Services, will count the votes and act as an inspector of
election. Questions concerning stock certificates or other
matters pertaining to your shares may be directed to
Computershare Investor Services at
800-662-7232.
|
Q.
|
|
Should I send in my stock certificates now?
|
|
A.
|
|
No. After the merger is completed, you will be sent a
letter of transmittal with detailed written instructions for
exchanging your Airvana common stock certificates for the merger
consideration. If your shares are held in street
name by your broker, bank or other nominee you will
receive instructions from your broker, bank or other nominee as
to how to effect the surrender of your street name
shares in exchange for the merger consideration. Please do not
send your certificates in now.
|
11
|
|
|
|
|
|
|
Q.
|
|
How can I obtain additional information about Airvana?
|
|
A.
|
|
We will provide a copy of our Annual Report to Stockholders
and/or
our
Annual Report on
Form 10-K
for the year ended December 28, 2008, as filed on
February 24, 2009, excluding certain of its exhibits, and
other filings, with the SEC, without charge to any stockholder
who makes a written or oral request to the Secretary, Airvana,
Inc., 19 Alpha Road, Chelmsford, Massachusetts 01824; telephone
978-250-3000.
Our Annual Report on
Form 10-K
and other SEC filings also may be accessed on the world wide web
at
http://www.sec.gov
or on the Investor Relations page of the Companys website
at
http://www.airvana.com.
Our website address is provided as an inactive textual reference
only. The information provided on our website is not part of
this proxy statement, and therefore is not incorporated by
reference. For a more detailed description of the information
available, please refer to
Where You Can Find More
Information
beginning on page 107.
|
Q.
|
|
Who can help answer my questions?
|
|
A.
|
|
If you have additional questions about the merger after reading
this proxy statement or need assistance voting your shares,
please call our proxy solicitor, Georgeson, toll-free at
800-960-7546.
Banks and brokers should contact Georgeson at
212-440-9800.
|
12
SPECIAL
FACTORS
This discussion of the merger is qualified by reference to
the merger agreement, which is attached to this proxy statement
as Annex A. You should read the entire merger agreement
carefully as it is the legal document that governs the
merger.
Background
of the Merger
The board of directors of the Company (the board)
regularly reviews and evaluates the Companys business
strategy and strategic alternatives with the goal of enhancing
stockholder value.
In December 2007, after considering the risks and uncertainties
of the Companys current business model, including the
uncertainties relating to the continued market for the
Companys principal EV-DO products and the risks relating
to the Companys efforts to develop its femtocell business,
the board engaged a financial advisor to explore strategic
alternatives available to the Company, including a possible sale
of the Company. Over the next several months, the Companys
financial advisor contacted a number of potential strategic and
financial buyers to assess their interest in a business
combination with the Company. In the course of this process, the
Company entered into a non-disclosure agreement with one
potential strategic buyer, which expressed interest in acquiring
the Company for between $5.80 and $6.20 per share. This process
did not lead to any transaction and, on May 1, 2008,
Airvana terminated the engagement of its financial advisor.
From September 2008 to January 2009, Airvana had exploratory
discussions with two potential strategic buyers with respect to
a possible business combination. One of the parties
(Bidder B) initially expressed interest in
acquiring the Company for $5.75 per share and subsequently
orally indicated a willingness to consider a higher price, but
discussions ended without any agreement. The other party
declined to make any acquisition proposal.
On March 6, 2009, Merle Gilmore, a consultant to SAC PCG,
contacted Randall S. Battat, President and Chief Executive
Officer of the Company, to discuss SAC PCGs possible
interest in investing in certain technologies being offered for
sale by one of the Companys customers. During the
discussion, Mr. Battat related to Mr. Gilmore that
there might be an opportunity for SAC PCG to engage in a
strategic transaction with the Company.
On March 10, 2009, at a meeting of the board, the directors
discussed the possible interest of SAC PCG in a strategic
transaction, and the board authorized management to explore
possible acquisition alternatives, including an approach to
Bidder B.
In mid-March 2009, Bidder B declined to pursue acquisition
discussions with the Company.
On March 27, 2009, SAC PCG and the Company entered into a
non-disclosure agreement.
On March 30, 2009, Messrs. Randall S. Battat,
President and Chief Executive Officer of the Company; Sanjeev
Verma, Vice President, Femto Business and Corporate Development;
Dr. Vedat M. Eyuboglu, Vice President, Chief Technical Officer;
and Mr. Jeffrey D. Glidden, Chief Financial Officer of the
Company met with Messrs. Gilmore; Frank Baker, managing
director of SAC PCG; Philip Lo, an associate of SAC PCG; and
Michael Seedman, a consultant to SAC PCG, to review the business
of the Company.
On April 22, 2009, Messrs. Battat, Verma and Glidden
and Dr. Eyuboglu held a telephone call with
Messrs. Baker, Gilmore and Lo to discuss the Companys
EV-DO business.
On April 27, 2009, at a meeting of the board,
Mr. Battat reviewed the status of SAC PCGs review of
the business of the Company. It was the consensus of the board
that management should continue to allow SAC PCG to engage
in a diligence review of the Company.
In May 2009, representatives of SAC PCG met on several occasions
with Messrs. Battat, Verma and Glidden and
Dr. Eyuboglu to continue their diligence review of the
business of the Company. During one of these meetings, SAC PCG
discussed hypothetical structures for a potential acquisition by
SAC PCG of all or a majority of the Companys outstanding
shares at a price of $6.50 per share. Management indicated to
SAC PCG that the board would likely not be receptive to
considering a transaction at that valuation.
13
On May 19, 2009, at a meeting of the board, Mr. Battat
reviewed the status of the diligence review by SAC PCG. It was
the consensus of the board that such review should continue.
On June 1, 2009, Messrs. Baker, Gilmore, Seedman and
Lo met with Messrs. Battat, Verma and Glidden and
Dr. Eyuboglu to continue SAC PCGs diligence review.
On June 2, 2009, Messrs. Battat and Verma and
Dr. Eyuboglu met with Mr. Paul J. Ferri, a member of
the board and a founding partner of one of the Companys
principal stockholders, to discuss generally the status of
SAC PCGs review of the Company and various possible
strategic alternatives, including a potential sale of the
Company.
On June 10, 2009, at a meeting of the board,
Mr. Battat reviewed the status of the discussions with
SAC PCG and, specifically, SAC PCGs request that it
be permitted to share non-public information with third parties
that might be interested in providing financing to SAC PCG for a
possible transaction with the Company. As it was likely that any
proposal from SAC PCG would assume that certain members of the
Companys management would agree to maintain some equity
ownership in the Company and continue to be employed by the
Company, the board determined that Messrs. Battat and Verma
should be excluded from the boards consideration of the
request by SAC PCG or any potential transaction with SAC PCG.
On June 12, 2009, a meeting of a majority of the
non-employee members of the board (consisting of
Messrs. Hassan Ahmed, Gururaj Deshpande, Ferri and Anthony
Thornley) was convened to discuss an appropriate response to the
approach by SAC PCG. Representatives from Wilmer Cutler
Pickering Hale and Dorr LLP (WilmerHale), the
Companys regular outside counsel, described to the
directors their fiduciary responsibilities in considering a
potential transaction with SAC PCG. The directors determined
they did not have sufficient information to assess the level of
interest of SAC PCG or the likelihood that it would be able to
obtain financing for a transaction. It was therefore the
consensus of the directors that the next step should be for
Mr. Ferri or Mr. Thornley to call representatives of
SAC PCG and try to gain more information that would enable the
non-employee directors to assess any acquisition proposal that
SAC PCG might make. The directors also determined that, in the
event SAC PCG submitted an indication of interest to acquire the
Company on terms that merited consideration by the board, the
board would form a special committee of the board (the
special committee) to evaluate such proposal. As the
board recognized that any such proposal would likely assume that
management would maintain some equity ownership in the Company
and continue to be employed by the Company, it was determined
that employee board members should not serve on any such
committee. Also, it was determined that Mr. Deshpande would
not serve on any such committee because a company with which he
is affiliated could be a potentially interested party in a
strategic transaction involving the Company. The board
determined that it would be appropriate to form such a special
committee, and have such committee engage its own legal and
financial advisors, only after it had obtained additional
information sufficient for it to evaluate the level of SAC
PCGs interest in an acquisition and the likelihood of its
ability to finance such an acquisition.
On June 15, 2009, at a meeting of a majority of the
non-employee directors (consisting of Messrs. Ferri,
Thornley, Ahmed and Deshpande), the directors discussed SAC
PCGs request that it be permitted to approach potential
financing sources for an acquisition of the Company in order to
determine whether a transaction with the Company could be
financed. The non-employee directors discussed this request and
determined that SAC PCG should be given consent to approach
a limited number of potential financing sources. The
non-employee
directors also determined to invite SAC PCG to submit a written
preliminary indication of interest with respect to a possible
transaction involving the Company so that the non-employee
directors could better understand and evaluate the terms of any
proposed transaction and SAC PCGs level of interest.
Following the June 15, 2009 meeting, Mr. Ferri called
Mr. Baker of SAC PCG to relay the non-employee
directors invitation to submit a written expression of
interest. A written invitation was sent on June 25, 2009.
On June 29, 2009, SAC PCG sent to Messrs. Ferri and
Thornley a letter containing a preliminary indication of
interest to acquire the Company for $7.00 per share in cash. SAC
PCGs preliminary indication of interest assumed that
certain unspecified members of management would retain a
significant equity interest in the Company and was subject to
various conditions, including a financing condition and the
Companys
14
collection of approximately $35 million in accounts
receivable from its primary customer (Nortel) or its successor
through bankruptcy. The letter contemplated that the Company
would negotiate exclusively with SAC PCG and not seek or
negotiate with any other prospective acquirers.
On June 30, 2009, at a meeting of a majority of the
non-employee members of the board (consisting of
Messrs. Ferri, Thornley and Robert P. Badavas), the terms
of SAC PCGs June 29 letter were reviewed. It was
determined that Messrs. Ferri and Thornley should continue
to have discussions with SAC PCG to assess further SAC
PCGs expression of interest and the financing risks before
convening a meeting of the full board to determine whether to
establish a special committee of the board to consider whether
to explore further SAC PCGs preliminary indication of
interest or other strategic alternatives that might be available
to the Company.
On July 7, 2009, Messrs. Gilmore and Baker and Peter
Berger, a managing director of SAC PCG, met with
Messrs. Thornley and Ferri to discuss SAC PCGs
interest in acquiring the Company. At the meeting, the parties
discussed generally SAC PCGs interest in acquiring the
Company, its transactional experience and its financing plans.
On July 9, 2009, at a meeting of the board, the board
discussed SAC PCGs indication of interest, as well as the
advisability of examining other strategic alternatives that
might be available to the Company. Representatives from
WilmerHale advised the board regarding its fiduciary duties in
considering strategic alternatives. Recognizing that one
possible alternative was a sale of the Company to a financial
buyer such as SAC PCG that could involve certain employee
directors and management being asked to participate in such a
transaction by becoming equity participants and retaining their
managerial positions, the board determined that there could be a
conflict of interest between certain members of management and
the Companys stockholders. Additionally, the board
discussed the potential conflict arising from
Mr. Deshpandes affiliation with a company that had
previously expressed interest in an acquisition of the Company,
and that might express renewed interest in the future. In view
of these possible conflicts, the board determined that it should
establish a special committee comprised of independent,
non-employee directors to review, evaluate, consider and
negotiate potential strategic alternatives involving the
Company, including the alternative of remaining independent and
pursuing the Companys existing strategy. Mr. Ferri
then discussed the significant position in the Company held by
Matrix Partners, an investment firm with which he was affiliated
(Matrix). Mr. Ferri disclosed to the board that
the initial term of a Matrix partnership that held some of
Matrixs equity interest in the Company was scheduled to
expire near the end of 2009 but that the expiration date could
be extended. Mr. Ferri advised the board that Matrix had
made no decision about whether to extend the term of the
partnership, that the initial expiration date of the partnership
did not require Matrix to distribute or sell its shares at any
particular time and that, accordingly, the expiration date of
the partnership should not be considered by the board or a
special committee in deciding to pursue or reject any strategic
alternatives. The board determined that Mr. Ferri should
continue to participate in discussions concerning strategic
alternatives for the Company. They noted, among other things,
that Matrixs significant share position could operate as
an effective veto over any prospective transaction, and that, in
the event the board determined that a sale of the Company was in
the best interest of stockholders, the interests of Matrix in
obtaining the highest value available was aligned with the
interests of other stockholders. After discussion, the board
established a special committee, comprised of the independent,
disinterested directors of the board, Messrs. Thornley (as
Chair), Ferri, Ahmed and Badavas. The board delegated to the
special committee the full power and authority to review and
evaluate all strategic alternatives, including to determine
whether pursuing a possible sale of the Company would be
advisable and fair to, and in the best interests of, the Company
and its stockholders, and, as it deemed appropriate, to reject
or to recommend to the board any strategic alternative
considered by it. The board also resolved that it would not
approve a strategic transaction that did not have the approval
of the special committee.
In the afternoon following the board meeting on July 9,
2009, the special committee met to discuss the process by which
it would begin to examine potential strategic alternatives. The
special committee determined to engage Ropes & Gray
LLP (Ropes & Gray) as its legal advisor
and Ropes & Gray joined such meeting. The special
committee chose Ropes & Gray because of its experience
in this area and because Ropes & Gray was independent
from the Company and its management, having never represented
the Company or its
15
management. Representatives of Ropes & Gray advised
the special committee regarding its fiduciary duties in engaging
in a review of strategic alternatives, including a possible sale
of the Company, and discussed with the special committee the
engagement of a financial advisor to assist it in the discharge
of its responsibilities. The special committee resolved to
contact certain investment banking firms to assist the special
committee in fulfilling its fiduciary obligations. The special
committee also directed Ropes & Gray to confirm with
the Companys management (specifically Messrs. Battat,
Verma and Glidden and Dr. Eyuboglu) that, because of the
possibility of personal interests of management, management
should not contact potential parties regarding strategic
alternatives and should not discuss with any interested buyer
any participation (equity, employment arrangements or otherwise)
unless and only to the extent authorized by the special
committee. The special committee and Ropes & Gray
discussed the preliminary indication of interest presented by
SAC PCG to acquire the Company, including SAC PCGs request
for exclusivity in negotiating a potential transaction with the
Company. The special committee believed that exclusivity should
not be granted to SAC PCG until the special committee
further explored the strategic alternatives available to the
Company and the special committee instructed Ropes &
Gray to contact Simpson Thacher & Bartlett LLP
(Simpson Thacher), legal counsel to SAC PCG, and
inform Simpson Thacher that the special committee was not
willing to accept SAC PCGs request for exclusivity.
Simpson Thacher responded to Ropes & Gray that the
special committee should consider instead negotiating
exclusively with SAC PCG but including in the merger agreement a
provision that would permit the board to actively solicit other
offers after signing.
From July 9, 2009 through July 27, 2009, the special
committee identified potential financial advisors and
interviewed multiple candidates, including representatives of
Goldman Sachs. On July 14, 2009, Goldman Sachs made a
presentation on potential strategic alternatives available to
the Company. On July 27, 2009, Goldman Sachs was engaged as
financial advisor to the special committee. Goldman Sachs was
chosen because of its industry experience and expertise and the
special committees determination of its independence from
the Company and the Companys management. In light of the
importance to the special committee of Goldman Sachs
assistance to the special committee in its determination of
what, if any, strategic alternatives could benefit the
Companys stockholders at such time, Goldman Sachs
compensation was specifically negotiated by the special
committee to provide for payment of both a study fee upon the
presentation to the special committee of Goldman Sachs
initial study on the feasibility of strategic alternatives for
the Company, irrespective of whether the Company pursues a
strategic transaction, and a transaction fee that would be paid,
if at all, upon the consummation of a strategic transaction
involving the Company.
On July 28, 2009, at a meeting of the special committee,
the special committee instructed representatives of Goldman
Sachs to prepare a presentation for the special committee that
included a preliminary financial analysis of the Company and the
strategic alternatives available to the Company. The special
committee discussed with its advisors SAC PCGs preliminary
indication of interest and subsequent oral requests that the
special committee work exclusively with SAC PCG in connection
with a sale of the Company. Because the special committee
believed that granting such exclusivity would potentially impede
an evaluation of other strategic alternatives available to the
Company and that a pre-signing market check would be more
effective than a post-signing go-shop, the special committee
instructed representatives of Goldman Sachs to inform SAC PCG
that the special committee was unwilling to grant SAC PCG
exclusivity to pursue a transaction with the Company, but had
not yet decided what process to undertake in connection with its
evaluation of strategic alternatives.
On August 11, 2009, at a meeting of the special committee,
the special committee discussed SAC PCGs request to
approach additional possible sources of financing. These sources
of financing were non-institutional bank lenders, and the
special committee determined to allow SAC PCG to approach two
additional possible sources of financing, given the challenges
that SAC PCG reported having with its other potential sources of
financing, so that the Company could evaluate SAC PCGs
ability to finance an acquisition of the Company and because it
believed that providing SAC PCG access to these financing
sources would not restrict the ability of other potential
purchasers of the Company to seek financing for an acquisition
of the Company. Representatives of Goldman Sachs then made a
presentation to the special committee regarding Goldman
Sachs preliminary financial analyses of the Company and
potential strategic alternatives involving the Company. The
special committee discussed Base Case and
Downside Case projections prepared by
16
management. The special committee discussed concerns about how
expected changes to the EV-DO market, including the shift to
next generation LTE technology and the financial position of
some of the Companys customers for EV-DO technology, could
negatively affect the Companys results in future periods
and create risk and uncertainty about attaining
managements projections. The special committee also
discussed the challenges in the Companys femtocell
business, including that the femtocell market was new, the size
of the femtocell market was uncertain and the Company had no
meaningful experience in developing and selling products for use
by consumers. The special committee also discussed the strategic
alternatives reviewed by representatives of Goldman Sachs,
including the potential for a dividend recapitalization or sale
of a portion of the business.
On August 13, 2009, at a meeting of the special committee,
the special committee concluded that alternatives, such as a
dividend recapitalization or sale of the Companys
femtocell or EV-DO businesses, were not likely to be achieved or
to generate total value to shareholders in excess of what might
be realized upon a sale of the Company, and that the special
committee should accordingly proceed to evaluate SAC PCGs
proposal and the availability of other acquisition alternatives.
The special committee determined that while it was in the
interests of the Companys stockholders to preserve and
continue to evaluate SAC PCGs proposal, exclusivity should
not be granted to SAC PCG at that time. The special committee
then discussed the possibility that the publicity associated
with a public auction of the Company could be damaging to the
Company and concluded that the Company should instead attempt to
solicit the interest of a focused group of potential acquirers
most likely to be interested. The special committee requested
the assistance of Goldman Sachs in indentifying such potentially
interested parties. The special committee instructed the
Companys management to set up a dataroom with
legal and business due diligence materials involving the Company
so that potential purchasers could conduct due diligence.
Representatives of Goldman Sachs communicated the proposed
approach to representatives of SAC PCG later that day.
On August 14, 2009, at a meeting of the special committee,
the special committee discussed that SAC PCG had earlier
that day communicated its intent to withdraw from any process in
which it was not granted exclusive rights to negotiate a
potential transaction with the Company. Notwithstanding its
interest in having SAC PCG continue to pursue a possible
strategic transaction with the Company, the special committee
determined that, in order to assess whether SAC PCGs
preliminary indication of interest was the best value reasonably
attainable for stockholders in connection with a sale of the
Company, it would need to solicit the interest of other likely
strategic and financial buyers of the Company. At the request of
the special committee, over the next few days, representatives
of Goldman Sachs discussed with representatives of SAC PCG the
continued participation of SAC PCG in the process and SAC PCG
indicated to representatives of Goldman Sachs that it would
consider participating in a non-exclusive process of evaluating
a potential transaction with the Company so long as the Company
agreed to reimburse SAC PCGs costs of conducting continued
diligence.
On August 17, 2009, at a meeting of the special committee,
the special committee discussed SAC PCGs request for
expense reimbursement. The special committee determined that
providing some form of expense reimbursement to SAC PCG was
desirable to prevent SAC PCG from withdrawing its preliminary
indication of interest, but that such reimbursement should be
subject to limitations, including a cap, and should be payable
only if another entity acquired the Company within a limited
period of time. Representatives of Goldman Sachs then proposed a
list of additional strategic and financial buyers that
representatives of Goldman Sachs believed would potentially be
interested in a transaction with the Company, and the special
committee authorized representatives of Goldman Sachs to contact
nine strategic buyers and seven financial buyers.
Between August 17, 2009 and August 25, 2009, the
Company negotiated an expense reimbursement agreement with SAC
PCG on the terms further discussed and approved by the special
committee at meetings held on August 21 and August 24, 2009
and, on August 25, 2009, the Company and SAC PCG entered
into such agreement. See
Certain
Relationships Between Parent and Airvana
for a summary
of such agreement.
17
Following the August 17, 2009 meeting, representatives of
Goldman Sachs began to contact the potential purchasers that it
was authorized to contact by the special committee at such
meeting.
On September 4, 2009, at a meeting of the special
committee, representatives of Goldman Sachs updated the special
committee as to the status of discussions with potential
purchasers, a proposed timeline for a potential transaction and
managements projections updated based upon the
Companys results of operations to date.
On September 10, 2009, Messrs. Battat, Verma and
Glidden and Dr. Eyuboglu presented information regarding
the business of the Company to representatives of GSO and SAC
PCG to facilitate a possible debt financing by GSO of a
potential acquisition by SAC PCG.
On September 16, 2009, Messrs. Battat, Verma and
Glidden and Dr. Eyuboglu presented information regarding
the business of the Company to representatives of an alternative
financing source and SAC PCG to facilitate a possible debt
financing by such entity of a potential acquisition by SAC PCG.
On September 16, 2009, at a meeting of the special
committee, the special committee discussed with representatives
of Goldman Sachs the status of discussions with potential
purchasers. The special committees legal advisors gave a
presentation on the terms and provisions of a draft merger
agreement prepared by WilmerHale and Ropes & Gray that
was distributed to the special committee, including the
importance of limited closing conditions and either obtaining
specific performance or a meaningful reverse
break-up
fee
as a remedy for a potential purchaser failing to abide by its
obligations under the merger agreement. The special committee
determined that, in evaluating a potential sale of the Company,
it would evaluate potential purchasers based principally on the
proposed purchase price, but would also consider key terms such
as the closing conditions and strength of financing commitments,
as well as appropriate measures to enable the Company to pursue
a superior proposal. The special committee authorized its legal
advisors to distribute the draft merger agreement to Simpson
Thacher for comment.
On September 22, 2009, at a meeting of the special
committee, the special committee discussed with representatives
of Goldman Sachs the status of discussions with potential
purchasers. Representatives of Goldman Sachs informed the
special committee that three additional financial purchasers and
two strategic purchasers, including Bidder B, had expressed
preliminary interest in evaluating a potential transaction
involving the Company and executed non-disclosure agreements
with the Company. All such interested purchasers were invited to
review legal and business due diligence materials posted to the
Companys online dataroom. As the process progressed, only
one of the three potential financial purchasers
(Bidder A) continued to show interest in the
Company at a competitive valuation and requested permission to
speak with potential debt financing sources and only one of the
two potential strategic purchasers, Bidder B, continued to
move forward with its diligence investigation of the Company.
On October 2, 2009, at a meeting of the special committee,
the special committee discussed with representatives of Goldman
Sachs the status of discussions with potential purchasers.
Representatives of Goldman Sachs informed the special committee
that Bidder B had sought feedback from the special
committee on whether it would be competitive in pursuing a
potential transaction with the Company at a price per share in
the low $6 range. After discussion, the special committee
instructed representatives of Goldman Sachs to inform
Bidder B that such valuation was not competitive with other
valuations that the Company had received and that Bidder B
would need to increase its valuation in order for the special
committee to consider pursuing a potential transaction with
Bidder B. Representatives of Goldman Sachs informed
Bidder B of the special committees feedback and
Bidder B indicated that it was not interested in pursuing a
strategic transaction at a higher valuation than it had
previously indicated.
On October 2, 2009, SAC PCG provided to the special
committees advisors a draft of the debt financing
commitment that GSO eventually provided to SAC PCG on
December 17, 2009 (the debt commitment letter).
On October 5, 2009, at a meeting of the special committee,
the special committee discussed with representatives of Goldman
Sachs discussions that representatives of Goldman Sachs had had
with SAC PCG and Bidder A. WilmerHale and Ropes &
Gray also discussed with the special committee the draft debt
18
commitment letter, focusing on aspects of the draft debt
commitment letter that they believed the financing source could
use as a basis for refusing to fund the transaction.
On October 6, 2009, the special committees legal
advisors discussed with Simpson Thacher SAC PCGs comments
on the draft merger agreement. SAC PCG made material
concessions, including the elimination of SAC PCGs receipt
of financing as a closing condition, but the parties disagreed
on other significant business issues in the merger agreement,
including allocation of the risks associated with Nortels
bankruptcy (including, the collection of the account receivable
owed to the Company by Nortel and the assumption of the
Companys contract with Nortel by Telefon AB L.M. Ericsson
(Ericsson)), closing conditions relating to a
minimum cash level, exercise of appraisal rights, the scope of
the reverse
break-up
fee
and whether specific performance would be available as a remedy
to the Company. Counsel also discussed the draft debt commitment
letter.
On October 9, 2009, Bidder A orally indicated to
representatives of Goldman Sachs that, based on its preliminary
assessment of valuation and subject to further legal and
business diligence and the availability of financing on terms
satisfactory to Bidder A, it might be interested in
pursuing a transaction with the Company at an initial valuation
of $8.50 to $9.00 per share and requested that it be granted
additional time and exclusivity to conduct further due diligence
to determine whether it could in fact make an offer to acquire
the Company at that valuation. Representatives of Goldman Sachs
informed members of the special committee of
Bidder As communication.
On October 11, 2009, at a meeting of the special committee,
representatives of Goldman Sachs updated the special committee
on discussions with Bidder A. The special committee
concluded that it was not in the best interests of the
stockholders of the Company to grant exclusivity to
Bidder A, because Bidder A had not demonstrated that
its indication of interest was credible or financeable and
because granting exclusivity at that time could inhibit the
Companys evaluation of other strategic alternatives,
including continued exploration of SAC PCGs indication of
interest. The special committee authorized Ropes &
Gray and WilmerHale to deliver a draft merger agreement and
related documents to Bidder A and instructed its advisors
to cooperate fully with Bidder A to allow it to quickly
pursue its indication of interest.
On October 11, 2009, the special committees advisors
communicated to Bidder A that the special committee had not
accepted Bidder As request for exclusivity and also
that Bidder A must progress discussions with potential
financing sources in order for the special committee to better
assess Bidder As preliminary indication of interest.
Bidder A stated to representatives of Goldman Sachs that it
intended to be in a position to make a more credible indication
of interest that included a debt financing commitment by early
November.
On October 23, 2009, after representatives of Goldman
Sachs, at the direction of the special committee, informed SAC
PCG that the special committee was actively involved in
discussing possible transactions with other parties, SAC PCG
expressed a willingness to assume certain risks relating to
Nortels bankruptcy (including the collection of the
account receivable owed to the Company by Nortel and the
assumption of the Companys contract with Nortel by
Ericsson) and drop other conditions in order to promptly move
forward with a transaction involving the Company.
On October 25, 2009, at a meeting of the special committee,
representatives of Goldman Sachs reported to the special
committee that SAC PCG stated that it wanted to move forward
with finalizing a proposed transaction rapidly and had concluded
substantially all of its legal and business due diligence, but
would need to conduct confirmatory calls with at least some of
the Companys significant customers. The special committee
discussed this request, the status of discussions with
Bidder A and the status of the Nortel bankruptcy (in which
Ericsson was expected to assume the Companys contract with
Nortel and settle an approximately $35 million account
payable with the Company) and determined that it did not want to
authorize customer diligence calls at such time in light of
timing sensitivities around the Nortel/Ericsson transaction and
that it also preferred to allow Bidder A to complete its
diligence and work with potential financing sources.
19
On October 30, 2009, SAC PCG sent a letter to the special
committee threatening to terminate its pursuit of a potential
acquisition of the Company should the special committee not
provide SAC PCG with a rapid timeline for entering into
definitive documentation with SAC PCG.
On November 2, 2009, at a meeting of the special committee,
the special committee discussed the letter that it received from
SAC PCG on October 30, 2009, the importance of the closing
of the Ericsson/Nortel transaction with respect to any
transaction involving the Company, and the need to approve a
timeline that allowed the Company to assess potential
transactions with both SAC PCG and Bidder A. After
discussion, the special committee determined that proceeding in
evaluating a potential transaction involving the Company on a
rapid timeline was not in the best interests of the Company and
that the special committee would need several more weeks to
enable Bidder A to have an opportunity to solidify its
indication of interest and to enable the Ericsson/Nortel
transaction to close.
On November 4, 2009, the special committee sent a letter to
SAC PCG setting forth a process for progressing a transaction
during the next several weeks.
On November 5, 2009, SAC PCG provided a detailed
mark-up
of
the draft merger agreement to the special committees legal
advisors.
On November 10, 2009, the special committee authorized
Bidder As preferred source of debt financing to talk
to potential candidates in respect of syndicating the debt
financing for Bidder As proposed acquisition of the
Company. Additionally, the special committees legal
advisors received a revised draft debt commitment letter, draft
equity commitment and draft limited guarantee from SAC
PCGs legal counsel.
On November 10, 2009, at a meeting of the special
committee, WilmerHale and Ropes & Gray made a
presentation to the special committee outlining the material
business issues presented in SAC PCGs recent
mark-up
of
the draft merger agreement and other ancillary agreements. The
special committee discussed such
mark-ups,
focusing specifically on those changes that added conditionality
to closing. In response to the Companys proposal for a
specific performance provision, SAC PCG proposed a customary
reverse
break-up
fee
that would be equal to the Companys termination fee,
guaranteed by a creditworthy entity and the Companys sole
remedy for Parents breach of the merger agreement. The
special committee requested that its advisors obtain additional
information about the entity being proposed to provide the
limited guarantee.
The special committee then discussed recent discussions between
representatives of Goldman Sachs and each of SAC PCG and
Bidder A. The special committee discussed that
Bidder A was not yet in a position to submit a fully
developed acquisition proposal. Representatives of Goldman Sachs
reported that Bidder A indicated that it would be able to
present a more developed proposal later in the week and that
such proposal would include a preliminary debt financing
commitment.
On November 11, 2009, the special committees legal
advisors distributed a revised draft of the merger agreement to
Simpson Thacher. On Friday, November 13, 2009, Simpson
Thacher distributed a redraft back to the special
committees legal advisors and requested that the agreement
continue to be negotiated over the weekend. The draft merger
agreement was substantially complete, but open business issues
included SAC PCGs insistence that the Companys
remedies for Parents breach of the merger agreement not
include specific performance and be limited to a more customary
reverse
break-up
fee
equivalent to the Companys termination fee and the
additional closing condition that statutory appraisal rights be
exercised by holders of less than 10% of the Companys
shares.
As of November 13, 2009, Bidder A had still not yet
delivered financing commitments to the special committee. Also
on November 13, 2009, Ericsson assumed Nortels
contract with Airvana and the Company was informed that it would
be paid the approximately $35 million receivable it was
owed within the next week.
On November 15, 2009, the special committee granted
Bidder As request to seek additional potential
financing sources.
On November 16, 2009, at a meeting of the special
committee, representatives of Goldman Sachs reported that
Bidder A had still not yet obtained financing commitments
and was now seeking to provide such
20
commitments by November 18, 2009. The special committee
also discussed the fact that Bidder As $8.50-$9 price
per share valuation had been produced on the basis of limited
diligence. The special committee also discussed the principal
open issues in the draft merger agreement that it had most
recently received from SAC PCG.
On November 18, 2009, Bidder A communicated orally to
representatives of Goldman Sachs a proposal to acquire the
Company at a $7.50 price per share in cash and provided a draft
of the debt financing commitment from its financing source. It
also provided a short list of general issues with the draft
merger agreement, rather than providing the full
mark-up
of
the merger agreement as requested by the special committee.
Bidder A communicated that it would not proceed further
with evaluating a potential transaction with the Company unless
it received the ability to negotiate a sale of the Company with
the special committee on an exclusive basis.
On November 19, 2009, at a meeting of the special
committee, representatives of Goldman Sachs provided an update
on discussions with Bidder A regarding a potential
transaction involving the Company. Representatives of Goldman
Sachs discussed the draft debt commitment received from
Bidder As financing source and the merger agreement
issues list that Bidder A had provided. The special
committee discussed that Bidder As most recent
indication of interest was significantly lower than the range
initially indicated by Bidder A. Representatives of Goldman
Sachs informed the special committee that Bidder As
stated reason for such decrease was its third-party
consultants forecast of a shorter revenue tail on the
Companys EV-DO business. The special committee also
discussed that Bidder As indication of interest was
not responsive to the special committees request for
detailed
mark-ups
of
transaction documents so that the special committee could
identify outstanding business issues. Furthermore, the special
committee discussed that Bidder As draft debt
commitment letter had significant aspects of conditionality,
including diligence conditions (some of which were not
conditions or were more limited in scope in SAC PCGs draft
debt commitment letter). The special committee instructed its
legal advisors to work with Bidder A to reduce the
conditionality contained in Bidder As draft debt
commitment letter and to express the need for
Bidder As proposal to be more complete for the
special committee to be in a position to more thoroughly
consider a potential transaction with Bidder A. Given the
incompleteness of Bidder As proposal and the adverse
effect that granting exclusivity at that time could have on the
sale process, the special committee instructed representatives
of Goldman Sachs to communicate to Bidder A that the
special committee would not grant Bidder As request
for exclusivity. The special committee and its advisors
discussed the special committees desire to continue
negotiations with both Bidder A and SAC PCG in order to
ensure that, should the Company decide to engage in a
transaction with either potential purchaser, the Company would
be able to negotiate the highest price and best available terms
(including those relating to transaction certainty) and the
special committee instructed it advisors to negotiate with both
parties in such a manner.
On November 19, 2009, in an effort to expedite
Bidder As completion of the necessary transaction
documentation, the special committees legal advisors
distributed to Bidder A a revised draft merger agreement
and related agreements,
mark-up
of
the debt commitment from Bidder As financing source,
draft equity commitment and draft limited guarantee.
On November 22, 2009, the special committees legal
advisors provided a revised merger agreement and related
documents, revised limited guarantee and revised equity
commitment to SAC PCGs legal counsel.
On November 24, 2009, Bidder A provided a
mark-up
of
the merger agreement to the Companys legal advisors.
On November 24, 2009, at a meeting of the special
committee, representatives of Goldman Sachs provided an update
on discussions with Bidder A and with SAC PCG. The special
committee discussed the progress that both potential purchasers
were making towards terms of a transaction with the Company, but
that Bidder As proposal remained less complete than
the SAC PCG proposal and still subject to diligence. The special
committee and its advisors discussed a strategy for continuing
negotiations with both potential purchasers. In order to keep
the bidders operating on a consistent timeframe, and to provide
each with equivalent diligence access, the special committee
determined that it would allow diligence calls with customers,
although the calls would be moderated by representatives of
Goldman Sachs so that both parties
21
could participate. Additionally, the special committee
instructed its advisors to continue to negotiate for improved
deal terms (including price) from both potential purchasers. The
special committee also recognized that management equity
rollover would be a significant component of each bidders
acquisition proposal. While each bidder had previously requested
the ability to negotiate equity rollover and compensation terms
with management, the special committee had not authorized such
negotiations in light of the open business issues with each
party and a desire to maintain a level playing field among the
bidders. However, in an effort to continue to move the process
forward, the special committee determined to ask each bidder to
answer basic diligence questions regarding post-closing
operations of the Company, the answers to which, following
review by the special committees advisors, would be shared
with Company management. Additionally, at the request of the
special committee, its advisors discussed market terms with
respect to the size of reverse
break-up
fees and
break-up
fees. Finally, the special committee discussed recent
communications that Bidder B had with certain members of
the special committee and representatives of Goldman Sachs
regarding a potential transaction involving the Company and
that, when informed of the valuation range that Bidder B
would need to be in for the special committee to evaluate a
potential transaction with Bidder B, Bidder B
indicated that it would not be willing to pursue a transaction
involving the Company at a valuation in the range of that
currently being contemplated with SAC PCG and Bidder A.
On November 25, 2009, Bidder A provided the special
committees legal advisors with a revised draft of the debt
commitment from Bidder As preferred financing source.
The terms of such debt commitment were not materially improved
from the last draft presented to the special committee and
continued to include terms that created significant
conditionality. The special committee discussed
Bidder As recent demand for exclusivity in order to
continue to pursue its consideration of a transaction. As the
special committee determined that Bidder As
withdrawal from the process could limit competition to acquire
the Company and negatively affect the transaction terms that the
special committee could obtain, the special committee decided
that, in lieu of accepting Bidder As request for
exclusivity, it would offer to provide up to $500,000 of expense
reimbursement to Bidder A on the conditions that
Bidder A at all times maintain an offer to acquire the
Company at a price greater or equal to $7.50 per share and that
the Company be acquired by a third party other than
Bidder A.
On November 28, 2009, the special committees legal
advisors negotiated with Bidder A and Bidder As
financing source to reduce the conditionality of the debt
commitment received from Bidder A. On November 30,
2009, the special committees legal advisors received a
revised debt commitment from Bidder As financing
source that continued to reflect significant aspects of
conditionality.
On December 1, 2009, SAC PCG and Bidder A both
participated in a customer diligence call with Ericsson (the
successor to Nortel under the Companys contract with
Nortel), moderated by representatives of Goldman Sachs, where
both potential purchasers were invited to submit questions to be
asked of Ericsson in advance of the call.
On December 1, 2009, at a meeting of the special committee,
representatives of Goldman Sachs provided an update on
discussions with SAC PCG and Bidder A. The special
committee instructed WilmerHale and Ropes & Gray to
prepare revised drafts of the merger agreement and related
documents and circulate them to SAC PCG and Bidder A. The
special committee then instructed its advisors to communicate
that each of SAC PCG and Bidder A should provide the
special committee with such partys final proposal,
including complete versions of the merger agreement and related
documents that such potential purchaser would be prepared to
execute by Friday, December 4, 2009, and after evaluating
such offers and discussing it with its advisors, the special
committee would endeavor to decide whether it would continue to
pursue a transaction at that time and, if so, which partys
proposal would be in the best interests of the stockholders of
the Company.
On December 3, 2009, representatives of Goldman Sachs
communicated the special committees request for final
proposals to both SAC PCG and Bidder A.
On December 4, 2009, the special committee received
responses from SAC PCG and Bidder A containing their final
proposals. The SAC PCG proposal contained a full and complete
proposal that included a
mark-up
of
the merger agreement and related documents in a form that SAC
PCG was prepared to execute. At a meeting that day, the special
committee discussed SAC PCGs final proposal package, which
included an
22
increase in its proposed purchase price to $7.50 per share,
subject to SAC PCG performing confirmatory diligence calls with
two or three of the Companys principal customers. In order
to propose such a price increase, SAC PCG proposed to require
that management rollover its equity into equity of the acquiring
entity on substantially different terms than previously
anticipated. Because SAC PCGs proposal was contingent on a
minimum level of management rollover, the special committee
determined that it would be appropriate to permit certain
members of management, together with their own legal counsel, to
view SAC PCGs proposed rollover terms, so that the special
committee could assess the feasibility of SAC PCGs
proposal. The special committee instructed representatives of
Goldman Sachs to discuss SAC PCGs revised proposal with
SAC PCG and Messrs. Battat and Verma and
Dr. Eyuboglu. The Bidder A proposal also contained a
$7.50 per share offer, but did not include full transaction
documentation sufficient to allow the special committee to
assess other key issues, such as conditionality to closing.
Representatives of Goldman Sachs informed the special committee
that Bidder A had stated that it would not provide such
documentation until it received exclusivity to complete its
diligence and negotiate a sale transaction with the Company. The
special committee instructed representatives of Goldman Sachs to
inform Bidder A that the special committee could not assess
Bidder As proposal without receiving complete copies
of all agreements relating to its proposal, that such documents
should be received by the special committee by December 7,
2009, and that the special committee would not grant its request
for exclusivity.
On December 6, 2009, at a meeting of the special committee,
representatives of Goldman Sachs reported that SAC PCG (through
Goldman Sachs as an intermediary) and Messrs. Battat and
Verma and Dr. Eyuboglu were making progress working on the
terms of the management rollover equity proposal.
Representatives of Goldman Sachs informed the special committee
that while members of management had expressed a preference for
receiving the cash merger consideration for at least half of
their shares of common stock of the Company, SAC PCGs
proposal was sufficiently viable in managements view that,
if authorized by the special committee to negotiate equity
rollover terms, management believed it could reach satisfactory
arrangements on equity rollover terms to facilitate a
transaction. Accordingly, the special committee determined that
permitting direct negotiations between management and SAC PCG
with respect to SAC PCGs rollover proposal would be in the
best interests of the Company since a transaction with SAC PCG
would not be feasible unless certain members of management could
come to an agreement with SAC PCG on equity rollover terms.
Representatives of Goldman Sachs also reported to the special
committee that Bidder A had still not provided a complete
final package so that the special committee could fully assess
Bidder As offer. The special committee instructed
Ropes & Gray to prepare and send a letter to
Bidder A reiterating the special committees request
for a complete final package that included
mark-ups
of
the draft merger agreement and related documents in a form that
Bidder A was willing to execute.
On December 7, 2009, Messrs. Gilmore and Baker and
representatives of Simpson Thacher met with Messrs. Battat
and Verma and Dr. Eyuboglu and their legal advisors to
discuss the terms of the rollover equity arrangements with
management proposed by SAC PCG.
On December 9, 2009, at a meeting of the special committee,
the special committees advisors informed the special
committee that, given SAC PCGs near completion of
diligence and substantial agreement on proposed transaction
documentation, they believed that the execution of definitive
documentation in respect of a transaction with SAC PCG could be
completed within a relatively short period of time should the
special committee decide to do so. The special committee
discussed Bidder As proposal and the continued
absence of full documentation. Representatives of Goldman Sachs
also informed the special committee that Bidder A was
continuing to request exclusivity before it would proceed
further. The special committee determined such request was still
not in the best interest of the Company.
At the meeting of the special committee, representatives of
Goldman Sachs presented to the special committee its preliminary
financial analyses of a potential transaction and the
Companys strategic alternatives. The special committee
discussed the presentation, as well as the Downside
Case, the Base Case, and the Upside
Case projections prepared by Companys management and
provided to Goldman Sachs in connection with the financial
analyses performed by Goldman Sachs. These projections had been
prepared by the Companys management in November 2009 to
update its previously presented forecasts to reflect actual
results for the first three quarters of 2009. See
Important Information About Airvana
Projected Financial
23
Information
beginning on page 98. The special
committee discussed that the Downside Case did not take into
account the risk that the Companys future femtocell sales
would be less favorable than projected in the Base Case, and
expressed concerns about the likelihood of growth in the
femtocell business over the long-term. It was the consensus of
the special committee that the risks and uncertainties in the
business (both in the continuing EV-DO sales and in the
prospects for femtocell sales) made it unlikely that the Company
would achieve the Upside Case. The special committee also
discussed the strategic alternatives reviewed by representatives
of Goldman Sachs, including the potential for a dividend
recapitalization or a stock repurchase, and the special
committees view of the limited feasibility of these
alternatives. After considering each of the alternatives, and
considering the risks and uncertainties facing the
Companys business, the special committee determined that a
sale of the Company was in the best interests of the
stockholders of the Company at this time.
Subsequent to the December 9, 2009 meeting, the special
committees legal advisors sent a revised merger agreement
and related documents, equity commitment and limited guarantee
to SAC PCG for its review. Additionally, Bidder A sent the
special committees legal advisors full
mark-ups
of
the merger agreement and related documents.
On December 11, 2009, representatives of SAC PCG and its
legal advisors met with Messrs. Battat and Verma and
Dr. Eyuboglu and their legal advisors to negotiate
management terms acceptable to SAC PCG and management.
Mr. Battat subsequently reported that significant progress
had been made to address management concerns.
Later on December 11, 2009, Bidder A provided a
revised indication of interest at a $7.65 per share price,
conditioned upon receiving exclusivity through December 23,
2009 and satisfactory completion of confirmatory due diligence,
management rollover equity negotiations and customer due
diligence (including in-person meetings with three principal
customers).
On December 11, 2009, at a meeting of the special
committee, the special committee discussed Bidder As
latest proposal. The special committee discussed the risk of
giving Bidder A exclusivity, including that SAC PCG
would likely terminate its consideration of a transaction with
the Company and that Bidder A could reduce its proposed
price at the end of the exclusivity period. The special
committee determined to reject Bidder As request for
exclusivity. The special committee then discussed the proposal
received from SAC PCG that included a proposed price of $7.50
per share. The special committee discussed with its advisors the
potential risks in choosing the Bidder A proposal due to
the lower degree of certainty of the execution of definitive
documentation and the potential effect that granting exclusivity
may have on any transaction involving the Company. The special
committee instructed its advisors to continue to negotiate with
both potential purchasers for superior deal terms, including
price.
On December 12, 2009, Bidder A reported to the special
committees legal advisors the extent of due diligence it
still expected to complete. Additionally, at the direction of
the special committee, representatives of Goldman Sachs informed
SAC PCG that the special committee would not pursue a potential
transaction with SAC PCG at a $7.50 per share price at this
time, but would consider pursuing a potential transaction with
SAC PCG at a higher price. SAC PCG indicated it might be willing
to increase its proposal to $7.65 per share.
On December 12, 2009, at a meeting of the special
committee, the special committee discussed with its legal and
financial advisors the status of discussions with both potential
purchasers. The special committees legal advisors reported
that they had had discussions with Bidder A regarding the
legal issues in the draft merger agreement and
Bidder As request for exclusivity through
December 23, 2009 as a condition to moving forward with the
proposal. The legal advisors also reported that Bidder A
requested in-person meetings with certain of the Companys
customers and that Bidder A had significant other remaining
diligence items, including a review of the Companys
business by outside consultants. The special committee discussed
the potential business risk presented by Bidder As
request to engage in in-person meetings with the Companys
customers, as well as its concerns about Bidder As
remaining other diligence work. Representatives of Goldman Sachs
then updated the special committee on discussions with SAC PCG,
and informed the special committee that SAC PCG was working to
increase the price in its proposal to $7.65 per share.
Representatives
24
of Goldman Sachs also informed the special committee that SAC
PCG indicated that it was willing to move forward to signing
definitive documentation on an expedited basis, eliminating the
need for most remaining confirmatory diligence (other than
customer calls).
On December 13, 2009, Bidder A provided an oral
indication of interest at a $7.75 per share price, conditioned
upon it receiving exclusive rights to negotiate a potential sale
of the Company through December 23, 2009, completing its
due diligence, engaging in satisfactory meetings with customers
of the Company and negotiating satisfactory terms of rollover
equity arrangements with certain members of the Companys
management.
On December 13, 2009, at a meeting of the special
committee, the special committee discussed Bidder As
December 13, 2009 proposal. The special committee then
discussed the communications SAC PCG had with representatives of
Goldman Sachs regarding its proposed price increase to $7.65 per
share and authorized representatives of Goldman Sachs to
communicate to SAC PCG the need to increase its price proposal
further. The special committee discussed the risks that could
arise if it granted Bidder As request for exclusivity
at that time, including the likelihood that SAC PCG would
withdraw its offer if the Company ceased negotiations with SAC
PCG at a time that SAC PCG was ready to execute a transaction
and the risk that Bidder As proposed price could
decrease as a result of its remaining diligence. The special
committee determined to deny Bidder As request for
exclusivity and inform Bidder A that it would continue to
negotiate with Bidder A, and requested that Bidder A
provide clear information about what items of diligence remained
outstanding and a timeline. The special committee also
determined to make management available to Bidder A on
December 14, 2009 to negotiate equity rollover and
compensation arrangements on a non-exclusive basis.
On December 14, 2009, the special committees advisors
updated the special committee on discussions with both potential
purchasers. The special committees legal advisors reported
to the special committee that documentation with SAC PCG was in
substantially final form and that SAC PCG confirmed that it
would be ready to execute definitive documentation, subject only
to confirmatory diligence calls with two of the Companys
principal customers, but that it was not prepared to increase
the purchase price above $7.65 per share. On the same day,
Bidder A reported to representatives of Goldman Sachs that
it was reducing its proposal to $7.50 per share. Representatives
of Goldman Sachs reported that Bidder A was in the process
of negotiating the proposed terms relating to the rollover of
equity by certain members of the Companys management.
Representatives of Goldman Sachs also reported that
Bidder A was continuing to request in-person customer
meetings with each of the three principal customers of the
Company.
On December 15, 2009, the special committees advisors
updated the special committee on discussions with both potential
purchasers. Representatives of Goldman Sachs reported to the
special committee that Bidder A confirmed to
representatives of Goldman Sachs that it was reducing its
proposed price to $7.50 and would lower its price to $7.40 if it
were required to forego its customer diligence requests.
Representatives of Goldman Sachs then reported to the special
committee that SAC PCG expressed that it was prepared to raise
its offer to $7.65 and would be prepared to execute definitive
documentation upon satisfactory completion of its remaining
customer diligence calls. The special committee then discussed
with its advisors the remedies provisions in SAC PCGs
proposed form of the merger agreement, which limited the
Companys remedies to a reverse
break-up
fee
in the event of a failure by SAC PCG to close the transaction if
all conditions to closing had been satisfied. The special
committee discussed that the reverse
break-up
fee, which SAC PCG had agreed to increase to $25 million,
would be guaranteed by an SAC PCG affiliate (S.A.C. Capital
Management, LLC) and the special committee discussed with
its advisors the financial strength of the entity that would be
providing the limited guarantee.
Later on December 15, 2009, representatives of Goldman
Sachs reported to the special committee that SAC PCG was
finalizing the terms of the rollover equity arrangements with
the Companys management to reflect the increased purchase
price. Representatives of Goldman Sachs also reported that
Bidder A stated that it would increase its offer back to
$7.75 per share, without a request for exclusivity, and,
assuming satisfactory customer diligence calls, expected to be
in a position to execute definitive documentation by the end of
the week or over the weekend. Additionally, Bidder A
represented that it would make significant progress on
finalizing transaction documentation early in the day on
December 16, 2009.
25
On December 16, 2009, the special committee held two
meetings. At the first meeting, the special committee discussed
Bidder As oral indication that it would raise its
price to $7.75 per share and move quickly to finalize
documentation, conditioned upon its satisfactory completion of
customer calls and satisfactory completion of negotiations with
certain members of management regarding the terms of a rollover
equity proposal. The special committee discussed the issues that
remained outstanding with Bidder A, including the fact that
it had not provided revised transaction documentation, the fact
that Bidder A reported to advisors to the special committee
that Bidder A was not prepared to provide a revised third
party debt commitment and that Bidder A still needed to
complete customer due diligence. The special committee discussed
the risk that Bidder As price would decline after
completing its diligence. The special committee then discussed a
process for allowing Bidder A to satisfactorily complete
its customer calls as soon as possible, while recognizing the
risks to the Companys customer relationships that could
arise from multiple calls with multiple bidders.
Mr. Battat joined the special committee meeting at the
request of the special committee to discuss how to organize
additional customer calls for SAC PCG and Bidder A. The
special committee asked Mr. Battat to report on the status
of managements rollover equity negotiations with each of
Bidder A and SAC PCG. Mr. Battat confirmed that he,
Mr. Verma and Dr. Eyuboglu had reached a satisfactory
understanding with each bidder and stood ready to enter into the
rollover equity and compensation arrangements proposed by either
Bidder A or SAC PCG. Mr. Battat then left the meeting.
The special committee then discussed the proposal received from
SAC PCG that included a $7.65 price per share and that was
conditioned on obtaining exclusivity from the completion of its
customer diligence call until a definitive transaction agreement
was signed.
SAC PCG and Bidder A participated in a customer diligence
call on December 16, 2009. After the calls, SAC PCG
reported to representatives of Goldman Sachs that it needed only
to complete one additional customer diligence call in order to
sign the definitive agreements.
At a special committee meeting late on December 16, 2009,
the special committee discussed the proposal communicated by SAC
PCG earlier in the day and determined that it would not grant
SAC PCGs demand for exclusivity. The special
committees advisors also reported to the special committee
that, at the committees request, SAC PCG had agreed to a
number of other contractual concessions. The special committee
also discussed the risks and uncertainties surrounding
Bidder As proposal, including lack of certainty
regarding its timing given the lack of advancement in
documentation and the nature and scope of the remaining
diligence. The special committee discussed the fact that
Bidder A had communicated to representatives of Goldman
Sachs that it would need supplemental diligence calls with
certain customers that were not moderated by the Companys
management or representatives of Goldman Sachs. To better assess
the risks and uncertainties associated with Bidder As
proposal, the special committee determined that Mr. Ferri
should contact Bidder A to discuss a mutually satisfactory
process for finalizing Bidder As transaction
documentation and customer diligence on a timetable and in a
manner acceptable to the special committee.
On the morning of December 17, 2009, at the direction of
the special committee, Mr. Ferri and representatives of
Goldman Sachs called a principal of Bidder A to indicate
that, in light of the competitive nature of the process,
Bidder A needed to move forward promptly, and to discuss
both the remaining customer call and Bidder As
request for supplemental calls. The principal at Bidder A
responded that Bidder A would not withdraw its requests for
supplemental customer calls and concluded that it was
terminating its consideration of a purchase of the Company.
Later in the day on December 17, 2009, SAC PCG participated
in a diligence call with the final customer, which it reported
to representatives of Goldman Sachs was satisfactory.
On the evening of December 17, 2009, the special committee
and its legal and financial advisors met. The special committee
discussed the call between Mr. Ferri and the principal of
Bidder A, including Bidder As decision to
withdraw from the process of evaluating a transaction with the
Company at its most recently communicated valuation. It was also
reported that Bidder A had subsequently sent correspondence
to Goldman Sachs indicating that Bidder A would need some
combination of lower price, more diligence, additional time
26
or potential structural changes to move forward with a
transaction involving the Company. The special committee
concluded that Bidder As proposals involved too much
uncertainty to continue to pursue and delay consideration of the
transaction proposed by SAC PCG.
The special committee then discussed with its advisors the
proposal received from SAC PCG that included a $7.65 price per
share. The special committee discussed that SAC PCG had
completed its requested due diligence and reached complete
agreement on proposed transaction documentation. At the request
of the special committee, representatives of Goldman Sachs then
presented its financial analyses of the proposed transaction
with SAC PCG and a discussion of potential alternatives to a
sale of the Company. The special committee asked questions of
Goldman Sachs throughout the presentation. The special committee
discussed the presentation and the Downside Case,
the Base Case, and the Upside Case
projections prepared by Companys management and provided
to Goldman Sachs in connection with the financial analyses
performed by Goldman Sachs. See
Important Information
About Airvana Projected Financial
Information.
At the request of the special committee,
representatives of Goldman Sachs then delivered to the special
committee its opinion that, as of December 17, 2009 and
based upon and subject to the factors and assumptions set forth
in such opinion, the $7.65 per share in cash to be received by
the holders of outstanding shares of Airvana common stock (other
than the Rollover Stockholders) pursuant to the merger agreement
was fair from a financial point of view to such holders. The
full text of the written opinion of Goldman Sachs, dated
December 17, 2009, which sets forth the assumptions made,
procedures followed, matters considered and limitations on the
review undertaken in connection with the opinion, is attached as
Annex B to this proxy statement.
The special committee then requested that its legal advisors
provide a presentation to the special committee on its fiduciary
duties when engaging in the sale of the Company and a
presentation on the merger agreement and related transaction
documents negotiated with SAC PCG, and the special
committees legal advisors provided such presentation. The
special committee then discussed with its legal advisors the
various considerations that the special committee had taken in
reaching a proposed transaction with SAC PCG, including, among
others, (i) the possible strategic alternatives for the
Company, (ii) the terms of the merger agreement and related
transaction documents, (iii) the Goldman Sachs financial
analyses and opinion, (iv) the arms-length nature of
the agreements to be entered into as a part of the proposed
transaction, (v) the ability of the Company to pursue a
superior proposal and the amount of the termination fee payable
in that event, (vi) the liquidated damages provision in the
merger agreement (so the Company would not have to prove damages
upon the occurrence of a breach of the merger agreement by
Parent) and (vii) the oversight the special committee had
over the negotiations between SAC PCG and management regarding
the rollover equity agreements. The special committee then
discussed with its advisors the management rollover equity terms
and compensation terms agreed to in the proposed transaction and
that management had indicated it would be willing to agree to
the rollover equity and other compensation terms proposed by
either SAC PCG or Bidder A. After discussion, the special
committee unanimously resolved to recommend to the board that
the merger agreement and the merger be approved and declared
advisable and that the board resolve to recommend that the
Companys stockholders adopt the merger agreement.
Immediately following the meeting of the special committee, a
meeting of the board was convened, with the Companys legal
advisors and the special committees legal and financial
advisors being present. At the request of the special committee,
representatives of Goldman Sachs confirmed to the board that it
had delivered to the special committee its opinion that, as of
December 17, 2009 and based upon and subject to the factors
and assumptions set forth in such opinion, the $7.65 per share
in cash to be received by holders of outstanding shares of
Airvana common stock (other than the Rollover Stockholders)
pursuant to the merger agreement was fair from a financial point
of view to such holders. Following a discussion among and
questions by the board to the special committees legal and
financial advisors and the Companys legal advisors, the
Companys board, by unanimous action (with
Messrs. Battat and Verma abstaining), approved and declared
advisable the merger agreement and the merger and resolved to
recommend that the Companys stockholders adopt the merger
agreement.
27
After the meeting of the board on December 17, 2009, the
Company, Parent and Merger Sub executed the merger agreement and
related agreements and issued a press release announcing the
execution of such agreements on the morning of December 18,
2009.
Reasons
for the Merger; Recommendation of the Special Committee;
Fairness of the Merger
The
Special Committee
The special committee is a committee of our board of directors,
comprised solely of non-employee directors, that was formed on
July 9, 2009 to establish, monitor and direct the process
and procedures related to the review and evaluation of a
proposal made to the Company by SAC PCG and any alternative
transaction, and was granted the authority to solicit other
proposals, to determine not to proceed with any such proposal or
transaction, to reject or approve any such proposal or
transaction, or recommend such rejection or approval to the
board of directors, and to recommend to the board of directors
whether any such proposal or transaction is advisable and is
fair to, and in the best interests of, the Company and its
stockholders. Our board of directors also resolved that it would
not approve a strategic transaction that did not have the
approval of the special committee. The special committee
retained Goldman Sachs as its financial advisor and Ropes &
Gray as its legal counsel. The special committee was not formed
to act solely on behalf of unaffiliated stockholders, and did
not retain a financial advisor, legal counsel or other
representative to act solely on behalf of unaffiliated
stockholders for purposes of negotiating a transaction or
preparing a report concerning the fairness of the transaction.
Between July 9, 2009 and December 17, 2009, the
special committee met more than 30 times to consider the merger
proposal and alternatives to the merger proposal, as described
more fully above. See
Background of the
Merger
beginning on page 13.
The special committee, acting with the advice and assistance of
its independent legal and financial advisors, evaluated and
negotiated the merger proposal from SAC PCG, including the terms
and conditions of the merger agreement. At a meeting held on
December 17, 2009, the special committee unanimously
determined that the merger, the consideration to be paid in the
merger, and the other terms and provisions of the merger
agreement were fair to, advisable and in the best interests of
the Company and its unaffiliated stockholders and recommended
that the board of directors accept the merger agreement and the
terms and conditions of the merger and the merger agreement as
being fair to, advisable and in the best interests of the
Company and its unaffiliated stockholders, approve and adopt the
merger agreement and recommend adoption of the merger agreement
by the holders of Airvana common stock.
In the course of reaching its determination, the special
committee considered the following substantive factors and
potential benefits of the merger, each of which the special
committee believed supported its decision:
Merger
Consideration
The special committee considered the following with respect to
the merger consideration to be received by the Airvana
stockholders:
|
|
|
|
|
the fact that the merger consideration is all cash, allowing
stockholders to immediately realize a certain and fair value for
all shares of their Airvana common stock upon the closing of the
merger as compared to the uncertain future long-term value that
might be realized if we stayed independent;
|
|
|
|
the fact that the $7.65 per share merger consideration
represented a premium of approximately 23% over the
Companys closing stock price of $6.24 on December 17,
2009, the last trading day prior to our public announcement that
we had entered into the merger agreement; and
|
|
|
|
|
|
the then current financial market conditions and the recent and
historical market prices of Airvana common stock, including the
market price performance of Airvana common stock relative to
those of other companies in the communications technology
industry since our initial public offering on July 20, 2007
and over the last 12 months. See
Important
Information About Airvana
Market Price and
Dividend Data
beginning on page 102 for
information about our common stock prices since January 1,
2008.
|
28
Prospects
in Remaining Independent
The special committee considered the possibility of continuing
to operate Airvana as an independent public company. In
considering the alternative of pursuing growth as an independent
company, the special committee considered the following factors:
|
|
|
|
|
sales of EV-DO products have accounted for almost all of our
revenue and billings to date and are expected to remain the
major contributor to billings for the next several years;
|
|
|
|
we have generated substantially all of our EV-DO revenues and
billings through one customer, Nortel, that recently disposed of
its CDMA business, including our contract, to Telefon AB L.M.
Ericsson and, as a result, we face greater uncertainty as to
future revenues and billings as Ericsson has product offerings
that compete with EV-DO technologies;
|
|
|
|
prospects for new EV-DO operators are limited and existing
operators that have deployed EV-DO networks are expected to
migrate to alternative technologies over time for
example fourth generation, or 4G, standards for mobile broadband
solutions such as LTE and WiMAX which we do not have
plans to develop; thus the market for our existing EV-DO
products is likely to decline as operators begin to deploy
4G-based products and there is uncertainty as to the rate of
that decline;
|
|
|
|
our future growth will depend primarily on sales of our
femtocell products that permit operators to enhance their
third-generation, or 3G, mobile broadband services inside homes
and businesses using existing broadband Internet connections,
and there are significant risks and uncertainties associated
both with the development of, and market for, such products,
including those relating to operators femtocell deployment
plans, the possible adoption by consumers of competing
technologies such as the use of Wi-Fi connections, and the
Companys ability to effectively compete in a high-volume,
low-cost, consumer-oriented product market in which it has
limited prior experience;
|
|
|
|
the historical inability of the Company to accurately forecast
the level of its femtocell billings in 2008 or 2009, as
evidenced by actual femtocell billings significantly below the
levels set forth in the Companys initial forecasts for
2008 and 2009;
|
|
|
|
we are required to defer revenue from the sale of most products
and services and only recognize such revenue after we deliver
specified upgrades that were committed at the time of sale,
resulting in most of our revenue in any quarter typically
reflecting license fees for products and services delivered and
invoiced several quarters earlier and causing quarters in which
we recognize a significant amount of deferred revenue as a
result of our delivery of a previously committed upgrade to be
followed by one or more quarters of insignificant revenue as we
defer revenue while we develop additional upgrades, which makes
it difficult for investors to track the performance of our
business;
|
|
|
|
the possible alternatives to a sale, including providing
liquidity to our stockholders by conducting a stock repurchase
or distributing a special dividend, which alternatives the
special committee determined would be less favorable to our
stockholders than the merger given the potential risks and
uncertainties associated with those alternatives (including,
without limitation, the increased operational risks, and
decreased potential stability in the trading price of Airvana
common stock, that could result from a decrease in the
Companys available cash as a result of a Company-financed
special dividend or stock repurchase, the likely significant
decrease in public float that would result from a stock
repurchase, and the uncertainty of debt being available to
finance a stock repurchase or special dividend); and
|
|
|
|
the possibility that it could take a considerable period of
time, if ever, before the trading price of our shares would
reach and sustain at least the merger consideration of $7.65 per
share, as adjusted for present value.
|
Process
Followed
The special committee considered the process it followed,
including the solicitation of interest from a total of 16
potential financial and strategic buyers regarding a potential
acquisition.
29
Opinion
of Goldman, Sachs & Co.
With respect to advice received from Goldman Sachs, the special
committee considered the financial analyses of Goldman Sachs
presented to the special committee and the opinion of Goldman
Sachs, dated December 17, 2009, to the special committee
that, as of that date and based upon and subject to the factors
and assumptions set forth therein, the $7.65 per share in cash
to be paid to the holders of the outstanding shares of Airvana
common stock (other than the Rollover Stockholders) pursuant to
the merger agreement was fair from a financial point of view to
such holders, as more fully described in
Opinion of the Special Committees
Financial Advisor
beginning on page 34.
The special committee also considered the fact that, although
the opinion received by the special committee from Goldman Sachs
spoke to the fairness of the merger consideration to be paid to
the holders of shares of Airvana common stock other than the
Rollover Stockholders, and not to the fairness of the merger
consideration to be paid to the unaffiliated stockholders, the
merger consideration to be paid to stockholders of the Company
who are affiliates but not Rollover Stockholders is the same as
the merger consideration to be paid to unaffiliated
stockholders. The special committee noted the fact that certain
officers and directors that were not Rollover Stockholders had
interests different from, and/or in addition to, the interests
of unaffiliated stockholders, as more fully described in
Interests of the Companys Directors and
Executive Officers in the Merger
beginning on
page 57. However, the special committee believed that such
different or additional benefits are attributable to services
provided or to be provided by such officers and directors, are
customary
and/or
determined on an arms-length basis, and were not offered
in contemplation of the merger (in the case of equity awards and
any acceleration thereof, indemnification and insurance) or, if
offered in contemplation of the merger, were negotiated after
the terms of the merger had been settled and did not affect the
merger consideration, were attributable to services provided or
to be provided by such officers and directors, are customary
and/or
determined on an arms-length basis and are not paid in
respect of their shares of Airvana common stock (in the case of
fees for members of the special committee and retention bonus
and severance arrangements).
Terms
of the Merger Agreement
The special committee considered the terms and conditions of the
merger agreement and the course of negotiations thereof,
including:
|
|
|
|
|
our ability, under certain circumstances, to provide information
to, and participate in discussions or negotiations with, third
parties regarding other acquisition proposals;
|
|
|
|
our ability, under certain circumstances, to terminate the
merger agreement in order to adopt, approve, endorse or
recommend a superior proposal, subject to paying a termination
fee of $15 million (equal to approximately 2.8% of the
equity value of the transaction);
|
|
|
|
the view of the special committee, after consulting with its
legal and financial advisors, that the termination fee of
$15 million (equal to approximately 2.8% of the equity
value of the transaction) to be paid by the Company if the
merger agreement is terminated under certain circumstances is
within the range provided in similar transactions and should not
impede other takeover proposals;
|
|
|
|
the ability of the board of directors, under certain
circumstances not involving a superior proposal, to change its
recommendation that our stockholders vote in favor of the
adoption of the merger agreement and the absence of any voting
agreements committing Airvana stockholders to vote in favor of
the merger, thus leaving them free to follow any such changed
recommendation of the board of directors;
|
|
|
|
the fact that Parent and Merger Sub had obtained committed debt
and equity financing for the transaction, the limited number and
nature of the conditions to the debt and equity financing, the
absence of a financing condition in the merger agreement, and
the obligation of Parent to use its reasonable best efforts to
obtain the debt financing and, if it fails to complete the
merger under certain circumstances, to pay us a $25 million
reverse termination fee;
|
30
|
|
|
|
|
the $25 million limited guarantee of S.A.C. Capital
Management, LLC in our favor with respect to the performance by
Parent of certain of its payment obligations under the merger
agreement; and
|
|
|
|
the availability of appraisal rights to the unaffiliated
stockholders who comply with all of the required procedures
under Delaware law for exercising appraisal rights, which allow
such holders to seek appraisal of the fair value of their stock
as determined by the Court of Chancery of the State of Delaware
in lieu of receiving the merger consideration.
|
The special committee also considered a number of factors that
are discussed below relating to the procedural safeguards that
the special committee believes were and are present to ensure
the fairness of the merger. The special committee believes these
factors support its decision and provide assurance of the
procedural fairness of the merger to the unaffiliated
stockholders:
|
|
|
|
|
the merger agreement requires that it be adopted by the holders
of a majority of the outstanding shares of Airvana common stock,
none of whom is obligated to vote in favor of such adoption;
|
|
|
|
the Companys ability to terminate the merger agreement if
stockholders do not adopt it, subject to paying an expense
reimbursement of up to $3 million (equal to approximately
0.6% of the equity value of the transaction);
|
|
|
|
no member of the special committee is employed by the Company or
any subsidiary or has a financial interest in the merger that is
different from that of the unaffiliated stockholders (other than
the acceleration of options to acquire shares of Airvana common
stock previously granted to them in consideration for their
service as directors and the payment of customary fees for their
services on the special committee);
|
|
|
|
the special committee met regularly, without the participation
of the Rollover Stockholders, and retained and received advice
and assistance from its own independent legal and financial
advisors in evaluating, negotiating and recommending the terms
of the merger agreement;
|
|
|
|
the special committee directed all negotiations and made all
material decisions relating to our strategic alternatives
beginning on July 9, 2009, including recommending to our
board of directors that the Company enter into the merger
agreement;
|
|
|
|
the financial and other terms and conditions of the merger
agreement were the product of arms-length negotiations
between the special committee and its advisors, on the one hand,
and Parent and its advisors, on the other hand, without the
participation of the Rollover Stockholders;
|
|
|
|
our ability, under certain circumstances, to provide information
to, and participate in discussions or negotiations with, third
parties regarding other acquisition proposals;
|
|
|
|
our ability, under certain circumstances, to terminate the
merger agreement in order to adopt, approve, endorse or
recommend a superior proposal, subject to paying a termination
fee of $15 million (equal to approximately 2.8% of the
equity value of the transaction);
|
|
|
|
the ability of the board of directors, under certain
circumstances not involving a superior proposal, to change its
recommendation that our stockholders vote in favor of the
adoption of the merger agreement and the absence of any voting
agreements committing Airvana stockholders to vote in favor of
the merger, thus leaving them free to follow any such changed
recommendation of the board of directors;
|
|
|
|
|
|
the opinion of Goldman Sachs, dated December 17, 2009,
delivered to the special committee that, as of that date and
based upon and subject to the factors and assumptions set forth
therein, the $7.65 per share in cash to be paid to the holders
of the outstanding shares of Airvana common stock (other than
the Rollover Stockholders) pursuant to the merger agreement was
fair from a financial point of view to such holders, as more
fully described in
Opinion of the Special
Committees Financial Advisor
beginning on
page 34; and
|
|
|
|
|
|
the availability of appraisal rights to the unaffiliated
stockholders who comply with all of the required procedures
under Delaware law for exercising appraisal rights, which allow
such holders to seek
|
31
|
|
|
|
|
appraisal of the fair value of their stock as determined by the
Court of Chancery of the State of Delaware in lieu of receiving
the merger consideration.
|
The special committee also considered the following risks and
other potentially negative factors concerning the merger
agreement and the merger:
|
|
|
|
|
the unaffiliated stockholders, unlike the Rollover Stockholders,
will not participate in any future earnings or growth of our
business and will not benefit from any appreciation in our
value, including any appreciation in value that could be
realized as a result of improvements to our operations;
|
|
|
|
|
|
the possibility that we or Parent might not satisfy the closing
conditions to the debt financing contemplated by the debt
commitment letter obtained by Parent from GSO (as described in
Financing of the Merger Debt
Financing
beginning on page 55) and that, in such
event, Parent might be unable to obtain financing for the merger
and related transactions;
|
|
|
|
|
|
the risks and costs to us if the merger does not close,
including the diversion of management and employee attention,
potential employee attrition and the potential effect on our
business and our relationships with customers;
|
|
|
|
the requirement that we pay a termination fee of
$15 million if we enter into a definitive agreement related
to a superior proposal or the merger agreement is terminated
under certain other circumstances;
|
|
|
|
the requirement that we reimburse Parent for its
out-of-pocket
expenses, subject to a cap of $3 million, incurred in
connection with the proposed merger if the merger agreement is
terminated as a result of the failure to obtain stockholder
approval;
|
|
|
|
the fact that the merger agreement does not require approval by
a majority of our unaffiliated stockholders;
|
|
|
|
the fact that an all cash transaction would be taxable to the
unaffiliated stockholders that are U.S. persons for
U.S. federal income tax purposes;
|
|
|
|
the restrictions on the conduct of our business prior to the
completion of the merger, requiring us to conduct our business
only in the ordinary course, subject to specific limitations,
which may delay or prevent us from undertaking business
opportunities that may arise pending completion of the merger;
|
|
|
|
our inability to seek specific performance to require Parent or
Merger Sub to complete the merger and the fact that our sole
remedy in connection with the merger agreement, even for a
breach by Parent or Merger Sub that is deliberate or willful or
for fraud, would be limited to $25 million that is payable
in certain circumstances, which payment is guaranteed by S.A.C.
Capital Management, LLC;
|
|
|
|
|
|
the possibility that we might be unable to satisfy the minimum
Adjusted EBITDA condition contained in both the merger agreement
and the debt commitment letter, as described in
The
Merger Agreement Conditions to Closing the
Merger
beginning on page 80 and
Financing of the Merger
beginning
on page 54; and
|
|
|
|
|
|
the risk that, while the merger is expected to be completed,
there can be no assurance that all conditions to the
parties obligations to complete the merger, or all
conditions to the debt commitment letter, will be satisfied, and
as a result, it is possible that the merger may not be
completed, even if approved by our stockholders.
|
In addition, the special committee was aware of and considered
the interests that certain of our directors and executive
officers have with respect to the merger that differ from, or
are in addition to, their interests as stockholders of the
Company, as described in
Interests of the
Companys Directors and Executive Officers in the
Merger
beginning on page 57. However, the special
committee believed that such different or additional benefits
are attributable to services provided or to be provided by such
officers and directors, are customary
and/or
determined on an arms-length basis, and were either not
offered in contemplation of the merger or, if offered in
contemplation of the merger, were negotiated after the terms of
the merger had been settled and did not affect the merger
consideration.
32
In the course of reaching its conclusion regarding the fairness
of the merger to the unaffiliated stockholders and its decision
to approve the merger, the special committee considered
financial analyses presented by Goldman Sachs related to the
going concern value of Airvana. These analyses included, among
others, a premium paid analysis, an implied transaction
multiples analysis, a selected companies analysis, a present
value of future share price analysis, a discounted cash flow
analysis, a leveraged buyout analysis, a special dividend
analysis and a share buyback analysis. All of the material
analyses as presented to the special committee on
December 17, 2009 are summarized below under
Opinion of the Special Committees
Financial Advisor
beginning on page 34. The
special committee expressly adopted these analyses and the
opinion of Goldman Sachs, among other factors considered, in
reaching its determination as to the fairness of the
transactions contemplated by the merger agreement. In the course
of reaching its decision, the special committee did not consider
the liquidation value of the Companys assets because it
considers the Company to be a viable going concern business
where value is derived from cash flows generated from its
continuing operations. In addition, the special committee
believed that the value of the Companys assets that might
be realized in a liquidation would be significantly less than
its going concern value. Further, the special committee did not
consider the Companys net book value, which is an
accounting concept, as a factor because it believed that net
book value is not a material indicator of the value of the
Company as a going concern but rather is indicative of
historical costs. The Companys net book value per share as
of September 27, 2009 was $1.81, which is substantially
below the merger consideration, $7.65 per share in cash. There
are no material U.S. federal tax consequences to the
Company in connection with the merger.
The foregoing discussion summarizes the material factors
considered by the special committee in its consideration of the
merger. In view of the wide variety of factors considered by the
special committee, and the complexity of these matters, the
special committee did not find it practicable to quantify or
otherwise assign relative weights to the foregoing factors. In
addition, individual members of the special committee may have
assigned different weights to various factors. The special
committee unanimously approved the merger agreement and the
transactions contemplated thereby and recommended the adoption
of the merger agreement based upon the totality of the
information presented to, and considered by, it.
Recommendation
of the Board of Directors
Our board of directors (without the participation of
Messrs. Battat and Verma), acting upon the unanimous
recommendation of the special committee, at a meeting described
above on December 17, 2009, (i) determined that the
merger agreement and the transactions contemplated thereby,
including the merger, are advisable, fair to and in the best
interests of the Company and our unaffiliated stockholders,
(ii) approved the merger agreement and the transactions
contemplated thereby, including the merger and
(iii) recommended the adoption by our stockholders of the
merger agreement. In reaching these determinations, our board of
directors considered (x) the financial presentations of
Goldman Sachs that were prepared for the special committee and
that were delivered to the board of directors at the request of
the special committee, as well as the fact that the special
committee received an opinion of Goldman Sachs, dated
December 17, 2009, that as of such date and based upon and
subject to the factors and assumptions set forth therein, the
$7.65 per share in cash to be paid to holders of the outstanding
shares of Airvana common stock (other than the Rollover
Stockholders) pursuant to the merger agreement was fair from a
financial point of view to such holders (the full text of the
written opinion of Goldman Sachs, dated December 17, 2009,
which sets forth assumptions made, procedures followed, matters
considered and limitations on the review undertaken in
connection with the opinion, is attached as Annex B to this
proxy statement), and (y) the unanimous recommendation and
analysis of the special committee, as described above, and
adopted such recommendation and analysis in reaching its
determinations.
The foregoing discussion summarizes the material factors
considered by our board of directors in its consideration of the
merger. In view of the wide variety of factors considered by our
board of directors, and the complexity of these matters, our
board of directors did not find it practicable to quantify or
otherwise assign relative weights to the foregoing factors. In
addition, individual members of our board of directors may have
assigned different weights to various factors. The board of
directors approved and recommended the merger agreement and the
merger based upon the totality of the information presented to
and considered by it.
33
Messrs. Battat and Verma abstained from voting on the
foregoing actions due to the fact that they are exchanging
certain of their shares of Airvana common stock for an interest
in Parent.
Our board of directors (without the participation of
Messrs. Battat and Verma) recommends that you vote
FOR the adoption of the merger agreement and
FOR the adjournment of the special meeting, if
necessary, to solicit additional proxies.
Opinion
of the Special Committees Financial Advisor
Goldman Sachs delivered its opinion to the special committee
that, as of December 17, 2009 and based upon and subject to
the factors and assumptions set forth therein, the $7.65 per
share in cash to be paid to the holders (other than the Rollover
Stockholders) of the outstanding shares of the Company common
stock pursuant to the merger agreement was fair from a financial
point of view to such holders.
The full text of the written opinion of Goldman Sachs, dated
December 17, 2009, which sets forth assumptions made,
procedures followed, matters considered and limitations on the
review undertaken in connection with the opinion, is attached as
Annex B to this proxy statement. Goldman Sachs provided its
opinion for the information and assistance of the special
committee in connection with its consideration of the merger.
The Goldman Sachs opinion is not a recommendation as to how any
holder of the Company common stock should vote with respect to
the merger or any other matter.
In connection with rendering the opinion described above and
performing its related financial analyses, Goldman Sachs
reviewed, among other things:
|
|
|
|
|
the merger agreement;
|
|
|
|
annual reports to stockholders and Annual Reports on
Form 10-K
of the Company for the two fiscal years ended December 31,
2008;
|
|
|
|
Registration Statement of the Company on
Form S-1,
including the prospectus contained therein dated April 19,
2007;
|
|
|
|
certain interim reports to stockholders and Quarterly Reports on
Form 10-Q
of the Company;
|
|
|
|
certain other communications from the Company to its
stockholders;
|
|
|
|
certain publicly available research analyst reports for the
Company; and
|
|
|
|
certain internal financial analyses and forecasts for the
Company prepared by its management, as approved for Goldman
Sachs use by the Company, including Company
managements Base Case, Upside Case and Downside Case
Management Projections.
|
Goldman Sachs also held discussions with members of the senior
management of the Company regarding their assessment of the past
and current business operations, financial condition and future
prospects of the Company. In addition, Goldman Sachs reviewed
the reported price and trading activity for the shares of the
Company common stock, compared certain financial and stock
market information for the Company with similar information for
certain other companies the securities of which are publicly
traded, and reviewed the financial terms of certain recent
business combinations in the communications technology industry
specifically and in other industries generally and performed
such other studies and analyses, and considered such other
factors, as Goldman Sachs considered appropriate.
For purposes of rendering the opinion described above, Goldman
Sachs relied upon and assumed, without assuming any
responsibility for independent verification, the accuracy and
completeness of all of the financial, legal, regulatory, tax,
accounting and other information provided to, discussed with or
reviewed by Goldman Sachs, and Goldman Sachs did not assume
any liability for any such information. In that regard,
Goldman Sachs assumed with the consent of the special
committee that the Base Case Management Projections were
reasonably prepared on a basis reflecting the best currently
available estimates and judgments of the management of the
Company. In addition, Goldman Sachs did not make an independent
evaluation or appraisal of the assets and liabilities (including
any contingent, derivative or off-balance-sheet assets and
34
liabilities) of the Company or any of its subsidiaries, nor was
any such evaluation or appraisal furnished to Goldman Sachs.
Goldman Sachs assumed that all governmental, regulatory or other
consents and approvals necessary for the consummation of the
merger will be obtained without any adverse effect on the
expected benefits of the merger in any way meaningful to Goldman
Sachs analysis. Goldman Sachs also assumed that the merger
will be consummated on the terms set forth in the merger
agreement without the waiver or modification of any term or
condition the effect of which would be in any way meaningful to
Goldman Sachs analysis. Goldman Sachs did not express any
opinion as to the impact of the merger on the solvency or
viability of the Company or Parent or the ability of the Company
or Parent to pay its obligations when they come due. In
addition, Goldman Sachs opinion did not address any legal,
regulatory, tax or accounting matters nor did it address the
underlying business decision of the Company to engage in the
merger or the relative merits of the merger as compared to any
strategic alternatives that may be available to the Company.
Goldman Sachs opinion addresses only the fairness from a
financial point of view, as of the date of the opinion, of the
$7.65 per share in cash to be paid to the holders (other than
the Rollover Stockholders) of the outstanding shares of the
Company common stock pursuant to the merger agreement. Goldman
Sachs did not express any view on, and Goldman Sachs
opinion did not address, any other term or aspect of the merger
agreement or the merger or any term or aspect of any other
agreement or instrument contemplated by the merger agreement or
entered into or amended in connection with the merger,
including, without limitation, the fairness of the merger to, or
any consideration received in connection therewith by, the
holders of any other class of securities, creditors, or other
constituencies of the Company; nor as to the fairness of the
amount or nature of any compensation to be paid or payable to
any of the officers, directors or employees of the Company, or
class of such persons in connection with the merger, whether
relative to the $7.65 per share in cash to be paid to the
holders of shares of the Company common stock (other than the
Rollover Stockholders) pursuant to the merger agreement or
otherwise. Goldman Sachs opinion was necessarily based on
economic, monetary, market and other conditions as in effect on,
and the information made available to Goldman Sachs as of, the
date of the opinion, and Goldman Sachs assumed no responsibility
for updating, revising or reaffirming its opinion based on
circumstances, developments or events occurring after the date
of its opinion. Goldman Sachs opinion was approved by a
fairness committee of Goldman Sachs.
The following is a summary of the material financial analyses
delivered by Goldman Sachs to the special committee in
connection with rendering the opinion described above. The
following summary, however, does not purport to be a complete
description of the financial analyses performed by Goldman
Sachs, nor does the order of analyses described represent
relative importance or weight given to those analyses by Goldman
Sachs. Some of the summaries of the financial analyses include
information presented in tabular format. The tables must be read
together with the full text of each summary and are alone not a
complete description of Goldman Sachs financial
analyses. Except as otherwise noted, the following quantitative
information, to the extent that it is based on market data, is
based on market data as it existed on or before
December 16, 2009, and is not necessarily indicative of
current market conditions.
Premium Paid Analysis.
Goldman Sachs reviewed
the historical trading prices for the Company common stock for
the period beginning July 20, 2007 (the date of the initial
public offering of the Company common stock) and ended
December 16, 2009 (the last trading day prior to the
execution of the merger agreement) and for the latest one-month,
three-month, six-month and twelve-month trading periods ended
December 16, 2009. In addition, Goldman Sachs analyzed the
consideration of $7.65 per share to be paid to the holders of
shares of the Company common stock pursuant to the merger
agreement in relation to the closing price of the Company common
stock on December 16, 2009, the average closing prices of
the Company common stock during the one-month, three-month,
six-month and twelve-month trading periods ended
December 16, 2009, the average closing price of the Company
common stock during the period from July 20, 2007 to
December 16, 2009, the low and high closing prices of the
Company common stock for the 52-week period ended
December 16, 2009, the all-time high closing price of the
Company common stock since July 20, 2007, and the initial
offering price of the Company common stock on July 20,
2007. Goldman Sachs also calculated the pro forma $7.65 per
share merger consideration (excluding cash) and the pro forma
closing price per share (excluding cash) of the Company common
stock on December 16, 2009. Goldman Sachs performed these
calculations by subtracting net cash per share (based on the
total cash listed on the Companys balance sheet of
September 30, 2009 of $244.9 million, as adjusted to
include the Companys collection of approximately
35
$35 million (plus interest) in accounts receivable from
Nortel or its successor through bankruptcy) from the $7.65 per
share merger consideration and closing price per share of the
Company common stock on December 16, 2009. Goldman Sachs
then analyzed the pro forma $7.65 per share merger consideration
(excluding cash) in relation to the pro forma closing price per
share (excluding cash) of the Company common stock on
December 16, 2009.
This analysis indicated that the price per share to be paid to
the Company stockholders pursuant to the merger agreement
represented:
|
|
|
|
|
a premium of 23.2% based on the closing price of $6.21 per share
on December 16, 2009;
|
|
|
|
a premium of 22.4% based on the latest one-month average closing
price of $6.25 per share for the one-month period ended
December 16, 2009;
|
|
|
|
a premium of 18.2% based on the average closing price of $6.47
per share for the three-month period ended December 16,
2009;
|
|
|
|
a premium of 20.5% based on the average closing price of $6.35
per share for the six-month period ended December 16, 2009;
|
|
|
|
a premium of 28.1% based on the average closing price of $5.97
per share for the twelve-month period ended December 16,
2009;
|
|
|
|
a premium of 31.4% based on the average closing price of $5.82
per share since the initial public offering on July 20,
2007;
|
|
|
|
a premium of 57.1% based on the latest 52-week low closing price
of $4.87 per share on May 23, 2008;
|
|
|
|
a premium of 9.3% based on the latest 52-week high closing price
of $7.00 per share on October 20, 2009;
|
|
|
|
a discount of 3.0% based on the all-time high closing price of
$7.89 per share on July 24, 2007;
|
|
|
|
a premium of 9.3% based on the initial offering price of $7.00
per share on July 20, 2007; and
|
|
|
|
a premium of 57.5% based on the pro forma closing price per
share (excluding cash) of $2.64 of the Company common stock on
December 16, 2009 in relation to the pro forma $7.65 per
share merger consideration (excluding cash) of $4.16.
|
Implied Transaction Multiples.
Goldman Sachs
calculated various financial multiples and ratios for the
Company based on the closing price of $6.21 per share of the
Company common stock on December 16, 2009 and the $7.65 per
share merger consideration using the Base Case Management
Projections provided by Company management (see
Important Information About Airvana
Projected Financial Information
beginning on
page 98) and market data as of December 16, 2009. With
respect to the Company, Goldman Sachs calculated the following
multiples:
|
|
|
|
|
enterprise value, or EV, which is the market value of common
equity plus the book value of debt, less cash, as a multiple of
actual 2008 billings, estimated 2009 billings and estimated 2010
billings. Billings represents amounts invoiced for products and
services delivered and services to be delivered to the
Companys customers for which payment is expected to be
made in accordance with normal payment terms;
|
|
|
|
enterprise value as a multiple of actual 2008 earnings before
interest, taxes, depreciation and amortization, or EBITDA (based
on billings), estimated 2009 EBITDA (based on billings) and
estimated 2010 EBITDA (based on billings);
|
|
|
|
price as a multiple of actual 2008 earnings per share, or EPS
(based on billings), estimated 2009 EPS (based on billings) and
estimated 2010 EPS (based on billings); and
|
36
|
|
|
|
|
pro forma price (excluding cash) (based on billings) as a
multiple of actual 2008 pro forma EPS (excluding cash) (based on
billings), estimated 2009 pro forma EPS (excluding cash) (based
on billings) and estimated 2010 pro forma EPS (excluding cash)
(based on billings). The pro forma price (excluding cash) was
calculated by subtracting the net cash per share based on the
total cash of $244.9 million listed on the Companys
balance sheet as of September 30, 2009 (as adjusted to
include the Companys collection of approximately
$35 million (plus interest) in accounts receivable from
Nortel or its successor through bankruptcy) from the closing
price per share of the Company common stock on December 16,
2009. The pro forma EPS (excluding cash) (based on billings) was
calculated by subtracting after-tax interest income on net cash
from forecasted net income (based on billings) provided by
Company management and assuming a tax rate of 35%.
|
The results of these analyses are summarized in the table below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Multiples Based on $6.21
|
|
Multiples Based on $7.65
|
|
|
Year
|
|
per Share
|
|
per Share
|
|
EV/Billings
|
|
|
2008A
|
|
|
|
1.2x
|
|
|
|
2.0x
|
|
|
|
|
2009E
|
|
|
|
1.2x
|
|
|
|
1.9x
|
|
|
|
|
2010E
|
|
|
|
0.9x
|
|
|
|
1.5x
|
|
EV/EBITDA*
|
|
|
2008A
|
|
|
|
4.7x
|
|
|
|
7.5x
|
|
|
|
|
2009E
|
|
|
|
4.6x
|
|
|
|
7.4x
|
|
|
|
|
2010E
|
|
|
|
3.1x
|
|
|
|
5.0x
|
|
P/E*
|
|
|
2008A
|
|
|
|
15.4x
|
|
|
|
19.4x
|
|
|
|
|
2009E
|
|
|
|
13.3x
|
|
|
|
16.7x
|
|
|
|
|
2010E
|
|
|
|
12.5x
|
|
|
|
15.8x
|
|
P/E (ex-cash)*
|
|
|
2008A
|
|
|
|
7.0x
|
|
|
|
11.2x
|
|
|
|
|
2009E
|
|
|
|
5.9x
|
|
|
|
9.5x
|
|
|
|
|
2010E
|
|
|
|
5.6x
|
|
|
|
9.0x
|
|
|
|
|
|
|
EV was $181.1 million based on the closing price of $6.21
per share of the Company common stock on December 16, 2009
and $291.4 million based on the $7.65 per share merger
consideration.
|
|
|
|
|
|
The actual and estimated EPS for 2008, 2009 and 2010 were
(i) $0.40, $0.47 and $0.50, respectively, based on the
closing price of $6.21 per share of the Company common stock on
December 16, 2009 and the number of shares of the Company
common stock outstanding (as determined on a fully diluted basis
using implied price and treasury method for options) as of
October 30, 2009 and (ii) $0.39, $0.46 and $0.49,
respectively, reflecting the fully-diluted shares outstanding
based on the $7.65 per share merger consideration and the number
of shares of the Company common stock outstanding (as determined
on a fully diluted basis using implied price and treasury method
for options) as of October 30, 2009. The actual and
estimated pro forma EPS (ex-cash) for 2008, 2009 and 2010 were
(i) $0.38, $0.45 and $0.47, respectively, reflecting the
fully-diluted shares outstanding based on the closing price of
$6.21 per share of the Company common stock on December 16,
2009 and the number of shares of the Company common stock
outstanding (as determined on a fully diluted basis using
implied price and treasury method for options) as of
October 30, 2009 and (ii) $0.37, $0.44 and $0.46,
respectively, reflecting the fully-diluted shares outstanding
based on the $7.65 per share merger consideration and the number
of shares of the Company common stock outstanding (as determined
on a fully diluted basis using implied price and treasury method
for options) as of October 30, 2009.
|
|
|
|
*
|
|
EBITDA, EPS and pro forma EPS (excluding cash) were calculated
based on billings.
|
Selected Companies Analysis.
Goldman Sachs
reviewed and compared certain financial information, financial
ratios and multiples for the Company to corresponding financial
information, financial ratios and multiples for the following
publicly traded companies in the communications technology
industry:
|
|
|
|
|
Alcatel-Lucent
|
|
|
|
Cisco Systems, Inc.
|
37
|
|
|
|
|
LM Ericsson Telephone Co.
|
|
|
|
Motorola, Inc.
|
|
|
|
Nokia Corporation
|
|
|
|
Acme Packet, Inc.
|
|
|
|
Infinera Corporation
|
|
|
|
Research in Motion Limited
|
|
|
|
Sonus Networks, Inc.
|
|
|
|
Starent Networks Corp.
|
|
|
|
ADC Telecommunications
|
|
|
|
Powerwave Technologies, Inc.
|
|
|
|
CommScope, Inc.
|
Although none of the selected companies is directly comparable
to the Company, the companies included were chosen because they
are publicly traded companies with operations and financial
profiles that for purposes of analysis may be considered similar
to certain operations and financial profiles of the Company.
Goldman Sachs calculated and compared the financial multiples
and ratios for the selected companies based on publicly
available financial information, estimates from Institutional
Brokers Estimate System, or IBES, and common stock closing
prices on December 16, 2009. Goldman Sachs calculated the
financial multiples and ratios for the Company based on publicly
available financial information, Wall Street research, the Base
Case Management Projections provided by Company management (see
Important Information About Airvana
Projected Financial Information
beginning on
page 98) and the closing price of the Company common stock
on December 16, 2009, the day prior to the execution of the
merger agreement, of $6.21 per share. Goldman Sachs used the
Companys undisturbed stock price prior to the merger
announcement in these analyses in order to exclude the effect of
the merger announcement on the Companys stock price. With
respect to each of the Company and the selected companies,
Goldman Sachs calculated:
|
|
|
|
|
enterprise value as a multiple of estimated 2009 revenues and
estimated 2010 revenues for each of the selected companies;
|
|
|
|
enterprise value as a multiple of estimated 2009 billings and
estimated 2010 billings for the Company;
|
|
|
|
enterprise value as a multiple of estimated 2009 EBITDA and
estimated 2010 EBITDA for each of the selected companies;
|
|
|
|
enterprise value as a multiple of estimated 2009 EBITDA (based
on billings) and estimated 2010 EBITDA (based on billings) for
the Company;
|
|
|
|
price as a multiple of estimated 2009 EPS and estimated 2010 EPS
for each of the selected companies;
|
|
|
|
price as a multiple of estimated 2009 EPS (based on billings)
and estimated 2010 EPS (based on billings) for the Company;
|
|
|
|
|
|
pro forma price (excluding cash), calculated by subtracting the
net cash per share based on the total cash listed on each
selected companys latest balance sheet from the closing
price per share of the selected companys common stock on
December 16, 2009, as a multiple of, estimated pro forma
EPS (excluding cash), calculated by subtracting after-tax
interest income on net cash from the forecasted net income based
on Wall Street research and assuming a tax rate of 35% for each
of the selected companies; and
|
|
|
|
|
|
pro forma price (excluding cash), calculated by subtracting the
net cash per share based on the total cash listed on the
Companys balance sheet as of September 30, 2009 (as
adjusted to include the Companys collection of
approximately $35 million (plus interest) in accounts
receivable from Nortel
|
38
|
|
|
|
|
or its successor through bankruptcy) from the closing price per
share of the Company common stock on December 16, 2009, as
a multiple of, estimated 2009 EPS (excluding cash) (based on
billings), calculated by subtracting after-tax interest income
on net cash from forecasted net income (based on billings)
provided by Company management and assuming a tax rate of 35%
for the Company.
|
Goldman Sachs also compared the estimated rate of growth in
revenues and EBITDA for the selected companies with the
estimated rate of growth in billings and EBITDA (based on
billings) for the Company for the calendar years 2008, 2009 and
2010 and compared the estimated 2009 and 2010 EBITDA margin for
the selected companies with the estimated 2009 and 2010 EBITDA
margin (based on billings) for the Company. The following table
presents the results of these analyses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008-2010
|
|
2009
|
|
2010
|
|
2008-2010
|
|
2009
|
|
2010
|
|
2009
|
|
2010
|
|
|
|
|
|
2009
|
|
|
Revenue
|
|
EBITDA
|
|
EBITDA
|
|
EBITDA
|
|
EV/
|
|
EV/
|
|
EV/
|
|
EV/
|
|
2009
|
|
2010
|
|
P/E
|
|
|
Growth
|
|
Margin
|
|
Margin
|
|
Growth
|
|
Revenue
|
|
Revenue
|
|
EBITDA
|
|
EBITDA
|
|
P/E
|
|
P/E
|
|
(ex-Cash)
|
|
The Company*
(Base Case)
|
|
|
16.8
|
%
|
|
|
25.7
|
%
|
|
|
29.0
|
%
|
|
|
22.4
|
%
|
|
|
1.2
|
x
|
|
|
0.9
|
x
|
|
|
4.6
|
x
|
|
|
3.1
|
x
|
|
|
13.3
|
x
|
|
|
12.5
|
x
|
|
|
5.9
|
x
|
The Company*
(Wall Street)
|
|
|
4.6
|
%
|
|
|
26.8
|
%
|
|
|
33.1
|
%
|
|
|
28.5
|
%
|
|
|
1.2
|
x
|
|
|
1.1
|
x
|
|
|
4.5
|
x
|
|
|
3.4
|
x
|
|
|
16.0
|
x
|
|
|
12.1
|
x
|
|
|
7.2
|
x
|
Acme Packet
|
|
|
20.7
|
%
|
|
|
26.2
|
%
|
|
|
27.2
|
%
|
|
|
29.5
|
%
|
|
|
3.7
|
x
|
|
|
3.1
|
x
|
|
|
14.3
|
x
|
|
|
11.3
|
x
|
|
|
30.9
|
x
|
|
|
25.6
|
x
|
|
|
22.8
|
x
|
Starent
|
|
|
26.3
|
%
|
|
|
34.5
|
%
|
|
|
32.7
|
%
|
|
|
44.2
|
%
|
|
|
7.2
|
x
|
|
|
5.8
|
x
|
|
|
20.9
|
x
|
|
|
17.9
|
x
|
|
|
38.0
|
x
|
|
|
36.8
|
x
|
|
|
36.1
|
x
|
Infinera
|
|
|
0.2
|
%
|
|
|
(15.0
|
)%
|
|
|
0.5
|
%
|
|
|
NM
|
|
|
|
2.3
|
x
|
|
|
2.0
|
x
|
|
|
NM
|
|
|
|
NM
|
|
|
|
NM
|
|
|
|
NM
|
|
|
|
NM
|
|
Sonus
|
|
|
(11.2
|
)%
|
|
|
NM
|
|
|
|
NM
|
|
|
|
NM
|
|
|
|
1.1
|
x
|
|
|
1.0
|
x
|
|
|
NM
|
|
|
|
NM
|
|
|
|
NM
|
|
|
|
NM
|
|
|
|
NM
|
|
RIM
|
|
|
33.9
|
%
|
|
|
24.8
|
%
|
|
|
23.7
|
%
|
|
|
23.3
|
%
|
|
|
2.4
|
x
|
|
|
1.9
|
x
|
|
|
9.8
|
x
|
|
|
8.0
|
x
|
|
|
15.7
|
x
|
|
|
12.8
|
x
|
|
|
17.8
|
x
|
Cisco
|
|
|
2.2
|
%
|
|
|
31.2
|
%
|
|
|
30.5
|
%
|
|
|
9.4
|
%
|
|
|
3.2
|
x
|
|
|
3.0
|
x
|
|
|
10.1
|
x
|
|
|
9.7
|
x
|
|
|
16.9
|
x
|
|
|
15.5
|
x
|
|
|
14.9
|
x
|
Ericsson
|
|
|
0.7
|
%
|
|
|
12.3
|
%
|
|
|
14.8
|
%
|
|
|
(3.2
|
)%
|
|
|
0.8
|
x
|
|
|
0.8
|
x
|
|
|
6.8
|
x
|
|
|
5.6
|
x
|
|
|
16.8
|
x
|
|
|
12.4
|
x
|
|
|
14.8
|
x
|
Nokia
|
|
|
(9.9
|
)%
|
|
|
9.3
|
%
|
|
|
11.3
|
%
|
|
|
(23.5
|
)%
|
|
|
0.8
|
x
|
|
|
0.8
|
x
|
|
|
8.6
|
x
|
|
|
6.9
|
x
|
|
|
14.7
|
x
|
|
|
12.8
|
x
|
|
|
20.5
|
x
|
Alcatel-Lucent
|
|
|
(3.2
|
)%
|
|
|
4.3
|
%
|
|
|
8.2
|
%
|
|
|
(12.6
|
)%
|
|
|
0.3
|
x
|
|
|
0.3
|
x
|
|
|
7.6
|
x
|
|
|
4.1
|
x
|
|
|
NM
|
|
|
|
17.9
|
x
|
|
|
NM
|
|
Motorola
|
|
|
(10.7
|
)%
|
|
|
4.6
|
%
|
|
|
8.7
|
%
|
|
|
39.2
|
%
|
|
|
0.7
|
x
|
|
|
0.7
|
x
|
|
|
15.8
|
x
|
|
|
7.9
|
x
|
|
|
NM
|
|
|
|
24.3
|
x
|
|
|
NM
|
|
CommScope
|
|
|
(10.8
|
)%
|
|
|
16.6
|
%
|
|
|
18.1
|
%
|
|
|
(3.2
|
)%
|
|
|
1.1
|
x
|
|
|
1.1
|
x
|
|
|
6.9
|
x
|
|
|
6.0
|
x
|
|
|
13.4
|
x
|
|
|
11.0
|
x
|
|
|
NM
|
|
Powerwave
|
|
|
(17.9
|
)%
|
|
|
NM
|
|
|
|
7.4
|
%
|
|
|
6.3
|
%
|
|
|
0.7
|
x
|
|
|
0.7
|
x
|
|
|
13.9
|
x
|
|
|
9.1
|
x
|
|
|
NM
|
|
|
|
13.0
|
x
|
|
|
NM
|
|
ADC
|
|
|
(10.1
|
)%
|
|
|
5.1
|
%
|
|
|
10.3
|
%
|
|
|
(10.5
|
)%
|
|
|
0.7
|
x
|
|
|
0.7
|
x
|
|
|
6.2
|
x
|
|
|
6.2
|
x
|
|
|
27.4
|
x
|
|
|
18.7
|
x
|
|
|
NM
|
|
|
|
|
|
|
NM represents not meaningful as the
company has positive net debt or negative earnings.
|
|
|
|
*
|
|
For the Company, EBITDA, EPS and EPS (excluding cash) were
calculated based on billings. Also for the Company, billings
were used instead of revenue for purpose of calculating the
EV/estimated revenue multiples and the rate of revenue growth.
|
Goldman Sachs then compared the enterprise value to EBITDA
(based on billings) multiples for the Company based on Wall
Street research to the enterprise value to EBITDA multiples for
the selected companies based on IBES EBITDA estimates over the
last 52-week period ended December 16, 2009. Goldman Sachs
also compared price to one-year forward earnings (based on
billings) multiples for the Company based on Wall Street
research to the one-year forward earnings multiples for a
composite of the selected companies for the same periods based
on IBES price to one-year forward earnings estimates over such
period. This analysis indicated that the Company common stock
and the common stock of the selected companies traded at the
following enterprise value to one-year forward EBITDA (based on
billings) multiples and one-year forward EBITDA multiples,
respectively, and price to one-year forward earnings (based on
billings) multiples and one-year forward earnings multiples,
respectively, for the following periods:
1-Year
Forward EV/EBITDA
|
|
|
|
|
|
|
|
|
|
|
The Company*
|
|
|
Selected Companies
|
|
|
52-Week High
|
|
|
5.2x
|
|
|
|
12.7x
|
|
52-Week Low
|
|
|
2.6x
|
|
|
|
5.0x
|
|
1-Month
Average
|
|
|
3.4x
|
|
|
|
9.4x
|
|
6-Month
Average
|
|
|
4.0x
|
|
|
|
10.4x
|
|
1-Year
Average
|
|
|
3.9x
|
|
|
|
9.1x
|
|
|
|
|
*
|
|
For the Company, EBITDA was calculated based on billings.
|
39
1-Year
Forward P/E
|
|
|
|
|
|
|
|
|
|
|
The Company*
|
|
Selected Companies
|
|
52-Week High
|
|
|
14.9x
|
|
|
|
19.8x
|
|
52-Week Low
|
|
|
10.2x
|
|
|
|
11.5x
|
|
1-Month
Average
|
|
|
12.2x
|
|
|
|
17.0x
|
|
6-Month
Average
|
|
|
13.0x
|
|
|
|
17.8x
|
|
1-Year
Average
|
|
|
12.4x
|
|
|
|
16.5x
|
|
|
|
|
*
|
|
For the Company, EPS was calculated based on billings.
|
Illustrative Present Value of Future Share Price
Analysis.
Goldman Sachs performed illustrative
analyses of the implied present values of the future price of a
share of the Company common stock, using Company
managements Base Case, Downside Case and Upside Case
Management Projections of the Companys one-year forward
EBITDA (based on billings), one-year forward net income (based
on billings) and one-year forward adjusted net income (based on
billings and adjusted by adding after-tax interest income to
one-year forward net income, excluding cash) for each of the
fiscal years 2010, 2011 and 2012. See
Important
Information About Airvana Projected Financial
Information
beginning on page 98.
Goldman Sachs calculated the implied enterprise value of the
Company for each of the fiscal years 2010, 2011 and 2012 by
applying a one-year forward EBITDA (based on billings) multiple
of 3.1x for each of the fiscal years 2010, 2011 and 2012 to the
one-year forward EBITDA (based on billings) estimates provided
by Company management for each such year. Goldman Sachs then
calculated the implied equity value of the Company for each of
the fiscal years 2010, 2011 and 2012 by adding the
Companys net cash forecast provided by Company management
for each of 2010, 2011 and 2012 to the implied enterprise value
of Company for each such year and discounted those values for
the Company back to December 31, 2009, using a range of
discount rates from 10.0% to 15.0%, reflecting estimates of the
Companys cost of equity. Goldman Sachs then divided the
implied equity value of the Company for each such year by the
number of shares of the Company common stock outstanding (as
determined on a fully diluted basis using implied price and
treasury method for options) as of October 30, 2009. The
following table presents the results of these analyses:
Based on
EV/EBITDA* Multiples
|
|
|
|
|
|
|
Management Projections
|
|
2010
|
|
2012
|
|
2011
|
|
Base Case
|
|
$6.75 $7.06
|
|
$7.10 $7.76
|
|
$7.27 $8.30
|
Downside Case
|
|
$5.72 $5.98
|
|
$5.71 $6.24
|
|
$5.35 $6.11
|
Upside Case
|
|
$9.20 $9.62
|
|
$9.37 $10.25
|
|
$9.60 $10.97
|
|
|
|
|
|
The net cash forecast provided by Company management for each of
the fiscal years 2010, 2011 and 2012 were $301 million,
$333 million and $395 million, respectively.
|
|
|
|
*
|
|
EBITDA was calculated based on billings.
|
The merger consideration is $7.65 per share of the Company
common stock.
Goldman Sachs also performed the foregoing analysis to calculate
the implied equity value of the Company for each of the fiscal
years 2010, 2011 and 2012 by applying a price to one-year
forward earnings (based on billings) multiple of 12.5x to the
one-year forward earnings (based on billings) estimates provided
by Company management for each such year. Goldman Sachs then
discounted those values back to December 31, 2009 using a
range of discount rates from 10.0% to 15.0%, reflecting
estimates of the Companys cost of equity. Goldman Sachs
then divided the implied equity value of the Company for each
such year by the number of shares of the Company common stock
outstanding (as determined on a fully
40
diluted basis using implied price and treasury method for
options) as of October 30, 2009. The following table
presents the results of these analyses:
Based on
P/E* Multiples
|
|
|
|
|
|
|
Management Projections
|
|
2010
|
|
2011
|
|
2012
|
|
Base Case
|
|
$7.73 $8.08
|
|
$9.21 $10.06
|
|
$9.52 $10.87
|
Downside Case
|
|
$5.30 $5.54
|
|
$6.06 $6.62
|
|
$5.41 $6.18
|
Upside Case
|
|
$13.74 $14.37
|
|
$14.22 $15.54
|
|
$14.15 $16.16
|
|
|
|
|
|
The net cash forecast provided by Company management for each of
the fiscal years 2010, 2011 and 2012 were $301 million,
$333 million and $395 million, respectively.
|
|
|
|
*
|
|
Earnings were calculated based on billings.
|
The merger consideration is $7.65 per share of the Company
common stock.
In addition, Goldman Sachs performed the foregoing analysis to
calculate the implied equity value of the Company for each of
the fiscal years 2010, 2011 and 2012 by applying a price to
one-year forward earnings (based on billings and excluding cash)
multiple of 5.6x to the one-year forward adjusted net income
(based on billings and adjusted by adding after-tax interest
income to one-year forward net income) estimates provided by
Company management for each such year. Goldman Sachs then
calculated the implied equity values (including cash) of the
Company for each of the fiscal years 2010, 2011 and 2012 by
adding the Companys total cash estimates provided by
Company management for each of 2010, 2011 and 2012 to the
implied equity value (excluding cash) of the Company for each
such year. Goldman Sachs then discounted those values back to
December 31, 2009, using a range of discount rates from
10.0% to 15.0%, reflecting estimates of the Companys cost
of equity. Goldman Sachs then divided the implied equity value
of the Company for each such year by the number of shares of the
Company common stock outstanding (as determined on a fully
diluted basis using implied price and treasury method for
options) as of October 30, 2009. The following table
presents the results of these analyses:
Based on
P/E (Excluding Cash)* Multiples
|
|
|
|
|
|
|
Management Projections
|
|
2010
|
|
2011
|
|
2012
|
|
Base Case
|
|
$7.05 $7.37
|
|
$7.53 $8.23
|
|
$7.73 $8.84
|
Downside Case
|
|
$5.84 $6.11
|
|
$5.89 $6.44
|
|
$5.49 $6.27
|
Upside Case
|
|
$9.95 $10.41
|
|
$10.21 $11.15
|
|
$10.44 $11.93
|
|
|
|
|
|
The net cash forecast provided by Company management for each of
the fiscal years 2010, 2011 and 2012 were $301 million,
$333 million and $395 million, respectively.
|
|
|
|
*
|
|
Earnings (excluding cash) were calculated based on billings.
|
The merger consideration is $7.65 per share of the Company
common stock.
Illustrative Discounted Cash Flow
Analysis.
Goldman Sachs performed an illustrative
discounted cash flow analysis on the Company to determine a
range of implied present values per share of the Company common
stock using Company managements Base Case, Downside Case
and Upside Case Management Projections. See
Important
Information About Airvana Projected Financial
Information
beginning on page 98. First, Goldman
Sachs calculated the net present value of the unlevered free
cash flows (based on billings) for the EV-DO business for the
fiscal years 2010 through 2018, using discount rates ranging
from 16.5% to 18.5%, reflecting estimates of the EV-DO
business weighted-average cost of capital, to derive the
implied present value of the EV-DO business. In this analysis,
Goldman Sachs assumed that the EV-DO business has no value at
perpetuity based on Company managements assumption that
the EV-DO business would not yield any revenue after the fiscal
year 2018. Goldman Sachs then calculated indications of net
present value of the unlevered free cash flows (based on
billings) for the femtocell business for the fiscal years 2010
through 2013, excluding the losses forecast by Company
management and assuming any such losses would be funded with
available cash, using discount rates ranging from 25% to 30%,
reflecting estimates of
41
the femtocell business weighted-average cost of capital.
Goldman Sachs also calculated the net present value of the
illustrative terminal value of the femtocell business in the
fiscal year 2013 by applying a range of enterprise value to
EBITDA (based on billings) multiples of 10.3x to 12.3x to the
estimated EBITDA (based on billings) in the fiscal year 2013 for
the femtocell business and using discount rates ranging from 25%
to 30%, reflecting estimates of femtocell business
weighted-average cost of capital. Goldman Sachs then calculated
the implied present value of the femtocell business by adding
the present value of the projected cash flows from the femtocell
business for the fiscal years 2010 through 2013 to the present
value of the terminal value for the femtocell business in the
fiscal year 2013.
Goldman Sachs then calculated the implied present value of the
Company by adding (i) the implied present value of the
EV-DO business, (ii) the implied present value of the
femtocell business, and (iii) the amount of Companys
estimated total cash as of December 31, 2009 after
pre-funding $77 million of losses forecast by Company
management from the femtocell business and then dividing by the
number of shares of the Company common stock outstanding (as
determined on a fully diluted basis using implied price and
treasury method for options) as of October 30, 2009.
Goldman Sachs also performed an analysis similar to that
described above but assuming the shutdown of the femtocell
business in January 2010 and no pre-funding of losses forecast
by Company management from the femtocell business. The following
table presents the results of these analyses in a range of
implied present values:
|
|
|
|
|
|
|
Implied Present Value
|
Management Projections
|
|
(per Share)
|
|
Base Case
|
|
$
|
7.11 $7.80
|
|
Ex-Femto*
|
|
$
|
6.65 $6.84
|
|
Downside Case
|
|
$
|
6.53 $7.18
|
|
Ex-Femto*
|
|
$
|
6.06 $6.21
|
|
Upside Case
|
|
$
|
12.01 $13.83
|
|
Ex-Femto*
|
|
$
|
6.62 $6.82
|
|
|
|
|
|
|
The net cash forecast provided by Company management for each of
the fiscal years 2010, 2011 and 2012 were $301 million,
$333 million and $395 million, respectively.
|
|
|
|
*
|
|
Ex-Femto means excluding the femtocell business, which assumes
the shutdown of the femtocell business in January 2010 without
pre-funding losses from the femtocell business.
|
The merger consideration is $7.65 per share of the Company
common stock.
The preparation of a fairness opinion is a complex process and
is not necessarily susceptible to partial analysis or summary
description. Selecting portions of the analyses or of the
summary set forth above, without considering the analyses as a
whole, could create an incomplete view of the processes
underlying Goldman Sachs opinion. In arriving at its
fairness determination, Goldman Sachs considered the results of
all of its analyses and did not attribute any particular weight
to any factor or analysis considered by it. Rather, Goldman
Sachs made its determination as to fairness on the basis of its
experience and professional judgment after considering the
results of all of its analyses. No company or transaction used
in the above analyses as a comparison is directly comparable to
the Company or Parent or the merger.
Goldman Sachs prepared these analyses for purposes of Goldman
Sachs providing its opinion to the special committee as to the
fairness from a financial point of view to the holders of shares
of the Company common stock (other than the Rollover
Stockholders) of the $7.65 per share in cash to be paid to such
holders pursuant to the merger agreement. These analyses do not
purport to be appraisals nor do they necessarily reflect the
prices at which businesses or securities actually may be sold.
Analyses based upon forecasts of future results are not
necessarily indicative of actual future results, which may be
significantly more or less favorable than suggested by these
analyses. Because these analyses are inherently subject to
uncertainty, being based upon numerous factors or events beyond
the control of the parties or their respective advisors, none of
the Company, Parent, Goldman Sachs or any other person assumes
responsibility if future results are materially different from
those forecast.
42
The $7.65 per share merger consideration was determined through
arms-length negotiations between the special committee and
Parent and was approved by the Companys board of
directors. Goldman Sachs provided advice to the special
committee during these negotiations. Goldman Sachs did not,
however, recommend any specific amount of consideration to the
special committee or its board of directors or that any specific
amount of consideration constituted the only appropriate
consideration for the merger.
As described above, Goldman Sachs opinion to the special
committee was one of many factors taken into consideration by
the special committee in making its determination to approve the
merger agreement. The foregoing summary does not purport to be a
complete description of the analyses performed by Goldman Sachs
in connection with the fairness opinion and is qualified in its
entirety by reference to the written opinion of Goldman Sachs
attached as Annex B to this proxy statement.
Goldman Sachs and its affiliates are engaged in investment
banking and financial advisory services, commercial banking,
securities trading, investment management, principal investment,
financial planning, benefits counseling, risk management,
hedging, financing, brokerage activities and other financial and
non-financial activities and services for various persons and
entities. In the ordinary course of these activities and
services, Goldman, Sachs & Co. and its affiliates may
at any time make or hold long or short positions and
investments, as well as actively trade or effect transactions,
in the equity, debt and other securities (or related derivative
securities) and financial instruments (including bank loans and
other obligations) of third parties, the Company and its
affiliates, and SAC PCG and its affiliates and portfolio
companies or any currency or commodity that may be involved in
the merger for their own account and for the accounts of their
customers. Goldman Sachs acted as financial advisor to the
special committee in connection with, and participated in
certain of the negotiations leading to, the merger. During the
two year period ended December 17, 2009, Goldman Sachs and
its affiliates did not receive any fees from the Company for
services unrelated to the proposed merger. Goldman Sachs also
has provided certain investment banking and other financial
services to SAC PCG and its affiliates and portfolio companies
from time to time, including having acted as financial advisor
to a consortium of financial sponsors, including SAC PCG, in its
acquisition of Laureate Education Inc. in August 2007. Goldman
Sachs also may provide investment banking and other financial
services to the Company and its affiliates and SAC PCG and its
affiliates and portfolio companies in the future. In connection
with the above-described services, Goldman Sachs has received,
and may receive in the future, compensation. Affiliates of
Goldman Sachs may co-invest with SAC PCG and its affiliates and
may invest in limited partnership units of affiliates of SAC PCG
in the future.
The special committee selected Goldman Sachs as its financial
advisor because it is an internationally recognized investment
banking firm that has substantial experience in transactions
similar to the merger. Pursuant to a letter agreement dated
July 27, 2009, the special committee engaged Goldman Sachs
to act as its financial advisor in connection with the
consideration of strategic alternatives. Pursuant to the terms
of this engagement letter, the Company has agreed to pay Goldman
Sachs a transaction fee equal to approximately
$6.3 million, $5.8 million of which is contingent upon
consummation of the merger. In addition, the Company has agreed
to reimburse Goldman Sachs for its reasonable expenses,
including attorneys fees and disbursements, which expenses
are not limited to a maximum amount. However, Goldman Sachs is
obligated to notify the Company if the expenses to be reimbursed
exceed $100,000. The Company has also agreed to indemnify
Goldman Sachs and related persons against various liabilities,
including certain liabilities under the federal securities laws.
Other
Written Presentations by Goldman Sachs
In addition to the presentation made to the special committee on
December 17, 2009 described above, Goldman Sachs also made
written presentations to the special committee on July 14,
2009, August 11, 2009, September 4, 2009 and
December 9, 2009. Each of these presentations and Goldman
Sachs fairness opinion to the special committee has been
filed as an exhibit to the
Schedule 13E-3
filed with the SEC in connection with the merger. See
Where You Can Find Additional Information
on
page 107. None of these other written presentations by
Goldman Sachs, alone or together, constitute an opinion of
Goldman Sachs with respect to the consideration to be paid in
the merger.
43
Information contained in these other written presentations is
substantially similar to the information provided in Goldman
Sachs written presentation to the special committee on
December 17, 2009 described above. The July 14, 2009
materials contained preliminary valuation analyses, discussion
of potentially interested financial sponsors and strategic
buyers, proposed timeline and initial process considerations.
The August 11, 2009 materials contained Company
managements projections, preliminary valuation analyses,
analyses of selected alternatives for the Company, including
leveraged buyout, special dividend and sale of the Company, and
illustrative return analyses, discussion of potentially
interested strategic and financial buyers and an industry
overview. The September 4, 2009 materials contained a
preliminary timetable and an update on Company managements
financial projections. The December 9, 2009 materials
contained an update on Company managements financial
projections, preliminary valuation analyses, analyses of
selected alternatives for the Company, including leveraged
buyout, special dividend, share buyback and illustrative return
analyses. The valuation analyses contained in these other
written presentations made by Goldman Sachs included, among
other things, the following types of valuation analyses:
|
|
|
|
|
market performance;
|
|
|
|
analysis at various prices;
|
|
|
|
illustrative present value of future stock price analysis;
|
|
|
|
illustrative discounted cash flow analysis; and
|
|
|
|
selected company analysis.
|
These financial analyses were not necessarily included in all of
the other written presentations listed above. The financial
analyses in these other written presentations were based on
market, economic and other conditions as they existed as of the
dates of the respective presentations as well as other
information that was available at those times. Accordingly, the
results of these financial analyses differed due to changes in
those conditions. Among other things, multiples attributable to
selected companies changed as those companies stock prices
changed, present value of future share price analyses and
discounted cash flows analyses changed as the Companys
financial results (as well as forecasts updated by Company
management to reflect actual results) and discount rates used
changed, and discount rates changed based on market conditions.
In addition, premium paid analysis and implied transaction
multiples changed as the merger consideration changed based on
the status of the parties negotiations. Finally, Goldman
Sachs continued to refine various aspects of its financial
analyses with respect to the Company over time.
Purpose
and Reasons of the Buyer Filing Persons for the Merger
Parent and Merger Sub, as well as 72 Mobile Investors, LLC,
Sankaty, ZM Capital and 72 Private Investments, L.P. which we
refer to collectively as the other Buyer Filing
Persons, are making the statements included in this
section solely for the purpose of complying with the
requirements of
Rule 13e-3
and related rules under the Exchange Act. 72 Mobile Investors,
LLC, which we refer to as Investment Vehicle, is the
managing member of Parent. We refer to Parent, Merger Sub and
the other Buyer Filing Persons collectively, as the Buyer
Filing Persons.
If the merger is completed, Airvana will become a subsidiary of
Parent. For Parent and Merger Sub, the purpose of the merger is
to effectuate the transactions contemplated by the merger
agreement. For the other Buyer Filing Persons, the purpose of
the merger is to indirectly own equity interests in Airvana and
to bear the rewards and risks of such ownership after shares of
Airvana common stock cease to be publicly traded.
The Buyer Filing Persons believe that it is best for Airvana to
operate as a privately held entity in order to allow Airvana
greater operational flexibility and to focus on its business
without the constraints and distractions caused by the public
equity markets valuation of its common stock. Moreover,
the Buyer Filing Persons believe that Airvanas business
prospects can be improved through the active participation of
Parent in the strategic direction of Airvana. Although the Buyer
Filing Persons believe that there will be significant
opportunities associated with their investment in Airvana, they
realize that there are also substantial risks (including the
risks and uncertainties relating to the prospects of Airvana and
its femtocell business) and that such opportunities may not ever
be fully realized.
44
The Buyer Filing Persons believe that structuring the
transaction as a merger transaction is preferable to other
transaction structures because (a) it will enable Parent to
acquire all of the outstanding shares of Airvana at the same
time, (b) it represents an opportunity for Airvanas
unaffiliated stockholders to receive fair value for their shares
of common stock in the form of the merger consideration or, at
the election of the unaffiliated stockholder, by pursuing
appraisal rights and (c) it allows the Rollover
Stockholders to maintain a portion of their investment in
Airvana.
Purpose
and Reasons of the Rollover Stockholders for the
Merger
The Rollover Stockholders are making the statements included in
this section solely for the purpose of complying with the
requirements of
Rule 13e-3
and related rules under the Exchange Act.
Concurrently with Airvana entering into the merger agreement,
the Rollover Stockholders entered into a rollover commitment
letter with Parent pursuant to which approximately 60% of the
shares of Airvana common stock held by each of the Rollover
Stockholders will be exchanged for equity interests of Parent,
valuing the exchanged shares at an amount per share equal to the
merger consideration. The Rollover Stockholders expect the
exchange of their shares to be tax deferred for
U.S. federal income tax purposes. In addition, each of
Messrs. Battat and Verma and Dr. Eyuboglu expects to
enter into employment agreements with Parent. See
Interests of the Companys Directors
and Executive Officers in the Merger
beginning on
page 57. For the Rollover Stockholders, the purpose of the
merger is to enable the Rollover Stockholders to receive cash
for their stock options and for a significant portion of their
holdings of Airvana common stock at a premium over recent and
historical market prices and to benefit from any future earnings
and growth of Airvana, to the extent of their equity interest in
Parent after the Airvana common stock ceases to be publicly
traded. The Rollover Stockholders believe that Airvanas
business profile is better suited for a privately held entity
than a public company because of the uncertainties associated
with the reliance of Airvanas EV-DO business on a single
customer and the transition to next generation 4G technology,
its complex financial statements and the absence of a proven
track record of business performance for Airvanas
femtocell products.
Position
of the Buyer Filing Persons as to the Fairness of the
Merger
The Buyer Filing Persons are making the statements included in
this section solely for the purpose of complying with the
requirements of
Rule 13e-3
and related rules under the Exchange Act. The views of the Buyer
Filing Persons should not be construed as a recommendation to
any stockholder as to how that stockholder should vote on the
proposal to adopt the merger agreement.
Parent and Merger Sub attempted to negotiate the terms of a
transaction that would be most favorable to them, and not to the
stockholders of Airvana, and, accordingly, did not negotiate the
merger agreement with a goal of obtaining terms that were fair
to such stockholders. None of the Buyer Filing Persons believes
that it has or had any fiduciary duty to Airvana or its
stockholders, including with respect to the merger and its terms.
None of the Buyer Filing Persons participated in the
deliberation processes of the special committee or our board of
directors, or in the conclusions of the special committee or our
board of directors, with respect to the substantive and
procedural fairness of the merger to the unaffiliated
stockholders of Airvana, nor did they undertake any independent
evaluation of the fairness of the merger or engage a financial
advisor for such purpose. Nevertheless, they believe that the
proposed merger is substantively and procedurally fair to the
unaffiliated stockholders on the basis of the factors discussed
below.
The Buyer Filing Persons believe that the proposed merger is
substantively fair to the unaffiliated stockholders based on the
following factors:
|
|
|
|
|
the current and historical market prices of the Companys
common stock, including the fact that the $7.65 per share merger
consideration represented a premium of approximately 23% over
the Companys closing stock price of $6.24 on
December 17, 2009, the last trading day prior to the
Companys public announcement that it entered into the
merger agreement; a premium of approximately 22% based on
|
45
|
|
|
|
|
the one-month average closing stock price of $6.25 per share for
the one-month period ended December 16, 2009; a premium of
approximately 18% based on the average stock closing price of
$6.47 per share for the three-month period ended
December 16, 2009; and a premium of approximately 20% based
on the average closing stock price of $6.35 per share for the
six-month period ended December 16, 2009;
|
|
|
|
|
|
the fact that the Company had solicited interest from multiple
private equity sponsors and strategic parties regarding a
potential acquisition;
|
|
|
|
the fact that the merger consideration is all cash, allowing the
unaffiliated stockholders to immediately realize a certain and
fair value for all shares of their Company common stock;
|
|
|
|
notwithstanding the fact that the Goldman Sachs opinion was not
delivered to any of the Buyer Filing Persons and they are not
entitled to rely on such opinion, the fact that the
Companys board of directors received an opinion from
Goldman Sachs, dated December 17, 2009, that, as of that
date and based upon and subject to the factors and assumptions
set forth therein, the $7.65 per share in cash to be paid to the
holders of the outstanding shares of Company common stock (other
than the Rollover Stockholders) pursuant to the merger agreement
was fair from a financial point of view to such holders;
|
|
|
|
the Companys ability, under certain circumstances, to
provide information to, and participate in discussions or
negotiations, with third parties regarding other proposals;
|
|
|
|
the Companys ability, under certain circumstances, to
terminate the merger agreement in order to adopt, approve,
endorse or recommend a superior proposal, subject to paying a
termination fee of $15 million (equal to approximately 2.8%
of the equity value of the transaction);
|
|
|
|
the fact that Parent and Merger Sub had obtained committed debt
and equity financing for the transaction, the limited number and
nature of the conditions to the debt and equity financing, the
absence of a financing condition in the merger agreement, and
the obligation of Parent to use its reasonable best efforts to
obtain the debt financing and, if it fails to complete the
merger under certain circumstances, to pay the Company a
$25 million reverse termination fee;
|
|
|
|
the fact that S.A.C. Capital Management, LLC issued a
$25 million limited guarantee in the Companys favor
with respect to performance by Parent of certain of its payment
obligations under the merger agreement;
|
|
|
|
the ability of the Companys board of directors, under
certain circumstances not involving a superior proposal, to
change its recommendation that stockholders vote in favor of the
adoption of the merger agreement and the absence of any voting
agreements committing Airvana stockholders to vote in favor of
the merger, thus leaving them free to follow any such changed
recommendation of the board of directors; and
|
|
|
|
the availability of appraisal rights to the unaffiliated
stockholders who comply with all of the required procedures
under Delaware law for exercising appraisal rights, which allow
such holders to seek appraisal of the fair value of their stock
as determined by the Court of Chancery of the State of Delaware
in lieu of receiving the merger consideration.
|
The Buyer Filing Persons believe that the proposed merger is
procedurally fair to the unaffiliated stockholders based on the
following factors:
|
|
|
|
|
notwithstanding the fact that the merger agreement does not
require approval by a majority of the Companys
unaffiliated stockholders, the merger agreement does require the
merger agreement to be adopted by the holders of a majority of
the outstanding shares of the Companys common stock, none
of whom is obligated to vote in favor of such adoption;
|
|
|
|
the Companys ability to terminate the merger agreement if
stockholders do not adopt it, subject to paying an expense
reimbursement of up to $3 million (equal to approximately
0.6% of the equity value of the transaction);
|
|
|
|
the members of the special committee are not employees of the
Company or any of its subsidiaries and have no financial
interest in the merger that is different from that of the
unaffiliated stockholders (other than the acceleration of
options to acquire shares of Airvana common stock previously
granted to them
|
46
|
|
|
|
|
in consideration for their services as directors and payment of
customary fees for their services as members of the special
committee);
|
|
|
|
|
|
the special committee, comprised solely of non-employee
directors, met regularly, without the participation of the
Rollover Stockholders, to discuss the Companys strategic
alternatives;
|
|
|
|
while the special committee did not retain any representative to
act solely on behalf of unaffiliated stockholders for purposes
of negotiating a transaction or preparing a report, the special
committee did retain and was advised by Ropes & Gray and
Goldman Sachs specifically in its capacity as a special
committee comprised solely of non-employee and disinterested
directors;
|
|
|
|
the special committee directed all negotiations and made all
material decisions relating to the Companys strategic
alternatives beginning in July 2009, including recommending to
the Companys board of directors that the Company enter
into the merger agreement;
|
|
|
|
the financial and other terms and conditions of the merger
agreement were the product of arms-length negotiations
between the special committee and its advisors, on the one hand,
and Parent and its advisors, on the other hand, (without the
participation of the Rollover Stockholders);
|
|
|
|
the Companys ability, under certain circumstances, to
terminate the merger agreement in order to adopt, approve,
endorse or recommend a superior proposal, subject to paying a
termination fee of $15 million (equal to approximately 2.8%
of the equity value of the transaction);
|
|
|
|
the fact that the Companys special committee received an
opinion from Goldman Sachs, dated December 17, 2009, that,
as of that date and based upon and subject to the factors and
assumptions set forth therein, the $7.65 per share in cash to be
paid to the holders of the outstanding shares of Company common
stock (other than the Rollover Stockholders) pursuant to the
merger agreement was fair from a financial point of view to such
holders;
|
|
|
|
the fact that the consideration to be paid to stockholders of
the Company who are affiliates but not Rollover Stockholders is
the same as the consideration to be paid to unaffiliated
stockholders; and
|
|
|
|
the availability of appraisal rights to the unaffiliated
stockholders who comply with all of the required procedures
under Delaware law for exercising appraisal rights, which allow
such holders to seek appraisal of the fair value of their stock
as determined by the Court of Chancery of the State of Delaware.
|
The Buyer Filing Persons did not consider the liquidation value
of the Companys assets to be a factor in determining the
substantive fairness of the transaction to the unaffiliated
stockholders because they consider the Company to be a viable
going concern business where value is derived from cash flows
generated from its continuing operations. In addition, the Buyer
Filing Persons believe that the value of the Companys
assets that might be realized in a liquidation would be
significantly less than its going concern value. The Buyer
Filing Persons did not establish a pre-merger going concern
value for the Companys equity as a public company for the
purpose of determining the fairness of the merger consideration
to the unaffiliated stockholders because, following the merger,
the Company will have a significantly different capital
structure, which will result in different opportunities and
risks for the business as a more highly leveraged private
company. Further, the Buyer Filing Persons did not consider the
Companys net book value, which is an accounting concept,
as a factor because they believed that net book value is not a
material indicator of the value of the Company as a going
concern but rather is indicative of historical costs. In making
their determination as to the substantive fairness of the merger
to the unaffiliated stockholders, The Buyer Filing Persons were
not aware of any firm offers during the prior two years by any
person for the merger or consolidation of Airvana with another
company, the sale or transfer of all or substantially all of
Airvanas assets or a purchase of Airvanas assets
that would enable the holder to exercise control of Airvana,
although there were proposals as described in
Background of the Merger
beginning on page 13. None of the Buyer Filing Persons
undertook or engaged a financial advisor or other outside party
to undertake any independent evaluation, appraisal or other
analysis for the purpose of evaluating the fairness of the
merger to the unaffiliated stockholders.
47
The foregoing discussion of the information and factors
considered and given weight by the Buyer Filing Persons in
connection with the fairness of the merger is not intended to be
exhaustive but includes all material factors considered by the
Buyer Filing Persons. The Buyer Filing Persons did not find it
practicable to assign, and did not, assign or otherwise attach,
relative weights to the individual factors in reaching their
position as to the fairness of the merger. Rather, their
fairness determinations were made after consideration of all of
the foregoing factors as a whole. The Buyer Filing Persons
believe the foregoing factors provide a reasonable basis for
their belief that the merger is substantively and procedurally
fair to the unaffiliated stockholders.
Position
of the Rollover Stockholders as to the Fairness of the
Merger
The Rollover Stockholders are making the statements included in
this section solely for the purpose of complying with the
requirements of
Rule 13e-3
and related rules under the Exchange Act.
The views of the Rollover Stockholders as to the fairness of the
merger should not be construed as a recommendation to any
stockholder as to how that stockholder should vote on the
proposal to adopt the merger agreement. The Rollover
Stockholders have interests in the merger different from, and in
addition to, those of the other stockholders of Airvana. These
interests are described under
Interests of
the Companys Directors and Executive Officers in the
Merger
beginning on page 57.
The Rollover Stockholders are not a party to and did not
participate in the negotiation of the merger agreement with the
Company, Parent or Merger Sub or their respective
representatives or advisors. None of the Rollover Stockholders
participated in the deliberations of the special committee with
respect to the substantive or procedural fairness of the merger
to the unaffiliated stockholders, nor did they undertake any
independent evaluation of the fairness of the merger or engage a
financial advisor for such purpose. Nevertheless, the Rollover
Stockholders believe that the proposed merger is substantively
and procedurally fair to the unaffiliated stockholders on the
basis of the factors discussed below.
The Rollover Stockholders believe that the proposed merger is
substantively fair to the unaffiliated stockholders based on the
following factors:
|
|
|
|
|
the current and historical market prices of the Companys
common stock, including the fact that the $7.65 per share merger
consideration represented a premium of approximately 23% over
the Companys closing stock price of $6.24 on
December 17, 2009, the last trading day prior to the
Companys public announcement that it entered into the
merger agreement; a premium of approximately 22% based on the
one-month average closing stock price of $6.25 per share for the
one-month period ended December 16, 2009; a premium of
approximately 18% based on the average stock closing price of
$6.47 per share for the three-month period ended
December 16, 2009; and a premium of approximately 20% based
on the average closing stock price of $6.35 per share for the
six-month period ended December 16, 2009;
|
|
|
|
the fact that the Company had solicited interest from multiple
private equity sponsors and strategic parties regarding a
potential acquisition;
|
|
|
|
the fact that the merger consideration is all cash, allowing the
unaffiliated stockholders to immediately realize a certain and
fair value for all shares of their Company common stock;
|
|
|
|
notwithstanding the fact that the Goldman Sachs opinion was not
delivered to the Rollover Stockholders and they are not entitled
to rely on such opinion, the fact that the Companys
special committee received an opinion from Goldman Sachs, dated
December 17, 2009, that, as of that date and based upon and
subject to the factors and assumptions set forth therein, the
$7.65 per share in cash to be paid to the holders of the
outstanding shares of Company common stock (other than the
Rollover Stockholders) pursuant to the merger agreement was fair
from a financial point of view to such holders;
|
|
|
|
the Companys ability, under certain circumstances, to
provide information to, and participate in discussions or
negotiations with, third parties regarding other acquisition
proposals;
|
48
|
|
|
|
|
the Companys ability, under certain circumstances, to
terminate the merger agreement in order to adopt, approve,
endorse or recommend a superior proposal, subject to paying a
termination fee of $15 million (equal to approximately 2.8%
of the equity value of the transaction);
|
|
|
|
the fact that Parent and Merger Sub had obtained committed debt
and equity financing for the transaction, the limited number and
nature of the conditions to the debt and equity financing, the
absence of a financing condition in the merger agreement, and
the obligation of Parent to use its reasonable best efforts to
obtain the debt financing and, if it fails to complete the
merger under certain circumstances, to pay the Company a
$25 million reverse termination fee;
|
|
|
|
the fact that S.A.C. Capital Management, LLC issued a
$25 million limited guarantee in the Companys favor
with respect to performance by Parent of certain of its payment
obligations under the merger agreement;
|
|
|
|
the ability of the Companys board of directors, under
certain circumstances not involving a superior proposal, to
change its recommendation that stockholders vote in favor of the
adoption of the merger agreement and the absence of any voting
agreements committing Airvana stockholders to vote in favor of
the merger, thus leaving them free to follow any such changed
recommendation of the board of directors; and
|
|
|
|
the availability of appraisal rights to the unaffiliated
stockholders who comply with all of the required procedures
under Delaware law for exercising appraisal rights, which allow
such holders to seek appraisal of the fair value of their stock
as determined by the Court of Chancery of the State of Delaware
in lieu of receiving the merger consideration.
|
The Rollover Stockholders believe that the proposed merger is
procedurally fair to the unaffiliated stockholders based on the
following factors:
|
|
|
|
|
notwithstanding the fact that the merger agreement does not
require approval by a majority of the Companys
unaffiliated stockholders, the merger agreement does require the
merger agreement to be adopted by the holders of a majority of
the outstanding shares of the Companys common stock, none
of whom is obligated to vote in favor of such adoption;
|
|
|
|
the Companys ability to terminate the merger agreement if
stockholders do not adopt it, subject to paying an expense
reimbursement of up to $3 million (equal to approximately
0.6% of the equity value of the transaction);
|
|
|
|
the members of the special committee are not employees of the
Company or any of its subsidiaries and have no financial
interest in the merger that is different from that of the
unaffiliated stockholders (other than the acceleration of
options to acquire shares of Airvana common stock previously
granted to them in consideration for their services as directors
and payment of customary fees for their services as members of
the special committee);
|
|
|
|
the special committee, comprised solely of non-employee
directors, met regularly, without the participation of the
Rollover Stockholders, to discuss the Companys strategic
alternatives;
|
|
|
|
while the special committee did not retain any representative to
act solely on behalf of unaffiliated stockholders for purposes
of negotiating a transaction or preparing a report concerning
the fairness of the transaction, the special committee did
retain and was advised by Ropes & Gray and Goldman Sachs
specifically in its capacity as a special committee comprised
solely of non-employee and disinterested directors;
|
|
|
|
the special committee directed all negotiations and made all
material decisions relating to the Companys strategic
alternatives beginning in July 2009, including recommending to
the Companys board of directors that the Company enter
into the merger agreement;
|
|
|
|
the financial and other terms and conditions of the merger
agreement were the product of arms-length negotiations
between the special committee and its advisors, on the one hand,
and Parent and its advisors, on the other hand, without the
participation of the Rollover Stockholders;
|
49
|
|
|
|
|
the Companys ability, under certain circumstances, to
terminate the merger agreement in order to adopt, approve,
endorse or recommend a superior proposal, subject to paying a
termination fee of $15 million (equal to approximately 2.8%
of the equity value of the transaction);
|
|
|
|
the fact that the Companys special committee received an
opinion from Goldman Sachs, dated December 17, 2009, that,
as of that date and based upon and subject to the factors and
assumptions set forth therein, the $7.65 per share in cash to be
paid to the holders of the outstanding shares of Company common
stock (other than the Rollover Stockholders) pursuant to the
merger agreement was fair from a financial point of view to such
holders;
|
|
|
|
the fact that the consideration to be paid to stockholders of
the Company who are affiliates but not Rollover Stockholders is
the same as the consideration to be paid to unaffiliated
stockholders; and
|
|
|
|
the availability of appraisal rights to the unaffiliated
stockholders who comply with all of the required procedures
under Delaware law for exercising appraisal rights, which allow
such holders to seek appraisal of the fair value of their stock
as determined by the Court of Chancery of the State of Delaware.
|
The Rollover Stockholders did not consider the liquidation value
of the Companys assets to be a factor in determining the
substantive fairness of the transaction to the unaffiliated
stockholders because they consider the Company to be a viable
going concern business where value is derived from cash flows
generated from its continuing operations. In addition, the
Rollover Stockholders believe that the value of the
Companys assets that might be realized in a liquidation
would be significantly less than its going concern value. The
Rollover Stockholders did not establish a pre-merger going
concern value for the Companys equity as a public company
for the purpose of determining the fairness of the merger
consideration to the unaffiliated stockholders because,
following the merger, the Company will have a significantly
different capital structure, which will result in different
opportunities and risks for the business as a more highly
leveraged private company. Further, the Rollover Stockholders
did not consider the Companys net book value, which is an
accounting concept, as a factor because they believed that net
book value is not a material indicator of the value of the
Company as a going concern but rather is indicative of
historical costs. None of the Rollover Stockholders undertook or
engaged a financial advisor or other outside party to undertake
any independent evaluation, appraisal or other analysis for the
purpose of evaluating the fairness of the merger to the
unaffiliated stockholders.
The foregoing discussion of the information and factors
considered and given weight by the Rollover Stockholders in
connection with the fairness of the merger is not intended to be
exhaustive but includes all material factors considered by the
Rollover Stockholders. The Rollover Stockholders did not find it
practicable to assign, and did not assign or otherwise attach,
relative weights to the individual factors in reaching their
position as to the fairness of the merger. Rather, their
fairness determinations were made after consideration of all of
the foregoing factors as a whole. The Rollover Stockholders
believe the foregoing factors provide a reasonable basis for
their belief that the merger is substantively and procedurally
fair to the unaffiliated stockholders.
Plans for
Airvana After the Merger
It is expected that, upon consummation of the merger, the
operations of Airvana will be conducted substantially as they
currently are being conducted, except that we will cease to have
publicly traded equity securities and will instead be a wholly
owned subsidiary of Parent. Parent has advised Airvana that it
does not have any current intentions, plans or proposals to
cause us to engage in any of the following:
|
|
|
|
|
an extraordinary corporate transaction following consummation of
the merger involving Airvanas corporate structure,
business or management, such as a merger, reorganization or
liquidation;
|
|
|
|
the relocation of any material operations or sale or transfer of
a material amount of assets; or
|
|
|
|
any other material changes in our business.
|
50
We expect, however, that both before and following consummation
of the merger, Airvana and the surviving corporation will act to
form new direct or indirect subsidiaries of Airvana referred to
as Femto Holdings, to which Airvana and its other
subsidiaries will transfer substantially all of the assets and
liabilities that primarily relate to the femtocell business
(subject to certain exceptions). The senior secured facility is
expected to require Femto Holdings to be capitalized with
approximately $15.0 million as of the closing of the merger
and, thereafter, to permit Airvana to fund Femto Holdings
with certain excess cash flows from the EV-DO business. The
senior secured facility is also expected to require, no later
than 180 days after the closing of the merger:
|
|
|
|
|
Femto Holdings to have separate books and records, separate
assets and liabilities, separate contracts, facilities,
intellectual property and financial statements and to observe
customary corporate formalities;
|
|
|
|
to the extent that some facilities must be shared or that some
assets or intellectual property used in the femtocell business
cannot be transferred to Femto Holdings, Femto Holdings and
Airvana to make arms-length arrangements with respect to
such shared facilities, assets and intellectual
property; and
|
|
|
|
Femto Holdings to establish a separate board of directors (or
similar governing body), officers and personnel and to conduct
its business in its own name or in names that could not
reasonably be confused with Airvana.
|
We additionally expect the management
and/or
board
of directors of the surviving corporation will continue to
assess our assets, corporate and capital structure,
capitalization, operations, business, properties and personnel
to determine what changes, if any, would be desirable following
the merger to enhance the business and operations of the
surviving corporation and may cause the surviving corporation to
engage in additional transactions if the management
and/or
board
of directors of the surviving corporation decides that such
transactions are in the best interests of the surviving
corporation upon such review. The surviving corporation
expressly reserves the right to make any changes it deems
appropriate in light of such evaluation and review or in light
of future developments.
Certain
Effects of the Merger
If the merger agreement is adopted by the Companys
stockholders and certain other conditions to the closing of the
merger are either satisfied or waived, Merger Sub will be merged
with and into Airvana, with Airvana being the surviving
corporation.
Upon the consummation of the merger, each share of Airvana
common stock issued and outstanding immediately prior to the
effective time of the merger (other than shares held in the
treasury of the Company, shares owned by any of our wholly owned
subsidiaries, shares owned by Parent immediately prior to the
effective time of the merger or shares held by stockholders who
are entitled to and who properly exercise, and do not withdraw
or lose, appraisal rights under Delaware law) will be converted
into the right to receive $7.65 in cash, without interest and
less any applicable withholding taxes. We expect that such
shares owned by Parent will include certain shares held by the
Rollover Stockholders that will be exchanged for equity
interests in Parent rather than for cash in the merger. Upon the
consummation of the merger, all outstanding options to acquire
Airvana common stock will become fully vested and immediately
exercisable and all such options not exercised prior to the
merger will be cancelled and converted into a right to receive a
cash payment equal to the number of shares of Airvana common
stock underlying the options multiplied by the amount by which
$7.65 exceeds the option exercise price, without interest and
less any applicable withholding taxes.
Following the merger, the entire equity in the surviving
corporation will directly and indirectly be owned through Parent
by Investment Vehicle, the Co-Investors (which, for purposes of
this description of the equity financing, includes 72 Private
Investments, L.P., which we refer to as 72 Private
Investments, and an affiliate of GSO), the Rollover
Stockholders and any additional investors that the Investment
Vehicle and the Co-Investors permit to invest in Parent. As of
the date hereof, the Investment Vehicle and the Co-Investors do
not have an agreement with any such additional investors to
permit investment in Parent. If the merger is completed, the
Investment Vehicle, the Co-Investors, the Rollover Stockholders
and any additional investors that the Investment Vehicle and the
Co-Investors permit to invest in Parent will be the sole
beneficiaries of our
51
future earnings and growth, if any, and will be entitled to vote
on corporate matters affecting Airvana following the merger.
Similarly, the Investment Vehicle, the Co-Investors, the
Rollover Stockholders and any additional investors that the
Investment Vehicle and the Co-Investors permit to invest in
Parent will also bear the risks of their investment in Parent,
including the risks of any decrease in our value after the
merger and the operational and other risks related to the
incurrence by the surviving corporation of significant
additional debt as described below under
Financing of the Merger
.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ownership Prior to the Merger(1)
|
|
Ownership after the Merger(2)
|
|
|
Net Book Value
|
|
Earnings (Loss)
|
|
Net Book Value
|
|
Earnings (Loss)
|
|
|
$ in
|
|
|
|
$ in
|
|
|
|
$ in
|
|
|
|
$ in
|
|
|
Name
|
|
thousands
|
|
%
|
|
thousands
|
|
%
|
|
thousands
|
|
%
|
|
thousands
|
|
%
|
|
Randall J. Battat
|
|
|
4,550
|
|
|
|
3.5
|
|
|
|
(875
|
)
|
|
|
3.5
|
|
|
|
8,970
|
|
|
|
6.9
|
|
|
|
(1,724
|
)
|
|
|
6.9
|
|
Vedat Eyuboglu
|
|
|
3,900
|
|
|
|
3.0
|
|
|
|
(750
|
)
|
|
|
3.0
|
|
|
|
8,190
|
|
|
|
6.3
|
|
|
|
(1,574
|
)
|
|
|
6.3
|
|
Sanjeev Verma
|
|
|
4,680
|
|
|
|
3.6
|
|
|
|
(900
|
)
|
|
|
3.6
|
|
|
|
9,100
|
|
|
|
7.0
|
|
|
|
(1,749
|
)
|
|
|
7.0
|
|
Buyer Filing Persons
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
80,858
|
|
|
|
62.2
|
|
|
|
(15,545
|
)
|
|
|
62.2
|
|
|
|
|
(1)
|
|
Based upon beneficial ownership as of January 3, 2010,
excluding any options to acquire our common stock (whether or
not exercisable), and our net book value at January 3, 2010
and net income for the year ended January 3, 2010.
|
|
|
|
|
|
(2)
|
|
Based upon the agreed upon and anticipated equity investments
and the Companys net book value at January 3, 2010
and net income for the year ended January 3, 2010, and
without giving effect to any indebtedness to be incurred in
connection with the merger. Excludes any options (whether or not
exercisable) and any other equity incentives issued in
connection with or after the merger as described in
Interests of the Companys Directors
and Executive Officers in the Merger
beginning on
page 57.
|
The Rollover Stockholders will receive benefits and be subject
to obligations in connection with the merger that are different
from, or in addition to, the benefits and obligations of Airvana
stockholders generally, as described in more detail under
Interests of the Companys Directors
and Executive Officers in the Merger
beginning on
page 57. The incremental benefits will include the right
and commitment of the Rollover Stockholders to make an agreed
upon equity investment in the Parent by exchanging a portion of
their shares of Airvana common stock for equity interests in the
Parent, and the ability for Messrs. Battat and Verma and
Dr. Eyuboglu to participate in an equity incentive plan of
Femto Holdings or one of its subsidiaries. Additional
incremental benefits to Messrs. Battat and Verma and
Dr. Eyuboglu include higher base salaries and cash
incentive bonuses than currently paid by Airvana. A potential
detriment to the Rollover Stockholders may be that their new
options, if any, may not be exercisable for shares registered
under the federal securities laws and their new interests, if
any, in the Parent will not initially be and may not be
registered under the federal securities laws and such shares, if
any, will be relatively illiquid without an active public
trading market for such securities. The equity interests, if
any, received upon exercise of these options and the equity
interests received in exchange for such shares of Airvana common
stock will also be subject to a stockholders agreement or other
agreement restricting the ability of the Rollover Stockholders
to sell such equity. A potential detriment to the Rollover
Stockholders is that the Investment Vehicle and the Co-Investors
will own a majority of Parents shares, will control the
respective boards of directors of Parent and the surviving
corporation and will be able to exert substantial influence over
the governance and operations of Parent and the surviving
corporation following the merger.
Airvana common stock is currently registered under the Exchange
Act and is quoted on the NASDAQ under the symbol
AIRV. As a result of the merger, Airvana will be a
privately held corporation, and there will be no public market
for its common stock. After the merger, the Airvana common stock
will cease to be quoted on the NASDAQ, and price quotations with
respect to sales of shares of common stock in the public market
will no longer be available. In addition, registration of the
Airvana common stock under the Exchange Act will be terminated.
At the effective time of the merger, the directors of Merger Sub
will become the directors of the surviving corporation and the
current officers of Airvana will become the officers of the
surviving corporation. The certificate of incorporation of
Airvana will be amended to be the same as the certificate of
incorporation of
52
Merger Sub as in effect immediately prior to the effective time
of the merger, except that the name of the surviving corporation
shall continue to be Airvana, Inc. The bylaws of the
Company in effect immediately prior to the effective time of the
merger will become the bylaws of the surviving corporation. Each
of Messrs. Battat and Verma and Dr. Eyuboglu will be
members of the board of directors of Parent and the surviving
corporation.
Effects
on the Company if the Merger is Not Completed
If the merger agreement is not adopted by Airvanas
stockholders or if the merger is not completed for any other
reason, stockholders will not receive any payment for their
shares in connection with the merger. Instead, Airvana will
remain an independent public company and the Airvana common
stock will continue to be listed and traded on the NASDAQ. In
addition, if the merger is not completed, we expect that
management will operate the business in a manner similar to that
in which it is being operated today and that Airvana
stockholders will continue to be subject to the same risks and
opportunities as they currently are. Accordingly, if the merger
is not consummated, there can be no assurance as to the effect
of these risks and opportunities on the future value of your
Airvana shares. Under specified circumstances, Airvana may be
required to pay Parent a termination fee of $15 million or
reimburse Parent for its out of pocket expenses up to
$3 million or Parent may be required to pay Airvana a
reverse termination fee of $25 million, in each case, as
described in
The Merger Agreement
Termination Fees
beginning on page 86. From time
to time, Airvanas board of directors will evaluate and
review, among other things, the business, operations,
properties, dividend policy and capitalization of Airvana and
make such changes as are deemed appropriate and continue to seek
to identify strategic alternatives to enhance stockholder value.
If the merger agreement is not adopted by Airvanas
stockholders or if the merger is not consummated for any other
reason, there can be no assurance that any other transaction
acceptable to Airvana will be offered, or that the business,
prospects or results of operations of Airvana will not be
adversely impacted.
Delisting
and Deregistration of Airvana Common Stock
If the merger is completed, the Airvana common stock will be
delisted from the NASDAQ and deregistered under the Exchange Act.
Regulatory
Approvals
Under the HSR Act and the rules promulgated thereunder by the
FTC, the merger cannot be completed until Airvana and Parent
file a notification and report form under the HSR Act and the
applicable waiting period has expired or been terminated.
Airvana and Parent filed notification and report forms under the
HSR Act with the FTC and the Antitrust Division of the DOJ on
January 15, 2010. The FTC and DOJ terminated the mandatory
waiting period under the HSR Act on January 27, 2010.
Although Airvana expects that the merger can be effected in
compliance with federal and state antitrust laws, it cannot be
certain that the merger will not be challenged by a governmental
authority or private party on antitrust grounds. At any time
before or after consummation of the merger, the DOJ or the FTC
could take such action under the antitrust laws as it deems
necessary or desirable in the public interest, including seeking
to enjoin the consummation of the merger or seeking divestiture
of substantial assets of Airvana or Parent. At any time before
or after the consummation of the merger any state could take
such action under the antitrust laws as it deems necessary or
desirable in the public interest. Such action could include
seeking to enjoin the consummation of the merger or seeking
divestiture of substantial assets of Airvana or Parent. Private
parties may also seek to take legal action under the antitrust
laws under certain circumstances.
The term antitrust laws means the Sherman Act, as
amended, the Clayton Act, as amended, the HSR Act, the Federal
Trade Commission Act, as amended, and all other Federal and
state statutes, rules, regulations, orders, decrees,
administrative and judicial doctrines, and other laws that are
designed or intended to prohibit, restrict or regulate actions
having the purpose or effect of monopolization or restraint of
trade.
53
Provisions
for Unaffiliated Security Holders
No provision has been made (i) to grant Airvanas
unaffiliated stockholders access to the corporate files of
Airvana, any other party to the proposed merger or any of their
respective affiliates or (ii) to obtain counsel or
appraisal services at the expense of Airvana or any other such
party or affiliate.
Financing
of the Merger
Equity
Financing
Parent has received an equity commitment letter from S.A.C.
Capital Management, LLC. Pursuant to this equity commitment
letter, S.A.C. Capital Management, LLC has committed to
purchase, or cause to be purchased, up to $103.1 million of
equity of Parent in connection with the merger. The obligation
to fund the commitments under the equity commitment letter is
subject to the following conditions:
|
|
|
|
|
satisfaction or waiver by Parent of the conditions precedent to
Parents and Merger Subs obligation to complete the
merger;
|
|
|
|
the substantially simultaneous closing of the financing under
the debt commitment letter described below or on the terms and
conditions of any alternative debt financing that Parent and
Merger Sub are required to procure under the merger agreement;
|
|
|
|
the substantially simultaneous contribution to Parent by the
Rollover Stockholders of shares of Airvana common stock pursuant
to the rollover commitment letter described below; and
|
|
|
|
the substantially simultaneous consummation of the merger in
accordance with the terms of the merger agreement.
|
Pursuant to the interim investors agreement described in greater
detail below in
Parent Interim Investors
Agreement,
S.A.C. Capital Management, LLC has assigned
approximately $92.5 million of its commitment to Investment
Vehicle. Investment Vehicle has received equity commitment
letters in substantially similar form from 72 Private
Investments and the Co-Investors. Pursuant to these equity
commitment letters, 72 Private Investments has committed to
purchase, or cause to be purchased, up to approximately
$50 million, Sankaty has committed to purchase, or cause to
be purchased, up to $25 million and ZM Capital has
committed to purchase, or cause to be purchased, up to
$17.5 million of equity of Investment Vehicle in connection
with the merger. Any of the foregoing commitments may be
assigned under circumstances set forth in these commitment
letters. The obligation to fund the commitments under each of
the equity commitment letters is subject to the following
conditions:
|
|
|
|
|
satisfaction or waiver by Parent of the conditions precedent to
Parents and Merger Subs obligation to complete the
merger;
|
|
|
|
the substantially simultaneous closing of the financing under
the debt commitment letter described below;
|
|
|
|
the substantially simultaneous funding by each of the other
Co-Investors of the amount of cash equity contemplated by such
other equity commitment letters;
|
|
|
|
the substantially simultaneous consummation of the merger in
accordance with the terms of the merger agreement; and
|
|
|
|
the entry into definitive agreements, (including a limited
liability company agreement).
|
Parent has also received an equity commitment letter from GSO,
pursuant to which letter GSO committed to purchase or cause to
be purchased, $10 million of equity securities of Parent in
connection with the merger on the terms and conditions set forth
in such commitment letter. The obligation to fund the
commitments under the equity commitment letter is subject to the
following conditions:
|
|
|
|
|
satisfaction or waiver of the conditions precedent to closing of
the financing under the debt commitment letter described below;
|
54
|
|
|
|
|
the substantially simultaneous contribution to Parent by
Investment Vehicle; and
|
|
|
|
the substantially simultaneous consummation of the merger in
accordance with the terms of the merger agreement.
|
The Rollover Stockholders have committed to contribute an
aggregate of 3,738,562 shares of Airvanas common
stock (with an aggregate value of approximately
$28.6 million based on the merger consideration) to Parent
immediately prior to the consummation of the merger in exchange
for equity interests in Parent. The shares contributed will be
cancelled in connection with the merger and will not be entitled
to receive any merger consideration upon completion of the
merger. The Rollover Stockholders, Parent, SAC PCG and GSO have
agreed to cooperate to structure the contribution of Airvana
common stock held by the Rollover Stockholders to Parent as a
tax-free exchange to the extent permitted by law. The
obligations to contribute the shares pursuant to the rollover
commitment letters are subject to the following conditions:
|
|
|
|
|
satisfaction or waiver by Parent of the conditions precedent to
Parents and Merger Subs obligation to complete the
merger;
|
|
|
|
the substantially simultaneous closing of the financing under
the debt commitment letter described below;
|
|
|
|
the substantially simultaneous funding by Investment Vehicle and
the Co-Investors of the amount of equity contemplated by the
equity commitment letter from S.A.C. Capital Management, LLC
described above; and
|
|
|
|
the substantially simultaneous consummation of the merger in
accordance with the terms of the merger agreement.
|
Parent
Interim Investors Agreement
In connection with the execution and delivery of the merger
agreement, Parent, Merger Sub, S.A.C. Capital Management, LLC,
Investment Vehicle and the Rollover Stockholders have entered
into an interim investors agreement setting forth certain terms
and conditions governing the relationship among the parties
until the consummation of the merger. In addition to certain
representations and warranties of the parties, the interim
investors agreement provides for, among other things,
(i) control by Investment Vehicle over the actions or
omissions of Parent and Merger Sub, (ii) the entrance into,
concurrent with the consummation of the merger, of a new limited
liability company agreement of Parent, (iii) the assignment
by S.A.C. Capital Management, LLC to Investment Vehicle of
approximately $92.5 million of its equity commitment,
(iv) the right of Parent to enforce (including by specific
performance) the provisions of each equity commitment letter,
(v) a prohibition on the transfer of obligations
and/or
rights under any equity commitment letter without the written
approval of Investment Vehicle, (vi) the payment or
reimbursement by Investment Vehicle of certain expenses incurred
by Parent and Merger Sub in connection with the merger agreement
and transactions contemplated thereby, (vii) the
termination of certain agreements between the Rollover
Stockholders and the Company, (viii) the waiver of
appraisal rights under Delaware law by the Rollover
Stockholders, (ix) the good faith pursuit of all necessary
antitrust approvals by the Rollover Stockholders and
(x) the entrance into by Parent, at or prior to the
consummation of the merger, of a management agreement with an
affiliate of Investment Vehicle.
Debt
Financing
In connection with the execution and delivery of the merger
agreement, Parent has received a debt commitment letter for up
to $170.0 million of debt financing from GSO, on behalf of
certain funds managed by GSO, consisting of a senior secured
term loan facility with a term of seven years. The debt
commitment letter was amended on January 13, 2010. Merger
Sub and/or Airvana will be the borrower under the senior secured
facility (the Borrower). The proceeds of borrowings
under the senior secured facility will be used to finance, in
part, the payment of the amounts payable under the merger
agreement and the payment of fees and expenses incurred in
connection with the merger.
55
The debt financing commitments are conditioned on the
consummation of the merger on the terms set forth in the merger
agreement, as well as other customary conditions, including, but
not limited to:
|
|
|
|
|
the negotiation, execution and delivery of definitive
documentation;
|
|
|
|
the investment by SAC PCG
and/or
its
affiliates and other investors of cash equity in Parent
representing (inclusive of management equity rolled over in
connection with the merger) not less than 42.5% of the total pro
forma capitalization of Parent, the Borrower, Airvana, and each
of their respective subsidiaries (after giving effect to the
merger and the related incurrence of indebtedness), plus the
amount, if any, by which the costs and expenses related to the
merger exceed $25.0 million;
|
|
|
|
no financing other than the senior secured facility and the
equity financing described above will be required in connection
with the merger;
|
|
|
|
the absence of (x) any amendments, supplements or
modifications to or waivers of the merger agreement and
(y) the exercise by Parent and its affiliates of any
consent rights under section 5.1 of the merger agreement,
in each case in a manner in any material respect adverse to the
interests of the lenders, without the consent of GSO;
|
|
|
|
no increase of the purchase price initially set forth in the
merger agreement without the consent of GSO;
|
|
|
|
|
|
the absence of a Company Material Adverse Effect (as
defined in
The Merger Agreement Definition
of Company Material Adverse Effect
beginning on
page 74);
|
|
|
|
|
|
Airvana achieving Adjusted EBITDA (as defined in the debt
commitment letter) for the latest twelve months ended at least
30 days prior to the closing of the merger of not less than
$95.0 million;
|
|
|
|
the Borrower paying all fees and expenses then owing to GSO, the
administrative agent and the lenders;
|
|
|
|
after giving effect to the merger and the payment of fees and
expenses on the closing date of the merger, the Borrower having
a cash balance equal to or greater than $7.5 million (not
including the $15.0 million to be held on the closing date
by Parent or the Borrower to fund Femto Holdings);
|
|
|
|
GSO receiving a sources and uses and funds flow for the merger
consistent with the conditions precedent set forth in the debt
commitment letter;
|
|
|
|
concurrently with the funding of the senior secured facility,
the lenders having been issued, on a pro rata basis, equity
constituting 5% of the membership interests of Parent (which may
be diluted by management options representing up to 3.5% of the
membership interests of Parent);
|
|
|
|
as of and immediately after the closing of the merger, Parent,
Airvana and its subsidiaries having no indebtedness except for
the senior secured facility, trade payables, capital leases,
equipment financings and other non-material indebtedness
expressly permitted to remain outstanding on the closing date
pursuant to the merger agreement or otherwise agreed to by
GSO; and
|
|
|
|
delivery of customary legal opinions, closing certificates
(including a solvency certificate) and insurance certificates.
|
Under the merger agreement, Parent and Merger Sub may replace or
amend the debt financing commitment to add lenders, arrangers or
similar entities or otherwise so long as the terms would not
adversely impact the ability of Parent and the Merger Sub to
timely consummate the merger or the likelihood of the
consummation of the merger and related transaction. As of the
date of this proxy statement, no alternative financing
arrangements or alternative financing plans have been made in
the event the debt financing described above is not available as
anticipated or otherwise. The documentation governing the senior
secured facility has not been finalized and, accordingly, its
actual terms may differ from those described in this proxy
statement. There is no plan or arrangement regarding the
refinancing or repayment of the debt financing except as
described herein.
The loans under the senior secured facilities are expected to
bear interest at a rate of 14.00% per annum if the principal
amount outstanding is less than $85 million and 14.75% per
annum in all other cases.
56
All obligations of the Borrower under the senior secured
facility are expected to be guaranteed on a senior secured basis
by Parent and by each of Parents existing and subsequently
acquired or organized direct or indirect U.S. subsidiaries
(subject to certain exceptions, the Guarantors).
The obligations of the Borrower and the Guarantors under the
senior secured facility are expected to be secured, subject to
permitted liens and other agreed upon exceptions, by a perfected
first-priority security interest in substantially all of the
present and after acquired assets of the Borrower and each
Guarantor and by a first-priority lien on all of the capital
stock of the Borrower and each direct subsidiary of the Borrower
and each subsidiary Guarantor (limited, in the case of foreign
subsidiaries, to 100% of the non-voting capital stock and 65% of
the voting capital stock of such subsidiaries).
The senior secured facility is expected to contain customary
representations and warranties and customary affirmative and
negative covenants, including, among other things, restrictions
on indebtedness, investments, sales of assets, mergers and
consolidations, liens, transactions with affiliates and
dividends and other distributions. The senior secured facility
will require the Borrower, Parent and the other Guarantors to
cause Femto Holdings and its subsidiaries to separate their
legal, business and financial affairs from those of the
Borrower, the Guarantors and their respective subsidiaries
(other than Femto Holdings and its subsidiaries). The financial
maintenance covenant will consist of a maximum total leverage
ratio. The senior secured facility is expected to also include
customary events of default, including with respect to a change
of control to be defined.
Limited
Guarantee; Remedies
In connection with the merger agreement, S.A.C. Capital
Management, LLC has agreed to guarantee the due and punctual
payment of certain of the payment obligations of Parent under
the merger agreement, up to a maximum amount of the reverse
termination fee of $25 million (plus interest and
enforcement costs incurred by the Company should the reverse
termination fee not be paid by Parent when due). This limited
guarantee will remain in full force and effect until the earlier
of (i) closing of the transactions contemplated by the
merger agreement, (ii) the termination of the merger
agreement under circumstances in which Parent would not be
obligated to pay the reverse termination fee and (iii) the
payment in full by Parent or the guarantor of all of the
obligations of Parent to the Company under the limited guarantee.
The Company cannot seek specific performance to require Parent
and Merger Sub to complete the merger, and the Companys
exclusive remedy for the failure of Parent and Merger Sub to
complete the merger is the reverse termination fee in the
circumstances described under
The Merger
Agreement Termination Fees
beginning on
page 86.
Interests
of the Companys Directors and Executive Officers in the
Merger
In considering the recommendations of the board of directors,
Airvanas stockholders should be aware that certain of
Airvanas directors and executive officers have interests
in the transaction that are different from,
and/or
in
addition to, the interests of Airvanas stockholders
generally. The Rollover Stockholders will exchange approximately
60% of their shares of Airvana common stock for interests in
Parent and Messrs. Battat and Verma and Dr. Eyuboglu
will serve as officers and directors of the surviving
corporation and as directors of Parent. The special committee
and our board of directors were aware of these potential
conflicts of interest and considered them, among other matters,
in reaching their decisions to approve the merger agreement and
to recommend that our stockholders vote in favor of adopting the
merger agreement.
Exchange
of Shares by Rollover Stockholders
Concurrently with Airvana entering into the merger agreement,
the Rollover Stockholders entered into a rollover commitment
letter agreement with Parent pursuant to which 1,278,026 of the
2,189,208 shares of Airvana common stock held by
Mr. Battat and related trusts, 1,159,144 of the
1,901,089 shares held by Dr. Eyuboglu, his spouse and
related trusts and 1,301,392 of the 2,245,838 shares held
by Mr. Verma, his spouse and related trusts will be
exchanged for equity interests of Parent, valuing the exchanged
shares at an amount per share equal to the merger consideration.
As a result, the Rollover Stockholders will be paid merger
consideration for approximately 40% of the shares of Airvana
common stock that they hold. In addition,
57
Mr. Battat and related trusts will receive approximately
4,044,000 A Units, 508,000 D Units and 5,733,000 E Units in
Parent, Dr. Eyuboglu, his spouse and related trusts will
receive approximately 3,134,000 A Units, 441,000 D Units and
5,733,000 E Units in Parent, and Mr. Verma, his spouse and
related trusts will receive approximately 4,222,000 A Units,
521,000 D Units and 5,733,000 E Units in Parent, in each case in
exchange for their exchanged shares of Airvana common stock. The
Rollover Stockholders expect the exchange of their shares to be
tax deferred for U.S. federal income tax purposes.
The Class E Units received by the Rollover Stockholders in
exchange for their shares of Airvana common stock will have a
priority in receipt of distributions from the Parent following
the merger. Each Rollover Stockholder will be entitled to
receive distributions in respect of the Class E Units in
the aggregate amount of $2,866,667 prior to distributions to any
of the holders of other equity interests in Parent, and upon
payment of these distributions, each Rollover Stockholder will
receive one A Unit for each two of its E Units and all rights of
the Rollover Stockholders in the Class E Units will
terminate.
Airvana
Equity Compensation Plans
Upon the consummation of the merger, all unvested stock options
will vest and all stock options will be cancelled and converted
into the right to receive a cash payment equal to the number of
outstanding options multiplied by the amount by which $7.65
exceeds the option exercise price, without interest and subject
to applicable withholding taxes. See
The Merger
Agreement Treatment of Options
on
page 72 and
The Merger Agreement
Employee Benefits
beginning on page 89 for a more
complete discussion of the treatment of these plans and awards.
58
The table below sets forth, as of January 3, 2010 (for each
of our executive officers and directors, and our executive
officers and directors together as a group): (a) the number
of stock options held by such person, including unvested stock
options that will vest upon the consummation of the merger,
(b) the cash payment that may be made in respect of the
foregoing employee stock options upon the consummation of the
merger, (c) the cash payment that will be made in respect
of all other shares owned by such person (as such shares are
reflected in the table on page 103 of this proxy statement,
but excluding stock options) upon consummation of the merger,
and (d) the total cash payment such person will receive in
respect of all payments described in this table if the merger is
consummated (in all cases before applicable withholding taxes).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Number
|
|
|
Cash Payment for
|
|
|
Cash Payment for
|
|
|
|
|
|
|
of Vested and
|
|
|
Vested and Unvested
|
|
|
Other Beneficially
|
|
|
|
|
|
|
Unvested Stock
|
|
|
Stock Options at
|
|
|
Owned Shares at
|
|
|
Total Cash
|
|
Name
|
|
Options
|
|
|
Closing
|
|
|
Closing(1)
|
|
|
Payment(1)
|
|
|
Directors:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hassan Ahmed
|
|
|
37,508
|
|
|
$
|
81,954
|
|
|
$
|
961,260
|
|
|
$
|
1,043,214
|
|
Robert P. Badavas
|
|
|
111,222
|
|
|
$
|
222,925
|
|
|
$
|
|
|
|
$
|
222,925
|
|
Randall S. Battat
|
|
|
764,807
|
|
|
$
|
4,017,511
|
|
|
$
|
6,970,542
|
|
|
$
|
10,988,053
|
|
Gururaj Deshpande
|
|
|
75,017
|
|
|
$
|
106,335
|
|
|
$
|
65,775,227
|
|
|
$
|
65,881,562
|
|
Paul J. Ferri
|
|
|
75,017
|
|
|
$
|
106,335
|
|
|
$
|
117,228,745
|
|
|
$
|
117,335,080
|
|
Anthony S. Thornley
|
|
|
75,017
|
|
|
$
|
89,906
|
|
|
$
|
153,000
|
|
|
$
|
242,906
|
|
Sanjeev Verma
|
|
|
318,053
|
|
|
$
|
1,564,791
|
|
|
$
|
7,225,011
|
|
|
$
|
8,789,802
|
|
Other Executive Officers:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peter Anastos
|
|
|
181,208
|
|
|
$
|
821,697
|
|
|
$
|
|
|
|
$
|
821,697
|
|
Michael Clark
|
|
|
200,000
|
|
|
$
|
332,000
|
|
|
$
|
|
|
|
$
|
332,000
|
|
Laura Cranmer
|
|
|
75,000
|
|
|
$
|
214,500
|
|
|
$
|
|
|
|
$
|
214,500
|
|
Vedat Eyuboglu
|
|
|
387,404
|
|
|
$
|
2,020,358
|
|
|
$
|
5,675,879
|
|
|
$
|
7,696,237
|
|
David Gamache
|
|
|
204,325
|
|
|
$
|
1,048,637
|
|
|
$
|
2,015,690
|
|
|
$
|
3,064,327
|
|
Jeffrey D. Glidden
|
|
|
695,276
|
|
|
$
|
3,534,749
|
|
|
$
|
1,715,665
|
|
|
$
|
5,250,414
|
|
David J. Nowicki
|
|
|
331,169
|
|
|
$
|
578,974
|
|
|
$
|
|
|
|
$
|
578,974
|
|
Luis J. Pajares
|
|
|
594,051
|
|
|
$
|
3,907,478
|
|
|
$
|
3,388
|
|
|
$
|
3,910,866
|
|
Mark W. Rau
|
|
|
673,571
|
|
|
$
|
3,472,904
|
|
|
$
|
|
|
|
$
|
3,472,904
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total of all directors and executive officers as a group
|
|
|
4,798,645
|
|
|
$
|
22,121,054
|
|
|
$
|
207,724,407
|
|
|
$
|
229,845,461
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Amounts reflect the payments that would be received if such
officers and directors were to receive the merger consideration
for all equity held by such officers and directors and, with
respect to the Rollover Stockholders, exclude the shares of
Airvana common stock that the Rollover Stockholders will
exchange for equity interests in Parent, as described above in
Exchange of Shares by Rollover Stockholders
,
as follows: Mr. Battat and related trusts,
1,278,026 shares; Dr. Eyuboglu, his spouse and related
trusts, 1,159,144 shares; and Mr. Verma, his spouse
and related trusts, 1,301,392 shares.
|
|
|
|
(2)
|
|
Mr. Pajares ceased serving as an executive officer of Airvana
when he resigned from his position of Vice President of North
American Sales and Services, effective December 31, 2009.
|
New
Arrangements with the Surviving Corporation After
Closing New Management Arrangements
Effective as of the closing, Messrs. Battat and Verma and
Dr. Eyuboglu have each agreed to enter into an employment
agreement with the Company. The principal terms of the
employment agreements are set forth below:
|
|
|
|
|
Title:
Mr. Battat will serve as the
Companys President and Chief Executive Officer,
Mr. Verma will serve as the Companys Executive Vice
President, Corporate Development and Dr. Eyuboglu will
serve as the Companys Chief Technology Officer. For as
long as each executive is employed by the
|
59
|
|
|
|
|
Company and is entitled to serve on the board of directors of
Parent in accordance with the terms of the limited liability
company agreement of Parent, the executive will also serve as a
member of the Companys board of directors for no
additional compensation.
|
|
|
|
|
|
Term:
The term of employment for each
executive will be three years from the closing, subject to
automatic renewal for additional one-year periods thereafter
unless either the Company or the executive provides a notice of
non-renewal more than 90 days before the expiration of the
initial three-year term or any subsequent one-year renewal term.
Termination of an executives employment as a result of the
Companys delivery of a notice of non-renewal will be
treated as a termination by the Company without cause.
|
|
|
|
Base Salary:
Mr. Battats annual
base salary will be $540,000. Each of Dr. Eyuboglus
and Mr. Vermas annual base salary will be $455,000.
|
|
|
|
Annual Cash Bonus:
The annual cash bonus for
each executive will be targeted at 100% of base salary, with the
actual amount of bonus paid to the executive determined based
upon the level of achievement of performance goals established
by the Companys board of directors in consultation with
the executive. Notwithstanding the foregoing, each executive is
guaranteed to receive a bonus equal to 50% of his base salary in
respect of each year during the initial three-year term.
|
|
|
|
Severance:
In the event of a termination of an
executives employment prior to the end of the
executives initial three-year term for any reason other
than by the Company for cause, the terminated executive will
receive continued payments of his base salary for a period equal
to the remainder of the initial three-year term. In addition, in
the event of a termination of an executives employment by
the Company without cause or by the executive for good reason
(each as defined in the employment agreement), the executive
will receive:
|
|
|
|
|
|
severance pay in an amount equal to the sum of the
executives (A) then current base salary and
(B) target bonus, which amount will be paid in
substantially equal installments over the
12-month
period following the date of termination; and
|
|
|
|
if the executive timely elects COBRA coverage, the Company will
pay the cost of the executives medical coverage under
COBRA for the
12-month
period following the date of termination.
|
|
|
|
|
|
Equity:
After the closing, the femtocell
business will be separated into a separate subsidiary, Femto
Holdings, and Femto Holdings will adopt a new option plan that
will provide for the grant of options to acquire shares of Femto
Holdings common stock. Each executive will be eligible to
receive option grants under the Femto Holdings plan if he
provides significant services to Femto Holdings. If an executive
is selected to receive a grant of Femto Holdings options, 25% of
the options so granted will vest upon the first anniversary of
the grant date, with the remaining options then vesting ratably
at the end of each three-month period thereafter, in each case
subject to the executives continued employment on the
applicable vesting dates.
|
|
|
|
Restrictive Covenants:
Each executive will be
subject to standard non-disclosure of confidential information
and ownership of intellectual property covenants, as well as
covenants not to compete or to solicit employees or customers
for an
18-month
period following termination of employment for any reason. If an
executive materially violates any of these covenants, any
outstanding Femto Holdings options held by the executive will be
forfeited.
|
Airvana
Director Compensation Arrangements and Other
Interests
As of January 3, 2010, our non-employee directors held
options to purchase an aggregate of 373,781 shares of
Airvana common stock at a weighted average exercise price of
$6.025 per share. As with our other employees generally, the
vesting of these options will be accelerated in connection with
the merger and these options will be cancelled and converted
into the right to receive the merger consideration or otherwise
be cashed out as described elsewhere in this proxy statement.
The aggregate cash payment that will be made to these directors
in respect of options upon the consummation of the merger is
anticipated to be approximately $607,394, based on a cash merger
consideration of $7.65 per share. Additionally, these directors
will receive an aggregate cash payment in respect of their other
beneficially owned shares of Airvana common
60
stock in the amount of $184,118,232. The Chair of the special
committee received remuneration in the amount of $15,000 per
month between July 9, 2009 and December 17, 2009, and
will receive $7,500 per month from December 18, 2009 to the
Effective Time, plus expenses, in consideration of his acting in
such capacity, and each other member of the special committee
received remuneration in the amount of $10,000 per month between
July 9, 2009 and December 17, 2009, and will receive
$5,000 per month from December 18, 2009 to the Effective
Time, plus expenses, in consideration of his acting in such
capacity. The members of the board of directors (excluding
Messrs. Battat and Verma) are independent of and have no
economic interest or expectancy of an economic interest in
Parent or its affiliates, and will not retain an economic
interest in the surviving corporation or Parent following the
merger.
Indemnification
and Insurance
The surviving corporation has agreed to indemnify, to the
greatest extent permitted by law, each of our present and former
directors and executive officers against all expenses, losses
and liabilities (and to comply with all of our obligations to
advance funds for expenses) incurred in connection with any
claim, proceeding or investigation arising out of any act or
omission in their capacity as an officer or director occurring
on or before the closing date of the merger.
The merger agreement requires that we maintain, and that
following the closing date of the merger the surviving
corporation maintain, directors and officers
liability insurance policies in an amount and scope at least as
favorable as the Companys existing policies and with a
claims period of at least six years from the closing date of the
merger for claims arising from facts or events that occurred on
or prior to the closing date, or a six-year prepaid tail
policy in lieu of such continued coverage. If the annual
premiums of insurance coverage exceed 300% of our current annual
premium, the surviving corporation must obtain a policy with the
greatest coverage available for a cost not exceeding 300% of the
current annual premium paid by us.
Retention
Bonus and Severance Arrangements
The special committee has approved retention bonus arrangements
pursuant to which bonuses for up to 10 employees at an
aggregate cost not to exceed $250,000 would be paid if
(a) the merger is consummated and (b) the affected
employee remains employed as of the effective time of the merger
(or is terminated without cause before the effective time of the
merger). The special committee has also approved severance
arrangements, pursuant to which payments for up to
10 employees at an aggregate cost not to exceed $1,000,000
and in lieu of any other severance arrangements for them, would
be made if the merger is consummated and (i) such employee
is terminated without cause before the effective time or
(ii) at or within 12 months after the effective time
such employee is terminated without cause or resigns her/his
employment for good reason (defined as a relocation
more than 40 miles from the current location of employment,
a material reduction in job responsibility, or a reduction in
salary or bonus opportunity). Airvana will pay the employer side
of medical insurance premiums (COBRA coverage) for a period
equal to the lesser of the months with respect to which
severance is paid or the period for which the former employee is
eligible for continued coverage. Receipt of the severance
benefits is contingent on the individuals executing a
release of claims against the Company that becomes binding. In
connection with these arrangements, the compensation committee
of our board of directors approved retention bonuses for Peter
Anastos in the amount of $51,250 and David Gamache in the amount
of $50,000 and severance arrangements for such executive
officers of one year of salary continuation and the medical
premium payments described above. The Rollover Stockholders are
not eligible to participate in the retention bonus or severance
arrangements described above.
Material
U.S. Federal Income Tax Consequences of the Merger to Our
Stockholders
The following discussion summarizes the material
U.S. federal income tax consequences of the merger to
holders of Airvana common stock whose shares will be converted
to cash in the merger. It does not address any tax consequences
to the Rollover Stockholders or other holders who will own
(actually or constructively after the application of ownership
attribution rules) any shares of Airvana common stock after the
merger. This discussion is based upon the provisions of the
Internal Revenue Code of 1986, as amended, which we refer to as
the Code, the U.S. Treasury Regulations promulgated
thereunder and judicial and administrative rulings, all
61
as in effect as of the date of this proxy statement and all of
which are subject to change or varying interpretation, possibly
with retroactive effect. Any such changes could affect the
accuracy of the statements and conclusions set forth herein.
This discussion assumes that holders of Airvana common stock
hold their shares as capital assets within the meaning of
Section 1221 of the Code (generally, property held for
investment). This discussion does not address all aspects of
U.S. federal income taxation that may be relevant to a
holder of Airvana common stock in light of such holders
particular circumstances, nor does it discuss the special
considerations applicable to holders of our common stock subject
to special treatment under the U.S. federal income tax
laws, such as, for example, financial institutions or
broker-dealers, mutual funds, partnerships or other pass-through
entities and their partners or members, tax-exempt
organizations, insurance companies, dealers in securities or
foreign currencies, traders in securities who elect
mark-to-market
method of accounting, controlled foreign corporations, passive
foreign investment companies, U.S. expatriates, holders who
acquired their Airvana common stock through the exercise of
options or otherwise as compensation, holders who hold their
Airvana common stock as part of a hedge, straddle, constructive
sale or conversion transaction, U.S. holders whose
functional currency is not the U.S. dollar, and holders who
exercise appraisal rights. This discussion does not address any
aspect of foreign, state, local, alternative minimum, estate,
gift or other tax law that may be applicable to a
U.S. holder.
We intend this discussion to provide only a general summary of
the material U.S. federal income tax consequences of the
merger to holders of Airvana common stock. We do not intend it
to be a complete analysis or description of all potential
U.S. federal income tax consequences of the merger. The
U.S. federal income tax laws are complex and subject to
varying interpretation. Accordingly, the Internal Revenue
Service may not agree with the tax consequences described in
this proxy statement.
If an entity or arrangement treated as a partnership for
U.S. federal income tax purposes holds Airvana common
stock, the tax treatment of a partner in such partnership
generally will depend on the status of the partner and
activities of the partnership. If you are a partner of a
partnership holding Airvana common stock, you should consult
your own tax advisor.
All holders should consult their own tax advisor to determine
the particular tax consequences to them (including the
application and effect of any state, local or foreign income and
other tax laws) of the receipt of cash in exchange for shares of
Airvana common stock pursuant to the merger.
For purposes of this discussion, the term
U.S. holder means a beneficial owner of Airvana
common stock that is, for U.S. federal income tax purposes:
|
|
|
|
|
an individual citizen or resident of the United States;
|
|
|
|
a corporation (including any entity treated as a corporation for
U.S. federal income tax purposes) created or organized in
or under the laws of the United States, any state thereof or the
District of Columbia;
|
|
|
|
a trust if (1) its administration is subject to the primary
supervision of a court within the United States and one or more
U.S. persons have the authority to control all substantial
decisions of the trust or (2) it has a valid election in
effect under applicable U.S. Treasury Regulations to be
treated as a U.S. person; or
|
|
|
|
an estate the income of which is subject to U.S. federal
income tax regardless of its source.
|
A
non-U.S. holder
is a beneficial owner (other than a partnership) of Airvana
common stock that is not a U.S. holder.
Treatment
of the Merger
The conversion of shares of Airvana common stock into cash
pursuant to the merger will be in part a taxable redemption and
in part a taxable sale for U.S. federal income tax purposes.
A U.S. holder generally will recognize gain or loss for
U.S. federal income tax purposes equal to the difference,
if any, between the amount of cash received pursuant to the
merger and such U.S. holders adjusted
62
tax basis in the shares converted into cash pursuant to the
merger. Such gain or loss generally will be capital gain or
loss, and will be long-term capital gain or loss if the
holders holding period for such shares exceeds one year as
of the date of the merger. Long-term capital gains for certain
non-corporate U.S. holders, including individuals, are
generally eligible for a reduced rate of federal income
taxation. The deductibility of capital losses is subject to
limitations. If a U.S. holder acquired different blocks of
Airvana common stock at different times or different prices,
such U.S. holder must determine its tax basis, holding
period, and gain or loss separately with respect to each block
of Airvana common stock.
Any gain realized by a
non-U.S. holder
upon the conversion of shares in the merger generally will not
be subject to United States federal income tax unless:
(i) the gain is effectively connected with a trade or
business of the
non-U.S. holder
in the United States (and, if required by an applicable income
tax treaty, is attributable to a United States permanent
establishment or fixed base of the
non-U.S. holder),
(ii) the
non-U.S. holder
is an individual who is present in the United States for
183 days or more in the taxable year of the merger, and
certain other conditions are met, or (iii) we are or have
been a United States real property holding
corporation for United States federal income tax purposes
at any time during the shorter of the five-year period ending on
the date of the merger or the period that the
non-U.S. holder
held the shares, and the
non-U.S. holder
owns, or is treated as owning, more than 5% of our shares.
Net gain realized by a
non-U.S. holder
described in clause (i) of the preceding sentence will be
subject to tax at generally applicable United States federal
income tax rates. Any gains of a foreign corporation
non-U.S. holder
described in clause (i) of the preceding sentence may also
be subject to an additional branch profits tax at a
30% rate, or such lower rate as may be specified by an
applicable income tax treaty. Gain realized by an individual
non-U.S. holder
described in clause (ii) of such sentence will be subject
to a flat 30% tax, which may be offset by United States source
capital losses, even though the individual is not considered a
resident of the United States. We currently are not a
United States real property holding corporation.
Information
Reporting and Backup Withholding
A U.S. holder may, under certain circumstances, be subject
to information reporting and backup withholding at the
applicable rate (currently 28%) with respect to the cash
received pursuant to the merger, unless such holder properly
establishes an exemption or provides its correct tax
identification number and otherwise complies with the applicable
requirements of the backup withholding rules.
A
non-U.S. holder
is required to certify its foreign status under penalties of
perjury or otherwise establish an exemption in order to avoid
information reporting and backup withholding on disposition
proceeds where the transaction is effected by or through a
United States office of a broker. United States information
reporting and backup withholding generally will not apply to a
payment of proceeds from a disposition of common stock where the
transaction is effected outside the United States through a
foreign office of a foreign broker. However, information
reporting requirements, but not backup withholding, generally
will apply to such a payment if the broker is (i) a
U.S. person, (ii) a foreign person that derives 50% or
more of its gross income for certain periods from the conduct of
a trade or business in the United States, (iii) a
controlled foreign corporation as defined in the Code or
(iv) a foreign partnership with certain United States
connections, unless the broker has documentary evidence in its
records that the holder is a
non-U.S. holder
and certain conditions are met or the holder otherwise
establishes an exemption.
Backup withholding is not an additional tax. Amounts withheld
under the backup withholding rules may be refunded or credited
against the holders United States federal income tax
liability, if any, provided that certain required information is
furnished to the IRS in a timely manner. Holders should consult
their own tax advisors regarding application of backup
withholding in their particular circumstances and the
availability of and procedure for obtaining an exemption from
backup withholding under current United States Treasury
Regulations.
Certain
Relationships Between Parent and Airvana
There are no material relationships between Parent and Merger
Sub or any of their respective affiliates, on the one hand, and
Airvana or any of its affiliates, on the other hand, other than
in respect of the merger agreement and
63
those arrangements described above under
Background of the Merger
beginning on page 13 and
Interests of
the Companys Directors and Executive Officers in the
Merger
beginning on page 57.
On August 25, 2009, we entered into a letter agreement
obligating us, subject to the terms and conditions set forth
therein, to reimburse SAC PCG for up to $1,000,000 of its
out-of-pocket
costs and expenses (including the fees and expenses of legal and
accounting advisors and the out of pocket costs of its financial
advisors and financing sources) incurred in connection with its
due diligence investigation of us during the period from
August 17, 2009 until our termination of such
investigation. The letter agreement only obligated us to
reimburse such expenses if (i) we entered into a definitive
agreement by February 25, 2010 to sell Airvana to a third
party and (ii) SAC PCG pursued in good faith through the
date we terminated such due diligence investigation its offer to
acquire us in a transaction in which holders of our common stock
would receive at least $7 per share. The merger agreement
expressly supersedes the letter agreement.
Litigation
Related to the Merger
On December 18, 2009, we, our directors, SAC PCG, Parent,
GSO, Sankaty Advisors, LLC and ZelnickMedia, LLC were named as
defendants in a putative class action complaint, captioned
Israni v. Airvana, Inc., et al.
, C.A.
No. 5153-CC,
filed in the Court of Chancery of the State of Delaware. That
action, purportedly brought on behalf of a class of
stockholders, alleges that our directors breached their
fiduciary duties in connection with the proposed merger by,
among other things, failing to fully inform themselves of
Airvanas market value, maximize stockholder value, obtain
the best financial and other terms, and act in the best
interests of public stockholders, and seeking to benefit
themselves improperly. The complaint further alleges that the
non-Airvana defendants aided and abetted the directors
purported breaches. The plaintiff seeks injunctive and other
equitable relief, including to enjoin us and Parent from
consummating the merger, in addition to fees and costs. On
December 31, 2009, the plaintiff served document requests
on us.
On December 31, 2009, a second putative class action
complaint was filed against us, our directors, SAC PCG, Parent,
GSO, Sankaty Advisors, LLC and ZelnickMedia, LLC in the Court of
Chancery of the State of Delaware in an action captioned
Gittleson v. Airvana, Inc., et al.
, C.A.
No. 5179-CC.
That action, purportedly brought on behalf of a class of
stockholders, also alleges that our directors breached their
fiduciary duties in connection with the proposed merger by,
among other things, failing to fully inform themselves of
Airvanas market value, maximize shareholder value, obtain
the best financial and other terms, and act in the best interest
of public stockholders, and seeking to benefit themselves
improperly. The complaint further alleges that the non-Airvana
defendants aided and abetted the directors purported
breaches. The plaintiff seeks injunctive and other equitable
relief, including to enjoin us and Parent from consummating the
merger, in addition to fees and costs.
On January 12, 2010, we, our directors, Dr. Eyuboglu,
Merger Sub, 72 Mobile Investors, LLC, SAC PCG, GSO, Sankaty
Advisors, LLC and ZelnickMedia LLC were named as defendants in a
third putative class action complaint, captioned
Willis v. Airvana, Inc. et al.,
C.A. No. 5200,
filed in the Court of Chancery of the State of Delaware. That
action, purportedly brought on behalf of a class of
stockholders, alleges that our directors breached their
fiduciary duties in connection with the proposed merger by,
among other things, failing to fully inform themselves of our
market value, maximize shareholder value, obtain the best
financial and other terms, and act in the best interest of
public stockholders, and seeking to benefit themselves
improperly. The complaint further alleges that the non-Airvana
defendants aided and abetted the purported breaches by the
directors and Dr. Eyuboglu. The plaintiff seeks
declaratory, injunctive and other equitable relief, including to
enjoin us and affiliates of Parent from consummating the merger,
in addition to unspecified damages, fees and costs.
The above three actions have been consolidated into a single
proceeding captioned
In re Airvana Shareholders
Litigation
. On February 2, 2010, the plaintiffs
submitted a consolidated class action complaint re-alleging the
substance of the allegations from the pre-consolidation
complaints and further alleging that the January 14
preliminary proxy omitted material information concerning the
merger. On February 5, 2010, the plaintiffs filed:
(i) a motion to enjoin defendants from consummating the
proposed transaction and (ii) a motion for an order
directing discovery to proceed on an expedited basis and
scheduling a hearing on
64
plaintiffs motion for a preliminary injunction. On
February 14, 2010, the defendants filed an opposition to
the plaintiffs request for emergency relief. On
February 15, 2010, the court denied plaintiffs
application for expedited proceedings and declined to schedule a
hearing on plaintiffs motion for a preliminary injunction.
On February 19, 2010, the defendants filed a motion to
dismiss.
On December 28, 2009, we, our directors, S.A.C. Private
Capital Partners LP (a nonexistent entity), Parent, GSO, Sankaty
Advisors, LLC and ZelnickMedia, LLC were named as defendants in
a putative class action complaint, captioned
Mountney v.
Airvana, Inc., et al.
, C.A.
No. 09-5470,
filed in the Superior Court, Business Litigation Session, of
Suffolk County of the Commonwealth of Massachusetts. That
action, purportedly brought on behalf of a class of
stockholders, alleges that our directors breached their
fiduciary duties in connection with the proposed merger by,
among other things, failing to fully inform themselves of
Airvanas market value, maximize shareholder value, obtain
the best financial and other terms, and act in the best interest
of public stockholders, and seeking to benefit themselves
improperly. The complaint further alleges that we and the
non-Airvana defendants aided and abetted the directors
purported breaches. The plaintiff seeks declaratory, injunctive
and other equitable relief, including to enjoin us and Parent
from consummating the merger, in addition to fees and costs.
On January 6, 2010, we, our directors, Parent and Merger
Sub were named as defendants in a separate putative class action
complaint, captioned
Short v. Airvana, Inc., et al.,
C.A.
No. 10-0042,
filed in the Superior Court, Business Litigation Session, of
Suffolk County of the Commonwealth of Massachusetts. That
action, purportedly brought on behalf of a class of
stockholders, alleges that our directors breached their
fiduciary duties in connection with the proposed merger by,
among other things, failing to fully inform themselves of our
market value, maximize shareholder value, obtain the best
financial and other terms, and act in the best interest of
public stockholders, and seeking to benefit themselves
improperly. The complaint further alleges that we, Parent and
Merger Sub aided and abetted the directors purported
breaches. The plaintiff seeks declaratory, injunctive and other
equitable relief, including to enjoin us and affiliates of
Parent from consummating the merger, in addition to fees and
costs.
On January 28, 2010, the Company and its directors moved to
stay the Massachusetts lawsuits in favor of the consolidated
Delaware action. On February 8, 2010 the plaintiffs in the
Short
action served an opposition to the motion to stay.
The defendants served their reply on February 26, 2010.
We believe that the claims asserted in these suits are without
merit.
Fees and
Expenses of the Merger
We estimate that we will incur, and will be responsible for
paying, transaction-related fees and expenses, consisting
primarily of financial, legal, accounting and tax advisory fees,
SEC filing fees and other related charges, totaling
approximately $17 million. This amount includes the
following estimated fees and expenses:
|
|
|
|
|
Description
|
|
Amount to be Paid
|
|
|
SEC filing fee
|
|
$
|
38,248
|
|
Printing, proxy solicitation and mailing expenses
|
|
$
|
40,000
|
|
Financial, legal, accounting and tax advisory fees
|
|
$
|
10,000,000
|
|
Miscellaneous expenses
|
|
$
|
7,000,000
|
|
|
|
|
|
|
Total
|
|
$
|
17,078,248
|
|
|
|
|
|
|
65
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This proxy statement contains forward-looking statements that
are based on our current expectations, assumptions, beliefs,
estimates and projections about our company and our industry.
The forward-looking statements are subject to various risks and
uncertainties that could cause actual results to differ
materially from those described in the forward-looking
statements. Generally, these forward-looking statements can be
identified by the use of forward-looking terminology such as
anticipate, believe,
estimate, expect, intend,
project, should and similar expressions.
Factors that may affect those forward-looking statements
include, among other things:
|
|
|
|
|
the risk that the merger may not be consummated in a timely
manner, if at all;
|
|
|
|
the risk that the merger agreement may be terminated in
circumstances that require us to pay Parent a termination fee of
$15 million or reimburse Parent for up to $3 million
of certain expenses incurred by Parent in connection with the
merger;
|
|
|
|
risks regarding a loss of or a substantial decrease in purchases
by our major customers;
|
|
|
|
risks related to diverting managements attention from our
ongoing business operations;
|
|
|
|
risks regarding employee retention;
|
|
|
|
legal and regulatory proceedings, including but not limited to
litigation arising out of the proposed merger or other matters
that affect the timing or ability to complete the transactions
as contemplated; and
|
|
|
|
other risks detailed in our current filings with the SEC,
including our most recent filings on
Form 10-K
or
Form 10-Q,
which discuss these and other important risk factors concerning
our operations.
|
We caution you that reliance on any forward-looking statement
involves risks and uncertainties, and that although we believe
that the assumptions on which our forward-looking statements are
based are reasonable, any of those assumptions could prove to be
inaccurate, and, as a result, the forward-looking statements
based on those assumptions could be incorrect. In light of these
and other uncertainties, you should not conclude that we will
necessarily achieve any plans and objectives or projected
financial results referred to in any of the forward-looking
statements. We do not undertake to release the results of any
revisions of these forward-looking statements to reflect future
events or circumstances, except as required by law.
THE
PARTIES TO THE MERGER
Airvana
Airvana is a Delaware corporation with its headquarters in
Chelmsford, Massachusetts. Airvana is a leading provider of
network infrastructure products used by wireless operators to
provide mobile broadband services. Airvana specializes in
helping operators transform the mobile experience of users
worldwide. Its high performance technology and products, from
core mobile network infrastructure to comprehensive femtocell
solutions, enable operators to deliver broadband services to
mobile subscribers, wherever they are.
Airvana was incorporated in March 2000 and its principal
executive offices are located at 19 Alpha Road, Chelmsford,
Massachusetts 01824. Airvanas website is located at
http://www.airvana.com
and its telephone number is
978-250-3000.
Additional information regarding Airvana is contained in our
filings with the SEC. See
Where You Can Find More
Information
on page 107.
Parent
72 Mobile Holdings, LLC, which we refer to as
Parent, is a newly formed Delaware limited liability
company that was formed solely for the purpose of entering into
the merger agreement and consummating the transactions
contemplated by the merger agreement. Parent has not engaged in
any business except for activities incident to its formation and
in connection with the transactions contemplated by the merger
66
agreement. The principal office address of 72 Mobile Holdings,
LLC is 72 Cummings Point Rd., Stamford, Connecticut 06902. Its
telephone number is
203-890-2000.
Merger
Sub
72 Mobile Acquisition Corp, which we refer to as
Merger Sub, is a newly formed Delaware corporation
and a wholly owned subsidiary of Parent. Merger Sub was formed
solely for the purpose of entering into the merger agreement and
consummating the transactions contemplated by the merger
agreement. Merger Sub has not engaged in any business except for
activities incident to its incorporation and in connection with
the transactions contemplated by the merger agreement. Upon the
consummation of the proposed merger, Merger Sub will cease to
exist and Airvana will continue as the surviving corporation and
a wholly owned subsidiary of Parent. The principal office
address of 72 Mobile Acquisition Corp. is 72 Cummings Point Rd.,
Stamford, Connecticut 06902. Its telephone number is
203-890-2000.
Additional information concerning these transaction participants
is set forth in Annex D to this proxy statement.
THE
SPECIAL MEETING
This proxy statement is furnished in connection with the
solicitation of proxies by our board of directors in connection
with the special meeting of our stockholders relating to the
merger.
Date,
Time and Place of the Special Meeting
We will hold the special meeting at the offices of Wilmer Cutler
Pickering Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts 02109, at 10:00 a.m., local time, on
April 9, 2010.
Purpose
of the Special Meeting
At the special meeting, we will ask the holders of our common
stock to adopt the merger agreement, and, if there are not
sufficient votes in favor of adoption of the merger agreement,
to adjourn the special meeting to a later date to solicit
additional proxies.
Record
Date; Shares Entitled to Vote; Quorum
Only holders of record of our common stock at the close of
business on February 23, 2010, the record date, are
entitled to notice of, and to vote at, the special meeting. On
the record date, 63,560,767 shares of our common stock were
issued and outstanding and held by approximately 129 holders of
record. Holders of record of our common stock on the record date
are entitled to one vote per share at the special meeting on the
proposal to adopt the merger agreement and the proposal to
adjourn the special meeting, if necessary, to solicit additional
proxies.
A quorum of stockholders is necessary to hold a valid special
meeting. Under our by-laws, a quorum is present at the special
meeting if a majority of the issued and outstanding shares of
our common stock entitled to vote on the record date are
present, in person or represented by proxy. In the event that a
quorum is not present at the special meeting, it is expected
that the meeting will be adjourned to solicit additional
proxies. For purposes of determining the presence of a quorum,
abstentions will be counted as shares present, however, broker
non-votes (where a broker or nominee does not exercise
discretionary authority to vote on a matter), if any, will not
be counted as shares present.
Vote
Required
The adoption of the merger agreement requires the affirmative
vote of the holders of a majority of the issued and outstanding
shares of our common stock. Adoption of the merger agreement is
a condition to the closing of the merger.
67
Approval of any proposal to adjourn the special meeting, if
necessary, to solicit additional proxies requires the
affirmative vote of a majority of the votes cast on the matter
by holders of Airvana common stock present, in person or
represented by proxy, at the special meeting, provided that a
quorum is present, in person or represented by proxy, at the
special meeting.
Voting by
Airvanas Directors and Executive Officers
As of February 23, 2010, the record date, the directors and
executive officers of Airvana and their affiliates held and are
entitled to vote, in the aggregate, 30,891,637 shares of Airvana
common stock, representing approximately 48.6% of the
outstanding Airvana common stock. The directors and executive
officers have informed Airvana that they currently intend to
vote all of these shares of Airvana common stock FOR
the adoption of the merger agreement and FOR the
adjournment proposal. If our directors and executive officers
and their affiliates vote their shares in favor of adopting the
merger agreement, 48.6% of the outstanding shares of Airvana
common stock as of the record date will have voted for the
proposal to adopt the merger agreement. This means that
additional holders of approximately 1.5% of all shares entitled
to vote at the special meeting would need to vote for the
proposal to adopt the merger agreement in order for it to be
adopted.
Voting
and Revocation of Proxies
If your shares are registered in your name, you may cause your
shares to be voted by returning a signed proxy card by mail or
voting in person at the meeting. Additionally, you may submit a
proxy authorizing the voting of your shares via the Internet at
www.investorvote.com/AIRV or by telephone by calling
1-800-662-7232.
You must have the enclosed proxy card available, and follow the
instructions on the proxy card, in order to submit a proxy via
the Internet or telephone.
If your shares are registered in your name and you plan to
attend the special meeting and wish to vote in person, you will
be given a ballot at the meeting. If your shares are registered
in your name, you are encouraged to submit a proxy even if you
plan to attend the special meeting in person.
Voting instructions are included on your proxy card. All shares
represented by properly executed proxies received in time for
the special meeting will be voted at the special meeting in
accordance with the instructions of the stockholder. Properly
executed proxies that do not contain voting instructions will be
voted FOR the adoption of the merger agreement and
FOR the proposal to adjourn the special meeting, if
necessary, to solicit additional proxies.
If your shares are held in street name through a
broker or other nominee, you may provide voting instructions by
completing and returning the voting form provided by your broker
or nominee or via the Internet or by telephone through your
broker or nominee if such a service is provided. To provide
voting instructions via the Internet or telephone, you should
follow the instructions on the voting form provided by your
broker or nominee. If you plan to attend the special meeting,
you will need a proxy from your broker or nominee in order to be
given a ballot to vote the shares. If you do not return your
brokers or nominees voting form, provide voting
instructions via the Internet or telephone through your broker
or nominee, if possible, or attend the special meeting and vote
in person with a proxy from your broker or nominee, it will have
the same effect as if you voted AGAINST adoption of
the merger agreement.
Revocability
of Proxies
Any proxy you give pursuant to this solicitation may be revoked
by you at any time before it is voted. Proxies may be revoked as
follows:
If you have sent a proxy directly to Airvana
, you may
revoke it by:
|
|
|
|
|
delivering to our corporate secretary at our corporate offices
at 19 Alpha Road, Chelmsford, Massachusetts 01824, or by fax to
the attention of Peter C. Anastos, Secretary, at
978-250-3911,
on or before the business day prior to the special meeting, a
written revocation of the proxy or a later-dated, signed proxy
card;
|
68
|
|
|
|
|
delivering a new, later-dated proxy by telephone or via the
Internet until immediately prior to the special meeting;
|
|
|
|
delivering a written revocation or a later dated, signed proxy
card to us at the special meeting prior to the taking of the
vote on the matters to be considered at the special
meeting; or
|
|
|
|
attending the special meeting and voting in person.
|
If you have instructed a broker or nominee to vote your
shares
, you may revoke your proxy only by following the
directions received from your broker or nominee to change those
instructions.
Revocation of the proxy will not affect any vote previously
taken. Attendance at the special meeting will not in itself
constitute the revocation of a proxy; you must vote in person at
the special meeting to revoke a previously delivered proxy.
Rights of
Stockholders Who Object to the Merger
Stockholders of Airvana are entitled to appraisal rights under
Delaware law in connection with the merger. This means that you
are entitled to have the fair value of your shares
determined by the Delaware Court of Chancery and to receive
payment based on that valuation. The ultimate amount you receive
as a dissenting stockholder in an appraisal proceeding may be
more than, the same as or less than the amount you would have
received under the merger agreement.
To exercise your appraisal rights, you must submit a written
demand for appraisal to Airvana before the vote is taken on the
merger agreement and you must not vote in favor of the adoption
of the merger agreement. Your failure to follow exactly the
procedures specified under Delaware law will result in the loss
of your appraisal rights. See
Appraisal
Rights
beginning on page 90 and the text of the
Delaware appraisal rights statute reproduced in its entirety as
Annex C.
Solicitation
of Proxies
This proxy solicitation is being made and paid for by Airvana on
behalf of its board of directors. In addition, we have retained
Georgeson to assist in the solicitation. We will pay Georgeson
approximately $8,500 plus
out-of-pocket
expenses for their assistance. Our directors, executive officers
and employees may also solicit proxies by personal interview,
mail,
e-mail,
telephone, facsimile or other means of communication. These
persons will not be paid additional remuneration for their
efforts. We will also request brokers and other fiduciaries to
forward proxy solicitation material to the beneficial owners of
shares of Airvana common stock that the brokers and fiduciaries
hold of record. We will reimburse them for their reasonable
out-of-pocket
expenses. In addition, we will indemnify Georgeson against any
losses arising out of that firms proxy soliciting services
on our behalf.
Other
Business
We are not currently aware of any business to be acted upon at
the special meeting other than the matters discussed in this
proxy statement. Under our by-laws, business transacted at the
special meeting is limited to the purposes stated in the notice
of the special meeting, which is provided at the beginning of
this proxy statement. If other matters do properly come before
the special meeting, or at any adjournment or postponement of
the special meeting, we intend that shares of Airvana common
stock represented by properly submitted proxies will be voted in
accordance with the recommendations of our board of directors.
Questions
and Additional Information
If you have more questions about the merger or how to submit
your proxy, or if you need additional copies of this proxy
statement or the enclosed proxy card or voting instructions,
please call our proxy solicitor, Georgeson, toll-free at
888-666-2572
(banks and brokers should contact Georgeson at
212-440-9800),
or contact Airvana in writing at our principal executive offices
at 19 Alpha Road, Chelmsford, Massachusetts 01824, Attention:
Secretary, or by telephone at
978-250-3000.
69
Availability
of Documents
The reports, opinions or appraisals referenced in this proxy
statement and filed as exhibits to the
Schedule 13E-3
filed by the Company concurrently with this proxy statement will
be made available for inspection and copying at the principal
executive offices of the Company during its regular business
hours by any interested holder of Airvana common stock.
THE
MERGER AGREEMENT (PROPOSAL NO. 1)
The description below describes the material provisions of
the merger agreement. The description is qualified in its
entirety by reference to the merger agreement, which is attached
as Annex A and is incorporated herein by reference. You
should read the merger agreement carefully in its entirety, as
it is the legal document governing the transaction.
The merger agreement and the following description are
intended to provide information regarding the terms of the
merger. It is not intended to provide any other factual
information about Airvana, Parent or Merger Sub. Although the
merger agreement contains representations and warranties made by
each of Airvana, Parent or Merger Sub, the assertions embodied
in those representations and warranties were made for purposes
of the merger agreement and the closing conditions under the
merger agreement, were made for the benefit of the other parties
to the merger agreement, were made as of specific dates and have
been used for purposes of allocating risk between the respective
parties, rather than establishing matters of fact. The
representations and warranties are qualified in a number of
important respects, including through the use of negotiated
exceptions for certain matters disclosed by the party that made
the representations and warranties to the other parties.
Although the representations and warranties in the merger
agreement may not constitute the actual state of facts about the
parties to the merger agreement as of a specific date, any
specific material facts of which Airvana is currently aware that
materially qualify the representations and warranties in the
merger agreement have been disclosed in this proxy statement or
in the information contained in Airvanas public reports
filed with the SEC, as applicable. You should read the merger
agreement together with the other information regarding Airvana
included in this proxy statement and the information that
Airvana publicly files in reports and statements with the SEC.
See Where You Can Find More Information beginning on
page 107.
The
Merger
Under the terms of the merger agreement, Merger Sub, a wholly
owned subsidiary of Parent, will merge with and into Airvana,
with Airvana continuing as the surviving corporation of the
merger. As a result of the merger, the separate corporate
existence of Merger Sub will cease, and Airvana will become a
wholly owned subsidiary of Parent. We sometimes refer to Airvana
after the consummation of the merger as the surviving
corporation. The by-laws of Airvana will also be amended and
restated in their entirety so that, as soon as practicable
following the effective time of the merger (as explained below)
they are identical to the by-laws of Merger Sub as in effect
immediately prior to the effective time of the merger, except
that all references to the name of Merger Sub shall be changed
to refer to Airvana. The directors of Merger Sub immediately
prior to the effective time of the merger shall be the directors
of Airvana. The officers of Airvana shall continue in their
respective positions after the merger.
Effective
Time of the Merger Agreement
The closing of the merger will occur no later than the second
business day following the satisfaction or waiver of all of the
closing conditions set forth in the merger agreement or at such
other date as the parties may agree in writing. The merger will
become effective upon the filing of a certificate of merger with
the Delaware Secretary of State (or such later time as may be
agreed in writing by Airvana and Parent and specified in the
certificate of merger). We intend to complete the merger as
promptly as practicable, subject to receipt of stockholder
approval and all requisite regulatory approvals. Although we
expect to complete the merger by the end of April 2010, we
cannot specify when, or assure you that, all conditions to the
merger will be satisfied or waived.
70
Merger
Consideration
At the effective time of the merger, each issued and outstanding
share of Airvana common stock, other than treasury shares, any
shares owned by one of our wholly owned subsidiaries, any shares
held by Parent, Merger Sub or any other wholly owned subsidiary
of Parent, and shares held by stockholders who have demanded and
not effectively withdrawn or lost appraisal rights, will be
cancelled and automatically converted into the right to receive
$7.65 in cash, without interest and less applicable withholding
taxes. The per share merger consideration will be equitably
adjusted in the event of any reclassification, stock split,
reverse split, stock dividend, reorganization, recapitalization
or other like change with respect to Airvana common stock that
occurs prior to the effective time of the merger. Treasury
shares and any shares of our capital stock held by Parent,
Merger Sub or any other wholly owned subsidiary of Parent, will
be automatically cancelled and extinguished without any
conversion of such shares and no consideration will be paid for
such shares. We expect such shares held by Parent to include
certain shares that the Rollover Stockholders have agreed to
contribute to Parent immediately prior to completion of the
merger in exchange for equity interests in Parent. Any shares of
our common stock held by any of our wholly owned subsidiaries
will remain outstanding. Shares held by our stockholders who
perfect their appraisal rights will be converted into the right
to receive such consideration as may be determined by the
Delaware Court of Chancery under Section 262 of the DGCL.
Payment
Procedures
At or prior to the effective time of the merger, Parent will
deposit, or cause to be deposited, cash with an exchange agent
in order to permit the payment of the merger consideration.
Promptly (and in any event within three business days) after the
effective time, the exchange agent will mail to each holder of
record of Airvana common stock that was issued and outstanding
immediately prior to the effective time of the merger a letter
of transmittal and instructions for use in effecting the
surrender of the certificates that represent shares of Airvana
common stock in exchange for the merger consideration. If any of
your certificates representing Airvana common stock have been
lost, stolen or destroyed, you will be entitled to obtain the
merger consideration after you make an affidavit of that fact
and, if required by the exchange agent, in its discretion,
deliver a bond, in such sum as the exchange agent may reasonably
direct, as indemnity against any claim made that may be made
against Parent, the exchange agent and the surviving corporation
with respect to such certificates. In the event of a transfer of
ownership of Airvana common stock which is not registered in the
transfer records of Airvana, the merger consideration may be
paid to a person other than the person in whose name the
certificate so surrendered is registered, if such certificate is
presented to the exchange agent, accompanied by all documents
required to evidence and effect such transfer and by evidence
that any applicable stock transfer taxes have been paid. No
interest will be paid or will accrue on the cash payable upon
the surrender of any certificate.
Parent is entitled to cause the exchange agent to deliver to it
any funds that have not been distributed within one year after
the effective time of the merger. After that date, holders of
certificates who have not complied with the instructions to
exchange their certificates will be entitled to look only to
Parent for payment of the merger consideration.
None of Parent, Merger Sub, Airvana, the surviving corporation,
or the exchange agent will have any liability to holders of
shares of Airvana common stock for any amount delivered to a
public official pursuant to any applicable abandoned property,
escheat or similar law.
You should not send your Airvana stock certificates (if any) to
the exchange agent until you have received transmittal materials
from the exchange agent. Do not return your Airvana stock
certificates (if any) with the enclosed proxy.
Appraisal
Rights
Shares of Airvana common stock issued and outstanding
immediately prior to the effective time of the merger that are
held by any holder who has demanded and not lost appraisal
rights to such shares will not be converted into the right to
receive the merger consideration. Instead such stockholder will
only be entitled to payment of the appraised value of such
shares in accordance with the DGCL. At the effective time of the
71
merger, all such shares will automatically be cancelled and will
cease to exist or be outstanding, and each holder will cease to
have any rights with respect to the shares, except for rights
granted under Section 262 of the DGCL. In the event a
stockholder loses (through failure to perfect or otherwise) the
right to appraisal under the DGCL, then the rights of such
holder will be deemed to have been converted at the effective
time of the merger into the right to receive the merger
consideration described above. We are required to serve prompt
notice to Parent of any demands for appraisal that we receive,
and Parent has the right to participate in all negotiations and
proceedings with respect to demands for appraisal under the
DGCL. We may not, without Parents prior written consent,
make any payment with respect to, or settle or offer to settle,
any demands for appraisal.
These rights in general are discussed more fully under the
section of this proxy statement entitled
Appraisal
Rights
beginning on page 90.
Treatment
of Options
In connection with the merger, each option to purchase shares of
Airvana common stock will be fully vested, to the extent not
already fully vested, and cancelled at the effective time of the
merger and will solely represent the right to receive in
exchange and in consideration of each such option, at the
effective time of the merger or as soon as practicable
thereafter (but in any event not later than three business days
following the effective time of the merger), a cash payment
equal to the product of (i) the number of shares of Airvana
common stock subject to such option immediately prior to the
effective time of the merger, multiplied by (ii) the
excess, if any, of the merger consideration of $7.65 per share
of Airvana common stock over the exercise price per share of
Airvana common stock subject to such option.
Representations
and Warranties
In the merger agreement, we made representations and warranties
to Parent and Merger Sub, including those relating to the
following:
|
|
|
|
|
our corporate organization, standing and power;
|
|
|
|
our capitalization;
|
|
|
|
our subsidiaries;
|
|
|
|
our authorization (including board of directors approval and
direction to submit the merger agreement to a stockholder vote
and recommendation of its approval), execution, delivery,
performance and the enforceability of the merger agreement;
|
|
|
|
the absence of conflicts with, or violations of, our
organizational documents, applicable laws or other obligations
as a result of our execution of the merger agreement or
consummation of the merger and the identification of government
filings and consents required in connection therewith;
|
|
|
|
documents filed by us with the SEC, the accuracy and
completeness of the financial statements and other information
contained in such documents;
|
|
|
|
the absence of undisclosed liabilities;
|
|
|
|
the absence of a Company Material Adverse Effect on
Airvana since December 28, 2008 and the absence of certain
other changes or events involving Airvana since June 28,
2009;
|
|
|
|
our filing of tax returns, payment of taxes and other tax
matters;
|
|
|
|
our lease arrangements;
|
|
|
|
our intellectual property;
|
|
|
|
our material contracts;
|
|
|
|
the absence of pending or threatened litigation involving us;
|
72
|
|
|
|
|
environmental matters with respect to our operations;
|
|
|
|
our employee benefit plans, matters relating to the Employee
Retirement Income Security Act and other matters concerning
employee benefits and employment agreements;
|
|
|
|
our compliance with laws;
|
|
|
|
our possession of and compliance with permits, licenses and
approvals to conduct our business;
|
|
|
|
our employees and other labor matters;
|
|
|
|
our insurance policies;
|
|
|
|
the receipt by the special committee of our board of directors
of an opinion of its financial advisor;
|
|
|
|
that we have taken all action to ensure that the anti-takeover
provisions of the DGCL do not apply to the execution, delivery
or performance of the merger agreement and certain ancillary
agreements entered into, or expected to be entered into, in
connection with the merger agreement or the consummation of the
merger or the transactions contemplated by such ancillary
agreements; and that no other state anti-takeover statute
applies to Airvana as a result of the transactions contemplated
by the merger agreement or certain ancillary agreements,
including the merger;
|
|
|
|
the absence of undisclosed obligations to brokers and investment
bankers; and
|
|
|
|
the absence of any representations or warranties by Parent and
Merger Sub to us other than those contained in the merger
agreement.
|
In the merger agreement, Parent and Merger Sub made
representations and warranties to us, including those relating
to the following:
|
|
|
|
|
their respective organization, standing and power;
|
|
|
|
their respective authorization, execution, delivery, performance
and the enforceability of the merger agreement;
|
|
|
|
the absence of conflicts with, or violations of, their
organizational documents, applicable laws or other obligations
as a result of their execution of the merger agreement or
consummation of the merger and the identification of government
filings and consents required in connection therewith;
|
|
|
|
the accuracy of the material to be provided by Parent and Merger
Sub for inclusion in this proxy statement and the
Schedule 13E-3;
|
|
|
|
the lack of application of the reporting requirements of the
Securities Exchange Act of 1934, as amended, to Parent and
Merger Sub;
|
|
|
|
the lack of any business operations of Merger Sub;
|
|
|
|
the validity and enforceability of the equity commitment letter
from S.A.C. Capital Management, LLC (referred to herein as the
equity commitment letter) and the debt commitment
letter from GSO Capital Partners LP (referred to herein as the
debt commitment letter);
|
|
|
|
the absence of any default under the equity commitment letter
and the debt commitment letter;
|
|
|
|
the absence of contingencies related to the funding of the
financing contemplated by the equity commitment letter and the
debt commitment letter other than as set forth in the equity
commitment letter or the debt commitment letter;
|
|
|
|
payment of fees under the equity commitment letter and the debt
commitment letter;
|
|
|
|
assuming the accuracy of certain representations and warranties,
the sufficiency of the funds contemplated to be provided by the
equity commitment letter and the debt commitment letter,
together with Airvanas cash and cash equivalents, to make
all payments required to be made by Parent, the surviving
corporation and Merger Sub in connection with the merger;
|
73
|
|
|
|
|
the solvency of the surviving corporation immediately following
the merger;
|
|
|
|
the due execution, effectiveness and validity of the guaranty of
the obligations of Parent under the merger agreement issued to
Airvana by S.A.C. Capital Management, LLC;
|
|
|
|
the absence of any contracts related to the merger between
Parent or Merger Sub and our management, directors or
stockholders;
|
|
|
|
the absence of any representations or warranties by Airvana to
Parent and Merger Sub other than those contained in the merger
agreement; and
|
|
|
|
their investigation of us and access to information in
connection with such investigation.
|
Definition
of Company Material Adverse Effect
Several of the representations and warranties made by us in the
merger agreement and certain conditions to performance by Parent
and Merger Sub of their obligations under the merger agreement
are qualified by reference to whether the item in question would
have a Company Material Adverse Effect on us. The
merger agreement provides that a Company Material Adverse
Effect means any effect, change, event, circumstance or
development that is, or would be reasonably likely to be,
individually or in the aggregate, materially adverse to the
business, financial condition or results of operations of
Airvana and our subsidiaries, taken as a whole.
However, none of the following, or any effect, change, event,
circumstance or development arising or resulting from any of the
following shall constitute, or shall be considered in
determining whether there has occurred, or may, would or could
occur, a Company Material Adverse Effect:
|
|
|
|
|
general economic conditions (or changes in such conditions) in
the United States or any other country or region in the world,
or conditions in the global economy generally (except effects,
changes, events, circumstances or developments arising or
resulting from such conditions (or changes in such conditions)
may be considered if, and only to the extent that, they
adversely affect Airvana and our subsidiaries, taken as a whole,
in a materially disproportionate manner relative to other
participants operating in industries and the affected geography
in which Airvana and our subsidiaries operate);
|
|
|
|
conditions (or changes in such conditions) in the securities
markets, credit markets, currency markets or other financial
markets in the United States or any other country or region in
the world, including (i) changes in interest rates in the
United States or any other country or region in the world and
changes in exchange rates for the currencies of any countries
and (ii) any suspension of trading in securities (whether
equity, debt, derivative or hybrid securities) generally on any
securities exchange or
over-the-counter
market operating in the United States or any other country or
region in the world (except effects, changes, events,
circumstances or developments arising or resulting from such
conditions (or changes in such conditions) may be considered if,
and only to the extent that, they adversely affect Airvana and
our subsidiaries, taken as a whole, in a materially
disproportionate manner relative to other participants operating
in industries and the affected geography in which Airvana and
our subsidiaries operate);
|
|
|
|
conditions (or changes in conditions) in the industries or
markets in which Airvana operates (except effects, changes,
events, circumstances or developments arising or resulting from
such conditions (or changes in such conditions) may be
considered if, and only to the extent that, they adversely
affect Airvana and our subsidiaries, taken as a whole, in a
materially disproportionate manner relative to other
participants operating in industries in which Airvana and our
subsidiaries operate);
|
|
|
|
political conditions (or changes in such conditions) in the
United States or any other country or region in the world or
acts of war, sabotage or terrorism (including any escalation or
general worsening of any such acts of war, sabotage or
terrorism) in the United States or any other country or region
in the world occurring after the date of the merger agreement
(except effects, changes, events, circumstances or developments
arising or resulting from such conditions (or changes in such
conditions) may be considered if, and only to the extent that,
they adversely affect Airvana and our subsidiaries, taken as a
|
74
|
|
|
|
|
whole, in a materially disproportionate manner relative to other
participants operating in industries and the affected geography
in which the Airvana and our subsidiaries operate);
|
|
|
|
|
|
earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides,
wild fires or other natural disasters, weather conditions and
other force majeure events in the United States or any other
country or region in the world occurring after the date of the
merger agreement (except effects, changes, events, circumstances
or developments arising or resulting from such conditions may be
considered if, and only to the extent that, they adversely
affect Airvana and our subsidiaries, taken as a whole, in a
materially disproportionate manner relative to other
participants operating in industries and the affected geography
in which Airvana and our subsidiaries operate);
|
|
|
|
the announcement of the merger agreement or the pendency or
consummation of the transactions contemplated thereby, including
the identity of Parent or the termination or potential
termination of (or the failure or potential failure to renew or
enter into) any contracts with customers, suppliers,
distributors or other business partners, to the extent caused by
the pendency or the announcement of the transactions
contemplated by the merger agreement;
|
|
|
|
changes after the date of the merger agreement in law or other
legal or regulatory conditions (or the interpretation thereof)
or changes after the date of the merger agreement in GAAP or
other accounting standards (or the interpretation thereof) or
that result from any action taken for the purpose of complying
with any such changes;
|
|
|
|
any actions taken or failure to take action, in each case, to
which Parent has approved, consented to or requested in writing;
or compliance with the terms of, or the taking of any action
required by, the merger agreement (including actions taken in
order consummate the merger but excluding actions taken in order
to comply with our obligations to operate our business in the
ordinary course of business consistent in all material respects
with past practice and to use our commercially reasonable
efforts to preserve our and each of our subsidiaries
business organization and good standings and assets, rights and
properties and relationships and contracts with customers,
suppliers, distributors, strategic partners and others we do
business with and keep available the services of our officers,
employees and consultants);
|
|
|
|
any fees or expenses incurred in connection with the
transactions contemplated by the merger agreement;
|
|
|
|
changes in our stock price or the trading volume of our stock,
or any failure by us to meet any public estimates or
expectations of our revenue, earnings or other financial
performance or results of operations for any period, or any
failure by us to meet any internal budgets, plans or forecasts
of our revenues, earnings or other financial performance or
results of operations (except that no such change or failure
will prevent or otherwise affect a determination that any
effect, change, event, circumstance or development underlying
such change or failure has resulted in, or contributed to, a
Company Material Adverse Effect); and
|
|
|
|
any legal proceedings made or brought by any of our current or
former stockholders (on their own behalf or on our behalf)
against us arising out of or related to the merger agreement or
the merger.
|
Definition
of Buyer Material Adverse Effect
Certain of the representations and warranties made by Parent and
Merger Sub in the merger agreement and certain conditions to our
performance of our obligations under the merger agreement are
qualified by reference to whether the item in question would
have a Buyer Material Adverse Effect. The merger
agreement provides that a Buyer Material Adverse
Effect means any effect, change, event, circumstance or
development that would, individually or in the aggregate,
prevent or materially delay or materially impair the ability of
Parent or Merger Sub to consummate the transactions contemplated
by the merger agreement.
75
Equity
Financing
Parent and Merger Sub have committed to provide, subject to the
equity commitment letter, the financing contemplated by the
equity commitment letter, including by:
|
|
|
|
|
maintaining in effect the equity commitment letter;
|
|
|
|
ensuring the accuracy of all representations or warranties made
by them in the equity commitment letter;
|
|
|
|
complying with all of their covenants in the equity commitment
letter and timely satisfying all conditions applicable to them
set forth in the equity commitment letter that are within their
control;
|
|
|
|
upon the satisfaction of all applicable conditions, consummating
the financing contemplated by the equity commitment letter at or
prior to the closing; and
|
|
|
|
fully enforcing the obligations of S.A.C. Capital Management,
LLC under the equity commitment letter.
|
Parent and Merger Sub have also agreed not to amend, alter or
waive any term of the equity commitment letter without our
written consent and to notify us promptly if (1) the equity
commitment letter expires or is terminated, (2) the equity
investor refuses to provide the financing contemplated by the
equity commitment letter on the terms set forth therein (or
expresses in writing an intent to do so), or (3) Parent or
Merger Sub no longer believes in good faith that it will be able
to obtain the financing contemplated by the equity commitment
letter on the terms set forth therein.
Debt
Financing
Parent and Merger Sub have agreed to use their reasonable best
efforts to obtain the financing contemplated by the debt
commitment letter on the terms set forth therein or terms not
materially less favorable, in the aggregate, to Parent and
Merger Sub taken as a whole, including with respect to the
conditionality thereof (subject to their right to add lenders,
lead arrangers, bookrunners, syndication agents or similar
entities so long as the terms would not adversely affect their
ability to consummate the merger or the likelihood of
consummation of the merger), including by using their reasonable
best efforts to:
|
|
|
|
|
maintain the debt commitment letter in effect and negotiate a
definitive agreement with respect thereto on the terms set forth
therein or terms not materially less favorable, in the
aggregate, to Parent and Merger Sub, taken as a whole, including
with respect to the conditionality thereof, than those set forth
therein;
|
|
|
|
ensuring the accuracy of all representations or warranties made
by them in the debt commitment letter or any definitive
agreement executed with respect thereto;
|
|
|
|
complying with all of their covenants in the debt commitment
letter or any definitive agreement executed with respect thereto;
|
|
|
|
satisfying on a timely basis all conditions applicable to them
and within their control set forth in the debt commitment letter
or any definitive agreement executed with respect
thereto; and
|
|
|
|
upon the satisfaction of all applicable conditions, consummating
the financing contemplated by the debt commitment letter or any
definitive agreement executed with respect thereto at or prior
to the closing.
|
Assuming the satisfaction of all applicable conditions, Parent
and Merger Sub are obligated to use their reasonable best
efforts to cause their lender to consummate the required debt
financing and enforce their rights under the debt commitment
letter.
Parent has agreed to keep us reasonably informed with respect to
all material activity concerning the status of the financing
contemplated by the debt commitment letter and give us prompt
notice of any material adverse change with respect to such debt
financing, including providing notice within one business day if
(1) the debt commitment letter expires or is terminated,
(2) the lender refuses to provide the financing
76
contemplated by the debt commitment letter on the terms set
forth therein or (3) Parent or Merger Sub no longer
believes in good faith that it will be able to obtain all or any
portion of the financing contemplated by the debt commitment
letter on substantially the terms described therein.
Parent and Merger Sub have agreed that, without our prior
written consent, they will not, and will not permit any of their
affiliates to, take any action or enter into any transaction,
including any merger, acquisition, joint venture, disposition,
lease, contract or debt or equity financing, that could
reasonably be expected to impair, delay or prevent consummation
of the financing contemplated by the debt commitment letter and
will not amend or alter, or agree to amend or alter, the debt
commitment letter in any manner that would materially impair,
delay or prevent the transactions contemplated by the merger
agreement.
If the financing contemplated by the debt commitment letter
becomes unavailable on the terms and conditions contemplated
therein, Parent and Merger Sub will use their reasonable best
efforts to promptly obtain substitute debt financing from
alternative sources in an amount sufficient, together with the
debt and equity financing that is available, to pay all amounts
required to be paid by Parent, Merger Sub or the surviving
corporation in connection with the merger and to obtain a new
financing commitment letter with respect thereto that provides
for such financing on terms not materially less favorable in the
aggregate to Parent and Merger Sub than those set forth in the
debt commitment letter.
Subject to certain limitations, we are obligated to, to cause
our subsidiaries to, and to use our commercially reasonable
efforts to cause our and their respective representatives to,
provide Parent such cooperation as it may reasonably request in
connection with the arrangement of the financing contemplated by
the debt commitment letter, including by:
|
|
|
|
|
assisting in the preparation for, and participating in, a
reasonable number of meetings, presentations, due diligence
sessions and similar presentations to and with rating agencies
and the parties acting as lead arrangers or agents for, and
prospective purchasers and lenders of, the financing
contemplated by the debt commitment letter;
|
|
|
|
assisting with the preparation of materials for rating agency
presentations, offering documents, information memoranda
(including the delivery of one or more customary representation
letters), and similar documents required in connection with the
financing contemplated by the debt commitment letter and equity
commitment letter;
|
|
|
|
executing and delivering any pledge and security documents,
other definitive financing documents, or other certificates,
opinions or documents as may be reasonably requested by Parent
and otherwise reasonably facilitating the pledging of collateral
(including a certificate of the chief financial officer of
Airvana or any of our subsidiaries with respect to solvency
matters);
|
|
|
|
using commercially reasonable efforts to obtain consents of
accountants for use of their reports in any materials relating
to the financing contemplated by the debt commitment letter;
|
|
|
|
furnishing Parent and its financing sources with certain
financial statements and financial data required by the debt
commitment letter;
|
|
|
|
using commercially reasonable efforts to obtain surveys and
title insurance as reasonably requested by Parent in order to
facilitate the financing contemplated by the debt commitment
letter; and
|
|
|
|
taking all corporate actions necessary to permit the
consummation of the financing contemplated by the debt
commitment letter and to permit the proceeds thereof to be made
available to the surviving corporation, including the entering
into of one or more credit agreements or other instruments on
terms satisfactory to Parent in connection with such financing
immediately prior to, and conditioned upon the occurrence of,
the effective time of the merger to the extent our direct
borrowing or debt incurrence is contemplated in the debt
commitment letter.
|
Parent has agreed to promptly, upon our request, reimburse us
for all reasonable and documented
out-of-pocket
costs we and our subsidiaries incur in connection with such
cooperation in the event that the merger is not consummated by
June 15, 2010. Parent has agreed to indemnify and hold
harmless us and our
77
subsidiaries from and against any and all liabilities, losses,
damages, claims, costs, expenses, interest, awards, judgments
and penalties suffered or incurred by us or our subsidiaries in
connection with the arrangement of the financing contemplated by
the debt commitment letter (other than to the extent that such
losses arise from our or our subsidiaries (or their
respective representatives) gross negligence or willful
misconduct) and any information used in connection therewith
(other than information that we or our subsidiaries provide).
Covenants
Relating to the Conduct of Our Business
During the period between the date of the merger agreement and
the effective time of the merger, we have agreed with Parent,
except as expressly provided or permitted by the merger
agreement or the disclosure schedule attached to the merger
agreement or as Parent may otherwise consent in writing (which
will not be unreasonably withheld), that we will, and cause each
of our subsidiaries to:
|
|
|
|
|
act and carry on our and each of our subsidiaries
businesses in the ordinary course of business consistent in all
material respects with past practice; and
|
|
|
|
use, and cause each of our subsidiaries to use, commercially
reasonable efforts to maintain and preserve our and each of our
subsidiaries business organizations and good standings
under applicable law, assets, rights and properties, and
preserve intact business relationships and contracts with
customers, strategic partners, suppliers, distributors and
others having business dealings with us and our subsidiaries,
and keep available the services of our and our
subsidiaries current officers, employees and consultants.
|
In addition, we have agreed with Parent that, except as
expressly provided or permitted in the merger agreement or the
disclosure schedule attached to the merger agreement, we will
not, and will not permit our subsidiaries to, directly or
indirectly, do any of the following without the prior written
consent of Parent (which will not be unreasonably withheld):
|
|
|
|
|
(i) declare, set aside or pay any dividends on, or make any
other distributions (whether in cash, securities or other
property) in respect of, any shares of Airvanas or our
subsidiaries capital stock (other than dividends and
distributions made in the ordinary course of business consistent
in all material respects with past practice by a direct or
indirect wholly owned subsidiary of Airvana to its parent),
(ii) split, combine, subdivide, pledge, modify or
reclassify any shares of Airvanas or our
subsidiaries capital stock or any of Airvanas or our
subsidiaries other securities or rights, or make any
change in the number of shares of Airvanas or our
subsidiaries authorized capital stock, (iii) subject
to customary exceptions, issue, authorize for issuance, sell,
grant or subject to any lien any shares of Airvanas or our
subsidiaries capital stock or any of Airvanas or our
subsidiaries other securities or rights convertible into,
exchangeable or exercisable for or evidencing the right to
subscribe for or purchase shares of Airvanas or our
subsidiaries capital stock or any of Airvanas or our
subsidiaries other securities or ownership interests, or
(iv) subject to customary exceptions, purchase, redeem or
otherwise acquire any shares of Airvanas or our
subsidiaries capital stock or any other of Airvanas
or our subsidiaries securities or any rights, warrants or
options to acquire any such shares or other securities;
|
|
|
|
issue, deliver, sell, grant, pledge or otherwise dispose of or
encumber any shares of Airvanas or our subsidiaries
capital stock, any other voting securities or any securities
convertible into or exchangeable for, or any rights, warrants or
options to acquire, any such shares, voting securities or
convertible or exchangeable securities (other than the issuance
of shares of our common stock upon the exercise of stock options
outstanding on the date of the merger agreement);
|
|
|
|
amend Airvanas or our subsidiaries certificate of
incorporation, by-laws or other comparable charter or
organizational documents;
|
|
|
|
acquire or license (as licensee) (i) by merging or
consolidating with, or by purchasing all or a substantial
portion of the assets or any stock or other equity interest of,
or by any other manner, any business or any corporation,
partnership, joint venture, limited liability company,
association or other business organization or division thereof,
(ii) any assets that are material, in the aggregate, to us
and
|
78
|
|
|
|
|
our subsidiaries, taken as a whole, except purchases of
inventory and raw materials in the ordinary course of business
consistent in all material respects with past practice, or
(iii) any real property material to us and our
subsidiaries, taken as a whole;
|
|
|
|
|
|
enter into any transaction, including any merger, acquisition,
joint venture, disposition, lease, contract or debt or equity
financing that would reasonably be expected to impair, delay or
prevent Parents obtaining the financing contemplated by
the equity commitment letter and the debt commitment letter;
|
|
|
|
enter into any new line of business material to us and our
subsidiaries, taken as a whole;
|
|
|
|
sell, lease, license, pledge, or otherwise dispose of or
encumber any material properties, material rights or material
assets of Airvana or any of our subsidiaries other than in the
ordinary course of business consistent in all material respects
with past practice, so long as the value or purchase price, in
any single instance, for such properties, rights or assets does
not exceed $250,000;
|
|
|
|
adopt or implement any stockholder rights plan;
|
|
|
|
adopt a plan or agreement of complete or partial liquidation or
dissolution, consolidation, restructuring, recapitalization or
other reorganization of Airvana or any of our subsidiaries;
|
|
|
|
amend any term of any outstanding equity security or equity
interest of Airvana or any of our subsidiaries;
|
|
|
|
(i) subject to customary exceptions, incur, assume or
otherwise become liable for any indebtedness for borrowed money
or guarantee or endorse any such indebtedness of another person,
(ii) issue or sell any debt securities or warrants or other
rights to acquire any debt securities of Airvana or any of our
subsidiaries, guarantee any debt securities of another person,
enter into any keep well or other agreement to
maintain any financial statement condition of another person or
enter into any arrangement having the economic effect of any of
the foregoing (provided that Airvana may, in the ordinary course
of business consistent in all material respects with past
practice, invest in debt securities maturing not more than
ninety days after the date of investment), (iii) enter into
or make any loans, advances (other than routine non-material
advances to employees of Airvana and its subsidiaries in the
ordinary course of business consistent in all material respects
with past practice), or capital contributions to, or investment
in, any other person other than Airvana or any of its direct or
indirect subsidiaries, or (iv) other than in the ordinary
course of business consistent in all material respects with past
practice enter into any hedging agreement or other financial
agreement or arrangement designed to protect Airvana or our
subsidiaries against fluctuations in commodities prices or
exchange rates;
|
|
|
|
pay, discharge, settle or compromise any pending or threatened
suit, action or claim which (i) requires payment to or by
Airvana or our subsidiaries (exclusive of attorneys fees)
in excess of $100,000 in any single instance or in excess of
$250,000 in the aggregate, (ii) involves injunctive or
equitable relief or restrictions on the business activities of
Airvana or our subsidiaries, (iii) would involve the
issuance of Airvana securities or (iv) relates to the
transactions contemplated by the merger agreement, except that
Airvana or our subsidiaries may pay, discharge, settle or
compromise any pending or threatened suit, action or claim not
relating to taxes if the amount required to be paid by Airvana
and our subsidiaries pursuant thereto (net of the retention
amount) is covered by insurance;
|
|
|
|
make (i) any expenditures with respect to our femtocell
business during any period beginning on December 1, 2009
and ending on December 31, 2009 or the last day of any
month thereafter, in excess of the cumulative monthly budgeted
expenditures for such period as set forth in the disclosure
schedule attached to the merger agreement or (ii) any
capital expenditures or other expenditures with respect to our
property, plant or equipment in any fiscal quarter in excess of
the aggregate amount for Airvana and our subsidiaries, taken as
a whole, disclosed in the disclosure schedule attached to the
merger agreement;
|
|
|
|
make any material changes in accounting methods, principles or
practices (or change an annual accounting period), except
insofar as is required by a change in GAAP;
|
79
|
|
|
|
|
(i) other than in the ordinary course of business
consistent in all material respects with past practice, modify,
amend, terminate or waive any material rights under any material
contract or enter into any material contract or (ii) enter
into any (x) new contract that contains a change in control
provision in favor of the other party or parties thereto or
would otherwise require a material payment to or give rise to
any material rights to such other party or parties in connection
with the transactions contemplated by the merger agreement or
(y) non-competition or other agreement that prohibits or
otherwise restricts in any material respect, Airvana or any of
our subsidiaries or affiliates from freely engaging in business
anywhere in the world (including any agreement restricting
Airvana or any of our subsidiaries or affiliates from competing
in any line of business or in any geographic area);
|
|
|
|
make or change any material tax election, file any material
amendment to any tax return with respect to any material amount
of taxes, settle or compromise any material tax liability, agree
to any extension or waiver of the statute of limitations with
respect to the assessment or determination of a material amount
of taxes, enter into any material closing agreement with respect
to any tax or take any action to surrender any right to claim a
material tax refund;
|
|
|
|
except as required to comply with applicable law or agreements,
plans or arrangements existing on the date of the merger
agreement, (i) adopt, enter into, terminate or materially
amend any employment, severance or similar agreement or material
benefit plan for the benefit or welfare of any current or former
director, officer or employee or any collective bargaining
agreement (except in the ordinary course of business consistent
in all material respects with past practice and only if such
agreement is terminable on sixty days or less notice
without either a penalty or a termination payment),
(ii) increase in any material respect the compensation or
fringe benefits of, or pay any bonus to, any director, officer
or employee, except for semi-annual increases of salaries for
non-officer employees in the ordinary course of business
consistent in all material respects with past practice, which in
no event shall be greater than 4% per annum, or the payment of
annual bonuses and commissions in the ordinary course of
business consistent in all material respects with past practice
under any Airvana employee benefit plan to non-officer employees
for our 2009 fiscal year, (iii) accelerate the payment,
right to payment or vesting of any material compensation or
benefits, including any outstanding options or restricted stock
awards, other than as contemplated by the merger agreement,
(iv) grant any equity compensation, (v) grant any
severance or termination pay to any present or former director,
officer, employee or consultant of Airvana or our subsidiaries,
other than as required pursuant to the terms of an Airvana
employee benefit plan in effect on the date of the merger
agreement or (vi) take any action other than in the
ordinary course of business consistent in all material respects
with past practice to fund or in any other way secure the
payment of compensation or benefits under any Airvana employee
benefit plan;
|
|
|
|
effectuate or permit a plant closing or mass
layoff, affecting in whole or in part any site of
employment, facility, operating unit or employee of Airvana or
any of our subsidiaries;
|
|
|
|
grant any material refunds, credits, rebates or other allowances
by Airvana or any of our subsidiaries to any end user, customer,
reseller or distributor, in each case, other than in the
ordinary course of business consistent in all material respects
with past practice;
|
|
|
|
open any facility or office greater than 5,000 square
feet; or
|
|
|
|
authorize any of, or commit or agree, in writing or otherwise,
to take any of, the foregoing actions.
|
Conditions
to Closing the Merger
The obligations of Airvana, Parent and Merger Sub to consummate
the merger are subject to the satisfaction or waiver of each of
the following conditions:
|
|
|
|
|
the adoption of the merger agreement by the affirmative vote of
the holders of a majority of the outstanding shares of our
common stock;
|
|
|
|
the expiration or termination of the waiting period applicable
to the merger under the HSR Act;
|
80
|
|
|
|
|
other than the filing of the certificate of merger, all
authorizations, consents, orders or approvals of, or
declarations or filings with, or expirations of waiting periods
imposed by, any governmental entity in connection with the
merger and the consummation of the other transactions
contemplated by the merger agreement, the failure of which to
file, obtain or occur is reasonably likely to have a Buyer
Material Adverse Effect or a Company Material
Adverse Effect, shall have been filed, been obtained or
occurred on terms and conditions which would not reasonably be
likely to have a Buyer Material Adverse Effect or a
Company Material Adverse Effect;
|
|
|
|
no order suspending the use of this proxy statement shall have
been issued and no proceeding for that purpose shall have been
initiated or threatened in writing by the SEC or its
staff; and
|
|
|
|
no governmental entity of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any order,
executive order, stay, decree, judgment or injunction
(preliminary or permanent) or statute, rule or regulation which
is in effect and which has the effect of making the merger
illegal or otherwise prohibiting consummation of the merger or
the other transactions contemplated by the merger agreement,
except that a party may not assert that this condition has not
been satisfied unless such party shall have used its reasonable
best efforts to prevent the enforcement or entry of such order,
executive order, stay, decree, judgment or injunction or
statute, rule or regulation, including taking such action as is
required to comply with certain of its obligations under the
merger agreement.
|
In addition, the obligations of Parent and Merger Sub to
consummate the merger are subject to the satisfaction of each of
the following additional conditions (except that Parent and
Merger Sub may not rely on the failure of any of the following
conditions to the extent such failure results from their failure
to use the standard of efforts to consummate the merger required
from them under the terms of the merger agreement):
|
|
|
|
|
our representation and warranty that there has not been a
Company Material Adverse Effect since
December 28, 2008 must be true and correct in all respects;
certain of our representations and warranties must be true and
correct in all material respects; and certain of our
representations and warranties must be true and correct, except
where the failure to be true and correct has not had, and would
not reasonably be expected to have had, a Company Material
Adverse Effect;
|
|
|
|
we must have performed in all material respects all obligations
required to be performed by us on or prior to the closing date;
|
|
|
|
since the date of the merger agreement, there shall not have
occurred any Company Material Adverse Effect;
|
|
|
|
our Adjusted EBITDA (as defined in
Definition of Adjusted EBITDA
)
for the 12 month period ended at least 30 days prior
to the closing date of the merger shall not be less than
$95 million; and
|
|
|
|
we shall have delivered to the Parent a certificate, dated as of
the closing date of the merger, signed by our chief executive
officer or chief financial officer, certifying to the
satisfaction of the above described conditions.
|
In addition, our obligations to consummate the merger are
subject to the satisfaction of each of the following additional
conditions (except that we may not rely on the failure of any of
the following conditions to the extent such failure results from
our failure to use the standard of efforts to consummate the
merger required from us under the terms of the merger agreement):
|
|
|
|
|
Parent and Merger Subs representations and warranties in
the merger agreement must be true and correct except for changes
contemplated by the merger agreement and where the failure to be
true and correct has not had a Buyer Material Adverse
Effect;
|
|
|
|
Parent and Merger Sub shall have performed in all material
respects all obligations required to be performed by them under
the merger agreement on or prior to the closing date;
|
|
|
|
Parent shall have delivered to us a certificate, dated as of the
closing date of the merger, signed by its chief executive
officer, chief financial officer or other duly authorized
officer, certifying to the satisfaction of the above described
conditions; and
|
81
|
|
|
|
|
Parent shall have delivered to us a solvency certificate
substantially similar in form and substance to the solvency
certificate to be delivered to the lenders pursuant to the debt
commitment letter or any agreements entered into in connection
with the financing contemplated by the debt commitment letter.
|
Definition
of Adjusted EBITDA
For purposes of the closing condition requiring our Adjusted
EBITDA to be not less than $95 million for the twelve
(12) month period ended at least 30 days prior to the
closing date of the merger, which we refer to as the last
twelve month period, a schedule to the merger agreement
defines Adjusted EBITDA for a fiscal month as
earnings (based on billings) for the EV-DO business of Airvana
and our subsidiaries for such fiscal month,
|
|
|
|
|
plus, to the extent deducted in the calculation of earnings
(based on billings) for the EV-DO business of Airvana and our
subsidiaries for such fiscal month:
|
|
|
|
|
|
total interest expense (net of interest income and gains) and
bank and letter of credit fees;
|
|
|
|
provision for taxes based on income or profits, paid or accrued;
|
|
|
|
depreciation and amortization (including amortization of
capitalized software expenditures and amortization of deferred
financing fees or costs), excluding amortization of a prepaid
cash item that was paid in any prior month;
|
|
|
|
non-cash charges or expenses (excluding any non-cash charges or
expenses that represent amortization of a prepaid cash item that
was paid in any prior month), including any impairment charge or
asset write-off or write-down related to intangible assets
(including goodwill) and long-lived assets in accordance with
GAAP;
|
|
|
|
extraordinary losses in accordance with GAAP, not to exceed
$5,000,000 in the aggregate for the last twelve month period;
|
|
|
|
operating expenses directly attributable to the implementation
of cost savings initiatives, non-recurring or unusual charges or
the pro rata annual salary and benefits of terminated employees,
not to exceed $10,000,000 in the aggregate for the last twelve
month period; and
|
|
|
|
tax penalties, fees and interest associated with the
Companys tax position paid or accrued, to the extent
reimbursed or covered by insurance, or such amounts not so
reimbursed or covered not to exceed $5,000,000 in the aggregate
for the last twelve month period, and costs to defend (and
insurance premiums) associated with the Companys tax
position paid or accrued not to exceed $5,000,000 in the
aggregate for the last twelve month period.
|
|
|
|
|
|
less, to the extent added in the calculation of earnings (based
on billings) for the EV-DO business of Airvana and our
subsidiaries for such fiscal month:
|
|
|
|
|
|
extraordinary gains and unusual or non-recurring gains;
|
|
|
|
non-cash gains (excluding any non-cash gain that represents the
reversal of an accrual or reserve for a potential cash item in
any prior month (unless such accrual or reserve was added back
in the calculation of Adjusted EBITDA for any prior
month)); and
|
|
|
|
the aggregate amount of cash payments made during such period in
respect of any non-cash accrual, reserve or other non-cash
charges or expenses accounted for in any prior month which were
added to Adjusted EBITDA in any prior month.
|
The Adjusted EBITDA for the twelve month period ended
January 31, 2010 was approximately $113.6 million.
82
Restrictions
on Solicitation of Other Offers
We have agreed that neither we nor any of our subsidiaries will,
and we will use our reasonable best efforts to cause our and our
subsidiaries respective directors, officers, employees,
investment bankers, attorneys, accountants and other advisors or
representatives not to, directly or indirectly:
|
|
|
|
|
solicit, initiate or knowingly encourage any inquiries or the
making of any proposal or offer that constitutes, or could
reasonably be expected to lead to, any acquisition
proposal; or
|
|
|
|
enter into, continue or otherwise participate in any discussions
or negotiations regarding, or furnish to any person any
non-public information in response to, or otherwise for the
purpose of encouraging or facilitating, any acquisition proposal.
|
However, prior to the adoption of the merger agreement by our
stockholders, we may furnish information with respect to Airvana
to, or engage in discussions or negotiations with, a person who
has made an acquisition proposal only if:
|
|
|
|
|
such acquisition proposal did not result from a breach of our
non-solicitation obligations under the merger agreement;
|
|
|
|
we comply with our obligations under the merger agreement
concerning changes in our board of directors
recommendation to our stockholders in favor of the merger, the
entry into agreements with respect to alternative acquisition
proposals and providing notices to Parent concerning alternative
acquisition proposals; and
|
|
|
|
our board of directors determines in good faith, after
consultation with outside counsel and its financial advisors,
that such acquisition proposal constitutes or is reasonably
likely to lead to a superior proposal.
|
We may furnish such information only pursuant to a
confidentiality agreement not materially less restrictive in any
respect of the person making such acquisition proposal than the
confidentiality agreement we previously entered into with SAC
PCG and are required to promptly make available to Parent any
material non-public information concerning Airvana or our
subsidiaries furnished to any such person that was not
previously delivered to Parent.
We are required to promptly (and in any event within one
business day) advise Parent orally, with written confirmation to
follow (together with a written copy of such acquisition
proposal), of our receipt of any written acquisition proposal
and the material terms and conditions of any such acquisition
proposal (including material amendments or modifications
thereto). We also agreed not to grant any waiver, amendment or
release under any standstill agreement without Parents
prior written consent.
An acquisition proposal means any proposal or offer
for, whether in a single transaction or series of related
transactions, alone or in combination (other than the merger):
|
|
|
|
|
a merger, consolidation, tender offer, recapitalization,
reorganization, share exchange, business combination or similar
transaction involving Airvana (other than any such transaction
involving solely Airvana and one or more of its subsidiaries or
that, if consummated, would not result in any person or group
owning 20% or more of any class or series of capital stock or
voting securities of Airvana);
|
|
|
|
the issuance by Airvana of our equity securities that, if
consummated, would result in any person or group owning 20% or
more of any class or series of capital stock or voting
securities of Airvana;
|
|
|
|
the acquisition in any manner (including by virtue of the
transfer of equity interests in one or more of our subsidiaries)
of, directly or indirectly, 20% or more of the consolidated
total assets or consolidated revenue or consolidated earnings of
Airvana and our subsidiaries, in each case other than the
transactions contemplated by the merger agreement (including any
proposed amendments of the merger agreement proposed by
Parent); or
|
|
|
|
a dissolution or liquidation of Airvana or similar transaction
involving Airvana.
|
83
A superior proposal means any bona fide written
acquisition proposal which was not obtained in violation of our
non-solicitation obligations under the merger agreement (except
that references in the definition of acquisition
proposal to 20% shall be replaced by
50%) on terms which our board of directors
determines in its good faith judgment (after consultation with
its financial advisor and outside legal counsel) to be
(i) more favorable from a financial point of view to the
holders of Airvana common stock (in their capacity as such) than
the merger, taking into account all the terms and conditions of
such proposal and the merger agreement (including any written
proposal by Parent to amend the terms of the merger agreement)
and (ii) reasonably capable of being completed on the terms
proposed, taking into account all financial, regulatory, legal
and other aspects of such proposal.
Restrictions
on Change of Recommendation to Stockholders
Our board of directors has agreed not to: (i) withhold,
withdraw or modify its recommendation to our stockholders in
favor of the merger, (ii) cause or permit us to enter into
any letter of intent, memorandum of understanding, agreement in
principle, acquisition agreement, merger agreement or similar
agreement providing for the consummation of a transaction
contemplated by another acquisition proposal (other than a
confidentiality agreement entered into in compliance with our
non-solicitation obligations) or (iii) adopt, approve or
recommend another acquisition proposal.
However, our board of directors may withhold, withdraw or modify
its recommendation to our stockholders in favor of the merger if
it determines in good faith, after consultation with outside
legal counsel that failure to do so would be inconsistent with
its fiduciary obligations under applicable law. Nonetheless, we
cannot approve or recommend another acquisition proposal unless:
|
|
|
|
|
we have complied in all material respects with our
non-solicitation obligations under the merger agreement;
|
|
|
|
our board of directors, or a subcommittee of the board of
directors, has concluded in good faith (after consultation with
independent financial advisors and outside legal counsel) that
such acquisition proposal would constitute a superior proposal
if no changes were made to the merger agreement;
|
|
|
|
prior to any such approval or recommendation of another
acquisition proposal, we have provided written notice to Parent
that we intend to take such action, describing the identity and
material terms and conditions of the superior proposal that is
the basis of such action, and include with such notice a copy of
the relevant proposed transaction agreements;
|
|
|
|
during the four-business-day period following our delivery of
such notice, we are required to, and are required to cause our
financial and legal advisors to, negotiate with Parent and
Merger Sub in good faith (to the extent Parent and Merger Sub
desire to negotiate) to make such modification or adjustments in
the terms and conditions of the merger agreement so that such
superior proposal ceases to constitute a superior
proposal; and
|
|
|
|
following the end of such four-business-day period (with any
change to the financial terms or any other material terms of
such superior proposal requiring a new notice to Parent but only
a 48-hour period instead of a four-business-day period), our
board of directors determines in good faith, taking into account
any changes to the terms of the merger agreement proposed in
writing by Parent, that the superior proposal continues to
constitute a superior proposal.
|
Furthermore, we are required to provide written notice to Parent
at least four business days in advance of our board of
directors intention to withhold, withdraw or modify its
recommendation to our stockholders in favor of the merger for
any reason other than a superior proposal and during such four
business day period following the delivery of such notice, we
are required to, and are required to cause our financial and
legal advisors to, negotiate with Parent and Merger Sub in good
faith (to the extent Parent and Merger Sub desire to negotiate)
to make such modification or adjustments in the terms and
conditions of the merger agreement such that our board of
directors, after consultation with outside legal counsel, does
not continue to believe that the failure to withhold, withdraw
or modify such recommendation would be inconsistent with its
fiduciary obligations under applicable law.
84
Termination
Airvana, Parent and Merger Sub may agree to terminate the merger
agreement at any time prior to the effective time of the merger,
even after our stockholders have adopted the merger agreement at
the special meeting.
In addition, we and Parent each have separate rights to
terminate the merger agreement without the agreement of the
other party if, among other things:
|
|
|
|
|
the merger has not been consummated by June 15, 2010,
except that this termination right will not be available to any
party whose failure to fulfill any obligation under the merger
agreement has been a principal cause of or resulted in the
failure of the merger to occur on or before such date;
|
|
|
|
a governmental entity of competent jurisdiction has issued a
nonappealable final order, decree or ruling or taken any other
nonappealable final action, in each case having the effect of
permanently restraining, enjoining or otherwise prohibiting the
merger, except that this termination right will not be available
to any party whose failure to fulfill any obligation under the
merger agreement has been a principal cause of or resulted in
such order, decree, ruling or other action; or
|
|
|
|
our stockholders do not vote to adopt the merger agreement at
the special meeting.
|
Parent may also terminate the merger agreement if:
|
|
|
|
|
our board of directors fails to recommend the approval of the
merger in the proxy statement distributed to the Companys
stockholders or withholds, withdraws, amends or modifies its
recommendation of the merger to our stockholders in a manner
adverse to Parent;
|
|
|
|
our board of directors adopts, approves, endorses or recommends
to our stockholders another acquisition proposal;
|
|
|
|
a tender offer or exchange offer for our outstanding common
stock is commenced and our board of directors recommends that
our stockholders tender their shares in such tender or exchange
offer or, within ten business days after the public announcement
of such tender or exchange offer or, if earlier, prior to date
of the special meeting, our board of directors fails to
recommend that our stockholders reject such offer and reaffirm
its recommendation that our stockholders adopt the merger
agreement;
|
|
|
|
we enter into an agreement concerning another acquisition
proposal;
|
|
|
|
we or our board of directors publicly announces its intention to
do any of the foregoing; or
|
|
|
|
we breach or fail to perform any of our representations,
warranties, covenants or agreements in the merger agreement and
such breach or failure to perform would cause certain conditions
to the obligations of Parent and Merger Sub to consummate the
closing not to be satisfied and such breach or failure to
perform is not timely cured or is not capable of being cured,
except that Parent does not have the right to terminate the
merger agreement if it or Merger Sub is then in material breach
of any of its representations, warranties, covenants or
agreements and such breach would cause certain conditions to our
obligation to consummate the closing not to be satisfied.
|
Additionally, we may terminate the merger agreement if:
|
|
|
|
|
our board of directors pursuant to and in compliance our
non-solicitation obligations under the merger agreement, adopts,
approves, endorses or recommends to our stockholders another
acquisition proposal (or publicly proposes to do so) and prior
to or simultaneously with such termination we pay to Parent in
cash a $15 million termination fee;
|
|
|
|
Parent or Merger Sub breach or fail to perform any of their
representations, warranties, covenants or agreements in the
merger agreement and such breach or failure to perform would
cause certain conditions to our obligation to consummate the
closing not to be satisfied and such breach or failure to
perform is not timely cured or is not capable of being cured,
except that the we do not have the right to terminate the merger
agreement if we are then in material breach of any of our
representations,
|
85
|
|
|
|
|
warranties, covenants or agreements and such breach would cause
certain conditions to the obligations of Parent and Merger Sub
to consummate the closing not to be satisfied; or
|
|
|
|
|
|
all of the conditions to the obligations of Parent and Merger
Sub to consummate the merger have been satisfied (other than
those conditions that by their nature are to be satisfied by
actions taken at the closing) and we have indicated in writing
that we are ready and willing to consummate the merger (subject
to the satisfaction of all of the conditions to our obligation
to consummate the merger), and Parent and Merger Sub fail to
consummate the merger within ten business days following the
date the closing should have otherwise occurred.
|
Termination does not relieve any party of liability for any
willful breach of the merger agreement.
Termination
Fees
Except as provided below, under the merger agreement, each of
the parties will bear all fees and expenses it incurs in
connection with the merger and the merger agreement.
Payable
by Airvana
We must pay to Parent a termination fee of $15 million if:
|
|
|
|
|
our board of directors pursuant to and in compliance our
non-solicitation obligations under the merger agreement, adopts,
approves, endorses or recommends to our stockholders another
acquisition proposal (or publicly proposes to do so) and we
terminate the merger agreement pursuant to its terms;
|
|
|
|
our board of directors fails to recommend the approval of the
merger in the proxy statement distributed to the Companys
stockholders or withholds, withdraws, amends or modifies its
recommendation of the merger to our stockholders in a manner
adverse to Parent and Parent terminates the merger agreement
pursuant to its terms;
|
|
|
|
our board of directors adopts, approves, endorses or recommends
to our stockholders an acquisition proposal and Parent
terminates the merger agreement pursuant to its terms;
|
|
|
|
a tender offer or exchange offer for our outstanding common
stock is commenced and our board of directors recommends that
our stockholders tender their shares in such tender or exchange
offer or, within ten business days after the public announcement
of such tender or exchange offer or, if earlier, prior to date
of the special meeting, fails to recommend that our stockholders
reject such offer and reaffirm its recommendation that our
stockholders adopt the merger agreement and Parent terminates
the merger agreement pursuant to its terms;
|
|
|
|
we enter into an agreement concerning another acquisition
proposal and Parent terminates the merger agreement pursuant to
its terms;
|
|
|
|
Airvana or our board of directors publicly announces its
intention to do any of the foregoing and Parent terminates the
merger agreement pursuant to its terms; or
|
|
|
|
we breach our non-solicitation obligations under the merger
agreement or our obligations to timely call and hold the special
meeting and Parent terminates the merger agreement pursuant to
its terms.
|
We must also pay to Parent the termination fee of
$15 million if:
|
|
|
|
|
the merger agreement is terminated (A) by Parent or
Airvana, because the merger is not consummated by June 15,
2010, (B) by Parent or Airvana, if our stockholders
approval to adopt the merger agreement is not obtained at the
special meeting or (C) by Parent because we breach or fail
to perform any of our representations, warranties, covenants or
agreements in the merger agreement (other than our
non-solicitation obligations or our obligations to timely call
and hold the special meeting) and such breach or failure to
perform would cause certain conditions to the obligations of
Parent and Merger Sub to consummate the closing not to be
satisfied and such breach or failure to perform is not timely
cured or is not capable of being cured, except that the Parent
does not have the right to terminate the merger
|
86
|
|
|
|
|
agreement if it or Merger Sub is then in material breach of any
of its representations, warranties, covenants or agreements and
such breach would cause certain conditions to our obligation to
consummate the closing not to be satisfied;
|
|
|
|
|
|
an acquisition proposal (provided that references to 20% are
deemed to refer to 50% in the definition of such term) is
communicated to us or a member of our board of directors and not
withdrawn prior to termination of the merger agreement; and
|
|
|
|
within twelve months after termination, we enter into an
agreement regarding or consummate any acquisition proposal
(whether or not such acquisition proposal was the same
acquisition proposal communicated to us or a member of our board
of directors prior to termination of the merger agreement).
|
Payable
by Parent
Parent must pay to us a reverse termination fee of
$25 million if we terminate the merger agreement pursuant
to its terms because:
|
|
|
|
|
Parent or Merger Sub breach or fail to perform any of their
representations, warranties, covenants or agreements in the
merger agreement and such breach or failure to perform would
cause certain conditions to our obligation to consummate the
closing not to be satisfied and such breach or failure to
perform is not timely cured or is not capable of being cured,
except that the we do not have the right to terminate the merger
agreement if we are then in material breach of any of our
representations, warranties, covenants or agreements and such
breach would cause certain conditions to the obligations of
Parent and Merger Sub to consummate the closing not to be
satisfied; or
|
|
|
|
all of the conditions to the obligations of Parent and Merger
Sub to consummate the merger have been satisfied (other than
those conditions that by their nature are to be satisfied by
actions taken at the closing) and we have indicated in writing
that we are ready and willing to consummate the merger (subject
to the satisfaction of all of the conditions to our obligation
to consummate the merger), and Parent and Merger Sub fail to
consummate the merger within ten (10) business days
following the date the closing should have otherwise occurred.
|
Expense
Reimbursement
If we have not paid the $15 million termination fee to
Parent, we must pay to Parent up to $3 million as
reimbursement for expenses incurred in relation to the
transactions contemplated by the merger agreement, if the merger
agreement is terminated:
|
|
|
|
|
by Parent or us because our stockholders do not vote to adopt
the merger agreement at the special meeting; or
|
|
|
|
by Parent because we breach or fail to perform any of our
representations, warranties, covenants or agreements in the
merger agreement (other than our non-solicitation obligations or
our obligations to timely call and hold the special meeting) and
such breach or failure to perform would cause certain conditions
to the obligations of Parent and Merger Sub to consummate the
closing not to be satisfied and such breach or failure to
perform is not timely cured or is not capable of being cured
(except that the Parent does not have the right to terminate the
merger agreement if it or Merger Sub is then in material breach
of any of its representations, warranties, covenants or
agreements and such breach would cause certain conditions to our
obligation to consummate the closing not to be satisfied).
|
If we owe the $15 million termination fee to Parent, we are
entitled credit against such termination fee for any expense
reimbursement we have paid to Parent.
Limitation
on Remedies and Liability Cap
Each of Parent and Merger Sub is entitled to an injunction to
prevent breaches of the merger agreement by us and to enforce
specifically the terms of the merger agreement against us, in
addition to any other
87
remedy to which it may be entitled at law or in equity. However,
we are not entitled to an injunction to prevent breaches of the
merger agreement by Parent or Merger Sub or to enforce
specifically the terms of the merger agreement against either of
them.
Parents liability relating to the merger agreement is
limited to the $25 million reverse termination fee plus
interest (at the prime rate) and reimbursement of reasonable
costs and expenses we may incur in enforcing our right to
payment of such reverse termination fee. Our liability relating
to the merger agreement is limited to the $15 million
termination fee plus interest (at the prime rate) and
reimbursement of reasonable costs and expenses Parent may incur
in enforcing its right to payment of such termination fee.
However, such liability limitation will in no way limit the
rights of each of Parent and Merger Sub to an injunction to
prevent breaches of the merger agreement by us and to enforce
specifically the terms of the merger agreement against us.
Further
Actions and Agreements
Company Stockholders Meeting.
We have
agreed to call and hold a stockholders meeting as promptly
as practicable after the execution of the merger agreement for
the purpose of voting upon the adoption of the merger agreement.
We have agreed to take all reasonable and lawful action to
solicit from our stockholders proxies, and to take all other
action necessary or advisable to secure the vote of our
stockholders, in favor of the adoption of the merger agreement.
Access to Information.
We have agreed to
afford Parent and its representatives with reasonable access to
our properties, books, personnel, records and other information
as Parent may reasonably request prior to the closing of the
merger.
Directors and Officers Indemnification and
Insurance.
For a period of six years following
the effective time of the merger, the surviving corporation
shall indemnify and hold harmless directors and officers of
Airvana or any of our subsidiaries, against all claims, losses,
liabilities, damages, judgments, fines and reasonable fees,
costs and expenses, including attorneys fees and
disbursements, incurred in connection with any claim, action,
suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of or pertaining to
the fact that such officer or director is or was an officer or
director of Airvana or any of our subsidiaries, whether asserted
or claimed prior to, at or after the effective time of the
merger agreement, to the fullest extent permitted under the DGCL
for officers and directors of Delaware corporations. Each such
person will also be entitled advancement of expenses incurred in
defending such claims, subject to such persons execution
of an undertaking to repay any expenses so advanced if it is
ultimately determined that such person is not entitled to
indemnification from the surviving corporation with respect to
such claim. The surviving corporation has an obligation to
maintain our directors and officers liability
insurance or substitute policies of at least the same coverage
(including a tail policy) after the effective time
of the merger for a period of six years;
provided
that
Parent shall not be required to pay premiums for such insurance
in excess of 300% of the current annual premiums paid by us for
such insurance. With Parents consent (not to be
unreasonably withheld), we may purchase a six-year prepaid
tail policy on terms and conditions providing
substantially equivalent benefits as the policies of
directors and officers liability insurance we
currently maintain with respect to matters arising at or before
the effective time of the merger.
Further Action, Consents and Filings.
The
merger agreement obligates Parent and us to use reasonable best
efforts to (i) take, or cause to be taken, all action and
do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the merger,
(ii) obtain from governmental entities or third parties any
consents, licenses, permits, waivers, approvals, authorizations
or orders required to be obtained or made by Parent or us or any
respective subsidiaries in connection with the consummation of
the merger, (iii) make all necessary filings, and
thereafter make any other submissions, with respect to the
merger agreement, the merger and the other transactions
contemplated by the merger agreement that are required under
securities, antitrust or other applicable laws and
(iv) execute and deliver any additional instruments
necessary to consummate the merger.
88
Public Announcements.
We and Parent have
agreed to use commercially reasonable efforts to consult with
the other before issuing any press release or otherwise making
any public statements with respect to the merger agreement or
the merger.
Sale of Investments.
We have agree to use all
commercially reasonable efforts to take all actions reasonably
requested by Parent to liquidate and convert to cash available
at the effective time of the merger to pay the merger
consideration all of our unrestricted cash, cash equivalents and
marketable securities. Parent has agreed to reimburse us for all
reasonable and documented
out-of-pocket
costs incurred by us or our subsidiaries in complying with such
requirement if the merger agreement is terminated under certain
circumstances.
Internal Reorganization.
We have agreed to
initiate an internal reorganization with respect to our
femtocell business and to reasonably cooperate with Parent to
effectuate such internal reorganization as promptly as
practicable following the closing. Parent has agreed to
reimburse us for all reasonable and documented
out-of-pocket
costs incurred by us or our subsidiaries in complying with such
requirement if the merger agreement is terminated without the
merger occurring.
Employee
Benefits
Parent has agreed to continue to provide our employees with full
credit for prior service with us for purposes of eligibility,
vesting and other determinations under Parent benefit plans in
which our employees may become eligible to participate, except
where such credit would result in a duplication of benefits. In
addition, Parent has generally agreed to waive pre-existing
condition limits to the extent such limits are waived under the
Parent benefit plans, and to recognize deductible and
out-of-pocket
expenses paid by our employees during the calendar year in which
the merger closes.
Amendment
and Waiver
Amendment.
The merger agreement may be amended
by the parties to the merger agreement by action taken by or on
behalf of our or their respective boards of directors at any
time prior to the effective time. However, after adoption by our
stockholders of the merger agreement is obtained, no amendment
will be made which would require further approval by our
stockholders unless so approved by our stockholders.
Waiver.
At any time prior to the effective
time, any party to the merger agreement may (a) extend the
time for the performance of any obligation or other act of any
other party to the merger agreement, (b) waive any
inaccuracy in the representations and warranties contained in
the merger agreement or in any document delivered pursuant to
the merger agreement and (c) waive compliance with any
agreement or condition contained in the merger agreement. Any
such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound
thereby.
89
APPRAISAL
RIGHTS
If you do not vote for the adoption of the merger agreement at
the special meeting and otherwise comply with the applicable
statutory procedures of Section 262 of the General
Corporation Law of the State of Delaware, or the DGCL,
summarized herein, you may be entitled to appraisal rights under
Section 262 of the DGCL. In order to exercise and perfect
appraisal rights, a record holder of our common stock must
follow the steps summarized below properly and in a timely
manner.
Section 262 of the DGCL is reprinted in its entirety as
Annex C to this proxy statement. Set forth below is a
summary description of Section 262 of the DGCL. The
following summary describes the material aspects of
Section 262 of the DGCL, and the law relating to appraisal
rights and is qualified in its entirety by reference to
Annex C. All references in Section 262 and this
summary to stockholder are to the record holder of
the shares of our common stock immediately prior to the
effective time of the merger as to which appraisal rights are
asserted. Failure to comply strictly with the procedures set
forth in Section 262 of the DGCL will result in the loss of
appraisal rights.
Under the DGCL, holders of our common stock who follow the
procedures set forth in Section 262 of the DGCL will be
entitled to have their shares appraised by the Delaware Court of
Chancery, or the Delaware Court, and to receive payment in cash
of the fair value of those shares, exclusive of any
element of value arising from the accomplishment or expectation
of the merger.
Under Section 262 of the DGCL, where a merger agreement
relating to a proposed merger is to be submitted for adoption at
a meeting of stockholders, as in the case of the special
meeting, the corporation, not less than 20 days prior to
such meeting, must notify each of its stockholders who was a
stockholder on the record date for notice of such meeting with
respect to such shares for which appraisal rights are available,
that appraisal rights are so available, and must include in each
such notice a copy of Section 262 of the DGCL. This proxy
statement constitutes such notice to the holders of our common
stock and Section 262 of the DGCL is attached to this proxy
statement as Annex C. Any stockholder who wishes to
exercise such appraisal rights or who wishes to preserve his,
her or its right to do so should review the following discussion
and Annex C carefully, because failure to timely and
properly comply with the procedures specified will result in the
loss of appraisal rights under the DGCL.
If you wish to exercise appraisal rights you must not vote for
the adoption of the merger agreement and must deliver to
Airvana, before the vote on the proposal to adopt the merger
agreement, a written demand for appraisal of your shares of our
common stock. If you sign and return a proxy card by mail or
vote by submitting a proxy by telephone or through the Internet,
without abstaining or expressly directing that your shares of
our common stock be voted against the adoption of the merger
agreement, you will effectively waive your appraisal rights
because such shares represented by the proxy will be voted for
the adoption of the merger agreement. Accordingly, if you desire
to exercise and perfect appraisal rights with respect to any of
your shares of common stock, you must either (i) refrain
from executing and returning the enclosed proxy card by mail and
from voting in person, or by submitting a proxy by telephone or
through the Internet, in favor of the proposal to adopt the
merger agreement or (ii) vote against or abstain from
voting for the adoption of the merger agreement by checking
either the against or the abstain box
next to the proposal on such card and returning such card by
mail or by voting in person against the adoption of the merger
agreement or by submitting a proxy by telephone or through the
Internet, against the proposal or registering in person an
abstention with respect thereto. A vote or proxy against the
adoption of the merger agreement will not, in and of itself,
constitute a demand for appraisal.
A demand for appraisal will be sufficient if it reasonably
informs Airvana of the identity of the stockholder and that such
stockholder intends thereby to demand appraisal of such
stockholders shares of common stock. This written demand
for appraisal must be separate from any proxy or vote abstaining
from or voting against the adoption of the merger agreement. If
you wish to exercise your appraisal rights you must be the
record holder of such shares of our common stock on the date the
written demand for appraisal is made and you must continue to
hold such shares through the effective time of the merger.
Accordingly, a stockholder who is the record holder of shares of
common stock on the date the written demand for appraisal is
made, but
90
who thereafter transfers such shares prior to the effective time
of the merger, will lose any right to appraisal in respect of
such shares.
Only a holder of record of shares of our common stock is
entitled to assert appraisal rights for such shares of our
common stock registered in that holders name. A demand for
appraisal should be executed by or on behalf of the holder of
record, fully and correctly, as the holders name appears
on the stock certificates and must state that such person
intends thereby to demand appraisal of his, her or its shares.
If the shares are owned of record in a fiduciary capacity, such
as by a trustee, guardian or custodian, execution of the demand
for appraisal should be made in that capacity, and if the shares
are owned of record by more than one person, as in a joint
tenancy or tenancy in common, the demand should be executed by
or on behalf of all joint owners. An authorized agent, including
one for two or more joint owners, may execute the demand for
appraisal on behalf of a holder of record; however, the agent
must identify the record owner or owners and expressly disclose
the fact that, in executing the demand, he or she is acting as
agent for such owner or owners.
A record holder such as a broker who holds shares as nominee for
several beneficial owners may exercise appraisal rights with
respect to the shares of our common stock held for one or more
beneficial owners while not exercising such rights with respect
to the shares held for other beneficial owners; in such case,
the written demand should set forth the number of shares as to
which appraisal is sought. Where the number of shares of our
common stock is not expressly stated, the demand will be
presumed to cover all shares held in the name of the record
owner. If you hold your shares in brokerage accounts or other
nominee forms and wish to exercise your appraisal rights, you
are urged to consult with your broker to determine the
appropriate procedures for the making of a demand for appraisal.
All written demands for appraisal of shares must be mailed or
delivered to: Airvana, Inc., 19 Alpha Road, Chelmsford,
Massachusetts 01824, Attention: Secretary, or should be
delivered to the Secretary at the special meeting, prior to the
vote on the adoption of the merger agreement.
Within ten days after the effective time of the merger, we will
notify each stockholder who properly asserted appraisal rights
under Section 262 and has not voted for the adoption of the
merger agreement of the effective time of the merger. Within
120 days after the effective time of the merger, but not
thereafter, we or any stockholder who has complied with the
statutory requirements summarized above may commence an
appraisal proceeding by filing a petition in the Delaware Court
demanding a determination of the fair value of the shares held
by such stockholder. If no such petition is filed, appraisal
rights will be lost for all stockholders who had previously
demanded appraisal of their shares. We are not under any
obligation, and we have no present intention, to file a petition
with respect to appraisal of the value of the shares.
Accordingly, if you wish to exercise your appraisal rights, you
should regard it as your obligation to take all steps necessary
to perfect your appraisal rights in the manner prescribed in
Section 262 of the DGCL.
Within 120 days after the effective time of the merger, any
stockholder who has complied with the provisions of
Section 262 of the DGCL will be entitled, upon written
request, to receive from us a statement setting forth the
aggregate number of shares of our common stock not voted in
favor of adoption of the merger agreement and with respect to
which demands for appraisal were received by us, and the number
of holders of such shares. Such statement must be mailed within
ten days after the written request therefor has been received by
us or within ten days after expiration of the period for
delivery of appraisal demands, whichever is later. A person who
is the beneficial owner of shares of such stock held either in a
voting trust or by a nominee on behalf of such person may, in
such persons own name, file an appraisal petition or
request from us the statement described in this paragraph.
If a petition for an appraisal is timely filed and a copy
thereof served upon us, we will then be obligated, within
20 days, to file with the Delaware Register in Chancery a
duly verified list containing the names and addresses of the
stockholders who have demanded appraisal of their shares and
with whom agreements as to the value of their shares have not
been reached. After notice to the stockholders as required by
the Delaware Court, the Delaware Court is empowered to conduct a
hearing on such petition to determine those stockholders who
have complied with Section 262 and who have become entitled
to appraisal rights thereunder. The Delaware Court may require
the stockholders who demanded appraisal rights of our shares of
common stock
91
to submit their stock certificates to the Register in Chancery
for notation thereon of the pendency of the appraisal
proceeding; and if any stockholder fails to comply with such
direction, the Delaware Court may dismiss the proceedings as to
such stockholder.
After the Delaware Court determines which stockholders are
entitled to appraisal, the appraisal proceeding shall be
conducted in accordance with the rules of the Delaware Court,
including any rules specifically governing appraisal
proceedings. Through such proceeding the Delaware Court shall
determine the fair value of the shares exclusive of any element
of value arising from the accomplishment or expectation of the
merger, together with interest, if any, to be paid upon the
amount determined to be the fair value. In determining such fair
value, the Delaware Court shall take into account all relevant
factors. Unless the Delaware Court in its discretion determines
otherwise for good cause shown, interest from the effective date
of the merger through the date of payment of the judgment shall
be compounded quarterly and shall accrue at 5% over the Federal
Reserve discount rate (including any surcharge) as established
from time to time during the period between the effective date
of the merger and the date of payment of the judgment. If you
are considering seeking appraisal, you should be aware that the
fair value of your shares as determined under Section 262
of the DGCL could be more than, the same as or less than the
consideration you are entitled to receive pursuant to the merger
agreement if you did not seek appraisal of your shares and that
investment banking opinions as to the fairness from a financial
point of view of the consideration payable in a merger are not
necessarily opinions as to fair value under Section 262 of
the DGCL. In determining fair value of shares, the
Delaware Court will take into account all relevant factors. In
Weinberger v. UOP, Inc., the Delaware Supreme Court has
stated that such factors include market value, asset
value, dividends, earnings prospects, the nature of the
enterprise and any other facts which were known or which could
be ascertained as of the date of the merger which throw any
light on future prospects of the merged corporation. In
Weinberger, the Delaware Supreme Court stated, among other
things, that proof of value by any techniques or methods
generally considered acceptable in the financial community and
otherwise admissible in court should be considered in an
appraisal proceeding. In addition, the Delaware Court has
decided that the statutory appraisal remedy, depending on
factual circumstances, may or may not be a dissenters
exclusive remedy.
The Delaware Court will direct the payment of the fair value of
the shares of our common stock who have perfected appraisal
rights, together with interest, if any, by the surviving
corporation to the stockholders entitled thereto. The Delaware
Court will determine the amount of interest, if any, to be paid
on the amounts to be received by persons whose shares of our
common stock have been appraised. The costs of the action (which
do not include attorneys or expert fees or expenses) may
be determined by the Delaware Court and taxed upon the parties
as the Delaware Court deems equitable. The Delaware Court may
also order that all or a portion of the expenses incurred by any
stockholder in connection with an appraisal, including, without
limitation, reasonable attorneys fees and the fees and
expenses of experts utilized in the appraisal proceeding, be
charged
pro rata
against the value of all of the shares
entitled to appraisal. In the absence of such determination or
assessment, each party bears its own expenses.
Any stockholder who has duly demanded and perfected an appraisal
in compliance with Section 262 of the DGCL will not, after
the effective time of the merger, be entitled to vote his or her
shares for any purpose or be entitled to the payment of
dividends or other distributions thereon, except dividends or
other distributions payable to holders of record of shares of
our common stock as of a date prior to the effective time of the
merger.
At any time within 60 days after the effective time of the
merger, any stockholder will have the right to withdraw his, her
or its demand for appraisal and to accept the cash payment for
his, her or its shares pursuant to the merger agreement. After
this period, a stockholder may withdraw his, her or its demand
for appraisal only with our written consent. If no petition for
appraisal is filed with the Delaware Court within 120 days
after the effective time of the merger, a stockholders
right to appraisal will cease and he, she or it will be entitled
to receive the cash payment for his, her or its shares pursuant
to the merger agreement, as if he, she or it had not demanded
appraisal of his, her or its shares. No petition timely filed in
the Delaware Court demanding appraisal will be dismissed as to
any stockholder without the approval of the Delaware Court, and
such approval may be conditioned on such terms as the Delaware
Court deems just; provided, however, that any stockholder who
has not commenced an appraisal proceeding or joined that
proceeding as a named party
92
may withdraw his, her or its demand for appraisal and accept the
merger consideration offered pursuant to the merger agreement
within 60 days after the effective date of the merger.
If you properly demand appraisal of your shares of our common
stock under Section 262 and you fail to perfect, or
effectively withdraw or lose, your right to appraisal, as
provided in the DGCL, your shares will be converted into the
right to receive the consideration receivable with respect to
such shares in accordance with the merger agreement. You will
fail to perfect, or effectively lose or withdraw, your right to
appraisal if, among other things, no petition for appraisal is
filed within 120 days after the effective time of the
merger, or if you deliver to us a written withdrawal of your
demand for appraisal. Any such attempt to withdraw an appraisal
demand more than 60 days after the effective time of the
merger will require our written approval.
If you desire to exercise your appraisal rights, you must not
vote for the adoption of the merger agreement and must strictly
comply with the procedures set forth in Section 262 of the
DGCL.
Failure to take any required step in connection with the
exercise of appraisal rights will result in the termination or
waiver of such rights.
In view of the complexity of Section 262 of the DGCL,
stockholders who may wish to dissent from the merger and pursue
appraisal rights should consult their legal advisors.
IMPORTANT
INFORMATION ABOUT AIRVANA
Airvana is a Delaware corporation and is headquartered in
Chelmsford, Massachusetts, with offices worldwide. Airvana helps
operators transform the mobile experience for users worldwide.
Airvanas high-performance technology and products, from
comprehensive femtocell solutions to core mobile network
infrastructure, enable operators to deliver compelling and
consistent broadband services to mobile subscribers, wherever
they are. Airvanas products are deployed in over 70
commercial networks on six continents.
For more information about Airvana, please visit our website at
www.airvana.com. Airvanas website is provided as an
inactive textual reference only. Information contained on our
website is not incorporated by reference into, and does not
constitute any part of, this proxy statement. Airvana is
publicly traded on the NASDAQ under the symbol AIRV.
Directors
and Executive Officers of Airvana
Set forth below for each of the directors and executive officers
of Airvana is his respective present principal occupation or
employment, the name and principal business of the corporation
or other organization in which such occupation or employment is
conducted and the five-year employment history of each such
director and executive officer. Except as otherwise noted, each
person identified below is a citizen of the United States of
America and can be reached
c/o Airvana,
Inc., 19 Alpha Road, Chelmsford, MA 01824.
During the last five years, none of Airvana, our directors or
our executive officers has been (a) convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors) or (b) a party to any judicial or
administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a
judgment or decree or final order enjoining the person from
future violations of, or prohibiting activities subject to,
federal or state securities laws, or a finding of any violation
of federal or state securities laws.
93
|
|
|
|
|
|
|
|
|
Age
|
|
|
|
Directors:
|
|
|
|
|
|
|
Hassan Ahmed
|
|
|
52
|
|
|
Dr. Ahmed has served as a member of our board of directors
since January 2004. Dr. Ahmed served as Chief Executive
Officer and a member of the board of directors of Sonus
Networks, Inc., a provider of voice-over-IP infrastructure
solutions, from November 1998 to December 2008, and Chairman of
Sonus Networks board of directors from April 2004 to
December 2008. He was also President of Sonus Networks from
November 1998 to April 2004. Dr. Ahmed is a citizen of
Canada.
|
Robert P. Badavas
|
|
|
56
|
|
|
Mr. Badavas has served as a member of our board of directors
since March 2007. Mr. Badavas is a private investor and, since
his retirement from TAC Worldwide, a technical workforce
management company, has been serving as President of Petros
Ventures, Inc., a venture management and advising company. Mr.
Badavas served as President and Chief Executive Officer of TAC
Worldwide from December 2005 until his retirement in October
2009, and was Executive Vice President and Chief Financial
Officer of TAC Worldwide from November 2003 to December 2005.
Prior to joining TAC Worldwide, Mr. Badavas was Senior Principal
and Chief Operating Officer of Atlas Venture, a venture capital
firm, from September 2001 to September 2003. Mr. Badavas also
serves on the board of directors of Hercules Technology Growth
Capital, Inc. and Constant Contact, Inc.
|
Randall S. Battat
|
|
|
50
|
|
|
Mr. Battat has served as our President and Chief Executive
Officer and a member of our board of directors since June 2000.
Prior to joining Airvana, Mr. Battat was employed by Motorola,
Inc., most recently as Senior Vice President and General
Manager, Internet and Networking Group. Prior to joining
Motorola, Mr. Battat held senior management positions at Apple
Inc.
|
Gururaj Deshpande
|
|
|
59
|
|
|
Dr. Deshpande has served as a member of our board of
directors since May 2000. Dr. Deshpande has served as
Chairman of the board of directors of Sycamore Networks, Inc., a
telecommunications equipment manufacturer he co-founded, since
1998. Dr. Deshpande also serves as Chairman of the board of
Directors of A123 Systems, Inc.
|
Paul J. Ferri
|
|
|
71
|
|
|
Mr. Ferri has served as a member of our board of directors since
May 2000. Mr. Ferri is a founding partner of Matrix Partners, a
venture capital firm, where he has been a General Partner since
February 1982. Mr. Ferri also serves on the board of directors
of Netezza Corporation.
|
94
|
|
|
|
|
|
|
|
|
Age
|
|
|
|
Anthony S. Thornley
|
|
|
63
|
|
|
Mr. Thornley has served as a member of our board of directors
since June 2007. Mr. Thornley has been Chief Financial Officer
of KMF Audio, Inc., a microphone company, since January 2007.
From February 2002 to July 2005, Mr. Thornley served as
President and Chief Operating Officer of Qualcomm Incorporated,
a wireless communication technology company. Mr. Thornley serves
on the board of directors of Callaway Golf Company, Cavium
Networks, KMF Audio, Inc. and Transdel Pharmaceuticals, Inc. Mr.
Thornley is a citizen of both Great Britain and the United
States.
|
Sanjeev Verma
|
|
|
46
|
|
|
Mr. Verma has served as our Vice President, Femto Business and
Corporate Development since April 2008, as our Vice President of
Marketing and Business Development from March 2000 until April
2008 and as a member of our board of directors since March 2000.
Prior to co-founding Airvana, Mr. Verma held several
management and product development positions at Motorola, Inc.,
including most recently Director of Marketing and Business
Development for Home Networking Products.
|
Executive Officers:
|
|
|
|
|
|
|
Peter C. Anastos
|
|
|
47
|
|
|
Mr. Anastos has served as our Vice President, General Counsel
since July 2005 and as our Secretary since May 2007. Prior to
joining Airvana, Mr. Anastos was Vice President, General Counsel
and Secretary at Avici Systems, Inc., a high speed wireline IP
routing equipment and software provider, from July 2000 to July
2005.
|
Michael Clark
|
|
|
44
|
|
|
Mr. Clark has served as our Vice President of Worldwide Sales
and Technical Services since July 2009. Prior to joining
Airvana, Mr. Clark served as Senior Vice President of Global
Sales and Customer Service for the Consumer Optical Products
Division of JDS Uniphase Commercial, an optical technology
company, from 2005 to 2009. Mr. Clark also served as Vice
President of Sales, Americas Region for Acterna, a global
network test and measurement solution provider that was acquired
by JDS Uniphase in 2005.
|
Laura L. Cranmer
|
|
|
46
|
|
|
Ms. Cranmer has served as our Vice President of Operations since
September 2008. Prior to joining Airvana, Ms. Cranmer served as
Vice President of Manufacturing- Inkjet Division at EFI, Inc., a
printer technology company, from June 2006 to September 2008.
From 2001 to June 2006, Ms. Cranmer was employed by Celestica,
Inc., a manufacturing services operation, where she served as
General Manager, Operations Director, Business Office Director
and Senior Program Manager.
|
95
|
|
|
|
|
|
|
|
|
Age
|
|
|
|
Vedat M. Eyuboglu
|
|
|
54
|
|
|
Dr. Eyuboglu has served as our Vice President, Chief
Technical Officer since March 2000 and as a member of our board
of directors from March 2000 until May 2008. Prior to
co-founding Airvana, Dr. Eyuboglu held several senior
management and technology positions at Motorola, Inc., including
most recently Vice President and General Manager of Home
Networking Product Operation and Vice President of Technical
Staff in Research and Advanced Development in the Internet and
Networking Group.
|
David P. Gamache
|
|
|
52
|
|
|
Mr. Gamache has served as our Vice President of Finance since
December 2005 and our Treasurer since May 2007. He served as our
Chief Financial Officer from December 2000 to December 2005 and
as our Vice President of Operations from December 2005 to
September 2008.
|
Jeffrey D. Glidden
|
|
|
59
|
|
|
Mr. Glidden has served as our Vice President, Chief Financial
Officer since December 2005. Prior to joining Airvana, Mr.
Glidden was employed by RSA Security Inc., an e-security company
specializing in user authentication systems and encryption
technology, where he was Senior Vice President, Finance and
Operations from July 2002 to December 2005, Chief Financial
Officer from September 2002 to December 2005, and Treasurer from
October 2002 to December 2005.
|
David J. Nowicki
|
|
|
44
|
|
|
Mr. Nowicki has served as our Vice President of Marketing and
Product Management since November 2006. Prior to joining
Airvana, Mr. Nowicki served as Vice President, Marketing &
Product Management at Bytemobile, Inc., a mobile data services
infrastructure provider, from January 2002 to November 2006.
|
Mark W. Rau
|
|
|
51
|
|
|
Mr. Rau has served as our Vice President, Engineering since
September 2004. Prior to joining Airvana, Mr. Rau served as the
Vice President of Engineering for Carrius Technologies, Inc., a
communications infrastructure company, from June 2003 to
September 2004, and he served as Senior Vice President of
Engineering at SOMA Networks, Inc., a broadband wireless access
company, from June 2000 to June 2003.
|
96
Historical
Selected Financial Data
The following table includes selected consolidated financial
data for the last five years. This financial data has been
derived from, and should be read in conjunction with, our
audited consolidated financial statements and the related notes
filed as part of our Annual Report on
Form 10-K
for the year ended January 3, 2010, which is incorporated
herein by reference.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year
|
|
Year
|
|
Year
|
|
Year
|
|
Year
|
|
|
Ended
|
|
Ended
|
|
Ended
|
|
Ended
|
|
Ended
|
|
|
January 1,
|
|
December 31,
|
|
December 30,
|
|
December 28,
|
|
January 3,
|
|
|
2006
|
|
2006
|
|
2007
|
|
2008
|
|
2010
|
|
|
(In thousands, except per share amounts and ratios)
|
|
Consolidated Statement of Income Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
$
|
2,347
|
|
|
$
|
170,270
|
|
|
$
|
305,785
|
|
|
$
|
138,173
|
|
|
$
|
64,594
|
|
Net (loss) income before income taxes and cumulative effect of
change in accounting principle
|
|
$
|
(52,139
|
)
|
|
$
|
63,707
|
|
|
$
|
175,241
|
|
|
$
|
35,216
|
|
|
$
|
(45,037
|
)
|
Net (loss) income
|
|
$
|
(63,014
|
)
|
|
$
|
74,119
|
|
|
$
|
153,343
|
|
|
$
|
21,293
|
|
|
$
|
(24,992
|
)
|
Net (loss) income per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
(5.42
|
)
|
|
$
|
1.21
|
|
|
$
|
2.63
|
|
|
$
|
0.33
|
|
|
$
|
(0.40
|
)
|
Diluted
|
|
$
|
(5.42
|
)
|
|
$
|
1.12
|
|
|
$
|
2.19
|
|
|
$
|
0.30
|
|
|
$
|
(0.40
|
)
|
Shares used in computing net (loss) income per share per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
12,959
|
|
|
|
13,542
|
|
|
|
36,238
|
|
|
|
64,278
|
|
|
|
62,499
|
|
Diluted
|
|
|
12,959
|
|
|
|
18,947
|
|
|
|
43,496
|
|
|
|
70,091
|
|
|
|
62,499
|
|
Non-GAAP Billings Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Billings
|
|
|
157,420
|
|
|
|
140,564
|
|
|
|
142,174
|
|
|
|
125,055
|
(1)
|
|
|
174,167
|
(1)
|
Operating profit on Billings
|
|
|
60,705
|
|
|
|
60,151
|
|
|
|
34,948
|
|
|
|
12,695
|
(1)
|
|
|
52,112
|
(1)
|
Other Operating Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges
|
|
|
*
|
|
|
|
230
|
|
|
|
375
|
|
|
|
71
|
|
|
|
*
|
|
Consolidated Balance Sheet Data
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Assets
|
|
$
|
219,547
|
|
|
$
|
264,207
|
|
|
$
|
261,566
|
|
|
$
|
257,336
|
|
|
$
|
338,717
|
|
Indebtedness
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
|
|
*
|
|
Earnings for fiscal years 2005 and 2009 were insufficient to
cover fixed charges.
|
|
(1)
|
|
Billings represents amounts invoiced for products and services
delivered and services to be delivered to our customers for
which payment is expected to be made in accordance with normal
payment terms. For software-only products sold to OEM customers,
we invoice only upon notification of sale by our OEM customers.
We use Billings to assess our business performance and as a
critical metric for our incentive compensation program. We
believe Billings is a consistent measure of our sales activity
from period to period. Billings is not a GAAP measure and does
not purport to be an alternative to revenue or any other
performance measure derived in accordance with GAAP. In fiscal
2008, Billings excludes $21.8 million of outstanding
invoices to Nortel Networks that were subject to Nortel
Networks bankruptcy proceedings. In 2009, Billings
includes $21.8 million received from Ericsson following its
acquisition of Nortels CDMA business that we previously
did not recognize because of the uncertainty associated with
Nortels bankruptcy proceedings.
|
97
Ratio of
Earnings to Fixed Charges
The following table presents our ratio of earnings to fixed
charges for the fiscal periods indicated. Ratio of earnings to
fixed charges means the ratio of income before income taxes,
cumulative effect of change in accounting principle and fixed
charges to fixed charges, where fixed charges are the aggregate
of interest expense, including amortization of debt issuance
costs, and an allocation of rental charges to approximate
equivalent interest.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year
|
|
|
Year
|
|
|
Year
|
|
|
Year
|
|
|
Year
|
|
|
|
Ended
|
|
|
Ended
|
|
|
Ended
|
|
|
Ended
|
|
|
Ended
|
|
|
|
January 1,
|
|
|
December 31,
|
|
|
December 30,
|
|
|
December 28,
|
|
|
January 3,
|
|
|
|
2006
|
|
|
2006
|
|
|
2007
|
|
|
2008
|
|
|
2010
|
|
|
|
(In thousands, except ratios)
|
|
|
Net (loss) income before income taxes and cumulative effect of
change in accounting principle
|
|
$
|
(52,139
|
)
|
|
$
|
63,707
|
|
|
$
|
175,241
|
|
|
$
|
35,216
|
|
|
$
|
(45,037
|
)
|
Add fixed charges:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense
|
|
$
|
|
|
|
$
|
40
|
|
|
$
|
35
|
|
|
$
|
|
|
|
$
|
|
|
Interest portion of rent expense
|
|
$
|
284
|
|
|
$
|
237
|
|
|
$
|
432
|
|
|
$
|
498
|
|
|
$
|
518
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income before income taxes, cumulative effect of
change in accounting principle and fixed charges
|
|
$
|
(51,855
|
)
|
|
$
|
63,984
|
|
|
$
|
175,708
|
|
|
$
|
35,714
|
|
|
$
|
(44,519
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed charges:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense
|
|
$
|
|
|
|
$
|
40
|
|
|
$
|
35
|
|
|
$
|
|
|
|
$
|
|
|
Interest portion of rent expense
|
|
$
|
284
|
|
|
$
|
237
|
|
|
$
|
432
|
|
|
$
|
498
|
|
|
$
|
518
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fixed charges
|
|
$
|
284
|
|
|
$
|
277
|
|
|
$
|
467
|
|
|
$
|
498
|
|
|
$
|
518
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges
|
|
|
*
|
|
|
|
230
|
|
|
|
375
|
|
|
|
71
|
|
|
|
*
|
|
|
|
|
*
|
|
Earnings for fiscal years 2005 and 2009 were insufficient to
cover fixed charges.
|
Book
Value Per Share
Our net book value per share as of January 3, 2010 was
$2.07.
Projected
Financial Information
During our consideration of strategic alternatives, as described
in
Special Factors-Background of the Merger
beginning on page 13 Airvana management provided Goldman
Sachs with financial forecasts of Airvanas operating
performance for fiscal years 2009 through 2013 prepared by the
management of Airvana. Set forth below are the financial
forecasts prepared by Airvana management in November 2009, which
we refer to as the Management Projections. In
connection with SAC PCGs due diligence review of Airvana,
Airvana provided to SAC PCG and its financing sources portions
of the Management Projections.
The Base Case Management Projections represented
managements then best estimate of the Companys
future results. The Upside Case Management
Projections assumed greater EV-DO shipments and billings than
assumed in the Base Case Management Projections resulting from
broader and stronger demand for the
98
Companys 3G EV-DO infrastructure products and services.
The Upside Case Management Projections also assumed that
femtocell shipments and billings would grow at a greater rate
than assumed in the Base Case Management Projections based upon
a more rapid adoption of the Companys current and planned
femtocell products by wireless operators and more rapid market
acceptance by consumers. The Downside Case
Management Projections show the effects of a faster decline in
EV-DO shipments and billings than assumed in the Base Case
Management Projections, reflecting a more rapid transition by
wireless operators to 4G technologies and a greater decline in
shipments of the Companys 3G EV-DO infrastructure
products. The Downside Case Management Projections assumed no
change in femtocell shipments and billings from the Base Case.
In each case, EV-DO Billings for fiscal year 2009 did not
include $21.8 million invoiced to Nortel Networks in fiscal
year 2008 that was subject to Nortel Networks bankruptcy
proceedings and subsequently collected in the fourth quarter of
fiscal year 2009 and recognized as billings in fiscal year 2009
in the Companys audited consolidated financial statements.
In each case, EBITDA, EBIT, Net Income and Free Cash Flow in the
tables below were calculated based on billings.
Management
Projections Base Case
(In millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|
2013
|
|
|
Billings:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EV-DO
|
|
$
|
146
|
|
|
$
|
149
|
|
|
$
|
144
|
|
|
$
|
150
|
|
|
$
|
148
|
|
Femtocell
|
|
|
7
|
|
|
|
51
|
|
|
|
136
|
|
|
|
225
|
|
|
|
332
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
153
|
|
|
|
200
|
|
|
|
280
|
|
|
|
375
|
|
|
|
480
|
|
% Growth
|
|
|
|
|
|
|
31.3
|
%
|
|
|
39.7
|
%
|
|
|
33.9
|
%
|
|
|
28.0
|
%
|
EBITDA:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EV-DO
|
|
|
95
|
|
|
|
103
|
|
|
|
101
|
|
|
|
108
|
|
|
|
106
|
|
Femtocell
|
|
|
(56
|
)
|
|
|
(45
|
)
|
|
|
(23
|
)
|
|
|
0
|
|
|
|
23
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39
|
|
|
|
58
|
|
|
|
78
|
|
|
|
108
|
|
|
|
129
|
|
% Margin
|
|
|
25.7
|
%
|
|
|
29.0
|
%
|
|
|
27.9
|
%
|
|
|
28.9
|
%
|
|
|
26.9
|
%
|
% Growth
|
|
|
|
|
|
|
48.4
|
%
|
|
|
34.4
|
%
|
|
|
38.5
|
%
|
|
|
19.3
|
%
|
EBIT:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EV-DO
|
|
|
93
|
|
|
|
99
|
|
|
|
98
|
|
|
|
103
|
|
|
|
101
|
|
Femtocell
|
|
|
(60
|
)
|
|
|
(47
|
)
|
|
|
(26
|
)
|
|
|
(3
|
)
|
|
|
19
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33
|
|
|
|
52
|
|
|
|
72
|
|
|
|
100
|
|
|
|
120
|
|
% Margin
|
|
|
21.6
|
%
|
|
|
26.0
|
%
|
|
|
25.7
|
%
|
|
|
26.7
|
%
|
|
|
25.0
|
%
|
% Growth
|
|
|
|
|
|
|
58.3
|
%
|
|
|
38.3
|
%
|
|
|
38.8
|
%
|
|
|
20.0
|
%
|
Net Income:
|
|
|
32
|
|
|
|
34
|
|
|
|
50
|
|
|
|
71
|
|
|
|
85
|
|
Free Cash Flow:
|
|
|
36
|
|
|
|
43
|
|
|
|
32
|
|
|
|
62
|
|
|
|
72
|
|
99
Management
Projections Upside Case
(In millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|
2013
|
|
|
Billings:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EV-DO
|
|
$
|
146
|
|
|
$
|
152
|
|
|
$
|
152
|
|
|
$
|
155
|
|
|
$
|
150
|
|
Femtocell
|
|
|
7
|
|
|
|
73
|
|
|
|
206
|
|
|
|
272
|
|
|
|
357
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
153
|
|
|
|
225
|
|
|
|
358
|
|
|
|
427
|
|
|
|
508
|
|
% Growth
|
|
|
|
|
|
|
47.7
|
%
|
|
|
58.6
|
%
|
|
|
19.4
|
%
|
|
|
18.9
|
%
|
EBITDA:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EV-DO
|
|
|
95
|
|
|
|
109
|
|
|
|
111
|
|
|
|
117
|
|
|
|
116
|
|
Femtocell
|
|
|
(56
|
)
|
|
|
(25
|
)
|
|
|
30
|
|
|
|
50
|
|
|
|
76
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39
|
|
|
|
84
|
|
|
|
141
|
|
|
|
167
|
|
|
|
192
|
|
% Margin
|
|
|
25.7
|
%
|
|
|
37.4
|
%
|
|
|
39.5
|
%
|
|
|
39.2
|
%
|
|
|
37.8
|
%
|
% Growth
|
|
|
|
|
|
|
114.8
|
%
|
|
|
67.4
|
%
|
|
|
18.6
|
%
|
|
|
14.6
|
%
|
EBIT:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EV-DO
|
|
|
93
|
|
|
|
105
|
|
|
|
107
|
|
|
|
112
|
|
|
|
110
|
|
Femtocell
|
|
|
(60
|
)
|
|
|
(27
|
)
|
|
|
28
|
|
|
|
47
|
|
|
|
72
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33
|
|
|
|
78
|
|
|
|
135
|
|
|
|
159
|
|
|
|
182
|
|
% Margin
|
|
|
21.6
|
%
|
|
|
34.7
|
%
|
|
|
37.7
|
%
|
|
|
37.2
|
%
|
|
|
35.9
|
%
|
% Growth
|
|
|
|
|
|
|
137.4
|
%
|
|
|
72.6
|
%
|
|
|
17.9
|
%
|
|
|
14.7
|
%
|
Net Income:
|
|
|
32
|
|
|
|
50
|
|
|
|
93
|
|
|
|
111
|
|
|
|
128
|
|
Free Cash Flow:
|
|
|
36
|
|
|
|
64
|
|
|
|
57
|
|
|
|
93
|
|
|
|
106
|
|
Management
Projections Downside Case
(In millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|
2013
|
|
|
Billings:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EV-DO
|
|
$
|
146
|
|
|
$
|
132
|
|
|
$
|
112
|
|
|
$
|
105
|
|
|
$
|
77
|
|
Femtocell
|
|
|
7
|
|
|
|
51
|
|
|
|
136
|
|
|
|
225
|
|
|
|
332
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
153
|
|
|
|
183
|
|
|
|
248
|
|
|
|
330
|
|
|
|
410
|
|
% Growth
|
|
|
|
|
|
|
20.1
|
%
|
|
|
35.4
|
%
|
|
|
32.9
|
%
|
|
|
24.1
|
%
|
EBITDA:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EV-DO
|
|
|
95
|
|
|
|
88
|
|
|
|
76
|
|
|
|
71
|
|
|
|
51
|
|
Femtocell
|
|
|
(56
|
)
|
|
|
(44
|
)
|
|
|
(23
|
)
|
|
|
0
|
|
|
|
23
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39
|
|
|
|
44
|
|
|
|
53
|
|
|
|
71
|
|
|
|
74
|
|
% Margin
|
|
|
25.7
|
%
|
|
|
24.0
|
%
|
|
|
21.3
|
%
|
|
|
21.6
|
%
|
|
|
18.0
|
%
|
% Growth
|
|
|
|
|
|
|
12.0
|
%
|
|
|
20.6
|
%
|
|
|
34.5
|
%
|
|
|
3.6
|
%
|
EBIT:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EV-DO
|
|
|
93
|
|
|
|
85
|
|
|
|
72
|
|
|
|
66
|
|
|
|
45
|
|
Femtocell
|
|
|
(60
|
)
|
|
|
(47
|
)
|
|
|
(26
|
)
|
|
|
(3
|
)
|
|
|
19
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33
|
|
|
|
38
|
|
|
|
47
|
|
|
|
63
|
|
|
|
65
|
|
% Margin
|
|
|
21.6
|
%
|
|
|
20.6
|
%
|
|
|
18.8
|
%
|
|
|
19.1
|
%
|
|
|
15.8
|
%
|
% Growth
|
|
|
|
|
|
|
14.9
|
%
|
|
|
23.6
|
%
|
|
|
34.6
|
%
|
|
|
2.5
|
%
|
Net Income:
|
|
|
32
|
|
|
|
25
|
|
|
|
33
|
|
|
|
45
|
|
|
|
46
|
|
Free Cash Flow:
|
|
|
36
|
|
|
|
31
|
|
|
|
17
|
|
|
|
37
|
|
|
|
36
|
|
100
Billings, EBITDA, EBIT and free cash flow are non-GAAP measures
that are used by management as supplemental financial measures
to evaluate Airvanas operational trends. Billings
represent amounts invoiced for products and services delivered
and services to be delivered to Airvanas customers for
which payment is expected to be made in accordance with normal
payment terms. Airvana believes billings is a consistent measure
of its sales activities from period to period, but should not be
relied upon as an alternative to revenue. EBITDA is earnings
before interest, provision for taxes, depreciation and
amortization (as calculated based on billings), and EBIT is
earnings before interest and provision for taxes (as calculated
based on billings); neither metric should be relied upon as an
alternative to net income. Free cash flow is calculated by
adding to EBITDA stock-based compensation and subtracting
capital expenditures, net cash interest, increases in net
working capital and taxes (as calculated based on billings);
free cash flow should not be considered as an alternative to
cash flows or net income. None of billings, EBITDA, EBIT or free
cash flow is defined under GAAP and, accordingly, they may not
be comparable measurements to those used by other companies.
The financial forecasts shown above are included in this proxy
statement to provide our stockholders access to certain
nonpublic information considered by our special committee and
our board of directors in connection with their evaluation of
the merger and provided to Goldman Sachs in connection with its
opinion to our special committee that, as of December 17,
2009 and based upon and subject to the factors and assumptions
set forth therein, the $7.65 per share in cash to be paid to the
holders of shares of Airvana common stock (other than Rollover
Stockholders) pursuant to the merger agreement was fair from a
financial point of view to such holders. The inclusion of this
information should not be regarded as an indication to any
stockholder that our special committee, board of directors or
any other recipient of this information considered, or now
considers, it to be predictive of actual future results, and
they should not be relied on as such. The forecasts reflect
numerous estimates and assumptions with respect to industry
performance, general business, economic, regulatory, market and
financial conditions, as well as matters specific to
Airvanas business, all of which are difficult to predict
and many of which are beyond Airvanas control. As a
result, there can be no assurance that the forecasted results
will be realized or that actual results will not be
significantly higher or lower than such forecasts. As the
forecasts cover multiple years, such information by its nature
becomes less predictive with each successive year. Also, the
economic and business environments can and do change quickly,
which adds a significant level of unpredictability,
unreliability and execution risk. These factors create
significant doubt as to whether the forecasts for fiscal years
2010 and beyond are likely to be achieved. As a result, the
forecasts are not necessarily indicative of future results. In
addition, Airvana management prepared the forecasts prior to the
execution of the merger agreement and, accordingly, the
forecasts do not reflect the effects of the merger, which may
cause results to differ materially. Accordingly, readers of this
proxy statement are cautioned not to place undue reliance on the
financial forecasts.
The financial forecasts stated above were prepared for internal
use and not with a view toward public disclosure or toward
complying with generally accepted accounting principles in the
United States, or GAAP, the published guidelines of the SEC
regarding forecasts or the guidelines established by the
American Institute of Certified Public Accountants for
preparation and presentation of prospective financial
information. The forecasts included in this proxy statement were
prepared by, and are the responsibility of, our management. We
do not assume any responsibility to update these forecasts.
Neither our independent registered public accounting firm, nor
any other independent accountants, have compiled, examined, or
performed any procedures with respect to the financial forecasts
contained herein, nor have they expressed any opinion or any
other form of assurance on such forecasts or their
achievability, and assume no responsibility for, and disclaim
any association with, the financial forecasts. Furthermore, the
financial forecasts do not take into account any circumstances
or events occurring after the date the forecasts were prepared
that were unforeseen by our management at the time of
preparation. We have made publicly available our actual results
of operations for the year ended January 3, 2010. Airvana
stockholders should review our Annual Report on
Form 10-K
for the year ended January 3, 2010 to obtain this
information. See
Where You Can Find More
Information
on page 107.
None of Airvana or our affiliates, advisors, officers, directors
or representatives has made or makes any representation to any
stockholder or other person regarding the ultimate performance
of Airvana compared to the information contained in the
forecasts or that forecasted results will be achieved.
101
BY INCLUDING IN THIS PROXY STATEMENT A SUMMARY OF ITS
INTERNAL FINANCIAL FORECASTS, AIRVANA UNDERTAKES NO OBLIGATIONS
TO UPDATE, OR PUBLICLY DISCLOSE ANY UPDATE TO, THESE FINANCIAL
FORECASTS TO REFLECT CIRCUMSTANCES OR EVENTS, INCLUDING
UNANTICIPATED EVENTS, THAT MAY HAVE OCCURRED OR THAT MAY OCCUR
AFTER THE PREPARATION OF THESE FORECASTS, EVEN IN THE EVENT THAT
ANY OR ALL OF THE ASSUMPTIONS UNDERLYING THE FINANCIAL FORECASTS
ARE SHOWN TO BE IN ERROR OR CHANGE.
Market
Price and Dividend Data
Airvana common stock is listed for trading on the NASDAQ under
the symbol AIRV. The following table sets forth, for
the fiscal quarters indicated, the high and low sales prices per
share as reported on the NASDAQ composite tape.
|
|
|
|
|
|
|
|
|
|
|
High
|
|
Low
|
|
Fiscal Year Ending January 2, 2011
|
|
|
|
|
|
|
|
|
First Quarter (through March 10, 2010)
|
|
$
|
7.77
|
|
|
$
|
7.50
|
|
Fiscal Year Ended January 3, 2010
|
|
|
|
|
|
|
|
|
Fourth Quarter
|
|
$
|
7.65
|
|
|
$
|
5.80
|
|
Third Quarter
|
|
$
|
7.06
|
|
|
$
|
5.92
|
|
Second Quarter
|
|
$
|
6.44
|
|
|
$
|
4.84
|
|
First Quarter
|
|
$
|
6.15
|
|
|
$
|
4.34
|
|
Fiscal Year Ended December 28, 2008
|
|
|
|
|
|
|
|
|
Fourth Quarter
|
|
$
|
6.00
|
|
|
$
|
3.36
|
|
Third Quarter
|
|
$
|
6.70
|
|
|
$
|
4.85
|
|
Second Quarter
|
|
$
|
6.95
|
|
|
$
|
4.82
|
|
First Quarter
|
|
$
|
6.19
|
|
|
$
|
4.00
|
|
The closing sale price of Airvana common stock on the NASDAQ on
December 17, 2009, the last trading day prior to the
announcement of the merger, was $6.24 per share. The $7.65 per
share to be paid for each share of Airvana common stock in the
merger represents a premium of approximately 22.6% to the
closing price on December 17, 2009, a premium of
approximately 22.4% to the average closing price for the month
ended December 17, 2009, a premium of approximately 18.2%
to the average closing price for the three months ended
December 17, 2009, a premium of approximately 20.5% to the
average closing price for the six-month period ended
December 17, 2009 and a premium of approximately 28.1% to
the average closing price for the twelve-month period ended
December 17, 2009. On March 10, 2010, the most recent
practicable date before this proxy statement was printed, the
closing price for the Airvana common stock on the NASDAQ was
$7.72 per share. You are encouraged to obtain current market
quotations for Airvana common stock in connection with voting
your shares.
In April 2007, prior to our initial public offering, we paid a
special cash dividend of $1.333 per share on shares of our
capital stock, totaling an aggregate of $72.7 million. We
have not declared any cash dividends since this date. Based on
our current financial plans and expected cash balances, we do
not expect to declare any cash dividends for the foreseeable
future.
Security
Ownership of Certain Beneficial Owners and Management
The following table sets forth information regarding the
beneficial ownership of our Airvana common stock as of
January 3, 2010 (unless otherwise noted), for:
|
|
|
|
|
each person who is known by us to own beneficially more than 5%
of the outstanding shares of our common stock;
|
102
|
|
|
|
|
our principal executive officer, our principal financial officer
and our three other most highly compensated executive officers
who served during the year ended December 28, 2008; we
refer to these officers collectively as our named executive
officers, and
|
|
|
|
all of our directors and executive officers as a group; and
|
|
|
|
the Buyer Filing Persons, together with each associate and
majority-owned subsidiary thereof, in each case who beneficially
owns outstanding shares of Airvana common stock.
|
The percentages of shares outstanding provided in the tables are
based on 62,909,609 voting shares outstanding as of
January 3, 2010. Beneficial ownership is determined in
accordance with the rules of the SEC and generally includes
voting or investment power with respect to securities. Unless
otherwise indicated, each person or entity named in the table
has sole voting and investment power, or shares voting and
investment power with his or her spouse, with respect to all
shares of stock listed as owned by that person. The number of
shares shown does not include the interest of certain persons in
shares held by family members in their own right. Shares
issuable upon the exercise of options that are exercisable
within 60 days of January 3, 2010 are considered
outstanding for the purpose of calculating the percentage of
outstanding shares of Airvana common stock held by the
individual, but not for the purpose of calculating the
percentage of outstanding shares held by any other individual.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Stock
|
|
|
|
|
|
Percentage of
|
|
|
|
|
|
|
Underlying
|
|
|
|
|
|
Common
|
|
|
Number of
|
|
|
|
Options
|
|
|
|
Total
|
|
Stock
|
Name and Address
|
|
Shares
|
|
|
|
Exercisable
|
|
|
|
Beneficial
|
|
Beneficially
|
of Beneficial Owner(1)
|
|
Owned(2)
|
|
+
|
|
Within 60 Days
|
|
=
|
|
Ownership(3)
|
|
Owned(4)
|
|
5% Holders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Entities affiliated with Matrix Partners(5)
|
|
|
15,322,369
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,322,369
|
|
|
|
24.4
|
|
Bay Colony Corporate Center
1000 Winter Street, Suite 4500
Waltham, MA 02451
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gururaj Deshpande(6)
|
|
|
8,598,069
|
|
|
|
|
|
|
|
39,852
|
|
|
|
|
|
|
|
8,637,921
|
|
|
|
13.7
|
|
Directors and Named Executive Officers
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hassan Ahmed
|
|
|
125,655
|
|
|
|
|
|
|
|
16,409
|
|
|
|
|
|
|
|
142,064
|
|
|
|
*
|
|
Robert P. Badavas
|
|
|
|
|
|
|
|
|
|
|
50,857
|
|
|
|
|
|
|
|
50,857
|
|
|
|
*
|
|
Randall S. Battat
|
|
|
2,189,208
|
|
|
|
|
|
|
|
602,067
|
|
|
|
|
|
|
|
2,791,275
|
|
|
|
4.4
|
|
Paul J. Ferri(7)
|
|
|
15,324,019
|
|
|
|
|
|
|
|
39,852
|
|
|
|
|
|
|
|
15,363,871
|
|
|
|
24.4
|
|
Jeffrey D. Glidden(8)
|
|
|
224,270
|
|
|
|
|
|
|
|
508,320
|
|
|
|
|
|
|
|
732,590
|
|
|
|
1.2
|
|
David Nowicki
|
|
|
|
|
|
|
|
|
|
|
187,759
|
|
|
|
|
|
|
|
187,759
|
|
|
|
*
|
|
Luis J. Pajares(9)
|
|
|
443
|
|
|
|
|
|
|
|
594,051
|
|
|
|
|
|
|
|
594,494
|
|
|
|
*
|
|
Mark W. Rau
|
|
|
|
|
|
|
|
|
|
|
560,952
|
|
|
|
|
|
|
|
560,952
|
|
|
|
*
|
|
Anthony S. Thornley
|
|
|
20,000
|
|
|
|
|
|
|
|
39,852
|
|
|
|
|
|
|
|
59,852
|
|
|
|
*
|
|
Sanjeev Verma(10)
|
|
|
2,245,838
|
|
|
|
|
|
|
|
232,932
|
|
|
|
|
|
|
|
2,478,770
|
|
|
|
3.9
|
|
All current directors and executive officers as a group
(15 persons)
|
|
|
30,891,637
|
|
|
|
|
|
|
|
3,479,765
|
|
|
|
|
|
|
|
34,371,402
|
|
|
|
51.8
|
|
Buyer Filing Persons(11)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Less than 1%
|
|
(1)
|
|
Unless otherwise noted below, the address of each beneficial
owner listed in the table is
c/o Airvana,
Inc., 19 Alpha Road, Chelmsford, Massachusetts 01824.
|
|
(2)
|
|
Each person has sole investment and voting power with respect to
the shares indicated as beneficially owned, except as otherwise
noted. The inclusion herein of any shares as beneficially owned
does not constitute an admission of beneficial ownership.
|
103
|
|
|
(3)
|
|
In accordance with Securities and Exchange Commission rules,
each person listed is deemed to beneficially own any shares
issuable upon the exercise of stock options held by him or her
that will be exercisable on March 4, 2010 or within
60 days after January 3, 2010.
|
|
(4)
|
|
Percentage ownership calculations are based on
62,909,609 shares of common stock outstanding as of
January 3, 2010. Any shares that may be acquired upon the
exercise of stock options on or prior to March 4, 2010 are
deemed to be outstanding for the purpose of calculating the
percentage of the outstanding common stock owned by a given
person or entity. These shares, however, are not considered
outstanding when computing the percentage ownership of any other
person or entity.
|
|
(5)
|
|
Consists of shares reported as beneficially owned by entities
affiliated with Matrix Partners as follows: (i) Matrix VII,
L.P. (Matrix VII) is the record holder of
5,059,609 shares of common stock (the Matrix VII
Shares); (ii) Matrix VI, L.P. (Matrix VI)
is the record holder of 7,100,218 shares of common stock
(the Matrix VI Shares); (iii) Matrix VI
Parallel Partnership-A, L.P. (Parallel A) is the
record holder of 2,368,728 shares of common stock (the
Parallel A Shares); and (iv) Matrix VI Parallel
Partnership-B, L.P. (Parallel B) is the record
holder of 793,814 shares of common stock (the
Parallel B Shares). Matrix VII Management Co.,
L.L.C. (Matrix VII MC) is the general partner of
Matrix VII. Matrix VI Management Co., L.L.C. (Matrix VI
MC) is the general partner of Matrix VI, Parallel A and
Parallel B. Mr. Ferri, as a managing member of Matrix VII
MC and Matrix VI MC, has sole voting and dispositive power of
the Matrix VII Shares, Matrix VI Shares, Parallel A Shares and
Parallel B Shares. We obtained information regarding beneficial
ownership of these shares from the Schedule 13G filed by
Matrix VII MC, Matrix VII, Matrix VI, Parallel A, Parallel B,
Matrix VI MC and Mr. Ferri with the Securities and Exchange
Commission on February 11, 2009 and from stockholder
questionnaire responses, dated February 11, 2009, provided
to us by Matrix Partners.
|
|
(6)
|
|
Consists of shares held by Sparta Group MA LLC Series 5, of
which Dr. Deshpande and his spouse are co-managers.
|
|
(7)
|
|
Includes 7,100,218 shares held by Matrix VI,
5,059,609 shares held by Matrix VII, 2,368,728 shares
held by Parallel A, and 793,814 shares held by Parallel B.
As described in footnote 5, Mr. Ferri has sole voting and
dispositive power with respect to the shares held by these
entities. We obtained information regarding beneficial ownership
of these shares from the Schedule 13G filed by Matrix VII
MC, Matrix VII, Matrix VI, Parallel A, Parallel B, Matrix VI MC,
and Mr. Ferri with the Securities and Exchange Commission
on February 11, 2009 and from a director questionnaire,
dated February 25, 2009, provided to us by Mr. Ferri.
|
|
(8)
|
|
Includes 224,270 shares held in the Jeffrey D. Glidden
Nominee Trust, over which Mr. Glidden has sole voting and
dispositive power.
|
|
|
|
(9)
|
|
Mr. Pajares ceased serving as an executive officer of Airvana
when he resigned from his position of Vice President of North
American Sales and Services, effective December 31, 2009.
|
|
|
|
(10)
|
|
Includes 375,093 shares held by Mr. Verma as trustee
of the C.H. Trust, a qualified annuity trust,
115,903 shares held by Mr. Vermas spouse, Girija
Verma, and 337,584 shares held by Ms. Verma as trustee
of the Cape Himalaya Trust. Mr. Verma has sole voting and
dispositive power with respect to the shares held in the C.H.
Trust. Ms. Verma has sole voting and dispositive power with
respect to the shares held in the Cape Himalaya Trust.
|
|
|
|
(11)
|
|
S.A.C. MultiQuant Fund, LLC (SAC MultiQuant), an
Anguilla limited liability company, holds 100 shares of the
Companys common stock. S.A.C. Capital Advisors, L.P.
(Advisors LP) serves as investment manager to a
variety of private investment funds, including SAC MultiQuant,
and in that capacity has voting and dispositive power with
respect to the shares of the Companys common stock held by
SAC MultiQuant. S.A.C. Capital Advisors, Inc. (Advisors
Inc.) serves as the general partner of Advisors LP. Steven
A. Cohen controls Advisors Inc.
|
104
Transactions
in Shares of Common Stock
Purchases
by Airvana
In July 2008, our board of directors authorized the repurchase
of up to $20 million of Airvanas common stock over
the following 12 months. This program was implemented
through a
Rule 10b5-1
plan and the first purchases thereunder were made in the third
quarter of 2008. In February 2009, our board of directors
authorized a second stock repurchase program authorizing the
repurchase of up to an additional $20 million of
Airvanas common stock following the completion of the
initial stock repurchase program. This program was implemented
through a
Rule 10b5-1
plan and was terminated on August 20, 2009. The first
purchases thereunder were made in the second quarter of 2009.
The following tables summarize repurchases of Airvana common
stock by us under the two repurchase programs during the past
two years:
Repurchases
Under the Initial Stock Repurchase Program
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Number of Shares
|
|
Range of Prices Paid per
|
|
Average Price Paid per
|
Period
|
|
Purchased
|
|
Share
|
|
Share
|
|
2008
|
|
|
|
|
|
|
|
|
|
|
|
|
Third Quarter
|
|
|
670,948
|
|
|
$
|
5.00-5.71
|
|
|
$
|
5.29
|
|
Fourth Quarter
|
|
|
2,037,252
|
|
|
$
|
3.97-5.76
|
|
|
$
|
4.80
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
|
947,530
|
|
|
$
|
4.55-6.00
|
|
|
$
|
5.47
|
|
Second Quarter
|
|
|
257,979
|
|
|
$
|
5.49-5.94
|
|
|
$
|
5.78
|
|
Total
|
|
|
3,913,709
|
|
|
$
|
3.97-6.00
|
|
|
$
|
5.11
|
|
Repurchases
Under the Second Stock Repurchase Program
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Number of Shares
|
|
|
Range of Prices Paid per
|
|
|
Average Price Paid per
|
|
Period
|
|
Purchased
|
|
|
Share
|
|
|
Share
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
Second Quarter
|
|
|
403,748
|
|
|
$
|
4.99-5.92
|
|
|
$
|
5.56
|
|
Third Quarter
|
|
|
61,267
|
|
|
$
|
5.96-6.00
|
|
|
$
|
6.03
|
|
Total
|
|
|
465,015
|
|
|
$
|
4.99-6.00
|
|
|
$
|
5.63
|
|
Purchases
by the Rollover Stockholders
None of the Rollover Stockholders has purchased shares of our
common stock at any time within the past two years.
Prior
Public Offerings
On July 25, 2007, we sold an aggregate of
8,300,000 shares of our common stock pursuant to an
underwritten public offering at a price of $7.00 per share. We
raised a total of $58.1 million in gross proceeds from this
offering, or approximately $50.8 million in net proceeds
after deducting underwriting discounts and commissions of
approximately $4.1 million and other estimated offering
costs of approximately $3.2 million.
Transactions
in Prior 60 Days
There have been no transactions in shares of Airvana common
stock during the past sixty days by us, any of our officers or
directors, any of the other Rollover Stockholders or any of
their trustees, Parent, Merger Sub, any of Merger Subs
officers or directors, the other Buyer Filing Persons, any other
person with respect
105
to which disclosure is provided in Annex D or any associate or
majority-owned subsidiary of the foregoing, except the following:
On November 16, 2009, Sanjeev Verma sold 12,500 shares
pursuant to a
Rule 10b5-1
trading plan adopted by Mr. Verma on June 5, 2008. The
range of prices at which these shares were sold was $6.25 to
$6.48 and the average price was $6.401 per share.
On November 30, 2009, Vedat Eyuboglu and his affiliates
sold 12,500 shares at $6.00 per share, pursuant to a
Rule 10b5-1
trading plan adopted by Dr. Eyuboglu on September 5,
2007.
On January 4, 2010, Gururaj Deshpande transferred
1,563,772 shares he held directly, and
7,034,297 shares he held indirectly in Unicorn
Trust III, Unicorn Trust V, the Deshpande Irrevocable
Trust and the Gururaj Deshpande Grantor Retained Annuity Trust
to Sparta Group LLC Series 5, of which Dr. Deshpande
and his spouse are co-managers.
ADJOURNMENT
OF THE SPECIAL MEETING
(PROPOSAL NO. 2)
Airvana may ask its stockholders to vote on a proposal to
adjourn the special meeting, if necessary, to solicit additional
proxies if there are insufficient votes at the time of the
meeting to adopt the merger agreement. We currently do not
intend to propose adjournment of our special meeting if there
are sufficient votes to adopt the merger agreement. If the
proposal to adjourn our special meeting for the purpose of
soliciting additional proxies is submitted to our stockholders
for approval, such approval requires the affirmative vote of a
majority of the votes cast on the matter by holders of Airvana
common stock present, in person or represented by proxy, at the
special meeting, provided that a quorum is present, in person or
represented by proxy, at the special meeting.
The board of directors recommends that you vote
FOR the adjournment of the special meeting, if
necessary, to solicit additional proxies.
OTHER
MATTERS
Other
Matters for Action at the Special Meeting
As of the date of this proxy statement, our board of directors
knows of no matters that will be presented for consideration at
the special meeting other than as described in this proxy
statement.
Future
Stockholder Proposals
If the merger is consummated, we will not have public
stockholders and there will be no public participation in any
future meeting of stockholders. However, if the merger is not
completed, we expect to hold a 2010 annual meeting of
stockholders later in the year.
We must receive stockholder proposals (including director
nominations) intended to be presented at our annual meeting of
stockholders to be held in 2010 at our principal executive
offices as follows: in the case of an election of directors, no
earlier than January 19, 2010 and no later than
February 18, 2010, which is not less than 90 days nor
more than 120 days, respectively, prior to the first
anniversary of the preceding years annual meeting;
provided
,
however
, that in the event that the date
of our annual meeting is advanced by more than 20 days, or
delayed by more than 60 days, from the first anniversary of
the preceding years annual meeting, a stockholders
notice must be so received not earlier than the 120th day
prior to such annual meeting and not later than the close of
business on the later of (A) the 90th day prior to
such annual meeting and (B) the 10th day following the day
on which notice of the date of such annual meeting was mailed or
public disclosure of the date of such annual meeting was made,
whichever first occurs; in no event shall the adjournment or
postponement of an annual meeting (or the public announcement
thereof) commence a new time period (or extend any time period)
for the giving of a stockholders notice.
106
Each stockholders notice for a proposal must be timely
given to our Corporate Secretary at the address of our principal
executive offices. Each notice generally is required to set
forth as to each matter proposed to be brought before an annual
meeting certain information and must meet other requirements
specified in our by-laws, as determined by us, including:
(A) as to each proposed nominee (1) such persons
name, age, business address and, if known, residence address,
(2) such persons principal occupation or employment,
(3) the class and number of our shares which are
beneficially owned by such person and (4) any other
information concerning such person that must be disclosed as to
nominees in proxy solicitations pursuant to Regulation 14A
under the Exchange Act; (B) as to the stockholder giving
the notice (1) such stockholders name and address,
(2) the class and number of our shares that are owned,
beneficially and of record, by such stockholder, (3) a
description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the
nomination(s) are to be made by such stockholder, (4) a
representation that such stockholder intends to appear in person
or by proxy at the meeting to nominate the person(s) named in
its notice and (5) a representation whether the stockholder
intends or is part of a group which intends (x) to deliver
a proxy statement
and/or
form
of proxy to holders of at least the percentage of the
corporations outstanding capital stock reasonably believed
by such stockholder to be sufficient to elect the nominee (and
such representation shall be included in any such proxy
statement and form of proxy)
and/or
(y) otherwise to solicit proxies from stockholders in
support of such nomination (and such representation shall be
included in any such solicitation materials).
The foregoing time limits also apply to determining whether
notice is timely for purposes of rules adopted by the SEC
relating to the exercise of discretionary voting authority.
These rules are separate from and in addition to the
requirements a stockholder must meet to have a proposal included
in our proxy statement. In addition, stockholders are required
to comply with any applicable requirements of the Exchange Act
and the rules and regulations thereunder.
Householding
of Special Meeting Materials
Some banks, brokers and other nominee record holders may be
participating in the practice of householding proxy
statements and annual reports. This means that only one copy of
our proxy statement and annual report to stockholders may have
been sent to multiple stockholders in your household. We will
promptly deliver a separate copy of either document to you upon
written or oral request to Airvana, Inc., 19 Alpha Road,
Chelmsford, Massachusetts 01824, Attention: Investor Relations,
telephone:
(978) 250-3000.
If you want to receive separate copies of the proxy statement or
annual report to stockholders in the future, or if you are
receiving multiple copies and would like to receive only one
copy per household, you should contact your bank, broker or
other nominee record holder, or you may contact us at the above
address and telephone number.
WHERE YOU
CAN FIND MORE INFORMATION
We are subject to the informational requirements of the
Securities Exchange Act, and file annual, quarterly and current
reports, proxy statements and other information with the SEC.
You can read our SEC filings, including the registration
statement, through the Internet at the SECs website at
www.sec.gov. You may also read and copy any document we file
with the SEC at its public reference facility at
100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at
1-800-SEC-0330
for further information about the public reference room.
107
You may obtain any of the documents we file with the SEC,
without charge, by requesting them in writing or by telephone
from us at the following address:
Airvana,
Inc.
19 Alpha Road
Chelmsford, Massachusetts 01824
Attention: Investor Relations
Telephone:
978-250-3000
If you would like to request documents from us, please do so by
March 26, 2010, to receive them before the special meeting.
If you request any documents from us, we will mail them to you
by first class mail, or another equally prompt method, within
one business day after we receive your request.
108
Agreement
and Plan of Merger
AGREEMENT AND PLAN OF MERGER
by and among
72 MOBILE HOLDINGS, LLC,
72 MOBILE ACQUISITION CORP.
and
AIRVANA, INC.
Dated as of December 17, 2009
A-1
TABLE OF
CONTENTS
|
|
|
|
|
|
|
ARTICLE I THE MERGER
|
|
|
A-7
|
|
1.1
|
|
Effective Time of the Merger
|
|
|
A-7
|
|
1.2
|
|
Closing
|
|
|
A-7
|
|
1.3
|
|
Effects of the Merger
|
|
|
A-7
|
|
1.4
|
|
Directors and Officers of the Surviving Corporation
|
|
|
A-8
|
|
ARTICLE II CONVERSION OF SECURITIES
|
|
|
A-8
|
|
2.1
|
|
Conversion of Capital Stock
|
|
|
A-8
|
|
2.2
|
|
Exchange of Certificates
|
|
|
A-9
|
|
2.3
|
|
Company Stock Plans
|
|
|
A-10
|
|
2.4
|
|
Dissenting Shares
|
|
|
A-11
|
|
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
|
|
|
A-11
|
|
3.1
|
|
Organization, Standing and Power
|
|
|
A-11
|
|
3.2
|
|
Capitalization
|
|
|
A-13
|
|
3.3
|
|
Subsidiaries
|
|
|
A-14
|
|
3.4
|
|
Authority; No Conflict; Required Filings and Consents
|
|
|
A-15
|
|
3.5
|
|
SEC Filings; Financial Statements; Information Provided
|
|
|
A-16
|
|
3.6
|
|
No Undisclosed Liabilities
|
|
|
A-18
|
|
3.7
|
|
Absence of Certain Changes or Events
|
|
|
A-18
|
|
3.8
|
|
Taxes
|
|
|
A-18
|
|
3.9
|
|
Owned and Leased Real Properties
|
|
|
A-19
|
|
3.10
|
|
Intellectual Property
|
|
|
A-19
|
|
3.11
|
|
Contracts
|
|
|
A-20
|
|
3.12
|
|
Litigation
|
|
|
A-22
|
|
3.13
|
|
Environmental Matters
|
|
|
A-22
|
|
3.14
|
|
Employee Benefit Plans
|
|
|
A-23
|
|
3.15
|
|
Compliance With Laws
|
|
|
A-24
|
|
3.16
|
|
Permits
|
|
|
A-24
|
|
3.17
|
|
Labor Matters
|
|
|
A-24
|
|
3.18
|
|
Insurance
|
|
|
A-24
|
|
3.19
|
|
Opinion of Financial Advisor
|
|
|
A-25
|
|
3.20
|
|
Section 203 of the DGCL
|
|
|
A-25
|
|
3.21
|
|
Brokers
|
|
|
A-25
|
|
3.22
|
|
No Other Information
|
|
|
A-25
|
|
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER AND THE
TRANSITORY SUBSIDIARY
|
|
|
A-25
|
|
4.1
|
|
Organization, Standing and Power
|
|
|
A-25
|
|
4.2
|
|
Authority; No Conflict; Required Filings and Consents
|
|
|
A-26
|
|
4.3
|
|
SEC Filings; Information Provided
|
|
|
A-27
|
|
4.4
|
|
Operations of the Transitory Subsidiary
|
|
|
A-27
|
|
4.5
|
|
Financing
|
|
|
A-27
|
|
4.6
|
|
Solvency
|
|
|
A-28
|
|
4.7
|
|
Guarantee
|
|
|
A-28
|
|
4.8
|
|
Agreements with Company Stockholders, Directors or Management
|
|
|
A-28
|
|
4.9
|
|
No Other Information
|
|
|
A-28
|
|
4.10
|
|
Access to Information; Disclaimer
|
|
|
A-29
|
|
ARTICLE V CONDUCT OF BUSINESS
|
|
|
A-29
|
|
5.1
|
|
Covenants of the Company
|
|
|
A-29
|
|
5.2
|
|
Confidentiality
|
|
|
A-32
|
|
5.3
|
|
Equity Financing Commitments
|
|
|
A-32
|
|
5.4
|
|
Debt Financing Commitments
|
|
|
A-32
|
|
A-2
|
|
|
|
|
|
|
ARTICLE VI ADDITIONAL AGREEMENTS
|
|
|
A-35
|
|
6.1
|
|
No Solicitation
|
|
|
A-35
|
|
6.2
|
|
Proxy Statement
|
|
|
A-37
|
|
6.3
|
|
Nasdaq Quotation
|
|
|
A-38
|
|
6.4
|
|
Access to Information
|
|
|
A-38
|
|
6.5
|
|
Stockholders Meeting
|
|
|
A-38
|
|
6.6
|
|
Legal Conditions to the Merger
|
|
|
A-38
|
|
6.7
|
|
Public Disclosure
|
|
|
A-39
|
|
6.8
|
|
Indemnification
|
|
|
A-39
|
|
6.9
|
|
Notification of Certain Matters
|
|
|
A-41
|
|
6.10
|
|
Exemption from Liability Under Section 16(b)
|
|
|
A-41
|
|
6.11
|
|
Service Credit
|
|
|
A-41
|
|
6.12
|
|
Company Employee Arrangements
|
|
|
A-41
|
|
6.13
|
|
Sale of Investments
|
|
|
A-42
|
|
6.14
|
|
Director Resignations
|
|
|
A-42
|
|
6.15
|
|
Termination of Agreements
|
|
|
A-42
|
|
6.16
|
|
Internal Reorganization
|
|
|
A-42
|
|
ARTICLE VII CONDITIONS TO MERGER
|
|
|
A-42
|
|
7.1
|
|
Conditions to Each Partys Obligation To Effect the Merger
|
|
|
A-42
|
|
7.2
|
|
Additional Conditions to Obligations of the Buyer and the
Transitory Subsidiary
|
|
|
A-43
|
|
7.3
|
|
Additional Conditions to Obligations of the Company
|
|
|
A-43
|
|
7.4
|
|
Frustration of Closing Conditions
|
|
|
A-44
|
|
ARTICLE VIII TERMINATION AND AMENDMENT
|
|
|
A-44
|
|
8.1
|
|
Termination
|
|
|
A-44
|
|
8.2
|
|
Effect of Termination
|
|
|
A-45
|
|
8.3
|
|
Fees and Expenses
|
|
|
A-46
|
|
8.4
|
|
Amendment
|
|
|
A-47
|
|
8.5
|
|
Extension; Waiver
|
|
|
A-47
|
|
ARTICLE IX MISCELLANEOUS
|
|
|
A-48
|
|
9.1
|
|
Nonsurvival of Representations, Warranties and Agreements
|
|
|
A-48
|
|
9.2
|
|
Notices
|
|
|
A-48
|
|
9.3
|
|
Entire Agreement
|
|
|
A-49
|
|
9.4
|
|
No Third Party Beneficiaries
|
|
|
A-49
|
|
9.5
|
|
Assignment
|
|
|
A-49
|
|
9.6
|
|
Severability
|
|
|
A-49
|
|
9.7
|
|
Counterparts and Signature
|
|
|
A-50
|
|
9.8
|
|
Interpretation
|
|
|
A-50
|
|
9.9
|
|
Governing Law
|
|
|
A-50
|
|
9.10
|
|
Remedies
|
|
|
A-50
|
|
9.11
|
|
Submission to Jurisdiction
|
|
|
A-51
|
|
9.12
|
|
Disclosure Schedules
|
|
|
A-51
|
|
9.13
|
|
Knowledge
|
|
|
A-52
|
|
|
|
|
Exhibit A
|
|
Form of Certificate of Incorporation
|
Exhibit B
|
|
Form of Guarantee
|
Exhibit C
|
|
Form of Termination Agreement
|
A-3
TABLE OF
DEFINED TERMS
|
|
|
|
|
Reference in
|
Terms
|
|
Agreement
|
|
Acceptable Confidentiality Agreement
|
|
Section 6.1(a)
|
Acquisition Proposal
|
|
Section 6.1(f)
|
Actions
|
|
Section 3.12
|
Affiliate
|
|
Section 3.2(c)
|
Agreement
|
|
Preamble
|
Alternative Acquisition Agreement
|
|
Section 6.1(b)
|
Alternative Debt Commitment Letter
|
|
Section 5.4(c)
|
Alternative Debt Financing
|
|
Section 5.4(c)
|
Alternative Debt Financing Agreement
|
|
Section 5.4(c)
|
Ancillary Agreements
|
|
Section 9.10(b)
|
Antitrust Laws
|
|
Section 6.6(b)
|
Antitrust Order
|
|
Section 6.6(b)
|
Bankruptcy and Equity Exception
|
|
Section 3.4(a)
|
Business Day
|
|
Section 1.2
|
Buyer
|
|
Preamble
|
Buyer Damages
|
|
Section 9.10(b)
|
Buyer Disclosure Schedule
|
|
Article IV
|
Buyer Employee Plan
|
|
Section 6.11
|
Buyer Liability Limitation
|
|
Section 9.10(b)
|
Buyer Material Adverse Effect
|
|
Section 4.1
|
Buyer Parties
|
|
Section 9.10(c)
|
Buyer Termination Fee
|
|
Section 8.3(d)
|
Buyers Knowledge
|
|
Section 9.13
|
Certificate
|
|
Section 2.2(b)
|
Certificate of Merger
|
|
Section 1.1
|
Claims
|
|
Section 6.8(a)
|
Closing
|
|
Section 1.2
|
Closing Date
|
|
Section 1.2
|
Code
|
|
Section 2.2(f)
|
Commitment Letters
|
|
Section 4.5(a)
|
Company
|
|
Preamble
|
Company Balance Sheet
|
|
Section 3.5(b)
|
Company Board
|
|
Section 3.4(a)
|
Company Common Stock
|
|
Section 2.1(b)
|
Company Damages
|
|
Section 9.10(b)
|
Company Disclosure Schedule
|
|
Article III
|
Company Employee Plans
|
|
Section 3.14(a)
|
Company Intellectual Property
|
|
Section 3.10(b)
|
Company Leases
|
|
Section 3.9(b)
|
Company Liability Limitation
|
|
Section 9.10(b)
|
Company Material Adverse Effect
|
|
Section 3.1
|
Company Material Contracts
|
|
Section 3.11(a)
|
Company Meeting
|
|
Section 3.4(d)
|
A-4
|
|
|
|
|
Reference in
|
Terms
|
|
Agreement
|
|
Company Parties
|
|
Section 9.10(c)
|
Company Preferred Stock
|
|
Section 3.2(a)
|
Company SEC Reports
|
|
Section 3.5(a)
|
Company Stock Options
|
|
Section 2.3(a)
|
Company Stock Plans
|
|
Section 2.3(a)
|
Company Stockholder Approval
|
|
Section 3.4(a)
|
Company Voting Proposal
|
|
Section 3.4(a)
|
Companys Knowledge
|
|
Section 9.13
|
Confidentiality Agreement
|
|
Section 5.2
|
Continuing Employees
|
|
Section 6.11
|
Debt Commitment Letter
|
|
Section 4.5(a)
|
Debt Financing
|
|
Section 4.5(a)
|
Debt Financing Agreements
|
|
Section 5.4(a)
|
Debt Financing Sources
|
|
Section 4.5(a)
|
Dissenting Shares
|
|
Section 2.4(a)
|
DGCL
|
|
Preamble
|
Effect
|
|
Section 3.1
|
Effective Time
|
|
Section 1.1
|
Employee Benefit Plan
|
|
Section 3.14(a)
|
Environmental Law
|
|
Section 3.13(b)
|
Equity Commitment Letter
|
|
Section 4.5(a)
|
Equity Financing
|
|
Section 4.5(a)
|
ERISA
|
|
Section 3.14(a)
|
ERISA Affiliate
|
|
Section 3.14(a)
|
Exchange Act
|
|
Section 3.2(f)
|
Exchange Agent
|
|
Section 2.2(a)
|
Exchange Fund
|
|
Section 2.2(a)
|
Expense Reimbursement
|
|
Section 8.3(b)
|
Filed Company SEC Reports
|
|
Article III
|
Financing
|
|
Section 4.5(a)
|
Financial Statements
|
|
Section 3.5(b)
|
GAAP
|
|
Section 3.5(b)
|
Governmental Entity
|
|
Section 3.4(c)
|
GSO
|
|
Section 4.5(a)
|
Guarantee
|
|
Section 4.7
|
Hazardous Substance
|
|
Section 3.13(c)
|
HSR Act
|
|
Section 3.4(c)
|
Indemnified Parties
|
|
Section 6.8(a)
|
Intellectual Property
|
|
Section 3.10(a)
|
Interim Investment Agreement
|
|
Section 4.8
|
Internal Reorganization
|
|
Section 6.16
|
Investor
|
|
Section 4.5(a)
|
IRS
|
|
Section 3.8(c)
|
Lien
|
|
Section 3.4(b)
|
A-5
|
|
|
|
|
Reference in
|
Terms
|
|
Agreement
|
|
Maximum Premium
|
|
Section 6.8(c)
|
Merger
|
|
Preamble
|
Merger Consideration
|
|
Section 2.1(c)
|
Notice of Superior Proposal
|
|
Section 6.1(b)
|
Option Consideration
|
|
Section 2.3(b)
|
Ordinary Course of Business
|
|
Section 3.6
|
Outside Date
|
|
Section 8.1(b)
|
Permits
|
|
Section 3.16
|
Pre-Closing Period
|
|
Section 5.1
|
Proxy Statement
|
|
Section 3.5(c)
|
Required Company Stockholder Vote
|
|
Section 3.4(d)
|
Representatives
|
|
Section 6.1(a)
|
Rollover Commitment Letters
|
|
Section 4.8
|
Schedule 13E-3
|
|
Section 3.5(c)
|
SEC
|
|
Section 3.5(a)
|
Securities Act
|
|
Section 3.2(c)
|
Specified Time
|
|
Section 6.1(a)
|
Subsidiary
|
|
Section 3.3(a)
|
Superior Proposal
|
|
Section 6.1(f)
|
Surviving Corporation
|
|
Section 1.1
|
Tax Returns
|
|
Section 3.8(b)
|
Taxes
|
|
Section 3.8(b)
|
Termination Agreement
|
|
Section 6.15
|
Termination Fee
|
|
Section 8.3(c)
|
Third Party Intellectual Property
|
|
Section 3.10(b)
|
Transitory Subsidiary
|
|
Preamble
|
UK Stock Option
|
|
Section 2.3(a)
|
WARN
|
|
Section 3.17
|
A-6
AGREEMENT
AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this Agreement)
is entered into as of December 17, 2009, by and among 72
Mobile Holdings, LLC, a Delaware limited liability company (the
Buyer), 72 Mobile Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of the Buyer (the
Transitory Subsidiary), and Airvana, Inc., a
Delaware corporation (the Company).
WHEREAS, the Boards of Directors of the Transitory Subsidiary
and the Company have each determined that this Agreement and the
Merger are advisable and in the best interests of each
corporation and their respective stockholders and recommended
that their respective stockholders adopt this Agreement; and
WHEREAS, the acquisition of the Company shall be effected
through a merger (the Merger) of the Transitory
Subsidiary with and into the Company in accordance with the
terms of this Agreement and the Delaware General Corporation Law
(the DGCL), as a result of which the Company shall
become a wholly owned subsidiary of the Buyer;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements
set forth below, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,
the Buyer, the Transitory Subsidiary and the Company agree as
follows:
ARTICLE I
THE MERGER
1.1
Effective Time of the
Merger
.
Subject to the provisions of this
Agreement, prior to the Closing, the Buyer and the Company shall
jointly prepare, and immediately following the Closing the
Company, as the surviving corporation in the Merger (the Company
following the Merger is sometimes referred to herein as the
Surviving Corporation
), shall cause to be
filed with the Secretary of State of the State of Delaware, a
certificate of merger (the
Certificate of
Merger
) in such form as is required by, and executed
by the Company in accordance with, the relevant provisions of
the DGCL and shall make all other filings or recordings required
under the DGCL. The Merger shall become effective upon the
filing of the Certificate of Merger with the Secretary of State
of the State of Delaware or at such later time as is established
by the Buyer and the Company and set forth in the Certificate of
Merger (the
Effective Time
).
1.2
Closing
.
The closing of the
Merger (the
Closing
) shall take place at
10:00 a.m., Eastern time, on a date to be specified by the
Buyer and the Company (the
Closing Date
),
which shall be no later than the second Business Day after
satisfaction or waiver of the conditions set forth in
Article VII (other than delivery of items to be delivered
at the Closing and other than satisfaction of those conditions
that by their nature are to be satisfied at the Closing, it
being understood that the occurrence of the Closing shall remain
subject to the delivery of such items and the satisfaction or
waiver of such conditions at the Closing), at the offices of
Wilmer Cutler Pickering Hale and Dorr LLP, 60 State Street,
Boston, Massachusetts, unless another date, place or time is
agreed to in writing by the Buyer and the Company. For purposes
of this Agreement, a
Business Day
shall be
any day other than (a) a Saturday or Sunday or (b) a
day on which banking institutions located in Boston,
Massachusetts or New York, New York are permitted or required by
law, executive order or governmental decree to remain closed.
1.3
Effects of the Merger
.
At the
Effective Time (a) the Transitory Subsidiary shall be
merged with and into the Company and, as a result of the Merger,
the separate corporate existence of Transitory Subsidiary shall
cease and the Company shall continue as the Surviving
Corporation of the Merger and (b) the Certificate of
Incorporation of the Company as in effect on the date of this
Agreement shall be amended in its entirety as set forth on
Exhibit A
hereto, and, as so amended, such
Certificate of Incorporation shall be the Certificate of
Incorporation of the Surviving Corporation, until further
amended in accordance with the DGCL. In addition, subject to
Section 6.8(b) hereof, after the Effective Time the Buyer
shall cause the By-laws of the Surviving Corporation to be
amended and restated in their entirety so that, as soon as
practicable following the Effective Time, they are identical to
the By-laws of the Transitory Subsidiary as in effect
immediately prior to the
A-7
Effective Time, except that all references to the name of the
Transitory Subsidiary therein shall be changed to refer to the
name of the Company, and, as so amended and restated, such
By-laws shall be the By-laws of the Surviving Corporation, until
further amended in accordance with the DGCL. The Merger shall
have the effects set forth in Section 259 of the DGCL.
1.4
Directors and Officers of the Surviving
Corporation
.
(a) The directors of the Transitory Subsidiary immediately
prior to the Effective Time shall be the directors of the
Surviving Corporation, each to hold office until their
respective successors are duly elected or appointed and
qualified or their earlier death, resignation or removal in
accordance with the Certificate of Incorporation and By-laws of
the Surviving Corporation.
(b) The officers of the Company immediately prior to the
Effective Time shall be the officers of the Surviving
Corporation, each to hold office until their respective
successors are duly elected or appointed and qualified or their
earlier death, resignation or removal in accordance with the
Certificate of Incorporation and By-laws of the Surviving
Corporation.
ARTICLE II
CONVERSION
OF SECURITIES
2.1
Conversion of Capital
Stock
.
As of the Effective Time, by virtue of
the Merger and without any action on the part of the holder of
any shares of the capital stock of the Company or capital stock
of the Transitory Subsidiary:
(a)
Capital Stock of the Transitory
Subsidiary
.
Each share of the common stock,
par value $0.001 per share, of the Transitory Subsidiary issued
and outstanding immediately prior to the Effective Time shall be
converted into and become one fully paid and nonassessable share
of common stock, $0.001 par value per share, of the
Surviving Corporation.
(b)
Cancellation of Treasury Stock and Buyer-Owned
Stock
.
All shares of common stock,
$0.001 par value per share, of the Company
(
Company Common Stock
) that are owned by the
Company as treasury stock and any shares of Company Common Stock
owned by the Buyer, the Transitory Subsidiary or any other
wholly owned Subsidiary of the Buyer immediately prior to the
Effective Time shall be cancelled and shall cease to exist and
no stock of the Buyer or other consideration shall be delivered
in exchange therefor. Shares of Company Common Stock owned by
any wholly owned Subsidiary of the Company shall remain
outstanding.
(c)
Merger Consideration for Company Common
Stock
.
Subject to Section 2.2, each
share of Company Common Stock (other than shares to be cancelled
in accordance with Section 2.1(b), Dissenting Shares (as
defined in Section 2.4(a) below) and Company Common Stock
owned by any wholly owned Subsidiary of the Company) issued and
outstanding immediately prior to the Effective Time shall be
automatically converted into the right to receive $7.65 in cash
per share (the
Merger Consideration
). As of
the Effective Time, all such shares of Company Common Stock
shall no longer be outstanding and shall automatically be
cancelled and shall cease to exist, and each holder of a
certificate 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 pursuant to this
Section 2.1(c) upon the surrender of such certificate in
accordance with Section 2.2, without interest.
(d)
Adjustments to Merger
Consideration
.
The Merger Consideration shall
be adjusted, without duplication, to reflect fully the effect of
any reclassification, stock split, reverse split, stock dividend
(including any dividend or distribution of securities
convertible into Company Common Stock), reorganization,
recapitalization or other like change with respect to Company
Common Stock occurring after the date hereof and prior to the
Effective Time.
A-8
2.2
Exchange of Certificates
.
The
procedures for exchanging outstanding shares of Company Common
Stock for the Merger Consideration pursuant to the Merger are as
follows:
(a)
Exchange Agent
.
At or prior to
the Effective Time, the Buyer shall deposit or cause to be
deposited with Computershare Trust Company, N.A. or another
bank or trust company mutually acceptable to the Buyer and the
Company (the Exchange Agent), for the benefit of the
holders of shares of Company Common Stock outstanding
immediately prior to the Effective Time, for payment through the
Exchange Agent in accordance with this Section 2.2, cash in
an amount sufficient to make payment of the Merger Consideration
pursuant to Section 2.1(c) in exchange for all of the
outstanding shares of Company Common Stock (the Exchange
Fund).
(b)
Exchange Procedures
.
Promptly
(and in any event within three (3) Business Days) after the
Effective Time, the Buyer shall cause the Exchange Agent to mail
to each holder of record of a certificate which immediately
prior to the Effective Time represented outstanding shares of
Company Common Stock (each, a Certificate)
(i) a letter of transmittal in customary form and
(ii) instructions for effecting the surrender of the
Certificates in exchange for the Merger Consideration payable
with respect thereto. Upon surrender of a Certificate for
cancellation to the Exchange Agent, together with such letter of
transmittal, duly executed, the holder of such Certificate shall
be paid promptly in exchange therefor cash in an amount equal to
the Merger Consideration that such holder has the right to
receive pursuant to the provisions of this Article II, and
the Certificate so surrendered shall immediately be cancelled.
In the event of a transfer of ownership of Company Common Stock
which is not registered in the transfer records of the Company,
the Merger Consideration may be paid to a person other than the
person in whose name the Certificate so surrendered is
registered, if such Certificate is presented to the Exchange
Agent, accompanied by all documents required to evidence and
effect such transfer and by evidence that any applicable stock
transfer taxes have been paid. Until surrendered as contemplated
by this Section 2.2, each Certificate shall be deemed at
any time after the Effective Time to represent only the right to
receive upon such surrender the Merger Consideration as
contemplated by this Section 2.2.
(c)
No Further Ownership Rights in Company Common
Stock
.
All Merger Consideration paid upon the
surrender for exchange of Certificates evidencing shares of
Company Common Stock in accordance with the terms hereof shall
be deemed to have been paid in satisfaction of all rights
pertaining to such shares of Company Common Stock, and from and
after the Effective Time there shall be no further registration
of transfers on the stock transfer books of the Surviving
Corporation of the shares of Company Common Stock which were
outstanding immediately prior to the Effective Time. If, after
the Effective Time, Certificates are presented to the Surviving
Corporation or the Exchange Agent for any reason, they shall be
cancelled and exchanged as provided in this Article II.
(d)
Termination of Exchange
Fund
.
Any portion of the Exchange Fund which
remains undistributed to the holders of Company Common Stock for
one year after the Effective Time shall be delivered to the
Buyer, upon demand, and any holder of Company Common Stock who
has not previously complied with this Section 2.2 shall be
entitled to receive only from the Buyer payment of its claim for
Merger Consideration.
(e)
No Liability
.
Notwithstanding
anything herein to the contrary, none of the Buyer, the
Transitory Subsidiary, the Company, the Surviving Corporation or
the Exchange Agent shall be liable to any holder of shares of
Company Common Stock for any amount delivered to a public
official pursuant to any applicable abandoned property, escheat
or similar law.
(f)
Withholding Rights
.
Each of
the Buyer, the Exchange Agent and the Surviving Corporation
shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of
shares of Company Common Stock such amounts as it is required to
deduct and withhold with respect to the making of such payment
under the Internal Revenue Code of 1986, as amended (the
Code
), or any other applicable state, local
or foreign tax law. To the extent that amounts are so withheld
by the Surviving Corporation, the Exchange Agent or the Buyer,
as the case may be, such withheld amounts (i) shall be
remitted by the Buyer, the Exchange Agent or the Surviving
Corporation, as the case may be, to the applicable Governmental
Entity, and (ii) shall be treated for all purposes of this
A-9
Agreement as having been paid to the holder of the shares of
Company Common Stock in respect of which such deduction and
withholding was made by the Surviving Corporation, the Exchange
Agent or the Buyer, as the case may be.
(g)
Lost Certificates
.
If any
Certificate shall have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed, the Exchange Agent
shall issue in exchange for such lost, stolen or destroyed
Certificate the Merger Consideration deliverable in respect
thereof pursuant to this Agreement;
provided
,
however
, that the Exchange Agent may, in its discretion
and as a condition precedent to the payment of the Merger
Consideration, require the owners of such lost, stolen or
destroyed Certificates to deliver a bond in such sum as it may
reasonably direct as indemnity against any claim that may be
made against Buyer, the Exchange Agent and the Surviving
Corporation with respect to the Certificates alleged to have
been lost, stolen or destroyed.
2.3
Company Stock Plans
.
(a) The Company shall take such action as shall be required:
(i) to cause the vesting of any unvested options to
purchase Company Common Stock (Company Stock
Options) granted under any stock option plans or other
equity-related plans of the Company (the Company Stock
Plans) to be accelerated in full effective immediately
prior to the Effective Time;
(ii) to effectuate the cancellation, as of the Effective
Time, of all Company Stock Options outstanding immediately prior
to the Effective Time (without regard to the exercise price of
such Company Stock Options); and
(iii) to cause, pursuant to the Company Stock Plans, each
outstanding Company Stock Option to represent as of the
Effective Time solely the right to receive, in accordance with
this Section 2.3, a lump sum cash payment in the amount of
the Option Consideration (as defined below), if any, with
respect to such Company Stock Option and to no longer represent
the right to purchase Company Common Stock or any other equity
security of the Company, the Buyer, the Surviving Corporation or
any other person or any other consideration;
provided
that with respect to each Company Stock Option granted under the
Companys 2007 Stock Incentive Plan to employees resident
in the United Kingdom (a
UK Stock Option
),
the Company shall provide the holder thereof with
(A) notice that the Company Stock Option will terminate
immediately prior to the Effective Time and represent as of the
Effective Time solely the right to receive, in accordance with
this Section 2.3, a lump sum cash payment in the amount of
the Option Consideration (as defined below), if any, with
respect to such Company Stock Option, and (B) the
opportunity to exercise the Company Stock Option prior to the
Effective Time.
(b) Each holder of a Company Stock Option so cancelled
shall receive from the Buyer, in respect and in consideration of
each such Company Stock Option, as soon as practicable following
the Effective Time (but in any event not later than three
Business Days), an amount (net of applicable taxes) equal to the
product of (i) the excess, if any, of (A) the Merger
Consideration per share of Company Common Stock over
(B) the exercise price per share of Company Common Stock
subject to such Company Stock Option, multiplied by
(ii) the total number of shares of Company Common Stock
subject to such Company Stock Option (whether or not then vested
or exercisable), without any interest thereon (the Option
Consideration). In the event that the exercise price of
any Company Stock Option is equal to or greater than the Merger
Consideration, such Company Stock Option shall be cancelled and
have no further force or effect.
(c) As soon as practicable following the execution of this
Agreement, the Company shall mail to each person who is a holder
of Company Stock Options a letter describing the treatment of
and, if applicable, payment for such Company Stock Options
pursuant to this Section 2.3 and providing instructions for
use in obtaining payment for such Company Stock Options. The
Buyer shall at all times from and after the Effective Time
maintain sufficient liquid funds to satisfy its obligations to
holders of Company Stock Options pursuant to this
Section 2.3.
A-10
2.4
Dissenting Shares
.
(a) Notwithstanding anything to the contrary contained in
this Agreement, shares of Company Common Stock held by a holder
who has made a demand for appraisal of such shares of Company
Common Stock in accordance with the DGCL (any such shares being
referred to as Dissenting Shares until such time as
such holder fails to perfect or otherwise loses such
holders appraisal rights under the DGCL with respect to
such shares) shall, subject to Section 2.4(b), not be
converted into or represent the right to receive Merger
Consideration in accordance with Section 2.1, but shall be
entitled only to such rights as are granted by the DGCL to a
holder of Dissenting Shares.
(b) If any Dissenting Shares shall lose their status as
such (through failure to perfect or otherwise), then, as of the
later of the Effective Time or the date of loss of such status,
such shares shall automatically be converted into and shall
represent only the right to receive Merger Consideration in
accordance with Section 2.1, without interest thereon, upon
surrender of the Certificate formerly representing such shares.
(c) The Company shall give the Buyer: (i) prompt
notice and a copy of any written demand for appraisal received
by the Company prior to the Effective Time pursuant to the DGCL,
any withdrawal of any such demand and any other demand, notice
or instrument delivered to the Company prior to the Effective
Time pursuant to the DGCL that relate to such demand; and
(ii) the opportunity to participate in all negotiations and
proceedings with respect to any such demand, notice or
instrument. The Company shall not make any payment or settlement
offer or agree to do either of the foregoing prior to the
Effective Time with respect to any such demand, notice or
instrument unless the Buyer shall have given its written consent
to such payment or settlement offer or agreement.
ARTICLE III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Buyer and the
Transitory Subsidiary that the statements contained in this
Article III are true and correct, except as set forth in
(x) the corresponding section of the disclosure schedule
delivered by the Company to the Buyer and the Transitory
Subsidiary and dated as of the date of this Agreement (the
Company Disclosure Schedule
), (y) any
other section of the Company Disclosure Schedule to the extent
it is readily apparent from a reading of such disclosure that
such disclosure is applicable to such statement in this
Article III or (z) as disclosed in any Company SEC
Report filed on or after December 31, 2008 and prior to the
date hereof (the
Filed Company SEC Reports
),
other than disclosure in such Company SEC Reports referred to in
the Risk Factors and Forward Looking
Statements sections thereof or any other disclosures in
the Filed Company SEC Reports which are forward-looking in
nature.
3.1
Organization, Standing and
Power
.
The Company is a corporation duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite
corporate power and authority to own, lease and operate its
properties and assets and to carry on its business as now being
conducted. Where applicable as a legal concept, the Company is
duly qualified to do business and in good standing as a foreign
corporation in each jurisdiction in which the character of the
properties it owns, operates or leases or the nature of its
activities makes such qualification necessary, except for such
failures to be so qualified or in good standing that,
individually or in the aggregate, have not had and would not
reasonably be likely to have a Company Material Adverse Effect.
The Company has made available to the Buyer complete and correct
copies of the certificate of incorporation and bylaws of the
Company, as amended to the date of this Agreement, and is not in
violation in any material respect of any of the provisions
contained in such documents. For purposes of this Agreement, the
term
Company Material Adverse Effect
means
any effect, change, event, circumstance or development (each, an
Effect
) that is, or would be reasonably
likely to be, individually or in the aggregate, materially
adverse to the business, financial condition or results of
operations of the Company and its Subsidiaries, taken as a
whole;
provided
,
however
, that none of the
following, or any Effect arising or resulting from any of the
following, shall constitute, or shall be considered
A-11
in determining whether there has occurred, or may, would or
could occur, a Company Material Adverse Effect:
(a) general economic conditions (or changes in such
conditions) in the United States or any other country or region
in the world, or conditions in the global economy generally;
(b) conditions (or changes in such conditions) in the
securities markets, credit markets, currency markets or other
financial markets in the United States or any other country or
region in the world, including (i) changes in interest
rates in the United States or any other country or region in the
world and changes in exchange rates for the currencies of any
countries and (ii) any suspension of trading in securities
(whether equity, debt, derivative or hybrid securities)
generally on any securities exchange or
over-the-counter
market operating in the United States or any other country or
region in the world;
(c) conditions (or changes in conditions) in the industries
or markets in which the Company operates;
(d) political conditions (or changes in such conditions) in
the United States or any other country or region in the world or
acts of war, sabotage or terrorism (including any escalation or
general worsening of any such acts of war, sabotage or
terrorism) in the United States or any other country or region
in the world occurring after the date hereof;
(e) earthquakes, hurricanes, tsunamis, tornadoes, floods,
mudslides, wild fires or other natural disasters, weather
conditions and other force majeure events in the United States
or any other country or region in the world occurring after the
date hereof;
(f) the announcement of this Agreement or the pendency or
consummation of the transactions contemplated hereby, including
the identity of the Buyer or the termination or potential
termination of (or the failure or potential failure to renew or
enter into) any contracts with customers, suppliers,
distributors or other business partners, to the extent caused by
the pendency or the announcement of the transactions
contemplated by this Agreement;
(g) changes after the date hereof in law or other legal or
regulatory conditions (or the interpretation thereof) or changes
after the date hereof in GAAP or other accounting standards (or
the interpretation thereof) or that result from any action taken
for the purpose of complying with any such changes;
(h) any actions taken or failure to take action, in each
case, to which the Buyer has approved, consented to or requested
in writing; or compliance with the terms of, or the taking of
any action required by, this Agreement (including
Section 6.6 but excluding the first sentence of
Section 5.1);
(i) any fees or expenses incurred in connection with the
transactions contemplated by this Agreement;
(j) changes in the Companys stock price or the
trading volume of the Companys stock, or any failure by
the Company to meet any public estimates or expectations of the
Companys revenue, earnings or other financial performance
or results of operations for any period, or any failure by the
Company to meet any internal budgets, plans or forecasts of its
revenues, earnings or other financial performance or results of
operations (
provided
that the exception in this clause
shall not prevent or otherwise affect a determination that any
Effect underlying such change or failure has resulted in, or
contributed to, a Company Material Adverse Effect); and
(k) any legal proceedings made or brought by any of the
current or former stockholders of the Company (on their own
behalf or on behalf of the Company) against the Company arising
out of or related to this Agreement or the Merger;
provided
, further, however, that any Effect referred to
in clauses (a) through (e) may be taken into account
for purposes of each such respective clause if, and only to the
extent that, such Effect adversely affects the Company and its
Subsidiaries, taken as a whole, in a materially disproportionate
manner relative to (x) other participants operating in
industries in which the Company and its Subsidiaries operate in
the case of clause (c) or (y) other participants
operating in industries and the affected geography in
A-12
which the Company and its Subsidiaries operate in the case of
clauses (a), (b), (d) and (e). With respect to references
to Company Material Adverse Effect in the
representations and warranties set forth in Section 3.4(b)
and Section 3.4(c) the exception set forth in
clause (f) shall not apply.
3.2
Capitalization
.
(a) The authorized capital stock of the Company as of the
date of this Agreement consists of 350,000,000 shares of
Company Common Stock and 10,000,000 shares of preferred
stock, $0.001 par value per share (
Company
Preferred Stock
). The rights and privileges of each
class of the Companys capital stock are as set forth in
the Companys Certificate of Incorporation. As of the close
of business on December 11, 2009,
(i) 62,879,603 shares of Company Common Stock were
issued and outstanding, (ii) 13,724,285 shares of
Company Common Stock were reserved for issuance pursuant to
outstanding Company Stock Options and (iii) no shares of
Company Preferred Stock were issued or outstanding. There are no
unvested restricted stock awards of Company Common Stock
outstanding.
(b) Section 3.2(b) of the Company Disclosure Schedule
sets forth a complete and accurate list, as of the close of
business on December 11, 2009, of: (i) all Company
Stock Plans, indicating for each Company Stock Plan, as of such
date, the number of shares of Company Common Stock issued under
such Plan, the number of shares of Company Common Stock subject
to outstanding options under such Plan and the number of shares
of Company Common Stock reserved for future issuance under such
Plan; and (ii) all outstanding Company Stock Options,
indicating with respect to each such Company Stock Option the
name of the holder thereof, the Company Stock Plan under which
it was granted, the number of shares of Company Common Stock
subject to such Company Stock Option, the exercise price, the
date of grant, and the vesting schedule. The Company has made
available to the Buyer complete and accurate copies of all
Company Stock Plans and the forms of all stock option agreements
evidencing Company Stock Options.
(c) Except (i) as set forth in this Section 3.2
and (ii) as reserved for future grants under Company Stock
Plans, as of the date of this Agreement, (A) there are no
equity securities of, or other equity or voting interest in, the
Company, or any security exchangeable or convertible into or
exercisable for such equity securities, issued, reserved for
issuance or outstanding and (B) there are no options,
warrants, equity securities, calls, rights, commitments or other
rights or agreements of any character to which the Company or
any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound obligating the Company or any
of its Subsidiaries to issue, exchange, transfer, deliver or
sell, or cause to be issued, exchanged, transferred, delivered
or sold, any capital stock or other equity or voting interests
of the Company or any security or rights convertible into or
exchangeable or exercisable for any such shares or other equity
interests, or obligating the Company or any of its Subsidiaries
to grant, extend, accelerate the vesting of, otherwise modify or
amend or enter into any such option, warrant, equity security,
call, right, commitment, agreement or other similar contract
relating to any capital stock of, or other equity or voting
interest (including any voting debt) including any agreements
granting any preemptive rights, subscription rights,
anti-dilutive rights, rights of first refusal or similar rights
with respect to any securities of the Company. The Company does
not have any outstanding equity compensation relating to the
capital stock of the Company. Neither the Company nor any of its
Subsidiaries has any obligation to make any payments based on
the price or value of Company Common Stock or any other
securities of the Company or dividends paid thereon. No direct
or indirect Subsidiary of the Company owns any Company Common
Stock. Neither the Company nor any of its Affiliates is a party
to or is bound by any agreements or understandings with respect
to the voting (including voting trusts and proxies) or sale or
transfer (including agreements imposing transfer restrictions)
of any shares of capital stock or other equity interests of the
Company or with respect to the election or appointment of
directors of the Company or its Subsidiaries. For purposes of
this Agreement, the term
Affiliate
when used
with respect to any party shall mean any person who is an
affiliate of that party within the meaning of
Rule 405 promulgated under the Securities Act of 1933, as
amended (the
Securities Act
). There are no
registration rights, rights agreement, poison pill
anti-takeover plan or other similar agreement or understanding
to which the Company or any of its Subsidiaries is a party or by
which it or they are bound with respect to any equity security
of any class of the Company.
A-13
(d) All outstanding shares of Company Common Stock are, and
all shares of Company Common Stock subject to issuance as
specified in Section 3.2(b) above, upon issuance on the
terms and conditions specified in the instruments pursuant to
which they are issuable, will be, duly authorized, validly
issued, fully paid and nonassessable and not subject to or
issued in violation of any purchase option, call option, right
of first refusal, preemptive right, subscription right or any
similar right under any provision of the DGCL, the
Companys Certificate of Incorporation or By-laws or any
agreement to which the Company is a party or is otherwise bound.
(e) There are no obligations, contingent or otherwise, of
the Company or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any shares of Company Common Stock or the
capital stock of the Company or any of its Subsidiaries or to
provide funds to the Company or any Subsidiary of the Company
(other than as provided in award agreements relating to Company
Stock Options as they relate to using shares of Company Common
Stock to pay income Taxes) or any obligations binding on the
Company to grant or extend such rights.
(f) The Company Common Stock constitutes the only
outstanding class of securities of the Company registered under
the Securities Act or the Securities Exchange Act of 1934, as
amended (the Exchange Act).
(g) As of the date hereof, there is no outstanding
indebtedness for borrowed money of the Company and its
Subsidiaries other than indebtedness identified in
Section 3.2(g) of the Company Disclosure Schedule.
3.3
Subsidiaries
.
(a) Section 3.3 of the Company Disclosure Schedule
sets forth, as of the date of this Agreement, the name and
jurisdiction of organization of each Subsidiary of the Company
and sets forth a complete and accurate list of all outstanding
securities of each Subsidiary and the registered and beneficial
owner thereof. For purposes of this Agreement, the term
Subsidiary
means, with respect to any party,
any corporation, partnership, trust, limited liability company
or other non-corporate business enterprise in which such party
(or another Subsidiary of such party) holds stock or other
ownership interests representing (A) more that 50% of the
voting power of all outstanding stock or ownership interests of
such entity or (B) the right to receive more than 50% of
the net assets of such entity available for distribution to the
holders of outstanding stock or ownership interests upon a
liquidation or dissolution of such entity.
(b) Each Subsidiary of the Company is duly organized,
validly existing and in good standing (to the extent such
concepts are applicable) under the laws of the jurisdiction of
its organization, has all requisite company power and authority
to own, lease and operate its properties and assets and to carry
on its business as now being conducted. Where applicable as a
legal concept, each Subsidiary of the Company is duly qualified
to do business and in good standing as a foreign company in each
jurisdiction in which the character of the properties it owns,
operates or leases or the nature of its activities makes such
qualification necessary, except for such failures to be so
qualified or in good standing that, individually or in the
aggregate, have not had and would not reasonably be likely to
have a Company Material Adverse Effect. All of the outstanding
shares of capital stock and other equity securities or interests
of each Subsidiary of the Company are duly authorized, validly
issued, fully paid, nonassessable and free of preemptive rights
and all such shares are owned, of record and beneficially, by
the Company or another of its wholly-owned Subsidiaries free and
clear of all security interests, liens, claims, pledges,
agreements, limitations in the Companys voting rights,
charges or other encumbrances (including any restriction on the
right to vote, sell or otherwise dispose of such capital stock
or other equity or voting interests).
(c) Except as set forth in this Section 3.3,
(A) there are no equity securities of, or other equity or
voting interest in, any of the Subsidiaries of the Company, or
any security exchangeable or convertible into or exercisable for
such equity securities, issued, reserved for issuance or
outstanding and (B) there are no options, warrants, equity
securities, calls, rights, commitments or other rights or
agreements of any character to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound obligating the Company or any of its
Subsidiaries to issue, exchange, transfer, deliver or sell, or
cause to be issued, exchanged, transferred, delivered or sold,
any capital stock or other equity or voting interests of any of
the Companys Subsidiaries or any security or rights
convertible into or exchangeable or exercisable for any
A-14
such shares or other equity interests, or obligating the Company
or any of its Subsidiaries to grant, extend, accelerate the
vesting of, otherwise modify or amend or enter into any such
option, warrant, equity security, call, right, commitment,
agreement or other similar contract relating to any capital
stock of, or other equity or voting interest (including any
voting debt) including any agreements granting any preemptive
rights, subscription rights, anti-dilutive rights, rights of
first refusal or similar rights with respect to any securities
of the Companys Subsidiaries. None of the Companys
Subsidiaries has any outstanding equity compensation relating to
the capital stock of any of the Companys Subsidiaries.
Neither the Company nor any of its Subsidiaries has any
obligation to make any payments based on the price or value of
any securities of the Companys Subsidiaries or dividends
paid thereon. Neither the Company nor any of its Affiliates is a
party to or is bound by any agreements or understandings with
respect to the voting (including voting trusts and proxies) or
sale or transfer (including agreements imposing transfer
restrictions) of any shares of capital stock or other equity
interests of any of the Subsidiaries of the Company.
(d) The Company does not control directly or indirectly or
have any direct or indirect equity participation or similar
interest in (and neither the Company nor any of its Subsidiaries
has any obligation to make an investment in or capital
contribution to) any corporation, partnership, limited liability
company, joint venture, trust or other business association or
entity which is not a Subsidiary of the Company.
3.4
Authority; No Conflict; Required Filings and
Consents
.
(a) The Company has all requisite corporate power and
authority to enter into, execute and deliver this Agreement and
each Ancillary Agreement to which it is a party and, subject, in
the case of this Agreement, to the adoption of this Agreement
(the
Company Voting Proposal
) by the
Companys stockholders under the DGCL (the
Company
Stockholder Approval
), to perform its obligations
hereunder and thereunder and to consummate the transactions
contemplated by this Agreement and the Ancillary Agreements to
which it is a party. Without limiting the generality of the
foregoing, the Board of Directors of the Company (the
Company Board
), at a meeting duly called and
held, by the unanimous vote of all directors (i) determined
that the Merger is fair and in the best interests of the Company
and its stockholders, (ii) approved this Agreement, the
performance of the Company of its covenants and obligations
hereunder, and declared its advisability in accordance with the
provisions of the DGCL, (iii) directed that this Agreement
be submitted to the stockholders of the Company for their
adoption and recommended that the stockholders of the Company
vote in favor of the adoption of this Agreement,
(iv) approved each of the Ancillary Agreements to which the
Company is a party, and (v) to the extent necessary,
adopted a resolution having the effect of causing the Company
not to be subject to any state takeover law or similar law that
might otherwise apply to the Merger and any other transactions
contemplated by this Agreement or any Ancillary Agreement to
which the Company is a party. The execution and delivery of this
Agreement and the Ancillary Agreements to which the Company is a
party, the performance of the Company of its covenants and
obligations hereunder and thereunder, and the consummation of
the transactions contemplated by this Agreement and such
Ancillary Agreements by the Company have been duly authorized by
all necessary corporate action on the part of the Company, with
the consummation of such transactions contemplated by this
Agreement subject only to the required receipt of the Company
Stockholder Approval. This Agreement and each Ancillary
Agreement to which the Company is a party have been duly
executed and delivered by the Company and constitute the valid
and binding obligation of the Company, enforceable against the
Company in accordance with its and their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors rights and to general equity
principles (the
Bankruptcy and Equity
Exception
).
(b) The execution and delivery of this Agreement and the
Ancillary Agreements to which the Company is a party by the
Company do not, and the performance by the Company of its
obligations hereunder and under such Ancillary Agreements and
the consummation by the Company of the transactions contemplated
by this Agreement and the Ancillary Agreements to which the
Company is a party shall not, (i) conflict with, or result
in any violation or breach of, any provision of the Certificate
of Incorporation or By-laws of the Company or of the charter,
by-laws, or other organizational document of any Subsidiary of
the Company, (ii) conflict with, or result in any violation
or breach of, or constitute (with or without notice or lapse of
time, or both) a default (or give rise to a right of
termination, modification, cancellation or acceleration of any
A-15
obligation or loss of any material benefit) under, require a
consent or waiver under, constitute a change in control under,
require the payment of a penalty under or result in the
imposition of any mortgage, pledge, lien, charge, encumbrance,
option to purchase, lease or otherwise acquire any interest or
security interest (
Lien
) on the
Companys or any of its Subsidiarys properties,
rights or assets under, any of the terms, conditions or
provisions of any lease, license, contract or other agreement,
instrument or obligation to which the Company or any of its
Subsidiaries is a party or by which any of them or any of their
properties, rights or assets may be bound, or
(iii) subject, in the case of this Agreement, to obtaining
the Company Stockholder Approval and compliance with the
requirements specified in clauses (i) through (v) of
Section 3.4(c), conflict with or violate any permit,
concession, franchise, license, judgment, injunction, order,
decree, statute, law, ordinance, rule or regulation applicable
to the Company or any of its Subsidiaries or any of its or their
respective properties, rights or assets, except in the case of
clauses (ii) and (iii) of this Section 3.4(b) for
any such conflicts, violations, breaches, defaults,
terminations, modifications, cancellations, accelerations,
losses, penalties or Liens, and for any consents or waivers not
obtained, that, individually or in the aggregate, are not
reasonably likely to have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or
authorization of, or registration, declaration, notice or filing
with, any court, arbitrational tribunal, administrative agency
or commission or other governmental or regulatory authority,
agency or instrumentality (a
Governmental
Entity
) or any stock market or stock exchange on which
shares of Company Common Stock are listed for trading is
required by or with respect to the Company or any of its
Subsidiaries in connection with the execution and delivery by
the Company of this Agreement or any Ancillary Agreement to
which the Company is a party, the performance by the Company of
its obligations hereunder or thereunder or the consummation by
the Company of the transactions contemplated by this Agreement
or such Ancillary Agreements, except for (i) the pre-merger
notification requirements under the
Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the
HSR
Act
) and any other applicable foreign antitrust law,
(ii) the filing of the Certificate of Merger with the
Delaware Secretary of State and appropriate corresponding
documents with the appropriate authorities of other states in
which the Company is qualified as a foreign corporation to
transact business, (iii) filings required under, and
compliance with the requirements of, the Securities Act and
Exchange Act, (iv) such consents, approvals, orders,
authorizations, registrations, declarations and filings as may
be required under applicable state securities laws, and
(v) such other consents, approvals, licenses, permits,
orders, authorizations, registrations, declarations, notices and
filings which, if not obtained or made, would not be reasonably
likely to have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting
Proposal by the holders of at least a majority of the
outstanding shares of Company Common Stock on the record date
for the meeting of the Companys stockholders (the
Company Meeting) to consider the Company Voting
Proposal (the Required Company Stockholder Vote) is
the only vote of the holders of any class or series of the
Companys capital stock or other securities necessary for
the adoption of this Agreement and for the consummation by the
Company of the other transactions contemplated by this
Agreement. There are no bonds, debentures, notes or other
indebtedness of the Company having the right to vote (or
convertible into, or exchangeable for, securities having the
right to vote) on any matters on which stockholders of the
Company may vote.
3.5
SEC Filings; Financial Statements; Information
Provided
.
(a) The Company has filed all registration statements,
certifications, forms, reports and other documents required to
be filed by the Company with the Securities and Exchange
Commission (the SEC) since January 1, 2007. All
such registration statements, certifications, forms, reports and
other documents (including those that the Company may file after
the date hereof until the Closing) are referred to herein as the
Company SEC Reports. The Company SEC Reports
(i) were or will be filed on a timely basis, (ii) at
the time filed, complied, or will comply when filed, as to form
in all material respects with the applicable requirements of the
Securities Act, the Exchange Act and the Sarbanes-Oxley Act of
2002, as the case may be, and the rules and regulations of the
SEC thereunder applicable to such Company SEC Reports, and
(iii) did not or will not at the time they were or are
filed contain any untrue statement of a material fact or omit to
state a material fact required to be stated or incorporated in
such Company SEC Reports or necessary in order to make the
statements in such Company SEC Reports, in the light of the
circumstances under which made,
A-16
not misleading. As of the date of this Agreement, there are no
outstanding or unresolved comments in comment letters received
from the SEC. As of the date of this Agreement, the Company has
not received written notice that any of the Company SEC Reports
is the subject of ongoing SEC review that is still pending. No
Subsidiary of the Company is subject to the reporting
requirements of Section 13(a) or Section 15(d) of the
Exchange Act. No executive officer of the Company has failed to
make the certifications required of him or her under
section 302 or 906 of the Sarbanes-Oxley Act. Neither the
Company nor any of its executive officers has received written
notice from any Governmental Entity challenging or questioning
the accuracy of such certifications.
(b) Each of the consolidated financial statements
(including, in each case, any related notes and schedules)
contained (or incorporated by reference) or to be contained (or
to be incorporated by reference) in the Company SEC Reports (the
Financial Statements) at the time filed
(i) complied or will comply as to form in all material
respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto,
(ii) were or will be prepared in accordance with United
States generally accepted accounting principles
(GAAP) applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to
such Financial Statements or, in the case of unaudited interim
financial statements, as permitted by the SEC on
Form 10-Q
under the Exchange Act), and (iii) fairly presented or will
fairly present in all material respects the consolidated
financial position of the Company and its Subsidiaries as of the
dates indicated and the consolidated results of their operations
and cash flows for the periods indicated, except that the
unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments. Since January 1,
2008, there has been no material change in the Companys
accounting methods or principles that would be required to be
disclosed in the Companys Financial Statements in
accordance with GAAP, except as described in the notes to such
Company Financial Statements. There are no unconsolidated
Subsidiaries of the Company or any off-balance sheet
arrangements of any type (including any off-balance sheet
arrangement required to be disclosed pursuant to
Item 303(a)(4) of
Regulation S-K
promulgated under the Securities Act) that have not been so
described in the Company SEC Reports nor any obligations to
enter into any such arrangements. The consolidated, unaudited
balance sheet of the Company as of June 28, 2009 is
referred to herein as the Company Balance Sheet.
(c) The proxy statement to be sent to the stockholders of
the Company in connection with the Company Meeting (as amended
or supplemented from time to time, the Proxy
Statement) and the
Rule 13E-3
transaction statement on
Schedule 13E-3
relating to the adoption of this Agreement by the stockholders
of the Company (as amended or supplemented from time to time,
the Schedule 13E-3) shall not, on the date the Proxy
Statement (including any amendment or supplement) is first
mailed to stockholders of the Company or at the time of the
Company Meeting, or, in the case of the
Schedule 13E-3
(including any amendment or supplement or document to be
incorporated by reference), on the date it is filed with the
SEC, contain any statement which, at such time and in light of
the circumstances under which made, is false or misleading with
respect to any material fact, or omit to state any material fact
required to be stated therein or necessary in order to make the
statements made therein not false or misleading in light of the
circumstances under which made; or, with respect to the Proxy
Statement, omit to state any material fact required to be stated
therein or necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for
the Company Meeting which has become false or misleading. The
Proxy Statement and the
Schedule 13E-3
will comply as to form in all material respects with the
requirements of the Exchange Act. Notwithstanding the foregoing,
the Company makes no representation or warranty with respect to
information supplied by or on behalf of the Buyer or the
Transitory Subsidiary for inclusion or incorporation by
reference in the Proxy Statement or the
Schedule 13E-3.
If at any time prior to the Company Meeting any fact or event
relating to the Company or any of its Affiliates which should be
set forth in an amendment or supplement to the Proxy Statement
or the Schedule 13E-3 should be discovered by the Company or
should occur, the Company shall, promptly after becoming aware
thereof, inform the Buyer of such fact or event.
(d) The Company has implemented disclosure controls and
procedures (as defined in
Rule 13a-15(e)
of the Exchange Act) that are reasonably designed to ensure that
material information relating to the Company, including its
Subsidiaries, required to be included in reports filed under the
Exchange Act is made known to the chief executive officer and
chief financial officer of the Company by others within those
entities. Neither
A-17
the Company nor, to the Companys Knowledge, the
Companys independent registered public accounting firm,
has identified or been made aware of significant
deficiencies or material weaknesses (as
defined by the Public Company Accounting Oversight Board) in the
design or operation of the Companys internal controls and
procedures which could reasonably adversely affect the
Companys ability to record, process, summarize and report
financial data, in each case which has not been subsequently
remediated. To the Companys Knowledge, there is no fraud,
whether or not material, that involves the Companys
management or other employees who have a significant role in the
preparation of financial statements or the internal control over
financial reporting utilized by the Company and its
Subsidiaries. As of the date hereof, neither the Company nor any
of its Subsidiaries has outstanding, extensions of
credit to directors or executive officers of the Company
within the meaning of Section 402 of the Sarbanes-Oxley Act
of 2002. The Company is in compliance with the applicable
listing and other rules and regulations of The Nasdaq Global
Market.
3.6
No Undisclosed
Liabilities
.
Except (i) as disclosed in
the Company Balance Sheet, (ii) for contractual liabilities
or liabilities, in each case incurred in the ordinary course of
business consistent in all material respects with past practice
(the Ordinary Course of Business) after the date of
the Company Balance Sheet and (iii) for liabilities
incurred in accordance with this Agreement, the Company and its
Subsidiaries do not have any liabilities (whether accrued,
absolute, contingent or otherwise) of any nature, either matured
or unmatured that, individually or in the aggregate, are
reasonably likely to have a Company Material Adverse Effect.
3.7
Absence of Certain Changes or
Events
.
Since December 28, 2008, there
has not been a Company Material Adverse Effect. Since the date
of the Company Balance Sheet, (a) the Company and its
Subsidiaries have conducted their respective businesses only in
the Ordinary Course of Business and (b) there has not been
any other action or event that would have required the consent
of the Buyer or be prohibited under Section 5.1 of this
Agreement (other than paragraphs (b), (k) and (l) of
Section 5.1) had such action or event occurred after the
date of this Agreement.
3.8
Taxes
.
(a) Each of the Company and its Subsidiaries has filed all
material Tax Returns that it was required to file, and all such
Tax Returns were correct and complete in all material respects.
(b) Each of the Company and its Subsidiaries has paid on a
timely basis all Taxes due and payable, whether or not shown to
be due on any such Tax Return or, where payment is not yet due,
has made adequate provision for all Taxes in the Financial
Statements of the Company in accordance with GAAP. For purposes
of this Agreement, (i)
Taxes
means all
taxes, charges, fees, levies or other similar assessments or
liabilities, including income, gross receipts, ad valorem,
premium, value-added, excise, real property, personal property,
sales, use, services, transfer, withholding, employment, payroll
and franchise taxes imposed by the United States of America
or any state, local or foreign government, or any agency
thereof, or other political subdivision of the United States or
any such government, and any interest, fines, penalties,
assessments or additions to tax resulting from, attributable to
or incurred in connection with any tax or any contest or dispute
thereof and (ii)
Tax Returns
means all
reports, returns, declarations, statements or other information
required to be supplied to a taxing authority in connection with
Taxes.
(c) The Company has made available to the Buyer correct and
complete copies of all federal income and other material Tax
Returns, examination reports and statements of deficiencies
assessed against or agreed to by the Company or any of its
Subsidiaries since January 1, 2005. The federal income Tax
Returns of the Company and each of its Subsidiaries have been
audited by the Internal Revenue Service (the
IRS
) or are closed by the applicable statute
of limitations for all taxable years through the taxable year
specified in Section 3.8(c) of the Company Disclosure
Schedule. No material examination or audit of any Tax Return of
the Company or any of its Subsidiaries by any Governmental
Entity is currently in progress or, to the Companys
Knowledge, threatened or contemplated and there is no
outstanding assessment, dispute or claim concerning any material
Tax liability of the Company or any of its Subsidiaries.
(d) Neither the Company nor any of its Subsidiaries will be
required to include any item of income in, or exclude any item
of deduction from, taxable income for any taxable period or
portion thereof ending after the
A-18
Closing Date as a result of any change in the method of
accounting for a taxable period or portion thereof ending on or
prior to the Closing Date, closing agreement as
described in Section 7121 of the Code (or any corresponding
or similar provision of state, local or foreign income Tax law)
executed on or prior to the Closing Date, or material prepaid
amount received on or prior to the Closing Date.
(e) Neither the Company nor any of its Subsidiaries:
(i) has made any payments, is obligated to make any
payments, or is a party to any agreement that could obligate it
to make any payments that will be treated as an excess
parachute payment under Section 280G of the Code; or
(ii) has any actual or potential liability for any Taxes of
any person (other than the Company and its Subsidiaries) under
Treasury
Regulation Section 1.1502-6
(or any similar provision of law in any jurisdiction), or as a
transferee or successor, by contract or otherwise.
(f) Neither the Company nor any of its Subsidiaries
(i) is or has ever been a member of a group of corporations
with which it has filed (or been required to file) consolidated,
combined or unitary Tax Returns, other than a group of which
only the Company and its Subsidiaries are or were members or
(ii) is a party to or bound by or has any continuing
obligation under any Tax indemnity, Tax sharing or Tax
allocation agreement.
(g) All Taxes required to be withheld, collected or
deposited by or with respect to the Company and each of its
Subsidiaries have been timely withheld, collected or deposited
as the case may be, and, to the extent required, have been paid
to the relevant taxing authority.
(h) Neither the Company nor any of its Subsidiaries has
been either a distributing corporation or a
controlled corporation in a distribution occurring
during the last two (2) years in which the parties to such
distribution treated the distribution as one to which
Section 355 of the Code is applicable.
(i) Neither the Company nor any of its Subsidiaries has
entered into a listed transaction that has given
rise to a disclosure obligation under Section 6011 of the
Code and the Treasury Regulations promulgated thereunder, and
there are no Tax Liens upon any of the assets or properties of
the Company or any of its Subsidiaries.
3.9
Owned and Leased Real Properties
.
(a) Neither the Company nor any of its Subsidiaries owns
any real property.
(b) Section 3.9(b) of the Company Disclosure Schedule
sets forth a complete and accurate list as of the date of this
Agreement of all material real property leased, subleased or
licensed to or by the Company or any of its Subsidiaries,
whether as sublandlord, tenant or subtenant, (collectively
Company Leases) and the location of the premises.
Each of the Company Leases is a valid and binding obligation of
the Company or one of its Subsidiaries, enforceable in
accordance with its terms. Neither the Company nor any of its
Subsidiaries nor, to the Companys Knowledge, any other
party to any Company Lease is in default under any of the
Company Leases, except where the existence of such defaults,
individually or in the aggregate, has not had and is not
reasonably likely to have a Company Material Adverse Effect.
Neither the Company nor any of its Subsidiaries leases,
subleases or licenses any real property to any person other than
the Company and its Subsidiaries. The Company has made available
to the Buyer complete and accurate copies of all Company Leases.
3.10
Intellectual Property
.
(a) The Company and its Subsidiaries own, license,
sublicense or otherwise possess legally enforceable rights to
use, free and clear of all Liens, all Intellectual Property
necessary to conduct the business of the Company and its
Subsidiaries as currently conducted, the absence of which,
individually or in the aggregate, is not reasonably likely to
have a Company Material Adverse Effect. For purposes of this
Agreement, the term
Intellectual Property
means all intellectual and industrial property rights, including
(i) patents, trademarks, service marks, trade names, domain
names, other source indicators, copyrights, designs and trade
secrets, (ii) applications for and registrations of such
patents, trademarks, service marks, trade names, domain names,
other source indicators, copyrights and designs,
(iii) processes, formulae, methods, schematics, technology,
A-19
know-how, computer software programs and applications (including
source and object code) and systems and (iv) other tangible
or intangible proprietary or confidential information and
materials.
(b) The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions
contemplated hereby will not result in the breach of, or create
on behalf of any third party the right to terminate, accelerate
or modify, (i) any license, sublicense or other agreement
relating to any Intellectual Property owned by the Company that
is material to the business of the Company and its Subsidiaries,
taken as a whole (the
Company Intellectual
Property
), or (ii) any license, sublicense and
other agreement as to which the Company or any of its
Subsidiaries is a party and pursuant to which the Company or any
of its Subsidiaries is authorized to use any third party
Intellectual Property that is material to the business of the
Company and its Subsidiaries, taken as a whole, excluding
generally commercially available,
off-the-shelf
software licenses with less than $100,000 in annual license fees
(the
Third Party Intellectual Property
).
Section 3.10(b)(i) of the Company Disclosure Schedule sets
forth a complete and accurate list of all patents and patent
applications and trademark registrations and applications,
copyright registrations and domain names owned by the Company or
its Subsidiaries and Section 3.10(b)(ii) of the Company
Disclosure Schedule sets forth a complete and accurate list of
all licenses for Third Party Intellectual Property.
(c) All patents and applications and registrations for
patents, trademarks, service marks and copyrights which are held
by the Company or any of its Subsidiaries and which are material
to the business of the Company and its Subsidiaries, taken as a
whole, as currently conducted, are subsisting. No patent or
applications and registrations for patents, trademarks, service
marks or copyrights have unintentionally expired or been
abandoned or cancelled and, to the Companys Knowledge,
there are no claims challenging the validity or enforceability
of the Company Intellectual Property. To the Companys
Knowledge, no third party is infringing, violating or
misappropriating any of the Company Intellectual Property,
except for infringements, violations or misappropriations that,
individually or in the aggregate, are not reasonably likely to
have a Company Material Adverse Effect.
(d) The conduct of the business of the Company and its
Subsidiaries as currently conducted does not infringe, violate
or constitute a misappropriation of any Intellectual Property of
any third party, except for such infringements, violations and
misappropriations that, individually or in the aggregate, are
not reasonably likely to have a Company Material Adverse Effect.
Since January 1, 2005, neither the Company nor any of its
Subsidiaries has received any written claim or notice (including
cease and desist letters or invitations to take a patent
license) alleging any infringement, violation or
misappropriation of any Intellectual Property.
(e) None of the software that is distributed or made
available to others by the Company incorporates or is derived
from any software subject to an open source or
similar license that requires the licensing or distribution of
its source code to others. No source code for the Companys
software has been deposited in escrow, and none of the
Companys source code has been made available to any third
party except for such disclosures that, individually or in the
aggregate, are not reasonably likely to have a Company Material
Adverse Effect.
(f) Except as would not, individually or in the aggregate,
be reasonably likely to have a Company Material Adverse Effect:
(i) the Company and its Subsidiaries have taken
commercially reasonable steps to protect and maintain
(x) their confidential information and trade secrets,
(y) their sole ownership of material proprietary
Intellectual Property (including by entering into Intellectual
Property assignment agreements with all persons who have created
or contributed to material proprietary Intellectual Property)
and (z) the security and integrity of their material
systems and software; and (ii) to the Companys
Knowledge, all software and systems owned or used by the Company
or its Subsidiaries are (x) free from any material defect,
bug, virus, error or corruptant, and (y) fully functional
and operate and run in a reasonable and efficient business
manner.
3.11
Contracts
.
(a) Section 3.11(a) of the Company Disclosure Schedule
sets forth a complete and accurate list of all contracts and
agreements to which the Company or any of its Subsidiaries is a
party as of the date of this Agreement that are material to the
business, financial condition or results of operations of the
Company and
A-20
its Subsidiaries, taken as a whole, including without limitation
(collectively, the
Company Material
Contracts
):
(i) any agreement, contract or commitment in connection
with which or pursuant to which the Company and its Subsidiaries
will spend or receive (or are expected to spend or receive), in
the aggregate, more than $100,000 during the current fiscal year
or during the next fiscal year;
(ii) any non-competition or other agreement that prohibits
or otherwise restricts in any material respect, the Company or
any of its Subsidiaries or Affiliates from freely engaging in
business anywhere in the world (including any agreement
restricting the Company or any of its Subsidiaries or Affiliates
from competing in any line of business or in any geographic area
or that grants to any party most-favored-nation or similar
rights);
(iii) any material contract (as such term is
defined in Item 601(b)(10) of
Regulation S-K
of the SEC) with respect to the Company and its Subsidiaries;
(iv) any agreement relating to Intellectual Property that
is material to the business of the Company and its Subsidiaries,
taken as a whole, (excluding generally commercially available,
off-the-shelf
software licenses with less than $100,000 in annual license
fees);
(v) any contract (A) relating to the disposition or
acquisition by the Company or any of its Subsidiaries after the
date of this Agreement of a material amount of assets other than
in the Ordinary Course of Business, or (B) pursuant to
which the Company or any of its Subsidiaries will acquire after
the date of this Agreement any material ownership interest in
any other Person or other business enterprise other than the
Companys Subsidiaries;
(vi) any mortgages, indentures, guarantees, loans or credit
agreements, security agreements or other contracts relating to
the borrowing of money, extension of credit, surety bonds or
guarantees of indebtedness in each case in excess of $100,000
other than (A) accounts receivables and payables, and
(B) loans to direct or indirect wholly-owned Subsidiaries,
in each case in the Ordinary Course of Business;
(vii) any contract that involves any material joint
venture, partnership or similar arrangement;
(viii) any contract or agreement that would obligate the
Company or any of its Subsidiaries to file a registration
statement under the Securities Act, which filing has not yet
been made;
(ix) any agreement that involves, other than sales or
repurchases of inventory in the Ordinary Course of Business,
acquisitions or dispositions, directly or indirectly (by merger
or otherwise), of assets or capital stock or other voting
securities or equity interests of another person or the Company
or any of its Subsidiaries (A) for aggregate consideration
in excess of $200,000 or (B) that involves continuing or
contingent obligations of the Company or any of its Subsidiaries
that are material to the Company and its Subsidiaries taken as a
whole or is not yet consummated; and
(x) any agreement that relates to any material settlement,
other than (A) releases immaterial in nature or amount
entered into with former employees or independent contractors of
the Company in the Ordinary Course of Business in connection
with the routine cessation of such employees or
independent contractors employment with the Company,
(B) settlement agreements for cash only (which has been
paid) and does not exceed $200,000 as to such settlement or
(C) settlement agreements entered into more than one year
prior to the date of this Agreement under which neither the
Company nor any of its Subsidiaries has any continuing material
obligations, liabilities or rights (excluding releases).
(b) Each Company Material Contract is valid and binding on
the Company (and/or each such Subsidiary of the Company party
thereto) and, to the Companys Knowledge, each other party
thereto, and is in full force and effect except to the extent it
has previously expired in accordance with its terms or where the
failure to be in full force and effect, individually or in the
aggregate, is not reasonably likely to have a Company Material
Adverse Effect. Neither the Company nor any of its Subsidiaries
nor, to the Companys Knowledge, any other party to any
Company Material Contract is or is alleged in writing to be in
violation or breach of or in default
A-21
under any Company Material Contract (nor does there exist any
condition which, upon the passage of time or the giving of
notice or both, would cause such a violation or breach of or
default under any Company Material Contract), except for
violations, breaches or defaults that, individually or in the
aggregate, are not reasonably likely to have a Company Material
Adverse Effect. Neither the Company nor any of its Subsidiaries
has received notice in writing that any party which is currently
doing business with the Company or any of its Subsidiaries
intends to terminate, limit or restrict its relationship with
the Company or any of its Subsidiaries. The Company has made
available to the Buyer a complete and accurate copy of each
Company Material Contract.
(c) Neither the Company nor any of its Subsidiaries has
entered into any transaction, agreement, arrangement or
understanding with any Affiliate (including any director or
officer) of the Company or any of its Subsidiaries or any
transaction that would be subject to disclosure pursuant to
Item 404 of
Regulation S-K.
3.12
Litigation
.
There is no
action, suit, proceeding, claim, demand, arbitration, charge or
investigation (collectively
Actions
) pending
or, to the Companys Knowledge, threatened against the
Company or any of its Subsidiaries or any of their securities,
rights, assets or properties that, individually or in the
aggregate, if adversely determined, would reasonably be expected
to have a Company Material Adverse Effect. There are no material
judgments, rulings, orders, decrees, writs or injunctions
outstanding against the Company or any of its Subsidiaries or to
which the Company or any of its Subsidiaries are subject.
3.13
Environmental Matters
.
(a) Except for matters that, individually or in the
aggregate, would not reasonably be expected to have a Company
Material Adverse Effect: (i) the Company and each of its
Subsidiaries is in compliance with all, and has not violated
any, applicable Environment Laws; (ii) neither the Company
nor any of its Subsidiaries is subject to any Action relating to
any Environmental Law, and to the Companys Knowledge, no
such Action against the Company or any of its Subsidiaries is
threatened; (iii) neither the Company nor any of its
Subsidiaries has, since January 1, 2005, received any
written notice alleging any of them is not in compliance with
applicable Environmental Laws or is subject to liability
relating to any Environmental Law; (iv) Hazardous
Substances are not present at and have not been disposed of,
arranged to be disposed of, transported, released or threatened
to be released at or from any of the properties or facilities
currently or formerly owned, leased or operated by the Company
or any of its Subsidiaries in violation of, or in a condition or
a manner or to a location that would reasonably be expected to
give rise to liability to the Company or any of its Subsidiaries
under or relating to, any Environmental Law; and
(v) neither the Company nor any of its Subsidiaries has
contractually assumed or provided indemnity against any
liability of any other person or entity relating to any
Environmental Laws.
(b) For purposes of this Agreement, the term
Environmental Law means any law, regulation, rule,
common law, order, decree or permit requirement of any
governmental jurisdiction relating to: (i) the protection,
investigation or restoration of the environment, human health
and safety, or natural resources, (ii) the handling, use,
storage, treatment, transport, disposal, release or threatened
release of any Hazardous Substance or (iii) noise, odor or
wetlands protection.
(c) For purposes of this Agreement, the term
Hazardous Substance
means: (i) any
substance that is regulated or which falls within the definition
of a pollutant, contaminant,
waste, hazardous substance,
hazardous waste or hazardous material
pursuant to any Environmental Law, (ii) any petroleum,
petroleum product or by-product, asbestos-containing material,
polychlorinated biphenyls, radioactive materials or radon, or
(iii) any substance or material that would otherwise
reasonably be expected to result in liability under any
applicable Environmental Law.
(d) The parties agree that the only representations and
warranties of the Company in this Agreement as to any
Environmental Law or Hazardous Substance or any obligations or
liabilities related to any Environmental Law or Hazardous
Substance are those contained in this Section 3.13 and
Sections 3.4, 3.6, 3.11 and 3.16 hereof. Without limiting the
generality of the foregoing, the Buyer specifically acknowledges
that the representations and warranties contained in
Section 3.15 do not relate to Environmental Laws or
Hazardous Substances.
A-22
3.14
Employee Benefit Plans
.
(a) Section 3.14(a) of the Company Disclosure Schedule
sets forth a complete and accurate list as of the date of this
Agreement of all Employee Benefit Plans maintained, or
contributed to, by the Company, any of the Companys
Subsidiaries or any of their ERISA Affiliates (together, the
Company Employee Plans
). For purposes of this
Agreement, the following terms shall have the following
meanings: (i)
Employee Benefit Plan
means any employee pension benefit plan (as defined
in Section 3(2) of ERISA), any employee welfare benefit
plan (as defined in Section 3(1) of ERISA), and any other
written or oral plan, agreement or arrangement involving direct
or indirect compensation, insurance coverage, severance
benefits, disability benefits, fringe benefits, employee loan,
employment, change in control, deferred compensation, bonuses,
stock options, stock purchase, restricted stock unit, stock
appreciation or other forms of incentive compensation or
post-retirement compensation and all unexpired severance
agreements, for the benefit of, or relating to, any current or
former employee, director or consultant of the Company or any of
its Subsidiaries or an ERISA Affiliate;
(ii)
ERISA
means the Employee Retirement
Income Security Act of 1974, as amended; and
(iii)
ERISA Affiliate
means any entity
which is a member of (A) a controlled group of corporations
(as defined in Section 414(b) of the Code), (B) a
group of trades or businesses under common control (as defined
in Section 414(c) of the Code), or (C) an affiliated
service group (as defined under Section 414(m) of the Code or
the regulations under Section 414(o) of the Code), any of
which includes or included the Company or a Subsidiary of the
Company.
(b) With respect to each Company Employee Plan, the Company
has made available to the Buyer a complete and accurate copy of
(i) such Company Employee Plan, (ii) the most recent
annual report (Form 5500) filed with the IRS and
(iii) each trust agreement, group annuity contract and
summary plan description, if any, relating to such Company
Employee Plan.
(c) Each Company Employee Plan is being administered in
accordance with ERISA, the Code and all other applicable laws
and the regulations thereunder and in accordance with its terms
except for failures to comply or violations that, individually
or in the aggregate, are not reasonably likely to have a Company
Material Adverse Effect.
(d) All the Company Employee Plans that are intended to be
qualified under Section 401(a) of the Code have received
determination letters from the IRS to the effect that such
Company Employee Plans are qualified and the plans and trusts
related thereto are exempt from federal income taxes under
Sections 401(a) and 501(a), respectively, of the Code, no
such determination letter has been revoked and revocation has
not been threatened.
(e) Neither the Company, any of the Companys
Subsidiaries nor any of their ERISA Affiliates has (i) ever
maintained an employee pension benefit plan (as
defined in Section 3(2) of ERISA) which was ever subject to
Section 412 of the Code or Title IV of ERISA or
(ii) ever been obligated to contribute to a
multiemployer plan (as defined in
Section 4001(a)(3) of ERISA).
(f) Neither the Company nor any of its Subsidiaries is a
party to any (i) agreement with any current or former
stockholder, director, executive officer or other employee or
consultant of the Company or any of its Subsidiaries
(A) the benefits of which are contingent, or the terms of
which are materially altered, upon the occurrence of a
transaction involving the Company or any of its Subsidiaries of
the nature of any of the transactions contemplated by this
Agreement, (B) providing any term of employment or
compensation guarantee or (C) providing severance benefits
or other benefits after the termination of employment of such
director, executive officer, consultant or key employee; or
(ii) agreement or plan binding the Company or any of its
Subsidiaries, including any stock option plan, stock
appreciation right plan, restricted stock plan, stock purchase
plan or severance benefit plan, any of the benefits of which
shall be increased, or the vesting of the benefits of which
shall be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement or the value of any
of the benefits of which shall be calculated on the basis of any
of the transactions contemplated by this Agreement. No Company
Employee Plan exists and there are no other contracts, plans or
arrangements (written or otherwise) covering any current or
former stockholder, director, executive officer or other
employee or consultant of the Company or any of its Subsidiaries
that, individually or collectively, as a result of the execution
of this Agreement or the transactions contemplated hereunder
A-23
(whether alone or in connection with any other events), would
reasonably be expected to result in any payments which would
result in the loss of a deduction under Section 280G of the
Code or which would be subject to an excise tax under
Section 4999 of the Code.
(g) Neither the Company nor any of its Subsidiaries has any
direct or indirect liability, whether absolute or contingent,
with respect to any misclassification of any person as an
independent contractor rather than as an employee, or with
respect to any employee leased from another employer.
(h) None of the Company Employee Plans promises or provides
retiree medical or other retiree welfare benefits to any person,
except as required by applicable law.
3.15
Compliance With Laws
.
The
Company and each of its Subsidiaries is in compliance with, is
not in violation of, and, since January 1, 2008, has not
received any written notice alleging any violation with respect
to, any applicable statute, law, order or regulation with
respect to the conduct of its business, or the ownership or
operation of its properties, rights or assets, except for
failures to comply or violations that, individually or in the
aggregate, are not reasonably likely to have a Company Material
Adverse Effect.
3.16
Permits
.
The Company and each
of its Subsidiaries have all permits, licenses, franchises,
governmental consents, registrations, orders, grants or other
authorizations of Governmental Entities (collectively,
Permits
) required to conduct their businesses
as now being conducted, except for such Permits the absence of
which, individually or in the aggregate, is not reasonably
likely to have a Company Material Adverse Effect. The Company
and each of its Subsidiaries are in compliance with the terms of
the Permits, except for such failures to comply that,
individually or in the aggregate, are not reasonably likely to
have a Company Material Adverse Effect.
3.17
Labor
Matters
.
Section 3.17 of the Company
Disclosure Schedule contains a list as of the date of this
Agreement of all employees of the Company and each of its
Subsidiaries whose annual rate of base compensation exceeds
$75,000 per year, along with the position and the annual rate of
base compensation of each such person. The Company is not a
party to or subject to, and is not currently negotiating in
connection with entering into, any collective bargaining
agreement or other contract or understanding with a labor union
or organization. Neither the Company nor any of its Subsidiaries
is the subject of any proceeding asserting that the Company or
any of its Subsidiaries has committed an unfair labor practice
or is seeking to compel the Company or any of its Subsidiaries
to bargain with any labor union or labor organization that,
individually or in the aggregate, is reasonably likely to have a
Company Material Adverse Effect. There are no pending or, to the
Companys Knowledge, threatened labor strikes, disputes,
walkouts, work stoppages, slow-downs or lockouts involving the
Company or any of its Subsidiaries that, individually or in the
aggregate, are reasonably likely to have a Company Material
Adverse Effect. The Company and each of its Subsidiaries is in
compliance with all applicable laws respecting employment and
employment practices, terms and conditions of employment and
wages and hours except for any noncompliance that, individually
or in the aggregate, has not had and would not reasonably be
expected to have a Company Material Adverse Effect. Neither the
Company nor any of its Subsidiaries has incurred any liability
or obligation under the Worker Adjustment and Retraining
Notification Act (
WARN
) or similar laws or
regulations of any jurisdiction within the last six months which
remains unsatisfied.
3.18
Insurance
.
Each of the
Company and its Subsidiaries maintains insurance policies with
reputable insurance carriers against all risks of a character
and in such amounts as are usually insured against by similarly
situated companies in the same or similar businesses and
sufficient to comply with applicable law. All such insurance
policies are in full force and effect, no notice of cancellation
or modification has been received, and there is no existing
default or event which, with the giving of notice or lapse of
time or both, would constitute a default, by any insured
thereunder, except for such defaults that would not be
reasonably expected to have, individually or in the aggregate, a
Company Material Adverse Effect. There is no material claim
pending under any of such policies as to which coverage has been
questioned, denied or disputed by the underwriters of such
policies and there has been no threatened termination of, or
material premium increase with respect to, any such policies.
A-24
3.19
Opinion of Financial
Advisor
.
The financial advisor to the Special
Committee of the Board of Directors of the Company, Goldman,
Sachs & Co., has delivered to the Special Committee an
opinion, dated the date of this Agreement, to the effect that,
as of such date and based upon and subject to the limitations
and assumptions set forth therein, the $7.65 in cash per share
of Company Common Stock to be paid to the holders (other than
such holders party to the Rollover Commitment Letters) of shares
of Company Common Stock pursuant to this Agreement is fair to
such holders from a financial point of view. The Company shall
deliver an executed copy of such opinion to the Buyer promptly
following receipt of such opinion in written form.
3.20
Section 203 of the
DGCL
.
The Company Board has taken all actions
necessary so that the restrictions contained in Section 203
of the DGCL applicable to a business combination (as
defined in Section 203) shall not apply to the
execution, delivery or performance of this Agreement, any of the
Ancillary Agreements or the consummation of the Merger or the
other transactions contemplated by this Agreement or any of the
Ancillary Agreements. No other state anti-takeover statute
applies to the Company as a result of the transactions
contemplated hereby or any of the Ancillary Agreements,
including the Merger.
3.21
Brokers
.
No agent, broker,
investment banker, financial advisor or other firm or person is
or shall be entitled, as a result of any action, agreement or
commitment of the Company or any of its Affiliates, to any
brokers, finders, investment banking, financial
advisors or other similar fee or commission in connection
with any of the transactions contemplated by this Agreement,
except for those persons identified on Section 3.21 of the
Company Disclosure Schedule whose fees and expenses shall be
paid by the Company. The Company has made available to the Buyer
a complete and accurate copy of all agreements pursuant to which
any person identified on Section 3.21 of the Company
Disclosure Schedule is entitled to any fees and expenses in
connection with any of the transactions contemplated by this
Agreement.
3.22
No Other Information
.
The
Company acknowledges that neither the Buyer, the Transitory
Subsidiary nor any of their Affiliates or Representatives make
any representations or warranties as to any matter whatsoever
except as expressly set forth in Article IV of this
Agreement. The representations and warranties set forth in
Article IV of this Agreement are made solely by the Buyer
and the Transitory Subsidiary, and the Company will have no
recourse against any Representative of the Buyer or the
Transitory Subsidiary including any former, current or future
general or limited partner, member, officer, employee or
stockholder of the Buyer or any of its Affiliates in connection
with or arising out of the transactions contemplated by this
Agreement, except as may be expressly set forth in this
Agreement.
ARTICLE IV
REPRESENTATIONS
AND WARRANTIES OF THE BUYER AND THE
TRANSITORY
SUBSIDIARY
The Buyer and the Transitory Subsidiary represent and warrant to
the Company that the statements contained in this
Article IV are true and correct, except as set forth in the
corresponding section of the disclosure schedule delivered by
the Buyer and the Transitory Subsidiary to the Company and dated
as of the date of this Agreement (the Buyer Disclosure
Schedule).
4.1
Organization, Standing and
Power
.
Each of the Buyer and the Transitory
Subsidiary is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization,
has all requisite organizational power and authority to own,
lease and operate its properties and assets and to carry on its
business as now being conducted, and is duly qualified to do
business and, where applicable as a legal concept, is in good
standing as a foreign entity in each jurisdiction in which the
character of the properties it owns, operates or leases or the
nature of its activities makes such qualification necessary,
except for such failures to be so organized, qualified or in
good standing, individually or in the aggregate, that are not
reasonably likely to have a Buyer Material Adverse Effect. For
purposes of this Agreement, the term Buyer Material
Adverse Effect means any Effect that would individually or
in the aggregate, prevent or materially delay or materially
impair the ability of the Buyer or the Transitory Subsidiary to
consummate the transactions contemplated by this Agreement.
A-25
4.2
Authority; No Conflict; Required Filings and
Consents
.
(a) Each of the Buyer and the Transitory Subsidiary has all
requisite organizational power and authority to enter into,
execute and deliver this Agreement and each Ancillary Agreement
to which it is a party, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated by
this Agreement and such Ancillary Agreements. The execution and
delivery of this Agreement and the Ancillary Agreements to which
the Buyer or the Transitory Subsidiary is a party, the
performance of each of the Buyer and the Transitory Subsidiary
of its covenants and obligations hereunder and thereunder and
the consummation of the transactions contemplated by this
Agreement and such Ancillary Agreements by the Buyer and the
Transitory Subsidiary have been duly authorized by all necessary
organizational action on the part of each of the Buyer and the
Transitory Subsidiary other than adoption of this Agreement by
the Buyer in its capacity as sole stockholder of Transitory
Subsidiary (the Buyer hereby agreeing to adopt this Agreement in
its capacity as sole stockholder of Transitory Subsidiary as
soon as practicable after the execution hereof). This Agreement
and each Ancillary Agreement to which the Buyer or Transitory
Subsidiary is a party have been duly executed and delivered by
each of the Buyer and the Transitory Subsidiary and constitute
the valid and binding obligation of each of the Buyer and the
Transitory Subsidiary, enforceable against each of them in
accordance with its and their terms, subject to the Bankruptcy
and Equity Exception.
(b) The execution and delivery of this Agreement and the
Ancillary Agreements to which the Buyer or the Transitory
Subsidiary is a party by each of the Buyer and the Transitory
Subsidiary do not, and the performance of each the Buyer and the
Transitory Subsidiary of its obligations hereunder and under
such Ancillary Agreements and the consummation by the Buyer and
the Transitory Subsidiary of the transactions contemplated by
this Agreement and such Ancillary Agreements shall not,
(i) conflict with, or result in any violation or breach of,
any provision of the Certificate of Incorporation or By-laws of
the Transitory Subsidiary or similar charter documents of the
Buyer, (ii) conflict with, or result in any violation or
breach of, or constitute (with or without notice or lapse of
time, or both) a default (or give rise to a right of
termination, modification, cancellation or acceleration of any
obligation or loss of any material benefit) under, require a
consent or waiver under, constitute a change in control under,
require the payment of a penalty under or result in the
imposition of any Lien on the Buyers or the Transitory
Subsidiarys properties, rights or assets under, any of the
terms, conditions or provisions of any lease, license, contract
or other agreement, instrument or obligation to which the Buyer
or the Transitory Subsidiary is a party or by which any of them
or any of their properties, rights or assets may be bound, or
(iii) subject to compliance with the requirements specified
in clauses (i) and (ii) of Section 4.2(c), conflict
with or violate any permit, concession, franchise, license,
judgment, injunction, order, decree, statute, law, ordinance,
rule or regulation applicable to the Buyer or the Transitory
Subsidiary or any of its or their respective properties, rights
or assets, except in the case of clauses (ii) and
(iii) of this Section 4.2(b) for any such conflicts,
violations, breaches, defaults, terminations, modifications,
cancellations, accelerations, losses, penalties or Liens, and
for any consents or waivers not obtained, that, individually or
in the aggregate, are not reasonably likely to have a Buyer
Material Adverse Effect.
(c) No consent, approval, license, permit, order or
authorization of, or registration, declaration, notice or filing
with, any Governmental Entity or any stock market or stock
exchange on which shares of its capital stock are listed for
trading is required by or with respect to the Buyer or the
Transitory Subsidiary in connection with the execution and
delivery by the Buyer and the Transitory Subsidiary of this
Agreement or any Ancillary Agreement to which the Buyer or the
Transitory Subsidiary is a party or the consummation by the
Buyer or the Transitory Subsidiary of the transactions
contemplated by this Agreement or such Ancillary Agreements,
except for (i) the pre-merger notification requirements
under the HSR Act and any other applicable foreign antitrust
law, (ii) the filing of the Certificate of Merger with the
Delaware Secretary of State and appropriate corresponding
documents with the appropriate authorities of other states in
which the Company is qualified as a foreign corporation to
transact business and (iii) filings required under, and
compliance with the requirements of, the Securities Act and
Exchange Act.
(d) No vote of the holders of any class or series of the
Buyers equity securities or other securities is necessary
for the consummation by the Buyer of the transactions
contemplated by this Agreement.
A-26
4.3
SEC Filings; Information Provided
.
(a) Neither the Buyer nor any subsidiary or parent of the
Buyer (other than portfolio companies of the Buyer or parent of
the Buyer not participating in the Merger) is subject to the
reporting requirements of Section 13(a) or
Section 15(d) of the Exchange Act.
(b) The information to be supplied by or on behalf of the
Buyer for inclusion in the Proxy Statement (including any
amendment or supplement) to be sent to the stockholders of the
Company in connection with the Company Meeting or in the
Schedule 13E-3
(including any amendment or supplement) shall not, on the date
the Proxy Statement (including any amendment or supplement) is
first mailed to stockholders of the Company or at the time of
the Company Meeting, or, in the case of the
Schedule 13E-3
(including any amendment or supplement), on the date it is filed
with the SEC, contain any statement which, at such time and in
light of the circumstances under which it shall be made, is
false or misleading with respect to any material fact, or omit
to state any material fact required to be stated therein or
necessary in order to make the statements made therein not false
or misleading in light of the circumstances under which made;
or, with respect to the Proxy Statement, omit to state any
material fact required to be stated therein or necessary to
correct any statement in any earlier communication with respect
to the solicitation of proxies for the Company Meeting which has
become false or misleading. If at any time prior to the Company
Meeting any fact or event relating to the Buyer or any of its
Affiliates which should be set forth in an amendment or
supplement to the Proxy Statement or the
Schedule 13E-3
should be discovered by the Buyer or should occur, the Buyer
shall, promptly after becoming aware thereof, inform the Company
of such fact or event.
4.4
Operations of the Transitory
Subsidiary
.
The Transitory Subsidiary was
formed solely for the purpose of engaging in the transactions
contemplated by this Agreement, has engaged in no other business
activities and has conducted its operations only as contemplated
by this Agreement.
4.5
Financing
.
(a) The Buyer has delivered to the Company complete and
correct copies of (i) a fully executed commitment letter
from GSO Capital Partners LP (
GSO
) including
the term sheets attached thereto (the
Debt Commitment
Letter
), pursuant to which such financial institution
has committed (on behalf of certain funds managed by GSO), upon
the terms and subject to the conditions set forth therein, to
provide debt financing in an amount up to $170 million in
connection with the transactions contemplated by this Agreement;
and (ii) a fully executed commitment letter from S.A.C.
Capital Management, LLC (the
Investor
) (the
Equity Commitment Letter
), pursuant to which
the Investor has committed that it
and/or
its
affiliates or designated co-investors will, upon the terms and
subject only to the conditions set forth therein, provide equity
financing in the aggregate amount of $103.1 million in
connection with the transactions contemplated by this Agreement.
The Debt Commitment Letter and the Equity Commitment Letter are
hereinafter referred to collectively as the
Commitment
Letters
. The financing contemplated pursuant to the
Debt Commitment Letter is hereinafter referred to as the
Debt Financing
and the financing contemplated
pursuant to the Equity Commitment Letter is hereinafter referred
to as the
Equity Financing
. The financing
contemplated pursuant to the Debt Commitment Letter and the
Equity Commitment Letter, respectively, is hereinafter referred
to collectively as the
Financing
. The persons
providing the Financing pursuant to the Debt Commitment Letter
(or any Alternative Debt Financing) are hereinafter referred to
as the
Debt Financing Sources
.
(b) The Debt Commitment Letter is in full force and effect
and is a legal, valid and binding obligation of the Buyer and,
to the Buyers Knowledge, the other party thereto; the
Equity Commitment Letter is in full force and effect and is a
legal, valid and binding obligation of the Buyer and the other
party thereto; all commitment fees and other fees required to be
paid pursuant to either Commitment Letter have been paid in full
or will be duly paid in full when due; as of the date of this
Agreement, the Commitment Letters have not been amended or
terminated; and, as of the date of this Agreement, no event has
occurred which, with or without notice, lapse of time or both,
would constitute a breach or default thereunder. The
consummation of the Financing is subject to no contingency or
contingencies other than those set forth in the copies of the
Commitment Letters delivered to the Company. As of the date of
this Agreement, neither the Buyer nor the Transitory Subsidiary
has any reason to believe that any of the conditions to the
Financing will not be satisfied
A-27
or the Financing will not be available on the Closing Date as
contemplated in the Commitment Letters. Assuming the accuracy of
the representations and warranties set forth in
Sections 3.2(a), 3.2(b), 3.2(c), 3.2(g) and 3.5(b) to the
standards set forth in Section 7.2(a), the aggregate proceeds of
the Financing, together with any cash or cash equivalents
(including upon the sale of the Companys investments
pursuant to Section 6.13) held by the Company as of the
Effective Time, if funded, will be sufficient to enable the
Buyer to pay in cash all amounts required to be paid by it, the
Surviving Corporation and the Transitory Subsidiary in
connection with the transactions contemplated by this Agreement,
including the Merger Consideration, the Option Consideration and
all payments, fees and expenses related to or arising out of the
transactions contemplated by this Agreement.
(c) Neither the Buyer nor the Transitory Subsidiary is, as
of the date hereof, aware of any fact, occurrence or condition
that makes any of the assumptions or statements set forth in any
Commitment Letter inaccurate in any material respect or that
would cause the commitments provided in any Commitment Letter to
be terminated or ineffective or any of the conditions contained
therein not to be met.
(d) The equity investment by the Investor under the Equity
Commitment Letter is not subject to any condition other than the
fulfillment in accordance with the terms hereof of the
conditions to the Buyers and the Transitory
Subsidiarys obligations to consummate the Merger set forth
in Section 7.1 and Section 7.2
4.6
Solvency
.
Assuming,
(a) satisfaction of the conditions to the Buyers
obligations to consummate the Merger as set forth herein and
(b) the accuracy of the representations and warranties of
the Company set forth in Article III hereof (for such
purposes, such representations and warranties shall be true and
correct in all material respects without giving effect to any
Companys Knowledge, materiality or Company Material
Adverse Effect qualification or exception), (i) immediately
after giving effect to the transactions contemplated by this
Agreement and the closing of any financing to be obtained by the
Buyer or any of its Affiliates in order to effect the
transactions contemplated by this Agreement, the Surviving
Corporation shall, as of such date, be able to pay its debts as
they become due and shall own property having a fair saleable
value greater than the amounts required to pay its debts
(including a reasonable estimate of the amount of all contingent
liabilities) as they become absolute and mature; and
(ii) immediately after giving effect to the transactions
contemplated by this Agreement and the closing of any financing
to be obtained by the Buyer or any of its Affiliates in order to
effect the transactions contemplated by this Agreement, the
Surviving Corporation shall not have, as of such date,
unreasonably small capital to carry on its business. Neither the
Buyer nor the Transitory Subsidiary is entering into the
transactions contemplated by this Agreement with the intent to
hinder, delay or defraud either present or future creditors of
the Buyer or the Surviving Corporation.
4.7
Guarantee
.
Concurrently with
the execution of this Agreement, the Buyer has delivered to the
Company the duly executed guarantee of Investor in the form
attached as
Exhibit B
to this Agreement (the
Guarantee). The Guarantee is valid and in full force
and effect, and no event has occurred which, with or without
notice, lapse of time or both, would constitute a default on the
part of the Investor under the Guarantee.
4.8
Agreements with Company Stockholders, Directors
or Management
.
As of the date hereof, except
for that certain Holdings Interim Investors Agreement, dated as
of the date hereof, among the Buyer, the Transitory Subsidiary
and the other parties appearing on the signature pages thereto
(the
Interim Investors Agreement
) and those
certain Rollover Commitment Letters, dated as of the date hereof
among the Buyer and the other parties appearing on the signature
pages thereto (the
Rollover Commitment
Letters
), neither the Buyer, the Transitory Subsidiary
nor any of their respective Affiliates is a party to any
contract or agreement with any member of the Companys
management, directors or stockholders that relate in any way to
this Agreement or the transactions contemplated by this
Agreement.
4.9
No Other Information
.
Each of
the Buyer and the Transitory Subsidiary acknowledges that
neither the Company nor any of its Affiliates or Representatives
make any representations or warranties as to any matter
whatsoever except as expressly set forth in Article III of
this Agreement. The representations and warranties set forth in
Article III of this Agreement are made solely by the
Company, and neither the Buyer nor the Transitory Subsidiary
will have any recourse against any Representative of the Company
including any former, current or future general or limited
partner, member, officer, employee or stockholder of the Company
A-28
or any of its Affiliates in connection with or arising out of
the transactions contemplated by this Agreement, except as may
be expressly set forth in this Agreement or as provided in any
Ancillary Agreement.
4.10
Access to Information;
Disclaimer
.
The Buyer and the Transitory
Subsidiary each acknowledges and agrees that it (a) has had
an opportunity to discuss the business and affairs of the
Company and its Subsidiaries with the management of the Company,
(b) has had reasonable access to (i) the books and
records of the Company and its Subsidiaries and (ii) the
electronic dataroom maintained by the Company for purposes of
the transactions contemplated by this Agreement, (c) has
been afforded the opportunity to ask questions of and receive
answers from officers of the Company and (d) has conducted
its own independent investigation of the Company and its
Subsidiaries, their respective businesses and the transactions
contemplated hereby, and has not relied on any representation,
warranty or other statement by any person on behalf of the
Company or any of its Subsidiaries, other than the
representations and warranties of the Company expressly
contained in Article III of this Agreement and that all
other representations and warranties are specifically disclaimed.
ARTICLE V
CONDUCT OF
BUSINESS
5.1
Covenants of the
Company
.
Except as expressly provided or
permitted herein, set forth in Section 5.1 of the Company
Disclosure Schedule or as consented to in writing by the Buyer
(which consent shall not be unreasonably withheld, conditioned
or delayed), during the period commencing on the date of this
Agreement and ending at the Effective Time or such earlier date
as this Agreement may be terminated in accordance with its terms
(the
Pre-Closing Period
), the Company shall,
and shall cause each of its Subsidiaries to, act and carry on
its business in the Ordinary Course of Business, and use
commercially reasonable efforts to maintain and preserve its and
each of its Subsidiarys business organization and good
standing under applicable law, assets, rights and properties,
preserve its and each of its Subsidiarys business
relationships and contracts with customers, strategic partners,
suppliers, distributors and others having business dealings with
it and keep available the services of its current officers,
employees and consultants. Without limiting the generality of
the foregoing, except as expressly provided or permitted herein
or as set forth in Section 5.1 of the Company Disclosure
Schedule, during the Pre-Closing Period the Company shall not,
and shall not permit any of its Subsidiaries to, directly or
indirectly, do any of the following without the prior written
consent of the Buyer (which consent shall not be unreasonably
withheld, conditioned or delayed):
(a) (i) declare, set aside or pay any dividends on, or
make any other distributions (whether in cash, securities or
other property) in respect of, any shares of its capital stock
(other than dividends and distributions made in the Ordinary
Course of Business by a direct or indirect wholly owned
Subsidiary of the Company to its parent), (ii) split,
combine, subdivide, pledge, modify or reclassify any shares of
its capital stock or any of its other securities or rights, or
make any change in the number of shares of its authorized
capital stock, (iii) issue, authorize for issuance, sell,
grant or subject to any Lien any shares of its capital stock or
any of its other securities or rights convertible into,
exchangeable or exercisable for or evidencing the right to
subscribe for or purchase shares of its capital stock or any of
its other securities or ownership interests (provided the
Company may issue shares of Company Common Stock as required to
be issued upon the exercise of Company Stock Options outstanding
on the date hereof in accordance with their terms), or
(iv) purchase, redeem or otherwise acquire any shares of
its capital stock or any other of its securities or any rights,
warrants or options to acquire any such shares or other
securities, except, in the case of this clause (iv), for the
acquisition of shares of Company Common Stock (A) from
holders of Company Stock Options in full or partial payment of
the exercise price payable by such holder upon exercise of
Company Stock Options to the extent required or permitted under
the terms of such Company Stock Options, (B) pursuant to
the forfeiture of Company Stock Options or (C) from former
employees, directors and consultants in accordance with
agreements in effect on the date hereof providing for the
repurchase of shares in connection with any termination of
services to the Company or any of its Subsidiaries, in the case
of each of the foregoing clauses (A), (B) and (C),
outstanding on the date hereof in accordance with the terms of
the applicable Company Stock Plan in effect on the date hereof;
A-29
(b) except as permitted by Section 5.1(q), issue,
deliver, sell, grant, pledge or otherwise dispose of or encumber
any shares of its capital stock, any other voting securities or
any securities convertible into or exchangeable for, or any
rights, warrants or options to acquire, any such shares, voting
securities or convertible or exchangeable securities (other than
the issuance of shares of Company Common Stock upon the exercise
of Company Stock Options outstanding on the date of this
Agreement);
(c) amend its certificate of incorporation, by-laws or
other comparable charter or organizational documents;
(d) acquire or license (as licensee) (i) by merging or
consolidating with, or by purchasing all or a substantial
portion of the assets or any stock or other equity interest of,
or by any other manner, any business or any corporation,
partnership, joint venture, limited liability company,
association or other business organization or division thereof,
(ii) any assets that are material, in the aggregate, to the
Company and its Subsidiaries, taken as a whole, except purchases
of inventory and raw materials in the Ordinary Course of
Business, or (iii) any real property material to the
Company and its Subsidiaries taken as a whole;
(e) enter into any transaction, including any merger,
acquisition, joint venture, disposition, lease, contract or debt
or equity financing that would reasonably be expected to impair,
delay or prevent Buyers obtaining the financing
contemplated by the Commitment Letters;
(f) enter into any new line of business material to it and
its Subsidiaries, taken as a whole;
(g) sell, lease, license, pledge, or otherwise dispose of
or encumber any material properties, material rights or material
assets of the Company or of any of its Subsidiaries other than
in the Ordinary Course of Business, so long as the value or
purchase price, in any single instance, for such properties,
rights or assets does not exceed $250,000;
(h) adopt or implement any stockholder rights plan;
(i) adopt a plan or agreement of complete or partial
liquidation or dissolution, consolidation, restructuring,
recapitalization or other reorganization of the Company or any
of the Companys Subsidiaries;
(j) amend any term of any outstanding equity security or
equity interest of the Company or any of its Subsidiaries;
(k) (i) incur, assume or otherwise become liable for
any indebtedness for borrowed money or guarantee or endorse any
such indebtedness of another person (other than (A) in
connection with the financing of trade receivables in the
Ordinary Course of Business, (B) letters of credit or
similar arrangements issued to or for the benefit of suppliers
and manufacturers in the Ordinary Course of Business and
(C) pursuant to existing credit facilities in the Ordinary
Course of Business), (ii) issue or sell any debt securities
or warrants or other rights to acquire any debt securities of
the Company or any of its Subsidiaries, guarantee any debt
securities of another person, enter into any keep
well or other agreement to maintain any financial
statement condition of another person (other than the Company or
any of its Subsidiaries) or enter into any arrangement having
the economic effect of any of the foregoing, provided, however,
that the Company may, in the Ordinary Course of Business, invest
in debt securities maturing not more than ninety (90) days
after the date of investment, (iii) enter into or make any
loans, advances (other than routine non-material advances to
employees of the Company and its Subsidiaries in the Ordinary
Course of Business) or capital contributions to, or investment
in, any other person, other than the Company or any of its
direct or indirect Subsidiaries, provided, however, that the
Company may, in the Ordinary Course of Business, invest in debt
securities maturing not more than ninety (90) days after
the date of investment, or (iv) other than in the Ordinary
Course of Business, enter into any hedging agreement or other
financial agreement or arrangement designed to protect the
Company or its Subsidiaries against fluctuations in commodities
prices or exchange rates;
(l) pay, discharge, settle or compromise any pending or
threatened suit, action or claim which (i) requires payment
to or by the Company or any Subsidiary (exclusive of
attorneys fees) in excess of
A-30
$100,000 in any single instance or in excess of $250,000 in the
aggregate, (ii) involves injunctive or equitable relief or
restrictions on the business activities of the Company or any of
its Subsidiaries, (iii) would involve the issuance of
Company securities or (iv) relates to the transactions
contemplated hereby; provided, however, notwithstanding anything
in this Agreement to the contrary, the Company or any of its
Subsidiaries may pay, discharge, settle or compromise any
pending or threatened suit, action or claim (other than any
suit, action or claim relating to Taxes) if the amount required
to be paid by the Company and its Subsidiaries pursuant thereto
(net of the retention amount) is covered by insurance;
(m) make (i) any expenditures with respect to its
femtocell business during any period beginning on
December 1, 2009 and ending on December 31, 2009 or
the last day of any month thereafter, in excess of the
cumulative monthly budgeted expenditures for such period as set
forth in Section 5.1(m) of the Company Disclosure Schedule
or (ii) any capital expenditures or other expenditures with
respect to its property, plant or equipment in any fiscal
quarter in excess of the aggregate amount for the Company and
its Subsidiaries, taken as a whole, disclosed in
Section 3.7(b) of the Company Disclosure Schedule;
(n) make any material changes in accounting methods,
principles or practices (or change an annual accounting period),
except insofar as is required by a change in GAAP;
(o) (i) other than in the Ordinary Course of Business,
(A) modify, amend, terminate or waive any material rights
under any Company Material Contract or (B) enter into any
contract, which if entered into prior to the date hereof would
have been a Company Material Contract or (ii) enter into
any (x) new contract that contains a change in control
provision in favor of the other party or parties thereto or
would otherwise require a material payment to or give rise to
any material rights to such other party or parties in connection
with the transactions contemplated hereby or
(y) non-competition or other agreement that prohibits or
otherwise restricts in any material respect, the Company or any
of its Subsidiaries or Affiliates from freely engaging in
business anywhere in the world (including any agreement
restricting the Company or any of its Subsidiaries or Affiliates
from competing in any line of business or in any geographic
area);
(p) make or change any material Tax election, file any
material amendment to any Tax Return with respect to any
material amount of Taxes, settle or compromise any material Tax
liability, agree to any extension or waiver of the statute of
limitations with respect to the assessment or determination of a
material amount of Taxes, enter into any material closing
agreement with respect to any Tax or take any action to
surrender any right to claim a material Tax refund;
(q) except as required to comply with applicable law or
agreements, plans or arrangements existing on the date hereof,
(i) adopt, enter into, terminate or materially amend any
employment, severance or similar agreement or material benefit
plan for the benefit or welfare of any current or former
director, officer or employee or any collective bargaining
agreement (except in the Ordinary Course of Business and only if
such arrangement is terminable on sixty (60) days or
less notice without either a penalty or a termination payment),
(ii) increase in any material respect the compensation or
fringe benefits of, or pay any bonus to, any director, officer
or employee (except for semi-annual increases of salaries for
non-officer employees in the Ordinary Course of Business, which
in no event shall be greater than four percent (4%) per annum,
or the payment of annual bonuses and commissions in the Ordinary
Course of Business under any Company Employee Plan to
non-officer employees for the Companys 2009 fiscal year),
(iii) accelerate the payment, right to payment or vesting
of any material compensation or benefits, including any
outstanding options or restricted stock awards, other than as
contemplated by this Agreement, (iv) grant any equity
compensation, (v) grant any severance or termination pay to
any present or former director, officer, employee or consultant
of the Company or its Subsidiaries, other than as required
pursuant to the terms of a Company Employee Plan in effect on
the date of the Agreement or (vi) take any action other
than in the Ordinary Course of Business to fund or in any other
way secure the payment of compensation or benefits under any
Company Employee Plan;
(r) effectuate or permit a plant closing or
mass layoff, as those terms are defined in WARN,
affecting in whole or in part any site of employment, facility,
operating unit or employee of the Company or any of its
Subsidiaries;
A-31
(s) grant any material refunds, credits, rebates or other
allowances by the Company or its Subsidiaries to any end user,
customer, reseller or distributor, in each case, other than in
the Ordinary Course of Business;
(t) open any facility or office greater than
5,000 square feet; or
(u) authorize any of, or commit or agree, in writing or
otherwise, to take any of, the foregoing actions.
5.2
Confidentiality
.
The parties
acknowledge that S.A.C. Private Capital Group, LLC and the
Company have previously executed a confidentiality agreement,
dated as of March 27, 2009 (as amended, supplemented or
otherwise modified, the
Confidentiality
Agreement
), which Confidentiality Agreement shall
continue in full force and effect in accordance with its terms,
except as expressly modified herein.
5.3
Equity Financing Commitments
.
(a) The Buyer and the Transitory Subsidiary acknowledge
that they have committed to provide, subject to the Equity
Commitment Letter, the Equity Financing, including
(i) maintaining in effect the Equity Commitment Letter,
(ii) ensuring the accuracy of all representations and
warranties of the Buyer or the Transitory Subsidiary set forth
in the Equity Commitment Letter, (iii) complying with all
covenants and agreements of the Buyer or the Transitory
Subsidiary set forth in the Equity Commitment Letter,
(iv) satisfying on a timely basis all conditions applicable
to the Buyer or the Transitory Subsidiary set forth in the
Equity Commitment Letter that are within their control,
(v) upon satisfaction of such conditions and other
conditions set forth in Section 7.1 and Section 7.2
(other than those conditions that by their nature are to be
satisfied at the Closing, subject to the fulfillment or waiver
of those conditions), consummating the financing contemplated by
the Equity Commitment Letter at or prior to the Closing (and in
any event prior to the Outside Date) and (vi) fully
enforcing the obligations of the Investor and its investment
affiliates (and the rights of the Buyer and the Transitory
Subsidiary) under the Equity Commitment Letter.
(b) Neither the Buyer nor the Transitory Subsidiary shall
amend, alter, or waive, or agree to amend, alter or waive (in
any case whether by action or inaction), any term of the Equity
Commitment Letter without the prior written consent of the
Company. Each of the Buyer and the Transitory Subsidiary agrees
to notify the Company promptly if at any time prior to the
Closing Date (i) the Equity Commitment Letter expires or is
terminated for any reason (or if any person attempts or purports
to terminate the Equity Commitment Letter, whether or not such
attempted or purported termination is valid), (ii) the
Investor refuses to provide or expresses an intent in writing to
refuse to provide the full Equity Financing on the terms set
forth in the Equity Commitment Letter or (iii) for any
reason the Buyer or the Transitory Subsidiary no longer believes
in good faith that it will be able to obtain all or any portion
of the Equity Financing on the terms set forth in the Equity
Commitment Letter.
5.4
Debt Financing Commitments
.
(a) The Buyer and the Transitory Subsidiary shall use their
respective reasonable best efforts to obtain the Debt Financing
on the terms and conditions set forth in the Debt Commitment
Letter (or terms not materially less favorable, in the
aggregate, to the Buyer and the Transitory Subsidiary taken as a
whole (including with respect to the conditionality thereof))
(provided, that, Buyer and the Transitory Subsidiary may replace
or amend the Debt Financing Commitment Letters to add lenders,
lead arrangers, bookrunners, syndication agents or similar
entities which had not executed the Debt Financing Commitment
Letters as of the date hereof, or otherwise so long as the terms
would not adversely impact the ability of the Buyer and
Transitory Subsidiary to timely consummate the transactions
contemplated hereby or the likelihood of the consummation of the
transactions contemplated hereby), including by using reasonable
best efforts to (i) maintain in effect the Debt Commitment
Letter and negotiate a definitive agreement (collectively, the
Debt Financing Agreements
) with respect to
the Debt Commitment Letter on the terms and conditions set forth
in the Debt Commitment Letter (or on terms not materially less
favorable, in the aggregate, to the Buyer and the Transitory
Subsidiary, taken as a whole, (including with respect to the
conditionality thereof) than the terms and conditions in the
Debt Commitment Letter), (ii) ensure the accuracy of all
representations and warranties of the Buyer or the Transitory
Subsidiary set forth in the Debt Commitment Letter or Debt
Financing
A-32
Agreement, (iii) comply with all covenants and agreements
of the Buyer or the Transitory Subsidiary set forth in the Debt
Commitment Letter or Debt Financing Agreement, (iv) satisfy
on a timely basis all conditions applicable to the Buyer or the
Transitory Subsidiary set forth in the Debt Commitment Letter or
Debt Financing Agreement that are within their control and
(v) upon satisfaction of such conditions and the other
conditions set forth in Section 7.1 and Section 7.2
(other than those conditions that by their nature are to be
satisfied at the Closing, subject to the fulfillment or waiver
of those conditions), to consummate the Debt Financing at or
prior to the Closing (and in any event prior to the Outside
Date). In the event that all conditions in the Debt Commitment
Letter (other than the availability of funding of any of the
financing contemplated under the Equity Commitment Letter) have
been satisfied or, upon funding will be satisfied, each of the
Buyer and the Transitory Subsidiary shall use its reasonable
best efforts to cause the lender party to the Debt Commitment
Letter to fund on the Closing Date the Debt Financing required
to consummate the transactions contemplated by this Agreement
and otherwise enforce its rights under the Debt Commitment
Letter. The Buyer will furnish to the Company correct and
complete copies of any Debt Financing Agreement or any
Alternative Debt Commitment Letter and, in each case, ancillary
documents thereto (redacted to the extent necessary to comply
with confidentiality agreements, provided that such redacted
information does not relate to the amounts or conditionality of,
or contain any conditions precedent to, the funding of the Debt
Financing).
(b) The Buyer shall keep the Company reasonably informed
with respect to all material activity concerning the Debt
Financing and shall give the Company prompt notice of any
material adverse change with respect to the Debt Financing.
Without limiting the foregoing, each of the Buyer and the
Transitory Subsidiary agrees to notify the Company promptly, and
in any event within one (1) Business Day, if at any time
prior to the Closing Date (i) a Debt Commitment Letter
expires or is terminated for any reason (or if any person
attempts or purports to terminate a Debt Commitment Letter,
whether or not such attempted or purported termination is
valid), (ii) the lender refuses to provide all or any
portion of the Debt Financing contemplated by a Debt Commitment
Letter on the terms set forth therein, or (iii) for any
reason the Buyer or the Transitory Subsidiary no longer believes
in good faith that it will be able to obtain all or any portion
of the Debt Financing on substantially the terms described in
the Debt Commitment Letters. Neither the Buyer nor the
Transitory Subsidiary shall, nor shall it permit any of its
Affiliates to, without the prior written consent of the Company,
take any action or enter into any transaction, including any
merger, acquisition, joint venture, disposition, lease, contract
or debt or equity financing, that could reasonably be expected
to impair, delay or prevent consummation of all or any portion
of the Debt Financing. Neither the Buyer nor the Transitory
Subsidiary shall amend or alter, or agree to amend or alter, a
Debt Commitment Letter in any manner that would materially
impair, delay or prevent the transactions contemplated by this
Agreement without the prior written consent of the Company.
(c) If all or any portion of the Debt Financing becomes
unavailable on the terms and conditions contemplated in a Debt
Commitment Letter or Debt Financing Agreement, each of the Buyer
and the Transitory Subsidiary shall use its reasonable best
efforts to arrange to promptly obtain such Debt Financing from
alternative sources in an amount sufficient, when added to the
portion of the Financing that is available, to pay in cash all
amounts required to be paid by the Buyer, the Surviving
Corporation and the Transitory Subsidiary in connection with the
transactions contemplated by this Agreement, including the
Merger Consideration, the Option Consideration and all payments,
fees and expenses related to or arising out of the transactions
contemplated by this Agreement (Alternative Debt
Financing) and to obtain a new financing commitment letter
(the Alternative Debt Commitment Letter) and a new
definitive agreement with respect thereto (the Alternative
Debt Financing Agreement) that provides for financing on
terms not materially less favorable, in the aggregate, to the
Buyer and the Transitory Subsidiary taken as a whole and in an
amount that is sufficient, when added to the portion of the
Financing that is available together with any cash or cash
equivalents held by the Company as of the Effective Time, to pay
in cash all amounts required to be paid by the Buyer, the
Surviving Corporation and the Transitory Subsidiary in
connection with the transactions contemplated by this Agreement,
including the Merger Consideration, the Option Consideration and
all payments, fees and expenses related to or arising out of the
transactions contemplated by this Agreement. In such event, the
term Debt Financing as used in this Agreement shall
be deemed to include any Alternative Debt Financing, the term
Debt Commitment Letter as used in this Agreement
shall be deemed to include
A-33
any Alternative Debt Commitment Letter, and the term Debt
Financing Agreement as used in this Agreement shall be
deemed to include any Alternative Debt Financing Agreement.
(d) The Company agrees to, and shall cause the Company
Subsidiaries to, and shall use its commercially reasonable
efforts to cause their respective representatives, including
legal and accounting advisors to, provide the Buyer with such
cooperation in connection with the arrangement of the financings
contemplated by the Debt Commitment Letters as may be reasonably
requested by the Buyer, including (i) assisting in the
preparation for, and participating in, a reasonable number of
meetings, presentations, due diligence sessions and similar
presentations to and with rating agencies and the parties acting
as lead arrangers or agents for, and prospective purchasers and
lenders of, the Debt Financing, (ii) assisting with the
preparation of materials for rating agency presentations,
offering documents, information memoranda (including the
delivery of one or more customary representation letters), and
similar documents required in connection with the Financing,
(iii) executing and delivering any pledge and security
documents, other definitive financing documents, or other
certificates, opinions or documents as may be reasonably
requested by the Buyer and otherwise reasonably facilitating the
pledging of collateral (including a certificate of the chief
financial officer of the Company or any Subsidiary with respect
to solvency matters), using commercially reasonable efforts to
obtain consents of accountants for use of their reports in any
materials relating to the Debt Financing, (iv) furnishing
the Buyer and its Financing sources with the financial
statements and financial data of the Company required by
paragraph (ii) under the heading Conditions to
Close in Exhibit A to the Debt Commitment Letter,
(v) using commercially reasonable efforts to obtain surveys
and title insurance as reasonably requested by the Buyer in
order to facilitate the Debt Financing and (vi) taking all
corporate actions necessary to permit the consummation of the
Debt Financing and to permit the proceeds thereof to be made
available to the Surviving Corporation, including the entering
into of one or more credit agreements or other instruments on
terms satisfactory to the Buyer in connection with the Debt
Financing immediately prior to, and conditioned upon the
occurrence of, the Effective Time to the extent the direct
borrowing or debt incurrence by the Company is contemplated in
the Debt Commitment Letters; provided that (i) such
requested cooperation does not unreasonably interfere with the
ongoing operations of the Company and its Subsidiaries,
(ii) neither the Company nor any of its Subsidiaries shall
be required to pay any commitment or other similar fee or incur
any other liability in connection with the financings
contemplated by the Debt Commitment Letter prior to the
Effective Time, (iii) such cooperation shall not require
preparation of any pro forma financial information by the
Company, and (iv) no participation in any road shows shall
be required. If the Closing should not occur by the Outside
Date, the Buyer shall, promptly upon request by the Company,
reimburse the Company for all reasonable and documented
out-of-pocket
costs incurred by the Company or any of its Subsidiaries in
connection with such cooperation. All non-public or otherwise
confidential information regarding the Company obtained by the
Buyer or the Transitory Subsidiary or any of their respective
Representatives pursuant to this Section 5.4(d) shall be
kept confidential in accordance with the Confidentiality
Agreement. The Buyer shall indemnify and hold harmless the
Company and its Subsidiaries from and against any and all
liabilities, losses, damages, claims, costs, expenses, interest,
awards, judgments and penalties suffered or incurred by them in
connection with the arrangement of the Debt Financing (other
than to the extent that such losses arise from the gross
negligence or willful misconduct of the Company, any of its
Subsidiaries or any of their respective Representatives) and any
information utilized in connection therewith (other than
information provided by the Company or the Company
Subsidiaries). The Company hereby consents to the reasonable use
of its and the Company Subsidiaries logos in connection
with the Debt Financing, provided that such logos are used
solely in a manner that is not intended to nor reasonably likely
to harm or disparage the Company or any of the Company
Subsidiaries or the reputation or goodwill of the Company or any
of the Company Subsidiaries and its or their marks.
(e) The Buyer and the Transitory Subsidiary each
acknowledge and agree that the obtaining of the Debt Financing
is not a condition to the Closing.
(f) The Company shall deliver to the Buyer a certificate
executed by the Chief Financial Officer of the Company setting
forth Adjusted EBITDA (as defined in Section 5.4(f) of the
Company Disclosure Schedule) for the month ended
December 31, 2009 and each month thereafter, together with
supporting calculations in reasonable detail, by twenty
(20) days following the end of each such month.
A-34
ARTICLE VI
ADDITIONAL
AGREEMENTS
6.1
No Solicitation
.
(a)
No Solicitation or
Negotiation
.
Except as set forth in this
Section 6.1, from and after the date hereof until the
termination of this Agreement in accordance with the terms
hereof (the
Specified Time
), neither the
Company nor any of its Subsidiaries shall, and the Company shall
use reasonable best efforts to cause the Companys and its
Subsidiaries respective directors, officers, employees,
investment bankers, attorneys, accountants and other advisors or
representatives (such directors, officers, employees, investment
bankers, attorneys, accountants, other advisors and
representatives, collectively,
Representatives
) not to, directly or
indirectly:
(i) solicit, initiate or knowingly encourage any inquiries
or the making of any proposal or offer that constitutes, or
could reasonably be expected to lead to, any Acquisition
Proposal; or
(ii) enter into, continue or otherwise participate in any
discussions or negotiations regarding, or furnish to any person
any non-public information in response to, or otherwise for the
purpose of encouraging or facilitating, any Acquisition Proposal.
Notwithstanding anything to the contrary set forth in this
Agreement, the Company may, prior to obtaining the Company
Stockholder Approval, (A) furnish information with respect
to the Company to and (B) engage in discussions or
negotiations (including solicitation of a revised Acquisition
Proposal) with a person (and the Representatives of such person)
that has made an Acquisition Proposal that did not result from a
breach of this Section 6.1, and subject to compliance with
Section 6.1(b) and Section 6.1(c), that the Company Board
determines in good faith (after consultation with outside
counsel and its financial advisors) either constitutes a
Superior Proposal or is reasonably likely to lead to a Superior
Proposal. Any such furnishing of information regarding the
Company shall be pursuant to a confidentiality agreement not
materially less restrictive of such Person in any respect than
the Confidentiality Agreement (an
Acceptable
Confidentiality Agreement
); provided that the Company
shall promptly make available to the Buyer any material
non-public information concerning the Company or its
Subsidiaries that is furnished to such Person which was not
previously delivered to the Buyer or its Representatives. From
and after the date hereof, the Company shall not grant any
waiver, amendment or release under any standstill agreement
without the prior written consent of the Buyer.
(b)
No Change in Recommendation or Alternative
Acquisition Agreement
.
Prior to the Specified
Time, neither the Company Board nor any committee thereof shall:
(i) except as set forth in this Section 6.1(b),
withhold, withdraw or modify, in a manner adverse to the Buyer,
the approval or recommendation by the Company Board or any
committee thereof with respect to the Company Voting Proposal;
(ii) cause or permit the Company to enter into any letter
of intent, memorandum of understanding, agreement in principle,
acquisition agreement, merger agreement or similar agreement (an
Alternative Acquisition Agreement
) providing
for the consummation of a transaction contemplated by any
Acquisition Proposal (other than an Acceptable Confidentiality
Agreement entered into in compliance with
Section 6.1(a)); or
(iii) except as set forth in this Section 6.1(b),
adopt, approve or recommend any Acquisition Proposal.
Notwithstanding anything to the contrary set forth in this
Agreement (but subject to the immediately following paragraph),
the Company Board may withhold, withdraw or modify its
recommendation with respect to the Company Voting Proposal if
the Company Board or an authorized committee thereof determines
in good faith, after consultation with outside legal counsel
that failure to do so would be inconsistent with its fiduciary
obligations under applicable law;
provided
,
however
, that the Company shall not be entitled to
approve or recommend another Acquisition Proposal unless
(i) it has complied in all material respects with the
provisions
A-35
of this Section 6.1, (ii) the Company Board or an
authorized committee thereof has concluded in good faith (after
consultation with independent financial advisors and outside
legal counsel) that such Acquisition Proposal would constitute a
Superior Proposal if no changes were made to this Agreement,
(iii) prior to any such approval or recommendation of
another Acquisition Proposal, the Company has provided written
notice (a
Notice of Superior Proposal
) to the
Buyer that the Company intends to take such action and
describing the identity and material terms and conditions of the
Superior Proposal that is the basis of such action, including
with such Notice of Superior Proposal a copy of the relevant
proposed transaction agreements with the Person making such
Superior Proposal, (iv) during the four (4) Business
Day period following the Companys delivery of the Notice
of Superior Proposal, the Company shall, and shall cause its
financial and legal advisors to, negotiate with the Buyer and
the Transitory Subsidiary in good faith (to the extent the Buyer
and the Transitory Subsidiary desire to negotiate) to make such
modification or adjustments in the terms and conditions of this
Agreement so that such Superior Proposal ceases to constitute a
Superior Proposal, and (v) following the end of such four
(4) Business Day period, the Company Board or an authorized
committee thereof shall have determined in good faith, taking
into account any changes to the terms of this Agreement proposed
in writing by the Buyer to the Company in response to the Notice
of Superior Proposal or otherwise, that the Superior Proposal
giving rise to the Notice of Superior Proposal continues to
constitute a Superior Proposal. Any amendment to the financial
terms or any other material amendment of such Superior Proposal
shall require a new Notice of Superior Proposal and the Company
shall be required to comply again with the requirements of this
Section 6.1(b) (provided that references to the four
(4) Business Day period above shall be deemed to be
references to a forty-eight (48) hour period).
Notwithstanding anything to the contrary set forth in this
Agreement, the Company shall provide written notice to the Buyer
at least four (4) Business Days in advance of the Company
Board or an authorized committees intention to withhold,
withdraw or modify its recommendation with respect to the
Company Voting Proposal for any reason other than a Superior
Proposal and during such four (4) Business Day period
following the Companys delivery of such notice, the
Company shall, and shall cause its financial and legal advisors
to, negotiate with the Buyer and the Transitory Subsidiary in
good faith (to the extent the Buyer and the Transitory
Subsidiary desire to negotiate) to make such modification or
adjustments in the terms and conditions of this Agreement such
that the Company Board or authorized committee, after
consultation with outside legal counsel, does not continue to
believe that the failure to withhold, withdraw or modify such
recommendation would be inconsistent with its fiduciary
obligations under applicable law.
(c)
Notices to the Buyer
.
From and
after the date hereof, the Company shall promptly (and in any
event within one (1) Business Day) advise the Buyer orally,
with written confirmation to follow (together with a written
copy of such Acquisition Proposal), of the Companys
receipt of any written Acquisition Proposal and the material
terms and conditions of any such Acquisition Proposal (including
material amendments or modifications thereto).
(d)
Certain Permitted
Disclosure
.
Nothing contained in this
Section 6.1 or in Section 6.5 (or elsewhere in this
Agreement) shall be deemed to prohibit the Company from taking
and disclosing to its stockholders a position with respect to a
tender offer contemplated by
Rule 14d-9
or Rule
14e-2
promulgated under the Exchange Act or from making any disclosure
to the Companys stockholders if, in the good faith
judgment of the Company Board, after consultation with outside
counsel, failure to so disclose would be inconsistent with its
obligations under applicable law;
provided
,
however
, that the Company Board and the Company shall not
recommend that the stockholders of the Company tender their
shares in connection with any tender offer or exchange offer (or
otherwise approve or recommend any Acquisition Proposal) unless
the requirements of Section 6.1(b) have been satisfied.
(e)
Cessation of Ongoing
Discussions
.
The Company shall, and shall
cause its Subsidiaries to and direct their respective
Representatives to, cease immediately all discussions or
negotiations commenced prior to the date hereof with any person
(other than the parties hereto) regarding any proposal that
constitutes, or could reasonably be expected to lead to, an
Acquisition Proposal and shall request that all confidential
information previously furnished to any such persons be promptly
returned or destroyed.
A-36
(f)
Definitions
.
For purposes of
this Agreement:
Acquisition Proposal
means any
proposal or offer for, whether in a single transaction or series
of related transactions, alone or in combination (other than the
Merger), (i) a merger, consolidation, tender offer,
recapitalization, reorganization, share exchange, business
combination or similar transaction involving the Company (other
than any such transaction (x) involving solely the Company
and one or more of its Subsidiaries or (y) that, if
consummated, would not result in any person or group
within the meaning of Section 13(d) of the Exchange Act,
owning 20% or more of any class or series of capital stock or
voting securities of the Company), (ii) the issuance by the
Company of its equity securities that, if consummated, would
result in any person or group, within the meaning of
Section 13(d) of the Exchange Act, owning 20% or more of
any class or series of capital stock or voting securities of the
Company, (iii) the acquisition in any manner (including by
virtue of the transfer of equity interests in one or more
Subsidiaries of the Company) of, directly or indirectly, 20% or
more of the consolidated total assets or consolidated revenue or
consolidated earnings of the Company and its Subsidiaries, in
each case other than the transactions contemplated by this
Agreement (including any proposed amendments of this Agreement
proposed by the Buyer) or (iv) a dissolution or liquidation
of the Company or similar transaction involving the Company.
Superior Proposal
means any bona fide
written Acquisition Proposal which was not obtained in violation
of Section 6.1 (except that, for purposes of this
definition, references in the definition of Acquisition
Proposal to 20% shall be 50%) on
terms which the Company Board or any authorized committee
thereof determines in its good faith judgment (after
consultation with its financial advisor and outside legal
counsel) to be (i) more favorable from a financial point of
view to the holders of Company Common Stock (in their capacity
as such) than the Merger, taking into account all the terms and
conditions of such proposal and this Agreement (including any
written proposal by the Buyer to amend the terms of this
Agreement) and (ii) reasonably capable of being completed
on the terms proposed, taking into account all financial,
regulatory, legal and other aspects of such proposal.
6.2
Proxy Statement
.
As promptly
as practicable after the execution of this Agreement, the
Company shall prepare the Proxy Statement and file it with the
SEC and the Company and Buyer shall jointly prepare and file the
Schedule 13E-3
with the SEC and the Company and the Buyer shall cooperate with
each other in connection with the preparation of the foregoing.
The Company shall use commercially reasonable efforts to respond
as promptly as practicable to any comments of the SEC or its
staff concerning the Proxy Statement or the
Schedule 13E-3
and shall cause the Proxy Statement to be mailed to its
stockholders at the earliest practicable time after the
resolution of any such comments. The Company shall notify the
Buyer promptly upon the receipt of any comments from the SEC or
its staff or any other government officials and of any request
by the SEC or its staff or any other government officials for
amendments or supplements to the Proxy Statement or the
Schedule 13E-3
and shall supply the Buyer with copies of all correspondence
between the Company or any of its representatives, on the one
hand, and the SEC, or its staff or any other government
officials, on the other hand, with respect to the Proxy
Statement or the
Schedule 13E-3.
Notwithstanding anything to the contrary stated above, prior to
filing or mailing the Proxy Statement or the
Schedule 13E-3
(including any amendment or supplement to the Proxy Statement or
Schedule 13E-3) or responding to any comments of the SEC with
respect thereto, (i) the Company shall cooperate and
provide the Buyer with a reasonable opportunity to review and
comment on the Proxy Statement and responses relating thereto
and shall consider in good faith and include in such documents
and responses comments reasonably proposed by the Buyer and
(ii) the Company and the Buyer shall cooperate and provide
each other with a reasonable opportunity to review and comment
on the
Schedule 13E-3
and responses relating thereto and shall consider in good faith
comments reasonably proposed by the other party. The Company
shall use commercially reasonable efforts to cause all documents
that it is responsible for filing with the SEC or other
regulatory authorities under this Section 6.2 to comply in
all material respects with all applicable requirements of law
and the rules and regulations promulgated thereunder. Whenever
any event occurs which is required to be set forth in an
amendment or supplement to the Proxy Statement or the
Schedule 13E-3,
the Buyer or the Company, as the case may be, shall promptly
inform the other of such occurrence and cooperate in filing with
the SEC or its staff or any other government officials,
and/or
mailing to stockholders of the Company, such amendment or
supplement.
A-37
6.3
Nasdaq Quotation
.
The Company
agrees to use commercially reasonable efforts to continue the
quotation of the Company Common Stock on The Nasdaq Stock Market
during the term of this Agreement. Prior to the Closing Date,
the Company shall cooperate with the Buyer and use commercially
reasonable efforts to take, or cause to be taken, all actions,
and do or cause to be done all things, reasonably necessary,
proper or advisable on its part under applicable Laws and rules
and policies of The Nasdaq Global Market to cause the delisting
of the Company of the Company Common Stock from The Nasdaq
Global Market and the deregistration of the Company Common Stock
under the Exchange Act as promptly as practicable after the
Effective Time.
6.4
Access to Information
.
During
the Pre-Closing Period, the Company shall (and shall cause each
of its Subsidiaries to) afford to the Buyer and its Affiliates
and their respective Representatives, reasonable access, upon
reasonable notice, during normal business hours and in a manner
that does not materially disrupt or interfere with business
operations, to all of its properties, books, contracts,
commitments, personnel and records as the Buyer shall reasonably
request,
provided
,
however
, that the Company shall
not be required to afford access, or to disclose any
information, that in the good faith judgment of the Company
would (i) result in the disclosure of any trade secrets of
third parties, (ii) violate any obligation of the Company
or any of its Subsidiaries with respect to confidentiality,
(iii) jeopardize protections afforded the Company or any of
its Subsidiaries under the attorney-client privilege or the
attorney work product doctrine, or (iv) violate any
applicable law, regulation, rule, judgment or order. The Buyer
will hold any such information which is nonpublic in confidence
in accordance with the Confidentiality Agreement.
6.5
Stockholders Meeting
.
The
Company, acting through the Company Board or an authorized
committee thereof, shall take all actions in accordance with
applicable law, its Certificate of Incorporation and By-laws and
the rules of The Nasdaq Stock Market to promptly and duly call,
give notice of, convene and hold as promptly as practicable the
Company Meeting for the purpose of considering and voting upon
the Company Voting Proposal. Subject to Section 6.1,
(a) the Company Board and any authorized committee thereof
shall recommend adoption of the Company Voting Proposal by the
stockholders of the Company and include such recommendation in
the Proxy Statement and (b) the Company Board and any
committee thereof shall not withhold, withdraw or modify, or
publicly propose or resolve to withhold, withdraw or modify in a
manner adverse to the Buyer, the recommendation of the Company
Board that the Companys stockholders vote in favor of the
Company Voting Proposal. Subject to Section 6.1, the
Company shall take all action that is both reasonable and lawful
to solicit from its stockholders proxies in favor of the Company
Voting Proposal and shall take all other action reasonably
necessary or advisable to secure the vote or consent of the
stockholders of the Company required by the rules of The Nasdaq
Stock Market or the DGCL to obtain such approvals.
Notwithstanding anything to the contrary contained in this
Agreement, the Company, after consultation with the Buyer, may
adjourn or postpone the Company Meeting to the extent necessary
to ensure that any required supplement or amendment to the Proxy
Statement is provided to the Companys stockholders or, if
as of the time for which the Company Meeting is originally
scheduled (as set forth in the Proxy Statement) there are
insufficient shares of Company Common Stock represented (either
in person or by proxy) to constitute a quorum necessary to
conduct the business of the Company Meeting.
6.6
Legal Conditions to the Merger
.
(a) Subject to the terms hereof, including Section 6.1
and Section 6.6(b), the Company and the Buyer shall each use
their respective reasonable best efforts to:
(i) take, or cause to be taken, all actions, and do, or
cause to be done, and to assist and cooperate with the other
parties in doing, all things necessary, proper or advisable to
consummate and make effective the transactions contemplated
hereby as promptly as practicable;
(ii) as promptly as practicable, obtain from any
Governmental Entity or any other third party any consents,
licenses, permits, waivers, approvals, authorizations, or orders
required to be obtained or made by the Company or the Buyer or
any of their Subsidiaries in connection with the authorization,
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby;
A-38
(iii) as promptly as practicable, make all necessary
filings, and thereafter make any other required submissions,
with respect to this Agreement and the Merger required under
(A) the Exchange Act, and any other applicable federal or
state securities laws, (B) the HSR Act and any related
governmental request thereunder, and (C) any other
applicable law; and
(iv) execute or deliver any additional instruments
necessary to consummate the transactions contemplated by, and to
fully carry out the purposes of, this Agreement.
The Company and the Buyer shall cooperate with each other in
connection with the making of all such filings, including
providing copies of all such documents to the non-filing party
and its advisors prior to filing and, if requested, accepting
reasonable additions, deletions or changes suggested in
connection therewith. The Company and the Buyer shall use their
respective reasonable best efforts to furnish to each other all
information required for any application or other filing to be
made pursuant to the rules and regulations of any applicable law
(including all information required to be included in the Proxy
Statement) in connection with the transactions contemplated by
this Agreement. For the avoidance of doubt, the Buyer and the
Company agree that nothing contained in this Section 6.6(a)
shall modify or affect their respective rights and
responsibilities under Section 6.6(b).
(b) Subject to the terms hereof, the Buyer and the Company
agree, and shall cause each of their respective Subsidiaries, to
cooperate and to use their respective reasonable best efforts to
obtain any government clearances or approvals required for
Closing under the HSR Act, the Sherman Act, as amended, the
Clayton Act, as amended, the Federal Trade Commission Act, as
amended, and any other federal, state or foreign law, regulation
or decree designed to prohibit, restrict or regulate actions for
the purpose or effect of monopolization or restraint of trade
(collectively Antitrust Laws), to respond to any
government requests for information under any Antitrust Law, and
to contest and resist any action, including any legislative,
administrative or judicial action, and to have vacated, lifted,
reversed or overturned any decree, judgment, injunction or other
order (whether temporary, preliminary or permanent) (an
Antitrust Order) that restricts, prevents or
prohibits the consummation of the Merger or any other
transactions contemplated by this Agreement under any Antitrust
Law. The parties hereto will consult and cooperate with one
another, and consider in good faith the views of one another, in
connection with, and provide to the other parties in advance,
any analyses, appearances, presentations, memoranda, briefs,
arguments, opinions and proposals made or submitted by or on
behalf of any party hereto in connection with proceedings under
or relating to any Antitrust Law.
(c) The Company shall give (or shall cause its Subsidiaries
to give) any notices to third parties, and use, and cause its
Subsidiaries to use, its reasonable best efforts to obtain any
third party consents required in connection with the Merger that
are (i) necessary to consummate the transactions
contemplated hereby (including any notices and consents) or
(ii) disclosed or required to be disclosed in the Company
Disclosure Schedule, it being understood that the Company shall
not make any payment or incur any liability in connection with
the fulfillment of its obligations under this Section 6.6
without the prior written consent of the Buyer (such consent not
to be unreasonably withheld, conditioned or delayed).
6.7
Public Disclosure
.
Except as
may be required by law or stock market regulations, (a) the
press release announcing the execution of this Agreement shall
be issued only in such form as shall be mutually agreed upon by
the Company and the Buyer and (b) the Buyer and the Company
shall each use its commercially reasonable efforts to consult
with the other party before issuing any other press release or
otherwise making any public statement with respect to the Merger
or this Agreement.
6.8
Indemnification
.
(a) From the Effective Time through the sixth anniversary
of the date on which the Effective Time occurs, the Surviving
Corporation shall indemnify and hold harmless each person who is
now, or has been at any time prior to the date hereof, or who
becomes prior to the Effective Time, a director or officer of
the Company or any of its Subsidiaries (the Indemnified
Parties), against all claims, losses, liabilities,
damages, judgments, fines and reasonable fees, costs and
expenses, including attorneys fees and disbursements,
incurred in connection with any claim, action, suit, proceeding
or investigation, whether civil, criminal, administrative
A-39
or investigative (collectively, Claims), arising out
of or pertaining to the fact that the Indemnified Party is or
was an officer or director of the Company or any of its
Subsidiaries, whether asserted or claimed prior to, at or after
the Effective Time, to the fullest extent permitted under the
DGCL for officers and directors of Delaware corporations. The
Surviving Corporation shall have the right to control the
defense of any Claim covered under this Section 6.8(a).
Each Indemnified Party will be entitled to advancement of
expenses incurred in the defense of any such Claim, from the
Surviving Corporation within ten (10) business days of
receipt by the Surviving Corporation from the Indemnified Party
of a request therefor and upon the receipt by the Surviving
Corporation of an undertaking by such Indemnified Party to repay
such advanced expenses if it shall ultimately be determined that
such person is not entitled to be indemnified pursuant to this
Section 6.8(a).
(b) From the Effective Time through the sixth anniversary
of the date on which the Effective Time occurs, the Certificate
of Incorporation and By-laws of the Surviving Corporation shall
contain, and the Buyer shall cause the Certificate of
Incorporation and By-laws of the Surviving Corporation to so
contain, provisions no less favorable with respect to
indemnification, advancement of expenses and exculpation of
present and former directors and officers of the Company and its
Subsidiaries than are presently set forth in the Certificate of
Incorporation and By-laws of the Company.
(c) The Surviving Corporation shall maintain, and the Buyer
shall cause the Surviving Corporation to maintain, at no expense
to the beneficiaries, in effect for six (6) years from the
Effective Time the current policies of the directors and
officers liability insurance maintained by the Company
(provided that the Buyer may substitute therefor policies of at
least the same coverage with respect to matters existing or
occurring at or prior to the Effective Time, including a
tail policy) with respect to matters existing or
occurring at or prior to the Effective Time (including the
transactions contemplated by this Agreement), so long as the
annual premium therefor would not be in excess of 300% of the
last annual premium paid prior to the Effective Time (such 300%,
the
Maximum Premium
);
provided
,
however
, that if the aggregate annual premiums for such
insurance shall exceed the Maximum Premium, then the Surviving
Corporation shall provide or cause to be provided a policy for
the Indemnified Parties with the best coverage as shall then be
available at an annual premium not in excess of the Maximum
Premium. The Company may, prior to the Effective Time, with the
Buyers prior written consent (such consent not to be
unreasonably withheld, conditioned or delayed), purchase a
six-year prepaid tail policy on terms and conditions
providing at least substantially equivalent benefits as the
current policies of directors and officers liability
insurance maintained by the Company and its Subsidiaries with
respect to matters existing or occurring at or prior to the
Effective Time, covering without limitation the transactions
contemplated hereby. If such prepaid tail policy has
been obtained by the Company, it shall be deemed to satisfy all
obligations to obtain insurance pursuant to this
Section 6.8(c) and the Surviving Corporation shall cause
such policy to be maintained in full force and effect, for its
full term, and to honor all of its obligations thereunder.
(d) To the fullest extent permitted by law, the Surviving
Corporation shall, and the Buyer shall cause the Surviving
Corporation to, pay all expenses, including reasonable
attorneys fees, that may be incurred by the persons
referred to in this Section 6.8 in connection with their
successful enforcement of their rights provided in this
Section 6.8.
(e) The Buyer and the Transitory Subsidiary agree that all
rights to exculpation, indemnification and advancement of
expenses for acts or omissions occurring at or prior to the
Effective Time, whether asserted or claimed prior to, at or
after the Effective Time, now existing in favor of the current
or former directors or officers, as the case may be, of the
Company or any of its Subsidiaries as provided in their
respective certificates of incorporation or by-laws or other
organization documents or in any agreement shall survive the
Merger and shall continue in full force and effect, subject to
the terms thereof. The provisions of this Section 6.8 are
intended to be in addition to the rights otherwise available to
the current officers and directors of the Company by law,
charter, statute, by-law or agreement, and shall operate for the
benefit of, and shall be enforceable by, each of the Indemnified
Parties, their heirs and their representatives. Following the
Effective Time, the obligations set forth in this
Section 6.8 shall not be terminated, amended or otherwise
modified in any manner that adversely affects any Indemnified
Party and their heirs and representatives, without the prior
written consent of such affected Indemnified Person or other
person.
A-40
(f) If the Surviving Corporation or any of its successors
or assigns shall (i) consolidate with or merge into any
other person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger, or
(ii) transfer all or substantially all of its properties
and assets to any person, then, and in each such case, proper
provisions shall be made so that the successors and assigns of
the Surviving Corporation shall assume all of the obligations of
the Surviving Corporation set forth in this Section 6.8.
(g) Nothing in this Agreement is intended to, shall be
construed to or shall release, waive or impair any rights to
directors and officers insurance claims under any
policy that is or has been in existence with respect to the
Company or any of its Subsidiaries for any of their respective
directors, officers or other employees, it being understood and
agreed that the indemnification provided for in this
Section 6.8 is not prior to or in substitution for any such
claims under such policies.
6.9
Notification of Certain
Matters
.
During the Pre-Closing Period, the
Buyer shall give prompt notice to the Company, and the Company
shall give prompt notice to the Buyer, of (a) the
occurrence, or failure to occur, of any event, which occurrence
or failure to occur is reasonably likely to cause any
representation or warranty of such party contained in this
Agreement to be untrue or inaccurate in any material respect, in
each case at any time from and after the date of this Agreement
until the Effective Time, or (b) any material failure of
the Buyer and the Transitory Subsidiary or the Company, as the
case may be, or of any officer, director, employee or agent
thereof, to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it under this
Agreement. Notwithstanding the above, the delivery of any notice
pursuant to this Section 6.9 will not limit or otherwise
affect the remedies available hereunder to the party receiving
such notice or the conditions to such partys obligation to
consummate the Merger.
6.10
Exemption from Liability Under
Section 16(b)
.
Prior to the Effective
Time, the Company shall take steps as may be reasonably
requested by any party hereto to cause dispositions of Company
equity securities (including derivative securities) pursuant to
the transactions contemplated hereby by each individual who is a
director or officer of the Company to be exempt under
Rule 16b-3
promulgated under the Exchange Act to the extent permitted by
applicable law.
6.11
Service Credit
.
Following the
Effective Time, the Buyer will give each employee of the Buyer
or the Surviving Corporation or their respective Subsidiaries
who shall have been an employee of the Company or any of its
Subsidiaries immediately prior to the Effective Time
(Continuing Employees) full credit for prior service
with the Company or its Subsidiaries for purposes of
(a) eligibility and vesting under any Buyer Employee Plans
(as defined below), (b) determination of benefit levels
under any Buyer Employee Plan or policy relating to vacation or
severance and (c) determination of retiree
status under any Buyer Employee Plan, in each case for which the
Continuing Employee is otherwise eligible and in which the
Continuing Employee is offered participation, but except where
such credit would result in a duplication of benefits. In
addition, the Buyer shall waive, or cause to be waived, any
limitations on benefits relating to pre-existing conditions to
the same extent such limitations are waived under any comparable
plan of the Buyer and recognize for purposes of annual
deductible and
out-of-pocket
limits under its medical and dental plans, deductible and
out-of-pocket
expenses paid by Continuing Employees in the calendar year in
which the Effective Time occurs. For purposes of this Agreement,
the term Buyer Employee Plan means any
employee pension benefit plan (as defined in
Section 3(2) of ERISA), any employee welfare benefit
plan (as defined in Section 3(1) of ERISA), and any
other written or oral plan, agreement or arrangement, including
insurance coverage, severance benefits, disability benefits,
deferred compensation, bonuses, stock options, stock purchase,
restricted stock unit, stock appreciation or other forms of
incentive compensation or post-retirement compensation and all
unexpired severance agreements, for the benefit of, or relating
to, any current or former employee of the Buyer or any of its
Subsidiaries or any entity which is a member of (A) a
controlled group of corporations (as defined in Section 414(b)
of the Code), (B) a group of trades or businesses under
common control (as defined in Section 414(c) of the Code)
or (C) an affiliated service group (as defined in
Section 414(m) of the Code or the regulations under Section
414(o) of the Code), any of which includes or included the Buyer
or a Subsidiary of the Buyer.
6.12
Company Employee
Arrangements
.
Prior to the Effective Time, if
the Buyer, the Transitory Subsidiary or any of their respective
Affiliates provides a compensatory contract or agreement to any
employee
A-41
of the Company or any of its Subsidiaries for consideration in
connection with the Merger, the Buyer or Transitory Subsidiary
shall promptly thereafter provide the final execution version of
such Contract, if any, to the Company.
6.13
Sale of Investments
.
The
Company shall use commercially reasonable efforts to take all
actions reasonably requested by the Buyer in order to cause all,
or such portion as the Buyer shall request, of the Company and
its Subsidiaries unrestricted cash, cash equivalents and
marketable securities to be liquidated and converted at, or
close to, the then current market rates into cash of the Company
that is available to the Company at the Effective Time to be
used to pay the Merger Consideration. If this Agreement is
terminated by the Company pursuant to Section 8.1(h) or
Section 8.1(i), the Buyer shall, subject to
Section 9.10(b), promptly upon request by the Company,
reimburse the Company for all reasonable and documented
out-of-pocket
costs incurred by the Company or any of its Subsidiaries in
complying with this Section 6.13.
6.14
Director Resignations
.
Prior
to the Closing, the Company shall deliver to the Buyer
resignations executed by each director of the Company in office
immediately prior to the Effective Time, which resignations
shall be effective at the Effective Time and which resignations
shall not have been revoked.
6.15
Termination of Agreements
.
At
or prior to the Closing, the Company shall, at the request of
Buyer, execute an agreement provided by Buyer in the form
attached as
Exhibit C
hereto (the
Termination Agreement
) terminating the Third
Amended and Restated Investor Rights Agreement among the Company
and certain of its stockholders.
6.16
Internal Reorganization
.
The
Company shall initiate the internal reorganization transactions
described in Section 6.16 of the Company Disclosure
Schedule (the Internal Reorganization) in accordance
therewith and take reasonable steps to allow the Internal
Reorganization to be consummated as promptly as practicable
following the Closing. The Company agrees to reasonably
cooperate with the Buyer with respect to effectuating the
Internal Reorganization as promptly as practicable following the
Closing; provided that (i) such requested cooperation does
not unreasonably interfere with the ongoing operations of the
Company and its Subsidiaries and (ii) neither the Company
nor any of its Subsidiaries shall be required to pay any fees or
incur any liability in connection with the Internal
Reorganization prior to the Effective Time. If this Agreement is
terminated in accordance with Article VIII, the Buyer
shall, subject to Section 9.10(b), promptly upon request by
the Company, reimburse the Company for all reasonable and
documented
out-of-pocket
costs incurred by the Company or any of its Subsidiaries in
connection with such cooperation.
ARTICLE VII
CONDITIONS
TO MERGER
7.1
Conditions to Each Partys Obligation To
Effect the Merger
.
The respective obligations
of each party to this Agreement to effect the Merger shall be
subject to the satisfaction on or prior to the Closing Date of
the following conditions:
(a)
Stockholder Approval
.
The
Company Voting Proposal shall have been adopted at the Company
Meeting, at which a quorum is present, by the Required Company
Stockholder Vote.
(b)
HSR Act
.
The waiting period
applicable to the consummation of the Merger under the HSR Act
shall have expired or been terminated.
(c)
Governmental Approvals
.
Other
than the filing of the Certificate of Merger, all
authorizations, consents, orders or approvals of, or
declarations or filings with, or expirations of waiting periods
imposed by, any Governmental Entity in connection with the
Merger and the consummation of the other transactions
contemplated by this Agreement, the failure of which to file,
obtain or occur is reasonably likely to have a Buyer Material
Adverse Effect or a Company Material Adverse Effect, shall have
been filed, been obtained or occurred on terms and conditions
which would not reasonably be likely to have a Buyer Material
Adverse Effect or a Company Material Adverse Effect.
A-42
(d)
Proxy Statement
.
No order
suspending the use of the Proxy Statement shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened in writing by the SEC or its staff.
(e)
No Injunctions
.
No
Governmental Entity of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any order,
executive order, stay, decree, judgment or injunction
(preliminary or permanent) or statute, rule or regulation which
is in effect and which has the effect of making the Merger
illegal or otherwise prohibiting consummation of the Merger or
the other transactions contemplated by this Agreement;
provided
,
however
, that a party may not assert
that this condition has not been satisfied unless such party
shall have used its reasonable best efforts to prevent the
enforcement or entry of such order, executive order, stay,
decree, judgment or injunction or statute, rule or regulation,
including taking such action as is required to comply with
Section 6.6, and to appeal as promptly as possible any
order, executive order, stay, decree, judgment or injunction
that may be issued.
7.2
Additional Conditions to Obligations of the Buyer
and the Transitory Subsidiary
.
The
obligations of the Buyer and the Transitory Subsidiary to effect
the Merger shall be subject to the satisfaction on or prior to
the Closing Date of each of the following additional conditions,
any of which may be waived, in writing, exclusively by the Buyer
and the Transitory Subsidiary:
(a)
Representations and
Warranties
.
The representations and
warranties of the Company (i) set forth in the first
sentence of Section 3.7 shall be true and correct in all
respects as of the Closing Date as if made on and as of the
Closing Date, (ii) set forth in Section 3.2,
Section 3.4(a) and Section 3.20, disregarding all
qualifications contained therein relating to materiality or
Company Material Adverse Effect, shall be true and correct in
all material respects as of the Closing Date as if made on and
as of the Closing Date (or, if given as of a specific date, at
and as of such date) and (iii) set forth in
Article III hereof (other than the Sections of
Article III described in clauses (i) and
(ii) above), disregarding all qualifications contained
therein relating to materiality or Company Material Adverse
Effect, shall be true and correct as of the Closing Date as if
made on and as of the Closing Date (or, if given as of a
specific date, at and as of such date), except in the case of
this clause (iii) where the failure to be so true and
correct has not resulted in or would not reasonably be likely to
result in, individually or in the aggregate, a Company Material
Adverse Effect.
(b)
Performance of Obligations of the
Company
.
The Company shall have performed in
all material respects all obligations required to be performed
by it under this Agreement on or prior to the Closing Date.
(c)
No Material Adverse
Effect
.
Since the date of this Agreement,
there shall not have occurred any Company Material Adverse
Effect.
(d)
Adjusted EBITDA
.
Adjusted
EBITDA (as defined in Section 5.4(f) of the Company Disclosure
Schedule) for the twelve (12) month period ended at least
30 days prior to the Closing Date shall not be less than
$95 million.
(e)
Officers
Certificate
.
The Company shall have delivered
to the Buyer a certificate, dated as of the Closing Date, signed
by the chief executive officer or the chief financial officer of
the Company, certifying to the satisfaction of the conditions
specified in Sections 7.2(a) through 7.2(d).
7.3
Additional Conditions to Obligations of the
Company
.
The obligation of the Company to
effect the Merger shall be subject to the satisfaction on or
prior to the Closing Date of each of the following additional
conditions, any of which may be waived, in writing, exclusively
by the Company:
(a)
Representations and
Warranties
.
The representations and
warranties of the Buyer and the Transitory Subsidiary set forth
in this Agreement shall be true and correct as of the Closing
Date as though made on and as of the Closing Date (except
(i) to the extent such representations and warranties are
specifically made as of a particular date, in which case such
representations and warranties shall be true and correct as of
such date, (ii) for changes contemplated by this Agreement,
and (iii) where the failure to be true and correct (without
regard to any materiality or Buyer Material Adverse Effect
A-43
qualifications contained therein), individually or in the
aggregate, has not had a Buyer Material Adverse Effect.
(b)
Performance of Obligations of the Buyer and the
Transitory Subsidiary
.
The Buyer and the
Transitory Subsidiary shall have performed in all material
respects all obligations required to be performed by them under
this Agreement on or prior to the Closing Date.
(c)
Officers
Certificate
.
The Buyer shall have delivered
to the Company a certificate, dated as of the Closing Date,
signed by the chief executive officer, chief financial officer
or other duly authorized officer of the Buyer, certifying to the
satisfaction of the conditions specified in Sections 7.3(a)
and 7.3(b).
(d)
Solvency Certificate
.
The
Buyer shall have delivered to the Company a solvency certificate
substantially similar in form and substance to the solvency
certificate to be delivered to the lenders pursuant to the Debt
Commitment Letter or any agreements entered into in connection
with the Debt Financing.
7.4
Frustration of Closing
Conditions
.
None of the Company, the Buyer or
the Transitory Subsidiary may rely on the failure of any
condition set forth in Section 7.2 or 7.3, as the case may
be, to be satisfied if such failure was caused by such
partys failure to use the standard of efforts required
from such party to consummate the Merger and the other
transactions contemplated by this Agreement, including as
required by and subject to Sections 5.3, 5.4 and 6.6.
ARTICLE VIII
TERMINATION
AND AMENDMENT
8.1
Termination
.
This Agreement
may be terminated at any time prior to the Effective Time (with
respect to Sections 8.1(b) through 8.1(i), by written
notice by the terminating party to the other party), whether
before or, subject to the terms hereof, after adoption of this
Agreement by the stockholders of the Company:
(a) by mutual written consent of the Buyer, the Transitory
Subsidiary and the Company; or
(b) by either the Buyer or the Company if the Merger shall
not have been consummated by June 15, 2010 (the
Outside Date) (provided that the right to terminate
this Agreement under this Section 8.1(b) shall not be
available to any party whose failure to fulfill any obligation
under this Agreement has been a principal cause of or resulted
in the failure of the Merger to occur on or before the Outside
Date); or
(c) by either the Buyer or the Company if a Governmental
Entity of competent jurisdiction shall have issued a
nonappealable final order, decree or ruling or taken any other
nonappealable final action, in each case having the effect of
permanently restraining, enjoining or otherwise prohibiting the
Merger (provided that the right to terminate this Agreement
under this Section 8.1(c) shall not be available to any
party whose failure to fulfill any obligation under this
Agreement has been a principal cause of or resulted in such
order, decree, ruling or other action); or
(d) by either the Buyer or the Company if at the Company
Meeting at which a vote on the Company Voting Proposal is taken,
the Required Company Stockholder Vote in favor of the Company
Voting Proposal shall not have been obtained; or
(e) by the Buyer, if: (i) the Company Board or any
committee thereof shall have failed to recommend approval of the
Company Voting Proposal in the Proxy Statement or shall have
withheld, withdrawn, amended or modified its recommendation of
the Company Voting Proposal in a manner adverse to the Buyer;
(ii) the Company Board or any committee thereof shall have
adopted, approved, endorsed or recommended to the stockholders
of the Company an Acquisition Proposal (other than the Merger);
(iii) a tender offer or exchange offer for outstanding
shares of Company Common Stock shall have been commenced (other
than by the Buyer or an Affiliate of the Buyer) and the Company
Board or any committee thereof recommends that the stockholders
of the Company tender their shares in such tender or exchange
offer or, within ten (10) Business Days after the public
announcement of such tender or exchange offer or, if earlier,
prior to the date of the Company Meeting, the Company Board or a
A-44
committee thereof fails to recommend against acceptance of such
offer and reaffirm the recommendation of the Company Voting
Proposal; (iv) the Company enters into an Alternative
Acquisition Agreement or (v) the Company or the Company
Board or any committee thereof shall have publicly announced its
intention to do any of the foregoing; or
(f) by the Company, if the Company Board or an authorized
committee thereof, pursuant to and in compliance with
Section 6.1, shall have adopted, approved, endorsed or
recommended, or publicly proposed to adopt, approve, endorse or
recommend, to the stockholders of the Company any Acquisition
Proposal;
provided
,
however
, that the Company
shall prior to or simultaneously with a termination pursuant to
this Section 8.1(f) pay the Termination Fee to the Buyer or
another Person designated by the Buyer; or
(g) by the Buyer, if there has been a breach of or failure
to perform any representation, warranty, covenant or agreement
on the part of the Company set forth in this Agreement, which
breach or failure to perform (i) would cause the conditions
set forth in Section 7.2 not to be satisfied, and
(ii) shall not have been cured, or is not capable of being
cured, within 20 days following receipt by the Company of
written notice of such breach or failure to perform from the
Buyer (or, if earlier, the Outside Date);
provided
,
however
, that the Buyer shall not have the right to
terminate this Agreement pursuant to this Section 8.1(g) if
it or the Transitory Subsidiary is then in material breach of
any of its representations, warranties, covenants or other
agreements hereunder that would result in the conditions to
Closing set forth in Sections 7.3(a) or 7.3(b) not being
satisfied; or
(h) by the Company, if there has been a breach of or
failure to perform any representation, warranty, covenant or
agreement on the part of the Buyer or the Transitory Subsidiary
set forth in this Agreement, which breach or failure to perform
(i) would cause the conditions set forth in Sections 7.3(a)
or 7.3(b) not to be satisfied, and (ii) shall not have been
cured, or is not capable of being cured, within 20 days
following receipt by the Buyer of written notice of such breach
or failure to perform from the Company (or, if earlier, the
Outside Date);
provided
,
however
, that the Company
shall not have the right to terminate this Agreement pursuant to
this Section 8.1(h) if it is then in material breach of any
of its representations, warranties, covenants or other
agreements hereunder that would result in the conditions to
Closing set forth in Sections 7.2(a) or 7.2(b) not being
satisfied; or
(i) by the Company, if all of the conditions set forth in
Sections 7.1 and 7.2 have been satisfied (other than those
conditions that by their nature are to be satisfied by actions
taken at the Closing) and the Company has indicated in writing
that the Company is ready and willing to consummate the
transactions contemplated by this Agreement (subject to the
satisfaction of all of the conditions set forth in
Sections 7.1 and 7.3), and the Buyer and the Transitory
Subsidiary fail to consummate the transactions contemplated by
this Agreement within ten (10) Business Days following the
date the Closing should have occurred pursuant to
Section 1.2 (for the avoidance of doubt, it being
understood that in accordance with the proviso to
Section 8.1(b), during such period of ten
(10) Business Days following the date the Closing should
have occurred pursuant to Section 1.2, the Buyer shall not
be entitled to terminate this Agreement pursuant to
Section 8.1(b)).
8.2
Effect of Termination
.
In the
event of termination of this Agreement as provided in
Section 8.1 this Agreement shall immediately become void
and there shall be no liability or obligation on the part of the
Buyer, the Company, the Transitory Subsidiary or their
respective officers, directors, stockholders or Affiliates;
provided that (a) subject to Section 9.10,
Section 8.3(c) and Section 8.3(d), any such
termination shall not relieve any party from liability for any
willful breach of this Agreement and (b) the
Confidentiality Agreement (subject to its terms), the provisions
of Sections 5.2 (Confidentiality) and 8.3 (Fees and
Expenses), Section 8.4 (Amendment), Section 8.5
(Extension; Waiver), this Section 8.2 (Effect of
Termination) and Article IX (Miscellaneous) of this
Agreement, the Guarantee (subject to its terms) and the
indemnification and reimbursement provisions of
Sections 5.4(d), 6.13 and 6.16 of this Agreement shall
remain in full force and effect and survive any termination of
this Agreement. Nothing shall limit or prevent any party from
exercising any rights or remedies it may have under
Section 9.10 hereof in lieu of terminating this Agreement
pursuant to Section 8.1.
A-45
8.3
Fees and Expenses
.
(a) Except as set forth in this Section 8.3, all fees
and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such fees and expenses, whether or not the Merger is
consummated.
(b) Provided that the Buyer has not received payment of a
Termination Fee pursuant to Section 8.3(c), the Company
shall pay the Buyer up to $3.0 million as reimbursement for
expenses actually incurred by or on behalf of the Buyer or its
Affiliates relating to the transactions contemplated by this
Agreement (including, but not limited to, reasonable fees and
expenses of the Buyers counsel, accountants, financial
advisors and financing sources, but excluding any discretionary
fees paid to such financial advisors), in the event of the
termination of this Agreement by the Buyer or the Company
pursuant to Section 8.1(d) or Section 8.1(g) (other
than terminations due to breaches of Section 6.1 or
Section 6.5). The expenses payable pursuant to this
Section 8.3(b) shall be paid by wire transfer of
same-day
funds within 10 Business Days after demand therefor following
the occurrence of the event giving rise to the payment
obligation described in this Section 8.3(b). The expense
reimbursement pursuant to this Section 8.3(b) is referred
to herein as the Expense Reimbursement. The payment
of the Expense Reimbursement pursuant to this
Section 8.3(b) shall not relieve the Company of any
subsequent obligation to pay the Termination Fee pursuant to
Section 8.3(c).
(c) The Company shall pay the Buyer a termination fee of
$15.0 million (the
Termination Fee
)
(i) in the event of the termination of this Agreement
pursuant to Section 8.1(e), Section 8.1(f) or
Section 8.1(g) (due to breaches of Section 6.1 or
Section 6.5), or (ii) if (A) an Acquisition
Proposal shall have been communicated to the Company or a member
of the Company Board (whether or not publicly disclosed) and not
withdrawn (and, if publicly disclosed, not publicly withdrawn)
prior to a termination referred to in the succeeding clause (B),
(B) following the occurrence of an event described in the
preceding clause (A), this Agreement is terminated by the
Company or the Buyer pursuant to Section 8.1(b) or
Section 8.1(d) or by the Buyer pursuant to
Section 8.1(g) (other than terminations due to breaches of
Section 6.1 or Section 6.5) and (C) prior to or
within twelve (12) months following the date this Agreement
is terminated, the Company enters into a definitive acquisition
agreement with respect to or consummates any Acquisition
Proposal (in each case whether or not the Acquisition Proposal
was the same Acquisition Proposal referred to in clause (A));
provided
,
however
, that for purposes of
clause (C) of this Section 8.3(c), the references to
20% in the definition of Acquisition Proposal shall
be deemed to be references to 50%. The Company shall
be entitled to credit against payment of the Termination Fee in
respect of any Expense Reimbursement previously paid under
Section 8.3(b).
In the event that the Buyer shall receive full payment pursuant
to this Section 8.3(c), the receipt of the Termination Fee
shall be deemed to be liquidated damages for any and all losses
or damages suffered or incurred by the Buyer, the Transitory
Subsidiary, any of their respective Affiliates or any other
person in connection with this Agreement (and the termination
hereof), the transactions contemplated hereby (and the
abandonment thereof) or any matter forming the basis for such
termination, and none of the Buyer, the Transitory Subsidiary,
any of their respective Affiliates or any other person shall be
entitled to bring or maintain any other claim, action or
proceeding against the Company or any of its Affiliates arising
out of this Agreement, any of the transactions contemplated
hereby or any matters forming the basis for such termination;
provided
,
however
, that nothing in this
Section 8.3(c) shall limit the rights of Buyer and
Transitory Sub under Section 9.10(a) or the rights of the
Buyer or its Affiliates under and to the extent provided in the
Ancillary Agreements. Any fee due under clause (i) of this
Section 8.3(c) shall be paid to the Buyer or its designee
by wire transfer of
same-day
funds within two Business Days after the date of termination of
this Agreement if such termination is pursuant to Section 8.1(e)
but shall be due simultaneously with such termination if
pursuant to Section 8.1(f). Any fee due under
clause (ii) of this Section 8.3(c) shall be paid to
the Buyer or its designee by wire transfer of
same-day
funds within two Business Days after the earlier of the entry
into a definitive agreement with respect to any Acquisition
Proposal or the consummation of an Acquisition Proposal.
Notwithstanding anything to the contrary, the Company shall not
owe any obligation to pay the Termination Fee if this Agreement
is terminated pursuant to Section 8.1(b) after the Company
has provided the written indication referred to in
Section 8.1(i) unless the Company refuses to consummate the
Closing during the time period contemplated by Section 8.1(i).
A-46
(d) The Buyer shall pay, or cause to be paid, the Company a
termination fee of $25.0 million (the Buyer
Termination Fee) if this Agreement is terminated by the
Company pursuant to Section 8.1(h) or Section 8.1(i).
Any fee due under this Section 8.3(d) shall be paid to the
Company or its designee by wire transfer of
same-day
funds within two (2) Business Days after the date of
termination of this Agreement pursuant to Section 8.1(h) or
Section 8.1(i).
In the event that the Company shall receive full payment
pursuant to this Section 8.3(d), the receipt of the Buyer
Termination Fee shall be deemed to be liquidated damages for any
and all losses or damages suffered or incurred by the Company or
any other person in connection with this Agreement or the
Guarantee (and the termination hereof), the transactions
contemplated hereby (and the abandonment thereof) or any matter
forming the basis for such termination, and neither the Company
nor any other person shall be entitled to bring or maintain any
other claim, action or proceeding against the Buyer, the
Transitory Subsidiary or any other Buyer Party arising out of
this Agreement or the Guarantee, any of the transactions
contemplated hereby or any matters forming the basis for such
termination. Notwithstanding anything to the contrary, if a
court of competent jurisdiction has ordered the Buyer or the
Transitory Subsidiary to pay the Buyer Termination Fee pursuant
to this Section 8.3(d), the Company shall not be entitled
to enforce such order if (x) the Buyer delivers to the
Company, within five (5) Business Days following the
issuance of such order, a notice electing to consummate the
Closing in accordance with Article II of this Agreement and
(y) the Closing occurs within three (3) Business Days
following the delivery of such notice.
(e) If the Company or the Buyer, as the case may be, fails
to timely pay any amount due pursuant to this Section 8.3,
and, in order to obtain the payment, the Buyer or the Company,
as the case may be, commences a suit which results in a judgment
against the other party for the payment set forth in this
Section 8.3, such paying party shall pay the other party
its reasonable and documented costs and expenses (including
reasonable and documented attorneys fees) in connection
with such suit, together with interest on such amount at the
prime rate of JPMorgan Chase & Co. in effect on the
date such payment was required to be made through the date such
payment was actually received.
(f) The parties acknowledge that the agreements contained
in this Section 8.3 are an integral part of the
transactions contemplated by this Agreement, and that, without
these agreements, the parties would not enter into this
Agreement. Except as provided in Section 8.3(c) and
Section 8.3(d), respectively, payment of the fees and
expenses described in this Section 8.3 shall not be in lieu
of liability for damages incurred in the event of a breach of
this Agreement described in Section 8.2(a), but otherwise
shall constitute the sole and exclusive remedy of the parties in
connection with any termination of this Agreement.
8.4
Amendment
.
This Agreement may
be amended by the parties hereto, by action taken or authorized
by their respective Boards of Directors, at any time before or
after approval of the matters presented in connection with the
Merger by the stockholders of any party, but, after any such
approval, no amendment shall be made which by law requires
further approval by such stockholders without such further
approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties
hereto.
8.5
Extension; Waiver
.
At any time
prior to the Effective Time, the parties hereto, by action taken
or authorized by their respective Boards of Directors, may, to
the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other
parties hereto, (ii) waive any inaccuracies in the
representations and warranties contained herein or in any
document delivered pursuant hereto and (iii) waive
compliance with any of the agreements or conditions contained
herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party. Such
extension or waiver shall not be deemed to apply to any time for
performance, inaccuracy in any representation or warranty, or
noncompliance with any agreement or condition, as the case may
be, other than that which is specified in the extension or
waiver. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise shall not
constitute a waiver of such rights.
A-47
ARTICLE IX
MISCELLANEOUS
9.1
Nonsurvival of Representations, Warranties and
Agreements
.
None of the representations,
warranties and agreements in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective
Time, except for any covenant or agreement of the parties that
by its terms contemplates performance after the Effective Time.
9.2
Notices
.
All notices and other
communications hereunder shall be in writing and shall be deemed
duly delivered (i) four Business Days after being sent by
registered or certified mail, return receipt requested, postage
prepaid, (ii) one Business Day after being sent for next
Business Day delivery, fees prepaid, via a reputable nationwide
overnight courier service, or (iii) on the date of
confirmation of receipt (or, the first Business Day following
such receipt if the date of such receipt is not a Business Day)
of transmission by facsimile, in each case to the intended
recipient as set forth below:
(a) if to the Buyer or the Transitory Subsidiary, to
c/o S.A.C.
Capital Advisors, L.P.
72 Cummings Point Rd
Stamford, CT 06902
Attn: General Counsel
Telecopy:
(203) 823-4209
with a copy to:
Simpson Thacher & Bartlett LLP
1999 Avenue of the Stars
29th Floor
Los Angeles, CA 90067
Attn: Daniel Clivner
Telecopy:
(310) 407-7502
(b) if to the Company, to
Airvana, Inc.
19 Alpha Road
Chelmsford, MA 01824
Attn: Peter C. Anastos
Telecopy:
(978) 250-3910
with copies to:
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attn: Mark G. Borden and Jay E. Bothwick
Telecopy:
(617) 526-5000
and
Ropes & Gray LLP
One International Place
Boston, MA
02110-2624
Attn: John D. Donovan and Julie H. Jones
Telecopy:
(617) 951-7050
Any party to this Agreement may give any notice or other
communication hereunder using any other means (including
personal delivery, messenger service, telex, ordinary mail or
electronic mail), but no such notice or other communication
shall be deemed to have been duly given unless and until it
actually is received
A-48
by the party for whom it is intended. Any party to this
Agreement may change the address to which notices and other
communications hereunder are to be delivered by giving the other
parties to this Agreement notice in the manner herein set forth.
9.3
Entire Agreement
.
This
Agreement (including the Schedules and Exhibits hereto and the
documents and instruments referred to herein that are to be
delivered at the Closing) constitutes the entire agreement among
the parties to this Agreement and supersedes any prior
understandings, agreements or representations by or among the
parties hereto, or any of them, written or oral, with respect to
the subject matter hereof (including that certain letter
agreement between the Company and S.A.C. Private Capital Group,
LLC, dated August 25, 2009, regarding reimbursement of
expenses), and the parties hereto specifically disclaim reliance
on any such prior understandings, agreements or representations
to the extent not embodied in this Agreement. Notwithstanding
the foregoing, the Confidentiality Agreement shall remain in
effect in accordance with its terms;
provided
,
however
, that, if the Effective Time occurs, the
Confidentiality Agreement shall terminate as of the Effective
Time.
9.4
No Third Party
Beneficiaries
.
Except (a) for the right
of holders of Common Stock to receive the Merger Consideration
pursuant to and in accordance with Section 2.1 (with
respect to which holders of Company Common Stock shall be third
party beneficiaries following the Effective Time if the
Effective Time occurs), (b) as provided in Section 6.8
(with respect to which the Indemnified Parties shall be third
party beneficiaries) and (c) as set forth in the last
sentence of this Section 9.4, this Agreement is not
intended, and shall not be deemed, to confer any rights or
remedies upon any person other than the parties hereto and their
respective successors and permitted assigns, to create any
agreement of employment with any person or to otherwise create
any third-party beneficiary hereto. The representations and
warranties in this Agreement are the product of negotiations
among the parties hereto and are for the sole benefit of the
parties hereto. Any inaccuracies in such representations and
warranties are subject to waiver by the parties hereto in
accordance with Section 8.5 without notice or liability to
any other person. In some instances, the representations and
warranties in this Agreement may represent an allocation among
the parties hereto of risks associated with particular matters
regardless of the knowledge of any of the parties hereto.
Consequently, persons other than the parties hereto may not rely
upon the representations and warranties in this Agreement as
characterizations of actual facts or circumstances as of the
date of this Agreement or as of any other date. The Buyer
Parties shall be express third party beneficiaries with respect
to Sections 8.2 (but solely to the extent Section 8.2
provides for the survival following the termination of this
Agreement of Sections 8.3(d), 9.10(b) and 9.11), 8.3(d),
9.10(b) and 9.11 of this Agreement.
9.5
Assignment
.
Neither this
Agreement nor any of the rights, interests or obligations under
this Agreement may be assigned or delegated, in whole or in
part, by operation of law or otherwise by any of the parties
hereto without the prior written consent of the other parties,
and any such assignment without such prior written consent shall
be null and void;
provided
,
however
, that the
Buyer or the Transitory Subsidiary may assign its rights,
interests or obligations under this Agreement to any Subsidiary
of the Buyer without the consent of the other parties hereto,
but no such assignment shall relieve the assigning party of its
obligations hereunder. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties hereto and their respective
successors and permitted assigns.
9.6
Severability
.
Any term or
provision of this Agreement that is invalid or unenforceable in
any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof
or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.
If the final judgment of a court of competent jurisdiction
declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making
such determination shall have the power to limit the term or
provision, to delete specific words or phrases, or to replace
any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest
to expressing the intention of the invalid or unenforceable term
or provision, and this Agreement shall be enforceable as so
modified. In the event such court does not exercise the power
granted to it in the prior sentence, the parties hereto agree to
replace such invalid or unenforceable term or provision with a
valid and enforceable term or provision that will achieve, to
the extent possible, the economic, business and other purposes
of such invalid or unenforceable term.
A-49
9.7
Counterparts and
Signature
.
This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original but all of which together shall be considered one and
the same agreement and shall become effective when counterparts
have been signed by each of the parties hereto and delivered to
the other parties, it being understood that all parties need not
sign the same counterpart. This Agreement may be executed and
delivered by facsimile transmission.
9.8
Interpretation
.
When reference
is made in this Agreement to an Article or a Section, such
reference shall be to an Article or Section of this Agreement,
unless otherwise indicated. The table of contents, table of
defined terms and headings contained in this Agreement are for
convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement. The language
used in this Agreement shall be deemed to be the language chosen
by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against, nor shall
there be a presumption that any ambiguities in this Agreement
shall be resolved against, any party. Whenever the context may
require, any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural,
and vice versa. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context
requires otherwise. Whenever the words include,
includes or including are used in this
Agreement, they shall be deemed to be followed by the words
without limitation. The words in writing
include electronic correspondence and
e-mail.
No
summary of this Agreement prepared by any party shall affect the
meaning or interpretation of this Agreement.
9.9
Governing Law
.
This Agreement
shall be governed by and construed in accordance with the
internal laws of the State of Delaware without giving effect to
any choice or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause
the application of laws of any jurisdictions other than those of
the State of Delaware.
9.10
Remedies
.
(a) Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred
hereby, or by law or equity upon such party, and the exercise by
a party of any one remedy will not preclude the exercise of any
other remedy. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this
Agreement were not performed by the Company in accordance with
their specific terms or were otherwise breached by the Company.
It is accordingly agreed that, subject to Section 8.3, the
Buyer and the Transitory Subsidiary shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this
Agreement, in each case without posting a bond or undertaking,
this being in addition to any other remedy to which they are
entitled at law or in equity. The parties further acknowledge
that the Company shall not be entitled to an injunction or
injunctions to prevent breaches of this Agreement against the
Buyer or the Transitory Subsidiary or to enforce specifically
the terms and provisions of this Agreement or otherwise obtain
any equitable relief or remedy against the Buyer or the
Transitory Subsidiary.
(b) Notwithstanding anything herein to the contrary, the
maximum aggregate liability of the Company under or relating to
this Agreement to any person shall be limited to the Termination
Fee (inclusive of the Expense Reimbursement) plus any amounts
that may be payable by the Company under Section 8.3(e)
(the Company Liability Limitation) and the maximum
aggregate liability of the Buyer and the Transitory Subsidiary
under or relating to this Agreement to any person shall be
limited to the Buyer Termination Fee (inclusive of any amounts
owed pursuant to the indemnification and reimbursement
provisions of Sections 5.4(d), 6.13 and 6.16) plus any
amounts that may be payable by the Buyer under
Section 8.3(e) (the
Buyer Liability
Limitation
) and in no event shall (i) the Company
or any of its Affiliates seek any recovery, judgment or damages
of any kind, including consequential, indirect or punitive
damages, against the Buyer, the Transitory Subsidiary, the
Investor or any other Buyer Parties (as defined below) in excess
of the Buyer Liability Limitation in connection with this
Agreement or the transactions contemplated hereby and
(ii) the Buyer or Transitory Subsidiary seek any other
recovery, judgment or damages of any kind, including
consequential, indirect or punitive damages, against the
Company, its Subsidiaries or any other Company
A-50
Parties in excess of the Company Liability Limitation in
connection with this Agreement or the transactions contemplated
hereby;
provided
,
however
, that nothing in this
Section 9.10(b) shall limit the rights of the Buyer and the
Transitory Subsidiary under Section 9.10(a) or the rights
of the parties hereto under and to the extent provided in the
Ancillary Agreements.
Ancillary Agreements
shall mean the Interim Investors Agreement, the Rollover
Commitment Letters and the Termination Agreement. Without
limiting the rights of the Buyer or its Affiliates under and to
the extent provided in Section 9.10(a) and the Ancillary
Agreements, the Buyer and the Transitory Subsidiary acknowledge
and agree that each of them has no right of recovery against,
and no personal liability shall attach to, in each case with
respect to damages of the Buyer or its Affiliates
(
Buyer Damages
), any of the Company Parties
(other than the Company to the extent provided in this
Agreement), through the Company or otherwise, whether by or
through attempted piercing of the corporate veil, by or through
a claim by or on behalf of the Company against any Company
Party, by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute, regulation or
applicable Law, or otherwise. Without limiting the rights of the
Company under and to the extent provided in the Ancillary
Agreements, the Company acknowledges and agrees that it has no
right of recovery against, and no personal liability shall
attach to, in each case with respect to damages of the Company
and its Affiliates (
Company Damages
), any of
the Buyer Parties (as defined below) (other than the Buyer and
the Transitory Subsidiary to the extent provided in this
Agreement and the Investor to the extent provided in the
Guarantee), through the Buyer or otherwise, whether by or
through attempted piercing of the corporate, limited partnership
or limited liability company veil, by or through a claim by or
on behalf of the Buyer against the Investor or any other Buyer
Party, by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute, regulation or
applicable Law, or otherwise, except for its rights to recover
from the Investor (but not any other Buyer Party (including any
general partner or managing member)) under and to the extent
provided in the Guarantee and subject to the Buyer Liability
Limitation and the other limitations described therein. Recourse
against the Investor under the Guarantee shall be the sole and
exclusive remedy of the Company and its Affiliates against the
Investor and any other Buyer Party (other than the Buyer and the
Transitory Subsidiary to the extent provided in this Agreement)
in respect of any liabilities or obligations arising under, or
in connection with, this Agreement or the transactions
contemplated hereby.
(c) For purposes hereof: (i)
Buyer
Parties
shall mean, collectively, the Buyer, the
Transitory Subsidiary, the Investor, the Debt Financing Sources
and any of their respective former, current or future directors,
officers, employees, agents, general or limited partners,
managers, members, stockholders, Affiliates or assignees or any
former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder,
Affiliate or assignee of any of the foregoing, and
(ii)
Company Parties
shall mean,
collectively, the Company and its Subsidiaries and any of their
respective former, current or future directors, officers,
employees, agents, general or limited partners, managers,
members, stockholders, Affiliates or assignees or any former,
current or future director, officer, employee, agent, general or
limited partner, manager, member, stockholder, Affiliate or
assignee of any of the foregoing.
9.11
Submission to
Jurisdiction
.
Each of the parties to this
Agreement (a) consents to submit itself to the personal
jurisdiction of the Court of Chancery of the State of Delaware
in any action or proceeding arising out of or relating to this
Agreement or any of the transactions contemplated by this
Agreement, (b) agrees that all claims in respect of such
action or proceeding may be heard and determined only in such
court, (c) agrees that it shall not attempt to deny or
defeat such personal jurisdiction by motion or other request for
leave from such court, and (d) agrees not to bring any
action or proceeding arising out of or relating to this
Agreement or any of the transactions contemplated by this
Agreement in any other court. Each of the parties hereto waives
any defense of inconvenient forum to the maintenance of any
action or proceeding so brought and waives any bond, surety or
other security that might be required of any other party with
respect thereto. To the fullest extent permitted by law, any
party hereto may make service on another party by sending or
delivering a copy of the process to the party to be served at
the address and in the manner provided for the giving of notices
in Section 9.2. Nothing in this Section 9.11, however,
shall affect the right of any party to serve legal process in
any other manner permitted by law.
9.12
Disclosure Schedules
.
The
Company Disclosure Schedule and the Buyer Disclosure Schedule
shall each be arranged in Sections corresponding to the numbered
Sections contained in Article III, in the case of
A-51
the Company Disclosure Schedule, or Article IV, in the case
of the Buyer Disclosure Schedule, and the disclosure in any
Section shall qualify (a) the corresponding Section in
Article III or Article IV, as the case may be, and
(b) the other Sections in Article III or
Article IV, as the case may be, to the extent that it is
readily apparent from a reading of such disclosure that it also
qualifies or applies to such other Sections. The inclusion of
any information in the Company Disclosure Schedule or the Buyer
Disclosure Schedule shall not be deemed to be an admission or
acknowledgment, in and of itself, that such information is
required by the terms hereof to be disclosed, is material, has
resulted in or would result in a Company Material Adverse Effect
or a Buyer Material Adverse Effect, or is outside the Ordinary
Course of Business.
9.13
Knowledge
.
For purposes of
this Agreement, the term
Companys
Knowledge
means the actual knowledge of the
individuals identified in Section 9.13 of the Company
Disclosure Schedule, and the term
Buyers
Knowledge
means the actual knowledge of the
individuals identified in Section 9.13 of the Buyer
Disclosure Schedule.
A-52
IN WITNESS WHEREOF, the Buyer, the Transitory Subsidiary and the
Company have caused this Agreement to be signed by their
respective officers thereunto duly authorized as of the date
first written above.
72 MOBILE HOLDINGS, LLC
Name: Peter Berger
72 MOBILE ACQUISITION CORP.
Name: Peter Berger
AIRVANA, INC.
Name: Randall Battat
A-53
EXHIBIT A
FORM OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
AIRVANA, INC.
FIRST.
The name of the corporation is Airvana,
Inc. (the Corporation).
SECOND.
The address of the Corporations
registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801. The name of its registered agent at such
address is The Corporation Trust Company.
THIRD.
The purpose of the Corporation is to
engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of the State of
Delaware (the DGCL).
FOURTH.
The total number of shares of stock
which the Corporation shall have authority to issue is one
thousand (1,000) shares of common stock, par value $0.001 per
share.
FIFTH.
The board of directors of the
Corporation, acting by the vote of any member or members of the
board of directors representing a majority of the votes entitled
to be cast at a meeting of the board of directors, is expressly
authorized to adopt, amend or repeal the bylaws of the
Corporation.
SIXTH.
Except to the extent that the DGCL
prohibits the elimination or limitation of liability of
directors for breaches of fiduciary duty, no director of the
Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary
duty as a director, notwithstanding any provision of law
imposing such liability. No amendment to or repeal of this
provision shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring
prior to such amendment or repeal. If the DGCL is amended to
permit further elimination or limitation of the personal
liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the DGCL as so amended.
SEVENTH.
The Corporation shall provide
indemnification as follows:
1.
Actions, Suits and Proceedings Other than by or in
the Right of the Corporation
.
The Corporation
shall indemnify each person who was or is a party or threatened
to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he or
she is or was, or has agreed to become, a director or officer of
the Corporation, or is or was serving, or has agreed to serve,
at the request of the Corporation, as a director, officer,
partner, employee or trustee of, or in a similar capacity with,
another corporation, partnership, joint venture, trust or other
enterprise (including any employee benefit plan) (all such
persons being referred to hereafter as an
Indemnitee), or by reason of any action alleged to
have been taken or omitted in such capacity, against all
expenses (including attorneys fees), liabilities, losses,
judgments, fines, excise taxes and penalties arising under the
Employee Retirement Income Security Act of 1974, and amounts
paid in settlement actually and reasonably incurred by or on
behalf of such Indemnitee in connection with such action, suit
or proceeding and any appeal therefrom, if such Indemnitee acted
in good faith and in a manner which such Indemnitee reasonably
believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that such Indemnitee did not act in good
faith and in a manner which such Indemnitee reasonably believed
to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
A-54
2.
Actions or Suits by or in the Right of the
Corporation
.
The Corporation shall indemnify
any Indemnitee who was or is a party to or threatened to be made
a party to any threatened, pending or completed action or suit
by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that such Indemnitee is or was,
or has agreed to become, a director or officer of the
Corporation, or is or was serving, or has agreed to serve, at
the request of the Corporation, as a director, officer, partner,
employee or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other
enterprise (including any employee benefit plan), or by reason
of any action alleged to have been taken or omitted in such
capacity, against all expenses (including attorneys fees)
and, to the extent permitted by law, amounts paid in settlement
actually and reasonably incurred by or on behalf of Indemnitee
in connection with such action, suit or proceeding and any
appeal therefrom, if such Indemnitee acted in good faith and in
a manner which such Indemnitee reasonably believed to be in, or
not opposed to, the best interests of the Corporation, except
that no indemnification shall be made under this Section 2
of this Article SEVENTH in respect of any claim, issue or
matter as to which such Indemnitee shall have been adjudged to
be liable to the Corporation, unless, and only to the extent,
that the Court of Chancery of the State of Delaware or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such Indemnitee is
fairly and reasonably entitled to indemnity for such expenses
(including attorneys fees) which the Court of Chancery of
the State of Delaware or such other court shall deem proper.
3.
Indemnification for Expenses of Successful
Party
.
Notwithstanding any other provisions
of this Article SEVENTH, to the extent that an Indemnitee
has been successful, on the merits or otherwise, in defense of
any action, suit or proceeding referred to in Sections 1
and 2 of this Article SEVENTH, or in defense of any claim,
issue or matter therein, or on appeal from any such action, suit
or proceeding, such Indemnitee shall be indemnified against all
expenses (including attorneys fees) actually and
reasonably incurred by or on behalf of Indemnitee in connection
therewith. Without limiting the foregoing, if any action, suit
or proceeding is disposed of, on the merits or otherwise
(including a disposition without prejudice), without
(i) the disposition being adverse to such Indemnitee,
(ii) an adjudication that such Indemnitee was liable to the
Corporation, (iii) a plea of guilty or nolo contendere by
such Indemnitee, (iv) an adjudication that such Indemnitee
did not act in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
Corporation, and (v) with respect to any criminal
proceeding, an adjudication that such Indemnitee had reasonable
cause to believe his or her conduct was unlawful, then such
Indemnitee shall be considered for the purposes hereof to have
been wholly successful with respect thereto.
4.
Notification and Defense of
Claim
.
As a condition precedent to an
Indemnitees right to be indemnified, such Indemnitee must
notify the Corporation in writing as soon as practicable of any
action, suit, proceeding or investigation involving such
Indemnitee for which indemnity will or could be sought. With
respect to any action, suit, proceeding or investigation of
which the Corporation is so notified, the Corporation will be
entitled to participate therein at its own expense
and/or
to
assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to Indemnitee. After notice from
the Corporation to such Indemnitee of its election so to assume
such defense, the Corporation shall not be liable to such
Indemnitee for any legal or other expenses subsequently incurred
by such Indemnitee in connection with such action, suit,
proceeding or investigation, other than as provided below in
this Section 4 of this Article SEVENTH. Such
Indemnitee shall have the right to employ his or her own counsel
in connection with such action, suit, proceeding or
investigation, but the fees and expenses of such counsel
incurred after notice from the Corporation of its assumption of
the defense thereof shall be at the expense of such Indemnitee
unless (i) the employment of counsel by such Indemnitee has
been authorized by the Corporation, (ii) counsel to such
Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position on any significant issue
between the Corporation and such Indemnitee in the conduct of
the defense of such action, suit, proceeding or investigation or
(iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, suit, proceeding
or investigation, in each of which cases the fees and expenses
of counsel for such Indemnitee shall be at the expense of the
Corporation, except as otherwise expressly provided by this
A-55
Article SEVENTH. The Corporation shall not be entitled,
without the consent of such Indemnitee, to assume the defense of
any claim brought by or in the right of the Corporation or as to
which counsel for such Indemnitee shall have reasonably made the
conclusion provided for in clause (ii) above. The
Corporation shall not be required to indemnify such Indemnitee
under this Article SEVENTH for any amounts paid in
settlement of any action, suit, proceeding or investigation
effected without its written consent. The Corporation shall not
settle any action, suit, proceeding or investigation in any
manner which would impose any penalty or limitation on such
Indemnitee without such Indemnitees written consent.
Neither the Corporation nor Indemnitee will unreasonably
withhold or delay its consent to any proposed settlement.
5.
Advance of Expenses
.
Subject to
the provisions of Section 6 of this Article SEVENTH,
in the event of any threatened or pending action, suit,
proceeding or investigation of which the Corporation receives
notice under this Article SEVENTH, any expenses (including
attorneys fees) incurred by or on behalf of an Indemnitee
in defending an action, suit, proceeding or investigation or any
appeal therefrom shall be paid by the Corporation in advance of
the final disposition of such matter; provided, however, that
the payment of such expenses incurred by or on behalf of such
Indemnitee in advance of the final disposition of such matter
shall be made only upon receipt of an undertaking by or on
behalf of such Indemnitee to repay all amounts so advanced in
the event that it shall ultimately be determined that such
Indemnitee is not entitled to be indemnified by the Corporation
as authorized in this Article SEVENTH; and provided further
that no such advancement of expenses shall be made under this
Article SEVENTH if it is determined (in the manner
described in Section 6 of this Article SEVENTH) that
(i) such Indemnitee did not act in good faith and in a
manner he or she reasonably believed to be in, or not opposed
to, the best interests of the Corporation, or (ii) with
respect to any criminal action or proceeding, such Indemnitee
had reasonable cause to believe his or her conduct was unlawful.
Such undertaking shall be accepted without reference to the
financial ability of such Indemnitee to make such repayment.
6.
Procedure for Indemnification and Advancement of
Expenses
.
In order to obtain indemnification
or advancement of expenses pursuant to Section 1, 2, 3 or 5
of this Article SEVENTH, an Indemnitee shall submit to the
Corporation a written request. Any such advancement of expenses
shall be made promptly, and in any event within 60 days
after receipt by the Corporation of the written request of such
Indemnitee, unless (i) the Corporation has assumed the
defense pursuant to Section 4 of this Article SEVENTH (and
none of the circumstances described in Section 4 of this
Article SEVENTH that would nonetheless entitle the Indemnitee to
indemnification for the fees and expenses of separate counsel
have occurred) or (ii) the Corporation determines within
such
60-day
period that such Indemnitee did not meet the applicable standard
of conduct set forth in Section 1, 2 or 5 of this
Article SEVENTH, as the case may be. Any such
indemnification, unless ordered by a court, shall be made with
respect to requests under Section 1 or 2 of this
Article SEVENTH only as authorized in the specific case
upon a determination by the Corporation that the indemnification
of Indemnitee is proper because Indemnitee has met the
applicable standard of conduct set forth in Section 1 or 2,
as the case may be. Such determination shall be made in each
instance (a) by a majority vote of the directors of the
Corporation consisting of persons who are not at that time
parties to the action, suit or proceeding in question
(disinterested directors), whether or not a quorum,
(b) by a committee of disinterested directors designated by
majority vote of disinterested directors, whether or not a
quorum, (c) if there are no disinterested directors, or if
the disinterested directors so direct, by independent legal
counsel (who may, to the extent permitted by law, be regular
legal counsel to the Corporation) in a written opinion, or
(d) by the stockholders of the Corporation.
7.
Remedies
.
The right to
indemnification or advancement of expenses as granted by this
Article SEVENTH shall be enforceable by Indemnitee in any
court of competent jurisdiction. Neither the failure of the
Corporation to have made a determination prior to the
commencement of such action that indemnification is proper in
the circumstances because an Indemnitee has met the applicable
standard of conduct, nor an actual determination by the
Corporation pursuant to Section 6 of this Article SEVENTH
that an Indemnitee has not met such applicable standard of
conduct, shall be a defense to the action or create a
presumption that an Indemnitee has not met the applicable
standard of conduct. An Indemnitees
A-56
expenses (including attorneys fees) reasonably incurred in
connection with successfully establishing such Indemnitees
right to indemnification, in whole or in part, in any such
proceeding shall also be indemnified by the Corporation.
Notwithstanding the foregoing, in any suit brought by an
Indemnitee to enforce a right to indemnification hereunder it
shall be a defense that the Indemnitee has not met any
applicable standard for indemnification set forth in the DGCL.
8.
Limitations
.
Notwithstanding
anything to the contrary in this Article SEVENTH, except as
set forth in Section 7 of this Article SEVENTH, the
Corporation shall not indemnify an Indemnitee pursuant to this
Article SEVENTH in connection with a proceeding (or part
thereof) initiated by such Indemnitee unless the initiation
thereof was approved by the Board of Directors of the
Corporation. Notwithstanding anything to the contrary in this
Article SEVENTH, the Corporation shall not indemnify an
Indemnitee to the extent such Indemnitee is reimbursed from the
proceeds of insurance, and in the event the Corporation makes
any indemnification payments to an Indemnitee and such
Indemnitee is subsequently reimbursed from the proceeds of
insurance, such Indemnitee shall promptly refund indemnification
payments to the Corporation to the extent of such insurance
reimbursement.
9.
Subsequent Amendment
.
No
amendment, termination or repeal of this Article SEVENTH or
of the relevant provisions of the DGCL or any other applicable
laws shall adversely affect or diminish in any way the rights of
any Indemnitee to indemnification under the provisions hereof
with respect to any action, suit, proceeding or investigation
arising out of or relating to any actions, transactions or facts
occurring prior to the final adoption of such amendment,
termination or repeal.
10.
Other Rights
.
The
indemnification and advancement of expenses provided by this
Article SEVENTH shall not be deemed exclusive of any other
rights to which an Indemnitee seeking indemnification or
advancement of expenses may be entitled under any law (common or
statutory), agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in such
Indemnitees official capacity and as to action in any
other capacity while holding office for the Corporation, and
shall continue as to an Indemnitee who has ceased to be a
director or officer, and shall inure to the benefit of the
estate, heirs, executors and administrators of such Indemnitee.
Nothing contained in this Article SEVENTH shall be deemed
to prohibit, and the Corporation is specifically authorized to
enter into, agreements with officers and directors providing
indemnification rights and procedures different from those set
forth in this Article SEVENTH. In addition, the Corporation
may, to the extent authorized from time to time by its Board of
Directors, grant indemnification rights to other employees or
agents of the Corporation or other persons serving the
Corporation and such rights may be equivalent to, or greater or
less than, those set forth in this Article SEVENTH.
11.
Partial Indemnification
.
If an
Indemnitee is entitled under any provision of this
Article SEVENTH to indemnification by the Corporation for
some or a portion of the expenses (including attorneys
fees), judgments, fines or amounts paid in settlement actually
and reasonably incurred by or on behalf of such Indemnitee in
connection with any action, suit, proceeding or investigation
and any appeal therefrom but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify such
Indemnitee for the portion of such expenses (including
attorneys fees), judgments, fines or amounts paid in
settlement to which such Indemnitee is entitled.
12.
Primacy of
Indemnification
.
The Corporation hereby
acknowledges that an Indemnitee may have certain rights to
indemnification, advancement of expenses
and/or
insurance provided by S.A.C. Private Capital Group, LLC
and/or
certain of its affiliates (collectively, the Fund
Indemnitors). The Corporation hereby agrees (i) that
as between the Corporation and the Fund Indemnitors, the
Corporation is the indemnitor of first resort with respect to
matters which are the subject of indemnification or advancement
of expenses under this Article SEVENTH (i.e., its
obligations to the Indemnitees are primary and any obligation of
the Fund Indemnitors to advance expenses or to provide
indemnification for the same expenses or liabilities incurred by
the Indemnitees are secondary), (ii) that it shall be
required to advance the full amount of expenses incurred by the
Indemnitees and shall be liable for the full amount of all
expenses, judgments, penalties, fines and amounts paid in
settlement to the extent legally permitted and as required by
these Articles (or any agreement between the Corporation and the
A-57
Indemnitee), without regard to any rights the Indemnitee may
have against the Fund Indemnitors, and, (iii) that it
irrevocably waives, relinquishes and releases the
Fund Indemnitors from any and all claims against the
Fund Indemnitors for contribution, subrogation or any other
recovery of any kind in respect thereof. The Corporation further
agrees that no advancement or payment by the
Fund Indemnitors on behalf of any Indemnitee with respect
to any claim for which the Indemnitee has sought indemnification
from the Corporation shall affect the foregoing and the
Fund Indemnitors shall have a right of contribution
and/or
be
subrogated to the extent of such advancement or payment to all
of the rights of recovery of an Indemnitee against the
Corporation.
13.
Insurance
.
The Corporation may
purchase and maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture,
trust or other enterprise (including any employee benefit plan)
against any expense, liability or loss incurred by him or her in
any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the
DGCL.
14.
Savings Clause
.
If this
Article SEVENTH or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to
any expenses (including attorneys fees), judgments, fines
and amounts paid in settlement in connection with any action,
suit, proceeding or investigation, whether civil, criminal or
administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable
portion of this Article SEVENTH that shall not have been
invalidated and to the fullest extent permitted by applicable
law.
15.
Definitions
.
Terms used herein
and defined in Section 145(h) and Section 145(i) of
the DGCL shall have the respective meanings assigned to such
terms in such Section 145(h) and Section 145(i).
EIGHTH.
1. To the fullest extent permitted by law, the Corporation
acknowledges that: (i) S.A.C. Private Capital Group, LLC,
its affiliates (other than the Corporation), and its and their
respective partners, members, officers, directors and employees,
and each Paragraph (2) Person (as defined below)
(collectively, the Exempt Persons) shall have no
duty (fiduciary, contractual or otherwise) not to, directly or
indirectly (a) engage in the same or similar business
activities or lines of business as the Corporation or any of its
subsidiaries, including those deemed to be competing with the
Corporation or any of its subsidiaries, (b) do business
with any client, customer or vendor of the Corporation or any of
its subsidiaries or (c) enter into and perform one or more
agreements (or modifications or supplements to pre-existing
agreements) with the Corporation or any of its subsidiaries,
including, in the cases of clauses (a), (b) or (c), any
such matters as may be corporate opportunities; and (ii) no
Exempt Person nor any officer, director or employee thereof
shall be deemed to have breached any duties (fiduciary,
contractual or otherwise), if any, to the Corporation, any of
its subsidiaries or its stockholders solely by reason of any
Exempt Person engaging in any such activity or entering into
such transactions, including any corporate opportunities.
2. The Corporation and its subsidiaries shall have no
interest or expectation in, nor right to be informed of, any
corporate opportunity, and in the event that any Exempt Person
acquires knowledge of a potential transaction or matter which
may be a corporate opportunity, such Exempt Person, to the
fullest extent permitted by law, has no duty (fiduciary,
contractual or otherwise) or obligation to communicate or offer
such corporate opportunity to the Corporation or any of its
subsidiaries, stockholders or to any other person and shall not,
to the fullest extent permitted by law, be liable to the
Corporation or any of its subsidiaries, stockholders or any
other person for breach of any fiduciary duty as a director,
officer or stockholder of the Corporation or any of its
subsidiaries by reason of the fact that any Exempt Person
acquires or seeks such corporate opportunity for itself, directs
such corporate opportunity to another person or entity, or
otherwise does not communicate information regarding such
corporate opportunity to the Corporation or its subsidiaries,
stockholders or any other person, and the Corporation and its
subsidiaries, to the fullest extent permitted by law, waive and
renounce any claim that such business opportunity constituted a
corporate opportunity that should have been presented to the
Corporation or any of its affiliates; provided, that if an
opportunity is
A-58
expressly communicated to a Paragraph (2) Person in his or
her capacity as a director or officer of the Corporation or
subsidiary of the Corporation for the express purpose of causing
such opportunity to be communicated to the Corporation or such
subsidiary, then such Paragraph (2) Person shall satisfy
his or her fiduciary obligation, if any, by communicating the
opportunity, or, in lieu thereof, the identity of the party
initiating the communication, to the board of directors. For the
purposes of this Certificate of Incorporation,
(a) corporate opportunity shall include,
without limitation, any potential transaction, investment or
business opportunity or prospective economic or competitive
advantage in which the Corporation or any of its subsidiaries
could have any expectancy or interest; and
(b) Paragraph (2) Person shall mean any
director or officer of the Corporation or any of its
subsidiaries who is also a director, officer or employee of any
of S.A.C. Private Capital Group, LLC, its affiliates (other than
the Corporation), and its and their respective partners and
members.
A-59
EXHIBIT B
EXECUTION
VERSION
LIMITED
GUARANTEE
LIMITED GUARANTEE,
dated as of December 17, 2009
(this
Limited Guarantee
), by S.A.C. Capital
Management, LLC (the
Guarantor
) in favor of
Airvana, Inc. (the
Guaranteed Party
).
1.
LIMITED GUARANTEE
.
To induce
the Guaranteed Party to enter into that certain Agreement and
Plan of Merger, dated as of December 17, 2009 (as amended,
restated, supplemented or otherwise modified from time to time
pursuant to the terms thereof, the
Merger
Agreement
), by and among the Guaranteed Party, 72
Mobile Acquisition Corp. and 72 Mobile Holdings, LLC (the
Buyer
), pursuant to which and subject to the
terms and conditions of which the Guaranteed Party will become a
wholly owned subsidiary of the Buyer (the
Merger
), the Guarantor, intending to be
legally bound, hereby absolutely, irrevocably and
unconditionally guarantees to the Guaranteed Party, on the terms
and conditions set forth herein the due and punctual payment as
and when due of the payment obligations of Buyer with respect to
(a) the Buyer Termination Fee, subject to the limitations
of the Merger Agreement, (b) any amounts payable by Buyer
pursuant to Section 8.3(e) of the Merger Agreement in
respect of the Buyer Termination Fee, subject to the limitations
of the Merger Agreement, (c) any amounts payable by Buyer
pursuant to Section 5.4(d) of the Merger Agreement;
(d) any amounts payable by Buyer pursuant to
Section 6.13 of the Merger Agreement and (e) any
amounts payable by Buyer pursuant to Section 6.16 of the
Merger Agreement ((a) through (e) collectively, the
Obligations
), provided that notwithstanding
anything to the contrary contained in this Limited Guarantee, in
no event shall the Guarantors aggregate liability under
this Limited Guarantee exceed $25,000,000.00, plus any amounts
payable by Buyer pursuant to Section 8.3(e) of the Merger
Agreement in respect of the Buyer Termination Fee, plus any
Reimbursement Obligations, less the portion of the foregoing
amounts, if any, indefeasibly paid to the Guaranteed Party by
the Buyer that is not rescinded or otherwise returned, the
Transitory Subsidiary or any other Person (the
Cap
), it being understood that this Limited
Guarantee may not be enforced without giving effect to the Cap.
The Guaranteed Party hereby agrees that in no event shall the
Guarantor be required to pay any amount to the Guaranteed Party
under, in respect of, or in connection with this Limited
Guarantee, the Equity Commitment Letter, the Merger Agreement or
the transactions contemplated hereby and thereby other than as
expressly set forth herein. All payments hereunder shall be made
in lawful money of the United States, in immediately available
funds. Each capitalized term used but not defined herein shall
have the meaning ascribed to it in the Merger Agreement, except
as otherwise provided.
If the Buyer fails to pay the Obligations when due, then all of
the Guarantors liabilities to the Guaranteed Party
hereunder in respect of such Obligations shall, at the
Guaranteed Partys option, become immediately due and
payable and the Guaranteed Party may at any time and from time
to time, at the Guaranteed Partys option, take any and all
actions available hereunder or under applicable law to collect
the Obligations from the Guarantor. In furtherance of the
foregoing, the Guarantor acknowledges that the Guaranteed Party
may, in its sole discretion, bring and prosecute a separate
action or actions against the Guarantor for the full amount of
the Obligations (subject to the Cap) regardless of whether any
action is brought against the Buyer.
The Guarantor agrees to pay on demand all reasonable and
documented
out-of-pocket
expenses (including reasonable fees and expenses of counsel)
incurred by the Guaranteed Party in connection with the
enforcement of its rights hereunder if the Guarantor fails or
refuses to make any payment to the Guaranteed Party hereunder
when due and payable and it is judicially determined that the
Guarantor is required to make such payment hereunder. Amounts
payable to the Guaranteed Party pursuant to the previous
sentence shall be referred to herein as the
Reimbursement Obligations
.
2.
NATURE OF GUARANTEE
.
The
Guarantors liability hereunder is absolute, unconditional,
irrevocable and continuing irrespective of any modification,
amendment or waiver of or any consent to departure from the
Merger Agreement that may be agreed to by the Buyer or the
Transitory Subsidiary. In the event that any payment to the
Guaranteed Party in respect of the Obligations is rescinded or
must otherwise be returned for
A-60
any reason whatsoever, the Guarantor shall remain liable
hereunder with respect to the Obligations (subject to the Cap)
as if such payment had not been made. This Limited Guarantee is
an unconditional and continuing guarantee of payment and not of
collection, and the Guaranteed Party shall not be required to
proceed against the Buyer or the Transitory Subsidiary before
proceeding against the Guarantor hereunder.
3.
CHANGES IN OBLIGATION, CERTAIN
WAIVERS
.
The Guarantor agrees that the
Guaranteed Party may, in its sole discretion, at any time and
from time to time, without notice to or further consent of the
Guarantor, extend the time of payment of the Obligations, and
may also make any agreement with the Buyer or the Transitory
Subsidiary for the extension or renewal thereof, in whole or in
part, without in any way impairing or affecting the
Guarantors obligations under this Limited Guarantee or
affecting the validity or enforceability of this Limited
Guarantee. The Guarantor agrees that the obligations of the
Guarantor hereunder shall not be released or discharged, in
whole or in part, or otherwise affected by (a) the failure
or delay on the part of the Guaranteed Party to assert any claim
or demand or to enforce any right or remedy against the Buyer or
the Transitory Subsidiary; (b) any change in the time,
place or manner of payment of any of the Obligations, or any
rescission, waiver, compromise, consolidation, or other
amendment or modification of any of the terms or provisions of
the Merger Agreement made in accordance with the terms thereof;
(c) the addition or substitution of any entity or other
Person now or hereafter liable with respect to the Obligations
or otherwise interested in the transactions contemplated by the
Merger Agreement; (d) any change in the corporate
existence, structure or ownership of the Buyer, the Transitory
Subsidiary or any Person now or hereafter liable with respect to
the Obligations or otherwise interested in the transactions
contemplated by the Merger Agreement; (e) the existence of
any claim, set-off or other right which the Guarantor may have
at any time against the Buyer, the Transitory Subsidiary or the
Guaranteed Party or any of their respective Affiliates, whether
in connection with the Obligations or otherwise except as
provided herein; (f) the adequacy of any other means the
Guaranteed Party may have of obtaining payment related to the
Obligations; (g) any insolvency, bankruptcy, reorganization
or other similar proceeding affecting the Buyer, the Transitory
Subsidiary or any other Person now or hereafter liable with
respect to the Obligations or otherwise interested in the
transactions contemplated by the Merger Agreement; and
(h) any discharge of the Guarantor as a matter of
applicable law (other than as a result of, and to the extent of,
payment of the Obligations in accordance with the terms of the
Merger Agreement). To the fullest extent permitted by applicable
law, the Guarantor hereby expressly waives any and all rights or
defenses arising by reason of any applicable law which would
otherwise require any election of remedies by the Guaranteed
Party. The Guarantor waives promptness, diligence, notice of the
acceptance of this Limited Guarantee and of the Obligations,
presentment, demand for payment, notice of non-performance,
default, dishonor and protest, notice of the Obligations
incurred and all other notices of any kind, all defenses which
may be available by virtue of any valuation, stay, moratorium or
other similar applicable law now or hereafter in effect, and all
suretyship defenses generally (other than fraud by the
Guaranteed Party or any of its Affiliates or defenses to the
payment of the Obligations that are available to Buyer under the
Merger Agreement or breach by the Guaranteed Party of this
Limited Guarantee). The Guarantor acknowledges that it will
receive substantial direct and indirect benefits from the
transactions contemplated by the Merger Agreement and that the
waivers, agreements, covenants, obligations and other terms in
this Limited Guarantee are knowingly made and agreed to in
contemplation of such benefits. The Guaranteed Party hereby
covenants and agrees that it shall not institute, directly or
indirectly, and shall cause its Affiliates not to institute,
directly or indirectly, any proceeding or bring any other claim
arising under, in respect of or in connection with the Equity
Commitment Letter, the Merger Agreement or the transactions
contemplated thereby, against the Guarantor or any Non-Recourse
Party (as defined in Section 9 herein), except for claims
against the Guarantor under this Limited Guarantee (subject to
the limitations described herein) and claims under the
Confidentiality Agreement. The Guarantor hereby covenants and
agrees that it shall not assert, directly or indirectly, in any
proceeding that this Limited Guarantee is illegal, invalid or
unenforceable in accordance with its terms.
4.
NO WAIVER; CUMULATIVE
RIGHTS
.
For so long as this Limited Guarantee
shall remain in effect in accordance with Section 8 hereof,
no failure to exercise, and no delay in exercising, any right,
remedy or power hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy or
power hereunder preclude any other or future exercise of any
right, remedy or power hereunder. Each and every right, remedy
and power hereby granted to the Guaranteed Party shall be
cumulative and not exclusive
A-61
of any other, and may be exercised by the Guaranteed Party at
any time or from time to time. The Guaranteed Party shall not
have any obligation to proceed at any time or in any manner
against, or exhaust any or all of the Guaranteed Partys
rights against, the Buyer, the Transitory Subsidiary or any
other Person now or hereafter liable for any Obligation or
interested in the transactions contemplated by the Merger
Agreement prior to proceeding against the Guarantor.
5.
REPRESENTATIONS AND
WARRANTIES
.
The Guarantor hereby represents
and warrants that:
(a) It has all requisite limited liability company power
and authority to execute, deliver and perform this Limited
Guarantee; the execution, delivery and performance of this
Limited Guarantee have been duly and validly authorized by all
necessary action, and do not contravene any provision of the
Guarantors charter, partnership agreement, operating
agreement or similar organizational documents, or any applicable
law or contractual restriction binding on the Guarantor or its
assets; and the Person executing and delivering this Limited
Guarantee on behalf of the Guarantor is duly authorized to do so;
(b) all consents, approvals, authorizations, permits of,
filings with and notifications to, any governmental entity
necessary for the due execution, delivery and performance of
this Limited Guarantee by the Guarantor have been obtained or
made and all conditions thereof have been duly complied with,
and no other action by, and no notice to or filing with, any
governmental entity is required in connection with the
execution, delivery or performance of this Limited Guarantee;
(c) this Limited Guarantee constitutes a legal, valid and
binding obligation of the Guarantor enforceable against the
Guarantor in accordance with its terms, subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar applicable laws
affecting creditors rights generally, and
(ii) general equitable principles (whether considered in a
proceeding in equity or at law); and
(d) the Guarantor has the financial capacity to pay and
perform its obligations under this Limited Guarantee, and all
funds necessary for the Guarantor to fulfill its obligations
under this Limited Guarantee shall be available to the Guarantor
(or its permitted assignee pursuant to Section 6 hereof)
for so long as this Limited Guarantee shall remain in effect in
accordance with Section 8 hereof.
6.
NO ASSIGNMENT
.
Neither this
Limited Guarantee nor any right or obligation hereunder may be
assigned by any party (by operation of law or otherwise) without
the prior written consent of the other party, except that,
without the prior written consent of the Guaranteed Party, this
Limited Guarantee may be assigned, in whole or in part, by the
Guarantor to one or more of its Affiliates or to one or more
investment funds sponsored or managed by the Guarantor or one or
more of its Affiliates;
provided
, that any such
assignment will not release the Guarantor from its obligations
hereunder. Any attempted assignment in violation of this section
shall be null and void.
7.
NOTICES
.
All notices, requests,
claims, demands and other communications hereunder shall be
given by the means specified in the Merger Agreement (and shall
be deemed given as specified therein), as follows:
if to the Guarantor:
c/o S.A.C.
Capital Advisors, L.P.
72 Cummings Point Road
Stamford, Connecticut 06902
Attention: General Counsel
Facsimile:
(203) 823-4209
with a copy to (which alone shall not constitute notice):
Simpson Thacher & Bartlett LLP
1999 Avenue of the Stars 29th Floor
Los Angeles, CA 90067
Attention: Daniel Clivner
Facsimile:
(310) 407-7502
A-62
If to the Guaranteed Party, as provided in the Merger Agreement.
8.
CONTINUING GUARANTEE
.
This
Limited Guarantee may not be revoked or terminated and shall
remain in full force and effect and shall be binding on the
Guarantor, its successors and permitted assigns until the
Obligations have been paid in full. Notwithstanding the
foregoing, this Limited Guarantee shall terminate and the
Guarantor shall have no further obligations under this Limited
Guarantee as of the earliest of (i) the Closing in
accordance with the terms of the Merger Agreement, including
payment of the Merger Consideration, (ii) the valid
termination of the Merger Agreement in accordance with its terms
under circumstances set forth in the Merger Agreement in which
Buyer would not be obligated to pay the Buyer Termination Fee
and (iii) the payment to the Guaranteed Party by any
combination of Buyer
and/or
the
Guarantor of the full amount of the Obligations. Notwithstanding
any other term or provision of this Limited Guarantee, in the
event that the Guaranteed Party or any of its Affiliates asserts
in any litigation or other proceeding that the provisions of
Section 1 hereof limiting the Guarantors liability to
the Cap or any other provisions of this Limited Guarantee are
illegal, invalid or unenforceable in whole or in part, or
asserting any theory of liability against the Guarantor or any
Non-Recourse Party with respect to the transactions contemplated
by the Merger Agreement other than liability of the Guarantor
under this Limited Guarantee (as limited by the provisions of
Section 1) or under the Confidentiality Agreement,
then (x) the obligations of the Guarantor under this
Limited Guarantee shall terminate
ab initio
and shall
thereupon be null and void, (y) if the Guarantor has
previously made any payments under this Limited Guarantee, it
shall be entitled to recover such payments from the Guaranteed
Party, and (z) neither the Guarantor, nor any Non-Recourse
Parties shall have any liability to the Guaranteed Party or any
of its Affiliates with respect to the Equity Commitment Letter,
the Merger Agreement or the transactions contemplated by the
Merger Agreement or under this Limited Guarantee.
9.
NO RECOURSE
.
Notwithstanding
anything that may be expressed or implied in this Limited
Guarantee or any document or instrument delivered in connection
herewith, by its acceptance of the benefits of this Limited
Guarantee, the Guaranteed Party covenants, agrees and
acknowledges that no Person other than the Guarantor has any
obligation hereunder and that, notwithstanding that the
Guarantor
and/or
certain investment managers, managers or general partners of it
or its Affiliates may be partnerships or limited liability
companies, the Guaranteed Party has no right of recovery under
this Limited Guarantee, or any claim based on such obligations
against, and no personal liability shall attach to, the former,
current or future equity holders, controlling persons,
directors, officers, employees, agents, Affiliates (other than
the Guarantor or any assignee under
Section 6) including, for the avoidance of doubt,
S.A.C. Private Capital Group, LLC, members, managers or general
or limited partners of the Guarantor or Buyer, or any former,
current or future equity holder, controlling person, director,
officer, employee, general or limited partner, member, manager,
Affiliate (other than the Guarantor or any assignee under
Section 6) or agent of any of the foregoing
(collectively, each of the foregoing but not including the
Buyer, the Transitory Subsidiary or their respective assignees
themselves, a
Non-Recourse Party
), through
Buyer or otherwise, whether by or through attempted piercing of
the corporate veil, by or through a claim by or on behalf of
Buyer against any Non-Recourse Party (including a claim to
enforce the Equity Commitment Letter), by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of
any statute, regulation or applicable law, or otherwise, and the
Guaranteed Party further covenants, agrees and acknowledges that
the only rights of recovery that the Guaranteed Party has in
respect of the Equity Commitment Letter, the Merger Agreement or
the transactions contemplated thereby against any Non-Recourse
Party are its rights (i) to recover from the Guarantor (but
not any Non-Recourse Party) under and to the extent expressly
provided in this Limited Guarantee and subject to the Cap and
the other limitations described herein and (ii) under the
Confidentiality Agreement. The Guaranteed Party acknowledges and
agrees that Buyer has no assets other than certain contract
rights and cash in a
de minimis
amount and that no
additional funds are expected to be contributed to Buyer unless
and until the Closing occurs. Other than with respect to a claim
brought under the Confidentiality Agreement, recourse against
the Guarantor under and pursuant to the terms of this Limited
Guarantee shall be the sole and exclusive remedy of the
Guaranteed Party and all of its Affiliates against the Guarantor
and the Non-Recourse Parties in respect of any liabilities or
obligations arising under, or in connection with, the Equity
Commitment Letter, the Merger Agreement or the transactions
contemplated thereby, including by piercing of the corporate
veil or a claim by or on behalf of Buyer. The Guaranteed Party
hereby covenants and agrees that it shall not institute, and it
shall cause its Affiliates not to institute, any proceeding or
bring any other claim arising under,
A-63
or in connection with, the Equity Commitment Letter, the Merger
Agreement or the transactions contemplated thereby against the
Guarantor or any Non-Recourse Party except for claims against
the Guarantor under this Limited Guarantee and claims under the
Confidentiality Agreement. Nothing set forth in this Limited
Guarantee shall confer or give or shall be construed to confer
or give to any Person other than the Guaranteed Party (including
any Person acting in a representative capacity) any rights or
remedies against any Person including the Guarantor, except as
expressly set forth herein.
10.
GOVERNING LAW;
JURISDICTION
.
This Limited Guarantee shall be
governed by and construed in accordance with the internal laws
of the State of Delaware without giving effect to any choice or
conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the
application of laws of any jurisdictions other than those of the
State of Delaware. Each of the parties to this Limited Guarantee
(a) consents to submit itself to the personal jurisdiction
of the Court of Chancery of the State of Delaware in any action
or proceeding arising out of or relating to this Limited
Guarantee, (b) agrees that all claims in respect of such
action or proceeding may be heard and determined only in such
court, (c) agrees that it shall not attempt to deny or
defeat such personal jurisdiction by motion or other request for
leave from such court, (d) agrees not to bring any action
or proceeding arising out of or relating to this Limited
Guarantee in any other court, and (e) agrees that service
of process upon such party in any action or proceeding shall be
effective under any manner permitted under the laws of the State
of Delaware. Each of the parties hereto waives any defense of
inconvenient forum to the maintenance of any such action or
proceeding so brought and waives any bond, surety or other
security that might be required of any other party with respect
thereto.
11.
WAIVER OF JURY TRIAL
.
EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS LIMITED GUARANTEE IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
LIMITED GUARANTEE. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY
HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS EXPRESSED
ABOVE.
12.
COUNTERPARTS
.
This Limited
Guarantee may be executed in any number of counterparts
(including by facsimile and via email by .pdf delivery), each
such counterpart when executed being deemed to be an original
instrument, and all such counterparts shall together constitute
one and the same agreement.
13.
NO THIRD PARTY
BENEFICIARIES
.
Except as provided in Section
9, the parties hereby agree that their respective
representations, warranties and covenants set forth herein are
solely for the benefit of the other party hereto and its
successors and permitted assigns, in accordance with and subject
to the terms of this Limited Guarantee, and this Limited
Guarantee is not intended to, and does not, confer upon any
Person other than the parties hereto and their respective
successors and permitted assigns any rights or remedies
hereunder, including the right to rely upon the representations
and warranties set forth herein.
14.
CONFIDENTIALITY
.
This Limited
Guarantee shall be treated as confidential and is being provided
to the Guaranteed Party solely in connection with the Merger.
This Limited Guarantee may not be used, circulated, quoted or
otherwise referred to in any document by the Guaranteed Party or
its Affiliates except with the prior written consent of the
Guarantor in each instance;
provided
that no such written
consent is required for any disclosure of the existence of this
Limited Guarantee to the legal, financial and accounting
advisors to the Guaranteed Party, or to the extent required by
applicable law, by the applicable rules of any national
securities exchange, in connection with any SEC filing relating
to the Merger or in connection with
A-64
any litigation relating to the Merger, the Merger Agreement and
the transactions contemplated thereby and hereby.
15.
MISCELLANEOUS
.
(a) This Limited Guarantee contains the entire agreement
between the parties relative to the subject matter hereof and
supersedes all prior agreements and undertakings between the
parties with respect to the subject matter hereof. No amendment,
modification or waiver of any provision hereof shall be
enforceable unless approved by the Guaranteed Party and the
Guarantor in writing.
(b) Any term or provision hereof that is prohibited or
unenforceable in any situation in the
agreed-upon
jurisdiction shall be ineffective solely to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof;
provided
,
however
,
that this Limited Guarantee may not be enforced without giving
effect to the limitation of the amount payable hereunder to the
Cap provided in Section 1 hereof and the provisions of
Sections 8 and 9 and this Section 15(b).
(c) When a reference is made in this Limited Guarantee to a
Section, such reference shall be to a Section of this Limited
Guarantee unless otherwise indicated. The headings contained in
this Limited Guarantee are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Limited Guarantee. Whenever the words include,
includes or including are used in this
Limited Guarantee, they shall be deemed to be followed by the
words without limitation. The words
hereof, herein and hereunder
and words of similar import when used in this Limited Guarantee
shall refer to this Limited Guarantee as a whole and not to any
particular provision of this Limited Guarantee. The definitions
contained in this Limited Guarantee are applicable to the
singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such
term. References to a person will be interpreted
broadly to include, without limitation, any individual,
corporation, company, group, partnership, limited liability
company, other entity or any governmental representative or
authority, as well as such persons permitted successors
and assigns.
(d) All parties acknowledge that each party and its counsel
have reviewed this Limited Guarantee and that any rule of
construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the
interpretation of this Limited Guarantee.
[Remainder
of page intentionally left blank]
A-65
IN WITNESS WHEREOF, the Guarantor has caused this Limited
Guarantee to be duly executed and delivered as of the date first
written above.
GUARANTOR:
S.A.C. CAPITAL MANAGEMENT, LLC
Name:
Title:
[Signature
Page to Limited Guarantee]
A-66
IN WITNESS WHEREOF, the Guaranteed Party has caused this Limited
Guarantee to be duly executed and delivered as of the date first
written above.
GUARANTEED PARTY:
AIRVANA, INC.
Name:
Title:
[Signature
Page to Limited Guarantee]
A-67
EXHIBIT C
TERMINATION
AGREEMENT
This
TERMINATION AGREEMENT
(this
Termination
Agreement
) is entered into as of
[ ]
[ ],
[ ],
by and among Airvana, Inc., a Delaware corporation (the
Company
), and the undersigned parties
(each, a
Releasor
).
WHEREAS
, the Company, 72 Mobile Holdings, LLC, a Delaware
limited liability company (
Buyer
), and
72 Mobile Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of Buyer (
Transitory
Subsidiary
), are parties to that certain Agreement
and Plan of Merger, dated as of December 17, 2009 (the
Merger Agreement
);
WHEREAS
, each Releasor and the stockholders of the
Company will receive a significant financial benefit in
connection with the consummation of the transactions
contemplated by the Merger Agreement;
WHEREAS
, each Releasor is a party to the Third Amended
and Restated Investor Rights Agreement, dated June 6, 2007
(the
Investor Rights Agreement
),
between or among such Releasor, on the one hand, and the
Company, on the other hand; and
WHEREAS
, Section 2.7(b)(9) of the Interim Investors
Agreement, dated as of December 17, 2009, the (the
Interim Investors Agreement
) by and
among the Buyer and Transitory Subsidiary, and the other parties
thereto, and Section 6.15 of the Merger Agreement,
contemplate that each Releasor and the Company shall execute and
deliver this Termination Agreement.
NOW, THEREFORE
, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements
herein contained and for other good and valuable consideration,
the adequacy, receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties
hereto hereby agree as follows:
1.
Definitions
.
Capitalized terms
used but not defined in this Termination Agreement shall have
the meanings ascribed thereto in the Merger Agreement.
2.
Termination of the Investor Rights
Agreement
.
Each of the Company and the
Releasors hereby agrees that the Investor Rights Agreement is
hereby amended such that it shall automatically terminate and be
of no further force or effect and that no rights thereunder
shall survive, effective as of immediately prior to the
Effective Time.
3.
Release
.
For good and valuable
consideration, the receipt and legal sufficiency of which is
acknowledged by each Releasor, each Releasor (on its own behalf
and on behalf of its Affiliates, successors, assigns, heirs,
executors, attorneys and agents), effective as of the Effective
Time, releases, waives and discharges each of the Company and
its Affiliates and their respective officers, directors,
stockholders, partners, members, agents, successors and assigns
(collectively, the
Released Persons
)
from any and all causes of action, debts, sums of money,
covenants, agreements, promises, damages, judgments, claims and
demands whatsoever (including those sounding in contract or
tort, in each case, whether current or prospective), fees, costs
and losses of any kind whatsoever (whether direct, indirect,
consequential, incidental or otherwise), known or unknown, in
its own right or derivatively, in law or equity (collectively,
the
Claims
), that in any way arise
from or out of, are based upon, or relate to the Investor Rights
Agreement, and any Claims that may have been brought thereunder.
This Section 3 is for the benefit of the Released Persons
and shall be enforceable by any of them directly against each
Releasor. With respect to such Claims, each Releasor hereby
expressly waives any and all rights conferred upon him, her or
it by any statute or rule of law which provides that a release
does not extend to claims which the claimant does not know or
suspect to exist in his, her or its favor at the time of
executing the release, which if known by him, her or it would
have materially affected his, her or its settlement with the
released party.
A-68
4.
Representations and
Warranties
.
Each party hereto represents and
warrants to the other parties hereto that: (i) it has the
requisite entity power and authority, or if an individual, legal
capacity, to enter into and perform its obligations under this
Termination Agreement; (ii) the execution, delivery and
performance of this Termination Agreement have been duly and
validly authorized; and (iii) this Termination Agreement
has been duly and validly executed and delivered by each party
hereto and constitutes a valid and binding agreement of such
party, enforceable in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and any implied covenant of good faith and fair dealing.
The Releasors hereby represent to the Company that such
Releasors hold a majority of the shares of Common Stock (as
defined in the Investor Rights Agreement) issued or issuable
upon conversion of the Registrable Shares (as defined in the
Investor Rights Agreement) by Preferred Investors (as defined in
the Investor Rights Agreement) and that the consent of no other
person other than the Company is required to amend the Investor
Rights Agreement even though all parties to the Investor Rights
Agreement will be affected by the execution of this Termination
Agreement.
5.
Termination
.
Notwithstanding
any provision in this Termination Agreement to the contrary, in
the event that the Merger Agreement is terminated pursuant to
the terms thereof, this Termination Agreement shall
automatically terminate and shall be null and void.
6.
Amendment; Waiver
.
This
Termination Agreement may not be amended other than in an
instrument in writing signed by all of the parties hereto and
Buyer and may not be waived other than in an instrument in
writing signed by the party granting such waiver and Buyer.
7.
Successors
.
This Termination
Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors.
8.
Counterparts
.
This Termination
Agreement may be executed in one or more counterparts, which
when taken together shall constitute one and the same agreement.
9.
Severability
.
Any term or
provision of this Termination Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Termination Agreement in
any other jurisdiction. If any provision of this Termination
Agreement is so broad as to be unenforceable, such provision
shall be interpreted to be only as broad as is enforceable.
10.
Third Party Beneficiary
.
Buyer
is a third party beneficiary to this Agreement and has the right
to enforce this Agreement directly.
11.
Governing Law; Submission to
Jurisdiction
.
This Termination Agreement
shall be governed by and construed in accordance with the
internal laws of the State of Delaware without giving effect to
any choice or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause
the application of laws of any jurisdictions other than those of
the State of Delaware. Each of the parties to this Termination
Agreement (a) consents to submit itself to the personal
jurisdiction of the Court of Chancery of the State of Delaware
in any action or proceeding arising out of or relating to this
Termination Agreement, (b) agrees that all claims in
respect of such action or proceeding may be heard and determined
only in such court, (c) agrees that it shall not attempt to
deny or defeat such personal jurisdiction by motion or other
request for leave from such court, and (d) agrees not to
bring any action or proceeding arising out of or relating to
this Termination Agreement in any other court. Each of the
parties hereto waives any defense of inconvenient forum to the
maintenance of any such action or proceeding so brought and
waives any bond, surety or other security that might be required
of any other party with respect thereto.
12.
Waiver of Jury Trial
.
EACH
PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS TERMINATION AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH
A-69
PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS TERMINATION AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
13.
Specific Performance
.
The
parties hereto agree that irreparable damage would occur in the
event any provision of this Termination Agreement was not
performed in accordance with the terms hereof and that the
parties hereto, including Buyer as a third party beneficiary,
shall be entitled to specific performance of the terms hereof,
in addition to any other remedy at law or equity.
[Remainder
of Page Left Blank Intentionally]
A-70
IN WITNESS WHEREOF, the undersigned have caused this Termination
Agreement to be executed as of the date first written above.
COMPANY:
[ ]
RELEASORS:
[ ]
[ ]
[ ]
[Signature
Page to Termination
Agreement
]
A-71
ANNEX B
Opinion of Goldman, Sachs & Co.
PERSONAL AND CONFIDENTIAL
December 17, 2009
Special Committee of the Board of Directors
Board of Directors
Airvana, Inc.
19 Alpha Road
Chelmsford, MA 01824
Gentlemen:
You have requested our opinion as to the fairness from a
financial point of view to the holders (other than holders who
are parties to the Interim Investors Agreement and Rollover
Commitment Letters (each as defined in the Agreement (as defined
below)) (such holders, the Excluded Holders)) of the
outstanding shares of common stock, par value $0.001 per share
(the Shares), of Airvana, Inc. (the
Company) of the $7.65 per Share in cash to be paid
to such holders pursuant to the Agreement and Plan of Merger,
dated as of December 17, 2009 (the Agreement),
by and among 72 Mobile Holdings, LLC (Parent), an
affiliate of SAC Capital Advisors, L.P. (SAC), 72
Mobile Acquisition Corp., a wholly owned subsidiary of Parent,
and the Company.
Goldman, Sachs & Co. and its affiliates are engaged in
investment banking and financial advisory services, commercial
banking, securities trading, investment management, principal
investment, financial planning, benefits counseling, risk
management, hedging, financing, brokerage activities and other
financial and non-financial activities and services for various
persons and entities. In the ordinary course of these activities
and services, Goldman, Sachs & Co. and its affiliates
may at any time make or hold long or short positions and
investments, as well as actively trade or effect transactions,
in the equity, debt and other securities (or related derivative
securities) and financial instruments (including bank loans and
other obligations) of third parties, the Company and its
affiliates, and SAC and its affiliates and portfolio companies
or any currency or commodity that may be involved in the
transaction contemplated by the Agreement (the
Transaction) for their own account and for the
accounts of their customers. We have acted as financial advisor
to the Special Committee of the Board of Directors of the
Company (the Special Committee) in connection with,
and have participated in certain of the negotiations leading to,
the Transaction. We expect to receive fees for our services in
connection with the Transaction, the principal portion of which
is contingent upon consummation of the Transaction, and the
Company has agreed to reimburse our expenses arising, and
indemnify us against certain liabilities that may arise, out of
our engagement. We also have provided certain investment banking
and other financial services to SAC and its affiliates and
portfolio companies from time to time, including having acted as
financial advisor to a consortium of financial sponsors,
including SAC, in its acquisition of Laureate Education Inc. in
August 2007. We also may provide investment banking and other
financial services to the Company and its affiliates and SAC and
its affiliates and portfolio companies in the future. In
connection with the above-described services we have received,
and may receive, compensation. Affiliates of Goldman,
Sachs & Co. may co-invest with SAC and its affiliates,
and may invest in limited partnership units of affiliates of SAC
in the future.
In connection with this opinion, we have reviewed, among other
things, the Agreement; annual reports to stockholders and Annual
Reports on
Form 10-K
of the Company for the two fiscal years ended December 31,
2008; the Companys Registration Statement on
Form S-1,
including the prospectus contained therein dated April 19,
2007; certain interim reports to stockholders and Quarterly
Reports on
Form 10-Q
of the Company; certain other communications from the Company to
its stockholders; certain publicly available research analyst
reports for the Company; and certain internal financial analyses
and forecasts for the Company prepared by its management, as
approved for our use by the Company, including the Company
managements Base Case Forecast (Base Case
Forecast). We also have held discussions with members of
the senior management of the Company regarding their assessment
of the past and current business operations, financial condition
and future
B-1
prospects of the Company. In addition, we have reviewed the
reported price and trading activity for the Shares, compared
certain financial and stock market information for the Company
with similar information for certain other companies the
securities of which are publicly traded, reviewed the financial
terms of certain recent business combinations in the
communications technology industry specifically and in other
industries generally and performed such other studies and
analyses, and considered such other factors, as we considered
appropriate.
For purposes of rendering this opinion, we have relied upon and
assumed, without assuming any responsibility for independent
verification, the accuracy and completeness of all of the
financial, legal, regulatory, tax, accounting and other
information provided to, discussed with or reviewed by us, and
we do not assume any liability for any such information. In that
regard, we have assumed with your consent that the Base Case
Forecast has been reasonably prepared on a basis reflecting the
best currently available estimates and judgments of the
management of the Company. In addition, we have not made an
independent evaluation or appraisal of the assets and
liabilities (including any contingent, derivative or
off-balance-sheet assets and liabilities) of the Company or any
of its subsidiaries and we have not been furnished with any such
evaluation or appraisal. We have assumed that all governmental,
regulatory or other consents and approvals necessary for the
consummation of the Transaction will be obtained without any
adverse effect on the expected benefits of the Transaction in
any way meaningful to our analysis. We also have assumed that
the Transaction will be consummated on the terms set forth in
the Agreement, without the waiver or modification of any term or
condition the effect of which would be in any way meaningful to
our analysis. We are not expressing any opinion as to the impact
of the Transaction on the solvency or viability of the Company
or Parent or the ability of the Company or Parent to pay its
obligations when they come due. Our opinion does not address any
legal, regulatory, tax or accounting matters.
Our opinion does not address the underlying business decision of
the Company to engage in the Transaction, or the relative merits
of the Transaction as compared to any strategic alternatives
that may be available to the Company. This opinion addresses
only the fairness from a financial point of view, as of the date
hereof, of the $7.65 per Share in cash to be paid to the holders
(other than the Excluded Holders) of Shares pursuant to the
Agreement. We do not express any view on, and our opinion does
not address, any other term or aspect of the Agreement or
Transaction or any term or aspect of any other agreement or
instrument contemplated by the Agreement or entered into or
amended in connection with the Transaction, including, without
limitation, the fairness of the Transaction to, or any
consideration received in connection therewith by, the holders
of any other class of securities, creditors, or other
constituencies of the Company; nor as to the fairness of the
amount or nature of any compensation to be paid or payable to
any of the officers, directors or employees of the Company, or
class of such persons in connection with the Transaction,
whether relative to the $7.65 per Share in cash to be paid to
the holders (other than the Excluded Holders) of Shares pursuant
to the Agreement or otherwise. Our opinion is necessarily based
on economic, monetary, market and other conditions as in effect
on, and the information made available to us as of, the date
hereof and we assume no responsibility for updating, revising or
reaffirming this opinion based on circumstances, developments or
events occurring after the date hereof. Our advisory services
and the opinion expressed herein are provided for the
information and assistance of the Special Committee in
connection with its consideration of the Transaction and such
opinion does not constitute a recommendation as to how any
holder of Shares should vote with respect to such Transaction or
any other matter. This opinion has been approved by a fairness
committee of Goldman, Sachs & Co.
Based upon and subject to the foregoing, it is our opinion that,
as of the date hereof, the $7.65 per Share in cash to be paid to
the holders (other than the Excluded Holders) of Shares pursuant
to the Agreement is fair from a financial point of view to such
holders.
Very truly yours,
(GOLDMAN, SACHS & CO.)
B-2
ANNEX C
Section 262
of the General Corporation Law of the State of
Delaware
§ 262. Appraisal rights.
(a) Any stockholder of a corporation of this State who
holds shares of stock on the date of the making of a demand
pursuant to subsection (d) of this section with respect to
such shares, who continuously holds such shares through the
effective date of the merger or consolidation, who has otherwise
complied with subsection (d) of this section and who has
neither voted in favor of the merger or consolidation nor
consented thereto in writing pursuant to § 228 of this
title shall be entitled to an appraisal by the Court of Chancery
of the fair value of the stockholders shares of stock
under the circumstances described in subsections (b) and
(c) of this section. As used in this section, the word
stockholder means a holder of record of stock in a
stock corporation and also a member of record of a nonstock
corporation; the words stock and share
mean and include what is ordinarily meant by those words and
also membership or membership interest of a member of a nonstock
corporation; and the words depository receipt mean a
receipt or other instrument issued by a depository representing
an interest in one or more shares, or fractions thereof, solely
of stock of a corporation, which stock is deposited with the
depository.
(b) Appraisal rights shall be available for the shares of
any class or series of stock of a constituent corporation in a
merger or consolidation to be effected pursuant to
§ 251 (other than a merger effected pursuant to
§ 251(g) of this title), § 252,
§ 254, § 257, § 258,
§ 263 or § 264 of this title:
(1) Provided, however, that no appraisal rights under this
section shall be available for the shares of any class or series
of stock, which stock, or depository receipts in respect
thereof, at the record date fixed to determine the stockholders
entitled to receive notice of the meeting of stockholders to act
upon the agreement of merger or consolidation, were either
(i) listed on a national securities exchange or
(ii) held of record by more than 2,000 holders; and further
provided that no appraisal rights shall be available for any
shares of stock of the constituent corporation surviving a
merger if the merger did not require for its approval the vote
of the stockholders of the surviving corporation as provided in
§ 251(f) of this title.
(2) Notwithstanding paragraph (1) of this subsection,
appraisal rights under this section shall be available for the
shares of any class or series of stock of a constituent
corporation if the holders thereof are required by the terms of
an agreement of merger or consolidation pursuant to
§§ 251, 252, 254, 257, 258, 263 and 264 of this
title to accept for such stock anything except:
a. Shares of stock of the corporation surviving or
resulting from such merger or consolidation, or depository
receipts in respect thereof;
b. Shares of stock of any other corporation, or depository
receipts in respect thereof, which shares of stock (or
depository receipts in respect thereof) or depository receipts
at the effective date of the merger or consolidation will be
either listed on a national securities exchange or held of
record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional
depository receipts described in the foregoing subparagraphs a.
and b. of this paragraph; or
d. Any combination of the shares of stock, depository
receipts and cash in lieu of fractional shares or fractional
depository receipts described in the foregoing subparagraphs a.,
b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware
corporation party to a merger effected under § 253 of
this title is not owned by the parent corporation immediately
prior to the merger, appraisal rights shall be available for the
shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of
incorporation that appraisal rights under this section shall be
available for the shares of any class or series of its stock as
a result of an amendment to its certificate of incorporation,
any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all
of the assets of the corporation. If the certificate of
incorporation contains such a
C-1
provision, the procedures of this section, including those set
forth in subsections (d) and (e) of this section,
shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which
appraisal rights are provided under this section is to be
submitted for approval at a meeting of stockholders, the
corporation, not less than 20 days prior to the meeting,
shall notify each of its stockholders who was such on the record
date for notice of such meeting with respect to shares for which
appraisal rights are available pursuant to subsection (b)
or (c) hereof of this section that appraisal rights are
available for any or all of the shares of the constituent
corporations, and shall include in such notice a copy of this
section. Each stockholder electing to demand the appraisal of
such stockholders shares shall deliver to the corporation,
before the taking of the vote on the merger or consolidation, a
written demand for appraisal of such stockholders shares.
Such demand will be sufficient if it reasonably informs the
corporation of the identity of the stockholder and that the
stockholder intends thereby to demand the appraisal of such
stockholders shares. A proxy or vote against the merger or
consolidation shall not constitute such a demand. A stockholder
electing to take such action must do so by a separate written
demand as herein provided. Within 10 days after the
effective date of such merger or consolidation, the surviving or
resulting corporation shall notify each stockholder of each
constituent corporation who has complied with this subsection
and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has
become effective; or
(2) If the merger or consolidation was approved pursuant to
§ 228 or § 253 of this title, then either a
constituent corporation before the effective date of the merger
or consolidation or the surviving or resulting corporation
within 10 days thereafter shall notify each of the holders
of any class or series of stock of such constituent corporation
who are entitled to appraisal rights of the approval of the
merger or consolidation and that appraisal rights are available
for any or all shares of such class or series of stock of such
constituent corporation, and shall include in such notice a copy
of this section. Such notice may, and, if given on or after the
effective date of the merger or consolidation, shall, also
notify such stockholders of the effective date of the merger or
consolidation. Any stockholder entitled to appraisal rights may,
within 20 days after the date of mailing of such notice,
demand in writing from the surviving or resulting corporation
the appraisal of such holders shares. Such demand will be
sufficient if it reasonably informs the corporation of the
identity of the stockholder and that the stockholder intends
thereby to demand the appraisal of such holders shares. If
such notice did not notify stockholders of the effective date of
the merger or consolidation, either (i) each such
constituent corporation shall send a second notice before the
effective date of the merger or consolidation notifying each of
the holders of any class or series of stock of such constituent
corporation that are entitled to appraisal rights of the
effective date of the merger or consolidation or (ii) the
surviving or resulting corporation shall send such a second
notice to all such holders on or within 10 days after such
effective date; provided, however, that if such second notice is
sent more than 20 days following the sending of the first
notice, such second notice need only be sent to each stockholder
who is entitled to appraisal rights and who has demanded
appraisal of such holders shares in accordance with this
subsection. An affidavit of the secretary or assistant secretary
or of the transfer agent of the corporation that is required to
give either notice that such notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated
therein. For purposes of determining the stockholders entitled
to receive either notice, each constituent corporation may fix,
in advance, a record date that shall be not more than
10 days prior to the date the notice is given, provided,
that if the notice is given on or after the effective date of
the merger or consolidation, the record date shall be such
effective date. If no record date is fixed and the notice is
given prior to the effective date, the record date shall be the
close of business on the day next preceding the day on which the
notice is given.
(e) Within 120 days after the effective date of the
merger or consolidation, the surviving or resulting corporation
or any stockholder who has complied with subsections (a)
and (d) of this section hereof and who is otherwise
entitled to appraisal rights, may commence an appraisal
proceeding by filing a petition in the Court of Chancery
demanding a determination of the value of the stock of all such
stockholders. Notwithstanding the foregoing, at any time within
60 days after the effective date of the merger or
consolidation, any stockholder who has not commenced an
appraisal proceeding or joined that proceeding as a named party
shall
C-2
have the right to withdraw such stockholders demand for
appraisal and to accept the terms offered upon the merger or
consolidation. Within 120 days after the effective date of
the merger or consolidation, any stockholder who has complied
with the requirements of subsections (a) and (d) of
this section hereof, upon written request, shall be entitled to
receive from the corporation surviving the merger or resulting
from the consolidation a statement setting forth the aggregate
number of shares not voted in favor of the merger or
consolidation and with respect to which demands for appraisal
have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the
stockholder within 10 days after such stockholders
written request for such a statement is received by the
surviving or resulting corporation or within 10 days after
expiration of the period for delivery of demands for appraisal
under subsection (d) of this section hereof, whichever is
later. Notwithstanding subsection (a) of this section, a
person who is the beneficial owner of shares of such stock held
either in a voting trust or by a nominee on behalf of such
person may, in such persons own name, file a petition or
request from the corporation the statement described in this
subsection.
(f) Upon the filing of any such petition by a stockholder,
service of a copy thereof shall be made upon the surviving or
resulting corporation, which shall within 20 days after
such service file in the office of the Register in Chancery in
which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded
payment for their shares and with whom agreements as to the
value of their shares have not been reached by the surviving or
resulting corporation. If the petition shall be filed by the
surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in
Chancery, if so ordered by the Court, shall give notice of the
time and place fixed for the hearing of such petition by
registered or certified mail to the surviving or resulting
corporation and to the stockholders shown on the list at the
addresses therein stated. Such notice shall also be given by 1
or more publications at least 1 week before the day of the
hearing, in a newspaper of general circulation published in the
City of Wilmington, Delaware or such publication as the Court
deems advisable. The forms of the notices by mail and by
publication shall be approved by the Court, and the costs
thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall
determine the stockholders who have complied with this section
and who have become entitled to appraisal rights. The Court may
require the stockholders who have demanded an appraisal for
their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery
for notation thereon of the pendency of the appraisal
proceedings; and if any stockholder fails to comply with such
direction, the Court may dismiss the proceedings as to such
stockholder.
(h) After the Court determines the stockholders entitled to
an appraisal, the appraisal proceeding shall be conducted in
accordance with the rules of the Court of Chancery, including
any rules specifically governing appraisal proceedings. Through
such proceeding the Court shall determine the fair value of the
shares exclusive of any element of value arising from the
accomplishment or expectation of the merger or consolidation,
together with interest, if any, to be paid upon the amount
determined to be the fair value. In determining such fair value,
the Court shall take into account all relevant factors. Unless
the Court in its discretion determines otherwise for good cause
shown, interest from the effective date of the merger through
the date of payment of the judgment shall be compounded
quarterly and shall accrue at 5% over the Federal Reserve
discount rate (including any surcharge) as established from time
to time during the period between the effective date of the
merger and the date of payment of the judgment. Upon application
by the surviving or resulting corporation or by any stockholder
entitled to participate in the appraisal proceeding, the Court
may, in its discretion, proceed to trial upon the appraisal
prior to the final determination of the stockholders entitled to
an appraisal. Any stockholder whose name appears on the list
filed by the surviving or resulting corporation pursuant to
subsection (f) of this section and who has submitted such
stockholders certificates of stock to the Register in
Chancery, if such is required, may participate fully in all
proceedings until it is finally determined that such stockholder
is not entitled to appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of
the shares, together with interest, if any, by the surviving or
resulting corporation to the stockholders entitled thereto.
Payment shall be so made to each such stockholder, in the case
of holders of uncertificated stock forthwith, and the case of
holders of shares represented by certificates upon the surrender
to the corporation of the certificates representing such stock.
C-3
The Courts decree may be enforced as other decrees in the
Court of Chancery may be enforced, whether such surviving or
resulting corporation be a corporation of this State or of any
state.
(j) The costs of the proceeding may be determined by the
Court and taxed upon the parties as the Court deems equitable in
the circumstances. Upon application of a stockholder, the Court
may order all or a portion of the expenses incurred by any
stockholder in connection with the appraisal proceeding,
including, without limitation, reasonable attorneys fees
and the fees and expenses of experts, to be charged pro rata
against the value of all the shares entitled to an appraisal.
(k) From and after the effective date of the merger or
consolidation, no stockholder who has demanded appraisal rights
as provided in subsection (d) of this section shall be
entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of
record at a date which is prior to the effective date of the
merger or consolidation); provided, however, that if no petition
for an appraisal shall be filed within the time provided in
subsection (e) of this section, or if such stockholder
shall deliver to the surviving or resulting corporation a
written withdrawal of such stockholders demand for an
appraisal and an acceptance of the merger or consolidation,
either within 60 days after the effective date of the
merger or consolidation as provided in subsection (e) of
this section or thereafter with the written approval of the
corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal
proceeding in the Court of Chancery shall be dismissed as to any
stockholder without the approval of the Court, and such approval
may be conditioned upon such terms as the Court deems just;
provided, however that this provision shall not affect the right
of any stockholder who has not commenced an appraisal proceeding
or joined that proceeding as a named party to withdraw such
stockholders demand for appraisal and to accept the terms
offered upon the merger or consolidation within 60 days
after the effective date of the merger or consolidation, as set
forth in subsection (e) of this section.
(l) The shares of the surviving or resulting corporation to
which the shares of such objecting stockholders would have been
converted had they assented to the merger or consolidation shall
have the status of authorized and unissued shares of the
surviving or resulting corporation.
C-4
ANNEX D
Information Regarding the Buyer Filing Persons and Rollover
Stockholders
Important
Information Regarding Parent and Merger Sub
72
Mobile Holdings, LLC
72 Mobile Holdings, LLC, which we refer to as
Parent, is a newly formed Delaware limited liability
company and its managing member is 72 Mobile Investors, LLC.
Information with respect to 72 Mobile Investors, LLC is set
forth below. Parent has not engaged in any business except for
activities incident to its formation and in connection with the
transactions contemplated by the merger agreement. The principal
office address of Parent is 72 Cummings Point Rd., Stamford,
Connecticut 06902. Its telephone number is
203-890-2000.
72
Mobile Acquisition Corp.
72 Mobile Acquisition Corp., which we refer to as
Merger Sub, is a newly formed Delaware corporation
and a wholly owned subsidiary of Parent. Merger Sub has not
engaged in any business except for activities incident to its
formation and in connection with the transactions contemplated
by the merger agreement. The principal office address of Merger
Sub is 72 Cummings Point Rd., Stamford, Connecticut 06902. Its
telephone number is
203-890-2000.
Set forth below for each of the directors and executive officers
of 72 Mobile Acquisition Corp. is his or her title and the
five-year employment history of such director and executive
officer. Each person identified below is a citizen of the United
States of America.
Peter Berger
Director, President and
Treasurer. Mr. Berger has been a Managing Director of SAC
PCG since 2006. From
1995-1998
and
2000-2006,
Mr. Berger, a founding member of Ripplewood, served as both
a Managing Director of Ripplewood and as a Special Senior
Advisor to the board of directors of RHJ International. Prior to
joining Ripplewood, Mr. Berger was a senior partner and
global head of the Corporate Finance Group at Arthur
Andersen & Co., where he began his career in 1974.
From
1989-1991,
he served as a Managing Director in investment banking at Bear
Stearns Companies. From
1999-2000,
Mr. Berger was Managing Director and Chief Executive
Officer of Mediacom Ventures LLC, a boutique investment advisory
firm. He also served as non-executive Chairman of the Board of
Kepner-Tregoe, Inc., a management consulting company.
Mr. Berger has a B.Sc. from Boston University and an M.B.A.
from Columbia University Graduate School of Business.
Mr. Bergers business address is
c/o SAC
PCG, 540 Madison Ave., 9th Floor, New York, NY 10022.
Mr. Berger serves on the board of directors of MedQuist
Inc. and CBaySystems Holdings Ltd.
Peter Nussbaum
Director, Vice President and
Secretary. Mr. Nussbaum is the General Counsel of S.A.C.
Capital Advisors, L.P. (Advisors LP), a Delaware
limited partnership engaged in the business of private
investment management. Mr. Nussbaum has served in this
capacity since January 1, 2009 for Advisors LP and, prior
to January 1, 2009, for its predecessor, S.A.C. Capital
Advisors, LLC (Advisors LLC).
Mr. Nussbaums business address is
c/o Advisors
LP, 72 Cummings Point Rd., Stamford, Connecticut 06902.
Important
Information Regarding the other Buyer Filing Persons
72
Mobile Investors, LLC
72 Mobile Investors, LLC is a newly formed Delaware limited
liability company formed in connection with the transactions
contemplated by the merger agreement. 72 Mobile Investors, LLC
has not engaged in any business except for activities incident
to its formation and in connection with the transactions
contemplated by the merger agreement.
The principal business address and telephone number for 72
Mobile Investors, LLC is 72 Cummings Point Rd., Stamford,
Connecticut 06902,
203-890-2000.
During the last five years, none of Parent, Merger Sub, 72
Mobile Investors, LLC or any of the executive officers or
directors of Merger Sub described above have been
(i) convicted in a criminal proceeding (excluding traffic
violations and similar misdemeanors) or (ii) a party to any
judicial or administrative
D-1
proceeding (except for matters that were dismissed without
sanction or settlement) that resulted in a judgment, decree or
final order enjoining such person from future violations of, or
prohibiting activities subject to, federal or state securities
laws, or a finding of any violation of federal or state
securities laws.
72
Private Investments, L.P.
72 Private Investments, L.P., which we refer to as 72
Private Investments, is a Delaware limited partnership.
Its general partner, S.A.C. Venture Investments, LLC, which we
refer to as SAC Venture Investments, is a Delaware
limited liability company. Steven A. Cohen controls SAC Venture
Investments. The principal business of each of 72 Private
Investments and SAC Venture Investments is making investments.
During the last five years, Mr. Cohen has served as Chief
Executive Officer of Advisors LP since January 1, 2009 and,
prior to January 1, 2009, as Chief Executive Officer of
Advisors LLC. Mr. Cohen is a citizen of the United States
of America.
The principal business address and telephone number for each of
72 Private Investments, SAC Venture Investments and
Mr. Cohen is 72 Cummings Point Rd., Stamford, Connecticut
06902,
203-890-2000.
During the last five years, none of 72 Private Investments, SAC
Venture Investments or Mr. Cohen has been
(i) convicted in a criminal proceeding (excluding traffic
violations and similar misdemeanors) or (ii) a party to any
judicial or administrative proceeding (except for matters that
were dismissed without sanction or settlement) that resulted in
a judgment, decree or final order enjoining such person from
future violations of, or prohibiting activities subject to,
federal or state securities laws, or a finding of any violation
of federal or state securities laws.
ZM
Capital, L.P.
ZM Capital, L.P., which we refer to as ZM Capital,
is a Delaware limited partnership. Its general partner, ZM
Capital Partners, L.L.C., which we refer to as ZM Capital
Partners, is a Delaware limited liability company. ZM
Capitals principal business is private equity investments
and ZM Capital Partners principal business is controlling
ZM Capital.
The principal business address and telephone number for each of
ZM Capital and ZM Capital Partners is 19 West 44th St. 18th
Floor, New York, New York 10036,
212-223-1383.
Set forth below for each of the members of ZM Capital Partners
is his name, telephone number, current principal occupation or
employment and the five-year employment history of such person.
Each person identified below is currently employed by
ZelnickMedia Corporation and ZM Capital Advisors, L.L.C. through
certain contractual arrangements with Ambrose Employer Group,
LLC. The current business address of each person identified
below is
c/o ZelnickMedia
Corporation, 19 West 44th St. 18th Floor, New York, New
York, 10036. Each person identified below is a citizen of the
United States of America.
Ben Feder
Mr. Feders principal
telephone number is
212-223-0774.
Mr. Feder has been a Partner of ZelnickMedia Corporation
and ZM Capital Advisors, L.L.C.
and/or
their
respective predecessors and affiliates since 2001.
Jim Friedlich
Mr. Friedlichs
principal business telephone number is
212-223-3306.
Mr. Feder has been a Partner of ZelnickMedia Corporation
and ZM Capital Advisors, L.L.C.
and/or
their
respective predecessors and affiliates since 2001.
Seymour Sammell
Mr. Sammells
principal business telephone number is
212-223-4744.
Mr. Sammell has been a Partner of ZelnickMedia Corporation
and ZM Capital Advisors, L.L.C.
and/or
their
respective predecessors and affiliates since 2004.
Karl Slatoff
Mr. Slatoffs
principal business telephone number is
212-223-4498.
Mr. Slatoff has been a Partner of ZelnickMedia Corporation
and ZM Capital Advisors, L.L.C.
and/or
their
respective predecessors and affiliates since 2001.
Jordan Turkewitz
Mr. Turkewitzs
principal business telephone number is
212-223-4497.
Mr. Turkewitz has been a Partner of ZelnickMedia
Corporation and ZM Capital Advisors, L.L.C.
and/or
their
respective predecessors and affiliates since 2003.
Andrew Vogel
Mr. Vogels principal
business telephone number is
212-223-0665.
Mr. Vogel has been a Partner of ZelnickMedia Corporation
and ZM Capital Advisors, L.L.C.
and/or
their
respective predecessors and affiliates since 2006. From 2006 to
2007, Mr. Vogel was an employee in the office of the
chairman of
D-2
Direct Holdings Americas, Inc. and prior to joining Direct
Holdings America, Inc. and ZelnickMedia Corporation in 2006,
Mr. Vogel was an employee in the office of the chairman of
Lillian Vernon Corporation (it being noted that during each such
period, ZelnickMedia Corporation held certain interests in
Direct Holdings America, Inc. or Lillian Vernon Corporation, as
the case may be).
Strauss Zelnick
Mr. Zelnicks
principal business telephone number is
212-223-4898.
Mr. Zelnick has been a Partner of ZelnickMedia Corporation
and ZM Capital Advisors, L.L.C.
and/or
their
respective predecessors and affiliates since 2001.
During the last five years, none of ZM Capital, ZM Capital
Partners or the members of ZM Capital Partners has been
(i) convicted in a criminal proceeding (excluding traffic
violations and similar misdemeanors) or (ii) a party to any
judicial or administrative proceeding (except for matters that
were dismissed without sanction or settlement) that resulted in
a judgment, decree or final order enjoining such person from
future violations of, or prohibiting activities subject to,
Sankaty
Credit Opportunities II, L.P.
Sankaty Credit Opportunities II, L.P., which we refer to as
Sankaty II, is a Delaware limited partnership. Its
general partner is Sankaty Credit Opportunities Investors II,
LLC, a Delaware limited liability company, whose managing member
is Sankaty Credit Member, LLC (which we refer to as
SCM), a Delaware limited liability company. Jonathan
S. Lavine is the managing member of SCM. Information with
respect to Mr. Lavine is set forth below.
Sankaty IIs principal business is investments, Sankaty
Credit Opportunities Investors II, LLCs principal business
is acting as the general partner of Sankaty II and
SCMs principal business is acting as managing member or
general partner to various funds.
The principal business address and telephone number for each of
Sankaty II, Sankaty Credit Opportunities Investors II, LLC
and SCM is 111 Huntington Ave., Boston, Massachusetts 02199,
617-516-2000.
During the last five years, none of Sankaty II, Sankaty
Credit Opportunities Investors II, LLC, SCM or Mr. Lavine has
been (i) convicted in a criminal proceeding (excluding
traffic violations and similar misdemeanors) or (ii) a
party to any judicial or administrative proceeding (except for
matters that were dismissed without sanction or settlement) that
resulted in a judgment, decree or final order enjoining such
person from future violations of, or prohibiting activities
subject to, federal or state securities laws, or a finding of
any violation of federal or state securities laws.
Sankaty
Credit Opportunities III, L.P.
Sankaty Credit Opportunities III, L.P., which we refer to as
Sankaty III, is a Delaware limited partnership. Its
general partner is Sankaty Credit Opportunities Investors III,
LLC, a Delaware limited liability company, whose managing member
is SCM. Jonathan S. Lavine is the managing member of SCM.
Sankaty IIIs principal business is investments and Sankaty
Credit Opportunities Investors III, LLCs principal
business is acting as the general partner of Sankaty III.
Information with respect to Mr. Lavine is set forth below.
The principal business address and telephone number for each of
Sankaty III and Sankaty Credit Opportunities Investors III,
LLC is 111 Huntington Ave., Boston, Massachusetts 02199,
617-516-2000.
During the last five years, none of Sankaty III, Sankaty
Credit Opportunities Investors III, LLC, SCM or Mr. Lavine has
been (i) convicted in a criminal proceeding (excluding
traffic violations and similar misdemeanors) or (ii) a
party to any judicial or administrative proceeding (except for
matters that were dismissed without sanction or settlement) that
resulted in a judgment, decree or final order enjoining such
person from future violations of, or prohibiting activities
subject to, federal or state securities laws, or a finding of
any violation of federal or state securities laws.
Sankaty
Credit Opportunities IV, L.P.
Sankaty Credit Opportunities IV, L.P., which we refer to as
Sankaty IV, is a Delaware limited partnership. Its
general partner is Sankaty Credit Opportunities Investors IV,
LLC, a Delaware limited liability company, whose managing member
is SCM. Jonathan S. Lavine is the managing member of SCM.
Sankaty IVs principal business is investments and Sankaty
Credit Opportunities Investors IV, LLCs principal business
D-3
is acting as the general partner of Sankaty IV. Information
with respect to Mr. Lavine is set forth below.
The principal business address and telephone number for each of
Sankaty IV and Sankaty Credit Opportunities Investors IV,
LLC is 111 Huntington Ave., Boston, Massachusetts 02199,
617-516-2000.
During the last five years, none of Sankaty IV, Sankaty
Credit Opportunities Investors IV, LLC, SCM or Mr. Lavine has
been (i) convicted in a criminal proceeding (excluding
traffic violations and similar misdemeanors) or (ii) a
party to any judicial or administrative proceeding (except for
matters that were dismissed without sanction or settlement) that
resulted in a judgment, decree or final order enjoining such
person from future violations of, or prohibiting activities
subject to, federal or state securities laws, or a finding of
any violation of federal or state securities laws.
Sankaty
Credit Opportunities (Offshore Master) IV, L.P.
Sankaty Credit Opportunities (Offshore Master) IV, L.P., which
we refer to as Sankaty Offshore IV, is a Delaware
limited partnership. Its general partner is Sankaty Credit
Opportunities Investors (Offshore) IV, L.P., a Cayman Islands
exempted limited partnership, whose general partner is Sankaty
Credit Member (Offshore), Ltd., a Cayman Islands exempted
company. Jonathan S. Lavine is the sole director of Sankaty
Credit Member (Offshore), Ltd.
Sankaty Offshore IVs principal business is investments.
Sankaty Credit Opportunities Investors (Offshore) IV,
L.P.s principal business is acting as the general partner
of Sankaty Offshore IV and Sankaty Credit Member (Offshore),
Ltd.s principal business is acting as the general partner
of Sankaty Credit Opportunities Investors (Offshore) IV, L.P.
The principal business address and telephone number for Sankaty
Offshore IV is 111 Huntington Ave., Boston, Massachusetts
02199,
617-516-2000.
The principal business address and telephone number for each of
Sankaty Credit Opportunities Investors (Offshore) IV, L.P. and
Sankaty Credit Member (Offshore), Ltd. is
c/o Walkers
SPV Limited, Walkers House, 87 Mary Street, Georgetown, Grand
Cayman KY1-9002, +1-345-949-0100.
Jonathan S. Lavine
Mr. Lavine is the managing
member of SCM. Mr. Lavines principal business address and
telephone number is c/o Sankaty Advisors, LLC, 111 Huntington
Ave., Boston, Massachusetts 02199, 617-516-2000. Mr. Lavine is a
Managing Director, managing partner and, since inception in
1999, has been the Chief Investment Officer of Sankaty Advisors,
LLC and its related funds. Sankaty Advisors, LLC is registered
with the Securities and Exchange Commission as an investment
advisor, and its principal business is investment advisory
activities.
During the last five years, none of Sankaty Offshore IV, Sankaty
Credit Opportunities Investors (Offshore) IV, L.P. Sankaty
Credit Member (Offshore), Ltd. or Mr. Lavine has been
(i) convicted in a criminal proceeding (excluding traffic
violations and similar misdemeanors) or (ii) a party to any
judicial or administrative proceeding (except for matters that
were dismissed without sanction or settlement) that resulted in
a judgment, decree or final order enjoining such person from
future violations of, or prohibiting activities subject to,
federal or state securities laws, or a finding of any violation
of federal or state securities laws.
Important
Information Regarding the Rollover Stockholders
Randall S. Battat, 50 President and Chief Executive
Officer and director since June 2000. Prior to joining Airvana,
Mr. Battat was employed by Motorola, Inc., most recently as
Senior Vice President and General Manager, Internet and
Networking Group. Prior to joining Motorola, Mr. Battat
held senior management positions at Apple, Inc.
Mr. Battats principal business address is
c/o Airvana,
Inc., 19 Alpha Road, Chelmsford, Massachusetts 01824, telephone
number
978-250-3000.
Mr. Battat is a citizen of the United States.
Vedat Eyuboglu, 54 Vice President, Chief Technical
Officer since March 2000 and director from March 2000 until May
2008. Prior to co-founding Airvana, Dr. Eyuboglu held
several senior management and technology positions at Motorola,
Inc. Dr. Eyuboglus principal business address is
c/o Airvana,
Inc., 19 Alpha Road, Chelmsford, Massachusetts 01824, telephone
number
978-250-3000.
Dr. Eyuboglu is a citizen of the United States.
D-4
Sanjeev Verma, 46 Vice President, Femto Business and
Corporate Development since April 2008, Vice President of
Marketing and Business Development from March 2000 until April
2008 and director since March 2000. Prior to co-founding
Airvana, Mr. Verma held several management and product
development positions at Motorola, Inc. Mr. Vermas
principal business address is
c/o Airvana,
Inc., 19 Alpha Road, Chelmsford, Massachusetts 01824, telephone
number
978-250-3000.
Mr. Verma is a citizen of the United States.
During the last five years, none of the Rollover Stockholders
described above has been a party to any judicial or
administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a
judgment or decree or final order enjoining the person from
future violations of, or prohibiting activities subject to,
federal or state securities laws, or a finding of any violation
of federal or state securities laws. During the last five years,
Dr. Eyuboglu has not been convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors). During the last ten years, neither of
Messrs. Battat or Verma has been convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors).
D-5
. MMMMMMMMMMMM MMMMMMMMMMMMMMM C123456789 000004 000000000.000000 ext 000000000.000000 ext
MMMMMMMMM 000000000.000000 ext 000000000.000000 ext MR A SAMPLE DESIGNATION (IF ANY)
000000000.000000 ext 000000000.000000 ext ADD 1 kill existing PNs 300-301 and SUBMIT YOUR PROXY
BY TELEPHONE OR INTERNET ADD 2 24 hours a day, 7 days a week! ADD 3 replace with this proxy card at
ADD 4 VALIDATION DETAILS ARE LOCATED BELOW IN THE TITLE BAR. same PN range Proxies submitted by
the Internet or telephone must be received by ADD 5 ADD 6 11:59 p.m., Eastern Time, on April 8,
2010. INTERNET www.investorvote.com/AIRV
Go to the website address listed above.
Have your
proxy card ready.
Follow the simple instructions that appear on your computer screen. TELEPHONE
1-800-652-VOTE (8683) toll free, 1-781-575-2300 outside the U.S. and Canada (regular fees apply).
Use any touch-tone telephone.
Have your proxy card ready.
Follow the simple recorded
instructions. MAIL
Mark, sign and date your proxy card.
Detach your proxy card.
Return your
proxy card in the postage-paid envelope provided. Votes must be indicated in (x) in Black or Blue
ink. X Your telephone or Internet proxy authorizes the named proxies to vote your shares in the
same manner as if you marked, signed and returned your proxy card. If you have submitted your proxy
by telephone or the Internet, there is no need for you to mail back your proxy. Special Meeting
Proxy Card 1234 5678 9012 345 3 DETACH PROXY CARD HERE IF YOU ARE NOT SUBMITTING A PROXY BY
TELEPHONE OR INTERNET.3 + A Proposals The Board of Directors recommends a vote FOR the following
Proposals. For Against Abstain For Against Abstain 1. To consider and vote on a proposal to adopt
the Agreement 2. To approve the adjournment of the special meeting, if and Plan of Merger, dated as
of December 17, 2009, by and necessary, to solicit additional proxies in the event there are among
Airvana, Inc., 72 Mobile Holdings, LLC, a Delaware not sufficient votes in favor of adoption of the
merger limited liability company, and 72 Mobile Acquisition Corp., a agreement at the time of the
special meeting. wholly-owned subsidiary of 72 Mobile Holdings, LLC, as such agreement may be
amended from time to time. 3. To act upon other business as may properly come before the special
meeting and any and all adjourned or postponed sessions thereof. B Non-Voting Items Change of
Address Please print new address below. C Authorized Signatures This section must be completed
for your vote to be counted. Date and Sign Below Please date and sign this proxy exactly as
name(s) appear(s). When signing as attorney, trustee, administrator, executor or guardian, please
give your title as such. In the case of joint tenants, each joint owner should sign. Date
(mm/dd/yyyy) Please print date below. Signature 1 Please keep signature within the box.
Signature 2 Please keep signature within the box. C 1234567890 J N T MR A SAMPLE (THIS AREA IS
SET UP TO ACCOMMODATE 140 CHARACTERS) MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE
AND MR A SAMPLE AND MMMMMMM1 U P X 0 2 4 6 7 9 1 MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE AND +
<STOCK#> 015BDC
|
3 DETACH PROXY CARD HERE IF YOU ARE NOT SUBMITTING A PROXY BY TELEPHONE OR INTERNET.3 Proxy
AIRVANA, INC. SPECIAL MEETING OF STOCKHOLDERS This Proxy is solicited by the Board of Directors of
Airvana, Inc. (Airvana) for the Special Meeting of Stockholders to be held on April 9, 2010 at
10:00 a.m., Eastern Time The undersigned hereby appoints Randall S. Battat, Jeffrey D. Glidden and
Peter C. Anastos, and each of them, with full power of substitution, proxies of the undersigned, to
represent the undersigned and to vote all of the Common Stock, par value $0.001 per share, of
Airvana, Inc. as specified on the reverse side at the Special Meeting of Stockholders to be held on
April 9, 2010 at 10:00 a.m., local time, at the offices of Wilmer Cutler Pickering Hale and Dorr
LLP, 60 State Street, Boston, Massachusetts 02109, and any postponement or adjournment thereof,
upon the following matters, all as more fully described in the Proxy Statement for said Special
Meeting (receipt of which is hereby acknowledged). THIS PROXY WILL BE VOTED AS DIRECTED. IF NO
DIRECTION IS INDICATED, THIS PROXY WILL BE VOTED FOR THE PROPOSAL TO ADOPT THE MERGER AGREEMENT
AND FOR THE PROPOSAL TO ADJOURN THE SPECIAL MEETING, IF NECESSARY, TO SOLICIT ADDITIONAL PROXIES
IF THERE ARE NOT SUFFICIENT VOTES IN FAVOR OF THE ADOPTION OF THE MERGER AGREEMENT. AIRVANA, INC.
Sign, Date and Return this Proxy Card Promptly Using the Enclosed Envelope. 1-800-652-VOTE (8683)
CALL TOLL-FREE TO SUBMIT YOUR PROXY CONTINUED AND TO BE SIGNED ON REVERSE SIDE SEE REVERSE SIDE
|
Air Via (MM) (NASDAQ:AIRV)
Graphique Historique de l'Action
De Mai 2024 à Juin 2024
Air Via (MM) (NASDAQ:AIRV)
Graphique Historique de l'Action
De Juin 2023 à Juin 2024