Exhibit 2.1
THIRD AMENDMENT
to the
AGREEMENT AND PLAN OF REORGANIZATION
This is the Third Amendment, dated as of June 29, 2001, to the
Agreement and Plan of Reorganization (this "Amendment") by and among Nextel
Communications, Inc., a Delaware corporation ("Nextel"), Nextel Finance Company,
a Delaware corporation ("Acquisition Sub"), and Chadmoore Wireless Group, Inc.,
a Colorado corporation ("Chadmoore").
In consideration of the mutual covenants of this Amendment, Nextel,
Acquisition Sub and Chadmoore agree as follows:
1. Terms used in this Amendment, unless otherwise defined herein,
are used as defined in the Agreement and Plan of Reorganization, dated as of
August 21, 2000 and as amended August 31, 2000 and February 20, 2001, by and
among Nextel, Acquisition Sub and Chadmoore (together, the "Agreement").
2. Recital A of the Agreement is hereby amended to delete the
number $160,000,000 in the fourth line thereof and insert its place the number
$130,000,000.
3. Section 1.04 of the Agreement is hereby amended to read in its
entirety as follows:
Section 1.04 Purchase Price; Adjustments.
(a) As the purchase price for the Assets, Acquisition Sub will,
concurrent with the Closing, assume the Assumed Liabilities
and, subject to Subsections 1.04(b), and (c), cause to be
issued to Chadmoore that number of Nextel Shares equal to an
aggregate of $130,000,000 (subject to adjustment in accordance
with Sections 1.05 and 1.06) (as so adjusted, the "Adjusted
Enterprise Value") divided by the Nextel Closing Price (the
"Purchase Price").
(b) If the Nextel Closing Price is less than or equal to $10.00
per share, then, at Nextel's election, but subject to
Subsection 1.04(c), Acquisition Sub will cause to be delivered
and paid to Chadmoore, concurrent with Closing and in lieu of
the Nextel Shares to have been issued pursuant to Subsection
1.04(a), cash in the amount of the Adjusted Enterprise Value.
(c) If Nextel makes the election contemplated by Section 1.04(b),
then Chadmoore will have the right to require that Nextel,
concurrent with the Closing and in lieu of the cash to have
been paid to Chadmoore pursuant to Section 1.04(b), deliver to
Chadmoore that number of Nextel Shares that equals the
Adjusted Enterprise Value divided by $10.00.
(d) For purposes of this Agreement, the "Nextel Closing Price" per
share of Nextel common stock shall be the average of the daily
closing price per share for each of the twenty (20)
consecutive Trading Days immediately prior to the Closing
Date. If the Nextel Closing Price per share is determined
during a period following the announcement by Nextel of (i) a
dividend or distribution on Nextel Shares payable in Nextel
Share or securities convertible into Nextel Shares or (ii) any
subdivision, reverse stock split or comparable
reclassification of Nextel Share, and prior to the expiration
of the requisite twenty (20) Trading Day period after the
dividend date for the ex-dividend or distribution, or the
record date for the subdivision, reverse stock split or
comparable reclassification, then in each such case, the
Nextel Closing Price shall be properly adjusted to take into
account ex-dividend trading. The closing price for each
Trading Day shall be the last sale price, or, in case no sale
takes place on such day, the average of the closing bid and
ask prices, in either case, as reported by The Nasdaq National
Market.
4. Section 1.05(a) of the Agreement is hereby amended to delete
the number $5,200,000 in the second line thereof and insert in its place the
number $4,225,000.
5. Schedule 1.05 of the Agreement is hereby amended to read in
its entirety as set forth on Schedule 1.05 attached hereto.
6. The last sentence of Section 1.06 of the Agreement is hereby
amended to read in its entirety as follows:
An amount equal to the Funding Adjustment shall be subtracted
from $130,000,000 (as adjusted pursuant to Section 1.05) to
determine the Adjusted Enterprise Value.
7. New Sections 2.28, 2.29 and 2.30 are hereby added to the
Agreement to read in their entirety as follows:
Section 2.28 Capital Stock.
(a) The entire authorized capital stock of Chadmoore consists
solely of 100,000,000 shares of Chadmoore common stock, par
value $0.001 per share ("Chadmoore Common Stock"), of which
45,700,172 shares are issued and 45,700,172 are outstanding as
of the date of this Agreement, and 40,000,000 shares of
preferred stock, par value $.001 per share, of which
10,119,614 shares of Series C Preferred Stock, par value $.001
per share ("Chadmoore Class C Preferred Stock") are issued or
outstanding.
(b) Except as set forth on Schedule 2.28, none of the capital
stock or other securities of Chadmoore is entitled or subject
to preemptive rights.
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Section 2.29 Warrants and Options. Chadmoore has set forth on Schedule
2.29 all warrants, options, subscriptions and other convertible instruments or
agreements pursuant to which Chadmoore was obligated as of the date hereof to
issue, transfer, deliver or sell shares of Chadmoore Common Stock (including,
the (i) exercise or purchase price, (ii) date of grant, (iii) amount of grant
and (iv) holder of each such warrant, option, subscription, convertible
instrument or agreement set forth thereon). Except as set forth on Schedule
2.29, as of the date hereof, there were no commitments or obligations of
Chadmoore, either firm or conditional, to issue, deliver or sell, whether under
offers, stock option agreements, stock bonus agreements, stock purchase plans,
incentive compensation plans, warrants, conversion rights or otherwise, any
authorized but unissued shares, or treasury shares, of Chadmoore Common Stock or
other securities of Chadmoore.
Section 2.30 Securities Delivery Obligation. Except as set forth on
Schedule 2.30, Chadmoore is not party to any warrant, option, subscription or
other convertible instrument or agreement pursuant to which Nextel and its
subsidiaries (including their respective affiliates), as a successor entity to
Chadmoore or otherwise, would be obligated to deliver, issue, transfer or
otherwise provide to any holder of any such instrument or agreement Nextel
Shares, securities or assets.
8. New Sections 4.15, 4.16, 4.17 and 4.18 are hereby added to the
Agreement to read in their entirety as follows:
Section 4.15 Warrants. Chadmoore and its Subsidiaries shall use their
reasonable best efforts to amend any warrant, option, subscription or other
convertible instrument or agreement to which they are a party (including,
without limitation, those agreements and instruments set forth on Schedule 2.30)
such that Nextel and its subsidiaries (including their respective affiliates)
will not be obligated, as a successor entity to Chadmoore or otherwise, to
deliver, issue, transfer or otherwise provide to any holder of any such
instrument or agreement any Nextel Shares, securities or assets.
Section 4.16 Rule 145. It shall be a condition to the transfer of any
Nextel Shares received by Chadmoore to any Person (other than its equity holders
pro rata based on their respective interests) that such Person delivers to
Nextel a written agreement substantially in the form attached hereto as Annex A.
Section 4.17 Barclays' Indebtedness. Chadmoore and its Subsidiaries
shall use their reasonable best efforts to amend the Subordinated Credit
Agreement, dated as of August 31, 2000, among Barclays Bank PLC ("Barclays") and
Chadmoore and its Subsidiaries (the "Credit Agreement"), such that the maximum
amount that Barclays is committed to fund under the Credit Agreement is reduced
to an aggregate amount equal to $30,900,000.
Section 4.18. Barclays' Letter of Credit. In accordance with the
letter, dated as of June 29, 2001, among Nextel, Chadmoore and GATX Capital
Corporation ("GATX") relating to the issuance of a Letter of Credit, dated as of
June 29, 2001, by Barclays in favor of GATX (the "Letter of Credit"), Chadmoore
shall fulfill its obligations under the letter dated even date herewith from
Chadmoore and GATX to Nextel.
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9. Subsection 7.03(c) of the Agreement is hereby amended to read
in its entirety as follows:
(c) The Purchase Price in either (i) the certificates
representing the Nextel Shares, or (ii) cash in immediately
available funds by bank wire transfer (each (i) and (ii) in
accordance with Section 1.4 and as adjusted pursuant to
Article 1);
10. Section 8.02 is hereby amended to add the following clause
immediately following Subsection 8.02(j):
(k) Chadmoore shall have obtained amendments of any warrant,
option, subscription or other convertible instrument or
agreement to which Chadmoore and its Subsidiaries are a party
(including, without limitation, those agreements and
instruments set forth on Schedule 2.30) such that Nextel and
its subsidiaries (including their respective affiliates) will
not be obligated, as a successor entity to Chadmoore or
otherwise, to deliver, issue, transfer or otherwise provide to
any holder of any such instrument or agreement any Nextel
Shares, securities or assets.
11. Subsection 9.01(c)(iv) of the Agreement is hereby deleted in
its entirety.
12. Subsection 9.01(d) of the Agreement is hereby amended to
delete the date December 31, 20001 in the first line thereof and insert in its
place the date March 31, 2002.
13. Subsection 10.02(a) of the Agreement is hereby amended to
delete the name Thomas J. Sidman in the fifth line thereof and insert in its
place the name Leonard J. Kennedy.
14. Except as stated herein, the Agreement remains in full force
and effect without Amendment. References in the Agreement to the Agreement mean
the Agreement and this Amendment.
15. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the date first above written.
NEXTEL COMMUNICATIONS, INC
By: -----------------------
Title:
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NEXTEL FINANCE COMPANY
By: -----------------------
Title:
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CHADMOORE WIRELESS GROUP, INC.
By: -----------------------
Title:
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