Exhibit 99.2
LETTER AGREEMENT, DATED JANUARY 23, 2004, AS AMENDED MAY 4, 2004, AMONG
THE REPORTING PERSONS AND THE UNITED STATES DEPARTMENT OF JUSTICE
U.S. Department of Justice
Antitrust Division
City Center Building
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
This is an amended agreement between the United States Department of
Justice ("the Department") and the individuals and corporations, including their
affiliates, corporate parents, subsidiaries and successors, identified in
Appendix A, and all individuals within their control, including directors,
officers, employees and agents, collectively referred to hereafter as "the
Participants."
Several of the Participants have filed with the Federal Trade
Commission and the Department Notifications and Reports pursuant to the
Xxxx-Xxxxx-Xxxxxx Act stating that they intend to exercise certain rights to
convert debt instruments they hold of WorldCom, Inc. ("WorldCom") into equity
shares of WorldCom's successor corporation upon Worldcom's emergence from
bankruptcy. The Participants understand that in exchange for their Undertakings
pursuant to this agreement, and the Undertakings of WorldCom in a separate
agreement, the Department intends to take no further action at this time with
respect to the subject Notifications.
Definitions
"WorldCom" is WorldCom, Inc., debtor in possession, a corporation now
in bankruptcy, its anticipated successor corporation, MCI, Inc. ("MCI"), and
their subsidiaries, affiliates and other successors.
"Conversion" is the exchange, in part or in whole, of debt instruments
of WorldCom (or any of its affiliates or subsidiaries) for equity shares in MCI
upon MCI's emergence from the bankruptcy proceedings in which WorldCom is now
the debtor in possession, an emergence which is now anticipated to occur in
February 2004.
"Conversion Percentage" is the lower of: 1) the number of MCI equity
shares issued to the Participants on the date of Conversion in accordance with
Item 1 of the Undertakings expressed as a percentage of MCI's then total issued
and outstanding equity shares; and 2) 13.79% of MCI's total issued and
outstanding equity shares.
Undertakings
Each Participant agrees that he, she or it will not, individually or
collectively, undertake any of the following actions, except in accordance with
the Conditions set out below:
1. At the time of Conversion, the Participants will not, individually
or collectively, acquire any equity shares of MCI in addition to those shares
they will hold as a result of their Conversions through the bankruptcy process
of WorldCom's debt instruments that they now hold. The face value of those debt
instruments that the Participants now hold is $2,981,515,000. As a further
limitation, the Participants will not convert any debt instruments through the
bankruptcy process to the extent that doing so will yield them collectively
equity shares in MCI greater in number than 13.79% of MCI's then total issued
and outstanding equity shares.
2. At any time after the Conversion, the Participants will not,
individually or collectively, acquire any additional equity shares of MCI,
unless, as a result of additional public or private offerings of shares by MCI,
the percentage of MCI's total issued and outstanding shares owned by the
Participants collectively becomes less than the Conversion Percentage. In that
case the Participants will not, individually or collectively, acquire a larger
number of shares than is necessary to restore to them collectively the
Conversion Percentage. Provided, however, that this paragraph does not prohibit
the Participants from receiving stock dividends from MCI if those dividends are
distributed by MCI pro rata to all MCI shareholders of the same class.
3. The Participants, their officers, their directors, their employees,
their agents and their representatives will not:
a. Seek or accept any membership on MCI's board of directors nor any
position as an officer or employee of MCI;
b. Seek or accept a right to nominate any member of MCI's board of
directors; provided, however, that this term is not affected by
the operation of Article VII, section 10 of MCI's Amended and
Restated Certificate of Incorporation concerning consultation by
the Nominating and Corporate Governance Committee about nominees
to the board;
c. Attend or participate in meetings of MCI's board of directors,
except to the limited extent that they may be invited by the board
to make specific presentations about transactions between them and
MCI, but would not be present for or participate in the
deliberations of the board;
d. Participate in internal MCI management decisions, or seek or
obtain any confidential MCI business information, except to the
extent provided for by law, by MCI's corporate instruments, or by
confidentiality agreements entered into as part of a regular
course of business transaction.
If as a result of the bankruptcy Conversion process the Participants,
individually or collectively, hold more than 13.79% of MCI's issued and
outstanding equity shares, one or more of the Participants shall promptly convey
the shares in excess of 13.79% to a blind trust, using an independent bank as
trustee, with instructions to the trustee to dispose of the shares as soon as
practically possible, but in no event later than 15 days after the shares are
registered and a functioning market is available for their disposition. The
Participants shall promptly notify the Department in writing, specifying full
details: (1) explaining that they inadvertently acquired more than 13.79%; (2)
certifying that they have created the specified trust account and have conveyed
the excess shares; and (3) attaching copies of the instrument(s) of conveyance
and the trust instrument. The Participants shall also instruct the trustee to
notify the Department in writing, specifying full details: (1) when the shares
have been disposed of; (2) if necessary, that the shares have not been disposed
of within three months of the conveyance; and (3) if necessary, at the end of
each succeeding three months that the shares have not yet been disposed of.
Conditions
The Participants may, notwithstanding the foregoing, collectively or
individually undertake an action that they have agreed in the Undertakings not
to undertake, provided that they first:
1. Notify the Department of the prospective action. The notification
shall provide detailed information about the prospective action, such as, for
example, the number of shares to be acquired, the prospective acquirer
(including its name, address, and telephone number) and the percentage of total
issued and outstanding shares of MCI the Participants would collectively hold
after the acquisition. The Notification must also identify an agent to which the
Department may address further communications, including its name, address,
telephone number and telecopy number. Notification shall be sent in writing as
specified below.
2. Refrain from taking the prospective action for 30 days after the
date the Department receives the notification, unless the Department earlier
states in writing that it has no current intention to oppose the action.
3. Substantially comply with a written request by the Department for
additional information, if that request is issued within those 30 days to the
Participants, collectively or individually, or their agent(s). Such a request
for additional information may include a statement of subjects about which the
Department seeks to conduct in-person interviews, requests for the provision of
documents, and requests for the provision of written information. Individuals
with personal knowledge of the subjects must be made available for the
interviews, which will be conducted in English (by translation if appropriate).
Documents must be provided (plus English translations if requested) regardless
of whether those documents are or are not located within the United States.
4. Certify to the Department in writing as specified below that they
have substantially complied with the Department's request for additional
information. This certification may be made only after copies of all responsive
documents have been provided, all requested written information has been
provided, and all responsive interviews have been completed.
5. Refrain, if the Department sends a request for additional
information, from taking the prospective action until the date 30 days after the
Department has received the written certification of substantial compliance,
unless the Department earlier states in writing that it has no current intention
to oppose the action.
If, however, a contemplated acquisition of equity shares is subject to
the reporting requirements of the Xxxx-Xxxxx-Xxxxxx Act, the Participants file
with the Federal Trade Commission and the Department all appropriate
Notifications and Reports required by that Act, and those Notifications and
Reports cover all the contemplated acquisitions, those filings will serve to
fulfill the Participants' obligations under these Conditions.
Notice to the Department
All notifications and certifications to the Department will be sent
electronically or by fax, and by mail, with return receipt requested, to:
Assistant Attorney General
Antitrust Division
Xxxx Xxxxxxx Building
000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
(000) 000-0000 telephone
(000) 000-0000 fax
with a copy to:
Chief, Telecommunications & Media Enforcement Section
Antitrust Division
0000 X Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
(000) 000-0000 telephone
(000) 000-0000 fax
In the event those addresses or telephone numbers change the Department will
notify the following person for the Participants:
Xxxxxx X. Xxxxxxx, Esq.
Wilikie Xxxx & Xxxxxxxxx, LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Expiration
The commitments undertaken in this agreement will expire on the fifth
anniversary of the date of this agreement. The Participants may request an
earlier release from the Department, but any such release must be provided by
the Department in writing.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
---------------------------------------- ----------------------------------------
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx
Attorney, Telecommunications & Media Attorney for the Participants
Enforcement Section
January 23, 2004, as amended May 4, 2004 January 23, 2004, as amended May 4, 2004
APPENDIX A
Xxxxxx Xxxx Xxxx
Xxxxxx Slim Xxxxx
Xxxxx Xxxxxxx Slim Xxxxx
Xxxxxxx Slim Xxxxx
Xxxxx Soumaya Slim Xxxxx
Xxxxxxx Paola Slim Xxxxx
Xxxxxxx Xxxxxxx Slim Domit
Carso Global Telecom, S.A. de C.V.
Financial Ventures LLC
Global Telecom LLC
Telefonos de Mexico, S.A. de C.V. (Telmex)
Controladora de Servicios de Telecomunicacioncs, S.A. de C.V.
Uninet, S.A. de C.V.
Empresas y Controles En Comunicaciones, S.A. de C.V.
Inmobiliaria Carso, S.A. de C.V.
Orient Star Holdings, LLC
Grupo Financiero Inbursa, S.A. de C.V.
Promotora Inbursa, S.A. de C.V.
Pensiones Inbursa, S.A. de C.V.
U.S. Commercial Corp., S.A. de C.V.
Commercial LLC
