Exhibit 99.2
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Amendment to Agreement and Plan of Merger ("AMENDMENT") is entered
into as of February __, 2000 by and among AT&T Corp. ("PARENT"), a New York
corporation, AT&T Latin America Corp. ("ATTL"), a Delaware corporation (formerly
named Kiri Inc.), Frantis, Inc.("MERGER SUB"), a Delaware corporation, and
FirstCom Corporation (the "COMPANY"), a Texas corporation.
RECITALS
A. Parent, ATTL, Merger Sub and the Company have entered into an
Agreement and Plan of Merger, dated as of November 1, 1999 (as amended, the
"MERGER AGREEMENT").
B. ATTL desires to enter into certain agreements (the "KEYTECH
ACQUISITION AGREEMENTS"), in the forms previously delivered to the Company,
providing for the purchase by ATTL (or one or more affiliates designated by it)
of 100% of the capital stock of Keytech LD S.A. ("KEYTECH") and certain other
transactions as set forth therein.
C. ATTL and the other parties to the Keytech Acquisition Agreements
anticipate that the closing thereunder will occur prior to the Closing.
D. Pursuant to the Merger Agreement, ATTL requires the consent of the
Company in order to purchase the capital stock of Keytech and to issue shares of
ATTL Class A Common Stock in partial payment therefor, as contemplated by the
Keytech Acquisition Agreements.
E. Assuming that the closing under the Keytech Acquisition Agreements
occurs prior to the Closing, each of Parent, ATTL, Merger Sub and the Company
intend that, immediately following the Effective Time, on a fully-diluted basis
and after giving effect to such closing, (I) the former shareholders of the
Company will own, collectively, approximately 34% of the shares of common stock
of ATTL, in the form of shares of ATTL Class A common stock ("CLASS A COMMON
STOCK") or ATTL Series A convertible preferred stock, as the case may be, (II)
Promon will own, directly or indirectly, approximately 6% of the shares of
common stock of ATTL, in the form of Class A Common Stock, (III) the former
shareholders of Xxxxx will own, collectively, approximately 1% of the shares
of common stock of ATTL, in the form of Class A Common Stock, a portion of which
will be held in escrow pursuant to an escrow agreement, and (IV) Parent will
own, directly or indirectly, approximately 58% of the shares of common stock of
ATTL, in the form of ATTL Class B common stock (in each case rounded to nearest
integer).
F. Parent, ATTL, Merger Sub and the Company desire to amend Schedule B
to the form of Regional Vehicle Agreement attached as Exhibit E to the Merger
Agree-ment.
NOW, THEREFORE, the parties agree as follows:
2. DEFINED TERMS. Capitalized terms used herein without definition
shall have the respective meanings ascribed to them in the Merger Agreement.
3. REPRESENTATION AND WARRANTY OF PARENT. Paragraph (d) of Section 3.2
of the Merger Agreement is hereby deleted and replaced in its entirety by the
following:
"(d) CAPITALIZATION. (i) As of February 13, 2000, the
issued and outstanding capital stock of ATTL consisted of 40,000
shares of common stock, par value $.01 per share, all of which
were issued and outstanding, 36,000 of which were owned, directly
or indirectly, by Parent, and 4,000 of which were owned, directly
or indirectly, by Promon. As of the Closing Date, the aggregate
number of issued and outstanding shares of capital stock of ATTL
shall be not more than the sum of (I) the product of (X) such
number of shares of Preferred Stock issued or accrued as
paid-in-kind dividends from November 1, 1999 to the Closing Date,
and (Y) 2.077, plus (II) either 82,026,893, if the closing shall
have occurred under the Keytech Acquisition Agreements, or
80,848,204, if such closing shall not have occurred. All issued
and outstanding shares of capital stock of ATTL and of Merger Sub
are duly authorized, validly issued, fully paid, non-assessable
and free of pre-emptive rights. As of the Closing, except for (A)
approximately 10% of the outstanding common stock of ATTL owned by
Promon (assuming Promon's participation in all contributions to
the capital of ATTL in proportion to its percentage interest as of
the date hereof), and (B) if the closing under the Keytech
Acquisition Agreements shall have occurred, 1,178,689 shares of
common stock of ATTL owned by the former shareholders of Keytech
and their respective permitted transferees (including shares held
in escrow), as provided in the Keytech Acquisition Agreements, in
each case in the form of Class A Common Stock, (I) all issued and
outstanding shares of common stock of ATTL are owned, directly or
indirectly, by Parent, in the form of ATTL Class B common stock,
(II) all issued and outstanding shares of capital stock of Merger
Sub are owned directly by ATTL, and (III) all issued and
outstanding shares of capital stock or quotas, as the case may be,
of each member of the Jamtis Group (and Keytech, if the closing
shall have occurred under the Keytech Acquisition Agreements) are
owned directly or indirectly by ATTL, in each case free and clear
of Encumbrances (other than any Encumbrances created by Promon or
the former shareholders of Keytech as to the shares of Class A
Common Stock owned by them). None of ATTL, Merger Sub, Keytech or
any member of the Jamtis Group has any outstanding bonds,
debentures, notes or other similar obligations, instruments or
securities entitling the holders thereof to vote (or which are
convertible into or exercisable for securities having the right to
vote) with the shareholders of ATTL, Merger Sub, Keytech or such
member on any matter. As of November 1, 1999 and as of the Closing
Date, the amount and ownership of the issued equity capital of
each member of the Jamtis Group are as set forth on Schedule
3.2(d) of the ATTL Disclosure Letter.
(ii) Except as described in the Merger Agreement, the
Keytech Acquisition Agreements or the ATTL Disclosure Letter,
there are no other shares of capital stock (or quotas, as the case
may be) of ATTL, Merger Sub, Keytech or any member of the Jamtis
Group, no securities of ATTL, Merger Sub, Keytech or any member of
the Jamtis Group convertible or exchangeable for shares of capital
stock or voting securities (or quotas, as the case may be) of
ATTL, Merger Sub, Keytech or any member of the Jamtis Group, and
no existing options, warrants, calls, subscrip-tions, convertible
securities, or other rights, agreements or commitments which
obligate ATTL, Merger Sub, Keytech or any member of the Jamtis
Group to issue, transfer or sell any shares of capital stock of
ATTL, Merger Sub, Keytech or any member of the Jamtis Group."
4. ACCESS AND INFORMATION; PRE-CLOSING REVIEW. The Company acknowledges
that it has been afforded an adequate opportunity to investigate the properties,
assets, liabilities, personnel and records of Keytech. Prior to the closing
under the Keytech Acquisition Agreements, Parent will use its reasonable best
efforts to assist the Company in obtaining any further information as to Keytech
that the Company may reasonably request. From and after the date of the closing
under the Keytech Acquisition Agreements, Parent shall, and shall cause its
Subsidiaries to, (I) give the Company and its authorized representatives full
access during normal business hours to all books, records, personnel, research
and other consultants, offices and other facilities and properties of Keytech
and Keytech's accountants (and shall use its reasonable best efforts to give the
Company and such representatives access to such accountants' work papers), (II)
permit the Company to make such copies and inspections thereof as the Company
may reasonably request and (III) furnish the Company with such financial and
operating data and other information with respect to the business and properties
of Keytech as the Company may from time to time reasonably request.
5. CONSENT. The Company hereby gives its consent to ATTL to execute and
deliver the Keytech Acquisition Agreements and to consummate the transactions
contemplated thereby.
6. REGIONAL VEHICLE AGREEMENT. Schedule B to the form of Regional
Vehicle Agreement attached as Exhibit E to the Merger Agreement is hereby
amended and restated as set forth in Exhibit A hereto.
7. NO OTHER AMENDMENT OR MODIFICATION. The Merger Agreement shall
remain in full force and effect except as expressly amended or modified hereby.
8. COUNTERPARTS. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts, and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
9. CAPTIONS. Captions and headings to paragraphs and sections of this
Amendment are included for convenience of reference only and shall not
constitute a part
of this Amendment or in any way affect the meaning of any term or provision of
this Amendment.
10. EFFECTIVENESS. This Amendment shall be effective only upon
execution and delivery by each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
AT&T Corp.
By:
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Name: Xxxx Xxxxx
Title: /S/ Xxxx Xxxxx
AT&T Latin America Corp.
By:
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Name: Xxxx Xxxxx
Title: /S/ Xxxx Xxxxx
Frantis, Inc.
By:
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Name: Xxxx Xxxxxxx
Title: /S/ Xxxx Xxxxxxx
FirstCom Corporation
By:
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Name: Xxxxxxx X. Northland
Title: /S/ Xxxxxxxx X. Northland
EXHIBIT A
Schedule B
To Regional Vehicle Agreement
RV NON-EXCLUSIVE SERVICES
AT&T Card Services
AT&T Direct(R) services
E-commerce
Web-hosting
Fixed wireless for connectivity
Voice over Internet Protocol
Managed Network Services
Video conferencing services
