EXHIBIT 2.2
October 13, 2001
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AMENDMENT NO. 1
Dated as of October 13, 2001
TO THE
AGREEMENT AND PLAN OF MERGER
Dated as of August 28, 2001
By and Among
ALLIED RISER COMMUNICATIONS CORPORATION,
COGENT COMMUNICATIONS GROUP, INC.
And
XXXXXXXX XXXXXX MERGER SUB, INC.
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SCHEDULE Y
AMENDMENT NO. 1 TO THE
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 (this "Amendment"), dated as of October 13, 2001,
to the Agreement and Plan of Merger (the "Agreement"), dated as of August 28,
2001, is entered into by and among Allied Riser Communications Corporation, a
Delaware corporation (the "Company"), Cogent Communications Group, Inc., a
Delaware corporation ("Parent"), and Xxxxxxxx Xxxxxx Merger Sub, Inc., a
Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub").
Capitalized terms used in this Amendment, and not defined herein, have the
meanings set forth in the Agreement.
RECITAL:
The respective Boards of Directors of the Company, Parent and Merger
Sub have approved this Amendment;
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in the Agreement and this Amendment, the
parties hereto agree as follows:
AGREEMENT:
1. Exhibit A to the Agreement is hereby amended and restated in its
entirety to read as set forth in Annex A to this Amendment.
2. Exhibit C to the Agreement is hereby amended and restated in its
entirety to read as set forth in Annex B to this Amendment.
3. Section 3.01(b) of the Parent Disclosure Schedule is amended and
restated in its entirety to read as set forth in Schedule X to this Amendment.
4. Section 3.01 is hereby amended by adding the following subsection
(y) immediately following subsection (x) thereof:
"(y) No Going Private. Parent does not intend, prior to six months
after the Effective Time, to consummate a "Rule 13e-3 transaction" as defined in
Rule 13e-3 promulgated under the Exchange Act or to otherwise acquire, directly
or indirectly, more than 80% of the shares of Parent Common Stock issued in the
Merger."
5. Section 4.01 of the Company Disclosure Schedule is hereby amended to
increase by $5,000,000 the Authorized Company Cash Expenditures for the fourth
quarter of 2001. The Company shall allocate this additional amount of Authorized
Company Cash Expenditures in its sole discretion among the categories of
expenses and obligations included in Section 4.01 of the Company Disclosure
Schedule.
6. Section 4.01 of the Agreement is hereby amended by adding the
following subsection (d) and (e) immediately following subsection (c) thereof:
"(d) Exceptions. Notwithstanding anything to the contrary
contained in this Section 4.01 or elsewhere in this Agreement, the
Company and its Subsidiaries may (i) enter into a settlement agreement
on the terms
set forth in Section 4.01(d) to the Company Disclosure Schedule; and
(ii) terminate their connectivity contracts, telecommunications license
agreements, office leases and contracts for access to real estate or
circuits to the extent such terminations are consistent with the
Authorized Company Cash Expenditures.
(e) No Acquisitions by Parent. Except as contemplated by this
Agreement, neither Parent nor any of its Subsidiaries shall acquire or
agree to acquire by merging or consolidating with, or by purchasing a
substantial portion of the assets of, or by any other manner, any
material business or any person, other than purchases of supplies in
the ordinary course of business; provided, however, that this Section
4.01(e) shall not prohibit (x) any merger or consolidation of a direct
or indirect wholly owned Subsidiary of Parent with and into Parent or
another direct or indirect wholly owned Subsidiary of Parent, (y) the
sale of a substantial portion of the stock or assets of a direct or
indirect wholly owned Subsidiary of Parent to Parent, or another direct
or indirect wholly owned Subsidiary of Parent, or (z) the creation of
new, wholly owned Subsidiaries of Parent organized to conduct or
continue activities expressly permitted under this Agreement."
7. Section 4.01 of the Company Disclosure Schedule is hereby amended by
adding, immediately following subsection (a) thereof, the subsection (d) set
forth in Schedule Y to this Amendment.
8. Section 4.02 of the Agreement is hereby amended by adding the
following subsection (g) immediately following subsection (f) thereof:
"(g) Notwithstanding anything to the contrary in this Section
4.02 or elsewhere in this Agreement, the Company, and its directors,
officers, employees, investment bankers, financial advisors, attorneys,
accountants and other representatives may participate in discussions
and negotiations with the Company's noteholders to the extent such
discussions relate to the Company's notes or the terms of the related
indenture or any restructuring of the Company's obligations under such
notes or indenture; provided, however, that the Company may not enter
into any agreement with, or make any payment to, such noteholders or
their representatives without the prior written consent of Parent."
9. The penultimate and last provisos of Section 5.07(c) of the
Agreement, which follow the phrase "no less favorable to such directors,
officers or fiduciaries;" are hereby amended and restated in their entirety to
read as follows:
"provided, however, that in no event shall the Surviving
Corporation be required to pay aggregate premiums for insurance under
this Section 5.07(c) in excess of 200% of the amount of the aggregate
premiums paid by a party to this Agreement in 2001 on an annualized
basis for such purpose, provided, further, that the Surviving
Corporation shall nevertheless be obligated to provide such coverage as
may be obtained for such 200% amount."
10. Each of Sections 5.15 and 6.02(g) of the Agreement is hereby
amended by replacing "$65,000,000" with "$62,000,000."
11. Article 5 of the Agreement is hereby amended by adding the
following Sections 5.17, 5.18 and 5.19 immediately following Section 5.16:
"SECTION 5.17 Voting Agreements. The Company shall use
reasonable best efforts to cause each of the persons set forth in
Section 6.03(f) of the Company Disclosure Schedule to execute and
deliver, on or as soon as reasonably practicable after October 12,
2001, to Parent and the Company an agreement substantially in the form
of Exhibit E to this Agreement.
SECTION 5.18 Director Designation. Immediately prior to the
Effective Time, Parent shall appoint to Parent's Board of Directors an
individual designated by the Company, provided that such designee must
be satisfactory to each of the persons set forth in Section 6.03(f) of
the Company Disclosure Schedule.
SECTION 5.19 No Going Private Transaction. Prior to six months
after the Effective Time, Parent shall not (a) consummate a "Rule 13e-3
transaction" as defined in Rule 13e-3 promulgated under the Exchange
Act or (b) acquire, directly or indirectly, more than 80% of the shares
of Parent Common Stock issued in the Merger."
12. Exhibit E of the Agreement is hereby amended and restated in its
entirety to read as set forth in Annex C to this Amendment.
13. Section 6.03(f) of the Agreement is hereby amended and restated in
its entirety to read as follows:
"(f) [Intentionally omitted.]"
14. Clause (i) of Section 7.01(b) is hereby amended and restated in its
entirety to read as follows:
"(i) if the Merger shall not have been consummated by December
7, 2001 (the "Agreement Termination Date"); provided, however, that (x)
if Parent or the Company is informed by the SEC that it will review,
and does review, the Form S-4 or the Company Proxy Statement, then the
Agreement Termination Date shall be deemed to be the earlier of January
31, 2002 and the 25th day after the effective date of the Form S-4, and
(y) the right to terminate this Agreement pursuant to this Section
7.01(b)(i) shall not be available to any party whose failure to perform
any of its obligations under this Agreement results in the failure of
the Merger to be consummated by such time;".
15. Section 7.01(b) is hereby amended by adding the following clauses
(v) and (vi) immediately following clause (iv) thereof:
"(v) if a document or documents constituting the Company Proxy
Statement and Form S-4 shall not have been preliminarily filed with the
SEC on or prior to October 16, 2001; or
(vi) Parent shall not have issued at least $62,000,000 of
shares of the Series C Preferred Stock for cash on substantially the
terms set forth in the Parent Restated Certificate and Section 3.01(b)
of the Parent Disclosure Schedule on or prior to October 17, 2001."
16. Section 7.02(a) is hereby amended by adding the following sentence
as the last sentence thereof:
"Notwithstanding anything to the contrary in this
Agreement, in the event of a termination of this Agreement pursuant to
clause (i), (v) or (vi) of Section 7.01(b), this Agreement shall
forthwith become void and have no effect, without any liability or
obligation under this Agreement on the part of the Company, Parent, or
Merger Sub, other than the provisions of the Confidentiality Agreement,
Section 5.04 (last sentence only), Section 5.08, this subsection (a) of
Section 7.02, and Article 8."
17. Clause (b) of Section 8.06 is hereby amended and restated in its
entirety to read as follows:
"(b) are not intended to confer upon any person other than the parties
any rights or remedies, except for the provisions of Article 2 and of
Sections 5.06, 5.07, and 5.19, which are intended to confer a benefit
on and be enforceable by the individuals specified therein and their
respective legal representatives."
All other terms and conditions of Article 8 of the Agreement are incorporated
into this Amendment by reference.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Company, Parent and Merger Sub have caused this
Amendment to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
ALLIED RISER COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
COGENT COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
XXXXXXXX XXXXXX MERGER SUB, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
