EXHIBIT 2.2
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT No. 1 TO AGREEMENT AND PLAN OF MERGER is made as of
January 22, 1998, among American Tower Systems Corporation, a Delaware
corporation ("ATS"), American Tower Systems (Delaware), Inc., a Delaware
corporation formerly known as American Tower Systems, Inc. ("ATSI"), Gearon &
Co., Inc., a Georgia corporation ("Gearon"), and J. Xxxxxxx Xxxxxx, Xx. (the
"Xxxxxx Stockholder").
W I T N E S S E T H:
WHEREAS, ATS, ATSI, Gearon and the Gearon Stockholder are parties to an
Agreement and Plan of Merger dated as of November 21, 1997 (the "Merger
Agreement"); and
WHEREAS, ATS, ATSI, Gearon and the Gearon Stockholder have agreed to
amend the Merger Agreement as set forth herein pursuant to Section 11.1 of the
Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing, the parties hereto,
intending to be legally bound, agree as follows:
1. Section 3.1(b) of the Merger Agreement is hereby deleted and the
following new Section 3.1(b) is inserted in its place:
"(b) Each share of Common Stock, no par value, of Gearon (the
"Gearon Common Stock") issued and outstanding immediately prior to the
Effective Time (other than shares held in the treasury of Gearon)
shall, by virtue of the Merger and without any action on the part of
the holder thereof, be converted into the right to receive its pro-rata
share of the following:
(i) with respect to Xxx Xxxx Xxxxxxxx, Xxxx Ebihara
and Xxxx Xxxxx, 555,555, 22,221 and 44,444 shares,
respectively, of Class A Common Stock, par value $.01 per
share, of ATS (the "ATS Class A Common Stock") (being a number
of shares of ATS Class A Common Stock with an agreed upon fair
market value of $5,000,000, $200,000 and $400,000,
respectively, based on an agreed upon per share value of the
ATS Class A Common Stock of $9.00, which ATS represents is not
more than the price per share at which shares are to be sold
pursuant to the ATS Private Placement) to be issued to each
such Gearon stockholder in proportion to the number of shares
of Gearon Common Stock held by such stockholder to the number
of shares of Gearon Common Stock held by all such stockholders
(the "Gearon Employees Consideration"); and
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(ii) with respect to the Gearon Stockholder and The
1997 Gearon Family Trust, (A) 4,240,002 and 471,111 shares,
respectively, of ATS Class A Common Stock (being a number of
shares of ATS Class A Common Stock with an agreed upon fair
market value of $42,400,000 based on an agreed upon per share
value of the ATS Class A Common Stock of $9.00, which ATS
represents is not more than the price per share at which
shares are to be sold pursuant to the ATS Private Placement)
(the "Gearon Common Stock Consideration"), and (B) $28.8
million and $3.2 million, respectively, in immediately
available funds (the "Cash Consideration" and collectively,
with the Gearon Common Stock Consideration, the "Merger
Consideration" which term shall include any adjustment
pursuant to the provisions of this Section).
Notwithstanding the foregoing, the Cash Consideration shall be (i)
increased by an amount equal to the Net Working Capital of Gearon (if
positive) on and as of the Closing Date, and (ii) decreased by an
amount equal to the Net Working Capital of Gearon (if negative) on and
as of the Closing Date. The term "Exchange Merger Consideration" shall
mean an amount equal to the Gearon Employees Consideration or the
Merger Consideration, as the case may be, divided by the aggregate
number of shares of Gearon Common Stock (the "Gearon Shares") issued
and outstanding at the Effective Time and held of record at the
Effective Time by the Persons (x) named in paragraph (i), in the case
of the Gearon Employees Consideration, and (y) named in paragraph (ii),
in the case of the Gearon Common Stock Consideration and the Cash
Consideration.
At the Effective Time, all Gearon Shares shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and certificates previously evidencing any such Gearon Shares (each, a
"Certificate") shall thereafter represent the right to receive, upon the
surrender of such Certificate in accordance with the provisions of Section 3.2,
the Exchange Merger Consideration multiplied by the number of Gearon Shares
represented by such Certificate, and a holder of more than one Certificate shall
have the right to receive the Exchange Merger Consideration multiplied by the
number of Gearon Shares represented by all such Certificates. In lieu of issuing
fractional shares, ATS shall convert the holder's right to receive ATS Class A
Common Stock pursuant to the provisions of this Section into a right to receive
the highest whole number of shares of ATS Class A Common Stock constituting the
Exchange Merger Consideration plus cash equal to the fraction of a share of ATS
Class A Common Stock to which the holder would otherwise be entitled multiplied
by $9.00, and the Exchange Merger Consideration to which a holder is entitled
shall be deemed to be such number of shares of ATS Class A Common Stock, the
Cash Consideration and such cash. The holders of such Certificates previously
evidencing Gearon Shares outstanding immediately prior to the Effective Time
shall cease to have any rights with respect to such Gearon Shares, except as
otherwise provided herein or by Applicable Law. "
2. The definitions of "Collateral Documents" and "Gearon" appearing in
Appendix A of the Merger Agreement are each hereby deleted and the following new
definitions are inserted in their places, respectively:
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"Collateral Documents shall mean the Agreement and Plan of Merger by
and among ATSI, Communications Towers, Inc. and the Gearon Stockholder, the
Indemnity Escrow Agreement, the ATS Noncompetition Agreements, the Gearon
Employment Agreement, the Gearon Notes, the Gearon Security Agreement, the
Gearon Investment Letters, the Certificate of Merger, the Articles of Merger,
and any other agreement, certificate, contract, instrument, notice, opinion or
other document delivered pursuant to the provisions of this Agreement or any
Collateral Document."
"Gearon shall have the meaning given to it in the Preamble and shall
include CTI, unless the context otherwise implies."
3. All references in the Merger Agreement and each Collateral Document
to "American Tower Systems, Inc." are hereby deleted and replaced by the name
"American Tower Systems (Delaware), Inc.," and all references to "ATSI" in the
Merger Agreement and each Collateral Document shall be deemed to refer to
American Tower Systems (Delaware), Inc.
4. Each of ATS, ATSI, Gearon and the Gearon Stockholder represents and
warrants that all requisite corporate and other action necessary for the valid
execution and delivery of this Amendment No. 1 has been duly and effectively
taken.
5. Each capitalized term used herein without definition shall have the
same meaning herein as is given to such term in the Merger Agreement.
6. The Merger Agreement as amended hereby is ratified and confirmed in
all respects and shall continue in full force and effect.
7. This Amendment No. 1 may be executed in one or more counterparts,
and by the different Parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
American Tower Systems Corporation
By:_____________________________________
Name:
Title:
American Tower Systems (Delaware), Inc.
By:_____________________________________
Name:
Title:
Gearon & Co., Inc.
By:______________________________________
Name:
Title:
Gearon Stockholder
J. Xxxxxxx Xxxxxx, Xx.
