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Exhibit 2.3
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Amendment to Agreement and Plan of Merger ("Amendment") is entered
into as of February 22, 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
Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Defined Terms. Capitalized terms used herein without definition
shall have the respective meanings ascribed to them in the Merger
Agreement.
2. 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
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"(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
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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,
subscriptions, 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."
3. 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
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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.
4. Consent. The Company hereby gives its consent to ATTL to execute and
deliver the Keytech Acquisition Agreements and to consummate the transactions
contemplated thereby.
5. 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.
6. No Other Amendment or Modification. The Merger Agreement shall remain
in full force and effect except as expressly amended or modified hereby.
7. 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.
8. 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.
9. 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: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Vice President
AT&T Latin America Corp.
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Vice President
Frantis, Inc.
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: President
FirstCom Corporation
By: /s/ XXXXXXXX X. NORTHLAND
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Name: Xxxxxxxx X. Northland
Title: Chairman, President and CEO
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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
