EXHIBIT 2.2
EXECUTION COPY
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FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
by and among
WORLDCOM, INC.,
WILDCAT ACQUISITION CORP.
and
INTERMEDIA COMMUNICATIONS INC.
Dated February 15, 2001
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FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of
February 15, 2001 (this "First Amendment"), by and among WORLDCOM, INC., a
Georgia corporation ("Wildcat"), WILDCAT ACQUISITION CORP., a Delaware
corporation ("Merger Sub") and a wholly owned Subsidiary of Wildcat, and
INTERMEDIA COMMUNICATIONS INC., a Delaware corporation ("Target").
WHEREAS, Wildcat, Merger Sub and Target have entered into an
Agreement and Plan of Merger, dated as of September 1, 2000 (the "Merger
Agreement"), pursuant to which Merger Sub is to merge with and into Target,
with Target being the surviving corporation;
WHEREAS, in consideration of Target's willingness to enter into
this First Amendment, Wildcat and Merger Sub have agreed to adopt the
amendments to the Merger Agreement set forth herein;
WHEREAS, in consideration of Wildcat's and Merger Sub's
willingness to enter into this First Amendment, Target has agreed to adopt
the amendments to the Merger Agreement set forth herein;
WHEREAS, Wildcat, Target, Dove and certain other parties are
entering into a Memorandum of Understanding dated as of the date of this
First Amendment (the "Settlement Agreement") for the purpose of, inter
alia, settling the shareholder litigation captioned In re Digex, Inc.
Shareholders Litigation (Consolidated Civil Action No. 18336 NC);
WHEREAS, the Board of Directors of Target has approved, and
deems it advisable and in the best interests of Target's stockholders to
enter into, this First Amendment;
WHEREAS, the respective Boards of Directors of Wildcat and
Merger Sub have approved, and deem it advisable and in the best interests
of their respective shareholders to enter into, this First Amendment;
WHEREAS, except as amended by this First Amendment it is
intended that the Merger Agreement shall remain in full force and effect
with no amendment or modification thereto other than as set forth herein;
and
WHEREAS, capitalized terms used herein and not defined herein
shall have the respective meanings given in the Merger Agreement;
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
SECTION 1.01. The third sentence of Section 1.5 of the Merger
Agreement is hereby deleted and replaced with the following:
"Prior to such filing, a closing shall be held at the offices
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square,
Xxx Xxxx, XX 00000, or such other place as shall be agreed to
by the parties, for the purpose of confirming the satisfaction
or waiver, as the case may be, of the conditions set forth in
Article V."
SECTION 1.02. The second, third and fourth sentences of Section
1.6(a) of the Merger Agreement are hereby deleted and replaced with the
following:
"The "Exchange Ratio" means 1.0.".
SECTION 1.03. Clause (1) of Section 2.9 of the Merger Agreement
is hereby amended by deleting the words "(other than those relating to the
economy or securities markets in general or the industries in which Target
and its Subsidiaries operate in general or resulting from the announcement
of this Agreement)".
SECTION 1.04. The following is hereby added to the end of
Section 2.10 of the Merger Agreement:
"For the purpose of this Section 2.10, no such suit, action,
proceeding, claim, grievance, investigation, judgment, decree,
injunction, rule, order, facts, circumstances or conditions
(each an "Event") shall be deemed, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect
on Target or any of its Subsidiaries if and to the extent such
Event is based on or arising out of this Agreement, the Voting
Agreement or the transactions contemplated hereby or thereby.
As of the date of the First Amendment, there is no Event based
on or arising out of this Agreement, the Voting Agreement or
the transactions contemplated hereby or thereby other than as
set forth on Attachment I to the First Amendment.".
SECTION 1.05. The last sentence of Section 2.11 of the Merger
Agreement is hereby deleted and replaced with the following:
"No other approval of the stockholders of Target is required
with respect to this Agreement, the Voting Agreement or the
transactions contemplated hereby or thereby. The term "Target
Stockholder Approval" shall include any Target Stockholder
Approval required under Section 251(d) of the DGCL in
connection with any amendment to this Agreement.".
SECTION 1.06. Section 2.13 of the Merger Agreement is hereby
amended to read as follows:
"Target has received the opinion of Bear Xxxxxxx &
Co. Inc., dated the date of the First Amendment,
to the effect that, as of such date, the Exchange
Ratio is fair, from a financial point of view, to
the holders of Target Common Stock.".
SECTION 1.07. Section 2.14 of the Merger Agreement is hereby
amended to read as follows:
"The Board of Directors of Target has approved the terms of
this Agreement, the Voting Agreement and the consummation of
the transactions contemplated by this Agreement and the Voting
Agreement. Such approval represents all the action necessary to
ensure that the restrictions on "business combinations" (as
defined in Section 203 of the DGCL) contained in Section 203 of
the DGCL do not apply to Wildcat or Merger Sub in respect of
Target in connection with the Merger and the other transactions
contemplated by this Agreement and the Voting Agreement. To the
Knowledge of Target, no other state takeover statute or similar
statute or regulation is applicable to this Agreement, the
Voting Agreement, the Merger or the other transactions
contemplated by this Agreement and the Voting Agreement.".
SECTION 1.08. The following is added to the end of Article II
of the Merger Agreement:
"2.17 First Amendment. As of the date of the First Amendment,
to the Knowledge of Target or any of its Subsidiaries, all of
the representations and warranties of Target in this Agreement
that are qualified by reference to Material Adverse Effect are
true and correct, ignoring, for purposes of this Section 2.17,
clauses (iv) and (v) of subclause (a) of the definition of
"Material Adverse Effect".".
SECTION 1.09. The following is hereby inserted each time
following the words "following the date of this Agreement" in Section
4.8(b) of the Merger Agreement:
"or any amendment to this Agreement needing adoption by the
stockholders of Target under Section 251(d) of the DGCL in
order to be valid".
SECTION 1.10. Sections 4.9 and 4.10 of the Merger Agreement are
hereby deleted in their entirety; provided, however, that the section
numbers of the remaining sections of Article IV of the Merger Agreement
shall not be renumbered to reflect such deletion.
SECTION 1.11. The words "(assuming, for this purpose, that
Wildcat failed to make the Wildcat Cash Election)" are hereby deleted from
Sections 4.17(a) and 4.17(g) of the Merger Agreement.
SECTION 1.12. Section 4.24 of the Merger Agreement is hereby
amended to read as follows:
"Pending the adoption of the amendment to the Certificate of
Incorporation of Dove set forth in Attachment II to the First
Amendment, as contemplated by Section 5 of the Settlement
Agreement, Wildcat and the Surviving Corporation shall cause
Dove to abide by the provisions contained in such amendment
prior to the formal adoption of such amendment.".
SECTION 1.13. Section 4.25 of the Merger Agreement is hereby
amended to read as follows:
"Wildcat shall provide Target financing pursuant to, and
subject to the conditions of, the Note Purchase Agreement dated
October 31, 2000 between Target and Wildcat, as amended by the
First Amendment thereto.".
SECTION 1.14. Section 6.1(d) of the Merger Agreement is hereby
amended by adding the following at the end of such Section:
"; and provided further, however, that to the extent that the
judgment contemplated by Section 9(e) of the Settlement
Agreement shall have been entered but the period for appeals
regarding such judgment shall not have expired on or prior to
the Termination Date, then the Termination Date shall be
extended until September 30, 2001.".
SECTION 1.15. (a) the word "and" is hereby deleted from the end
of Section 5.1(f) of the Merger Agreement, (b) "; and" is hereby
substituted for the period at the end of Section 5.1(g) of the Merger
Agreement and (c) the following is hereby added to the end of Section 5.1
of the Merger Agreement:
"(h) (i) the Stipulation of Settlement contemplated by the
Settlement Agreement shall have received final and unappealable
court approval as contemplated by Section 11 of the Settlement
Agreement and (ii) the judgment contemplated by Section 9(e) of
the Settlement Agreement shall have been entered and become
final and unappealable.".
SECTION 1.16. The following is hereby added to Section 7.1 of
the Merger Agreement:
"First Amendment: the First Amendment to this Agreement dated
as of February 15, 2001."
SECTION 1.17. The following is hereby added to the end of the
definition of "Form S-4" in Section 7.1 of the Merger Agreement:
", and the post-effective amendment to such registration
statement made in connection with the First Amendment.".
SECTION 1.18. The definition of "Material Adverse Effect" in
Section 7.1 of the Merger Agreement is hereby amended to read as follows:
"Material Adverse Effect: (a) when used with respect to Target,
any change or effect that, individually or in the aggregate
with all other changes or effects, is or is reasonably likely
to be materially adverse to the business, operations,
properties, financial condition, assets, liabilities or
prospects of Target and its Subsidiaries, taken as a whole,
other than those (i) relating to the economy or securities
markets in general or the industries in which Target and its
Subsidiaries operate in general, (ii) resulting from the
announcement of this Agreement and/or the marketing of any
assets of Target by Wildcat, (iii) arising from or relating to
any of the Events set forth on Attachment I to the First
Amendment, (iv) arising prior to the date of the First
Amendment or (v) consisting of any deterioration in the
business substantially resulting from circumstances or trends
existing as of the date of the First Amendment or in the
results of operations or any consequential changes in financial
condition, in each case of Target and/or its Subsidiaries,
whether individually or in the aggregate; provided that this
clause (v) shall not be applicable in connection with Sections
2.1, 2.5, 2.6 and 2.16 of this Agreement, and
(b) when used with respect to Wildcat, any change or effect
that, individually or in the aggregate with all other changes
or effects, is or is reasonably likely to be materially adverse
to the business, operations, properties, financial condition,
assets, liabilities or prospects of Wildcat and its
Subsidiaries, taken as a whole, other than those relating to
the economy or securities markets in general or the industries
in which Wildcat and its Subsidiaries operate in general.".
SECTION 1.19. The following is hereby added to the end of the
definition of "Proxy Statement" in Section 7.1 of the Merger Agreement:
", and the additional proxy statement relating to the
solicitation of the adoption of the Merger Agreement as amended
by the First Amendment, which is also included in the Form S-4
(as amended).".
SECTION 1.20. The references to "Average Price" and "Wildcat
Cash Election" are hereby deleted from Section 7.1 of the Merger Agreement.
SECTION 1.21. The following is hereby added to the end of
Section 7.2 of the Merger Agreement:
"References to this Agreement shall be references to this
Agreement as amended or supplemented; provided, however, that
references "to the date hereof" or "the date of this Agreement"
shall be references to September 1, 2000 and references to the
date of the First Amendment shall be references to February 15,
2001.".
SECTION 1.22. Section 8.2 of the Merger Agreement is hereby
amended by deleting the second address paragraph under such Section and
replacing it with the following:
"and a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx Xxxxxx, Esq.
Xxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000".
ARTICLE II
SECTION 2.01. Merger Agreement. Except as amended hereby, the
provisions of the Merger Agreement shall remain in full force and effect
with no amendment or modification thereto other than as set forth herein.
SECTION 2.02. Entire Agreement; Third-Party Beneficiaries.
Other than the Merger Agreement (and subject to Section 8.4 thereof), this
First Amendment (a) constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter of this First
Amendment and (b) is not intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
SECTION 2.03. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE
INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICTS OF LAWS
PROVISIONS.
SECTION 2.04. Counterparts. This First Amendment may be
executed in two or more counterparts which together shall constitute a
single instrument and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties.
SECTION 2.05. Assignment. Neither this First Amendment nor any
of the rights, interest or obligations under this First Amendment shall be
assigned, in whole or in part, by operation of law or otherwise by any of
the parties hereto without the prior written consent of the other parties.
Any assignment in violation of the preceding sentence shall be void.
Subject to the preceding two sentences, this First Amendment will be
binding upon, inure to the benefit of, and be enforceable by, the parties
and their respective successors and assigns.
SECTION 2.06. Specific Performance. The parties agree that due
to the unique subject matter of this transaction, monetary damages will be
insufficient to compensate the non-breaching parties in the event of a
breach of any part of this First Amendment. Accordingly, the parties agree
that any non-breaching party shall be entitled (without prejudice to any
other right or remedy to which it may be entitled) to an appropriate decree
of specific performance, or an injunction restraining any violation of this
First Amendment or other equitable remedies to enforce this First Amendment
(without establishing the likelihood of irreparable injury or posting bond
or other security), and the breaching party waives in any action or
proceeding brought to enforce this First Amendment the defense that there
exists an adequate remedy at law.
SECTION 2.07. Jurisdiction. Each of the parties hereto (a)
consents to submit itself to the personal jurisdiction of any Federal court
located in the State of Delaware or any Delaware state court in the event
any dispute arises out of this First Amendment or any of the transactions
contemplated by this First Amendment, (b) agrees that it will not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court and (c) agrees that it will not bring any action
relating to this First Amendment or any of the transactions contemplated by
this First Amendment in any court other than a Federal court sitting in the
State of Delaware or a Delaware state court.
SECTION 2.08. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY OR AGAINST IT ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT,
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS FIRST AMENDMENT.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this First
Amendment to be executed, by their respective duly authorized officers, on
the date first above written.
WORLDCOM, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: General Counsel
WILDCAT ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title:
INTERMEDIA COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President and CEO
ATTACHMENT I
TO FIRST AMENDMENT
In re Digex, Inc. Shareholders Litigation
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(Consolidated Civil Action No. 18336 NC)
Xxxxxxxxxx v. Intermedia Communications Inc., et al.
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(Civil Action No. 0008844)
(Florida Circuit Court)
Attachment II
to First Amendment
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
DIGEX, INCORPORATED
DIGEX, INCORPORATED, a corporation organized and existing under
the laws of Delaware (the "Corporation"), hereby certifies that:
FIRST: The name of the corporation is DIGEX, INCORPORATED
SECOND: The following Article Twelfth of the Certificate of
Incorporation of the Corporation is hereby inserted in its entirety to read
as follows:
"TWELFTH: Transactions with Interested Stockholders.
-------
A. The Corporation will not, and will not permit, cause or suffer any
direct or indirect subsidiary of the Corporation to, enter into or
engage in any Transaction (as defined below) with or for the benefit
of any Interested Stockholder (as defined below) without (i) there
being in office two or more Independent Directors (as defined below)
and (ii) obtaining the prior written approval of at least a majority
of the Independent Directors then in office of such Transaction;
provided, that the prior written approval of at least a majority of
the Independent Directors shall not be required if (x) such
Transaction is first reviewed by the Independent Directors then in
office and their recommendation to the entire Board of Directors is
not to approve such Transaction and (y) despite such recommendation,
at least 66 2/3% of the entire Board of Directors (other than the
Independent Directors) determines in good faith, at a meeting duly
called pursuant to the By-laws of the Corporation, that such
Transaction is fair to the Corporation and its stockholders and the
reasons for such determination are set forth in the records of such
meeting. Such approval shall be in addition to any other approval
required by applicable law.
B. Certain Definitions. For purposes of this Article TWELFTH:
"INDEPENDENT DIRECTOR" means, with respect to any member of the Board
of Directors of the Corporation, a Director who is: (i) not (a) an
employee, agent or officer of an Interested Stockholder or any of its
subsidiaries (including the Corporation or any of its subsidiaries),
(b) a director of an Interested Stockholder or (c) the relative of
any of the foregoing; and (ii) does not have any direct or indirect
financial interest in an Interested Stockholder or any of its
subsidiaries that is material to such member.
"INTERESTED STOCKHOLDER" shall have the meaning provided in Section
203(c)(5) of the General Corporation Law of the State of Delaware
(the "DGCL"), as in effect as of February 15, 2001, without regard to
the proviso at the end of the first sentence thereof. Each of
WorldCom, Inc., and Intermedia Communications Inc. are Interested
Stockholders for purposes of this definition based on the facts in
existence as of February 15, 2001.
"TRANSACTION" shall mean any of the following:
(i) a transaction (or a series of related transactions)
involving the sale, lease or other transfer of assets,
products, property (tangible or intangible) or services
by any Interested Stockholder to the Corporation or any
direct or indirect subsidiary of the Corporation, or by
the Corporation or any direct or indirect subsidiary of
the Corporation to any Interested Stockholder, having a
value in excess of $1,000,000;
(ii) any merger or consolidation of the Corporation or any
direct or indirect subsidiary of the Corporation with or
into any Interested Stockholder;
(iii) the repurchase by the Corporation or any direct or
indirect subsidiary of the Corporation of any of its
capital stock or other securities from any Interested
Stockholder;
(iv) the issuance or transfer by the Corporation or any direct
or indirect subsidiary of the Corporation of any of its
capital stock or other securities to any Interested
Stockholder; and
(v) any other transaction that would constitute a business
combination under Section 203(c)(3)(i) - (iv) of the
DGCL.
C. In addition to any other vote of stockholders or the Board
of Directors of the Corporation required by law or this Certificate
of Incorporation, this Article TWELFTH may not be amended, altered or
modified without (i) (a) there being in office two or more
Independent Directors and (b) obtaining the prior written approval of
at least a majority of the Independent Directors then in office, and
(ii) a 66 2/3% affirmative vote of the holders of the Class A Common
Stock (excluding any such stock owned of record or beneficially,
directly or indirectly, by any Interested Stockholder), voting as a
separate class.
D. This Article TWELFTH shall cease to have any further force
and effect on February 15, 2004, or such earlier date on which the
only holders of the Corporation's Common Stock are Interested
Stockholders or their affiliates or associates (as defined under
Section 203(c)(1) and (c)(2), respectively, of the DGCL)."
THIRD: The foregoing amendment to the Certificate of
Incorporation of the Corporation was duly adopted by the Board of Directors
and the stockholders of the Corporation in accordance with the provisions
of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate
of Amendment to be signed by , this day of , 2001.
DIGEX, INCORPORATED
By:
-----------------------------
Name:
Title:
