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Document Preview Agreement and Plan of Merger |
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Title: |
Agreement and Plan of Merger |
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Entities: |
AT&T Corp.; AT&T Latin America Corp.; Chase Manhattan Bank; CIBC World Markets Corp.; Debevoise & Plimpton |
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Date: |
2000 |
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Size: |
Preview shows 17KB of 701KB total |
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Price: |
$82 |
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ID: |
#340276 |
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AGREEMENT AND PLAN OF MERGER
AMONG
AT&T CORP.,
KIRI INC.,
FRANTIS, INC.
AND
FIRSTCOM CORPORATION
DATED AS OF NOVEMBER 1, 1999
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
----
{S} {C} {C}
ARTICLE I THE MERGER............................................................ 2
1.1. The Merger.................................................. 2
1.2. Closing..................................................... 2
1.3. Effective Time of the Merger................................ 2
1.4. Certificate of Incorporation and By-Laws.................... 2
1.5. Directors; Officers......................................... 2
ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
CORPORATIONS; EXCHANGE OF CERTIFICATES........................................ 2
2.1. Effect on Capital Stock..................................... 2
2.2. Delivery of Certificates.................................... 3
2.3. Company Stock Options....................................... 5
ARTICLE III REPRESENTATIONS AND WARRANTIES...................................... 6
3.1. Representations and Warranties of the Company............... 6
3.2. Representations and Warranties of Parent.................... 16
ARTICLE IV COVENANTS............................................................ 19
4.1. No Solicitation............................................. 19
4.2. Conduct of Business......................................... 20
4.3. Filings; Other Action....................................... 24
4.4. Access to Information; Pre-Closing Review................... 24
4.5. Publicity................................................... 25
4.6. Further Action.............................................. 25
4.7. Insurance; Indemnity........................................ 26
4.8. Shareholder Approval; Preparation of Proxy Statement........ 26
4.9. Certain Tax Matters......................................... 27
4.10. Senior Notes................................................ 27
4.11. Ancillary Agreements........................................ 28
4.12. Netstream Purchase Price Adjustment......................... 28
4.13. Conduct of Business of RV and Netstream..................... 28
4.14. RV Public Shares............................................ 30
4.15. Credit Facility............................................. 30
ARTICLE V CONDITIONS............................................................ 30
5.1. Conditions to Each Party's Obligations...................... 30
Additional Conditions to Obligations of Parent, RV and
5.2. Merger Sub.................................................. 31
5.3 Additional Conditions to Obligations of the Company......... 32
ARTICLE VI TERMINATION.......................................................... 33
6.1. Termination................................................. 33
6.2. Effect of Termination....................................... 34
{/TABLE}
i
{PAGE} 3
{TABLE}
{CAPTION}
PAGE
----
{S} {C} {C}
ARTICLE VII GENERAL PROVISIONS.................................................. 34
7.1. Nonsurvival of Representations and Warranties............... 34
7.2. Amendment................................................... 34
7.3. Extension; Waiver........................................... 34
7.4. Notices..................................................... 35
7.5. Assignment; Binding Effect.................................. 35
7.6. Entire Agreement............................................ 35
7.7. Fees and Expenses........................................... 35
7.8. Governing Law............................................... 36
7.9. Headings.................................................... 36
7.10. Interpretation.............................................. 36
7.11. Investigations.............................................. 36
7.12. Severability................................................ 36
7.13. Enforcement of Agreement.................................... 37
7.14. Counterparts................................................ 37
Schedule A Definitions
Exhibit A Certificate of Incorporation and By-Laws of RV and of Merger Sub
Exhibit B Form of RV Board Policy
Exhibit C-1 Forms of Amended and Restated Certificate of Incorporation of RV
Exhibit C-2 Form of Amended and Restated By-Laws of RV
Exhibit D Form of Service Mark License Agreement
Exhibit E Form of RV Agreement
Exhibit F Terms of Credit Facility
Exhibit G Form of Certificate of Designation
Annex A Representation Letters
{/TABLE}
ii
{PAGE} 4
AGREEMENT AND PLAN OF MERGER, dated as of November 1, 1999 ("Agreement"),
among AT&T Corp., a New York corporation ("Parent"), Kiri Inc., a Delaware
corporation ("RV"), Frantis, Inc., a Delaware corporation and wholly-owned
subsidiary of RV ("Merger Sub"), and FirstCom Corporation, a Texas corporation
(the "Company"). Certain capitalized terms used herein are defined in Schedule A
attached hereto.
RECITALS
A. Each of Parent, RV, Merger Sub and the Company desire to enter into the
business combination transaction described herein, in which the Company would
merge with and into Merger Sub (the "Merger").
B. The Boards of Directors of Parent and the respective Boards of Directors
or shareholders (as the case may be) of each of RV and Merger Sub have duly
adopted resolutions approving the transactions contemplated hereby.
C. The Board of Directors of the Company, acting on the recommendation of a
special committee of independent directors, has approved this Agreement and the
Merger, has determined by unanimous resolution that the Merger is in the best
interests of the Company and its shareholders and intends to recommend to the
shareholders of the Company that they vote to approve the Merger.
D. Concurrently with the execution of this Agreement and as a condition and
inducement to Parent's willingness to enter into this Agreement, certain
shareholders of the Company have entered into a voting agreement, dated as of
the date hereof (the "Voting Agreement"), among Parent and the several
shareholders named therein, providing, among other things, that such
shareholders will vote in favor of the Merger.
E. JAMTIS, Inc., a Delaware corporation ("Jamtis"), and an indirect
wholly-owned subsidiary of Parent, has entered into agreements (the "Netstream
Acquisition Agreements") to acquire quotas (the "Netstream Shares") representing
100% of the outstanding equity interest in Netstream Telecom Ltda., a Brazilian
company ("Netstream").
F. Parent intends to cause Jamtis to merge with a wholly-owned subsidiary
of RV, such that, following such merger, (i) Jamtis will be a direct
wholly-owned subsidiary of RV, and (ii) Netstream will be an indirect
wholly-owned subsidiary of RV.
G. Pursuant to the Netstream Acquisition Agreements, Promon Tecnologia
S.A., a Brazilian corporation (sociedade anonima) (together with its affiliates,
"Promon") has agreed to purchase, prior to the Closing a 10% interest in the
capital of RV, in the form of RV Class A Shares.
H. Each of Parent, RV, Merger Sub and the Company intend that the Merger
qualify as a reorganization within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "Code").
I. Each of Parent, RV, Merger Sub and the Company intend that, immediately
following the Effective Time, on a fully-diluted basis, (i) the former
shareholders of the Company will own, collectively, approximately 34% of the
shares of common stock of RV, in the form of RV Class A Common Stock or RV
Preferred Stock, as the case may be, (ii) Promon will own, directly or
indirectly, approximately 6% of the shares of common stock of RV, in the form of
RV Class A Common Stock, and (iii) Parent will own, directly or indirectly,
approximately 60% of the shares of common stock of RV, in the form of RV Class B
Common Stock (as defined herein).
{PAGE} 5
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
1.1. The Merger. On the terms and subject to the conditions set forth in
this Agreement, and in accordance with applicable state corporation laws, the
Company shall be merged with and into Merger Sub at the Effective Time (as
defined in Section 1.3 below). Upon the Effective Time, the separate existence
of the Company shall cease, and Merger Sub shall continue as the surviving
corporation (the "Surviving Corporation").
1.2. Closing. Unless this Agreement shall have been terminated pursuant to
Section 6.1, and subject to the satisfaction or waiver of the conditions set
forth in Article V, the closing of the Merger (the "Closing") shall take place
as promptly as practicable (and in any event within two business days) following
satisfaction or waiver of the conditions set forth in Article V (the "Closing
Date"), at the offices of Debevoise & Plimpton, 875 Third Avenue, New York, New
York 10022, unless another date or place is agreed to in writing by the parties
hereto.
1.3. Effective Time of the Merger. As soon as practicable following the
satisfaction or waiver of the conditions set forth in Article V, the Surviving
Corporation shall file a certificate of merger (the "Certificate of Merger")
executed in accordance with the relevant provisions of the Delaware General
Corporation Law ("DGCL"). The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Secretary of State of the State of
Delaware, or at such other time thereafter as is provided in the Certificate of
Merger (the "Effective Time").
1.4. Certificate of Incorporation and By-Laws. The Articles of
Incorporation and By-Laws of Merger Sub as in effect immediately prior to the
Effective Time shall be the Articles of Incorporation and By-Laws of the
Surviving Corporation following the Merger, until amended in accordance with the
DGCL.
1.5. Directors; Officers. (a) The directors of Merger Sub at the Effective
Time shall be the initial directors of the Surviving Corporation, until the
earlier of their resignation or removal or until their respective successors are
duly elected and qualified, as the case may be.
(b) The officers of Merger Sub at the Effective Time shall be the officers
of the Surviving Corporation, until the earlier of their resignation or removal
or until their respective successors are duly elected and qualified, as the case
may be.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
2.1. Effect on Capital Stock. As of the Effective Time, by virtue of the
Merger and without any further act or deed on the part of Parent, RV, Merger
Sub, the Company or any holder of any of the following securities:
(a) Common Stock of the Company. Each issued and outstanding share of
common stock, par value $0.001 per share, of the Company (together with any
rights appurtenant thereto, "Company Common Stock") shall be converted into
the right to receive one fully paid and non-
2
{PAGE} 6
assessable share of Class A common stock, par value $0.01 per share, of RV
("RV Class A Common Stock").
(b) Preferred Stock of the Company. Each issued and outstanding share
of Series A convertible preferred stock, par value $0.001 per share, of the
Company ("Preferred Stock") shall be converted into the right to receive
one fully paid and non-assessable share of Series A convertible preferred
stock, par value $0.001 per share, of RV ("RV Preferred Stock").
2.2. Delivery of Certificates. (a) Exchange Agent; Exchange Fund. As of
the Effective Time, Parent and the Company shall cause to be deposited, with a
bank or trust company designated by Parent (and reasonably acceptable to the
Company) (the "Exchange Agent"), for exchange in accordance with this Article
II, through the Exchange Agent, for the benefit of the holders of shares of
Company Common Stock, certificates representing the shares of RV Class A Common
Stock issuable pursuant to Section 2.1 in exchange for issued and outstanding
shares of Company Common Stock. All of such deposited certificates representing
shares of RV Class A Common Stock, collectively, together with any dividends or
distributions with respect thereto, are referred to hereinafter as the "Exchange
Fund."
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time, Parent shall instruct the Exchange Agent to mail to each holder
of record of a certificate or certificates which immediately prior to the
Effective Time represented outstanding shares of Company Common Stock
(collectively, the "Certificates"), (i) a letter of transmittal (which shall
specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon proper delivery of the Certificates to the
Exchange Agent and shall be in form and have such other provisions as Parent and
the Company may reasonably specify) and (ii) instructions to effect the
surrender of the Certificates in exchange for certificates representing shares
of RV Class A Common Stock. Upon surrender of one or more Certificates for
cancellation to the Exchange Agent together with such letter of transmittal,
duly executed, and such other customary or other reasonable documents as may be
required pursuant to such instructions, the holder of such Certificates shall be
entitled to receive in exchange therefor a certificate representing that number
of whole shares of RV Class A Common Stock which such holder has the right to
receive in respect of the Certificates surrendered by such holder pursuant to
the provisions of this Article II, and the Certificates so surrendered shall
forthwith be cancelled. In the event of transfer of ownership of Company Common
Stock which is not registered in the transfer of records of the Company, a
certificate representing the proper number of shares of RV Class A Common Stock
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