1 Exhibit 10
FORM OF FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER
First Amendment to the Agreement and Plan of Merger
(hereinafter called this "Amendment"), dated as of August 20,
1996, among AT&T Capital Corporation, a Delaware corporation (the
"Company"), AT&T Corp., a New York corporation ("AT&T"), Hercules
Limited, a Cayman Island corporation ("Parent"), and Antigua
Acquisition Corporation, a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub").
RECITALS
WHEREAS, the Company, AT&T, Parent and Merger Sub
entered into the Agreement and Plan of Merger (the "Original
Agreement"), dated as of June 5, 1996;
WHEREAS, the Company, AT&T, Parent and Merger Sub wish
to amend the Original Agreement in the manner set forth herein;
WHEREAS, the respective boards of directors of each of
the Company, Parent and Merger Sub have approved this Agreement;
WHEREAS, the Company's board of directors and the
special committee of the Company's board of directors have
approved and submitted this Amendment to AT&T, as the indirect
owner of the AT&T Shares, for its consent, and AT&T has caused
to be executed a written stockholder consent pursuant to Section
228 of the DGCL (as defined below) approving this Amendment.
NOW, THEREFORE, in consideration of the premises, and
of the representations, warranties, covenants and agreements
contained herein, the parties hereto agree as follows:
Defined Terms. Unless otherwise defined herein,
capitalized terms which are defined in the Original Agreement are
used herein as therein defined.
2. Section 1.2. Section 1.2 of the Original
Agreement is hereby amended by deleting it in its entirety and
substituting in lieu thereof the following:
1.2 Closing. The closing of the Merger (the
"Closing") shall take place (i) at the offices of
Sullivan & Cromwell, 125 Broad Street, New York, New
York at 9:00 A.M. on the later of (A) October 1, 1996
and (B) the first business day on which the last to be
fulfilled or waived of the conditions set forth in
Article VII hereof (other than those conditions that
by their nature are to be satisfied at the Closing,
but subject to fulfilment or waiver of those
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conditions) shall be satisfied or waived in accordance
with this Agreement (the later of such dates being
referred to as the "Scheduled Closing Date");
provided, however, that Parent may at its option (the
"Extension Option") extend the Closing to a date later
than the Scheduled Closing Date as Parent shall
determine (but in no event later than October 31,
1996) by providing written notice of such later date
to the Company and AT&T not less than two business
days' prior to the Scheduled Closing Date and agreeing
to pay the Interest Amount referred to in Section
4.1(a) hereof (such agreement to be evidenced by the
delivery of such written notice); or (ii) at such
other place and time and/or on such other date as the
Company and Parent may agree in writing (the "Closing
Date").
3. Section 4.1(a) Section 4.1(a) of the
Original Agreement is hereby amended by deleting the phrase
"$45.00 (the "Merger Consideration")" at the end of the first
sentence thereof and substituting in lieu thereof the following:
the sum of (i) $45.00 and (ii) in the event (but only
in the event) that Parent exercises the Extension
Option referred to in Section 1.2 hereof, an
additional amount (the "Interest Amount") equal to
interest on such $45 amount for the period from and
including September 18, 1996 through but excluding the
Closing Date at a rate per annum (computed on the
basis of the actual number of days elapsed over a year
of 365 days) of LIBOR (as defined below) plus .50%
(the "Merger Consideration"). As used herein, "LIBOR"
means the London Interbank Offered Rate for deposits
of U.S. dollars having a maturity of one month which
appears on Telerate Access Service Page 3750 as of 11
A.M., London time, on the second business day
preceding the Closing Date.
4. Section 6.1(a)(ix) of the Original Agreement
is hereby amended by adding the following at the end of that
section:
or except for any agreement entered into in the
ordinary course of business relating to the purchase
of equipment by the Company from AT&T and the lease
thereof by the Company to customers of AT&T.
5. Section 6.17. Section 6.17 of the Original
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Agreement is hereby amended by deleting it in its entirety and
substituting in lieu thereof the following:
6.17 Funding Parent. Parent covenants that (i)
not later than June 12, 1996, Parent shall receive a
$100 million equity contribution and (ii) not later
than September 18, 1996, Parent shall receive an
additional $400 million equity contribution, in each
case in the form of cash or direct obligations of the
government of the United States of America
("Government Securities"). Parent covenants that it
shall utilize the proceeds of such equity
contributions to purchase Government Securities having
a maturity not later than one year after the date of
purchase or receipt thereof by Parent. Parent
covenants that it shall keep such proceeds so invested
(free of any Liens) until the Effective Time.
6. Continuing Effect of Agreement Except as
expressly amended herein, all of the terms and conditions of the
Original Agreement shall remain in full force and effect without
amendment.
7. Counterparts. This Amendment may be executed
in any number of counterparts, each such counterpart being deemed
to be an original instrument, and all such counterparts shall
together constitute the same agreement.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE
DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED,
CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE
STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, this Amendment has been duly
executed and delivered by the duly authorized officers of the
parties hereto as of the date first written above.
AT&T CAPITAL CORPORATION
By:
Name: Thomas C. Wajnert
Title: Chairman and Chief
Executive Officer
AT&T CORP.
By:
Name: S. Lawrence Prendergast
Title: Vice President and
Treasurer
HERCULES LIMITED
By:
Name: Jeff Nash
Title: Director
ANTIGUA ACQUISITION CORPORATION
By:
Name: Jeff Nash
Title: Vice President, Treasurer
and Secretary