EXHIBIT 2.2
Amendment, dated as of December 23, 1998, by and among American Tower
Corporation, a Delaware corporation ("ATC"), American Towers, Inc., a Delaware
corporation ("ATI"), ATC Merger Corporation, a Delaware corporation ("ATMC"),
and TeleCom Towers, L.L.C., a Delaware limited liability company ("TCT"), to the
Amended and Restated Agreement and Plan of Merger, dated as of December 18,
1998, by and among ATC, ATI, ATMC and TCT.
W I T N E S S E T H:
WHEREAS, ATC, ATI and TCT are parties to an Amended and Restated
Agreement and Plan of Merger, dated as of December 18, 1998 (the "Merger
Agreement"), providing for the merger of ATMC with and into TCT on the terms and
conditions set forth therein; and
WHEREAS, ATC, ATI, ATMC and TCT desire to amend the Merger Agreement in
certain respects; and
WHEREAS, the Boards of Directors of ATC, ATI and ATMC and the
Management Committee of TCT and the TCT Members have heretofore authorized the
officers of such companies to enter into amendments to the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained and other
valuable consideration, the receipt and adequacy whereof are hereby
acknowledged, the parties hereto hereby, intending to be legally bound,
represent, warrant, covenant and agree as follows:
1. DEFINED TERMS
As used herein, unless the context otherwise requires, the terms
defined in Appendix A to the Merger Agreement when used in this Amendment
without definition shall have the respective meanings set forth therein. Terms
defined in the singular shall have a comparable meaning when used in the plural,
and vice versa, and the reference to any gender shall be deemed to include all
genders. Unless otherwise defined or the context otherwise clearly requires,
terms for which meanings are provided in this Amendment or Appendix A to the
Merger Agreement shall have such meanings when used in each Collateral Document
executed or required to be executed pursuant hereto or thereto or otherwise
delivered, from time to time, pursuant hereto or thereto. References to
"hereof," "herein" or similar terms are intended to refer to this Amendment as a
whole and not a particular section, and references to "this Section" or "this
Article" are intended to refer to the entire section or article and not a
particular subsection thereof. The term "either party" shall, unless the context
otherwise requires, refer to ATC, ATI and ATMC, on the one hand, and TCT, on the
other hand.
2. THE AMENDMENTS
(a) Conversion of TCT Units. Section 3.1 of the Merger
Agreement shall be amended as follows:
(i) The title shall be amended to read in its
entirety as follows: "Conversion of ATMC Common Stock and TCT
Units";
(ii) The last sentence of the first paragraph shall
be amended to delete the last word, "paragraph" and insert in
its place the words "two paragraphs"; and
(iii) The following paragraph shall be added as the
penultimate paragraph of Section 3.1:
In the event the Monthly Tower Revenue Run
Rate of TCT for the month ended immediately prior to
the Closing Date shall have been less than the TCT
Target Monthly Tower Revenue Run Rate, the ATC Stock
Consideration shall be reduced by a number of shares
of ATC Common Stock determined as follows: (i) the
difference between the actual Monthly Tower Revenue
Run Rate of TCT and the TCT Target Monthly Tower
Revenue Run Rate shall be determined (the "Revenue
Shortfall"); (ii) the Revenue Shortfall shall be
multiplied by twelve (12), and the result shall be
multiplied by fourteen and eight-tenths (14.8) (the
"Enterprise Value Shortfall"); and (iii) the
Enterprise Value Shortfall shall be divided by the
Closing Date Share Price; provided, however, that in
no event shall the number of shares of ATC Common
Stock to be delivered as part of the ATC Stock
Consideration be reduced by more than 600,000 shares
of ATC Common Stock. The term "TCT Target Monthly
Tower Revenue Run Rate" shall mean the amount set
forth opposite the month in which the Closing shall
occur:
Month in which TCT Target
Closing Occurs Revenue Run Rate
-------------- ----------------
January $1,008,179
February $1,022,862
March $1,037,544
April $1,052,226
May $1,067,132
June $1,079,143
July and thereafter $1,091,378
In the event that the Closing shall occur after June
1999, the Monthly Tower Revenue Run Rate of TCT shall
be determined exclusively on the basis of its Monthly
Tower Revenue Run Rate as of June 30, 1999, and no
adjustment to the ATC Stock Consideration shall be
made under this Section 3.1 on account of the amount
of TCT's Monthly Tower Revenue Run Rate as of a date
later than June 30, 1999.
Anything in this Section to the contrary
notwithstanding, the parties shall have the right to
terminate this Agreement in accordance with the
provisions of Section 8.1(b) and Section 8.1(c), as
applicable.
(b) Conditions to Obligations of ATC and ATMC. The provisions
of Section 7.2(o) are deleted in their entirety and the section shall
be designated with the term "Intentionally Omitted".
(c) Appendix A. Appendix A is amended to add the following
definitions in their appropriate alphabetical order:
Enterprise Value Shortfall shall have the meaning
given to it in Section 3.1.
Revenue Shortfall shall have the meaning given to it
in Section 3.1.
TCT Target Monthly Tower Revenue Run Rate shall have
the meaning given to it in Section 3.1.
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(d) TCT Disclosure Schedule. Sections 4.11(a) and 6.6 of the
TCT Disclosure Schedule shall be deemed to have been amended to reflect
the fact that TCT may change its stay bonus program to award up to
$500,000 exclusively to sales persons in relation to their obtaining
additional revenue-generating leases and contracts.
3. GENERAL PROVISIONS
(a) No Other Changes in Merger Agreement. Except as
specifically amended by this Amendment, the Merger Agreement shall
remain in full force and effect and shall not otherwise be amended,
modified or changed by this Amendment.
(b) Incorporation by Reference. The provisions of Sections
10.1 through 10.13, both inclusive, of the Merger Agreement shall be
deemed incorporated herein by reference with the same force and effect
as though set forth hereat in their entirety, except that any reference
to the term "this Agreement" in any such incorporated provision shall
be deemed to refer to this Amendment.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Amendment or caused
this Amendment to be executed by their respective officers thereunto duly
authorized as of the date first written above.
American Tower Corporation
By: ____________________________________
Name:
Title:
ATC Merger Corporation
By: ____________________________________
Name:
Title:
American Towers, Inc.
By:______________________________________
Name:
Title:
TeleCom Towers, L.L.C.
By:______________________________________
Name:
Title:
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