Exhibit 99.2
EXECUTION VERSION
SECOND AMENDMENT, dated as of April 20, 2004 (this "Second
Amendment"), to the Stock Purchase Agreement, dated as of March 12, 2004, as
amended by that certain First Amendment, dated as of April 7, 2004 (as amended
by the First Amendment, the "Purchase Agreement"), by and among Telefonos de
Mexico, S.A. de C.V., a Mexican sociedad anonima de capital variable ("Buyer"),
WorldCom, Inc., a Georgia corporation (or its successor in interest following
the Effective Date) ("Parent"), MCI International, Inc., a Delaware corporation
(or its successor in interest following the Effective Date) ("MCII"), MCI
WorldCom International, Inc., a Delaware corporation (or its successor in
interest following the Effective Date) ("MCIWI"), and MCI WorldCom Brazil LLC, a
Delaware limited liability company (or its successor in interest following the
Effective Date) ("MCIWB" and, collectively with MCII and MCIWI, the "Sellers").
Each capitalized term used and not otherwise defined herein shall have the
meaning assigned to such term in the Purchase Agreement.
WHEREAS, pursuant to terms and subject to the conditions set forth in
the Purchase Agreement, the Sellers have agreed to sell to Buyer, and Buyer has
agreed to purchase from the Sellers, the Shares for the Purchase Price;
WHEREAS, the Chapter 11 Plan became effective on April 20, 2004 (the
"Effective Date"); and
WHEREAS, Buyer, Parent and the Sellers seek to amend the Purchase
Agreement as set forth herein in accordance with Section 8.03(a) of the Purchase
Agreement.
NOW THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendments to the Purchase Agreement.
(a) Section 1.01(a) of the Purchase Agreement is hereby amended to
add the following terms thereto in the appropriate alphabetic order:
"Deposit Return Date" means July 9, 2004, provided, that,
if on July 9, 2004 the conditions to Closing set forth in Section
6.01(c) and Section 6.02 have not been satisfied or waived by the
parties hereto, then the Deposit Return Date shall be extended until
the first Business Day thereafter on which such conditions set forth
in Section 6.01(c) and Section 6.02 shall have been satisfied or
waived.
"Outside Date" means July 8, 2005.
(b) Section 1.01(a) of the Purchase Agreement is hereby amended to
amend and restate the definition of "Alternate Proposal" as follows:
"Alternate Proposal" means any proposal or offer with
respect to the acquisition or other transfer of the Shares, the
Common Stock or the business of Embratel."
(c) Section 2.02(b) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"Buyer shall pay an amount in cash equal to U.S.
$400,000,000 (FOUR HUNDRED MILLION DOLLARS) (provided, however, that
if the Termination Fee Order is not entered by the Bankruptcy Court
by 6:00 p.m., New York City time on April 26, 2004, then the Buyer
shall have the right to reduce such amount to U.S. $360,000,000
(THREE HUNDRED SIXTY MILLION DOLLARS)), less all amounts paid by
Buyer to the Sellers pursuant to Section 5.01(f) hereof, to an
account designated in writing by the Sellers, not less than three (3)
Business Days prior to the Closing, by wire transfer of immediately
available funds (such amount to be paid at Closing, the "Purchase
Price")."
(d) Section 3.03(a) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"The execution, delivery and performance by Parent and each
Seller of this Agreement and the other Seller Documents and the
consummation by Parent and such Seller of the transactions
contemplated hereby and thereby require no action by or in respect
of, or filing with, any Governmental Entity, other than (i)
compliance with any applicable requirements of Laws, rules and
regulations governing antitrust or merger control matters, including,
without limitation, the filing with Conselho Administrativo de Defesa
Economica ("CADE") through ANATEL, (ii) compliance with any
applicable requirements of Law governing telecommunications matters
including, without limitation, the General Telecommunications Law
(the "GTL") and the General Grants Plan (the "GGP"), and receipt of
all requisite approvals of ANATEL, (iii) compliance with any
applicable requirements of any securities or takeover Laws, whether
domestic or foreign, including, without limitation. Article 254-A of
the BCL and Rule 361 of March 5, 2002 of the CVM, (iv) filings with
the applicable Boards of Trade of amendments to the articles of
association of each of the Companies in order to assign and transfer
the Shares, (v) approval by the Bankruptcy Court of this Agreement
and the transactions contemplated hereby, (vi) approval by the U.S.
Federal Communication Commission (the "FCC") in connection with the
assignment to Buyer of termination of Embratel's authorization by the
FCC under Section 214 of the Communications Act of 1934, as amended,
and (vii) any actions or filings the absence of which would not
materially impair the ability of Parent or such Seller to consummate
the transactions contemplated by this Agreement."
(e) Section 4.03(a) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
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"The execution, delivery and performance by Buyer of this
Agreement and the other Buyer Documents and the consummation by Buyer
of the transactions contemplated hereby and thereby require no action
by or in respect of, or filing with, any Governmental Entity, other
than (i) compliance with any applicable requirements of Laws, rules
and regulations governing antitrust or merger control matters,
including, without limitation, the filing with CADE through ANATEL,
(ii) compliance with any applicable requirements of Law governing
telecommunications matters including, without limitation, the GTL and
the GGP, and receipt of all requisite approvals of ANATEL, (iii)
compliance with any applicable requirements of any securities or
takeover Laws, whether domestic or foreign, including, without
limitation. Article 254-A of the BCL and Rule 361 of March 5, 2002 of
the CVM, (iv) filings with the applicable Boards of Trade of
amendments to the articles of association of each of the Companies in
order to assign and transfer the Shares, (v) approval by the FCC in
connection with the assignment to Buyer or termination of Embratel's
authorization by the FCC under Section 214 of the Communications Act
of 1934, as amended, and (vi) any actions or filings the absence of
which would not materially impair the ability of Buyer to consummate
the transactions contemplated by this Agreement."
(f) Section 5.01(f) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"As an added inducement to Parent and the Sellers to enter
into this Agreement with Buyer, the parties hereto intend and have
agreed that Buyer shall make certain payments to the Sellers in the
event that the regulatory approvals required in order to consummate
the transactions contemplated hereby are delayed or not obtained or
injunctions in respect of the granting thereof are issued. Consistent
therewith, (i) on the first Business Day following the date of this
Agreement, Buyer shall pay an amount in cash equal to U.S.
$20,000,000 (TWENTY MILLION DOLLARS) to an account of the Sellers
designated by the Sellers, by wire transfer of immediately available
funds, and (ii) on the second Business Day following the date the
Sale Order is entered by the Bankruptcy Court, Buyer shall pay an
additional amount in cash equal to U.S. $30,000,000 (THIRTY MILLION
DOLLARS) to an account of the Sellers designated by the Sellers, by
wire transfer of immediately available funds. In the event that this
Agreement is validly terminated by (x) Buyer pursuant to Section
7.01(b) (but only if the order, decree, ruling or other action issued
or taken by such Governmental Entity is of a non-regulatory nature
(which, for purposes hereof, shall mean that such order, decree,
ruling or other action does not arise out of, relate to or concern
antitrust, competition or telecommunications matters)) or Sections
7.01(d), (i) or (j) hereof, or (y) Parent or the Sellers pursuant to
Sections 7.01(b) (but only if the order, decree, ruling or other
action issued or taken by such Governmental Entity is of a
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non-regulatory nature (which, for purposes hereof, shall mean that
such order, decree, ruling or other action does not arise out of,
relate to or concern antitrust, competition or telecommunications
matters)) or Sections 7.01(e) or (g), then the Sellers shall pay to
Buyer promptly (but in any event within ten (10) Business Days)
following such termination all amounts previously paid by Buyer to
the Sellers pursuant to this Section 5.01(f). In addition, in the
event that this Agreement is validly terminated by Buyer pursuant to
Section 7.01(k) hereof on or before the Deposit Return Date, then the
Sellers shall pay to Buyer promptly (but in any event within ten (10)
Business Days) following such termination all amounts previously paid
by Buyer to the Sellers pursuant to this Section 5.01(f).
Notwithstanding anything to the contrary in this Agreement, until all
requisite regulatory approvals are obtained and the Closing shall
have occurred, the Sellers shall continue to exercise full and
exclusive control of the Companies and New Startel."
(g) Section 5.08(d) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"Buyer, Parent and the Sellers shall cooperate with filing
and prosecuting the Sale Motion and the Termination Fee Motion and
obtaining entry of the Sale Order and the Termination Fee Order, and
Parent and the Sellers shall deliver to Buyer prior to filing, and as
early in advance as is practicable to permit adequate and reasonable
time for Buyer and its counsel to review and comment, copies of all
proposed pleadings, motions, notices, statements, schedules,
applications, reports and other papers to be filed by Parent or the
Sellers in connection with the Sale Motion or the Termination Fee
Motion and the relief requested therein."
(h) Section 5.08(e) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"The Sellers shall use all commercially reasonable efforts
to seek and obtain prompt Bankruptcy Court approval of the Sale Order
and the Termination Fee Order."
(i) Section 5.14 of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"No Solicitation. Parent and each Seller shall not, and
shall cause its officers, directors, employees, agents and
representatives (collectively, the "Representatives") not to (i)
solicit or initiate any inquiries regarding the submission of any
Alternate Proposal, (ii) participate in any discussions or
negotiations regarding, or furnish to any Person any information with
respect to, any Alternate Proposal or (iii) enter into any agreement
with respect to any Alternate Proposal or approve any Alternate
Proposal. Upon execution of this Agreement, Parent and each Seller
shall, and shall cause its Representatives to, immediately cease any
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existing activities, discussions, or negotiations with any parties
conducted heretofore with respect to any of the foregoing. Parent and
the Sellers shall notify Buyer promptly (but in any event within 24
hours) after receipt or occurrence of an Alternate Proposal. In
addition, Parent and the Sellers shall promptly (but in any event
within 24 hours) after receipt thereof, provide to Buyer copies of
any written documentation received by Parent, the Sellers or their
Representatives in connection with any such Alternate Proposal."
(j) The Purchase Agreement is hereby amended to add the following as
Section 5.17:
"MCITB License. Notwithstanding anything to the contrary in
this Agreement, neither Parent nor the Sellers will be required to
effect the Closing unless and until MCI Telecomunicacoes do Brasil
Ltda. ("MCITB") shall have received a license to provide multimedia
communications services (Servico de Comunicacao Multimidia) in Brazil
(the "SCM License") from ANATEL; provided, however, that for purposes
of this Agreement, MCITB shall be deemed to have received the SCM
License if Buyer, Parent and the Sellers enter into an arrangement
reasonably satisfactory to Buyer, Parent and the Sellers that allows
Parent and the Sellers lawfully to utilize Buyer's multimedia
communications services license(s) in Brazil until such time as the
SCM License is issued; provided further, however, that the failure of
MCITB to receive the SCM License from ANATEL shall at no time give
rise to a right of Parent or the Sellers to terminate this Agreement.
Notwithstanding anything to the contrary in this Agreement, for
purposes of Section 5.01(f), the failure to obtain the SCM License
shall be deemed to be of a non-regulatory nature."
(k) The Purchase Agreement is hereby amended to add the following as
Section 5.18:
"Termination Fee Order. Not later than April 21, 2004,
Parent and the Sellers shall file a motion (the "Termination Fee
Motion"), in form and substance reasonably acceptable to Buyer, with
the Bankruptcy Court seeking approval and entry of an order (the
"Termination Fee Order"), in form and substance reasonably acceptable
to Buyer, approving the Termination Fee on the terms set forth in
Section 7.02(b)."
(l) Section 6.01(c) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"the Bankruptcy Court shall have entered the Sale Order, in
form and substance reasonably acceptable to Buyer, which, among other
things, shall have authorized and directed the Sellers to assign and
transfer to Buyer the Shares free and clear of all Encumbrances and
such Sale Order shall not be subject to any stay issued by the
Bankruptcy Court or any other court of competent jurisdiction."
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(m) Section 6.02(a) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"the Sellers shall have performed in all material respects
all of their respective obligations hereunder required to be
performed by them at or prior to the Closing Date;"
(n) Section 7.01(f) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"[INTENTIONALLY OMITTED];"
(o) Section 7.01(j) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"by Buyer, if Parent or the Sellers breach the covenants
contained in Section 5.08(e) or Section 5.14;"
(p) Section 7.02 of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"Effect of Termination.
(a) Except as set forth in Section 7.01(b), if this
Agreement is terminated pursuant to Section 7.01, this Agreement
shall become void and of no effect with no liability on the part of
any party (or any shareholder, director, officer, employee, agent,
consultant, representative or Affiliate of such party) to the other
party hereto; provided that nothing in this Section 7.02 shall (i)
relieve Buyer or the Sellers of any liability for a breach of this
Agreement prior to the date of termination or relieve either party
from its obligation to make any payments to the extent provided in
Section 5.01(f) or (ii) require the Sellers to return any payments
theretofore made by Buyer other than in accordance with Section
5.01(f) hereof; provided further that in the event that this
Agreement is validly terminated pursuant to Section 7.01 hereof under
circumstances where the Sellers are not required to return to Buyer
any of the amounts specified in Section 5.01(f), then none of the
parties hereto shall have any further liability hereunder (other than
the obligations of Parent and the Sellers pursuant to Section
7.01(b)). The damages recoverable by the non-breaching party shall
include all attorneys' fees reasonably incurred by such party in
connection with the transactions contemplated hereby. The provisions
of Section 5.01(f), Section 7.01 and this Section 7.02, and of
Article 8 and the Confidentiality Agreement shall survive any
termination hereof pursuant to Section 7.01.
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(b) If at any time after the Bankruptcy Court enters the
Termination Fee Order, (i)(A) the Buyer terminates this Agreement
pursuant to Section 7.01(i) or (B) Parent or the Sellers terminate
this Agreement pursuant to Section 7.01(g) and (ii) at any time prior
to the date that is twelve (12) months after the date of such
termination, Parent or the Sellers enter into an agreement with
respect to, or consummate, an Alternate Proposal, then Parent or the
Sellers shall promptly (and in any event within two (2) Business
Days) pay to Buyer an amount equal to U.S. $12,200,000 (TWELVE
MILLION, TWO HUNDRED THOUSAND DOLLARS) (the "Termination Fee") by
wire transfer of immediately available funds."
(q) Section 2 of Schedule 6.02(e) to the Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"Consents and Approvals. No consent, approval or
authorization of, or declaration, filing or registration with, any
Governmental Entity shall be required to be made or obtained by
Embratel or any of its material Subsidiaries in connection with the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, other than (i)
compliance with any applicable requirements of Laws, rules and
regulations governing antitrust or merger control matters, including,
without limitation, the filing with CADE through ANATEL, (ii)
compliance with any applicable requirements of Law governing
telecommunications matters including, without limitation, the GTL and
the GGP, and receipt of all requisite approvals of ANATEL, (iii)
compliance with any applicable requirements of any securities or
takeover Laws, whether domestic or foreign, including, without
limitation, Article 254-A of the BCL and Rule 361 of March 5, 2002 of
the CVM, (iv) compliance with any applicable requirements of the
Central Bank of Brazil, (v) filings with the applicable Boards of
Trade of amendments to the articles of association of each of the
Companies in order to assign and transfer the Shares, and (vi)
approval by the FCC in connection with the assignment to Buyer or
termination of Embratel's authorization of the FCC under Section 214
of the Communications Act of 1934, as amended."
Section 2. Governing Law. This Second Amendment shall be governed by
and construed in accordance with the Law of the State of New York, without
regard to the conflicts of law rules of such state.
Section 3. Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
Section 4. Counterparts; Effectiveness. This Second Amendment may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Second Amendment shall become effective on the date of its
execution by the parties hereto in the City of New York.
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Section 5. Effect of Amendment. Except as expressly amended by this
Second Amendment, the Purchase Agreement shall remain in full force and effect
as the same was in effect immediately prior to the effectiveness of this Second
Amendment. All references in the Purchase Agreement to "this Agreement" shall be
deemed to refer to the Purchase Agreement as amended by this Second Amendment.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
TELEFONOS DE MEXICO, S.A. DE C.V.
By: /s/ Sergio Rodriguez Molleda
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Name: Sergio Rodriguez Molleda
Title: Deputy General Counsel
MCI, INC.
(as successor in interest to WorldCom, Inc.)
By: /s/ Anastasia D. Kelly
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Name: Anastasia D. Kelly
Title: General Counsel
MCI INTERNATIONAL, INC.
By: /s/ Jennifer C. McGarey
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Name: Jennifer C. McGarey
Title: Secretary
MCI WORLDCOM INTERNATIONAL, INC.,
By: /s/ Jennifer C. McGarey
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Name: Jennifer C. McGarey
Title: Secretary
MCI WORLDCOM BRAZIL LLC
By: /s/ Jennifer C. McGarey
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Name: Jennifer C. McGarey
Title: Secretary