EXHIBIT 2.8
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VOTING AGREEMENT
among
AT&T CORP., a New York corporation,
KIRI INC., a Delaware corporation,
▇▇▇▇▇▇▇▇ ▇. Northland, an individual
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual
Dated as of November 1, 1999
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VOTING AGREEMENT dated as of November 1, 1999, between AT&T
Corp., a New York corporation ("PARENT"), Kiri Inc., a Delaware corporation
("RV"), ▇▇. ▇▇▇▇▇▇▇▇ ▇. Northland, an individual, ▇▇.▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an
individual, and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual (each of such individuals, a
"SHAREHOLDER" and such individuals, collectively, the "SHAREHOLDERS").
A. Parent, RV, Frantis Inc., a Delaware corporation ("MERGER
SUB") and FirstCom Corporation, a Texas corporation (the "COMPANY"), propose to
enter into an Agreement and Plan of Merger dated as of the date hereof (as the
same may be amended or supplemented, the "MERGER AGREEMENT") providing for the
merger of the Company with and into Merger Sub (the "MERGER");
B. Each Shareholder owns, or is the trustee of a trust which
owns, or controls a corporation that is the general partner of a limited
partnership which owns, beneficially and of record, the number of shares of
common stock of the Company ("COMMON STOCK") set forth opposite the name of such
Shareholder on Schedule A hereto (all of such shares of Common Stock, together
with any other shares of capital stock of the Company acquired by any of such
Shareholders, or any trust, corporation, partnership or other legal entity
controlled by any of such Shareholders, after the date hereof and during the
term of this Agreement (including, without limitation through the exercise of
any stock options, warrants or similar instruments), being collectively referred
to herein as the "SUBJECT SHARES");
C. As an essential condition and inducement to their
willingness to enter into the Merger Agreement, Parent and RV have requested
that each Shareholder enter into this Agreement, and each Shareholder has agreed
to do so; and
D. Capitalized terms used herein without definition shall have
the respective meanings specified in the Merger Agreement.
NOW, THEREFORE, to induce Parent and RV to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the representations, warranties, covenants and agreements contained herein,
the parties hereto hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
Shareholder hereby, severally and not jointly, represents and warrants to Parent
and RV as of the date hereof in respect of himself as follows:
(a) AUTHORITY. The Shareholder has all requisite capacity and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed
and delivered by the Shareholder and (assuming this Agreement
constitutes a valid and binding obligation of Parent and of RV)
constitutes the valid and binding obligation of the Shareholder
enforceable against such Shareholder in accordance with its terms.
Neither the execution and delivery by the Shareholder of this Agreement
nor the due performance by the Shareholder of the actions and
obligations contemplated hereby will violate or conflict in any
material respect with, result in a breach
of any material provision of or constitute a default under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
deed of trust, trust agreement, license, franchise, permit, lease,
contract, agreement or other instrument, commitment, judgment, order,
notice, decree, statute, law, ordinance, rule, regulation or obligation
to which the Shareholder is a party or by which the Shareholder or any
of the Shareholder's property or assets is or may be bound. If the
Shareholder is married and the Shareholder's Subject Shares constitute
community property or if this Agreement otherwise requires spousal or
other approval in order to be legal, valid and binding on the
Shareholder, this Agreement has also been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, the
Shareholder's spouse, enforceable against such spouse in accordance
with its terms. The execution and delivery of this Agreement by the
Shareholder, and timely the fulfillment by the Shareholder of his
obligations hereunder, do not and will not require the consent or
approval of any other natural or legal person. Within five days after
the date hereof, each Shareholder shall execute and deliver a power of
attorney in favor of such Shareholder's spouse or in favor of at least
one other Shareholder with respect to the matters covered by Sections
3(a) and (b) in the event of incapacity or absence of such Shareholder
shall deliver promptly to Parent a true and correct copy of such power
of attorney.
(b) THE SUBJECT SHARES. The Shareholder is the record and
beneficial owner of (or is trustee of a trust that is the record holder
of, and whose beneficiaries are the beneficial owners of, or controls
the general partner of a limited partnership that is the record and
beneficial owner of), and has good and marketable title to, the Subject
Shares set forth opposite his name on Schedule A hereto, and, except as
set forth on Schedule 1(b), such Subject Shares are free and clear of
any claims, liens, encumbrances and security interests whatsoever. The
Shareholder does not own, of record or beneficially, directly or
indirectly, any shares of capital stock of the Company other than the
Subject Shares set forth opposite his or its name on Schedule A
attached hereto. The Shareholder has the sole right to vote, or to
direct the vote of, such Subject Shares, and none of such Subject
Shares is subject to any voting trust or other agreement, arrangement
or restriction with respect to the voting of such Subject Shares,
except as contemplated by this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF PARENT AND RV. Each of
Parent and RV hereby represents and warrants to each Shareholder as follows:
(a) AUTHORITY. It has all requisite power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by it and (assuming this Agreement
constitutes the valid and binding obligation of each of the other
parties hereto) constitutes its valid and binding obligation and is
enforceable against it in accordance with its terms. The execution and
delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof
will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time or both) under, any provision
of its articles of incorporation or by-laws, any trust agreement, loan
or credit agreement, note, bond, mortgage, indenture, lease or of any
other
agreement or instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to it or to its property or assets.
3. COVENANTS OF EACH SHAREHOLDER. Until the termination of
this Agreement in accordance with Section 7, each Shareholder, severally and not
jointly, agrees as follows:
(a) At any meeting of Shareholders of the Company called to
vote upon the Merger and/or the Merger Agreement or at any adjournment
thereof or in any other circumstances upon which a vote, consent or
other approval (including by written consent) with respect to the
Merger and/or the Merger Agreement is sought, the Shareholder shall
vote (or cause to be voted) the Subject Shares in favor of the Merger,
the adoption by the Company of the Merger Agreement (as it may be
amended from time to time, provided that such amendment is not
materially adverse to such Shareholder) and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement. Any vote cast in accordance with this Section 3(a) or in
accordance with Section 3(b) shall be cast in such manner as will
insure that such vote is duly counted for purposes of determining
whether a quorum is present and for purposes of determining the result
of such vote.
(b) At any meeting of shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Shareholder's vote, consent or other approval is sought, the
Shareholder shall vote (or cause to be voted) the Subject Shares
against (A) any Acquisition Proposal (as such term is defined in the
Merger Agreement) or (B) any amendment of the Company's certificate of
incorporation or by-laws or other proposal or transaction involving the
Company or any of its subsidiaries, which amendment or other proposal
or transaction would be reasonably likely to impede, frustrate, prevent
or nullify the Merger, the Merger Agreement (as it may be amended from
time to time, provided such amendment is not materially adverse to such
Shareholder), or any of the other transactions contemplated by the
Merger Agreement or change in any manner the voting rights of the
Common Stock. Subject to Section 10, the Shareholder further agrees not
to enter into any agreement, and not to commit or agree to take any
action, inconsistent with the foregoing.
(c) The Shareholder shall not, prior to the earliest of (I)
the Effective Time and (II) the termination of the Merger Agreement in
accordance with its terms, (X) sell, transfer, give, pledge, assign or
otherwise dispose of (including by gift) (collectively, "TRANSFER"), or
consent to or cause any Transfer of, any or all of such Shareholder's
Subject Shares (or the Subject Shares owned by any person or entity
controlled, directly or indirectly, by such Shareholder) or any
interest therein or enter into any contract, option or other
arrangement (including any profit sharing arrangement) with respect to
the Transfer of, such Subject Shares to any person other than pursuant
to the terms of the Merger, except to a person or entity who, as a
condition of such Transfer agrees to be bound by the provisions of this
Agreement and provides such other representations, warranties and
covenants relating to the subject matter hereof as Parent may
reasonably request or (Y)
enter into any voting arrangement, whether by proxy, voting agreement
or otherwise, in connection with, directly or indirectly, any
Acquisition Proposal and agrees not to commit or agree to take any of
the foregoing actions.
(d) Subject to Section 10 hereof, until after the Merger is
consummated or the Merger Agreement is terminated, the Shareholder
shall use reasonable efforts to take, all actions necessary, proper or
advisable to consummate the Merger and the other transactions
contemplated by the Merger Agreement (as it may be amended from time to
time, provided such amendment is not materially adverse to such
Shareholder).
(e) Such Shareholder, and any beneficiary of a revocable trust
for which such Shareholder serves as trustee, shall not take any action
to revoke or terminate such trust or take any other action which would
restrict, limit or frustrate in any way the transactions contemplated
by this Agreement. Each such beneficiary hereby acknowledges and agrees
to be bound by the terms of this Agreement applicable to it.
4. FURTHER ASSURANCES. Each Shareholder will, from time to
time, (i) provide to Parent true and correct copies of all documents relating to
his record or beneficial ownership of, and/or control over, any shares of common
stock of the Company, as may be reasonably requested by Parent, and (ii) execute
and deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as Parent may reasonably request for
the purpose of effectively carrying out his obligations under this Agreement.
5. CERTAIN EVENTS. Each Shareholder agrees that this Agreement
and the obligations hereunder shall attach to such Shareholder's Subject Shares
and shall be binding upon any person or entity to which legal or beneficial
ownership of such Subject Shares shall pass, whether by operation of law or
otherwise, including without limitation such Shareholder's heirs, guardians,
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Company Common Stock, or the acquisition
of additional shares of Company Common Stock or other voting securities of the
Company by any Shareholder, the number of Subject Shares listed in Schedule A
beside the name of such Shareholder shall be adjusted appropriately and this
Agreement and the obligations hereunder shall attach to any additional shares of
Company Common Stock or other securities or instruments issued to or acquired by
such Shareholder.
6. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Parent may
assign, as contemplated by Section 7.5 of the Merger Agreement, in its sole
discretion, any and all of its rights, interests and obligations hereunder to
any affiliate, provided that Parent will remain liable for its obligations
hereunder in the event of any assignment pursuant to this Section 6. Subject to
the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns.
7. TERMINATION. This Agreement, and all rights and obligations
of the parties hereunder, shall terminate upon the date that is the earlier to
occur of (i) the Effective Time, and (ii) the date of any termination of the
Merger Agreement in accordance with its terms.
8. GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY. (a) Each
Shareholder hereby irrevocably grants to, and appoints, Parent and Mr. ▇▇▇▇
▇▇▇▇▇ in his capacity as an officer of Parent, and any individual who shall
hereafter succeed to such office of Parent, and each of them individually, such
Shareholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of such Shareholder, to vote such Shareholder's
Subject Shares, or grant a consent or approval in respect of such Subject Shares
in connection with any of the matters set forth in Sections 3(a) and 3(b).
(b) Such Shareholder represents that any proxies heretofore
given in respect of such Shareholder's Subject Shares are not irrevocable, and
that any such proxies are hereby revoked.
(c) Such Shareholder hereby affirms that the irrevocable proxy
set forth in this Section 8 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Shareholder under this Agreement. Such
Shareholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. Such Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended to
be irrevocable in accordance with the provisions of the Texas Business
Corporation Act.
9. GENERAL PROVISIONS.
(A) AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(B) NOTICE. All notices and other communications hereunder
shall be in writing and shall be deemed given if hand delivered or sent by
overnight courier (providing proof of delivery) to Parent and RV in accordance
with Section 7.4 of the Merger Agreement and to the Shareholders at their
respective addresses set forth on Schedule A attached hereto (or at such other
address for a party as shall be specified by like notice).
(C) INTERPRETATION. When a reference is made in this Agreement
to Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
(D) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become
effective when one or more of the counterparts have been signed by each of the
parties and delivered to the other party, it being understood that each party
need not sign the same counterpart.
(E) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (including the documents and instruments referred to herein) (I)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (II) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(F) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
(G) VOIDABILITY. If prior to the execution hereof, the Board
of Directors of the Company shall not have duly and validly authorized and
approved the Merger Agreement and the transactions contemplated thereby, so that
the execution and delivery hereof by Parent and RV would trigger the provisions
of Part Thirteen of the Texas Business Corporation Act, then this Agreement
shall be void and unenforceable until such time as such authorization and
approval shall have been duly and validly obtained.
10. SHAREHOLDER CAPACITY. No person executing this Agreement
who is or becomes during the term hereof a director or officer of the Company
makes any agreement or understanding herein in his capacity as such director or
officer. Each Shareholder signs solely in his capacity as the record holder and
beneficial owner of, or the trustee of a trust whose beneficiaries are the
beneficial owners of, such Shareholder's Subject Shares and nothing herein shall
limit or affect any actions taken by a Shareholder in his capacity as an officer
or director of the Company to the extent specifically permitted by the Merger
Agreement.
11. ENFORCEMENT. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of New York or in a New York state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (A) consents to submit such party to the
personal jurisdiction of any Federal court located in the State of New York or
any New York state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (B) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (C) agrees that such party will not bring
any action relating to this Agreement or the transactions contemplated hereby in
any court other than a Federal court sitting in the state of New York or a New
York state court and (D) waives any right to trial by jury with respect to any
claim or proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
12. PUBLIC ANNOUNCEMENTS. Each Shareholder will consult with
Parent before issuing, and provide Parent with the opportunity to review and
comment upon, any press release or other public statements by such Shareholder
with respect to the transactions contemplated by this Agreement and the Merger
Agreement, and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by applicable
law, court process or by obligations pursuant to any listing agreement with any
national securities exchange (including, but not limited to, Nasdaq).
IN WITNESS WHEREOF, Parent, RV and the Shareholders have
caused this Agreement to be duly executed and delivered as of the date first
written above.
AT&T CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
KIRI INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
SHAREHOLDERS:
/s/ ▇▇▇▇▇▇▇▇ ▇. NORTHLAND
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Name: ▇▇▇▇▇▇▇▇ ▇. Northland
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Name:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SCHEDULE A
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NUMBER OF SHARES OF COMPANY NUMBER OF
NAME AND ADDRESS OF COMMON STOCK SHAREHOLDER
SHAREHOLDER OWNED OF RECORD OPTIONS
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▇▇▇▇▇▇▇▇ ▇. Northland 1,400,000 4,147,333
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,700,000 500,000
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,440,000 --
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