Exhibit No. 10.19
Amendment No. 1 to Agreement And Plan of Merger between All Communications and
View Tech, Inc.
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO.1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is
made and entered into as of February 29, 2000, by and between All Communications
Corporation, a New Jersey corporation ("ACC") and View Tech, Inc., a Delaware
corporation ("VTI").
W I T N E S S E T H:
WHEREAS, ACC and VTI have entered into that certain Agreement and Plan of
Merger dated as of December 27, 1999 (the "Merger Agreement") providing for the
merger of ACC with and into VTI (the "Merger") upon the terms and subject to the
conditions set forth therein; and
WHEREAS, ACC and VTI have reinstated and reaffirmed that the Merger
Agreement is in full force and effect; and
WHEREAS, ACC and VTI desire to adjust certain of the terms of the Merger
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, and subject to, and on the terms and conditions herein set
forth, the parties hereto agree as follows:
1. Final Termination Date. The definition of "Final Termination Date" set
forth in Article I of the Merger Agreement is amended by deleting the date
"February 29, 2000" and substituting therefor the following "April 30, 2000;
provided, however, that the Final Termination Date shall be 5:00 PM New York
City time on March 6, 2000 if VTI has not received at least $2,000,000 in gross
proceeds from the exercise of outstanding warrants to purchase VTI Common Stock
on or before March 6, 2000"
2. Extension of Escrow Period. The period during which the Escrow Agent
shall hold the Escrow Shares under the Escrow Agreement shall be increased to
eighteen months and Section 3.5(b) of the Merger Agreement is amended by
deleting the number "twelve" in the third sentence thereof and substituting
therefor the number "eighteen."
3. Extension of Closing Date. The Closing or Closing Date referred to in
Section 3.8 of the Merger Agreement shall occur no later than April 30, 2000 and
Section 3.8 of the Merger Agreement is amended by deleting the date "February
29, 2000" and substituting therefor the following "April 30, 2000; provided,
however, that VTI and ACC may, by mutual written consent, extend such date"
4. Removal of Certain Conditions to Obligations of ACC. Section 7.3(g) of
the Merger Agreement relating to a private placement of not less than $4,000,000
of equity securities of the Surviving Corporation as a condition of ACC's
obligation to consummate the transactions contemplated under the Merger
Agreement is hereby deleted in its entirety.
5. VTI Indemnification Obligations. VTI's indemnification obligations under
Section 9.2(a) of the Merger Agreement shall be extended to cover certain risks
in connection with VTI's sale of USTelecenters, Inc. and Vermont Network
Services Corporation to OC Mergerco 4, Inc. on February 18, 2000 and Section
9.2(a) is hereby amended to read in its entirety as follows:
"(a) VTI hereby agrees to indemnify ACC, its successors and assigns, and
the officers, directors, affiliates, employees, controlling persons and agents
of the foregoing (collectively, the "ACC Indemnified Persons"), and hold each of
them harmless against and in respect of any and all debts, obligations and other
liabilities (whether absolute, accrued, contingent, fixed or otherwise, or
whether known or unknown, or due or to become due or otherwise), monetary
damages, fines, fees, penalties, interest obligations, deficiencies, losses and
expenses (including without limitation amounts paid in settlement, interest,
court costs, costs of investigators, fees and expenses of attorneys,
accountants, financial advisors and other experts, and other expenses of
litigation) (collectively, "Damages") incurred or suffered by any of them by
reason of (i) a breach of any of the representations
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or warranties made by VTI in this Agreement; (ii) the nonperformance (whether
partial or total) of any covenants or agreements made by VTI in this Agreement;
(iii) the value of the Pentastar Communications, Inc. stock received by VTI in
connection with the sale of USTelecenters, Inc. ("UST") and Vermont Network
Services Corporation ("VNSC") to OC Mergerco 4, Inc. ("OCM") under that certain
Asset Purchase Agreement dated as of December 31, 1999 among UST, VNSC, OCM and
VTI (the "UST/VNSC Purchase Agreement") being less than One Hundred Fifty
Thousand Dollars ($150,000.00) at the Termination Date (as defined in the Escrow
Agreement (based upon the trading price for the five day period ending on the
Termination Date); and (iv) any payments by VTI (or Wire One upon closing of the
Merger Agreement) with respect to any of the Excluded Liabilities (as set forth
under Section 2.3 of the UST/VNSC Purchase Agreement; provided, however, that
VTI shall not have any liability under any of the foregoing clauses (i) and (ii)
unless the aggregate of all Damages relating thereto for which VTI would, but
for this proviso, be liable exceeds on a cumulative basis an amount equal to
$50,000; and provided, further, that for purposes of determining the amount of
Damages under said clauses for the breach of any representation, warranty or
covenant in this Agreement that contains a materiality qualifier, such
representation, warranty or covenant shall be deemed breached where the Damages
relating thereto, individually or in the aggregate, are in excess of $20,000
(which Damages, once such $20,000 threshold has been surpassed, shall be
included in full in determining whether the aggregate amount of Damages exceeds
the $50,000 amount set forth in the next preceding proviso)."
6. Miscellaneous. Capitalized terms not defined herein shall have the
meanings given to such terms in the Merger Agreement. Except as expressly
modified hereby, the Merger Agreement and the other agreements entered into
thereunder or contemplated thereby shall continue in full force and effect. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement. This Agreement shall be deemed to be made in and in all respects
shall be interpreted, construed and governed by and in accordance with the laws
of the State of Delaware without giving effect to any choice of law rule that
would cause the application of the laws of any jurisdiction other than the
internal laws of the State of Delaware to the rights and duties of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
ALL COMMUNICATIONS CORPORATION
By: /S/ XXXXXXX XXXXX
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Name: XXXXXXX XXXXX
Title: PRESIDENT
VIEW TECH, INC.
By: /S/ S. XXXXXXX XXXXXXX
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Name: S. XXXXXXX XXXXXXX
Title: CHIEF EXECUTIVE OFFICER
By: /S/ XXXXX XXXXXX
------------------------------
Name: XXXXX XXXXXX
Title: Director
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