AMENDMENT NO. 1 TO AGREEMENT OF AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (the "Amendment")
is made and entered into this ___ day of May, 1997, by and among NETWORK
LONG DISTANCE, INC., a Delaware corporation ("Network"), WATER ACQUISITION
CORP., a Virginia corporation ("Acquisition"), EASTERN TELECOM
INTERNATIONAL CORPORATION, a Virginia corporation ("Eastern"), and the
SHAREHOLDERS OF EASTERN TELECOM INTERNATIONAL CORPORATION (the
"Shareholders").
WHEREAS, the parties hereto have previously executed that certain
Agreement and Plan of Merger dated as of April 24, 1997 (the "Merger
Agreement"); and
WHEREAS, the parties hereto desire to amend the Merger Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. CAPITALIZED TERMS. Capitalized terms used but not defined herein
shall have the meaning set forth in the Merger Agreement.
2. AMENDMENT TO THE MERGER AGREEMENT.
(a) Section 2.1(b) of the Merger Agreement is hereby amended so
that the next to last sentence of Section 2.1(b) reads as follows:
The Exchange Ratio shall mean a number of shares of
NETWORK Common determined by dividing (x) the Per Share
Consideration by (y) $7.875, and rounding the result to
three decimal places.
(b) Section 2.4(d) of the Merger Agreement is hereby amended to
read as follows:
(d) To the escrow agent named in the Escrow
Agreement (the "Escrow Agent"), that number of shares
from the Share Consideration that are valued at
$300,000 based upon a price of $7.875 per share,
together with executed stock powers from the
Shareholders, to be held pursuant to the terms of the
Escrow Agreement attached hereto as Exhibit 2.3(f) (the
"Escrow Agreement"), to satisfy all or part of any
claims for indemnity pursuant to Article VIII hereof;
(c) Section 2.4(e) of the Merger Agreement is hereby amended to
read as follows:
(e) To the escrow agent named in the Working
Capital Escrow Agreement (the "Working Capital Escrow
Agent") (i) that number of shares from the Share
Consideration that are valued at $200,000, based upon
a price of $7.875 per share, together with executed
stock powers from the Shareholders and (ii) $200,000 in
cash equivalents, as a reserve for all or a part of any
adjustments pursuant to Section 2.5;
(d) Section 2.6(a) of the Merger Agreement is hereby amended to
read as follows:
(a) In the event the Adjusted Merger
Consideration is less than the Merger Consideration,
the number of shares of NETWORK Common (valued at
$7.875 per share) representing the value equal to the
difference between the Merger Consideration and the
Adjusted Merger Consideration shall be returned to
NETWORK from the Share Consideration held in escrow
pursuant to the Working Capital Escrow Agreement.
(d) Section 2.6(b) of the Merger Agreement is hereby amended to
read as follows:
(b) In the even the Adjusted Merger Consideration
exceeds the Merger Consideration, the Share
Consideration held in escrow pursuant to the Working
Capital Escrow Agreement shall be delivered to the
Shareholders and, if enough shares of NETWORK Common to
make up the difference are not held in escrow (based
upon a value of $7.875 per share), that amount of funds
escrowed pursuant to the Working Capital Escrow
Agreement which, when combined with such escrowed
shares, is sufficient to make up the difference, shall
be delivered to the Shareholders' Representative on
behalf of the Shareholders.
3. REFERENCES TO MERGER AGREEMENT. From and after the execution of
this Amendment by all of the parties hereto, all references in the Merger
Agreement to "this Agreement," "hereof," "herein" and similar terms shall
mean and refer to the Merger Agreement as amended by this Amendment, and
all references in other documents to the Merger Agreement shall mean such
Merger Agreement as amended by this Amendment.
4. RATIFICATION AND CONFIRMATION. The Merger Agreement is hereby
ratified and confirmed and, except as herein amended, remains in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment on the day, month and year first above written.
NETWORK LONG DISTANCE, INC.
By:/s/
_________________________________
Name:
_________________________________
Title:
_________________________________
WATER ACQUISITION CORP.
By: /s/
_________________________________
Name:
_________________________________
Title:
_________________________________
EASTERN TELECOM INTERNATIONAL CORPORATION
By: /s/
_________________________________
Name:
_________________________________
Title:
_________________________________
SHAREHOLDERS:
_________________________________
Xxxx X. Xxxxxxxx
_________________________________
Xxxxxx X. Xxxxx
_________________________________
Xxxxx X. Xxxxxx
_________________________________
Xxxxx Xxxxxxxx
_________________________________
Xxxx Xxxxx
_________________________________
Xxxxx Xxxxxx
_________________________________
Xxxx Xxxxx
_________________________________
Xxxx Xxxxx
