EXHIBIT 10.32
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:
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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
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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
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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
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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
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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
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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 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
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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,
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further, that for purposes of determining the amount of Damages under said
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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
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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.
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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:___________________________
Name:
Title:
VIEW TECH, INC.
By:___________________________
Name:
Title:
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