EXHIBIT 10.28
AMENDMENT TO SHARE EXCHANGE AGREEMENT
THIS AMENDMENT TO SHARE EXCHANGE AGREEMENT (this "Amendment") dated as
of December 30, 1999, is made by and among Tel-Com Wireless Cable TV
Corporation, a Florida corporation ("Tel-Com"), IBC Partners, a Florida general
partnership, Xxxxxx Xxxxx and Xxxxx Xxxxx to amend the Share Exchange Agreement
by and among such parties, dated February 28, 1999 to be effective as of
December 10, 1998 (the "Agreement"), as amended as of March 8, 1999.
WITNESSETH:
WHEREAS, the Agreement contains defined terms that are used herein, and
any such terms used in this Amendment that are not separately defined herein
shall have the same meaning as in the initial text of the Agreement;
WHEREAS, in entering into the Agreement, the parties intended that the
Exchange shall qualify as a tax-free reorganization under Section 368(a)(1)(B)
of the Internal Revenue Code of 1986, as amended;
WHEREAS, as set forth in the Agreement, the parties had agreed to
provide for the issuance of Performance Shares due to the difficulty in
determining the value of 0xx Xxxxxx and the 5th Avenue Common Stock;
WHEREAS, in Revenue Procedure 84-42, the Internal Revenue Service
provided an advance ruling guideline, which requires that the number of
performance-based shares to be limited to the number of initial shares, that all
performance-based shares issued within 5 years of the exchange, and that,
generally, the right to receive performance-based shares not be assignable; and
WHEREAS, the, parties would like to incorporate the advance ruling
guidelines of Revenue Procedure 84-42 into their Agreement;
NOW, THEREFORE, in consideration of the payment of ten dollars ($10.00)
by the Sellers to Tel-Com, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties hereto agree as
follows:
The third WHEREAS clause of the Agreement is amended by changing
"665,000" to "335,000," and "1,000,000" to "670,000."
Section 1 of the Agreement (captioned "EXCHANGE OF SHARES") is hereby
amended by eliminating the text following clause (i) thereof, and replacing such
text by (ii) below, which new text hereby is incorporated into and deemed to be
a part of such Section 1:
(ii) If in any calendar quarter ending on or before September
30, 2003, the 5th Avenue Channel. achieves either gross
revenues in excess of $10,000,000 or net income in excess of
$1,000,000, all 335,000 Performance Shares shall be
transferred from Tel-Com to the Sellers within thirty days of
the close of such quarter. The 335,000 Performance Shares
shall be issued as follows: 218,833 Performance Shares to
Xxxxxx Xxxxx, 32,000 Performance Shares to Xxxxx Xxxxx, and
84,167 Performance Shares to IBC Partners. The right to
receive Performance Shares shall expire if the 0xx Xxxxxx
Channel has not achieved gross revenues in excess of
$10,000,000 or net income in excess of $1,000,000 in any
calendar quarter ending on or before September 30, 2003. The
Sellers' right
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to receive these additional Performance Shares is not
assignable, except by operation of law.
The March 8, 1999 amendment to the Agreement is hereby nullified and
rescinded and shall have no further force or effect.
This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, individually and through
Tel-Com's duly authorized officer and as all of the partners of IBC Partners
have executed this Amendment as of the date first written above.
"TEL-COM":
Tel-Com Wireless Cable TV Corporation,
a Florida corporation
By: /S/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: President
IBC Partners, a Florida general
partnership
By: /S/ XXXX XXXXXXXXX
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Name: Xxxx Xxxxxxxxx, partner
By: /S/ XXXXX XXXXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxxxx, partner
/S/ XXXXXX XXXXX
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Xxxxxx Xxxxx
/S/XXXXX XXXXX
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Xxxxx Xxxxx
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