AMENDMENT TO
STOCK PURCHASE AGREEMENT
This AMENDMENT TO STOCK PURCHASE AGREEMENT ("Amendment") is dated as of
January 12, 1999, and is entered into by and among Data Transmission Network
Corporation, a Delaware corporation ("Buyer"), and Xxxxxx X. Xxxxxx, Excel
Interfinancial Corporation, Charter Financial Holdings, LLC, Xxxxxx X. Xxxxxxxx
and Xxxxxxx Xxxxxxxxxx (collectively the "Sellers" and individually a "Seller").
RECITALS:
A. Buyer and Sellers are all of the present parties to that certain
Stock Purchase Agreement dated May 27, 1998 (the "Agreement").
B. Buyer and Sellers desire to extend by three months the term of
certain earnout payments to Sellers under the Agreement as specifically set
forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth therein and herein, the parties hereto agree as follows:
1. Amendments to Agreement. (a) The first sentence of Subsection (b) of
Section 1.02 of the Agreement is amended by deleting it in its entirety and
inserting the following sentence in its place:
"Sellers will be paid pro rata, based on their percentage ownership of
the Shares, 640% of the amount (the "Excess Amount"), if any, by which
the Recurring Revenue (as hereinafter defined) for each of the calendar
quarters ending June 30, 1998, September 30, 1998, December 31, 1998,
March 31, 1999, June 30, 1999, and September 30, 1999 exceeds the Base
Amount (as hereinafter defined)."
(b) The first sentence of Subsection (c) of Section 1.02 of the
Agreement is amended by substituting the date of October 1, 1999 in place of the
date of July 1, 1999 in such sentence.
(c) The third sentence of Section 7.02 of the Agreement is
amended by deleting it in its entirety and inserting the following sentence in
its place:
"In full consideration for the purchase by Buyer of the Goodwill, Buyer
shall pay to Xxxxxx (i) 160% of the Excess Amount (as defined in
Section 1.02(b)) for each of the calendar quarters ending June 30,
1998, September 30, 1998, December 31, 1998, March 31, 1999, June 30,
1999, and September 30, 1999 and (ii) 20% of the Non-recurring Revenue
(as defined in Section 1.02(c)) received by the Company after the
Closing Date and before October 1, 1999."
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2. Binding Effect. This Amendment shall be binding upon and inure to
the benefit of Buyer and Sellers and their respective successors and permitted
assigns.
3. Superseding. From and after the date hereof, all references to the
Agreement shall mean the Agreement, as amended by this Amendment.
4. Confirmation. Except as otherwise expressly set forth in this
Amendment, the Agreement is hereby ratified and confirmed and remains in full
force and effect.
5. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
DATA TRANSMISSION NETWORK
CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, Xx. Vice President
/s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
EXCEL INTERFINANCIAL CORPORATION
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Xxxxxxx Xxxx, Executive Vice President
CHARTER FINANCIAL HOLDINGS, LLC
By: /s/ Xxxx X. X'Xxxxxxx
------------------------------------
Xxxx X. X'Xxxxxxx, Manager
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/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxxx
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