Exhibit 2.8
EARNOUT AGREEMENT, dated as of October 30, 1998, to the Stock Purchase
Agreement, dated July 22, 1998 and the First Amendment to Stock Purchase
Agreement, dated as of August 18, 1998 (the "Stock Purchase Agreement") by and
between AvTel Communications, Inc., a Delaware corporation ("AvTel"), and
Xxxxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxxxx, Xxxx
Xxxxxxxxx, Xxxx Xxxxxxx, Xxxx Xxxxxx, Alliance Capital Investments Corp.
("Alliance Capital"), Xxxxxxxxx Xxxxx, LLC and Xxxxx & Xxxxxxxx.
1) Capitalized terms not otherwise defined herein are used herein as set
forth in the Stock Purchase Agreement.
2) Xxxxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxxxx, Xxxx
Xxxxxxx and Xxxx Xxxxxx shall be defined herein as the "Employee Stockholders"
and Xxxx Xxxxxxxxx, Alliance Capital, Xxxxxxxxx Xxxxx, LLC and Xxxxx & Xxxxxxxx
shall be defined herein as the "Non-Employee Stockholders".
3) At the Closing, AvTel will issue a total of 140,140 shares of AvTel Common
Stock (the "ALTERNATE DELIVERED EARNOUT SHARES") to the following Stockholders:
Xxxxxxx X. Xxxxxxxxx, Xxxxx Xxxx, Xxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxx Xxxxxxxxx,
Xxxx Xxxxxxx, Xxxx Xxxxxx, Alliance Capital, Xxxxxxxxx Xxxxx, LLC and Xxxxx &
Xxxxxxxx. The number of Alternate Delivered Earnout Shares has been determined
as if RLI had already met the requirements set forth in Section 1.2.2(b)(2),
using $10.00 as the divisor for the Employee Shareholders and $7.00 as the
divisor for the Non-Employee Shareholders. For purposes of calculating the
number of Alternate Delivered Earnout Shares to be received by each such named
Stockholder, the numbers shall be rounded to the nearest whole share as required
to avoid issuance of fractional shares. The parties hereto agree that the
Alternate Delivered Earnout Shares are delivered to such named Stockholders in
full satisfaction of any and all obligations of AvTel to deliver Earnout Shares
to such named Stockholders and such Shares shall not be refundable. Thus, the
Alternate Delivered Earnout Shares will be delivered at Closing as follows:
Stockholder Alternate Delivered Earnout Shares
----------- ----------------------------------
Xxxxxxx Xxxxxxxxx 93,224
Xxxxx Xxxx 5,215
Xxxxxxx Xxxxx 5,215
Xxxxxxx Xxxxxxxxxx 5,215
Alliance Capital 8,241
Xxxxxxxxx Xxxxx 8,851
Xxxx Xxxxxxxxx 7,450
Xxxxx & Xxxxxxxx 533
Xxxx Xxxxxxx 3,098
Xxxx Xxxxxx 3,098
4) The Alternate Delivered Earnout Shares to be included in the definition of
"Registrable Shares" under Section 5.2.2 (B) of the First Amendment to the Stock
Purchase Agreement, dated as of August 18, 1998 (the "First Amendment") by and
between AvTel, the Stockholders and RLI.
5) Except as amended hereby, the Stock Purchase Agreement shall continue
unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
AVTEL COMMUNICATIONS,INC.
By: /S/ XXXXX X. XXXXXX
-------------------
Xxxxx X. Xxxxxx
Title: President
/S/ XXXXXXX X. XXXXXXXXX
------------------------
Xxxxxxx X. Xxxxxxxxx
XXXXXXXXX XXXXX, LLC
By:/S/ XXXXXXX XXXXXXXXX
------------------------
Xxxxxxx Xxxxxxxxx
/S/ XXXXX XXXX /S/ XXXX XXXXXXXXX
-------------- ------------------
Xxxxx Xxxx Xxxx Xxxxxxxxx
/S/ XXXXXXX XXXXX /S/ XXXX XXXXXXX
----------------- ----------------
Xxxxxxx Xxxxx Xxxx Xxxxxxx
/S/XXXXXXX XXXXXXXXXX /S/ XXXX XXXXXX
--------------------- ---------------
Xxxxxxx Xxxxxxxxxx Xxxx Xxxxxx
ALLIANCE CAPITAL INVESTMENTS CORP.
By: /S/ XXXXXX XXXXXX
-----------------
Xxxxxx Xxxxxx
Title: President
XXXXX & XXXXXXXX
By: /S/ XXX X. XXXXX
---------------------
Xxx X. Xxxxx, Partner
