SECOND AMENDMENT TO AGREEMENT AND PLAN OF EXCHANGE
THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF EXCHANGE (this "Amendment"),
made as of the 13th day of January, 1998, by and among ADVANCED COMMUNICATIONS
GROUP, INC., a Delaware corporation organized in September 1997, ADVANCED
COMMUNICATIONS CORP. (formerly named Advanced Communications Group, Inc.), a
Delaware corporation organized in June 1996, ACG ACQUISITION CORP., a Delaware
corporation, VALU-LINE OF LONGVIEW, INC., a Texas corporation, and XXXXX X.
XXXXXXXX, XXX XXXXXX, XXXXXXX XXXXX, XXXX XXXXX and XXXXXXXX XXXXX, amends the
Agreement and Plan of Exchange dated as of October 6, 1997, as amended by the
First Amendment to Agreement and Plan of Exchange dated January 8, 1998, among
the parties (the "Restated Agreement"; and as amended hereby, the "Agreement").
RECITALS
WHEREAS, the parties are aware that the Company is subject to certain
potentially significant liabilities with respect to its acts and omissions
in the State of Arkansas;
WHEREAS, the parties wish to modify the Restated Agreement to provide
for the escrow of a portion of the Stock Component so that it may be
applied toward compensating Parent for amounts which it or the Company may
need to expend to satisfy such liabilities; and
WHEREAS, all capitalized terms not otherwise defined herein have the
meanings ascribed to them in the Restated Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual
representations, warranties, covenants and agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which
is acknowledged, the parties hereby agree as follows:
1. AMENDMENT OF SECTION 2.
1.1 The first sentence of Section 2 is deleted and is replaced by the
following:
Pursuant to the terms of this Agreement, at the Closing, (x)
Stockholders will transfer, convey, assign and deliver to Parent the
Shares, together with stock powers duly endorsed by Stockholders so
that the Shares may be duly registered in Parent's name, and (y)
Parent will acquire the Shares from Stockholders for an aggregate
consideration of (i) $6.6 million in immediately available funds, (ii)
such number of shares of Parent Stock (rounded to the nearest whole
share) as shall be determined by dividing $4.92 million by the IPO
Price ("Stock Component") and (iii) subject to the terms of the of an
escrow agreement in the form attached hereto as Annex III (the "Escrow
Agreement"), a proportion, not to exceed 100%, of the number of shares
of Parent Stock (rounded to the nearest whole share) as shall be
determined by dividing $280,000 by the IPO Price (the "Escrowed
Shares"). The parties agree that in connection with the Closing,
Parent, the Stockholders and an institution selected by Stockholders
and reasonably acceptable to Parent (as escrow agent) will enter into
the Escrow Agreement, and Parent will forthwith deposit with such
institution, as escrow agent, a certificate representing the Escrowed
Shares. Such shares shall be registered in the name of such escrow
agent and be maintained and disbursed strictly in accordance with the
terms of the Escrow Agreement.
2. ADDITION OF SECTION 7.11.
2.1 The following is added as Section 7.11 of the Agreement:
7.11. Arkansas Liability. Stockholders and the Company will continue
to make good faith efforts to obtain authority for the Company to conduct
telecommunications business in Arkansas and to settle the contingent
liabilities arising from the Company's violation of the laws and
regulations of the State of Arkansas, including without limitation its
failure to pay taxes, charges and impositions associated with doing
telecommunications business in that state. Prior to the Closing, the
Stockholders will pay (or will cause the Company to pay from cash otherwise
distributable by the Company to the Stockholders pursuant to this
Agreement), all expenses, attorneys' fees (other than the fees accrued
through January 13, 1998 from services rended by Bourland, Smith, Wall &
Xxxxxx), and other costs which the Company or the Shareholders or any of
their agents or attorneys accrued or incurred at any time prior to the
Closing in connection with such efforts.
3. ADDITION OF SECTION 8.11.
3.1 The following is added as Section 8.11 of the Agreement:
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8.11. Delivery of Escrow Agreement. Parent shall have executed and
delivered to Stockholders an agreement in the form attached hereto as Annex
III.
4. MODIFICATION OF SECTION 17.6.
4.1 The following sentence is appended to Section 17.6 of the Restated
Agreement: "The foregoing provisions of this Section 17.6 are subject to
and qualified by the terms of Section 7.11, Section 9.14, and the
provisions of the Escrow Agreement."
5. ADDITION OF SECTION 9.14.
5.1 The following is added as Section 9.14 of the Agreement:
9.14. Delivery of Escrow Agreement. The Stockholders shall have
executed and delivered to Parent an agreement in the form attached hereto
as Annex III. Stockholders agree that, for a period ending six months after
the Closing, they will hold Parent and the Company harmless from any and
all expenses and costs referenced in Section 7.11 that accrued through the
Closing.
6. ADDITION OF ANNEX III.
6.1 Annex III hereto is hereby added as Annex III to the Restated
Agreement.
7. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS.
7.1 Stockholders jointly and severally represent and warrant that, to
their knowledge and the knowledge of the Company, the January 9, 1998 letter
from N. M. Norton to the Arkansas Public Service Commission sets forth an
approximate, but materially accurate, calculation of the revenues earned by the
Company with respect to services rendered in the State of Arkansas and the
Longview LATA.
7.2 The parties agree and understand that obtaining authorization in
Arkansas and establishing a positive working relationship with the Arkansas
regulatory authorities is of great practical importance to the Company and
Parent. Consequently, after the Closing, the Company may take the actions it
determines in good faith are necessary or advisable in connection with the
resolution of its Arkansas liabilities. The Company shall have the sole
authority to litigate, negotiate
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and resolve, by settlement or otherwise, the foregoing matters. In the event
that the Company initiates or is otherwise subject to any contested legal or
administrative action regarding such liabilities, each Stockholder shall render
reasonable assistance to Parent and the Company in connection therewith.
Without limiting the foregoing, each Stockholder agrees to execute and deliver,
or cause to be executed and delivered, such further instruments, documents and
affidavits and to take such other action as may be reasonably necessary or
convenient in connection with such actions.
8. MISCELLANEOUS
8.1 Counterparts. For the convenience of the parties, any number of
counterparts of this Amendment may be executed by any one or more parties
hereto, and each such executed counterpart shall be, and shall be deemed to be,
an original, but all of which shall constitute, and shall be deemed to
constitute, in the aggregate but one and the same instrument. A facsimile copy
of a signature page to this Amendment shall be accorded the same force and
effect as a manually executed original counterpart of a signature page to this
Amendment.
8.2 Integration Clause. The Restated Agreement, as modified by this
Amendment, represents the final agreement among the parties relating to its
subject matter and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
ADVANCED COMMUNICATIONS GROUP, INC.
BY:
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NAME: XXXXXXX X. XXXXXXX
TITLE: CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
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ADVANCED COMMUNICATIONS CORP.
BY:
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NAME: XXX X. XXXXXXXXX
TITLE: CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
ACG ACQUISITION CORP.
BY:
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NAME: XXXX X. XXXXXXXXX
TITLE: PRESIDENT
VALU-LINE OF LONGVIEW, INC.
BY:
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NAME:
TITLE:
STOCKHOLDERS:
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XXXXX X. XXXXXXXX
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XXX XXXXXX
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XXXX XXXXX
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XXXXXXX XXXXX
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XXXXXXXX XXXXX
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