AMENDMENT NO. 1
TO
ASSET PURCHASE AGREEMENT
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This Amendment No. 1 is executed as of this 21st day of November, 1997 by
and among Vermont Telecommunications Network Services, Inc., a Vermont
corporation (the "Company"), Vermont Network Services Corporation, a Delaware
corporation (the "Buyer") and Xxxxxx X. Xxxx, a resident of Shelburne, Vermont,
and the Company's sole stockholder ("Keve"), as an amendment to a certain Asset
Purchase Agreement dated November 13, 1997 (the "Purchase Agreement") by and
among the Company, Buyer and Keve. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Purchase
Agreement.
WHEREAS, under the Purchase Agreement, Buyer agreed to purchase and the
Company agreed to sell substantially all its assets, subject to certain
conditions set forth therein;
WHEREAS, the Company and Buyer agreed under the Purchase Agreement that an
adjustment to the Purchase Price shall be made as set forth in Section 4.1 of
the Purchase Agreement and that such adjustment shall be based on the Net Worth
of the Company as of the Closing Date; and
WHEREAS, the Company and Buyer wish to amend the Purchase Agreement to
provide that the Net Worth of the Company for purposes of Section 4.1 of the
Purchase Agreement shall be determined as of the close of business on October
31, 1997.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, Buyer and Keve hereby
amend the Purchase Agreement as follows:
1. Section 4.1 is modified in its entirety to read as follows:
"4.1 Adjustment Based on Net Worth.
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(a) Promptly following the Closing, the Company shall cause to be
prepared, at its expense, a Statement of Net Worth of the Company (together with
supporting calculations in reasonable detail, the "Statement of Net Worth")
showing as of the close of business on October 31, 1997 the Net Worth of the
Company (the "Net Worth"). "Net Worth" shall mean the sum of the current assets
(net of any Excluded Assets which are current assets), property and equipment
(net of depreciation) and covenant not to compete of the Company, less the
current liabilities (net of current installments of long-term debt) of the
Company, determined as of the close of business on October 31, 1997 and in
accordance with United States
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generally accepted accounting principles ("GAAP") applied on a basis consistent
with the preparation of the Balance Sheet. The Company shall, at its expense,
engage XxXxxxx XxXxx & Co. ("Company's Auditors") to prepare the Statement of
Net Worth in accordance with the requirements set forth in this Section. The
Buyer, Keve and the Company shall cooperate fully in the preparation of such
statement. The Company's Auditors shall complete such statement within twenty
days after the Closing Date. Upon completion of such statement, the Company
shall deliver the Statement of Net Worth to the Buyer.
(b) If the Net Worth, as set forth on the Statement of Net Worth as
conclusively determined under Section 4.3 (the Net Worth as conclusively
determined, the "Certified NW"), is less than $330,000, then the Company shall
pay to Buyer, the amount of such deficiency. If the Certified NW is greater
than $330,000, then the Buyer shall pay the amount of such excess to the
Company. Any payment pursuant to this Section 4.1(b) shall be made within
thirty days following the date on which the Statement of Net Worth (including
the Certified NW calculation) becomes definitive pursuant to Section 4.3.
Payment made pursuant to this Section 4.1(b) shall be made by certified check or
wire transfer of immediately available funds to an account designated by the
party receiving payment."
2. The Company and Keve hereby ratify and confirm the provisions of
Section 9.2 of the Purchase Agreement, and acknowledge and agree that the
provisions of said Section 9.2 are and shall be applicable, with equal force and
effect, with respect to the period from November 1, 1997 to the Closing.
3. The Purchase Agreement, as modified by this Amendment No. 1, is hereby
ratified and confirmed in its entirety.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 on the
date first above written.
Vermont Network Services Corporation,
a Delaware Corporation
By: /s/ Xxxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Its: President
Vermont Telecommunications Network
Services, Inc., a Vermont corporation
By: /s/ Xxxxxx X. Xxxx
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Its: President
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