EXHIBIT 10.5
FIRST AMENDMENT TO THE STOCK EXCHANGE AGREEMENT
This FIRST AMENDMENT TO THE STOCK EXCHANGE AGREEMENT ("FIRST
AMENDMENT") is entered into as of the 12th day of February, 1999, by and among
XXXXXXX.XXX, INC., a Delaware corporation formerly named U.S. Internet
Providers, Inc. (the "ACQUIRER"), UNITED STATES INTERNET, INC., a Tennessee
corporation ("TARGET"), and the TRANSFERORS' REPRESENTATIVE listed on the
signature page hereof (the "TRANSFERORS' REPRESENTATIVE"). The Acquirer, Target
and the Transferors' Representative are referred to herein individually as a
"PARTY" and collectively as the "PARTIES."
WHEREAS, the Parties entered into the Stock Exchange Agreement dated
December 21, 1998 (the "AGREEMENT"), the Parties hereto desire to amend the
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, the parties do hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used herein and not defined
herein shall have the meanings ascribed to such terms in the Agreement, as
amended by this First Amendment.
2. SECTION 2.3. Section 2.3 of the Agreement should be deleted in
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its entirety and replaced by the following:
NET WORTH ADJUSTMENT. The Cash Portion of the Transfer Consideration shall
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be adjusted upward or downward on a dollar-for-dollar basis by the amount by
which the Net Worth of Target is more or less than negative $1,213,221 as of the
Closing Date. The Net Worth of Target as of the Closing Date shall be based on
E&Y's December 31, 1998, audit of the Target and Target's good faith estimate
prior to Closing of Target's Net Worth as of March 15, 1999. To the extent the
actual Net Worth as of the Closing Date, as determined by E&Y after the Closing
Date, differs from the Net Worth estimated by Target, the difference shall be
added to or subtracted from the Cash Escrow.
3. ESCROW AGREEMENT. The form of Escrow Agreement attached to the
Agreement as Exhibit A shall be deleted in its entirety and replaced by the
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Escrow Agreement attached hereto as Exhibit A.
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4. JOINDER TO REGISTRATION RIGHTS AGREEMENT. The Joinder to the
Registration Rights Agreement attached to the Agreement as Exhibit F shall be
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deleted in its entirety and replaced by the Joinder Agreement attached hereto as
Exhibit B.
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5. OPINION LETTER. The form of opinion letter attached to the
Agreement as Exhibit G shall be deleted in its entirety and replaced by the
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opinion letter attached hereto as Exhibit C.
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6. CONTINUED EFFECT. Except as modified herein, all terms and
conditions of the Agreement shall remain in full force and effect, which terms
and conditions the Parties hereby ratify and affirm.
7. COUNTERPARTS; FAX SIGNATURES. To facilitate execution, this
First Amendment may be executed in counterparts and by facsimile, and all
counterparts shall collectively constitute a single agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Parties hereto have executed this First
Amendment as of the date first above written.
ACQUIRER:
XXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: President
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TARGET:
UNITED STATES INTERNET, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Chairman and CEO
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TRANSFERORS:
By: TRANSFERORS' REPRESENTATIVE
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
The Exhibits to this First Amendment to the Stock Exchange Agreement are not
included with this Registration Statement on Form S-1. The Registrant will
provide these Exhibits and Schedules upon the request of the Securities and
Exchange Commission.
