EXHIBIT 10.2.2
SECOND AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This Second Amendment ("Second Amendment") to the Agreement and Plan of
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Merger, dated May 9,1999, as amended by the First Amendment to Agreement and
Plan of Merger, dated July 2, 1999 ("Agreement"), is made and entered into this
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24/th/ day of August, 1999, between MADISON RIVER TELEPHONE COMPANY, LLC, a
Delaware limited liability company ("Buyer"), and GULF COAST SERVICES, INC., an
Alabama corporation ("GCSI"). All capitalized terms not defined herein shall
have the meaning as set forth in the Agreement.
WHEREAS, the parties have entered into The Agreement; and
WHEREAS, pursuant to Section 5.1 of the Agreement, on June 2,1999, GCSI
delivered its Disclosure Schedules to Buyer; and
WHEREAS, pursuant to Section 5.1 of the Agreement, on June 21, 1999, Buyer
delivered its objections to the Disclosure Schedules to GCSI, and on July 27,
1999, Buyer delivered its restated objections to the Disclosure Schedules to
GCSI; and
WHEREAS, the parties wish to amend the Agreement to further define certain
understandings and obligations of the parties.
NOW, THEREFORE, in consideration of the promises and mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, Buyer and GCSI hereby amend
the Agreement as follows:
The Agreement is amended by replacing the defined term "Merger
Consideration" in Article I with the following:
"Merger Consideration" means the sum of (i) $3 10 million reduced by
(A) Adjusted Long Term Debt as of the Closing Date, (B) the excess, if any,
of S 17,3 94,3 47 over the capital expenditures of GCSI for Group I Fiber
Projects (paid or recorded as a liability), made after December 31, 1998
and on or prior to the Closing Date and (C) $1,679,553, minus any unjust
enrichment penalty paid by GCSI or its Subsidiaries on or before the
Closing Date with respect to the LMDS license (call sign WPOH618), (ii) the
sales price of the Non-Business Real Estate as provided in Section 6.9, and
(iii) the sales price of the DigiPH Stock as provided in Article IX.
The Agreement is amended by deleting Section 5.1 and substituting the
following in lieu thereof:
(a) The Disclosure Schedules delivered by GCSI to Buyer, as modified
and supplemented through the date of this Second Amendment, have been
reviewed and,
except as hereinafter provided in this Section 5, 1, the items and matters
identified on the Disclosure Schedules as submitted to Buyer through the
date hereof are hereby accepted by Buyer. The Disclosure Schedules are not
accepted to the extent that any matter disclosed therein creates between
the date hereof and the Closing Date a breach of any warranty,
representation or covenant not known by the parties as of the date hereof.
(b) In conjunction with Buyer's review of the Disclosure Schedules,
GCSI agrees to pay, or cause to be paid by its Subsidiaries, prior to
Closing and prior to the calculation of cash and cash equivalents of GCSI
and its Subsidiaries as of the Effective Time, or by the Paying Agent
pursuant to Section 2.6(d), the following: (i) any and all termination
penalties or other payments owed to Computer Enterprises, Inc., pursuant to
tile Agreement for Consulting Services, dated February 23, 1999, and listed
as Item 20 on Disclosure Schedule 3.6, and as Item 6 on Disclosure Schedule
3.7; (ii) any and all excise taxes, penalties and interest owed under
(S)(S) 4962 and 4979 of the Code with respect to the Benefit Plans and
listed as Item 4 on Disclosure Schedule 3.7; (iii) any and all fees for
corporate finance services due and owing by GCSI to Xxxxxx Xxxxxxxx and
Company, Certified Public Accountants, pursuant to that certain engagement
letter dated May 4, 1999, and accepted on behalf of GCSI an June 2, 1999;
(iv) any and all federal and state taxes shown as due and owing on the
income tax returns of GCSI and its Subsidiaries for calendar year 1998, as
well as federal and state estimated tax payments in amounts sufficient to
cover such taxes of GCSI for estimated income through the Closing Date; (v)
any and all fees for Year 2000 remediation efforts, or accounting or
consulting services, incurred in connection with computer and related
systems and software due and owing by GCSI or its Subsidiaries to Ernst &
Young; and (vi) any and all fees for construction of the new GCSI
administrative building due and owing by GCSI under all applicable
construction agreements, minus any applicable retainage not to exceed five
percent (5%) of the aggregate contract price as disclosed to Buyer through
the date hereof.
(c) GCSI acknowledges: (i) Buyer has not accepted Item 140 under
"Material Contracts of GTC" on Disclosure Schedule 3.16 and Item 2 on
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Disclosure Schedule 3.19, both of which arise out of the provision of
Enhanced Universal Emergency Number Services by Gulf Telephone Company to
the Xxxxxxx County Emergency Communications District; (ii) Buyer does not
consent to the sale, transfer or liquidation after the date hereof of any
assets of GCSI and its Subsidiaries as proposed in the Disclosure
Schedules, including, but not limited to, the sale of any additional shares
of the common stock of Wireless One; and (iii) Buyer does not waive any
breach of a material representation, warranty or covenant resulting from
(A) any encumbrance or restriction on transfer affecting the GCSI Shares
disclosed in the summary stock register and stock certificates, including,
but not limited to, any option of the ESOP to acquire certain shares from
the Xxxx XxXxxxx Xxxxx Irrevocable and Testamentary Trusts, and (B) any
corporate act or failure to act reflected in the minute books for GCSI and
its Subsidiaries and any other matters disclosed therein which were not
referenced in the Disclosure Schedules. Buyer does not waive any right to
claim a breach of a representation, warranty or covenant contained in the
Agreement relating to the level of trade payables as of the Closing Date.
(d) GCSI and Buyer agree that Buyer will, in good faith, reasonably
attempt to obtain, at its expense, title insurance to cover the Real
Property listed on the Disclosure Schedules, and to the extent that Buyer
receives coverage over any matters that constitute, or could constitute,
defects in the good and marketable title to the Real Property, other than
Permitted Liens, Buyer will accept such matters relating to the Real
Property. To the extent affirmative coverage cannot be reasonably obtained
for such matters without the payment of money other than that required to
pay for the title insurance policy(ies), Buyer does not waive any potential
breach of the representation and warranty in Section 3.8 relating to title.
(e) Notwithstanding anything in this Agreement to the contrary, the
mere inclusion of an item in tile Disclosure Schedules as an exception to a
representation or warranty shall not be deemed an admission by GCSI that
such item represents a material exception or material fact, event or
circumstance or that such item has had or could be reasonably expected to
have a Material Adverse Effect.
The Agreement is amended by deleting clause (iv) of paragraph (e) of
Section 7.1 in its entirety.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to the Agreement on the date first written.
MADISON RIVER TELEPHONE GULF COAST SERVICES, INC.
COMPANY, LLC
By: XXXX X. XXXX By: XXXXXXXX X. XXXXX
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Its: Managing Director & CFO Its: President & CEO
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Attested by: Attested by:
XXXXX XXXXXX XXXXXX X. XXXXXX
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