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AMENDMENT TO
AGREEMENT AND PLAN OF EXCHANGE
dated as of December 15, 1997
by and among
ADVANCED COMMUNICATIONS GROUP, INC.
(Parent)
and
FIRSTEL, INC.
(Company)
and
XXXX X. XXXXXXX, XXXXX X. XXXXX, X. XXXXXXX VAN LEUR, XXXXXXX XXXXXX, XXXX
VANDERBERGE, TELE-TECH, INC. AND RAFT, L.L.C.
(Stockholders of the Company)
and
XXXXX X. XXXXXXXX, XXXXXXX XXXXXXXX, AND XXXXX X. XXXXXX
(Beneficial Owners)
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AMENDMENT TO AGREEMENT AND PLAN OF EXCHANGE
THIS AMENDMENT TO AGREEMENT AND PLAN OF EXCHANGE (the
"Amendment"), made as of December 15, 1997 but effective for all purposes as
of October 6, 1997, by and among ADVANCED COMMUNICATIONS GROUP, INC., FIRSTEL,
INC, XXXX X. XXXXXXX, XXXXX X. XXXXX, X. XXXXXXX VAN LEUR, XXXXXXX XXXXXX,
XXXX VANDERBERGE, TELE-TECH, INC., RAFT, L.L.C., XXXXX X. XXXXXXXX, XXXXXXX
XXXXXXXX, and XXXXX X. XXXXXX, amends the Agreement and Plan of Exchange dated
October 6, 1997 among the parties (the "Original Agreement"). Capitalized
terms used but not defined herein shall have the meanings given them in the
Original Agreement.
RECITALS
WHEREAS, the Asset Purchase Agreement dated September 3,
1997 among RAFT, L.L.C., XXX Oil, Inc., Xxxxx X. Xxxxxxxx, Xxxxxxx
Xxxxxxxx and Firstel, Inc., as amended, (the "Asset Purchase
Agreement") provides that a portion of the consideration to be
delivered by Advanced Communications Group, Inc. to RAFT, L.L.C.
("RAFT") in connection with the Original Agreement is contingent upon
RAFT procuring certain business by October 31, 1997;
WHEREAS, the parties wish to implement the terms of the
Asset Purchase Agreement and reflect the recent procurement of
certain business by RAFT;
NOW, THEREFORE, in consideration of the premises and of the
mutual representations, warranties, covenants, and agreements herein
contained, the parties hereto hereby agree as follows:
1. AMENDMENTS TO SECTION 3.
a. Recalculation of Stock Component. The number $11,097,000 in
the tenth line of the first paragraph of Section 3 of the Original
Agreement is deleted and replaced by $10,970,230.
b. Reallocation of Consideration. The chart presented in
Section 3 of the Original Agreement is deleted and replaced by the
following chart:
PRINCIPAL
AMOUNT OF PRINCIPAL NUMBER OF NUMBER OF
NUMBER OF COMPANY AMOUNT OF AMOUNT OF SERIES G SHARES OF
NAME OF STOCKHOLDER SHARES NOTES CASH NOTES WARRANTS PARENT'S STOCK (1)
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Xxxx X. Xxxxxxx 287.5 $250,000 $1,437,500 $575,000 14,375 25.3155%
Xxxxx X. Xxxxx 287.5 $250,000 $1,437,500 $575,000 14,375 25.3155%
X. Xxxxxxx Van Leur 125 $40,000 $625,000 $250,000 6,250 10.1716%
Xxxxxxx Xxxxxx 150 $250,000 $750,000 $300,000 7,500 14.6616%
Xxxx VanderBerge 150 $250,000 $750,000 $300,000 7,500 14.6616%
Tele-Tech, Inc. 45.35 None None None None 6.9813%
RAFT, L.L.C. 18.79 None None None None 2.8929%
TOTAL 1064.14 $1,040,000 $5,000,000 $2,000,000 50,000 100%
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(1) Expressed as a percentage of the Stock Component.
c. Addition to Section 3. The following is appended to Section 3
of the Original Agreement:
The parties agree that if Champion or Schlauger or both of
them remain Firstel, Inc. customers through August 31, 1998, then
Parent shall issue additional shares of Parent common stock to RAFT.
The number of shares issuable shall be equal the lesser of (a)
$50,000 divided by the initial public offering price of Parent's
common stock (the "IPO Price") or (b) three times the relevant
Average Monthly Revenue divided by the IPO Price. "Average Monthly
Revenue" means: (i) in the case of Champion, 60% of one-twelfth of
the total revenues collected from Champion over the twelve month
period ending August 31, 1998, but not more than $17,000, and (ii) in
the case of Schlauger, 40% of one-twelfth of the total revenues
collected from Schlauger over the twelve month period ending August
31, 1998, but not more than $24,000. If three times the Average
Monthly Revenue exceeds $50,000, then Firstel, Inc. shall pay the
difference in cash to RAFT on demand. The parties confirm that,
except as provided in the previous sentence, neither Firstel, Inc.
nor Parent is required to pay cash to RAFT in lieu of the shares
deliverable pursuant to this Agreement; except that Firstel, Inc. may
be required to pay cash pursuant to the Asset Purchase Agreement if
the Closing does not occur.
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2. GENERAL
2.1 Entire Agreement. The Original Agreement (including the Schedules
and Annexes thereto), as modified by the Amendment, and the documents
delivered pursuant thereto constitute the entire agreement and understanding
among Stockholders, Company and Parent and supersede any prior agreement and
understanding relating to the subject matter of this Agreement. This
Agreement, upon execution and delivery, constitutes a valid and binding
agreement of the parties hereto enforceable in accordance with its terms and
may be modified or amended only by a written instrument executed by
Stockholders and by Company and Parent, acting through their respective
officers or representatives, duly authorized by their respective Boards of
Directors.
2.2 Counterparts. This Amendment may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original and all of
which together shall constitute but one and the same instrument.
2.3 Governing Law. This Amendment shall be construed in accordance
with the laws of the State of South Dakota, excluding its conflict of laws
principles.
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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: Xxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
FIRSTEL, INC.
By:
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Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
STOCKHOLDERS:
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Xxxx X. Xxxxxxx
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Xxxxx X. Xxxxx
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X. Xxxxxxx Van Leur
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Xxxxxxx Xxxxxx
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Xxxx VanderBerge
NEW STOCKHOLDERS:
TELE-TECH, INC.
By:
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Name:
Title:
RAFT, L.L.C.
By:
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Name:
Title:
BENEFICIAL OWNERS:
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Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxxxx
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Xxxxxxx Xxxxxxxx
PRINCIPALS OF XXXXX, XXXX &
COMPANY LLC
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Xxxx X. Xxxxx
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J. Xxxxxxx Xxxx
Xxxxxxxx, Inc.
By:
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Name: Xxxxx X. Xxxxxxx, Xx.
Title: President
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Xxxxxxx X. Xxxxxx
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