EXHIBIT 2.5.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT, dated as of July 2, 1998, to Agreement and Plan of
Merger, dated as of April 26, 1998 (the "Merger Agreement"), by and among MFS
Acquisition Corp., a Delaware corporation ("Buyer"), Able Telcom Holding Corp.,
a Florida corporation ("Parent"), MFS Network Technologies Inc., a Delaware
corporation ("Seller"), and MFS Communications Company, Inc., a Delaware
corporation ("MFS").
WITNESSETH:
WHEREAS, the parties hereto have entered into the Merger
Agreement; and
WHEREAS, in accordance with Section 18a of the Merger
Agreement the parties hereto wish to amend certain provisions of the Merger
Agreement as herein provided;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements set forth herein, the parties hereto hereby
agree as follows:
1. AMENDMENTS TO SECTION 1.
(a) Section 1 of the Merger Agreement is hereby amended to
delete thereform the defined term "Master Services Agreement" and substitute in
lieu thereof the following:
""MASTER SERVICES AGREEMENT" is the Master Services Agreement
in form as attached to this Amendment as Exhibit 1a."
(b) Section 1 of the Merger Agreement is hereby further
amended to delete thereform the defined term "Stock Pledge Agreement" and
substitute in lieu thereof the following:
""STOCK PLEDGE AGREEMENT" is the Stock Pledge Agreement in
form as attached to this Amendment as Exhibit 1b."
(c) Section 1 of the Merger Agreement is hereby further
amended to delete thereform all defined terms that are no longer used in the
Merger Agreement after giving effect to the other amendments to the Merger
Agreement provided for in this Amendment.
2. AMENDMENTS TO SECTION 3.
(a) The parties acknowledge that the "Estimated Merger
Consideration" for the purposes of the Closing shall be deemed to be
$101,405,217.
(b) The following shall be added as Section 3(l) of the Merger
Agreement:
"Without limiting the rights to the adjustments of the
Estimated Merger Consideration contemplated by Section 3 of
this Agreement, Parent hereby waives any rights of indemnity
under Section 14d resulting from or arising out of the alleged
breach of any representation or warranty made by MFS,
including without limitation Sections 6e and 6f of this
Agreement, with respect to the balance sheet of Seller as of
March 31, 1998 audited by Xxxxxx Xxxxxxxx and provided to
Parent in connection with the transactions contemplated by
this Agreement or in respect of any alleged default under the
Guaranty Agreement, dated November 1, 1996, by MFS in favor of
Credit Lyonnais, New York Branch ."
3. AMENDMENTS TO SECTION 4.
(a) Section 4(a) of the Merger Agreement is hereby amended in
its entirety to read as follows:
"The Closing shall be deemed to occur on July 2, 1998, subject
to Parent's compliance with the next two sentences. On July 2,
1998, Parent shall (a) direct the Escrow Agent to pay the
Deposit to MFS on July 3, 1998 and (b) give irrevocable
instructions to pay to MFS in United States Dollars, in
immediately available funds, $5,000,000 on July 3, 1998. On
July 3, 1998, Parent shall deliver to MFS a promissory note
(the "Promissory Note") in the form attached hereto as Exhibit
4a payable to MFS, or order, in the principal amount equal the
excess of the Estimated Merger Consideration over $15,000,000,
in
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addition, on July 6, 1998, but only following MFS'
acknowledgment of receipt of the $5,000,000 payment
contemplated by clause (b) of the preceding sentence, Parent
shall caused to be filed the certificate of merger necessary
to effect the Merger."
(b) Section 4(b) of the Merger Agreement is hereby amended and
restated in its entirety to read as follows:
"After the Closing, and within two business days after the
determination of the Adjusted Stockholder's Equity and the Net
Advance Adjustment pursuant to Section 3 which results in a
determination that the Merger Consideration is different from
the Estimated Merger Consideration, Parent shall execute and
deliver to MFS, in exchange for MFS' delivery to Parent of the
original Promissory Note, a replacement Promissory Note in the
form attached hereto as Exhibit 4a payable to MFS, or order,
in the principal amount equal to the excess of the Merger
Consideration over (a) $15,000,000 plus (b) any prepayments or
other principal payments made under the Note as of such date
(from and after such replacement, "Promissory Note" being
deemed to refer to such replacement Promissory Note) and as to
which Parent shall be deemed to have made a partial prepayment
as of the date of such exchange in an amount equal to the sum
of (x) the excess, if any, of $1,000,000 over 1% of the Merger
Consideration plus (y) an interest factor at the rate of 9%
simple interest per annum on the amount determined pursuant to
clause (x) from the Closing Date through but not including the
date of the exchange."
4. AMENDMENT TO SECTION 5. The following shall be added as
Section 5(g) of the Merger Agreement:
"Parent has no plan or intention to cause there to occur a
merger between Buyer and Parent and Parent agrees that no such
merger shall occur within the three year period following the
Closing Date."
5. AMENDMENT TO SECTION 13. Section 13a of the Merger
Agreement is hereby amended by the addition of the following clause at the end
of such sentence:
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", except that Buyer's certificate of incorporation shall be
amended to change Buyer's name to MFS Network Technologies,
Inc."
6. AMENDMENT TO SECTION 17.
(a) Section 17a of the Merger Agreement is hereby amended by
replacing the second sentence thereof with the following:
"The Option may be exercised by MFS in whole or in part and
from time to time by delivery of a notice to the Parent
complying with Section 18d during the period commencing with
the earlier to occur of the Merger or the termination of this
Agreement pursuant to Section 11 and continuing through 5:00
PM, Eastern time, on the date six months following the payment
in full of amounts owing under the Promissory Note."
(b) Section 17c of the Merger Agreement is hereby amended by
inserting the following sentence at the end thereof:
"If Parent has failed to file a registration statement with
the Securities and Exchange Commission on or before July 22,
1998 or at any time during the period commencing on September
30, 1998 and continuing through the Registration Term Parent
has failed to use its reasonable efforts to cause such
registration statement to be so effective and available for
resale by MFS (Parent not to be liable hereunder due to delays
caused by the Securities and Exchange Commission requesting
additional information or amendments), MFS shall have the
right to receive cash for some or all of the Option in the
amount equal to the aggregate "spread" for the shares as to
which the Option is being exercised, as determined pursuant to
Section 17b."
7. PROMISSORY NOTE AS AGREEMENT. For all purposes of the
Merger Agreement, the Promissory Note shall be treated as an agreement
contemplated by the Merger Agreement and the issuance of and performance under
the Promissory Note shall be treated as a transaction contemplated by the Merger
Agreement.
8. CONFIRMATION OF THE MERGER AGREEMENT. Except as set forth
in this Amendment, the Merger Agreement is in all respects hereby ratified and
confirmed and shall continue in full force and effect as amended hereby.
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9. MISCELLANEOUS. This Amendment may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument. This Amendment shall in all
respects be construed in accordance with and governed by the laws of the State
of Delaware and the United States of America, without regard to the principles
of conflicts of laws thereof, and may only be enforced in the courts of the
State of Delaware, or the United States District Court for the District of
Delaware, the jurisdiction of which courts each party hereto hereby irrevocably
subjects itself to.
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IN WITNESS WHEREOF, the undersigned has caused this Amendment to be
duly executed and delivered as of the date first above written.
MFS Network Technologies, Inc. MFS Acquisition Corp.
By: /S/ XXXX XXXXXXXX By: /S/ XXXXXXX X. XXXXXX
----------------------------- ------------------------
Name: XXXX XXXXXXXX Name: XXXXXXX X. XXXXXX
Title: Title: PRESIDENT AND CEO
MFS Communications Company, Inc. Able Telcom Holding Corp.
By: /S/ XXXX XXXXXXXX By: /S/ XXXXXXX X. XXXXXX
----------------------------- ------------------------
Name: XXXX XXXXXXXX Name: XXXXXXX X. XXXXXX
Title: Title: PRESIDENT AND CEO
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