EXHIBIT 2.5.1.1
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
SECOND AMENDMENT, dated as of July 21, 1998, to Agreement and Plan of
Merger, dated as of April 26, 1998, as amended on July 2, 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. Amendment to Section 17. Section 17c of the Merger Agreement is
hereby amended by replacing the last sentence at the end thereof with the
following:
"If 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 in lieu of 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."
2. 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.
3. 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
Exhibit 2.5.1.1
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.
IN WITNESS WHEREOF, the undersigned has caused this Second Amendment to
be duly executed and delivered as of the date first above written.
MFS Network Technologies, Inc.
(f/k/a MFS Acquisition Corp.) Able Telcom Holding Corp.
By: /s/ By: /s/
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Name: Xxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
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Title: President Title: President and CEO
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MFS Communications Company, Inc.
By: /s/
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Name: Xxxxxxxxx X. Xxxxxxxxx
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Title: Vice President
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