Exhibit 2.21
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Amendment to Agreement and Plan of Merger (this "Amendment") is
entered into on September 24, 2001, among PentaStar Communications, Inc., a
Delaware corporation ("PentaStar"), PentaStar Acquisition Corp. VI, a Delaware
corporation (the "Acquiror"), Xxxxxxxxx Xxxxxx-Xxxxxxxx ("Xxxxxxxx"), Xxxx X.
Xxxxxxx ("Topping"), Xxxxxx X. Xxxxxx and Xxxxxxxxxxx X. Xxxxxxxx (individually,
a "Shareholder" and collectively, the "Shareholders").
Recitals
A. PentaStar, the Acquiror and the Shareholders are party to an
Agreement and Plan of Merger dated March 31, 2000 (the "Merger Agreement").
B. The parties desire to amend the Merger Agreement as set forth
herein.
Agreement
NOW, THEREFORE, in consideration of the premises, the mutual
representations, warranties and covenants set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the parties agree as follows:
1. Capitalized terms used but not defined herein have the meanings given
them in the Merger Agreement.
2. Section 2.1(n)(i) of the Merger Agreement is amended and restated to
read in its entirety as follows:
(i) The parties agree that, during the Earn-Out Period,
(A) the operations previously conducted by the Company in the Northern
California Region shall be conducted as a separate subsidiary or
division of PentaStar with no other operations, (B) the Acquiror shall
account for its operations in the Northern California Region in
accordance with the accounting practices of PentaStar and consistent
with PentaStar's application of GAAP, (C) the business of the Acquiror
shall be conducted by the Acquiror and/or PentaStar in the usual and
ordinary course of PentaStar's business operations and neither the
Acquiror nor PentaStar shall have any Liability to the Shareholders or
any other Person for so conducting the business and (D) in operating
the business of the Acquiror, the Acquiror and/or PentaStar may make
decisions or take action with respect to the business of the Acquiror
that impacts, directly or indirectly, positively or negatively, the
potential benefit of the Earn-Out arrangement. If GoldTop believes that
the Acquiror and/or PentaStar has made a decision or taken an action
which will have a material adverse effect on the potential benefit to
GoldTop of the Earn-Out arrangement, GoldTop shall so notify PentaStar
(which notice shall also set forth GoldTop's belief as to the potential
adverse effect thereof) within 10 Business Days of any of GoldTop
having knowledge of such decision or action, and PentaStar and GoldTop
shall thereafter attempt in good faith to determine the most
appropriate course of action to mitigate such adverse effect, if any.
However, the parties further agree that, absent willful conduct engaged
in by the Acquiror and/or PentaStar with the purpose of materially
affecting the potential benefit to GoldTop of the Earn-Out arrangement,
neither the Acquiror nor PentaStar shall have any Liability to GoldTop
or any other Person arising from or relating to its or their conduct of
the business of the Acquiror or any decisions made or actions taken
with respect
to the business of the Acquiror, including, without limitation, those
of the type contemplated by clauses (C) or (D) above or by the
following paragraph.
Nothing in this Agreement shall preclude PentaStar from
simultaneously selling into the areas of the Acquiror's operations
through other Subsidiaries or its own activities; provided, however,
that, during the Earn-Out Period only, PentaStar shall not call on,
solicit, market to or sell to any Person which, as of the date of
PentaStar's first contact with such Person, is an existing or
prospective customer of the Acquiror. The Acquiror shall not call on,
solicit, market to or sell to any Person which, as of the date of the
first contact with such Person, is an existing or prospective customer
of PentaStar. For purposes of the foregoing, an "existing customer" of
PentaStar shall mean a Person to whom a sale has been made by, or
involving as agent for the seller, PentaStar (including for this
purpose any Person or business (other than the Company) acquired by
PentaStar), through a Subsidiary or its own activities, within the
three-year period prior to the Closing Date. For purposes of the
foregoing, a "prospective customer" of PentaStar shall mean a Person
whom PentaStar (including for this purpose any Person or business
(acquired by PentaStar), through a Subsidiary or its own activities,
has made a proposal to on or prior to the date on which the Acquiror
first contacts such Person regarding a sale within the Acquiror's
business. For the purposes of the foregoing, an "existing customer" of
the Acquiror shall mean a Person to whom a sale has been made by, or
involving as agent for the seller, the Acquiror prior to the date a
sale has been made by, or involving as agent for the seller, PentaStar
(including for this purpose any Person or business (other than the
Company) acquired by PentaStar), through a Subsidiary or its own
activities. For purposes of the foregoing, a "prospective customer" of
the Acquiror shall mean a Person whom the Acquiror has made a proposal
to on or prior to the date on which PentaStar (including for this
purpose any Person or business (other than the Company) acquired by
PentaStar), through a Subsidiary or its own activities first contacts
such Person regarding a sale within the Acquiror's business.
Notwithstanding the foregoing, nothing in this paragraph shall preclude
the Acquiror from (A) selling long distance services to existing
customers of PentaStar in situations where the local PentaStar Regional
Manager has asked the Acquiror to assist in selling or procuring (at
various negotiated shared commission rates) long distance services or
(B) selling any communications services to United Title, Inc., Fidelity
National Finance, Inc. or Inflow Communications, Inc. in situations
where GoldTop has directly prospected and solicited such
above-referenced customers and is directly responsible for the sale to
such above-referenced customers.
3. Section 2.1(n)(ii) of the Merger Agreement is amended and restated to
read in its entirety as follows:
(ii) As soon as reasonably practicable after December 31,
2001 and in any event by March 31, 2002, PentaStar shall determine the
Earn-Out EBITA and prepare a written calculation of the Earn-Out Amount
(collectively, the "Earn-Out Financial Statements"). PentaStar's
determination under this Section 2.1(n)(ii) shall be made in accordance
with GAAP on a basis consistent with the accounting practices of
PentaStar and consistent with the financial statements of the Acquiror
included in the audited or unaudited, as the case may be, financial
statements filed by PentaStar in its Form 10-KSB and Forms 10-Q for
2001. PentaStar shall promptly provide a copy of the Earn-Out Financial
Statements to GoldTop. Within 30 days after receipt of the Earn-Out
Financial Statements, GoldTop shall, in a written notice to PentaStar,
either accept the Earn-Out Financial Statements or object to them by
describing in reasonably specific detail any proposed adjustments to
the Earn-Out
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Financial Statements and the estimated amounts of and reasons under
PentaStar's application of GAAP for such proposed adjustments. The
failure by GoldTop to object to the Earn-Out Financial Statements
within such 30-day period shall be deemed to be an acceptance by
GoldTop of the Earn-Out Financial Statements. If any adjustments to the
Earn-Out Financial Statements are proposed by GoldTop within such
30-day period, the dispute shall be resolved as provided in Section
2.1(o). The fees and expenses of BDO Xxxxxxx LLC for the preparation
and review of the financial statements relating to such dispute shall
be paid 50% by GoldTop and 50% by PentaStar.
4. Section 2.1(n)(iii) of the Merger Agreement is amended and restated to
read in its entirety as follows:
Within 10 Business Days after the later of the acceptance of the
Earn-Out Financial Statements by GoldTop or the resolution of any
disputes under Section 2.1(o), as the case may be, PentaStar will pay
the Earn-Out Amount, if any, to GoldTop (such payment will be referred
to as the "Second Closing"). The Earn-Out Amount shall be payable in a
combination of cash and PentaStar Common Stock as follows: (A) cash
consideration paid in the Second Closing shall be sufficient to ensure
that the total cash consideration paid pursuant to Section 2.1(k) and
this Section 2.1(n) shall not be less than 20% of the total
consideration paid to the Shareholders pursuant to the Closing and the
Second Closing; (B) in the event the Fair Market Value of PentaStar
Common Stock as determined on the last day of the Earn-Out Period is
higher than the Fair Market Value on June 30, 2001, the total
consideration paid in the form of PentaStar Common Stock pursuant to
Section 2.1(k) and this Section 2.1(n) shall not be less than 46% of
the total consideration paid to the Shareholders pursuant to the
Closing and Second Closing, such percentage to be determined by
PentaStar in its discretion; and (C) in the event the preceding clause
(B) does not apply, the composition of consideration between cash and
PentaStar Common Stock paid at the Second Closing shall be determined
by PentaStar in its discretion. Notwithstanding the foregoing, the
amount of cash included in the payment of the Earn-Out Amount shall not
be such as to cause the Purchase Price, taken as a whole, not to comply
with the continuity of interest test for a tax-free reorganization
under Section 368 of the Code, as determined in good faith by PentaStar
based on advice of counsel, unless PentaStar is responsible for the
increase in Tax Liability to the Shareholders directly resulting from
such non-compliance.
If any portion of the Earn-Out Amount is paid in PentaStar Common
Stock, the number of shares of PentaStar Common Stock to be issued
(which shall be rounded down to the nearest whole share, and PentaStar
shall pay GoldTop cash for any such fractional share as specified in
Section 2.1(i)) shall be determined by dividing (A) the Earn-Out Amount
that is being paid in PentaStar Common Stock by (B) the Fair Market
Value of a share of PentaStar Common Stock as of June 30, 2001. Any
cash portion of the Earn-Out Amount shall be paid by wire transfer to
an account or accounts designated by GoldTop. Certificates representing
any shares of PentaStar Common Stock issued in payment of the Earn-Out
Amount shall be mailed to GoldTop at the Shareholders' Agent's address
for notice purposes under this Agreement.
5. Section 2.1(n)(iv) of the Merger Agreement is amended and restated, and
a Section 2.1(n)(v) is added to the Merger Agreement, each to read in its
entirety as follows:
(iv) In the event that PentaStar sells the operations
conducted by the Acquiror (whether separately or as part of a sale of
all or substantially all of the assets or operations of PentaStar, and
whether by sale of assets or stock of PentaStar or the Acquiror, by
merger of
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PentaStar or the Acquiror or otherwise) prior to the end of the
Earn-Out Period, PentaStar shall require the purchaser to continue to
account for such operations separately and agree to assume the
obligation of PentaStar to pay the Earn-Out Amount as provided in this
Section 2.1(n). In that event, the purchaser may pay the Earn-Out
Amount, in its sole discretion, in cash, such purchaser's or any
parent's common equity securities based on the fair market value of
such securities on the relevant date as provided in this Section
2.1(n), or any combination thereof.
(v) (A) If a PentaStar Liquidity Event occurs prior to
the end of the Earn-Out Period, then GoldTop shall have the option,
exercisable by notice to PentaStar at least ten Business Days prior to
the date of consummation of the Liquidity Event, of annualizing the
Earn-Out EBITA for the period from January 1, 2001 until the Liquidity
Event for purposes of calculating the deemed Earn-Out EBITA for the
period commencing January 1, 2001 and ending December 31, 2001.
(B) If GoldTop does not exercise its option to
annualize the Earn-Out EBITA, then PentaStar shall have the option,
exercisable by notice to GoldTop on or before the date of consummation
of the Liquidity Event, to pay an amount equal to (1) $225,000 if the
PentaStar Liquidity Event occurs on or before June 30, 2001, or (2)
$75,000 if the PentaStar Liquidity Event occurs between July 1, 2001
and December 31, 2001. If PentaStar exercises its option pursuant to
this Section 2.1(n)(v)(B), then GoldTop shall have no further right to
receive the Earn-Out Amount. All amounts payable pursuant to Section
2.1(n)(v)(B) shall be paid within ten Business Days after the Liquidity
Event.
(C) If GoldTop does not exercise its option pursuant
to Section 2.1(n)(v)(A) and PentaStar does not exercise its option
pursuant to Section 2.1(n)(v)(B), then the Earn-Out shall continue as
set forth in Section 2.1(n).
6. Section 5.6 of the Merger Agreement is amended and restated to read in
its entirety as follows:
5.6. Financial Statements .
(a) Shareholder Assistance. The Shareholders shall, upon
request of PentaStar, cooperate with PentaStar and render such
assistance to PentaStar and its accountants as may be required to
produce such historical and on-going financial statements and audits as
PentaStar may request, including, without limitation, signing
management representation letters reasonably requested by PentaStar's
auditors. The Shareholders acknowledge that PentaStar may be required
by applicable Legal Requirements to include audited financial
statements with respect to the business of the Company in reports filed
with the SEC and other governmental agencies and that the inability to
audit the financial statements as of the Effective Date promptly after
the Closing could have a material adverse effect on PentaStar.
PentaStar and the Acquiror shall make available to the Shareholders
such existing books and records of the Company as are required by the
Shareholders to produce Tax Returns, financial statements and audit
responses with respect to periods ending prior to the Closing Date.
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(b) Acquiror Reporting. The Acquiror shall produce and
deliver to PentaStar historical and on-going financial statements,
monthly management plan and review reports and annual budget/forecasts,
in form and substance acceptable to PentaStar. The monthly management
plan and review reports shall contain an analysis of the Acquiror's
sales activity, including a sales forecast and an analysis of order
activity for the preceding month which shall detail and summarize new
orders, cancellations, installations and month-end backlog.
Additionally, the Acquiror shall prepare and deliver to PentaStar
monthly calculations of revenue (installed orders for up-front
commissions and residual payments received for residual commissions),
using PentaStar's GAAP method of accounting and revenue recognition for
the month, commission expense incurred associated with those revenues,
and all other direct and other expenses of the Acquiror for such month
and an initial calculation of EBITA (however such calculation shall not
be binding on any party for purposes of determining Earn-Out EBITA,
which shall be determined as set forth in Section 2.3(n)). The Acquiror
shall also prepare and deliver to PentaStar monthly calculations, using
PentaStar's GAAP method of accounting, showing cash, accounts
receivable, net fixed assets and any other assets, accrued commissions,
accounts payable and any other Liabilities and a month-end balance
sheet for the Acquiror. Other financial statement calculations may be
required of the Acquiror to comply with PentaStar's reporting
obligations under applicable securities laws as a public company and to
assist in any audit activities PentaStar needs to engage in for
Earn-Out calculations, lender covenant purposes or other typical types
of reports necessary for overall corporate governance and operations.
(c) PentaStar Reporting. PentaStar shall consolidate the
above, appropriately prepared financial statements into overall
financial statements of PentaStar for reporting obligations under
applicable securities laws, including the preparation and filing of
annual and quarterly reports, lender covenant purposes and other
typical types of reports necessary for overall corporate governance and
operations.
7. Section 5.10 of the Merger Agreement is amended by adding the following
to the beginning thereof:
Reference is made to Section 5.12. Whenever the term "PentaStar Shares"
is used in this Section 5.10 with respect to Xxxxxxxx or Topping only,
"PentaStar Shares" shall not include any Earn-Out Shares (as defined in
Section 5.12).
8. A Section 5.12 is added to the Merger Agreement, to read in its
entirety as follows:
5.12 Transfer Restrictions. For purposes of this Section
5.12 only, references to a "Shareholder" shall mean Xxxxxxxx or
Topping, as the case may be, but shall not include Xx. Xxxxxx or Xx.
Xxxxxxxx. Unless otherwise agreed by PentaStar, except for transfers by
a Shareholder to (a) immediate family members of such Shareholder who
agree to be bound by the restrictions set forth in this Section 5.12
(and a copy of such agreement is furnished to PentaStar prior to the
transfer), (b) trusts, limited partnerships or other estate planning
entities for the benefit of such Shareholder or family members of such
Shareholder, the trustees, partners or other persons having authority
to bind the trust, limited partnership or other estate planning entity
of which agree to be bound by such restrictions (and a copy of such
agreement is furnished to PentaStar prior to the transfer), or (c) any
charitable organization that qualifies for receipt of charitable
contributions under Section 170(c) of the Code and such organization
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agrees to be bound by such restrictions (and a copy of such agreement
is furnished to PentaStar prior to the transfer), each Shareholder
agrees that such Shareholder shall not sell, assign, exchange,
transfer, pledge or otherwise dispose of at any time prior to April 1,
2002 any of the PentaStar Shares received by such Shareholder pursuant
to this Agreement in respect of the Earn-Out Amount ("Earn-Out
Shares"). Thereafter, up to 25% of the Earn-Out Shares received by such
Shareholder may be resold at any time, and an additional 25% of the
Earn-Out Shares received by such Shareholder may be resold by the
Shareholder beginning on or after October 1, 2002. Any remaining
Earn-Out Shares may not be sold until the earlier to occur of (w) the
sale of all or substantially all of the assets or outstanding shares of
PentaStar, whether by way of merger, acquisition or other method
(except a merger or consolidation immediately after which the Persons
who were shareholders of PentaStar before the transaction own a
majority of the outstanding equity securities of the surviving or
resulting entity) (a "PentaStar Liquidity Event") or (x) October 26,
2004. Notwithstanding anything to the contrary in this Section 5.12,
none of the Earn-Out Shares which are subject to the Principal
Shareholder's Escrow Agreement may be sold, assigned, exchanged,
transferred, pledged or otherwise disposed of except as set forth in
the Principal Shareholder's Escrow Agreement. Certificates for the
Earn-Out Shares delivered to the Shareholders pursuant to the Agreement
shall bear a legend substantially in the form set forth below as long
as applicable:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THAT CERTAIN
AGREEMENT AND PLAN OF MERGER ENTERED INTO ON MARCH 31, 2000, TO BE
EFFECTIVE JANUARY 1, 2000, AS AMENDED BY AMENDMENT TO MERGER AGREEMENT
DATED SEPTEMBER ____, 2001, (THE "AGREEMENT") BY AND AMONG THE ISSUER,
PENTASTAR ACQUISITION CORP. V, VI, RESOURCE COMMUNICATIONS, INC. AND
THE SHAREHOLDERS OF RESOURCE COMMUNICATIONS, INC. PRIOR TO THE
EXPIRATION OF THE HOLDING PERIODS SET FORTH IN THE AGREEMENT, SUCH
SHARES MAY NOT BE SOLD, ASSIGNED, EXCHANGED, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF WITHOUT THE WRITTEN CONSENT OF THE ISSUER, AND
THE ISSUER SHALL NOT BE REQUIRED TO GIVE EFFECT TO ANY ATTEMPTED SALE,
ASSIGNMENT, EXCHANGE, TRANSFER, PLEDGE OR OTHER DISPOSITION WHICH
VIOLATES THE AGREEMENT. UPON THE WRITTEN REQUEST OF THE HOLDER OF THIS
CERTIFICATE, THE ISSUER AGREES TO REMOVE THIS RESTRICTIVE LEGEND (AND
ANY STOP ORDER RELATING TO THIS RESTRICTIVE LEGEND PLACED WITH THE
TRANSFER AGENT) WHEN THE APPLICABLE HOLDING PERIOD HAS EXPIRED.
PentaStar shall issue separate certificates to each Shareholder
representing the shares of PentaStar Shares subject to each of the
three periods of restriction contemplated by this Section 5.12.
The restrictions set forth above in this Section 5.12 shall be in
addition to any restrictions on transfer set forth in Section 3.1(u) or
imposed by the Securities Act and applicable state securities laws.
Each Shareholder also agrees to comply with such restrictions, and in
particular recognizes that such Shareholder will not be able to offer
or sell any of the PentaStar Shares issued pursuant to Section 2.1(n)
pursuant to Rule 144
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promulgated under the Securities Act for at least one year after the
issuance of such shares under Section 2.1(n) even though one or more of
the holding periods set forth above in this Section 5.12 may have
expired. Notwithstanding the foregoing, the restrictions set forth in
this Section 5.12 shall cease to apply in the event that PentaStar
ceases to own, directly or indirectly, fifty percent or more of the
equity interests of the Surviving Corporation or any successor to the
Surviving Corporation.
9. The definition of "Earn-Out Amount" set forth in Exhibit 1.1(a) to the
Merger Agreement is amended and restated to read in its entirety as follows:
Earn-Out Amount means the remainder of (a) three times
Earn-Out EBITA, plus (b) one and one-quarter times the positive
difference, if any, between (i) long distance services commission
revenues received in the month of December 2001 by PentaStar and any of
its Subsidiaries from any major long distance carriers (including,
without limitation, Qwest Communications International, Inc., Cable &
Wireless, Plc, WorldCom, Inc., AT&T, Inc. and Sprint, Inc.), minus (ii)
long distance services commission revenues received in the month of
December 2000 by PentaStar and any of its Subsidiaries from such
carriers, but excluding in each case any long distance services
commission revenues of the Acquiror and Acquired Monthly Run-Rate Long
Distance Commissions from any businesses actually acquired by PentaStar
or any of its Subsidiaries during the period from January 1, 2001
through December 31, 2001, minus (c) $925,000 (representing the Cash
Portion of the Purchase Price), minus (d) $800,000 (representing the
$1,300,000 amount described in Section 2.1(k)(i)(b) less $500,000),
minus (e) the amount of the Retained Liabilities described in clause
(b) of the definition of Retained Liabilities, and minus (f) amounts
paid by the Acquiror in respect of Closing Date Liabilities (other than
those Closing Date Liabilities in respect of which there is a reduction
of the Purchase Price pursuant to Section 2.1(k)(i)(a)(4)); provided,
however, that in no event shall the Earn-Out Amount be such as would
cause the Earn-Out Amount plus the amounts referred to in clauses (c)
through (f) of this definition to exceed $2,725,000.
10. A definition of "Earn-Out EBITA" is added to Exhibit 1.1(a) to the
Merger Agreement, to read in its entirety as follows:
Earn-Out EBITA means the EBITA of the Acquiror for the
Earn-Out Period, including, without limitation, all earnings of the
Acquiror related to the telecommunications agent business, including,
without limitation, (a) payments earned during the Earn-Out Period for
consulting revenues, referral fees and commissions for local access and
(b) payments actually received during the Earn-Out Period for in
respect of residual payment rights; provided, however, that in any
event Earn-Out EBITA (w) shall not include any allocation of PentaStar
corporate headquarters expense but shall include allocation of a pro
rata portion of direct expenses of PentaStar to the extent PentaStar
provides services to the Acquiror, (x) shall not include any EBITA
associated with any expansion offices, (y) shall include an expense
allocation equal to the costs incurred by the Acquiror to satisfy its
obligations under Section 5.6(b), and (z) shall include revenues from,
direct expenses associated with, and allocation expenses for costs
associated with assistance from other PentaStar offices in implementing
the services sold by the Acquiror associated with, sales to United
Title, Inc., Fidelity National Finance, Inc. or Inflow Communications,
Inc. in situations where GoldTop has directly prospected and solicited
such customer and is directly responsible for the sale to
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such above-referenced customer.
11. The definition of "Earn-Out Period" set forth in Exhibit 1.1(a) to the
Merger Agreement is amended and restated to read in its entirety as follows:
Earn-Out Period means the period commencing January 1, 2001
and ending December 31, 2001.
12. The following definitions set forth in Exhibit 1.1(a) to the Merger
Agreement are deleted:
a. Earn-Out Period One;
b. Earn-Out Period Two;
c. Earn-Out Period Three; and
d. Earn-Out Periods Total.
13. The definition of "EBITA" set forth in Exhibit 1.1(a) to the Merger
Agreement is amended and restated to read in its entirety as follows:
EBITA means earnings before interest, taxes and amortization,
determined in accordance with GAAP and on a basis consistent with the
accounting practices of PentaStar and consistent with the financial
statements of the Acquiror included in the audited or unaudited, as the
case may be, financial statements filed by PentaStar in its Form 10-KSB
and Forms 10-Q for 2001, including PentaStar's GAAP methods of revenue
recognition for residual commission payments and GAAP consistent with
booking prior paid salesperson commissions as prepaid commissions less
an appropriate reserve for contract cancellations and salesperson
terminations and expensing salesperson commissions at the time revenue
is recognized.
14. Definitions of "Acquired Monthly Run-Rate Long Distance Commissions,"
"Earn-Out Shares" and "Liquidity Event" are added to Exhibit 1.1(a) to the
Merger Agreement, to read in their entirety as follows:
Acquired Monthly Run-Rate Long Distance Commissions means the
monthly long distance services commission revenues of any
business acquired by PentaStar or any of its Subsidiaries for
the full calendar month immediately preceding the month in
which the acquisition by PentaStar or any of its Subsidiaries
actually occurs, determined in accordance with GAAP and on a
basis consistent with the accounting practices of PentaStar.
Earn-Out Shares has the meaning given it in Section 5.12.
Liquidity Event has the meaning given it in Section 5.12.
15. Concurrently with the execution of this Amendment, the parties shall
execute and deliver to the Escrow Agent instructions in the form attached as
Exhibit A hereto, pursuant to which the stock certificates representing the
PentaStar Shares held by the Escrow Agent pursuant to the Escrow Agreement shall
be
8
delivered to PentaStar. Upon receipt thereof, PentaStar shall cause such
certificates to be divided into stock certificates representing the number of
shares set forth on Exhibit B, for delivery as set forth thereon. The parties
hereby acknowledge and agree that a total of 31,252 PentaStar Shares (7,813
shares per Shareholder) held in the EBITA Escrow are to be returned to
PentaStar, as such shares have been forfeited by the Shareholders under the
terms of the Merger Agreement. Pursuant to the instructions in Exhibit A, such
PentaStar Shares shall be delivered to PentaStar. The Shareholders shall execute
and deliver any stock powers required to be delivered to PentaStar or its
transfer agent pursuant to this Section 15.
16. Xxxxxxxx and Topping each hereby make the representations and
warranties set forth in Section 3.1(u) of the Merger Agreement, and for such
purpose Exhibit 3.1(u)(ii) referred to therein shall mean Exhibit 3.1(u)(ii)
attached hereto.
17. Concurrently with the execution of this Amendment, the Shareholders who
have spouses shall cause such spouses to each execute and deliver to PentaStar a
Consent of Spouse in the applicable form of Exhibit C, just as was delivered in
connection with the execution and delivery of the Merger Agreement.
18. Exhibit 2.1(n)(iv) to the Merger Agreement is hereby deleted.
19. The Merger Agreement, as amended by this Amendment, remains in full
force and effect.
20. Goldberg, Topping, PentaStar and the Acquiror agree that (a) the phrase
"on or before September 30, 2001" appearing in the fifth line of Section 2.1 of
each of the two Principal Shareholder's Escrow Agreements is hereby deleted and
(b) the two Principal Shareholder's Escrow Agreements, as amended by clause (a)
above, remain in full force and effect.
[REMAINDER OF THE PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the date first set forth above.
PENTASTAR:
PENTASTAR COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
ACQUIROR:
PENTASTAR ACQUISITION CORP. VI
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
SHAREHOLDERS:
/s/ Xxxxxxxxx Xxxxxx-Xxxxxxxx
----------------------------------------
Xxxxxxxxx Xxxxxx-Xxxxxxxx
/s/ Xxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxxxxxx X. Xxxxxxxx
[SIGNATURE PAGE TO AMENDMENT TO AGREEMENT AND PLAN OF MERGER]
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