AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "Amendment"), is
made and entered into as of June 14, 2000, by and among VDC COMMUNICATIONS,
INC., a Delaware corporation ("Acquiror"), Voice & Data Communications (Latin
America), Inc., a Delaware corporation and wholly-owned subsidiary of Acquiror
("Sub"), RARE TELEPHONY, INC., a Nevada corporation (f/k/a Washoe Technology
Corporation) ("Rare Telephony"), and those individuals and entities whose names
appear on the signature page hereof in their capacity as holders of all of the
outstanding common stock of Rare Telephony (the "Rare Telephony Shareholders").
Recitals:
WHEREAS, the parties hereto have entered into an Agreement and Plan of
Merger dated as of May 25, 2000 (the "Merger Agreement") pursuant to which Rare
Telephony shall merge with and into Sub (the "Merger");
WHEREAS, the parties hereto desire to amend the Merger Agreement in the
manner set forth herein effective as of the date hereof; and
WHEREAS, any capitalized term used but not defined herein shall have
the meaning ascribed to such term in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree that the Merger Agreement is hereby amended as follows:
1. Section 1.3(b)(i) is hereby amended in its entirety to read:
"(i) At the Closing, 775,512 shares of Acquiror Common Stock
shall be delivered to the Rare Telephony Shareholders; provided, however, that
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall contemporaneously deliver a certificate representing
155,102 shares of Acquiror Common Stock (representing 10% of the Merger
Consideration) issued in his name to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in his capacity as Chief
Financial Officer of the Acquiror, to hold in escrow pending receipt of all
state and federal regulatory approvals required in connection with the Merger;
and"
2. Section 7.1(c) is hereby amended in its entirety to read:
"(c) Escrow Claim. Upon notice to the Rare Telephony Shareholders (or
any one of them as specified in the Escrow Agreement) specifying in reasonable
detail the basis for such setoff, either Acquiror or Sub may give notice of a
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Claim under the Escrow Agreement in such amount to which it may be entitled
under this Article VII. Neither the exercise of nor the failure to give a notice
of a Claim under the Escrow Agreement will constitute an election of remedies or
limit Acquiror or Sub in any manner in the enforcement of any other remedies
that may be available to either of them."
3. Section 7.1(e)(i) is hereby amended in its entirety to read:
"(i) Third Party Claims. In the event that any Claim for which
a party (the "Indemnitee") would be entitled to indemnification under this
Agreement is asserted against or sought to be collected from the Indemnitee by a
third party the Indemnitee shall promptly notify the indemnifying party or
parties (the "Indemnitor") of such Claim, specifying the nature thereof, the
applicable provision in this Agreement or other instrument under which the Claim
arises, and the amount or the estimated amount thereof (the "Claim Notice");
provided, however, that the failure to notify the Indemnitor will not relieve
the Indemnitor of any liability that it may have to any Indemnitee, except to
the extent that the Indemnitor demonstrates that the defense of such action is
materially prejudiced by the Indemnitee's failure to give such notice. The
Indemnitor shall have thirty (30) calendar days (or, if shorter, a period to a
date not less than ten (10) calendar days prior to when a responsive pleading or
other document is required to be filed but in no event less than ten (10)
calendar days from delivery or mailing of the Claim Notice) (the "Notice
Period") to notify the Indemnitee (a) whether or not it disputes the Claim and
(b) if liability hereunder is not disputed, whether or not it desires to defend
the Indemnitee. If the Indemnitor elects to defend by appropriate proceedings,
such proceedings shall be promptly settled or prosecuted to a final conclusion
in such a manner as to avoid any risk of damage to the Indemnitee; and all costs
and expenses of such proceedings and the amount of any judgment shall be paid by
the Indemnitor.
If the Indemnitee desires to participate in, but not control, any such
defense or settlement, it may do so at its sole cost and expense. If the
Indemnitor has disputed the Claim, as provided above, and shall not defend such
Claim, the Indemnitee shall have the right to control the defense or settlement
of such Claim, in its sole discretion, and shall be reimbursed by the Indemnitor
for its reasonable costs and expenses of such defense (provided that the
Indemnitee is entitled to such reimbursement under this Agreement)."
4. Except as otherwise set forth herein, the terms of the Merger Agreement
shall remain in full force and effect.
5. This Amendment may be executed in two or more counterparts and
delivered via facsimile, each of which shall be deemed to be an original, and
all of which together shall be deemed to be one and the same instrument.
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6. This Amendment shall be governed by and construed in accordance with
the laws of Connecticut, without regard to the laws that might otherwise govern
under principles of conflicts of laws applicable thereto.
IN WITNESS WHEREOF, Acquiror, Sub, Rare Telephony and the Rare
Telephony Shareholders have caused this Agreement to be signed, effective as of
the date first written above.
Attest: VDC COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------- ----------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
Attest: VOICE & DATA COMMUNICATIONS
(LATIN AMERICA), INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------- ----------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
Attest: RARE TELEPHONY, INC.
By: /s/ ▇▇▇▇▇ Santa ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------- ----------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer and President
Witness RARE TELEPHONY SHAREHOLDERS
/s/ ▇▇▇▇▇ Santa Lucia /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------- -------------------------------------------------
Name: ▇▇▇▇▇ Santa Lucia Signature
Address: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address:
Ownership Percentage:
Witness
3
/s/ ▇▇▇▇▇ Santa Lucia /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------- -------------------------------------------------
Name: ▇▇▇▇▇ Santa Lucia Signature
Address: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
Ownership Percentage:
Witness
/s/ ▇▇▇▇▇ Santa Lucia /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------- -------------------------------------------------
Name: ▇▇▇▇▇ Santa Lucia Signature
Address: Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address:
Ownership Percentage:
Witness
/s/ ▇▇▇▇▇ Santa Lucia /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------- -------------------------------------------------
Name: ▇▇▇▇▇ Santa Lucia Signature
Address: Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
Ownership Percentage:
Witness
/s/ ▇▇▇▇▇ Santa Lucia /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------- -------------------------------------------------
Name: ▇▇▇▇▇ Santa Lucia Signature
Address: Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
Ownership Percentage:
Witness
/s/ ▇▇▇▇▇ Santa Lucia
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ -------------------------------------------------
----------------------------------------- Signature
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ Santa ▇▇▇▇▇
Address: Address:
Ownership Percentage:
Witness
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇ Santa ▇▇▇▇▇ -------------------------------------------------
----------------------------------------- Signature
Name: ▇▇▇▇▇ Santa Lucia Name: Network Consulting Group, Inc.
Address: Address:
Ownership Percentage:
[signatures continue onto next page]
Witness
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Signature
----------------------------------------- Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Address:
Address:
Ownership Percentage:
Witness
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Jr. Signature
----------------------------------------- Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Address:
Address:
Ownership Percentage:
Witness
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ Santa ▇▇▇▇▇ -------------------------------------------------
----------------------------------------- Signature
Name: ▇▇▇▇▇ Santa Lucia Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: Address:
Ownership Percentage:
5
Witness
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ Santa ▇▇▇▇▇ -------------------------------------------------
----------------------------------------- Signature
Name: ▇▇▇▇▇ Santa Lucia Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address: Address:
Ownership Percentage:
Witness
/s/ ▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ Santa ▇▇▇▇▇ -------------------------------------------------
----------------------------------------- Signature
Name: ▇▇▇▇▇ Santa Lucia Name: ▇▇▇▇▇▇ ▇▇▇▇
Address: Address:
Ownership Percentage:
Witness
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ Santa ▇▇▇▇▇ -------------------------------------------------
----------------------------------------- Signature
Name: ▇▇▇▇▇ Santa Lucia Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address: Address:
Ownership Percentage:
Witness
/s/ ▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ -------------------------------------------------
----------------------------------------- Signature
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇
Address: Address:
Ownership Percentage:
Witness
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ Santa ▇▇▇▇▇ -------------------------------------------------
----------------------------------------- Signature
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Name: ▇▇▇▇▇ Santa Lucia Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Address: Address:
Ownership Percentage:
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