Exhibit 2.8
EARNOUT AGREEMENT, dated as of October 30, 1998, to the Stock Purchase
Agreement, dated July 22, 1998 and the First Amendment to Stock Purchase
Agreement, dated as of August 18, 1998 (the "Stock Purchase Agreement") by and
between AvTel Communications, Inc., a Delaware corporation ("AvTel"), and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Alliance Capital Investments Corp.
("Alliance Capital"), ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇.
1) Capitalized terms not otherwise defined herein are used herein as set
forth in the Stock Purchase Agreement.
2) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ shall be defined herein as the "Employee Stockholders"
and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Alliance Capital, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
shall be defined herein as the "Non-Employee Stockholders".
3) At the Closing, AvTel will issue a total of 140,140 shares of AvTel Common
Stock (the "ALTERNATE DELIVERED EARNOUT SHARES") to the following Stockholders:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Alliance Capital, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC and ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇. The number of Alternate Delivered Earnout Shares has been determined
as if RLI had already met the requirements set forth in Section 1.2.2(b)(2),
using $10.00 as the divisor for the Employee Shareholders and $7.00 as the
divisor for the Non-Employee Shareholders. For purposes of calculating the
number of Alternate Delivered Earnout Shares to be received by each such named
Stockholder, the numbers shall be rounded to the nearest whole share as required
to avoid issuance of fractional shares. The parties hereto agree that the
Alternate Delivered Earnout Shares are delivered to such named Stockholders in
full satisfaction of any and all obligations of AvTel to deliver Earnout Shares
to such named Stockholders and such Shares shall not be refundable. Thus, the
Alternate Delivered Earnout Shares will be delivered at Closing as follows:
Stockholder Alternate Delivered Earnout Shares
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 93,224
▇▇▇▇▇ ▇▇▇▇ 5,215
▇▇▇▇▇▇▇ ▇▇▇▇▇ 5,215
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 5,215
Alliance Capital 8,241
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 8,851
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 7,450
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 533
▇▇▇▇ ▇▇▇▇▇▇▇ 3,098
▇▇▇▇ ▇▇▇▇▇▇ 3,098
4) The Alternate Delivered Earnout Shares to be included in the definition of
"Registrable Shares" under Section 5.2.2 (B) of the First Amendment to the Stock
Purchase Agreement, dated as of August 18, 1998 (the "First Amendment") by and
between AvTel, the Stockholders and RLI.
5) Except as amended hereby, the Stock Purchase Agreement shall continue
unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
AVTEL COMMUNICATIONS,INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, LLC
By:/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇ ▇▇▇▇ /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
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/S/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /S/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
ALLIANCE CAPITAL INVESTMENTS CORP.
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇, Partner