-------------------------------------------------------------------------------
FIRST AMENDMENT TO
RESTATED ASSET PURCHASE AGREEMENT
dated as of the 6th day of October, 1997
by and between
ADVANCED COMMUNICATIONS GROUP, INC.
(PURCHASER)
and
ADVANCED COMMUNICATIONS CORP.
(OLD ACG)
and
SWITCHBOARD OF OKLAHOMA CITY, INC.
(SELLER)
and
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND
▇▇▇▇▇ ▇▇▇▇▇▇, AS ATTORNEY-IN-FACT FOR ▇▇▇▇▇ ▇▇▇▇▇▇, A MINOR
(SHAREHOLDERS)
-------------------------------------------------------------------------------
TABLE OF CONTENTS
1. AMENDMENTS ............................................................. 1
1.1 Amendment of Section 3.17 ......................................... 1
1.2 Addition of Section 8.6 ........................................... 2
2. MISCELLANEOUS .......................................................... 3
2.1 Counterparts ...................................................... 3
2.2 Status of Agreement ............................................... 3
2.3 Integration Clause ................................................ 3
FIRST AMENDMENT TO RESTATED ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO RESTATED ASSET PURCHASE AGREEMENT (the "Agreement")
is executed as of January 7, 1998 but effective for all purposes as of the 6th
day of October, 1997, by and between ADVANCED COMMUNICATIONS GROUP, INC., a
Delaware corporation organized in September 1997 ("Purchaser"), ADVANCED
COMMUNICATIONS CORP., (formerly named Advanced Communications Group, Inc.), a
Delaware corporation organized in June 1996 ("Old ACG"), SWITCHBOARD OF
OKLAHOMA CITY, INC., an Oklahoma corporation ("Seller"), and each of ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇▇, AS ATTORNEY-IN-FACT FOR
▇▇▇▇▇ ▇▇▇▇▇▇, A MINOR (individually, a "Shareholder" and, collectively, the
"Shareholders"), the owners of all the issued and outstanding shares of capital
stock of Seller.
RECITALS
WHEREAS, the parties entered into a Restated Asset Purchase Agreement
(the "Original Agreement") dated as of October 6, 1997; and
WHEREAS, the parties wish to amend the Original Agreement to reflect
the Seller's status as a Subchapter S corporation and to supplement the
related representations and warranties accordingly; and
WHEREAS, all capitalized terms used herein and in the Original
Agreement, unless otherwise defined herein, shall have the meanings given
them in the Original Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements herein contained, the
parties hereby agree as follows:
1. AMENDMENTS
1.1 Amendment of Section 3.17(i). The phrase "Subchapter C" marked in pen
in the first sentence of Section 3.17 is deleted and the phrase "Subchapter S"
is substituted therefor.
1.2 Addition to Section 3.17(i). There is added as Section 3.17(viii) of
the Original Agreement:
Except as set forth on Schedule 3.17, there are no examinations in progress
or claims against it for Federal, state and other Taxes for any period or
periods prior to and including the Balance Sheet Date and no notice of any
claim for Taxes, whether pending or threatened, has been received. All Tax
(whether or not shown on any Tax return) owed by the Seller, any member of
an affiliated or consolidated group which includes or included the Seller
or with respect to any payment made or deemed made by the Seller has been
paid. The amounts shown as accruals for Taxes on the Seller
Financial Statements are sufficient for the payment of all Taxes of the
kinds indicated for all fiscal periods ended on or before that date. The
Seller made an election to be taxed under the provisions of Subchapter S of
the Code and has not, within the past five years, been taxed under the
provisions of Subchapter C of the Code. The Seller has a taxable year ended
December 31 and has not made an election to retain a fiscal year other than
December 31 under Section 444 of the Code. The Seller's methods of
accounting have not changed in the past five years. The Seller is not an
investment company as defined in Section 351(e)(1) of the Code. The
representations and warranties set forth in this paragraph shall,
notwithstanding the introductory paragraph of Section 3, survive until such
time as the limitations period has run for all Tax periods ended on or
prior to the Closing Date.
1.3 Addition of Section 8.6. The following is added as Section 8.6 of the
Original Agreement:
8.6 Preparation and Filing of Tax Returns
(i) The Shareholders shall file or cause to be filed all separate
Federal income Tax Returns (and any state and local Tax Returns filed on
the basis similar to that of S corporations under Federal income Tax rules)
of the Seller for all taxable periods. Each Stockholder shall pay or cause
to be paid all Tax liabilities (in excess of all amounts already paid with
respect thereto or properly accrued or reserved with respect thereto on the
Seller Financial Statements) shown by such Returns to be due.
(ii) Each party hereto shall, and shall cause its subsidiaries and
affiliates to, provide to each of the other parties hereto such cooperation
and information as any of them reasonably may request in filing any Return,
amended Return or claim for refund, determining a liability for Taxes or a
right to refund of Taxes or in conducting any audit or other proceeding in
respect of Taxes. Such cooperation and information shall include providing
copies of all relevant portions of relevant Returns, together with relevant
accompanying schedules and work papers, relevant documents relating to
rulings or other determinations by taxing authorities and relevant records
concerning the ownership and Tax basis of property, which such party may
possess. Each party shall make its employees reasonably available on a
mutually convenient basis at its cost to provide explanation of any
documents or information so provided. Subject to the preceding sentence,
each party required to file Returns pursuant to this Agreement shall bear
all costs of filing such Returns.
-2-
2. MISCELLANEOUS
2.1 Counterparts. For the convenience of the parties, any number of
counterparts of this Amendment may be executed by any one or more parties
hereto, and each such executed counterpart shall be, and shall be deemed to be,
an original, but all of which shall constitute, and shall be deemed to
constitute, in the aggregate but one and the same instrument. A facsimile copy
of a signature page to this Amendment shall be accorded the same force and
effect as a manually executed original counterpart of a signature page to this
Amendment.
2.2 Status of Agreement. The Original Agreement in the form originally
executed and delivered by the parties thereto and as specifically modified and
amended as set forth in this Amendment, shall remain in full force and effect.
2.3 Integration Clause. The Original Agreement, as modified by this
Agreement, represents the final agreement among the parties relating to its
subject matter and may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PURCHASER:
ADVANCED COMMUNICATIONS GROUP, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive
Officer
-3-
ADVANCED COMMUNICATIONS CORP.
By:
-----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive
Officer
SELLER:
SWITCHBOARD OF OKLAHOMA
CITY, INC.
By:
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
SHAREHOLDERS:
--------------------------------------
▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-4-
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, as Attorney-in-Fact for
▇▇▇▇▇ ▇▇▇▇▇▇, a Minor
-5-