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
Jeffrey Leventhal, Sarah Choi, Richard Reich, Matthew Blumenthal, Mark
Sackstein, Neil Brenner, Andy Denton, Alliance Capital Investments Corp.
("Alliance Capital"), Leventhal Paget, LLC and Rosen & Tetelman.
1) Capitalized terms not otherwise defined herein are used herein as set
forth in the Stock Purchase Agreement.
2) Jeffrey Leventhal, Sarah Choi, Richard Reich, Matthew Blumenthal, Neil
Brenner and Andy Denton shall be defined herein as the "Employee Stockholders"
and Mark Sackstein, Alliance Capital, Leventhal Paget, LLC and Rosen & Tetelman
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:
Jeffrey P. Leventhal, Sarah Choi, Rich Reich, Matt Blumenthal, Mark Sackstein,
Neil Brenner, Andy Denton, Alliance Capital, Leventhal Paget, LLC and Rosen &
Tetelman. 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
- ----------- ----------------------------------
Jeffrey Leventhal 93,224
Sarah Choi 5,215
Richard Reich 5,215
Matthew Blumenthal 5,215
Alliance Capital 8,241
Leventhal Paget 8,851
Mark Sackstein 7,450
Rosen & Tetelman 533
Neil Brenner 3,098
Andy Denton 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/ JAMES P. PISANI
-------------------
James P. Pisani
Title: President
/S/ JEFFREY P. LEVENTHAL
------------------------
Jeffrey P. Leventhal
LEVENTHAL PAGET, LLC
By:/S/ JEFFREY LEVENTHAL
------------------------
Jeffrey Leventhal
/S/ SARAH CHOI /S/ MARK SACKSTEIN
- -------------- ------------------
Sarah Choi Mark Sackstein
/S/ RICHARD REICH /S/ NEIL BRENNER
- ----------------- ----------------
Richard Reich Neil Brenner
/S/MATTHEW BLUMENTHAL /S/ ANDY DENTON
- --------------------- ---------------
Matthew Blumenthal Andy Denton
ALLIANCE CAPITAL INVESTMENTS CORP.
By: /S/ STACIE GREENE
-----------------
Stacie Greene
Title: President
ROSEN & TETELMAN
By: /S/ TED D. ROSEN
---------------------
Ted D. Rosen, Partner