**Exhibit10.20.1**

 

**AMENDMENTTO STOCK PURCHASE AGREEMENT**

 

THIS AMENDMENT TO THESTOCK PURCHASE AGREEMENT (this “***Amendment***”),dated as of December 30, 2004, is made and entered into by and betweenAdvanced TelCom Group, Inc. (the “***Seller***”)and Eschelon Telecom, Inc. (the “***Purchaser***”).

 

**WHEREAS,**  the Seller and the Purchaser are parties tothat certain Stock Purchase Agreement, dated October 13, 2004 (the “***Stock Purchase Agreement***”) pursuantto which Seller has agreed to sell and Purchaser has agreed to purchase all ofthe issued and outstanding shares of common stock, par value $.001 per share(the “***Shares***”) of Advanced TelCom, Inc.,a Delaware corporation;

 

**WHEREAS,**pursuantto the terms and conditions of this Amendment, the parties desire to amend tothe Stock Purchase Agreement as provided herein; and

 

**WHEREAS,**as more fully set forth herein, the parties to the Stock Purchase Agreementintend the purchase to be completed and effective as of 11:59 p.m. on December 31,2004;

 

**NOW,THEREFORE,** in consideration of the foregoing recitals and theagreements herein and other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties hereby agree that theAgreement shall be amended as follows:

 

1.             Closingand Effective Date.  Notwithstandingany provision in Section 2.3 of the Stock Purchase Agreement to thecontrary, the parties hereto acknowledge and agree, that because December 31,2004 is not a Business Day, the Closing shall occur on December 30, 2004but shall be effective for all purposes as of 11:59 p.m. on December 31,2004.

 

2.             Amendmentto Section 3.2.  Section 3.2of the Stock Purchase Agreement shall be amended to read in its entirety asfollows:

 

3.2           NoOngoing or Transition Services. Except for such services, if any, expressly provided for in a transitionservices agreement executed and delivered at the Closing, all data processing,accounting, insurance, banking, personnel, legal, communications and otherservices provided to the Companies by the Seller or any Affiliate of theSeller, including any agreements or understandings (written or oral) withrespect thereto, shall terminate upon the Closing.

 

3.             Amendmentto Section 4.12.  The firstsentence of Section 4.12(a) shall be amended to remove the word to “ATG”and replace such word with “Seller.”

 

4.             Amendmentto Section 7.1(g).  Section 7.1(g) ofthe Stock Purchase Agreement shall be amended to read in its entirety asfollows:

 

(g)           Flexibleand Dependent Care Spending Accounts. The Seller (or one of its Affiliates) shall, as of and after the ClosingDate, retain all 2004 contributions of each ATI Employee then participating inthe GE flexible spending accounts (the “***Seller Flexible BenefitsPlan***”).  All claims for

 

----

 

reimbursementwhich have not been paid as of the Effective Date shall be processed and paidpursuant to and under the terms of the Seller Flexible Benefits Plan.

 

5.             Deletionof Section 8.1(d)(i).  Section 8.1(d)(i) ofthe Stock Purchase Agreement shall be deleted in its entirety and shall be ofno further force or effect.

 

6.             Waiverof Closing Conditions in Section 8.1(f).  Purchaser does hereby acknowledge and agreethat the conditions set forth in Section 8.1(f) of the Stock PurchaseAgreement have been satisfied in full and does hereby waive any furthercompliance with such section as a condition to Closing.

 

7.             Amendmentto Section 9.2(a).   Section 9.2(a) ofthe Stock Purchase Agreement shall be amended to read in its entirety asfollows:

 

(a)           TheSeller hereby indemnifies the Purchaser against and agrees to hold it harmlessfrom any and all damages, loss, liability and expense (including, withoutlimitation, reasonable expenses of investigation and reasonable attorney’s feesand expenses actually incurred in connection with any action, suit, orproceeding whether involving a third party claim or claim solely between theparties hereto) (“***Damages***”) incurred orsuffered by the Purchaser arising out of (i) any misrepresentation orbreach of warranty or breach of covenant or agreement made or to be performedby the Seller pursuant to this Agreement, (ii) the Retained Assets or theRetained Liabilities or (iii) the ownership and operation of the Businessprior to the Closing, provided that, notwithstanding anything herein tothe contrary:

 

(A)          Sellershall not have any liability for any Damages arising out of or with respect tothe condition (including breaches) or suitability for use of the Assets (otherthan pursuant to clause (i) of Section 9.2(a));

 

(B)           Sellershall not have any liability for any Damages arising out of or with respect toany credits, liabilities or obligations of the Companies or the Businessresulting from actions, events or circumstances occurring prior to the Closingand that, in the ordinary course of business and in accordance with the termsof such credits, liabilities or obligations, were not payable or should nothave been satisfied or discharged prior to Closing (other than pursuant toclauses (i) and (ii) of Section 9.2(a));

 

(C)           thePurchaser shall not make a claim against the Seller for indemnification under Section 9.2for Damages unless and until the aggregate amount of such Damages exceeds$100,000 (the “***Seller Basket***”), in whichevent the Purchaser may claim indemnification only for Damages in excess of theSeller Basket; provided, however, the Seller Basket shall notapply to any claim for Damages relating to liabilities or obligations of theCompanies or the Business resulting from actions, events, or circumstancesprior to the Closing and that, in the ordinary

 

2

----

 

course of businessand in accordance with the terms of such credits, liabilities or obligationsand Section 6.3, should have been satisfied or discharged prior toClosing; and

 

(D)          theaggregate maximum liability of the Seller under clause (i) of this Section 9.2(a) shallnot exceed $6,875,000.

 

8.             Amendmentto Schedule.  Paragraph 5 of Schedule 2.7shall be amended to read in its entirety as follows:

 

5.     Theprocessing costs incurred by ATI prior to or on the Closing Date for themanagement of all benefit plans, insurance programs, payroll and otherprocesses/systems associated with employee compensation or benefits.

 

9.             NoOther Amendment.  Except as expresslyprovided in this Amendment, the Stock Purchase Agreement is, and shall continueto be, in full force and effect in accordance with its terms, without amendmentthereto, and is, in all respects, ratified and confirmed.

 

10.           Miscellaneous.  This Amendment shall be subject to theprovisions set forth in Article X of the Stock Purchase Agreement, whichare incorporated herein by this reference with the same force and effect as ifset forth herein.  

 

 

***The remainder of this page left blank.***

***Signature page follows.***

 

3

----

 

### INWITNESS WHEREOF, in accordance with Sections 10.5 and 10.6 of the StockPurchase Agreement, the parties hereto have caused this Amendment to the StockPurchase Agreement to be duly executed, as of the date first above written.

 

 
|   | **ADVANCED TELCOM GROUP, INC.** |
|--------|---------------------------------|
|   |                            |   |
|   |                            |   |
|   | By:                             |   /s/ David  M. O’Neill |
|   |                            | David M. O’Neill |
|   |                            | President |
|   |                            |   |
|   |                            |   |
|   | **ESCHELON TELECOM, INC.**      |
|   |                            |   |
|   |                            |   |
|   | By:                             |   /s/ Richard  A. Smith |
|   |                            | Richard A. Smith |
|   |                            | President and CEO |

 

----