Exhibit
10.20.1


 


AMENDMENT
TO STOCK PURCHASE AGREEMENT


 


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


 


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


 


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


 


WHEREAS,
as more fully set forth herein, the parties to the Stock Purchase Agreement
intend 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 the
agreements herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree that the
Agreement shall be amended as follows:


 


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


 


2.             Amendment
to Section 3.2.  Section 3.2
of the Stock Purchase Agreement shall be amended to read in its entirety as
follows:


 


3.2           No
Ongoing or Transition Services. 
Except for such services, if any, expressly provided for in a transition
services agreement executed and delivered at the Closing, all data processing,
accounting, insurance, banking, personnel, legal, communications and other
services provided to the Companies by the Seller or any Affiliate of the
Seller, including any agreements or understandings (written or oral) with
respect thereto, shall terminate upon the Closing.


 


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


 


4.             Amendment
to Section 7.1(g).  Section 7.1(g) of
the Stock Purchase Agreement shall be amended to read in its entirety as
follows:


 


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


 





















 


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


 


5.             Deletion
of Section 8.1(d)(i).  Section 8.1(d)(i) of
the Stock Purchase Agreement shall be deleted in its entirety and shall be of
no further force or effect.


 


6.             Waiver
of Closing Conditions in Section 8.1(f).  Purchaser does hereby acknowledge and agree
that the conditions set forth in Section 8.1(f) of the Stock Purchase
Agreement have been satisfied in full and does hereby waive any further
compliance with such section as a condition to Closing.


 


7.             Amendment
to Section 9.2(a).   Section 9.2(a) of
the Stock Purchase Agreement shall be amended to read in its entirety as
follows:


 


(a)           The
Seller hereby indemnifies the Purchaser against and agrees to hold it harmless
from any and all damages, loss, liability and expense (including, without
limitation, reasonable expenses of investigation and reasonable attorney’s fees
and expenses actually incurred in connection with any action, suit, or
proceeding whether involving a third party claim or claim solely between the
parties hereto) (“Damages”) incurred or
suffered by the Purchaser arising out of (i) any misrepresentation or
breach of warranty or breach of covenant or agreement made or to be performed
by the Seller pursuant to this Agreement, (ii) the Retained Assets or the
Retained Liabilities or (iii) the ownership and operation of the Business
prior to the Closing, provided that, notwithstanding anything herein to
the contrary:


 


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


 


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


 


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


 


2





















 


course of business
and in accordance with the terms of such credits, liabilities or obligations
and Section 6.3, should have been satisfied or discharged prior to
Closing; and


 


(D)          the
aggregate maximum liability of the Seller under clause (i) of this Section 9.2(a) shall
not exceed $6,875,000.


 


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


 


5.     The
processing costs incurred by ATI prior to or on the Closing Date for the
management of all benefit plans, insurance programs, payroll and other
processes/systems associated with employee compensation or benefits.


 


9.             No
Other Amendment.  Except as expressly
provided in this Amendment, the Stock Purchase Agreement is, and shall continue
to be, in full force and effect in accordance with its terms, without amendment
thereto, and is, in all respects, ratified and confirmed.


 


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


 


 


The remainder of this page left blank.


Signature page follows.


 


3





















 


IN
WITNESS WHEREOF, in accordance with Sections 10.5 and 10.6 of the Stock
Purchase Agreement, the parties hereto have caused this Amendment to the Stock
Purchase 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