EXHIBIT 10.1.1.2
Purchase Agreement by and among Thrucomm, Inc.,
Blue Chip/Datalinc Corporation, Integrated Communications Networks, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and Datalinc, Inc.
dated August , 1997
AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of this 27th
day of August, 1997 by and among THRUCOMM, INC., a Florida corporation whose
address is ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("Thrucomm"), BLUE CHIP/DATALINC CORPORATION, a Delaware corporation (a
wholly-owned subsidiary of Blue Chip Capital Fund Limited Partnership, a
Delaware limited partnership) whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (the "Purchaser"), INTEGRATED COMMUNICATION NETWORKS,
INC., a Florida corporation whose address is ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("ICN"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual with a mailing
address at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("▇▇▇▇▇▇▇"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an individual with a mailing address at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Gianinni", and together
with ▇▇▇▇▇▇▇, the "Shareholders"), and DATALINC, LTD., a Florida limited
partnership whose address is ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Partnership").
WHEREAS, an agreement (the "First Agreement") was made and entered into as
of the 30th day of April, 1993 by and among the Purchaser, ICN, the Shareholders
and the Partnership; and
WHEREAS, an agreement (the "Second Agreement") was made and entered into as
of the 1st day of September, 1993 by and among the Purchaser, ICN, the
Shareholders and the Partnership; and
WHEREAS, pursuant and subject to the First Agreement and the Second
Agreement, the Partnership sold to the Purchaser, and the Purchaser purchased
from the Partnership, three hundred eighty (380) Series 300 Limited Partnership
Units of the Partnership (the "Purchaser Units"), and the Purchaser, the
Partnership, ICN and the Shareholders entered into certain agreements in
connection therewith; and
WHEREAS, pursuant to a Reorganization as described in the Form S-4
Registration Statement filed with the Securities and Exchange Commission (the
"Commission") with respect to Thrucomm on May 15, 1997, as amended (the
"Registration Statement"), the assets of the Partnership have been or will be
transferred to Thrucomm, and the Partnership has acquired or will acquire all of
the common stock and certain preferred stock of Thrucomm; and
WHEREAS, Thrucomm and the parties to the First Agreement and the Second
Agreement desire that Thrucomm be bound by the intent of the First Agreement and
the Second Agreement such that the rights of Purchaser thereunder are not
adversely affected in any way and desire to make certain other agreements, as
more particularly set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby agree as follows:
1. Escrow of Distributions.
(a) Distribution Escrow. The provisions of Paragraph 2 of the First
Agreement, Paragraph 2 of the Second Agreement, and the Escrow
Agreement dated as of September 1, 1993 among the Purchaser, ICN, the
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Shareholders, the Partnership and Star Bank, National Association, as
Escrow Agent (the "Distribution Escrow Agreement"), shall continue in
full force and effect.
(b) Stock Escrow. If a Mandatory Conversion Event (as defined in the
Registration Statement) shall occur prior to the receipt by the
Purchaser of a weighted average thirty-five percent (35%) per annum
internal rate of return as calculated by the Purchaser on its
investment in all of the Purchaser Units (calculated in the case of
each such Purchaser Unit from the date of purchase thereof to the date
of transfer thereof), taking into account (i) all cash Distributions,
as defined the Partnership's Amended Agreement of Limited Partnership
dated as of January 1, 1993 (the "Partnership Agreement"), received by
the Purchaser with respect to the Purchaser Units, (ii) the amount of
net cash proceeds received by the Purchaser from the sale of any
Purchaser Units, (iii) the amount of Escrowed Funds received by the
Purchaser pursuant to Paragraph 2 of the First Agreement, Paragraph 2
of the Second Agreement and the Distribution Escrow Agreement and (iv)
the market value, as determined by the Purchaser in good faith and
assuming sale within a period of not more than four (4) weeks, of any
stock of Thrucomm which the Purchaser has received pursuant to the
Mandatory Conversion Event which may be freely sold by the Purchaser
without restriction on the amount or manner of sale under applicable
securities laws or agreement (the "Rate of Return"), then each of ICN
and the Shareholders shall, immediately upon receipt of any common
stock of Thrucomm received upon conversion of Thrucomm's Mandatory
Convertible Preferred Stock, Series G (as described in the
Registration Statement), deposit such common stock (the "Escrowed
Stock"), subject to the options described in Exhibit A attached
hereto, and together with stock powers with respect to each share of
such Escrowed Stock duly executed in blank, into an escrow account
(the "Stock Escrow Account") at a financial institution reasonably
acceptable to the Purchaser (the "Stock Escrow Agent"). The Stock
Escrow Account shall be established pursuant to an Escrow Agreement in
substantially the form of Exhibit B attached hereto (the "Stock Escrow
Agreement"), which shall be entered into among the Purchaser, ICN,
Thrucomm, the Shareholders and the Stock Escrow Agent prior to the
Mandatory Conversion Event.
(c) Termination of Stock Escrow Account.
(i) The Purchaser shall notify ICN, Thrucomm, the Shareholders and
the Stock Escrow Agent at such time as the Purchaser has received
the Rate of Return, and the Stock Escrow Agent shall thereupon
release all Escrowed Stock to the registered owner thereof or
otherwise in accordance with written instructions from the
registered owner thereof, and the Stock Escrow Account shall be
closed. Until receipt by the Purchaser of the Rate of Return and
release of the Escrowed Stock i accordance with this Paragraph
1(c), but subject to any other provisions of this Agreement, all
Escrowed Stock shall remain in the Stock Escrow Account.
(ii) In the event that the Purchaser has not received the Rate of
Return prior to the date that is five (5) years from the first
deposit into the Stock Escrow Account, then on such date the
Stock Escrow Agent shall release all Escrowed Stock, if any,
remaining in the Stock Escrow Account to the Purchaser or
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otherwise in accordance with written instructions from the
Purchaser, and the Stock Escrow Account shall be closed. The
Purchaser thereupon shall (A) sell such Escrowed Sto which sale
must be on an arms-length basis, (B) remit $100,000 of the
proceeds of such sale to ▇▇▇▇▇▇▇ and $100,000 of such proceeds to
Gianinni (and if such proceeds are less than $200,000, they shall
be divided evenly between ▇▇▇▇▇▇▇ and Gianinni), (C) retain the
balance of such proceeds to the extent sufficient to provide the
Purchaser with the Rate of Return, and (D) remit any remainder of
such proceeds to ICN and each of the Shareholders in accordance
with the proportionate ownership by ICN and each of the
Shareholders of the Escrowed Stock so sold. ICN and the
Shareholders agree to execute any documents and take any actions
as the Purchaser may reasonably deem necessary or appropriate to
effect such sale.
2. ICN and Thrucomm Board of Directors.
(a) ICN. The Shareholders shall vote their shares to elect and shall
continue to maintain a Board of Directors of ICN of not less than
three (3) and not more than five (5) persons, consisting at least of
(i) an individual nominated by the Purchaser, (ii) an individual
nominated by a majority-in-interest of the Limited Partners of the
Partnership other than the Purchaser and (iii) an individual proposed
by ICN and reasonably acceptable to the Purchaser and to the
individual nomi thereto by the Limited Partners of the Partnership
other than the Purchaser. In connection therewith, the Shareholders
shall: (A) cause all certificates representing voting shares of stock
of ICN to reflect that the Shareholders have agreed to elect members
of the Board of Directors as required under this Paragraph 2(a) and
that a copy of this Agreement may be obtained from ICN; (B) not permit
or suffer to exist the Articles of Incorporation or By-Laws of ICN to
contain any provisions which would contravene or otherwise be
inconsistent with the provisions of this Paragraph 2(a); and (C)
provide to the Purchaser such evidence as the Purchaser may reasonably
request from time to time with respect to the compliance by the
Shareholders with the provisions of this Paragraph 2(a).
(b) Thrucomm Directors Prior to Mandatory Conversion Event. At all times
prior to the occurrence of a Mandatory Conversion Event, the
Partnership shall vote its shares of Thrucomm to elect and shall
continue to maintain a Board of Directors of Thrucomm of not less than
three (3) and not more than six (6) persons, consisting at least of
(i) an individual nominated by the Purchaser, (ii) an individual
nominated by a majority-in-interest of the Limited Partners of the
Partnership than the Purchaser, (iii) an individual proposed by ICN
and reasonably acceptable to the Purchaser and to the individual
nominated thereto by the Limited Partners of the Partnership other
than the Purchaser, and (iv) so long as he desires, ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇; provided, however, that upon ▇▇. ▇▇▇▇▇▇▇'▇ resignation, his
vacancy shall not be filled. In connection therewith, the Partnership
and Thrucomm shall: (A) cause all certificates representing voting
shares of stock of Thrucomm to reflect that the Partnership has agreed
to elect members of the Board of Directors as required under this
Paragraph 2(b) and that a copy of this Agreement may be obtained from
Thrucomm; (B) not permit or suffer to exist the Articles of
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Incorporation or By- Laws of Thrucomm to contain any provisions which
would contravene or otherwise be inconsistent with the provisions of
this Paragraph 2(b); and (C) provide to the Purchaser such evidence as
the Purchaser may reasonably request from time to time with respect to
compliance by the Partnership with the provisions of this Paragraph
2(b).
(c) Thrucomm Directors After Mandatory Conversion Event. Upon a Mandatory
Conversion Event and thereafter so long as the Escrowed Stock remains
in the Stock Escrow Account, ICN and the Shareholders shall vote their
shares of Thrucomm for election to the Board of Directors of Thrucomm
of an individual designated by the Purchaser.
3. Transfer of Interests.
(a) Transfer of Interests in the Partnership and ICN. The provisions of
Paragraph 5 of the First Agreement and Paragraph 5 of the Second
Agreement shall continue in full force and effect.
(b) Transfer of Interests in Thrucomm. Until the Purchaser has received
the Rate of Return, neither ICN nor either of the Shareholders may
transfer any portion of their stock in Thrucomm, including without
limitation any Escrowed Stock, other than pursuant to the options
referred to in Exhibit A attached hereto and except for transfers not
to exceed an aggregate of $100,000 in value for each Shareholder, to
any person or entity other than the Purchaser (a "Third Party"),
unless the sale is on an arms' length basis and the proceeds thereof
are provided to the Purchaser to the extent sufficient to provide the
Purchaser with the Rate of Return and (ii) the Third Party shall offer
in writing to purchase from the Purchaser the number of shares of
stock in Thrucomm which bears the same ratio to the total number of
shares of stock in Thrucomm held by the Purchaser as the number of
shares of stock in Thrucomm to be transferred by ICN or such
Shareholder to such Third Party bears to the total number of shares of
stock in Thrucomm held by ICN or such Shareholder, for a purchase
price no less than the amount to be paid by such Third Party for the
stock in Thrucomm held by ICN or such Shareholder and on terms
otherwise no less favorable to the Purchaser than the terms of the
transfer of the stock in Thrucomm held by ICN or such Shareholder (and
further provided that the Purchaser shall not be required to make any
representations or warranties or provide any indemnities or guaranties
with respect to the business or financial condition of Thrucomm).
(c) Consummation of Transfer. No transfer of any portion of the stock in
Thrucomm held by ICN or either Shareholder to any Third Party shall be
consummated prior to thirty (30) days after the date the Purchaser
receives the offer described in Paragraph 3(b) above, which offer
shall provide the Purchaser at least twenty (20) days within which to
elect to accept it, and in the event that the Purchaser accepts such
offer, the purchase by the Third Party of the stock in Thrucomm held
the Purchaser shall be consummated simultaneously with or immediately
after the transfer of the stock of Thrucomm held by ICN or such
Shareholder to such Third Party.
4. Life Insurance. The provisions of Paragraph 6 of the First Agreement and
Paragraph 6 of the Second Agreement shall continue in full force and effect.
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5. Registration.
(a) Partnership Registration. The provisions of Paragraph 7 of the First
Agreement and Paragraph 7 of the Second Agreement shall continue in
full force and effect.
(b) Proposed Thrucomm Registration. If Thrucomm should propose to register
any equity securities issued by Thrucomm or any successor thereto for
sale under the Securities Act of 1933 (the "Act"), Thrucomm shall give
written notice to the Purchaser of such intention and, upon the
written request of the Purchaser given within twenty (20) calendar
days after such notice, Thrucomm shall use its best efforts to cause
any equity securities issued by Thrucomm or any successor thereto are
owned by the Purchaser or the Partnership of which the Purchaser has
requested registration to be included under the proposed registration
in accordance with the proposed method thereof stated in the
Purchaser's request; provided, however, that Thrucomm may, in lieu of
including any or all of such securities under the proposed
registration, elect to effect a separate registration thereof if its
proposed registration relates to an underwritten public offering and
the underwriters thereof object to the inclusion of any or all of such
securities under such registration, and provided further, that
Thrucomm shall not be required to cause such securities to be included
under the proposed registration if a majority of the Board of
Directors of Thrucomm (excluding any Director nominated by the
Purchaser) determines that such registration of such securities would
have a materially detrimental effect on the proposed registration. In
the event that Thrucomm shall elect to effect a separate registration
in accordance with the provisions of the preceding sentence, the
Purchaser may give notice to Thrucomm requesting the separate
registration at any time and Thrucomm shall use its best efforts to
cause such separate registration to become effective. If Thrucomm
determines, prior to the effectiveness of its originally proposed
registration, not to proceed with such registration, Thrucomm shall
have no further obligation under this Paragraph 5(b) to register any
equity securities under that registration statement.
(c) Registration Procedures. If and whenever Thrucomm is required by the
provisions of this Paragraph 5 to effect the registration of any
securities, Thrucomm shall, as expeditiously as possible:
(i) Prepare and file with the Commission a registration statement
with respect to such securities and use all reasonable efforts to
cause such registration statement to become effective as promptly
as possible;
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement as may be necessary to
keep such registration statement effective for three (3) months
from the date of its effectiveness;
(iii)Furnish to the Purchaser such number of copies of the prospectus
forming a part of such registration statement (including each
preliminary prospectus) as the Purchaser may reasonably request;
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(iv) Use its best efforts to register or qualify the securities
covered by such registration statement under the securities or
blue sky laws of such jurisdictions as the Purchaser shall
reasonably request, and do any and all other acts and things
which may be necessary or advisable to enable the Purchaser or
the Partnership, as the case may be, to consummate the
disposition of such securities during the period provided in
Paragraph 5(c)(ii) above; and
(v) Notify the Purchaser during the period when a prospectus relating
thereto is required to be delivered under the Act, of the
happening of any event which causes the prospectus forming a part
of such registration statement to include an untrue statement of
a material fact or to omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were
made, and at the requ of the Purchaser prepare and furnish the
Purchaser a reasonable number of copies of the supplement to or
any amendment of such prospectus necessary so as to render such
prospectus, as amended or supplemented, in compliance with the
provisions of the Act.
(d) Expenses. All expenses incurred by Thrucomm in complying with this
Paragraph 5, including without limitation all registration and filing
fees, printing expenses, expenses of complying with securities or blue
sky laws, fees and disbursements of counsel for Thrucomm and counsel
for any underwriters of the offering and any accountants' fees and
expenses incident to or required by any such registration, shall be
borne by Thrucomm to the maximum extent permitted by law. All
underwriting fees and commissions incurred by the Purchaser or the
Partnership and all fees and disbursements of any counsel retained by
the Purchaser or the Partnership shall be borne by the Purchaser or
the Partnership, as applicable.
(e) Indemnification.
(i) In the event of any registration of securities under this
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇, ICN and the Shareholders shall defend,
indemnify and hold harmless the Purchaser, the Partnership, their
officers and directors, each underwriter thereof and each person
which controls the Purchaser, the Partnership or such underwriter
within the meaning of the Act, against any losses, claims,
damages or liabilities and any action in respect thereof, joint
or several, to which the Purchaser the Partnership or any such
officer, director, underwriter or controlling person may become
subject under the Act or otherwise, and Thrucomm, ICN and the
Shareholders shall reimburse each of the Purchaser, the
Partnership and such officers, directors, underwriters and
controlling persons for any legal or other expenses reasonably
incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that Thrucomm, ICN and the Shareholders shall
not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon
information provided to Thrucomm by the Purchaser, the
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Partnership or any such officer, director, underwriter or
controlling person. This indemnity shall be in addition to any
liability which Thrucomm, ICN and the Shareholders may otherwise
have.
(ii) In the event of any registration of securities under this
Paragraph 5, the Purchaser or the Partnership, as the case may
be, shall indemnify Thrucomm, ICN and the Shareholders against
any losses, claims, damages or liabilities and any action in
respect thereof, joint or several, to which Thrucomm, ICN or the
Shareholders may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any
untrue or alleged untrue statement of any material fact contained
in any registration statement under which such securities were
registered under the Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, which is based upon
information supplied by the Purchaser or the Partnership, as the
case may be, and the Purchaser or the Partnership, as the case
may be, shall reimburse Thrucomm, ICN and the Shareholders for
any legal or other expenses reasonably incurred by Thrucomm, ICN
or the Shareholders in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that neither the Purchaser nor the Partnership shall be
liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon
information provided to the Purchaser or the Partnership by
Thrucomm, ICN or either of the Shareholders. This indemnity shall
be in addition to any liability which the Purchaser or the
Partnership may otherwise have.
(iii)If for any reason any indemnification described in Paragraph
5(e)(i) or 5(d)(ii) above may not be provided by the party or
parties required therein to provide such indemnification (the
"Indemnifying Parties"), in lieu of providing such
indemnification, the Indemnifying Parties shall contribute to the
amount paid or payable by the party or parties to be provided
such indemnification (the "Indemnified Parties") as a result of
such losses, claims, damages, liabilities or actions, in such
proportion as is appropriate to reflect the relative fault of the
parties in connection with any statement or omission which
resulted in such losses, claims, damages, liabilities or actions,
as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Parties and the Indemnified
Parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information
supplied by one of the Indemnifying Parties or by one of the
Indemnified Parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages and liabilities referred to
above shall be deemed to include any legal or other fees or
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expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The parties agree
that it would not be just and equitable if contribution pursuant
hereto were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to herein. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
6. Rights of First Refusal.
(a) Partnership and Related Entity Interests. The provisions of Paragraph
9 of the First Agreement and Paragraph 9 of the Second Agreement shall
continue in full force and effect.
(b) Thrucomm and Related Entity Interests. At any time that Thrucomm, or
any entity controlled by Thrucomm or any of its affiliates which is
engaged in any business primarily involving the transfer of data,
proposes to sell any stock or other equity interest therein, Thrucomm
agrees to notify the Purchaser of such proposed sale and to provide
the Purchaser, or cause the Purchaser to be provided, with the right
of first refusal to purchase such stock or other equity interests, o
portion thereof, for a price and on other terms no less favorable to
the Purchaser than the price at which and other terms on which
Thrucomm or such entity otherwise proposes to sell such stock or other
interests, provided that any such purchase by the Purchaser shall be
on a pro rata basis with the other Limited Partners of the
Partnership, Thrucomm and any entity controlled by Thrucomm or any of
its affiliates, to the extent that the other Limited Partners,
Thrucomm and any entity controlled by Thrucomm or any of its
affiliates have the right and desire to purchase such stock or other
equity interests.
(c) No Derogation of Partnership Agreement. The rights granted to the
Purchaser under Paragraph 6(b) above shall be in addition to, and not
in derogation of, any rights granted to the Purchaser and any other
Limited Partners under the Partnership Agreement.
(d) Resold Interests. Thrucomm agrees to use its best efforts to provide,
or cause to be provided, to the Purchaser the right of first refusal
to purchase any stock or other equity interests in Thrucomm which are
being resold by the holders thereof, for a price and on other terms no
less favorable to the Purchaser than the price at which and other
terms on which such stock or other equity interests are otherwise
proposed to be resold, provided that such right of first refusal n
only be provided to the Purchaser with respect to any stock or other
equity interests which are not purchased by Thrucomm pursuant to any
right of first refusal which Thrucomm may hold with respect to such
stock or other equity interests.
7. Legal Fees and Expenses. Except as otherwise provided in Paragraph 5 of this
Agreement, the Partnership, Thrucomm and ICN, jointly and severally, agree to
pay all legal fees and expenses incurred by the Purchaser or any of its
affiliates in connection with the consummation of the transactions contemplated
under this Agreement, such fees and expenses to be paid within thirty (30) days
after the date hereof.
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8. Representations and Warranties. Thrucomm, the Partnership, ICN and the
Shareholders jointly and severally represent and warrant to the Purchaser that:
(a) Due Execution. This Agreement has been duly executed and delivered by
Thrucomm, the Partnership, ICN and the Shareholders, as applicable,
and authorized by all requisite partnership action on the part of the
Partnership and all requisite corporate action on the part of ICN and
Thrucomm, and constitutes the legal, valid and binding obligation of
each such party, enforceable against such party in accordance with its
terms.
(b) No Violation. The execution and delivery of this Agreement by
Thrucomm, the Partnership, ICN and the Shareholders, as applicable,
and the performance by them of their obligations hereunder, do not
constitute any violation of any applicable law or any provision of the
Partnership Agreement or the Articles of Incorporation, By-Laws or
other organizational or governing documents of ICN or Thrucomm, or any
other agreement or governmental restriction to which any of them is a
pa or by which any of them is bound, or require the consent or
approval of the Limited Partners of the Partnership or any other
person or entity.
9. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
(b) No Broker. Each of the parties hereto represents and warrants that,
except as described in the succeeding sentence, it has dealt with no
broker or finder in connection with any of the transactions
contemplated hereunder, and no broker, finder or other person is or
will be entitled to any commission, finder's fee or other compensation
as a result of consummation of the transactions contemplated
hereunder. The Partnership, ICN and the Shareholders represent to the
Purchaser CFG Securities Corp. ("CFG") and/or an affiliate of CFG has
acted as a broker for them in connection with the transactions
contemplated hereunder, and covenant with the Purchaser that they
shall pay all commissions and other compensation due to CFG and any
such affiliate on or prior to the date due.
(c) Modification; Waiver. No modification or amendment of this Agreement
shall be binding unless executed in writing by all parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof, nor shall any
waiver constitute a waiver of the same provision on any other
occasion. No waiver of any of the provisions hereof shall be binding
unless executed in writing by the party making such waiver.
(d) Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
(e) Notices. All notices required under this Agreement shall be in writing
and shall be deemed to have been given on the date of personal
delivery, or of deposit in the United States mail, postage prepaid, by
registered or certified mail, return receipt requested, or of delivery
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to a nationally-recognized overnight courier service with arrangements
made by the sender for payment therefor, addressed to the parties at
their addresses set forth above, or such other addresses as an party
has notified the others as provided herein.
(f) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
(g) Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
(h) Headings. The headings of paragraphs and subparagraphs of this
Agreement are included for convenience of reference only and shall not
be considered in construing any provisions contained therein.
(i) Remedies. The Partnership, ICN, Thrucomm and the Shareholders
acknowledge and agree that in the event of breach of any of the
provisions of Paragraphs 2, 3 and 6 above, the Purchaser would sustain
irreparable injury, and Thrucomm, the Partnership, ICN and the
Shareholders recognize that money damages for such breach would be
difficult or impossible to ascertain. Thrucomm, the Partnership, ICN
and the Shareholders therefore agree that the Purchaser shall be
entitled, in additio to any other remedies and damages available, to
an injunction to restrain the violation of any of such provisions.
(j) Third Party Beneficiaries. Neither the Limited Partners of the
Partnership nor any other person or entity shall be deemed third party
beneficiaries with respect to any provision of this Agreement, except
that the Limited Partners shall be deemed third party beneficiaries
with respect to the provisions of Paragraph 6(b) hereof.
(k) Conflict. In the event of any conflict between the provisions of this
Agreement and any provisions of the First Agreement or the Second
Agreement, the provisions of this Agreement shall be controlling.
Without limiting the generality of the foregoing, it is hereby
acknowledged by the parties hereto that Paragraphs 4 and 8 of the
First Agreement and Paragraphs 4 and 8 of the Second Agreement are
deleted and no longer in force and effect.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
BLUE CHIP/DATALINC CORPORATION
By: _______________________________
Title: ____________________________
INTEGRATED COMMUNICATION NETWORKS, INC.
By: _______________________________
Title: ____________________________
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
DATALINC, LTD.
By: Integrated Communication
Networks, Inc., its
General Partner
By: __________________________
Title: _______________________
THRUCOMM, INC.
By: __________________________
Title: _______________________
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