EXHIBIT 10.1
PURCHASE AGREEMENT BY AND BETWEEN
BLUE CHIP/DATALINC CORPORATION,
INTEGRATED COMMUNICATION NETWORKS, INC.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ AND DATALINC, LTD.
DATED AS OF SEPTEMBER 1, 1993
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made and entered into as of
this 1st day of September, 1993 by and among BLUE CHIP/DATALINC CORPORATION, an
Ohio 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, pursuant to a Purchase Agreement dated as of April 30, 1993 among
the Purchaser, the Partnership, ICN and the Shareholders (the "First Purchase
Agreement"), the Purchaser purchased from the Partnership one hundred eighty
(180) of the Partnership's Series 300 Limited Partnership Units (the "First
Purchaser Units") as described in the Partnership's Confidential Private
Placement Memorandum dated as of January 1, 1993 (the "Offering Memorandum");
and
WHEREAS, the Partnership now desires to sell to the Purchaser certain
additional Series 300 Limited Partnership Units; and
WHEREAS, ICN is the sole general partner of the Partnership, and the
Shareholders together own all of the capital stock of ICN; and
WHEREAS, the Purchaser is willing to purchase such additional Series 300
Limited Partnership Units from the Partnership, upon certain terms and
conditions, including the condition that the Partnership, ICN and the
Shareholders enter into this Agreement with the Purchaser.
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. PURCHASE OF UNITS.
(a) Purchaser Units. The Partnership has agreed to sell to the
Purchaser, and the Purchaser has agreed to purchase from the
Partnership, two hundred (200) Series 300 Limited Partnership Units of
the Partnership (the "Additional Purchaser Units," and together with
the First Purchaser Units, the "Purchaser Units"), pursuant to the
Subscription Agreement between the Purchaser and the Partnership of
even date herewith (the "Subscription Agreement"), and subject to the
terms and conditions set forth herein.
(b) Certificates. Upon payment by the Purchaser by check or wire
transfer to the Partnership of the purchase price for the Additional
Purchaser Units hereunder, the Partnership shall provide the Purchaser
with certificates representing the Units thereby purchased as provided
under Section 13.22 of the Partnership's Amended Agreement of Limited
Partnership dated as of January 1, 1993 (the "Partnership Agreement").
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2. ESCROW OF DISTRIBUTIONS.
(a) ESCROW ACCOUNT. The Partnership shall deposit in an escrow account
(the "Escrow Account") with Star Bank, National Association (the "Escrow
Agent") the amount of all Distributions (as defined in the Partnership
Agreement) which ICN would otherwise be entitled to receive from the
Partnership, less the amount estimated by the Shareholders to be necessary
to be paid in dividends to the Shareholders in order to meet the
Shareholders' income tax liabilities with respect to earnings of ICN being
attributed to the Shareholders as a result of ICN's election to be treated
as a Subchapter S Corporation including without limitation interest on
funds in the Escrow Account (the "Tax Amount") for the year during which
the applicable deposit is being made, and ICN shall deposit in the Escrow
Account all amounts which it is entitled to receive from the sale of any
portion of its interest in the Partnership ("ICN's Partnership Interest").
The Escrow Account shall be established pursuant to an Escrow Agreement in
substantially the form of Exhibit A attached hereto (the "Escrow
Agreement") executed prior to or simultaneously with the execution of this
Agreement.
(b) CERTAIN CONDITIONS. Within thirty (30) days after the earliest to
occur of (I) December 31, 1996, (II) the date on which all of the Units of
the Partnership have been sold pursuant to a sale of the business of the
Partnership, and (III) the date on which the Partnership's assets have been
liquidated (the "Target Date"), the Purchaser shall provide to the Escrow
Agent, ICN and the Partnership a certification as to whether or not any of
the following conditions has been satisfied on or prior to the Target Date:
(i) The Purchaser has received cash Distributions from the
Partnership with respect to the Purchaser Units and/or cash proceeds
from the sale of Purchaser Units in an amount equal to at least three
(3) times the amount of cash paid by the Purchaser for the Purchaser
Units (the "Purchaser's Investment");
(ii) Either all or substantially all of the Partnership's assets
or all Units in the Partnership have been sold and the Purchaser has
received in exchange for the Purchaser Units (net of any Partnership
liabilities retained by the Purchaser and any reasonable costs of sale
incurred by the Purchaser) either (A) cash in an amount equal to at
least three (3) times the amount of the Purchaser's Investment or (B)
securities for which there is a liquid market, and which may be freely
sold by the Purchaser without restriction on the amount or manner of
sale under applicable securities laws or agreement, with a market
value as determined in good faith, and assuming sale within a period
of not more than four (4) weeks, by the majority vote of the Board of
Directors of ICN (excluding the vote of the Director nominated by the
Purchaser) equal to at least three (3) times the amount of the
Purchaser's Investment; or
(iii) The Purchaser has received cash Distributions from the
Partnership with respect to the Purchaser Units and/or net cash
proceeds from the sale of Purchaser Units in an amount equal to at
least two (2) times the amount of the Purchaser's Investment and
either (A) the Partnership (or any successor thereto) has completed a
public offering of its equity securities and the total market value of
the equity securities of the Partnership (or such successor) owned by
the Purchaser as of the Target Date, and which may be freely sold by
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the Purchaser without restriction on the amount or manner of sale
under applicable securities laws or agreement, as determined in good
faith by the Purchaser, is at least equal to the amount of the
Purchaser's Investment or (B) the Purchaser Units then owned by the
Purchaser are, in the Purchaser's sole opinion exercised in a
reasonable manner, readily salable (subject to compliance with
applicable securities law) in a transaction in which the net proceeds
of such sale would equal at least the amount of the Purchaser's
Investment.
(c) SATISFACTION OF CONDITIONS. In the event that the Purchaser has
certified that a condition set forth in Paragraph 2(b) above has been
satisfied on or prior to the Target Date, the Escrow Agent shall release
all amounts in the Escrow Account (the "Escrowed Funds") to ICN, and the
Escrow Account shall be closed.
(d) FAILURE TO SATISFY CONDITIONS. In the event that the Purchaser has
certified to the Escrow Agent that none of the conditions set forth in
Paragraph 2(b) above have been satisfied on or prior to the Target Date,
the Escrow Agent shall, as soon as possible after receipt of the
Purchaser's certification, notify the Purchaser, ICN and the Partnership of
the balance of the Escrow Account as of the Target Date (the "Target Date
Balance Notice"), and:
(i) TARGET DATE ESCROWED FUNDS SUFFICIENT TO PROVIDE RATE OF
RETURN. In the event that the Escrowed Funds as reflected in the
Target Date Balance Notice are in an amount sufficient, when added to
the amount of cash Distributions received by the Purchaser with
respect to the Purchaser Units and the amount of net cash proceeds
received by the Purchaser from the sale of Purchaser Units (the
"Receipts"), to provide the Purchaser with a weighted average
thirty-five percent (35%) per annum internal rate of return as
calculated by the Purchaser (the "Rate of Return") on its investment
in all of the First Purchaser Units and the Rate of Return on its
investment in all of the Additional Purchaser Units ("Rate of Return"
for purposes of this Agreement shall be calculated in the case of each
Purchaser Unit from the date of purchase thereof to the date of
transfer thereof, whether to ICN as hereinafter provided or to any
other transferee thereof), the Purchaser, at its option, may direct
the Escrow Agent to release to the Purchaser the amount of the
Escrowed Funds which is sufficient, when added to the Receipts, to
provide the Purchaser with the Rate of Return on its investment in all
of the First Purchaser Units and the Rate of Return on its investment
in all of the Additional Purchaser Units. The Escrow Agent shall
thereupon release such amount of the Escrowed Funds to the Purchaser
and release all remaining Escrowed Funds, if any, to ICN, the
Purchaser shall thereupon transfer any Purchaser Units owned by the
Purchaser to ICN, and the Escrow Account shall be closed; provided,
however, that if the Purchaser does not elect within thirty (30) days
after receipt of the Target Date Balance Notice to direct the Escrow
Agent to release the Escrowed Funds to the Purchaser as provided
above, then all Escrowed Funds shall be released by the Escrow Agent
to ICN, the Purchaser shall have no obligation to transfer any
Purchaser Units to ICN, and the Escrow Account shall be closed.
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(ii) TARGET DATE ESCROWED FUNDS INSUFFICIENT TO PROVIDE RATE OF
RETURN. In the event that the Escrowed Funds as reflected in the
Target Date Balance Notice are not in an amount sufficient, when added
to the Receipts, to provide the Purchaser with the Rate of Return on
its investment in all of the First Purchaser Units and the Rate of
Return on its investment in all of the Additional Purchaser Units, if
the Target Date resulted from the sale of all of the Units in the
Partnership pursuant to a sale of the business of the Partnership or
the liquidation of the Partnership's assets, then the Purchaser shall
direct the Escrow Agent to release all of the Escrowed Funds to the
Purchaser, the Escrow Agent shall release all of the Escrowed Funds to
'the Purchaser, and 'the Escrow Account shall be closed. If the Target
Date did not result from either of those events, the Purchaser shall
determine the number of Purchaser Units, considered in the order of
purchase, with respect to which there are Escrowed Funds sufficient in
amount, when added to the Receipts, to provide the Purchaser with the
Rate of Return (the "Original Number"). If the Original Number is less
than ten (10), the Escrowed Funds shall remain in the Escrow Account,
and if the Original Number is ten (10) or more, the Purchaser, at its
option, may direct the Escrow Agent to release to the Purchaser such
amount of the Escrowed Funds as are sufficient, when added to the
Receipts, to provide the Purchaser with the Rate of Return on the
number of Purchaser Units, considered in the order of purchase, which
is a multiple of ten (10) and is closest to, but not greater than, the
Original Number (the "Original Satisfied Units"), and the Escrow Agent
shall thereupon release such Escrowed Funds to the Purchaser, the
Purchaser shall thereupon transfer to ICN the Original Satisfied Units
which have not previously been sold, and any Escrowed Funds then
remaining in the Escrow Account shall continue to be held in the
Escrow Account; provided, however, that if the Original Number is at
least ten (10) and the Purchaser does not elect within thirty (30)
days after receipt of the Target Date Balance Notice to direct the
Escrow Agent to release the Escrowed Funds to the Purchaser as
provided above, then all Escrowed Funds shall be released by the
Escrow Agent to ICN, the Purchaser shall have no obligation to
transfer any Purchaser Units to ICN, and the Escrow Account shall be
closed.
(iii) CONTINUANCE OF ESCROW. Unless the Escrow Account has been
closed as described in Paragraphs 2(d)(i) or 2(d)(ii) above, the
Partnership shall continue to deposit in the Escrow Account all
Distributions which ICN would otherwise be entitled to receive as a
partner in the Partnership, less the Tax Amount as estimated by the
Shareholders for the year during which the applicable deposit is being
made, and ICN shall continue to deposit in the Escrow Account all
amounts which it is entitled to receive from the sale of any portion
of ICN's Partnership Interest, until such time as the Purchaser has
received the Rate of Return on its investment in all of the First
Purchaser Units and the Rate of Return on its investment in all of the
Additional Purchaser Units or the Escrow Account has been closed in
accordance with this Paragraph 2(d)(iii), whichever first occurs. As
soon as possible after the end of each month after the Target Date,
the Escrow Agent shall notify the Purchaser, the Partnership and ICN
of the balance of the Escrow Account as of the end of such month (the
"Monthly Balance Notice"), and after receipt of each Monthly Balance
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Notice, the Purchaser shall determine the number of Purchaser Units,
considered in the order of purchase, with respect to which there are
Escrowed Funds sufficient in amount, when added to the Receipts, to
provide the Purchaser with the Rate of Return (the "Monthly Number").
Each month until such time as the Purchaser owns less than ten (10)
Purchaser Units, if the Monthly Number is less than ten (10), the
Escrowed Funds shall remain in the Escrow Account, and if the Monthly
Number is ten (10) or more, the Purchaser, at its option, may direct
the Escrow Agent to release to the Purchaser such amount of the
Escrowed Funds as is sufficient, when added to the Receipts, to
provide the Purchaser with the Rate of Return on the number of
Purchaser Units, considered in the order of purchase, which is a
multiple of ten (10) and is closest to, but not greater than, the
Monthly Number (the "Monthly Satisfied Units"), and the Escrow Agent
shall thereupon release such Escrowed Funds to the Purchaser, the
Purchaser shall thereupon transfer to ICN the Monthly Satisfied Units
which have not previously been sold, and any Escrowed Funds then
remaining in the Escrow Account shall continue to be held in the
Escrow Account; provided, however, that if any Monthly Number is ten
(10) or more and the Purchaser does not elect within thirty (30) days
after receipt of the Monthly Balance Notice applicable thereto to
direct the Escrow Agent to release the Escrowed Funds to the Purchaser
as provided above, then all Escrowed Funds shall be released by the
Escrow Agent to ICN, the Purchaser shall have no obligation to
transfer any Purchaser Units to ICN, and the Escrow Account shall be
closed. Each month after the Purchaser owns less than ten (10)
Purchaser Units, if the Monthly Number is less than one (1), the
Escrowed Funds shall remain in the Escrow Account, and if the Monthly
Number is one (1) or more, the Purchaser, at its option, may direct
the Escrow Agent to release such amount of the Escrowed Funds as is
sufficient, when added to the Receipts, to provide the Purchaser with
the Rate of Return on the number of Purchaser Units, considered in the
order of purchase, which is the largest whole number that is not
greater than the Monthly Number (the "Additional Monthly Satisfied
Units"), and the Escrow Agent shall thereupon release such Escrowed
Funds to the Purchaser, the Purchaser shall thereupon transfer to ICN
the Additional Monthly Satisfied Units which have not previously been
sold, and any Escrowed Funds then remaining in the Escrow Account
shall continue to be held in the Escrow Account; provided, however,
that if any Monthly Number is one (1) or more and the Purchaser does
not elect within thirty (30) days after receipt of the Monthly Notice
applicable thereto to direct the Escrow Agent to release the Escrowed
Funds to the Purchaser as provided above, then all Escrowed Funds
shall be released by the Escrow Agent to ICN, the Purchaser shall have
no obligation to transfer any Purchaser Units to ICN, and the Escrow
Account shall be closed. In any event, the Escrow Account shall be
closed at such time as the Purchaser has been provided with the Rate
of Return on its investment in all of the First Purchaser Units and
the Rate of Return on its investment in all of the Additional
Purchaser Units, and the Escrow Agent shall release any amounts
remaining therein to ICN.
(e) COMPLIANCE WITH PARTNERSHIP AGREEMENT. In the event of any
transfer by the Purchaser of any of the Purchaser Units to ICN under
Paragraph 2(d) above, ICN, in its capacity as General Partner of the
Partnership and in its capacity as transferee of the Purchaser Units, shall
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comply with all requirements set forth in the Partnership Agreement for the
transfer by a Limited Partner of its Units in the Partnership, including
without limitation those set forth in Sections 7.4 and 7.7 therein.
(f) NOTIFICATION OF DEPOSITS. Simultaneously with the making of each
deposit into the Escrow Account pursuant to Paragraph 2(a) or 2(d)(iii)
above, the Partnership or ICN, as the case may be, shall notify the
Purchaser in writing of the amount thereof, and shall also notify the
Purchaser in writing of the estimated Tax Amount subtracted from the amount
of the applicable Distribution prior to making each such deposit.
(g) TAX AMOUNT ADJUSTMENTS. On or prior to April 15 of each year, (i)
if the actual Tax Amount for the preceding year is less than the estimated
Tax Amount subtracted from the amount of the applicable Distributions
pursuant to Paragraphs 2(a) and/or 2(d)(iii) above during the preceding
year, ICN and the Shareholders shall certify to the Purchaser the amount of
such difference (and attach to such certification a copy of ICN's Form
1120S and Schedule K thereto for such year) and shall deposit the amount of
such difference into the Escrow Account, and (ii) if the actual Tax Amount
for the preceding year is greater than the estimated Tax Amount subtracted
from the amount of the applicable Distributions pursuant to Paragraphs 2(a)
and/or 2(d)(iii) above during the preceding year, ICN and the Shareholders
may certify to the Purchaser and the Escrow Agent the amount of such
difference (and attach to such certification to the Purchaser a copy of
ICN's Form 1120S and Schedule K thereto for such year) and direct the
Escrow Agent to release to ICN the amount of such difference.
(h) CESSATION OF ESCROW DEPOSITS. The Partnership may cease making
deposits into the Escrow Account at such time, if any, as (i) on or prior
to December 31, 1994, the sum of the balance of the Escrow Account plus the
amount of the Receipts is equal to or greater than Five Million Dollars
($5,000,000), (ii) on or prior to December 31, 1995, the sum of the balance
of the Escrow Account plus the amount of the Receipts is equal to or
greater than Five Million Two Hundred Thousand Dollars ($5,200,000), or
(iii) on or prior to December 31, 1996, the sum of the balance of the
Escrow Account plus the amount of the Receipts is equal to or greater than
Five Million Four Hundred Thousand Dollars ($5,400,000).
(i) TRANSFER OF UNITS. When any Purchaser Units are required to be
transferred by the Purchaser to ICN pursuant to this Paragraph 2, the
Purchaser shall have the option of transferring either First Purchaser
Units or Additional Purchaser Units, or any combination thereof.
3. ICN BOARD OF DIRECTORS.
(a) ELECTION. Prior to the execution hereof the Shareholders shall
have voted their shares to elect, and hereafter shall continue to maintain,
a five (5) person Board of Directors of ICN, consisting of (i) ▇▇▇▇▇▇▇, so
long as he owns at least thirty-seven and one-half percent (37.5%) of the
outstanding voting shares of ICN, and if he no longer owns such shares of
ICN, an individual nominated by the majority of the remaining members of
ICN's Board of Directors, (ii) Gianinni, so long as he owns at least
thirty-seven and one-half percent (37.5%) of the outstanding voting shares
of ICN, and if he no longer owns such shares of ICN, an individual
nominated by the majority of the remaining members of ICN's Board of
Directors, (iii) an individual nominated by the Purchaser, (iv) an
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individual nominated by a majority-in-interest of the Limited Partners of
the Partnership other than the Purchaser and (v) 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.
(b) EXPANSION OF BOARD. In the event that the Board of Directors of
ICN is increased to more than five (5) persons, at least one of such
additional Directors shall be an individual nominated by the Purchaser.
(c) FURTHER ASSURANCES. In connection with the election of the Board
of Directors of ICN as provided in this Paragraph 3, the Shareholders
shall: (i) cause all certificates representing shares of stock of ICN to
reflect that the Shareholders have agreed to elect members of the Board of
Directors as required under Paragraph 3 of this Agreement and that a copy
of this Agreement may be obtained from ICN; (ii) not amend, or permit or
suffer to exist the amendment of, the Articles of Incorporation or By-Laws
of ICN in any way which would contravene or otherwise be inconsistent with
the provisions of this Paragraph 3; (iii) 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 3; and (iv) amend the Articles of Incorporation of ICN to provide
for the election of the Board of Directors of ICN as required under
Paragraphs 3(a) and 3(b) above.
4. PRESENCE OF ▇▇▇▇▇▇▇ AND GIANINNI AT OPERATIONS CENTER. If deemed
important to the survival and/or success of the Partnership, as determined by a
majority vote of the Board of Directors of ICN, ▇▇▇▇▇▇▇ or Gianinni, or both, as
determined by such vote, shall spend at least four (4) days per week at the
Partnership's operations center in Fairfield, Ohio managing the operations of
the Partnership.
5. TRANSFERS OF INTERESTS.
(a) Transfer by ICN. ICN may not transfer any portion of ICN's
Partnership Interest to any person or entity other than the Purchaser (a
"Third Party"), unless the Third Party shall offer in writing to purchase
from the Purchaser the number of Purchaser Units which bears the same ratio
to the total number of Purchaser Units then owned by the Purchaser as the
amount of ICN's Partnership Interest to be transferred to such Third Party
bears to the total amount of ICN's Partnership Interest, for a purchase
price no less than the amount to be paid by such Third Party for ICN's
Partnership Interest and on terms otherwise no less favorable to the
Purchaser than the terms of the transfer of ICN's Partnership Interest (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 the Partnership).
(b) TRANSFER BY THE SHAREHOLDERS. Neither Shareholder may transfer any
portion of his shares of stock in ICN (the "ICN Stock"), other than
pursuant to the options referred to in Paragraph 5(d) below and except for
transfers not to exceed an aggregate of $100,000 in value for each
Shareholder provided that after such transfers each Shareholder continues
to own at least thirty-seven and one-half percent (37.5%) of the
outstanding voting shares of ICN, to any Third Party, unless the Third
Party shall offer in writing to purchase from the Purchaser the number of
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Purchaser Units which bears the same ratio to the total number of Purchaser
Units then owned by the Purchaser as the number of such Shareholder's
shares of ICN Stock to be transferred to such Third Party bears to the
total number of outstanding shares of ICN Stock (the Purchaser Units for
which an offer is required are herein called the "Offer Units") for a
purchase price (i) in the event that the Purchaser has theretofore received
Distributions in an amount at least equal to the Purchaser's Investment
plus the aggregate Preferred Return applicable to the Purchaser as
described in Section 8.1 of the Partnership Agreement (the "Investment Plus
Return"), in an amount no less than the product of (A) the number of Offer
Units multiplied by (B) the quotient of (x) the amount to be paid by such
Third Party for such Shareholder's ICN Stock divided by (y) the product of
(I) the total number of Units in the Partnership times (ii) one-half of the
quotient of (aa) the number of shares of ICN Stock to be purchased by such
Third Party divided by (bb) the total number of outstanding shares of ICN
Stock (the resulting purchase price is herein called "Base Purchase
Price"), and (ii) in the event that the Purchaser has not theretofore
received Distributions in an amount at least equal to the Investment Plus
Return, in an amount no less than the sum of (A) the Base Purchase Price
plus (B) the difference between (x) the Investment Plus Return and (y) the
amount of Distributions which the Purchaser has theretofore received, and
on terms otherwise no less favorable to the Purchaser than the terms of the
transfer of such ICN Stock (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 the Partnership).
(c) CONSUMMATION OF TRANSFER. No transfer of any portion of ICN's
Partnership Interest to any Third Party, and no transfer by either
Shareholder of any portion of his ICN Stock to any Third Party, other than
pursuant to the options referred to in Paragraph 5(d) below, or as
permitted in Paragraph 5(b), shall be consummated prior to thirty (30) days
after the date the Purchaser receives the offer described in Paragraph 5(a)
or 5(b) above, as applicable, 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 of the Purchaser Units
by the Third Party shall be consummated simultaneously with or immediately
after the transfer of ICN's Partnership Interest or the ICN Stock, as
applicable, to such Third Party.
(d) PROHIBITION AGAINST TRANSFER. ICN shall not transfer any portion
of ICN's Partnership Interest to any Third Party except in compliance with
Paragraphs 5(a) and 5(c) above, and neither of the Shareholders shall
transfer any portion of his ICN Stock to any Third Party, except (i)
pursuant to any option existing as of April 30, 1993 in favor of R. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Jr., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ Gauge, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or (ii) in compliance with
Paragraphs 5(b) and 5(c) above, and in no event shall either Shareholder
transfer any portion of his ICN Stock to any Third Party if such transfer
would cause the Shareholders to own, in the aggregate, less than
seventy-five percent (75%) of the ICN Stock or the economic interest in
ICN.
(e) COMPLIANCE WITH PARTNERSHIP AGREEMENT. In the event of any
transfer by the Purchaser of any of the Purchaser Units to a Third Party
under this Paragraph 5, ICN, in its capacity as General Partner of the
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Partnership and in its capacity as transferee of the Purchaser Units, if
applicable, and such Shareholder, in its capacity as transferee of the
Purchaser Units, if applicable, shall comply with all requirements set
forth in the Partnership Agreement for the transfer by a Limited Partner of
its Units in the Partnership, including without limitation those set forth
in Sections 7.4 and 7.7 therein.
(f) TRANSFER OF UNITS TO THIRD PARTIES. When any Purchaser Units are
to be transferred by the Purchaser to a Third Party pursuant to this
Paragraph 5, the Purchaser shall have the option of transferring either
First Purchaser Units or Additional Purchaser Units, or any combination
thereof.
6. LIFE INSURANCE. The Partnership represents to the Purchaser that the
Partnership is the owner and beneficiary of a policy of insurance on the life of
▇▇▇▇▇▇▇ in the amount of One Million Dollars ($1,000,000) and a policy of
insurance on the life of Gianinni in the amount of Two Million Dollars
($2,000,000), and further agrees to pay all premiums with respect to such
policies on or prior to the due date thereof. The Partnership and the
Shareholders agree to take any such other actions as may be necessary or
appropriate to maintain such policies in full force and effect, to provide
copies of such insurance policies to the Purchaser prior to or simultaneously
with the execution of this Agreement, and to provide to the Purchaser evidence
of the payment of premiums thereon and such other information with respect
thereto as the Purchaser may reasonably request from time to time. Without
limitation on the generality of the foregoing, prior to the execution hereof,
the Shareholders shall cause the Board of Directors of ICN to adopt a
resolution, as general partner of the Partnership, to the effect that the
Partnership shall not, without the prior written consent of the Purchaser, cause
or permit such policies to be cancelled or revoked, the amount of such policies
to be reduced, or the beneficiaries of such policies to be any person or entity
other than the Partnership.
7. REGISTRATION.
(a) PROPOSED REGISTRATION. If the Partnership should propose to
register any of the Units of the Partnership or any other equity securities
issued by the Partnership or any successor thereto for sale under the
Securities Act of 1933 (the "Act"), the Partnership 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, the
Partnership shall use its best efforts to cause the Purchaser Units or any
other equity securities issued by the Partnership or any successor thereto
which are owned by the Purchaser 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 the Partnership may, in lieu of including any or
all of the Purchaser Units or such other 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 the Purchaser
Units or such other securities under such registration, and provided
further, that the Partnership shall not be required to cause the Purchaser
Units or such other securities to be included under the proposed
registration if a majority of the Board of Directors of ICN (excluding the
Director nominated by the Purchaser) determines that such registration of
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the Purchaser Units or such other securities would have a materially
detrimental effect on the proposed registration. In the event that the
Partnership shall elect to effect a separate registration in accordance
with the provisions of the preceding sentence, the Partnership shall use
its best efforts to cause such separate registration to become effective
not later than ninety (90) days after the effectiveness of the originally
proposed registration. If the Partnership determines, prior to the
effectiveness of its originally proposed registration, not to proceed with
such registration, the Partnership shall have no further obligation under
this Paragraph 7(a) to register any Partnership units or other equity
securities under that registration statement.
(b) REGISTRATION PROCEDURES. If and whenever the Partnership is
required by the provisions of this Paragraph 7 to effect the registration
of any Purchaser Units or other securities under the Act, the Partnership
shall, as expeditiously as possible:
(i) Prepare and file with the Securities and Exchange Commission
(the "Commission") a registration statement with respect to such
Purchaser Units or other 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;
(iv) Use its best efforts to register or qualify the Purchaser
Units or other 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 to
consummate the disposition of the Purchaser Units or such other
securities during the period provided in Paragraph 7(b)(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 request 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.
(c) EXPENSES. All expenses incurred by the Partnership in complying
with this Paragraph 7, 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 the Partnership and
10
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 the Partnership to the maximum extent permitted by law. All underwriting
fees and commissions incurred by the Purchaser and all fees and
disbursements of any counsel retained by the Purchaser shall be borne by
the Purchaser.
(d) INDEMNIFICATION.
(i) In the event of any registration of Purchaser Units or other
securities under this Paragraph 7, the Partnership, ICN and the
Shareholders shall defend, indemnify and hold harmless the Purchaser,
its officers and directors, each underwriter thereof and each person
which controls the Purchaser 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 or
any such officer, director, underwriter or controlling person may
become subject under the Act or otherwise, and the Partnership, ICN
and the Shareholders shall reimburse each of the Purchaser 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 the Partnership,
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 the Partnership by the
Purchaser or any such officer, director, underwriter or controlling
person. This indemnity shall be in addition to any liability which the
Partnership, ICN and the Shareholders may otherwise have.
(ii) In the event of any registration of Purchaser Units or other
securities under this Paragraph 7, the Purchaser shall indemnify ICN
and the Shareholders against any losses, claims, damages or
liabilities and any action in respect thereof, joint or several, to
which 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,
and the Purchaser shall reimburse ICN and the Shareholders for any
legal or other expenses reasonably incurred by ICN or the Shareholders
in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Purchaser
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 the Partnership by ICN or either of the
Shareholders. This indemnity shall be in addition to any liability
which the Purchaser may otherwise have.
(iii) If for any reason any indemnification described in
Paragraph 7(d)(i) or 7(d)(ii) above may not be provided by the party
or parties required therein to provide such indemnification (the
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"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 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.
8. EMPLOYMENT MATTERS.
(a) PERIOD OF EMPLOYMENT. Each of the Shareholders agrees that for so
long as he is employed by the Partnership or ICN, he shall not, directly or
indirectly, engage in any "Data Transfer Business" (as hereinafter defined)
anywhere in the world except through or on behalf of the Partnership or
ICN, and, without limiting the generality of the foregoing, he shall not do
any of the following (each, a "Related Activity"): (i) directly or
indirectly, on such Shareholder's own account or as an employee, officer,
director, shareholder, investor, independent contractor, consultant or
agent for any other person or entity, engage in or have any interest in any
business which is competitive with or substantially similar to the business
of the Partnership or any of its affiliates; (ii) solicit or attempt to
divert business from the Partnership or any of its affiliates; or (iii)
assist any other person or entity in doing any of the foregoing.
(b) POST-EMPLOYMENT.
(i) VOLUNTARY TERMINATION OR INVOLUNTARY TERMINATION WITH CAUSE.
In the event that either of the Shareholders voluntarily terminates
his employment with the Partnership or ICN or the employment of either
of the Shareholders with the Partnership or ICN is involuntarily
terminated by the Partnership or ICN "with cause" (as hereinafter
defined), such Shareholder shall not be entitled to, and shall not
receive, any monetary settlement, and (A) if such termination occurs
prior to April 30, 1995, such Shareholder shall not, prior to April
30, 1996, except with the prior written consent of the Purchaser,
engage, directly or indirectly, in any Data Transfer Business in the
United States or engage in any Related Activity, or (B) if such
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termination occurs on or after April 30, 1995, such Shareholder shall
not, for a period of one (1) year after the date of such termination,
except with the prior written consent of the Purchaser, engage,
directly or indirectly, in any Data Transfer Business in the United
States or engage in any Related Activity.
(ii) INVOLUNTARY TERMINATION WITHOUT CAUSE. In the event that the
employment of either of the Shareholders with the Partnership or ICN
is involuntarily terminated other than with cause:
(A) If such termination occurs prior to April 30, 1995, the
Partnership shall pay such Shareholder an amount equal to (I)
Three Hundred Thousand Dollars ($300,000) minus (II)(x) Two
Hundred Seventy-Four Dollars ($274) times (y) the number of days
from April 30, 1993 through the date of termination, and such
Shareholder shall not, prior to April 30, 1996, except with the
prior written consent of the Purchaser, engage, directly or
indirectly, in any Data Transfer Business in the United States or
engage in any Related Activity;
(B) If such termination occurs on or after April 30, 1995
but prior to April 30, 1996, (I) the Partnership shall pay such
Shareholder an amount equal to (x) One Hundred Thousand Dollars
($100,000) minus (y)(aa) Two Hundred Seventy-Four Dollars ($274)
times (bb) the number of days from April 30, 1995 through the
date of termination (the "Third Year Payment"), and such
Shareholder shall not, prior to April 30, 1996, except with the
prior written consent of the Purchaser, engage, directly or
indirectly, in any Data Transfer Business in the United States or
engage in any Related Activity, and (II) at the option of the
Partnership, the Partnership may pay such Shareholder an amount
which, when added to the amount of the Third Year Payment, will
cause the total amount paid by the Partnership to such
Shareholder pursuant to this Paragraph 8(b)(ii)(B) to equal One
Hundred Thousand Dollars ($100,000), in which event such
Shareholder shall not, prior to the first anniversary of the date
of termination, except with the prior written consent of the
Purchaser, engage, directly or indirectly, in any Data Transfer
Business in the United States or engage in any Related Activity;
or
(C) If such termination occurs on or after April 30, 1996,
the Partnership, at its option, may pay such Shareholder the sum
of One Hundred Thousand Dollars ($100,000), in which event such
Shareholder shall not, for a period of one (1) year after the
date of such termination, except with the prior written consent
of the Purchaser, engage, directly or indirectly, in any Data
Transfer Business in the United States or engage in any Related
Activity.
(c) "DATA TRANSFER BUSINESS" DEFINED. The term "Data Transfer
Business" as used herein means any business primarily involving the
transfer of data on behalf of third parties, but does not include any
business involving the transfer of data in which the applicable Shareholder
13
has a substantial proprietary interest to third parties whose primary
purpose is acquiring the content of such data from such Shareholder rather
than obtaining from such Shareholder the means of transferring such data.
(d) "WITH CAUSE" DEFINED. If the Partnership or ICN shall have
terminated the employment of either of the Shareholders by reason of such
Shareholder at any time materially neglecting or refusing to perform the
duties of his employment, failing to devote his full employment time, in
the case of Gianinni, and approximately seventy-five percent (75%) of his
employment time, in the case of ▇▇▇▇▇▇▇, and best efforts to the business
of the Partnership or ICN, as the case may be, being guilty of misconduct
in connection with the business of the Partnership or ICN, as the case may
be, or becoming physically or mentally incapable of reasonably performing
the duties of his employment for a continuous period of ninety (90) days,
then such termination shall be deemed "with cause."
(e) ACKNOWLEDGMENT. Each of the Shareholders acknowledges that the
expertise of the Shareholders in the type of business in which the
Partnership is engaged is important to the Purchaser's decision to invest
in the Additional Purchaser Units, that the Purchaser's decision to invest
in the Additional Purchaser Units was made in reliance on such expertise
and the agreements of the Shareholders contained in this Paragraph 8, and
that the investment by the Purchaser in the Additional Purchaser Units will
be in the best interests of and beneficial to the Partnership and the
Shareholders.
(f) REFORMATION. In the event that any provision of this Paragraph 8
is held or declared to be void or illegal for any reason, the offending
provision shall, if possible, be reformed to most nearly implement the
intention of the parties hereto without such illegality, or if reformation
is not possible, the offending provision shall be stricken and all other
provisions of this Paragraph 8 which can be effected without such illegal
provision shall nevertheless remain in full force and effect.
9. RIGHTS OF FIRST REFUSAL.
(a) PARTNERSHIP INTERESTS. At any time that the Partnership proposes
to sell any additional Units or other interests in the Partnership, other
than any Units with respect to which CFG Securities Corp. ("CFG") has an
option to purchase as described in the Offering Memorandum and existing on
April 30, 1993, the Partnership agrees to notify the Purchaser of such
proposed sale and to provide the Purchaser with the right of first refusal
to purchase such Units or other interests in the Partnership, or any
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 the Partnership
otherwise proposes to sell such Units or other interests in the
Partnership, provided that any such purchase by the Purchaser shall be on a
pro rata basis with the other Limited Partners of the Partnership to the
extent that the other Limited Partners have the right and desire to
purchase such Units or other interests in the Partnership.
(b) RELATED ENTITY INTERESTS. At any time that ICN, or any entity
controlled by ICN or any of its affiliates which is engaged in any Data
Transfer Business, proposes to sell any stock or other equity interest
therein, ICN agrees to notify the Purchaser of such proposed sale and to
provide the Purchaser, or cause the Purchaser to be provided, with the
14
right of first refusal to purchase such stock or other equity interests, or
any 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 ICN 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, ICN and any entity
controlled by ICN or any of its affiliates, to the extent that the other
Limited Partners, ICN and any entity controlled by ICN 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 Paragraphs 9(a) and 9(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. The Partnership agrees to use its best efforts
to provide, or cause to be provided, to the Purchaser the right of first
refusal to purchase any Units or other interests in the Partnership 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 Units or other interests are otherwise proposed to be resold,
provided that such right of first refusal need only be provided to the
Purchaser with respect to any Units or other interests which are not
purchased by the Partnership pursuant to any right of first refusal which
the Partnership may hold with respect to such Units or other interests, and
provided further, that in no event shall the Purchaser acquire more than
forty percent (40%) of the Limited Partner interests in the Partnership
without the consent of ICN.
10. LEGAL FEES AND EXPENSES. The Partnership 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 and the Subscription Agreement up to a maximum
of Five Thousand Dollars ($5,000), such fees and expenses to be paid within
thirty (30) days after the date hereof, or, in the case of fees and expenses
incurred after the date hereof, within thirty (30) days after presentation of a
statement therefor.
11. REPRESENTATIONS AND WARRANTIES. The Partnership, ICN and the
Shareholders jointly and severally represent and warrant to the Purchaser that:
(a) NO MISREPRESENTATIONS. Except as described in Exhibit B attached
hereto, the information contained in the Offering Memorandum, as well as in
the Partnership's audited financial statements for its year ended December
31, 1992 which have been provided to the Purchaser, is true and correct in
all material respects and the Offering Statement does not omit any facts
necessary to make any statements contained therein not misleading in any
material respect in light of the circumstances under which made ' and
neither the Partnership, ICN nor either of the Shareholders has made any
material misrepresentation to the Purchaser hereunder or otherwise in
connection with the offering or sale of the Additional Purchaser Units nor
omitted to state any facts necessary to make any statements made to the
Purchaser or any affiliate of the Purchaser hereunder or otherwise in
connection with the offering or sale of the Additional Purchaser Units not
misleading in any material respect in light of the circumstances under
15
which made. No equity interest in ICN or the Partnership has been offered
for sale or sold in violation of any state or federal securities law.
(b) DUE EXECUTION. Each of this Agreement, the Subscription Agreement
and the Partnership Agreement has been duly executed and delivered by 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 constitutes the legal,
valid and binding obligation of each such party, enforceable against such
party in accordance with its terms.
(c) NO VIOLATION. The execution and delivery of this Agreement and the
Subscription Agreement by the Partnership, ICN and the Shareholders, as
applicable, and the performance by them of their obligations hereunder and
thereunder, 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 any other
agreement or governmental restriction to which any of them is a party 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.
12. AMENDMENT OF FIRST PURCHASE AGREEMENT. Prior to or simultaneously with
entering into this Agreement, the Purchaser, ICN, the Shareholders and the
Partnership shall amend the First Purchase Agreement to the extent reasonably
deemed necessary or appropriate by the Purchaser to insure that the provisions
of the First Purchase Agreement are not inconsistent with the provisions of this
Agreement.
13. 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 under the Subscription Agreement, 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 and under the Subscription Agreement. The
Partnership, ICN and the Shareholders represent to the Purchaser that 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.
16
(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 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 any 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 and the Shareholders acknowledge
and agree that in the event of breach of any of the provisions of
Paragraphs 3(a), 3(b), 5, 8 and 9 above, the Purchaser would sustain
irreparable injury, and the Partnership, ICN and the Shareholders recognize
that money damages for such breach would be difficult or impossible to
ascertain. The Partnership, ICN and the Shareholders therefore agree that
the Purchaser shall be entitled, in addition 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 Paragraphs 9(a) and 9(b) hereof.
17
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
BLUE CHIP/DATALINC CORPORATION
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
_______________________
Title: President
INTEGRATED COMMUNICATION NETWORKS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
________________________
Title: President
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
__________________________
DATALINC, LTD.
By: Integrated Communication
Networks, Inc.,
its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________
Title: CEO
bluechp9.pur
18
