APPENDIX "A"
EXHIBIT 2.1.1
Amended Agreement and Plan of Reorganization
of
Datalinc, Ltd.
Fastcom, Ltd.
and
Thrucomm, Inc.
August 11, 1997
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AMENDED AGREEMENT AND PLAN OF REORGANIZATION dated as of the 1st day of
August, 1997 (the "Agreement") by and among Datalinc, Ltd., a Florida limited
partnership ("Datalinc"), Fastcom, Ltd., a Florida limited
partnership ("Fastcom") (Datalinc and Fastcom collectively referred to as the
Partnerships"), and Thrucomm, Inc., a Florida corporation ("Thrucomm").
WITNESSETH:
WHEREAS, the Partnerships and Thrucomm desire for the reorganization (the
"Reorganization") of the businesses of the Partnerships, combining them into
Thrucomm by, among other things:
A. The transfer of all of the assets and liabilities of the Partnerships to
Thrucomm (the "Transfer"), upon the terms and conditions described in this
Agreement; and
B. In exchange for the Transfer, Datalinc will receive shares of Thrucomm's
Mandatory Convertible Preferred Stock, Series A-G and Fastcom will receive
shares of Thrucomm's Mandatory Convertible Preferred Stock, Series H-P (the
Mandatory Convertible Preferred Stock, Series A-G and H-P, collectively referred
to as the "Preferred Stock").
NOW, THEREFORE, in consideration of the terms, conditions, agreements and
covenants contained herein, and in reliance upon the representations and
warranties contained in this Agreement, the parties hereto agree as follows:
I. RECITALS; TRUE AND CORRECT.
The above stated recitals are true and correct and are incorporated into this
Agreement.
II. MERGER.
REORGANIZATION. The Partnerships and Thrucomm shall effect the Transfer upon the
terms and conditions described in this Agreement, and in exchange for the
Transfer, the Partnerships will receive the Reorganization Stock. The Preferred
Stock will be held by the Partnerships until mandatory conversion (the
"Mandatory Conversion"), at which time the Preferred Stock will be converted
into shares of Thrucomm's Common Stock, no par value (the "Underlying Shares").
Upon Mandatory Conversion, Integrated Communication Networks, Inc., a Florida
corporation which is the General Partner of Datalinc (the "Datalinc General
Partner"), and Fastcom Management, Inc., a Florida corporation which is the
General Partner of Fastcom (the "Fastcom General Partner"), will distribute the
Underlying Shares to the Partners in Datalinc (collectively, the "Datalinc
Distributees") and the Partners in Fastcom (collectively, the "Fastcom"
Distibutees"), and the Partnerships will dissolve.
2.2 EFFECTIVE DATE. If all of the conditions precedent to the obligations of
each of the parties hereto as hereinafter set forth shall have been satisfied or
shall have been waived, the Reorganization shall become effective on the date
(the "Effective Date") of the Transfer.
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2.3 SECURITIES OF THRUCOMM.
The authorized capital stock of Thrucomm is comprised of the following: (i)
100,000,000 shares of Common Stock, no par value (the "Common Stock"), one share
of which is issued and outstanding; and (ii) 25,000,000 shares of Preferred
Stock, no par value (the "Preferred Stock"), with such designation, rights and
preferences as may be determined from time to time by the Board of Directors of
Thrucomm, of which no shares are issued and outstanding.
2.4 PREFERRED STOCK. The manner and basis of issuing the
Preferred Stock are as follows:
(a) STOCK CONSIDERATION. At the Effective Date, the Partnerships shall receive
the following number of shares of Reorganization Stock:
TO DATALINC:
1 Preferred Share, Series A; the Underlying Shares to be distributed to the
holders of Series 100 Limited Partnership Units upon Mandatory Conversion;
1 Preferred Share, Series B; the Underlying Shares to be distributed to the
holders of Series 200 Limited Partnership Units upon Mandatory Conversion;
1 Preferred Share, Series C; the Underlying Shares to be distributed to the
holders of Series 300 Limited Partnership Units upon Mandatory Conversion;
1 Preferred Share, Series D; the Underlying Shares to be distributed to the
holders of Series 300E1 Limited Partnership Units upon Mandatory Conversion;
1 Preferred Share, Series E; the Underlying Shares to be distributed to the
holders of Series 3OOE2 Limited Partnership Units upon Mandatory Conversion;
1 Preferred Share, Series F; the Underlying Shares to be distributed to the
holder of the Managing Dealer Units upon Mandatory Conversion; and
1 Preferred Share, Series G; the Underlying Shares to be distributed
to the Datalinc General Partner upon Mandatory Conversion.
TO FASTCOM:
1 Preferred Share, Series H; the Underlying Shares to be distributed to the
holders of Series 100 Limited Partnership Units upon Mandatory Conversion;
1 Preferred Share, Series I; the Underlying Shares to be distributed to the
holders of Series 100EA Limited Partnership Units upon Mandatory Conversion;
1 Preferred Share, Series J; the Underlying Shares to be distributed to the
holders of Series 200 Limited Partnership Units upon Mandatory Conversion;
1 Preferred Share, Series K; the Underlying Shares to be distributed to the
holders of Series 300 Limited Partnership Units upon Mandatory Conversion;
1 Preferred Share, Series L; the Underlying Shares to be distributed to
Datalinc, as the holder of the Datalinc Limited Partnership Units, upon
Mandatory Conversion;
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1 Preferred Share, Series M; the Underlying Shares to be distributed to the
holders of MIP Special Limited Partnership Units upon Mandatory Conversion;
1 Preferred Share, Series N; the Underlying Shares to be distributed to the
holder of the Managing Dealer Units upon Mandatory Conversion;
1 Preferred Share, Series O; the Underlying Shares to be distributed to ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & Hurt upon Mandatory Conversion; and
1 Preferred Share, Series P; the Underlying Shares to be distributed to
the Fastcom General Partner upon Mandatory Conversion.
DIVIDENDS
Dividend Participation of the Preferred Stock
Prior to Mandatory Conversion, all Series of Preferred Stock will have a twenty
percent (20%) participation in any dividend declared on Thrucomm's Common Stock.
Dividend Policy
Thrucomm does not presently intend to pay any cash dividends on the Common Stock
or the Preferred Stock for the foreseeable future as all available cash will be
utilized to further the growth of business subsequent to the Effective Time of
the Reorganization for the proximate future thereafter. The payment of any
subsequent cash dividends will be in the discretion of the Board of Directors of
Thrucomm and will be dependent upon Thrucomm's results of operations, financial
condition, contractual restrictions and other factors deemed relevant by the
Board..
VOTING RIGHTS
Except as provided by law, the holders of the Preferred Stock will not be
entitled to vote.
LIQUIDATION RIGHTS
All of the Preferred Stock will rank in equal priority to each other, but prior
to the Common Stock, upon liquidation. In the event of any liquidation,
dissolution or winding-up of Thrucomm, whether voluntary or involuntary, no
payment or distribution of the assets of Thrucomm, or proceeds thereof (whether
capital or surplus), shall be made to or set apart for the holders of any class
or series of stock of Thrucomm ranking junior to the Preferred Stock upon
liquidation. The holders of the Preferred Stock shall be entitled to receive
payments or distributions of assets, payable in the proportion determined by the
Formula. The voluntary sale, conveyance, lease, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or substantially all
the property or assets of Thrucomm to, or a consolidation or merger of Thrucomm
with, one or more other corporation (whether or not Thrucomm is Thrucomm
surviving such consolidation or merger) will not be deemed to be a liquidation,
dissolution or winding-up, voluntary or involuntary.
(c) CONVERSION. The Preferred Stock shall be mandatorily convertible into shares
of Thrucomm's Common Stock ("Underlying Shares") upon the earliest to occur of
one of the following events: (i) the completion of an initial public offering of
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Thrucomm's Common Stock (an "IPO"), (ii) the sale of all or substantially all of
the assets of Thrucomm (a "Sale"), or (iii) the merger of Thrucomm into a
non-affiliated entity, whereby Thrucomm is not the surviving entity (a "Merger")
(collectively, the "Mandatory Conversion Events"). The "sale of all or
substantially all of the assets of Thrucomm" is defined in the Reorganization
Agreement as the sale of at least 80% of Thrucomm's assets.
The Preferred Stock will be mandatorily convertible into Underlying Shares prior
to the Sale or Merger upon (i) the approval of a proposed Sale or Merger by
Thrucomm's Board of Directors, and (ii) the execution of a Sale or Merger
agreement that sets forth the consideration to be received by Thrucomm's
shareholders, and that is conditioned upon such shareholders' approval. In the
event the Sale or Merger is not approved by the stockholders, the Preferred
Stock will have already been converted into Underlying Shares based upon a
proposed transaction that was never approved or consummated, and there shall be
no further right to convert into Underlying Shares of Thrucomm.
The rights and preferences of each Series of Preferred Stock upon Mandatory
Conversion is set
forth below.
Series A Preferred Stock
The Series A Preferred Stock shall be convertible into a number of Underlying
Shares equal to (i) the Earned Preferred Returns of the Series A Preferred
Stock, plus (ii) 18.921% of (a) the difference, if any, of the Datalinc Value
minus the Earned Preferred Returns of the Series A - E Preferred Stock, and (b)
the remainder of Datalinc's share of the Fastcom Value.
Series B Preferred Stock
The Series B Preferred Stock shall be convertible into a number of Underlying
Shares equal of (i) the Earned Preferred Returns of the Series B Preferred
Stock, plus (ii) 8.642% of (a) the difference, if any, of the Datalinc Value
minus the Earned Preferred Returns of the Series A - E Preferred Stock, and (b)
the remainder of Datalinc's share of the Fastcom Value.
Series C Preferred Stock
The Series C Preferred Stock shall be convertible into a number of Underlying
Shares equal to (i) the Earned Preferred Returns of the Series C Preferred
Stock, plus (ii) 5.429% of (a) the difference, if any, of the Datalinc Value
minus the Earned Preferred Returns of the Series A - E Preferred Stock, and (b)
the remainder of Datalinc's share of the Fastcom Value.
Series D Preferred Stock
The Series D Preferred Stock shall be convertible into a number of Underlying
Shares equal to (i) the Earned Preferred Return of the Series D Preferred Stock,
plus (ii) 9.137% of (a) the difference, if any, of the Datalinc Value minus the
Earned Preferred Returns of the Series A - E Preferred Stock, and (b) the
remainder of Datalinc's share of the Fastcom Value.
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Series E Preferred Stock
The Series E Preferred Stock shall be convertible into a number of Underlying
Shares equal to (i) the Earned Preferred Return of the Series E Preferred Stock,
plus (ii) 7.871% of (a) the difference, if any, of the Datalinc Value minus the
Earned Preferred Returns of the Series A - E Preferred Stock, and (b) the
remainder of Datalinc's share of the Fastcom Value.
Series F Preferred Stock
The Series F Preferred Stock shall be convertible into a number of Underlying
Shares equal to 4.0% of (i) the difference, if any, of the Datalinc Value minus
the Earned Preferred Returns of the Series A - E Preferred Stock, and (ii) the
remainder of Datalinc's share of
the Fastcom Value.
Series G Preferred Stock
The Series G Preferred Stock shall be convertible into a number of Underlying
Shares equal to 46% of (i) the difference, if any, of the Datalinc Value minus
the Earned Preferred Returns of the Series A - E Preferred Stock, and (ii) the
remainder of Datalinc's share of
the Fastcom Value.
Series H Preferred Stock
The Series H Preferred Stock shall be convertible into a number of Underlying
Shares equal to (i) the Earned Preferred Return of the Series H Preferred Stock,
if any, plus (ii) 2.013% of the Fastcom Value.
Series I Preferred Stock
The Series I Preferred Stock shall be convertible into a number of Underlying
Shares equal to 0.503% of the Fastcom Value.
Series J Preferred Stock
The Series J Preferred Stock shall be convertible into a number of Underlying
Shares equal to (i) the Earned Preferred Return of the Series J Preferred Stock,
if any, plus (ii) 10.832% of the Fastcom Value.
Series K Preferred Stock
The Series K Preferred Stock shall be convertible into a number of Underlying
Shares equal to (i) the Earned Preferred Return of the Series K Preferred Stock,
if any, plus (ii) 9.524% of the Fastcom Value.
Series L Preferred Stock
The Series L Preferred Stock shall be convertible into a number of Underlying
Shares equal to (i) 73.042% of the Fastcom Value, (ii) minus the sum of any
Earned Preferred Returns of the Series
H, J, K and M Preferred Stock.
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Series M Preferred Stock
The Series M Preferred Stock shall be convertible into Underlying Shares in an
amount equal to (i) 0.01% of the Fastcom Value (ii) plus any Earned Preferred
Return of the Series M Preferred
Stock.
Series N Preferred Stock
The Series N Preferred Stock shall be convertible into a number of Underlying
Shares equal to
2.171% of the Fastcom Value.
Series O Preferred Stock
The Series O Preferred Stock shall be convertible into a number of Underlying
Shares equal to
0.905% of the Fastcom Value.
Series P Preferred Stock
The Series P Preferred Stock shall be convertible into a number of Underlying
Shares equal to
1.0% of the Fastcom Value.
Earned Preferred Returns of the Preferred Stock
Series A-E Earned Preferred Returns
The Datalinc Series 100 - 300E2 Units are entitled to repayment of their total
cash Capital Contributions, plus aggregate Preferred Returns, before any
Distributions of Cash Flow, Sale Proceeds and Refinancing Proceeds, and upon
liquidation to Datalinc's Other Equity Owners. To preserve the Datalinc
Investors' rights and preferences under the Partnership Agreements, the Series
A-E Preferred Stock shall be entitled to Earned Preferred Returns (the "Earned
Preferred Returns"), upon Mandatory Conversion, in an amount which shall be
equal or nearly equal to the Datalinc Investors' cash Capital Contributions,
plus Preferred Return. Earned Preferred Returns shall be declared at the time of
Mandatory Conversion, and will be factored into the calculation of the number of
Underlying Shares.
The amount of Earned Preferred Returns accruing per share per month shall be
computed by dividing the annual rate (10% for the Series A and B; 8% of the
Series C-E) by twelve. The amount of Earned Preferred Returns payable for any
period shorter than a full month shall be computed on the basis of a 360-day
year of 12, 30-day months.
The Preferred Returns on Datalinc Series 300E1 and 300E2 Units accrue from the
dates of the individual Subscription Agreements of each Investor in those Units.
However, the Earned Preferred Returns on the Series D and E Preferred Stock,
shall accrue from June 1, 1993 and September 1, 1993, respectively. The Boards
of Directors of Thrucomm, ICN and FMI believe that the dates chosen for the
Earned Preferred Returns on the Series D and E Preferred Stock are not
significantly different from the terms of the Series 300E1 and 300E2 Units under
Datalinc's Partnership Agreement.
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Series H, J and K Earned Preferred Returns
The Fastcom Series 100, 200 and 300 Investors are entitled to a Minimum
Guaranteed Return on their investment. Accordingly, the Series H, J and K
Preferred Stock shall be entitled to Earned Preferred Returns upon Mandatory
Conversion, if necessary to ensure that Fastcom's Series 100, 200 and 300
Investors receive the benefit of their Minimum Guaranteed Return, as provided
for under Fastcom's Partnership Agreement.
Series H
The Earned Preferred Return on the Series H Preferred Stock is measured as a 30%
discount to the Fastcom Value. The 30% discounted Fastcom Value (the "Discounted
Fastcom Value") is determined as follows:
Fastcom Value x .70 = 30% Discounted Fastcom Value.
An adjustment to the equity interest of the Series H Preferred Stock need only
be calculated, if the Discounted Fastcom Value is less than $18,431,595 (the
Series H "Guaranteed Minimum of Fastcom Value"). The Series H adjusted ownership
interest is calculated as follows:
Series H Guaranteed Minimum Fastcom Value x .02013 x 100 = % Adjusted Ownership
----------------------------------------------------------- Interest
Discounted Fastcom Value
For example, if the Fastcom Value is $21,000,000, the Discounted Fastcom Value
is $21,000,000 x .70 = $14,700,000. Since the Discounted Fastcom Value is less
than the Series H Preferred Stock's Guaranteed Minimum Fastcom Value, it is
necessary to make an adjustment to the Series H Preferred Stock's interest. The
adjusted ownership interest of the Series H Preferred Stock would be:
($18,431,595 = $14,700,000) x .02013 x 100 = 2.524%. The Series H Earned
Preferred Return in this illustration is equal to 2.54% of the Fastcom Value
minus 2.013% of the Fastcom Value. Any Earned Preferred Return on the Series H
Preferred Stock shall result in a corresponding decrease in the distribution to
the Series L Preferred Stock upon Mandatory Conversion. See "The Formula -
Determining the Values of Thrucomm, Datalinc and Fastcom" for how to calculate
the Fastcom Value.
Series J
The Earned Preferred Return on the Series J Preferred Stock is also measured as
a 30% discount to the Fastcom Value. If the Discounted Fastcom Value is less
than $19,894,940 (the Series J "Guaranteed Minimum Fastcom Value"), the adjusted
ownership interest of the Series J Preferred Stock is calculated as follows:
Series J Guaranteed Minimum Fastcom Value x .10832 x 100 = % Adjusted Ownership
----------------------------------------------------------- Interest
Discounted Fastcom Value
If the Fastcom Value is $21,000,000, the Discounted Fastcom Value would be
$21,000,000 x .70 = $14,700,000. Since the Discounted Fastcom Value is less than
the Series J's Guaranteed Minimum Fastcom Value, it is necessary to make an
adjustment to the Series J Preferred Stock's equity interest. The adjusted
ownership interest of the Series J Preferred Stock would be: ($19,894,940 =
$14,700,000) x .10832 x 100 = 14.66%. The Series J Earned Preferred Return in
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this illustration is equal to 14.66% of the Fastcom Value minus 2.013% of the
Fastcom Value. Any Earned Preferred Return on the Series J Preferred Stock shall
result in a corresponding decrease in the distribution to the Series L Preferred
Stock upon Mandatory Conversion.
Series K
The aggregate maximum Guaranteed Return of the Series 300 Units is $2 million.
Accordingly, if 9.524% of the Fastcom Value is less than $2 million, assuming
the sale of all of the Series 300 Units, the Earned Preferred Return on the
Series K Preferred Stock will be equal to the difference between $2 million and
9.524% of the Fastcom Value.
Series M
The Series M Preferred Stock is entitled, under the circumstances described
below, to receive an Earned Preferred Return upon Mandatory Conversion in an
amount equal to $750,000, plus 4.3% of Datalinc's aggregate share of the
Conversion Value of Thrucomm, which is calculated as follows: (i) the sum of (a)
the Datalinc Value, (b) the Fastcom Allocation to Datalinc and (c) the Fastcom
Allocation to the MIP Units, minus the Earned Preferred Return of the Datalinc
Investors; (ii) the difference in (i), minus $750,000; (iii) the difference in
(ii), multiplied by .043; (iv) the sum of (a) the product in (iii) and (b)
$750,000, minus $2,100.
If the Conversion Value of Thrucomm is less than $30 million, the MIP Units
shall not be entitled to any Earned Preferred Return. MIP Units may be entitled
to an Earned Preferred Return when the Conversion Value of Thrucomm is $30
million or greater (the "MIP Minimum Conversion Value"). However, the MIP
Minimum Conversion Value is subject to an adjustment upwards, if within 6 months
from the date of the adoption of the Plan, Fastcom, Datalinc and/or Thrucomm
receive a capital infusion(s), that is/are reflected as equity in the financial
statements of the Partnerships or Thrucomm. Upon the occurrence of such capital
infusion, the MIP Minimum Conversion Value shall be increased dollar for dollar
by the amount of the infusion(s), however the MIP Minimum Conversion Value shall
not exceed $35 million. Accordingly, MIP Units shall be entitled to an Earned
Preferred Return when the Conversion Value of Thrucomm equals or exceeds the MIP
Minimum Conversion Value.
No fractional shares will be issued upon conversion.
THE FORMULA
The General Partners of Datalinc and Fastcom, and the Board of Directors of
Thrucomm have developed a formula for determining Investors' and Other Equity
Owners' future ownership interest in Thrucomm, assuming approval of the
Reorganization and the occurrence of a Mandatory Conversion Event (the
"Formula"). In its simplest terms, the Formula can be stated as follows: the
Conversion Value of Thurcomm minus the Datalinc Value equals the Fastcom Value.
Set forth below is a description of how the Formula would work upon a Mandatory
Conversion Event, including explanations of how the Conversion Value, Datalinc
Value and Fastcom Value are determined, the material assumptions upon which the
Formula is based, and a discussion of any material differences between and
Investor's rights, interests and preferences under the terms of the Preferred
Stock from those he or she currently has under the Partnership Agreements.
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Determining the Values of Thrucomm, Datalinc and Fastcom
The value of Thrucomm will be established upon the occurrence of a Mandatory
Conversion Event (the "Conversion Value" of Thrucomm). The General Partners have
established percentages and equations for subsequently allocating the Conversion
Value of Thrucomm to each of the Partnerships. Set forth below is an explanation
of the manner in which the values of the Parties are determined, or estimated
for the purpose of providing examples of the operation of the Formula.
DETERMINING THE CONVERSION VALUE
If the Mandatory Conversion Event is an IPO, the aggregate value of Thrucomm
would be equal to the gross proceeds of the offering multiplied by three
(assuming one-third of Thrucomm is sold in the offering). For example, if the
gross proceeds of an IPO is $15,000,000, the aggregate value of Thrucomm would
be equal to: $15,000,000 x 3 = $45,000,000. In this example, the Conversion
Value of Thrucomm, would be an aggregate of $30 million ($45,000,000 -
$15,000,000 = $30,000,000). Thrucomm cannot presently ascertain the amount of
equity that it may sell in an IPO. Such amount will be determined by Thrucomm at
the time of any such offering with the advice of its underwriters. The one-third
assumption used in the examples herein is for illustration purposes and is not
intended to be a ceiling for the amount of equity that could be sold in an IPO.
However, pursuant to the Reorganization Agreement, Thrucomm will not sell more
than forty percent (40%) of its equity in an IPO and the Conversion Value shall
not be less than $20 million.
If Mandatory Conversion should occur as a result of a Sale or Merger, the
Conversion Value would be equal to the aggregate consideration proposed to be
received in that Sale or Merger. A Mandatory Conversion occurs, in the event of
a Sale or Merger when (i) the Board of Directors of Thrucomm approve a proposed
Sale or Merger, and (ii) the parties to the proposed Sale or Merger have
executed an agreement of sale or merger that sets forth the consideration to be
received by Thrucomm's shareholders, and is conditioned on such shareholder's
approval. See "Risk Factors - Risks Associated with a Sale or Merger." For
illustration purposes only, ICN, FMI and the Company have provided examples of
the operation of the Formula at Conversion Values of $20 million, $30 million
and $60 million. See "Thrucomm Ownership Tables."
DETERMINING THE DATALINC VALUE AND THE FASTCOM VALUE
To determine the values of Datalinc and Fastcom for use in the Formula,
(respectively, the "Datalinc Value" and the "Fastcom Value") the Conversion
Value of Thrucomm will be divided and apportioned to each of the Partnerships as
follows: (i) thirty percent (30%) to Datalinc and seventy percent (70%) to
Fastcom, assuming a Conversion Value of $30 million; (ii) twenty-five percent
(25%) to Datalinc and seventy-five percent (75%) to Fastcom, assuming a
Conversion Value of $60 million; and (iii) twenty percent (20%) to Datalinc and
eighty percent (80%) to Fastcom, assuming a Conversion Value in excess of $60
million.
If the Conversion Value of Thrucomm is more than $30 million, but less than $60
million, the Datalinc Value will be determined by application of the following
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equation, which allocates 20 percent of the excess of the Conversion Value over
$30 million to Datalinc:
Datalinc Value = $9,000,000 + Conversion Value of Thrucomm - $30,000,000
---------------------------------------------------------------------------
5
If the Conversion Value of Thrucomm is more than $60 million, the Datalinc Value
will be determined by the application of the following equation, which allocates
10 percent of the excess of the Conversion Value over $60 million to Datalinc:
Datalinc Value = $15,000,000 + Conversion Value of Thrucomm - $60,000,000
---------------------------------------------------------------------------
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If however the Conversion Value of Thrucomm is less than $30 million, the
Datalinc Value would be established at $9 million (the "Minimum Datalinc
Value"). For example, if the Conversion Value is $20 million the Datalinc Value
would be $9 million and the Fastcom Value would be $11 million ($20,000,000 -
$9,000,000 = $11,000,000). The Minimum Datalinc Value is roughly equivalent to
the accumulated Preferred Returns of Datalinc's Investors, as of May 1, 1997.
Although the Minimum Datalinc Value is set at $9 million, the Earned Preferred
Returns of the Series A - E Preferred Stock will continue to grow in the same
manner as the Datalinc Series 100 - 300E2 Units to which they relate. If such
Earned Preferred Returns exceed the Datalinc Value, the excess will be allocated
from Datalinc's share of the Fastcom Value.
The method for allocating the Conversion Value of Thrucomm among Fastcom and
Datalinc is based upon the business judgement and the conclusion of the General
Partners and the Board of Directors of Thrucomm that most of any Conversion
Value of Thrucomm in excess of $30 million is attributable to the business of
Fastcom, rather than Datalinc.
2.5 EFFECT OF THE REORGANIZATION. As of the Effective Date, all of the
following shall occur:
(a) The corporate identity, existence, purposes, powers, franchises, rights
and immunities of Thrucomm shall continue unaffected and unimpaired by the
Reorganization,
(b) Thrucomm shall be liable for all of the obligations and liabilities of
the Partnerships.
(c) The rights, privileges, good will, inchoate rights, franchises and
property, real, personal and mixed, and debts due on whatever account and
all other things in action belonging to the Partnerships shall be, and they
hereby are, bargained, conveyed, granted, confirmed, transferred, assigned
and set over to and vested in Thrucomm, without further act or deed.
(d) No claim pending at the Effective Date by or against the Partnerships
or Thrucomm or any partner, stockholder, officer or director thereof, shall
▇▇▇▇▇ or be discontinued by the Reorganization, but may be enforced,
prosecuted, settled or compromised as if the Reorganization had not
occurred.
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(e) All rights of employees and creditors and all liens upon the property
of the Partnerships or Thrucomm shall be preserved unimpaired, limited hen
to the property affected by such hens at the Effective Date, and all the
debts, liabilities and duties of the Partnerships shall attach to Thrucomm
and shall be enforceable against Thrucomm to the same extent as if all such
debts, liabilities and duties had been incurred or contracted by Thrucomm.
(f) The Articles of Incorporation of Thrucomm, as in effect on the
Effective Date, shall continue to be the Articles of Incorporation of
Thrucomm without change or amendment until such time, if ever, as it is
amended thereafter in accordance with the provisions thereof and applicable
laws.
(g) The Bylaws of Thrucomm as in effect on the Effective Date, shall
continue to be the Bylaws of Thrucomm without change or amendment until
such time, if ever, as it is amended thereafter in accordance with the
provisions thereof and applicable laws.
2.6 DISCLOSURE SCHEDULES. The Consent Statement and Prospectus dated insert (the
"Disclosure Schedule") sets forth the matters required to be set forth in the
Disclosure Schedules as described elsewhere in this Agreement. The Disclosure
Schedule shall be deemed to be a part of this Agreement.
III. REPRESENTATIONS AND WARRANTIES OF DATALINC. Datalinc represents and
warrants to Thrucomm as follows, with the knowledge and understanding that
Thrucomm is relying materially upon such representations and warranties:
3.1 ORGANIZATION AND STANDING. Datalinc is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Florida.
Datalinc has all requisite power to carry on its business as it is now being
conducted and is duly qualified to do business as a foreign limited partnership
and is in good standing in each jurisdiction where such qualification is
necessary under applicable law, except where the failure to qualify
(individually or in the aggregate) does not have any material adverse effect on
the assets, business or financial condition of Datalinc, and all states in which
Datalinc is qualified to do business as of the date hereof, are listed in the
Disclosure Schedule. A copy of the Certificate of Limited Partnership of
Datalinc (certified by the Secretary of State of Florida), and the Agreement of
Limited Partnership, as amended to date, delivered to Fastcom and Thrucomm, are
true and complete copies of these documents as now in effect. Except as
otherwise set forth in the Disclosure Schedule, Datalinc does not own any
interest in any other corporation, business trust or similar entity. The minute
books of Datalinc contains accurate records of all meetings of its Partners
since its formation.
3.2 CAPITALIZATION. The number of Partnership Units which are issued and
outstanding are as set forth in the Disclosure Schedule.
All of such Units are duly authorized, validly issued and outstanding, fully
paid and nonassessable, and owned of record and beneficially by the Datalinc
Distributees, in such amounts as are set forth opposite their respective names
thereon, and were not issued in violation of the preemptive rights of any
person. There are no subscriptions, options, warrants, rights or calls or other
commitments or agreements to which the Datalinc Distributees, or, to the
Datalinc Distributees' knowledge, are a party or by which any of them is bound,
calling for any issuance, transfer, sale or other disposition of any class of
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securities of Datalinc. There are no outstanding securities convertible or
exchangeable, actually or contingently, into Partnership Units or any other
securities of Datalinc. Datalinc has no subsidiaries except Thrucomm.
3.3 AUTHORITY. This Agreement constitutes, and all other agreements contemplated
hereby will constitute, when executed and delivered by Datalinc in accordance
therewith (and assuming due execution and delivery by the other parties hereto),
the valid and binding obligation of Datalinc, enforceable in accordance with
their respective terms, subject to general principles of equity and bankruptcy
or other laws relating to or affecting the rights of creditors generally.
3.4 PROPERTIES. Except as set forth in the Disclosure Schedule, Datalinc has
good title to all of the assets and properties which it purports to own as
reflected on the balance sheet included in the Financial Statements (as
hereinafter defined), or thereafter acquired. Datalinc has a valid leasehold
interest in all material property of which it is the lessee and each such lease
is valid, binding and enforceable against Datalinc and, to the knowledge of
Datalinc, the other parties thereto in accordance with its terms. Neither
Datalinc nor the other parties thereto are in material default in the
performance of any material provisions thereunder. Neither the whole nor any
material portion of the assets of Datalinc is subject to any governmental decree
or order to be sold or is being condemned, expropriated or otherwise taken by
any public authority with or without payment of compensation therefor, nor, to
the knowledge of Datalinc, has any such condemnation, expropriation or taking
been proposed. None of the assets of Datalinc is subject to any restriction
which would prevent continuation of the use currently made thereof or materially
adversely affect the value thereof.
3.5 CONTRACTS LISTED; NO DEFAULT. All contracts, agreements, licenses, leases,
easements, permits, rights of way, commitments, and understandings, written or
oral, connected with or relating in any respect to present or proposed future
operations of Datalinc (except employment or other agreements terminable at will
and other agreements which, in the aggregate, are not material to the business,
properties or prospects of Datalinc and except governmental licenses, permits,
authorizations, approvals and other matters referred to in Section 3.16), which
would be required to be listed as exhibits to an Annual Report on Form 10-K if
Datalinc were subject to the reporting requirements of the Exchange Act
(individually, the "Datalinc Contract" and collectively, the "Datalinc
Contracts"), are listed and described in the Disclosure Schedule. Datalinc is
the holder of, or party to, all of the Datalinc Contracts. To the knowledge of
Datalinc, the Datalinc Contracts are valid, binding and enforceable by the
signatory thereto against the other parties thereto in accordance with their
terms. Neither Datalinc nor any signatory thereto is in default or breach of any
material provision of the Datalinc Contracts. Datalinc's operation of its
business has been, is, and will, between the date hereof and the Closing Date
(as hereinafter defined), continue to be, consistent with the material terms and
conditions of the Datalinc Contracts. Subsequent to the consummation of the
Reorganization, Datalinc shall use its best efforts to cause the transfer and
otherwise assign for the benefit of Thrucomm, the Datalinc Contracts.
3.6 LITIGATION. Except as disclosed in the Disclosure Schedule, there is no
claim, action, proceeding or investigation pending or threatened against or
affecting Datalinc before or by any court, arbitrator or governmental agency or
authority which, in the reasonable judgment of Datalinc, could have any
materially adverse effect on Datalinc. There are no decrees, injunctions or
orders of any court, governmental department, agency or arbitration outstanding
against Datalinc.
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3.7 TAXES. For purposes of this Agreement, (A) "Tax" (and, with correlative
meaning, "Taxes") shall mean any federal, state, local or foreign income,
alternative or add-on minimum business, employment franchise, occupancy,
payroll, property, sales, transfer, use, value added, withholding or other tax,
levy, impost, fee, imposition, assessment or similar charge, together with any
related addition to tax, interest, penalty or fine thereon; and (B) "Returns"
shall mean all returns (including, without limitation, information returns and
other material information), reports and forms relating to Taxes or to any
benefit plans.
Datalinc has duly filed all Returns required by any law or regulation to be
filed by it, except for extensions duly obtained. All such Returns were, when
filed, and to the knowledge of Datalinc are, accurate and complete in all
material respects and were prepared in conformity with applicable laws and
regulations in all material respects. Datalinc has paid or will pay in full or
has adequately reserved against all Taxes otherwise assessed against it through
the Closing Date (as hereinafter defined), and the assessment of any material
amount of additional Taxes in excess of those paid and reported is not
reasonably expected.
Datalinc is not a party to any pending action or proceeding by any governmental
authority for the assessment of any Tax, and no claim for assessment or
collection of any Tax has been asserted against Datalinc that has not been paid.
There are no Tax liens upon the assets (other than the lien of personal property
taxes not yet due and payable) of Datalinc. There is no valid basis, to the
knowledge of Datalinc, except as set forth in the Disclosure Schedule, for any
assessment, deficiency, notice, 30-day letter or similar intention to assess any
Tax to be issued to Datalinc by any governmental authority.
3.8 COMPLIANCE WITH LAWS AND REGULATIONS. To its knowledge, Datalinc is in
compliance, in all material respects, with all laws, rules, regulations, orders
and requirements (federal, state and local) applicable to it in all
jurisdictions where the business of Datalinc is currently conducted or to which
Datalinc is currently subject which have a material impact on Datalinc,
including, without limitation, all applicable civil rights and equal opportunity
employment laws and regulations, and all state and federal antitrust,
antimonopolies and fair trade practice laws and the Federal Occupational Health
and Safety Act. Datalinc does not know of any assertion by any party that it is
in violation of any such laws, rules, regulations, orders, restrictions or
requirements with respect to its current operations, and no notice in that
regard has been received by Datalinc. To the knowledge of Datalinc, there is not
presently pending any proceeding, hearing or investigation with respect to the
adoption of amendments or modifications to existing laws, rules, regulations,
orders, restrictions or requirements which, if adopted, would materially
adversely affect the current operations of Datalinc.
3.9 INSURANCE. Datalinc is covered by insurance policies as identified and
described in the Disclosure Schedule or Schedule 3.9, adequate, in the
reasonable opinion of Datalinc, to cover Datalinc against loss, damage and
liability and will maintain such insurance up to and including the Closing Date
(as hereinafter defined). Datalinc has not received notice from any insurer or
agent of such insurer that improvements or expenditures will have to be made in
order to continue such insurance and, so far as known to Datalinc, no such
improvements or expenditures are required (other than premium payments). There
is no liability under any insurance policy in nature of a retroactive rate
adjustment or loss sharing or similar arrangement except as set forth in the
Disclosure Schedule.
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3.10 CONDITION OF ASSETS. The equipment fixtures and other personal property of
Datalinc, taken as a whole, is in good operating condition and repair (ordinary
wear and tear excepted) for the conduct of the business of Datalinc as presently
being conducted.
3.11 NO BREACHES. To its knowledge, the making and performance of this Agreement
and the other agreements contemplated hereby by each of Datalinc will not (i)
conflict with or violate the Certificate of Limited Partnership or Agreement of
Limited Partnership of Datalinc; (ii) violate any material laws, ordinances,
rules or regulations, or any order, writ, injunction or decree to which Datalinc
is a party or by which Datalinc or any of its assets, business, or operations
may be bound or affected; or (iii) result in any breach or termination of, or
constitute a default under, or constitute an event which, with notice or lapse
of time, or both, would become a default under, or result in the creation of any
encumbrance upon any asset of Datalinc under, or create any rights of
termination, cancellation or acceleration in any person under, any Datalinc
Contract.
3.12 DISCLOSURE SCHEDULE COMPLETE. Datalinc shall promptly supplement the
Disclosure Schedule if events occur prior to the Closing Date that would have
been required to be disclosed had they existed at the time of executing this
Agreement. The Disclosure Schedule, as supplemented prior to the Closing Date,
will contain a true, correct and complete list and description of all items
required to be set forth therein. The Disclosure Schedule, as supplemented prior
to the Closing Date, is expressly incorporated herein by reference.
Notwithstanding the foregoing, any such supplement to the Disclosure Schedule
following the date hereof shall not in any way affect Thrucomm's right not to
consummate the transactions contemplated hereby as set forth in Section 7.1
hereof
3.13 EMPLOYEES. Except as set forth in the Disclosure Schedule, none of the
employees of Datalinc is represented by any labor union or collective bargaining
unit and, to the knowledge of Datalinc, no discussions are taking place with
respect to such representation.
3.14 FINANCIAL STATEMENTS. To its knowledge, the Disclosure Schedule contains
audited balance sheets as of December 3 1, 1996 and related statements of
operations, statements of cash flows and statements of partner' equity of
Datalinc for the one-year periods ended December 3 1, 1995, and December 31,
1996 and compiled balance sheets as of March 31, 1997, and related statements of
operations, statements of cash flows and statement of partners' equity for the
three-month period ended June 30, 1997 (collectively, the "Financial
Statements"). The Financial Statements present fairly, in all respects, the
financial position and results of operations of Datalinc as of the dates and
periods indicated, prepared in accordance with generally accepted accounting
principles consistently applied ("GAAP"). Without limiting the generality of the
foregoing, (i) there is no basis for any assertion against Datalinc as of the
date of the Financial Statements of any material debt, liability or obligation
of any nature not fully reflected or reserved against in the Financial
Statements; and (ii) there are no assets of Datalinc as of the date of the
Financial Statements, the value of which is overstated in the Financial
Statements. Except as disclosed in the Financial Statements, Datalinc does not
have any known contingent liabilities (including liabilities for Taxes), forward
or long-term commitments or unrealized or anticipated losses from unfavorable
commitments other than in the ordinary course of business. Datalinc is not a
party to any contract or agreement for the forward purchase or sale of any
foreign currency that is material to Datalinc taken as a whole.
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3.15 ABSENCE OF CERTAIN CHANGES OR EVENTS CHANGES OR EVENTS. Except as set forth
in the Disclosure Schedule, since December 31, 1996, there has not been:
(a) any material adverse change in the financial condition, properties,
assets, liabilities or business or a decrease in net worth of Datalinc;
(b) any material damage, destruction or loss of any material properties of
Datalinc, whether or not covered by insurance;
(c) any material change in the manner in which the business of Datalinc has
been conducted, including, without limitation, collection of accounts
receivable and payment of accounts receivable;
(d) any change in the accounting principles, methods or practices or any
change in the depreciation or amortization policies or rates utilized by
Datalinc,
(e) any voluntary or involuntary sale, assignment, abandonment, surrender,
termination, transfer, license or other disposition, of any kind or nature,
of any property or fight (including without limitation any equipment,
office equipment, accounts receivable, intangible assets, business records
or Datalinc Contracts, excepting only transfers in accordance with past
practices or collection of accounts receivable in the ordinary course of
business;
(f) any material change in the treatment and protection of trade secrets or
other confidential information of Datalinc;
(g) any material change in the business or contractual relationship of
Datalinc with any customer or supplier which might reasonably be expected
to materially and adversely affect the business or prospects of Datalinc;
(h) any strike, material grievance proceeding or other labor dispute, any
union organizational activity or other occurrence, event or condition of
any similar character which might reasonably be expected to adversely
affect the business of Datalinc;
(i) any loan or advance by Datalinc to any party other than credit extended
to clients in the ordinary course of business as previously conducted;
(j) any incurrence by Datalinc of debts, liabilities or obligations of any
nature whether accrued, absolute, contingent, direct, indirect or inchoate,
or otherwise, and whether due or to become due, except:
(i) current liabilities incurred for services rendered in the ordinary
course of Datalinc's business and entered into at arms' length;
(ii) obligations incurred in the ordinary course of Datalinc's
business entered into at arms' length;
(iii) liabilities on account of taxes and governmental charges, but
not penalties, interest or fines in respect thereof,
(iv) obligations or liabilities incurred by virtue of the execution of
this Agreement; or
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(v) liabilities pursuant to the litigation listed in the Disclosure
Schedule; or
(k) any agreement by Datalinc, whether written or oral, to do any of the
foregoing; and
(l) any occurrence not included in paragraphs (a) through (k) of this
Section 3.15 which has resulted, or which Datalinc have reason to believe,
in their reasonable judgment, might be expected to result, in a material
adverse change in the business or prospects of Datalinc.
3.16 GOVERNMENTAL LICENSES, PERMITS, ETC. To its knowledge, Datalinc has all
governmental licenses, permits, authorizations and approvals necessary for the
conduct of its business as currently conducted ("Licenses and Permits"). The
Disclosure Schedule includes a list of all Licenses and Permits. All Licenses
and Permits are in full force and effect, and no proceedings for the suspension
or cancellation of any thereof is pending or threatened.
3.17 EMPLOYEE AGREEMENTS.
(a) For purposes of this Agreement, the following definitions apply:
(1) "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and any regulations promulgated thereunder.
(2) "Multi-employer Plan" means a plan, as defined in ERISA Section
3(37), to which either Datalinc contributes or is required to
contribute.
(3) "Employee Plan" means any pension, retirement, profit sharing,
deferred compensation, vacation, bonus, incentive, medical, vision,
dental, disability, life insurance or any other employee benefit plan
as defined in Section 3(3) of ERISA other than a Multi-employer Plan
to which either Datalinc contributes, sponsors, maintains or otherwise
is bound to with regard to any benefits on behalf of the employees of
Datalinc.
(4) "Employee Pension Plan" means any Employee Plan for the provision
of retirement income to employees or which results in the deferral of
income by employees extending to the termination of covered employment
or beyond as defined in Section 3(2) of ERISA.
(5) "Employee Welfare Plan" means any Employee Plan other than an
Employee Pension Plan.
(6) "Compensation Arrangement" means any plan or compensation
arrangement other than an Employee Plan, whether written or unwritten,
which provides to employees of Datalinc, former employees, officers,
directors or stockholders of Datalinc any compensation or other
benefits, whether deferred or not, in excess of base salary or wages,
including, but not limited to, any bonus or incentive plan, stock
rights plan, deferred compensation arrangement, life insurance, stock
purchase plan, severance pay plan and any other employee fringe
benefit plan.
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(b) The Disclosure Schedule hereto lists, all
(1) employment agreements and collective bargaining agreements to
which Datalinc is a party;
(2) Compensation Arrangements of Datalinc;
(3) Employee Welfare Plans;
(4) Employee Pension Plans; and
(5) consulting agreements under which Datalinc has or may have any
monetary obligations to employees or consultants, of Datalinc or its
beneficiaries or legal representatives or under which any such persons
may have any rights. Datalinc has previously made available to
Thrucomm true and complete copies of all of the foregoing employment
contracts, collective bargaining agreements, Employee Plans and
Compensation Arrangements, including descriptions of any unwritten
contracts, agreements, Compensation Arrangements or Employee Plans, as
amended to date.
In addition, with respect to any Employee Plan which continues after the
Closing Date, Datalinc has previously delivered or made available to
Thrucomm
(1) any related trust agreements, master trust agreements, annuity
contracts or insurance contracts;
(2) certified copies of all Partners' consents adopting such plans and
trust documents and amendments thereto;
(3) current investment management agreements;
(4) custodial agreements;
(5) fiduciary liability insurance policies;
(6) indemnification agreements;
(7) the most recent determination letter (and underlying application
thereof and correspondence and supplemental material related thereto)
issued by the Internal Revenue Service with respect to the
qualification of each Employee Plan under the provisions of Section
401 (a) of the Code;
(8) copies of all "advisory opinion letters," "private letter
rulings," "no action letters," and any similar correspondence (and the
underlying applications therefor and correspondence and supplemental
material related thereto) that was issued by any governmental or
quasi-governmental agency with respect to the last plan year,
(9) Annual Reports (Form 5500 Series) and Schedules A and B thereto
for the last plan year;
(10) all actuarial reports prepared for the last plan year;
(11) all certified Financial Statements for the last plan year; and
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(12) all current Summary Plan Descriptions, Summaries of Material
Modifications and Summary Annual Reports. All documents delivered by
Datalinc to Thrucomm as photocopies faithfully reproduce the originals
thereof, such originals are authentic and were, to the extent
execution was required, duly executed.
(c) Except as otherwise disclosed in the Disclosure Schedule:
(1) Each Employee Plan and Compensation Arrangement, to the knowledge
of Datalinc, currently substantially complies and has substantially
complied in the past, both as to form and operation, with their terms
and with the provisions of ERISA, the Code, the Age Discrimination in
Employment Act and all other applicable federal or state laws, rules
and regulations. Each Employee Plan and Compensation Arrangement has
been administered to date in substantial compliance with the
requirements of ERISA and the Code, and all reporting and disclosure
requirements by any governmental agency have been timely filed and
substantially complied with.
(2) With respect to any Multi-employer Plan (within the meaning of
Section 3(37) of the ERISA) Datalinc (under the terms of Section
414(b) or (c) of the Code) are not required to make any contribution
thereto.
(3) To the knowledge of Datalinc, the Employee Pension Plans, to the
extent they are intended to be tax-qualified, satisfy all coverage and
minimum participation requirements, if any, imposed on such Employee
Plans by the applicable terms of the Code and ERISA.
(4) Datalinc is not aware of any failures to provide continuation
coverage, as defined in Section 498OB(l) of the Code, to any such
qualified beneficiaries.
(5) There are no actions, suits or claims pending (other than routine
claims for benefits) or, to the knowledge of Datalinc, which could
reasonably be expected to be asserted against any Employee Plan or
Compensation Arrangement or the assets of any such Plan. None of the
Employee Plans or Compensation Arrangements, to the knowledge of
Datalinc, currently is the subject of any audit, investigation or
examination by any governmental or quasi-governmental agency, nor is
Datalinc aware of the existence of any facts that would lead it to
believe that any such audit, investigation or examination is pending
or threatened.
(6) Except as described in the Disclosure Schedule, Datalinc does not
sponsor, maintain or contribute to any Employee Plan or Compensation
Arrangement that provides retiree medical or retiree life insurance
coverage to former employees of Datalinc.
(7) With respect to each Employee Plan, except as set forth in the
Disclosure Schedule:
(i) each Employee Pension Plan and each amendment thereto is
qualified under the Code and has received favorable determination
letters with regard thereto or is based on a prototype plan which
has received a favorable determination letter;
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(ii) the Financial Statements reflect all of the employee benefit
liabilities of Datalinc in a manner satisfying the requirements
of SFAS 87 and 88;
(iii) to the knowledge of Datalinc, Datalinc has not, with
respect to any Employee Plan, engaged in a prohibited
transaction, as such term is defined in Code Section 4975 or
ERISA Section 406, which would subject Datalinc or Thrucomm to
any taxes, penalties or other liabilities resulting from
prohibited transactions under Code Section 4975 or under ERISA
Section 409 or 502(i);
(iv) to the knowledge of Datalinc, no event has occurred and no
condition exists that would subject Datalinc or Thrucomm to any
tax under Code Section 4971, 4972, 4976, 4977 or 4979 or a fine
under ERISA Section 502(c);
(v) to the knowledge of Datalinc, Datalinc have complied in all
material respects with the reporting and disclosure requirements
of ERISA;
(vi) all insurance premiums, including PBGC premiums, required
pursuant to the Employee Plans as of the Closing Date have been
or will be paid;
(vii) Datalinc has or will have, as of the Closing Date, made all
contributions or payments (including funding for any past service
liabilities) to or under such Employee Plans required by law or
by the terms of such Plans or any contracts or agreements. To the
knowledge of Datalinc, the aggregate current value of all vested
accrued benefits under all Employee Plans does not exceed the
aggregate current value of all assets of such plans allocable to
such accrued benefits; and
(viii) to the knowledge of Datalinc, Datalinc have performed
substantially all obligations required to be performed by it
under each plan or arrangement under each Employee Plan and
Compensation Arrangement and it is not in default or in violation
of, and has no knowledge of any such default or violation by any
other party to any substantial provision of, any and all such
plans or arrangements.
(8) Notwithstanding anything contained herein to the contrary, all
obligations of Datalinc with respect to any Employee Plans of Datalinc
shall be terminated as of the date of the Closing. Further, Datalinc shall
indemnify and hold harmless Thrucomm of and from any losses or liabilities
accruing to Thrucomm arising out of or in any way related to Datalinc's
Employee Plans.
3.18 KEY MAN LIFE INSURANCE. The parties acknowledge that the insured persons
reflected on those certain key man life insurance policies reflected on Schedule
3.18 of this Agreement shall have the fight to have such policies assigned to
them at their own discretion, cost and expense.
3.19 BROKERS. Datalinc shall indemnify and hold Thrucomm harmless from any claim
by any broker or other person for commissions or other compensation for bringing
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about the transactions contemplated hereby, where such claim is based on the
purported employment or authorization of such broker or other person by
Datalinc.
3.20 BUSINESS LOCATIONS. Datalinc does not own or lease any real or personal
property in any state except as set forth in the Disclosure Schedule. Datalinc
have no places of business (including, without limitation Datalinc's executive
offices or places where Datalinc's books and records are kept) except as
otherwise set forth in the Disclosure Schedule.
3.21 INTELLECTUAL PROPERTY. The Disclosure Schedule lists all of the
Intellectual Property (as hereinafter defined) used by Datalinc which
constitutes a material patent, trade name, trademark, service ▇▇▇▇ or
application for any of the foregoing. "Intellectual" Property" means all of
Datalinc's right, title and interest in and to all patents, trade names, assumed
names, trademarks, service marks, and proprietary names, copyrights (including
any registration and pending applications for any such registration for any of
them), together with all the goodwill relating thereto and all other
intellectual property of Datalinc. Other than as disclosed in the Disclosure
Schedule, Datalinc does not have any licenses granted by or to it or other
agreements to which it is a party, relating in whole or in part to any
Intellectual Property, whether owned by Datalinc or otherwise. All of the
patents, trademark registrations and copyrights listed in the Disclosure
Schedule that are owned by Datalinc are valid and in full force and effect. To
the knowledge of Datalinc, it is not infringing upon, or otherwise violating,
the rights of any third party with respect to any Intellectual Property. No
proceedings have been instituted against or claims received by Datalinc, nor to
its knowledge are any proceedings threatened alleging any such vacation, nor
does Datalinc know of any valid basis for any such proceeding or claim. To the
knowledge of Datalinc, there is no infringement or other adverse claim against
any of the Intellectual Property owned or used by Datalinc. To the knowledge of
Datalinc, the use of software by Datalinc does not violate or otherwise infringe
upon the fights of any third party.
3.22 WARRANTIES. The Disclosure Schedule sets forth a true and complete list of
the forms of all express warranties and guaranties made by Datalinc to third
parties with respect to any services rendered by Datalinc.
3.23 CLIENTS AND SUPPLIERS. Except as set forth in the Disclosure Schedule
Datalinc does not know and has no reason to believe that, either as a result of
the transactions contemplated hereby or for any other reason (exclusive of
expiration of a contract upon the passage of time), any present material client
or supplier of Datalinc will not continue to conduct business with Datalinc
after the Closing Date in substantially the same manner as it has conducted
business prior thereto.
3.24 ACCOUNTS RECEIVABLE. The accounts receivable reflected on the balance
sheets included in the Financial Statements, or thereafter acquired by Datalinc,
consist, in the aggregate in all material respects and 90% of such items which
are collectible in the ordinary and usual course of business.
3.25 GOVERNMENTAL APPROVALS. To its knowledge, other than as set forth herein,
no authorization, license, permit, franchise, approval, order or consent of, and
no registration, declaration or filing by Datalinc with, any governmental
authority, federal, state or local, is required in connection with Datalinc's
execution, delivery and performance of this Agreement.
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3.26 NO OMISSIONS OR UNTRUE STATEMENTS. To its knowledge, no representation or
warranty made by Datalinc to Thrucomm in this Agreement or in any certificate of
the Datalinc General Partner required to be delivered to Thrucomm pursuant to
the terms of this Agreement contains or will contain any untrue statement of a
material fact, or omits or will out to state a material fact necessary to make
the statements contained herein or therein not misleading as of the date hereof
and as of the Closing Date.
IV. REPRESENTATIONS AND WARRANTIES OF FASTCOM
Fastcom represents and warrants to Thrucomm as follows, with the knowledge and
understanding that Thrucomm is relying materially upon such representations and
warranties
4.1 ORGANIZATION AND STANDING. Fastcom is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Florida.
Fastcom has all requisite power to carry on its business as it is now being
conducted and is duly qualified to do business as a foreign limited partnership
and is in good standing in each jurisdiction where such qualification is
necessary under applicable law, except where the failure to qualify
(individually or in the aggregate) does not have any material adverse effect on
the assets, business or financial condition of Fastcom, and all states in which
Fastcom is qualified to do business as of the date hereof, are listed in the
Disclosure Schedule. A copy of the Certificate of Limited Partnership of Fastcom
(certified by the Secretary of State of Florida), and the Agreement of Limited
Partnership, as amended to date, delivered to Datalinc and Thrucomm, are true
and complete copies of these documents as now in effect. Except as otherwise set
forth in the Disclosure Schedule, Fastcom does not own any interest in any other
corporation, business trust or similar entity. The minute books of Fastcom
contains accurate records of all meetings of its Partners since its formation.
4.2 CAPITALIZATION. The number of Partnership Units which are issued and
outstanding are as set forth in the Disclosure Schedule. All of such Units are
duly authorized, validly issued and outstanding, fully paid and nonassessable,
and owned of record and beneficially by the Fastcom Distributees, in such
amounts as are set forth opposite their respective names thereon, and were not
issued in violation of the preemptive rights of any person. There are no
subscriptions, options, warrants, rights or calls or other commitments or
agreements to which the Fastcom Distributees, or, to the Fastcom Distributees'
knowledge, are a party or by which any of them is bound, calling for any
issuance, transfer, sale or other disposition of any class of securities of
Fastcom. There are no outstanding securities convertible or exchangeable,
actually or contingently, into Partnership Units or any other securities of
Fastcom. Fastcom has no subsidiaries except Thrucomm.
4.3 AUTHORITY. This Agreement constitutes, and all other agreements contemplated
hereby will constitute, when executed and delivered by Fastcom in accordance
therewith (and assuming due execution and delivery by the other parties hereto),
the valid and binding obligation of Fastcom, enforceable in accordance with
their respective terms, subject to general principles of equity and bankruptcy
or other laws relating to or affecting the rights of creditors generally.
4.4 PROPERTIES. Except as set forth in the Disclosure Schedule, Fastcom has good
title to all of the assets and properties which it purports to own as reflected
on the balance sheet included in the Financial Statements (as hereinafter
defined), or thereafter acquired. Fastcom has a valid leasehold interest in all
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material property of which it is the lessee and each such lease is valid,
binding and enforceable against Fastcom and, to the knowledge of Fastcom, the
other parties thereto in accordance with its terms. Neither Fastcom nor the
other parties thereto are in material default in the performance of any material
provisions thereunder. Neither the whole nor any material portion of the assets
of Fastcom is subject to any governmental decree or order to be sold or is being
condemned, expropriated or otherwise taken by any public authority with or
without payment of compensation therefor, nor, to the knowledge of Fastcom, has
any such condemnation, ex-propriation or taking been proposed. None of the
assets of Fastcom is subject to any restriction which would prevent continuation
of the use currently made thereof or materially adversely affect the value
thereof
4.5 CONTRACTS LISTED; NO DEFAULT. All contracts, agreements, licenses, leases,
easements, permits, rights of way, commitments, and understandings, written or
oral, connected with or relating in any respect to present or proposed future
operations of Fastcom (except employment or other agreements terminable at will
and other agreements which, in the aggregate, are not material to the business,
properties or prospects of Fastcom and except governmental licenses, permits,
authorizations, approvals and other matters referred to in Section 4.16), which
would be required to be listed as exhibits to an Annual Report on Form 10-K if
Fastcom were subject to the reporting requirements of the Exchange Act
(individually, the "Fastcom Contract" and collectively, the "Fastcom
Contracts"), are listed and described in the Disclosure Schedule. Fastcom is the
holder of, or party to, all of the Fastcom Contracts. To the knowledge of
Fastcom, the Fastcom Contracts are valid, binding and enforceable by the
signatory thereto against the other parties thereto in accordance with their
terms. Neither Fastcom nor any signatory thereto is in default or breach of any
material provision of the Fastcom Contracts. Fastcom's operation of its business
has been, is, and will, between the date hereof and the Closing Date (as
hereinafter defined), continue to be, consistent with the material terms and
conditions of the Fastcom Contracts. Subsequent to the consummation of the
Reorganization, Fastcom shall use its best efforts to cause the transfer and
otherwise assign for the benefit of Thrucomm, the Fastcom Contracts.
4.6 LITIGATION. Except as disclosed in the Disclosure Schedule, there is no
claim, action, proceeding or investigation pending or threatened against or
affecting Fastcom before or by any court, arbitrator or governmental agency or
authority which, in the reasonable judgment of Fastcom, could have any
materially adverse effect on Fastcom. There are no decrees, injunctions or
orders of any court, governmental department, agency or arbitration outstanding
against Fastcom.
4.7 TAXES. For purposes of this Agreement, (A) "Tax" (and, with correlative
meaning, "Taxes") shall mean any federal, state, local or foreign income,
alternative or add-on minimum, business, employment, franchise, occupancy,
payroll, property, sales, transfer, use, value added, withholding or other tax,
levy, impost, fee, imposition, assessment or similar charge, together with any
related addition to tax, interest, penalty or fine thereon'. and (B) "Returns"
shall mean all returns (including, without limitation, information returns and
other material information), reports and forms relating to Taxes or to any
benefit plans.
Fastcom has duly filed all Returns required by any law or regulation to be filed
by it, except for extensions duly obtained. All such Returns were, when filed,
and to the knowledge of Fastcom are, accurate and complete in all material
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respects and were prepared in conformity with applicable laws and regulations in
all material respects. Fastcom has paid or will pay in full or has adequately
reserved against all Taxes otherwise assessed against it through the Closing
Date (as hereinafter defined), and the assessment of any material amount of
additional Taxes in excess of those paid and reported is not reasonably
expected.
Fastcom is not a party to any pending action or proceeding by any governmental
authority for the assessment of any Tax, and no claim for assessment or
collection of any Tax has been asserted against Fastcom that has not been paid.
There are no Tax liens upon the assets (other than the lien of property taxes
not yet due and payable) of Fastcom. There is no valid basis, to the knowledge
of Fastcom except as set forth in the Disclosure Schedule, for any assessment,
deficiency, notice, 30-day letter or similar intention to assess any Tax to be
issued to Fastcom by any governmental authority.
4.8 COMPLIANCE WITH LAWS AND REGULATIONS. To its knowledge, Fastcom is in
compliance, in all material respects, with all laws, rules, regulations, orders
and requirements (federal, state and local) applicable to it in all
jurisdictions where the business of Fastcom is currently conducted or to which
Fastcom is currently subject which have a material impact on Fastcom, including,
without limitation, all applicable civil rights and equal opportunity employment
laws and regulations, and all state and federal antitrust, antimonopolies and
fair trade practice laws and the Federal Occupational Health and Safety Act.
Fastcom does not know of any assertion by any party that it is in violation of
any such laws, rules, regulations, orders, restrictions or requirements with
respect to its current operations, and no notice in that regard has been
received by Fastcom. To the knowledge of Fastcom there is not presently pending
any proceeding, hearing or investigation with respect to the adoption of
amendments or modifications to existing laws, rules, regulations, orders,
restrictions or requirements which, if adopted, would materially adversely
affect the current operations of Fastcom.
4.9 INSURANCE. Fastcom is covered by insurance policies as identified and
described in the Disclosure Schedule or Schedule 4.9, adequate, in the
reasonable opinion of the Fastcom, to cover Fastcom against loss, damage and
liability and will maintain such insurance up to and including the Closing Date
(as hereinafter defined). Fastcom has not received notice from any insurer or
agent of such insurer that improvements or expenditures will have to be made in
order to continue such insurance and, so far as known to Fastcom, no such
improvements or expenditures are required (other than premium payments). There
is no liability under any insurance policy in nature of a retroactive rate
adjustment or loss sharing or similar arrangement except as set forth in the
Disclosure Schedule.
4.10 CONDITION OF ASSETS. The equipment, fixtures and other personal property of
Fastcom, taken as a whole, is in good operating condition and Repair (ordinary
wear and tear excepted) for the conduct of the business of Fastcom as presently
being conducted.
4.11 NO BREACHES. To its knowledge, the making and performance of this Agreement
and the other agreements contemplated hereby by Fastcom will not
(i) conflict with or violate the Certificate of Limited Partnership or
Agreement of Limited Partnership of Fastcom;
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(ii) violate any material laws, ordinances, rules or regulations, or any
order, writ, injunction or decree to which Fastcom is a party or by which
Fastcom or any of its assets, business, or operations may be bound or
affected; or
(iii) result in any breach or termination of, or constitute a default
under, or constitute an event which, with notice or lapse of time, or both,
would become a default under, or result in the creation of any encumbrance
upon any asset of Fastcom under, or create any rights of termination,
cancellation or acceleration in any person under, any Fastcom Contract.
4.12 DISCLOSURE SCHEDULE COMPLETE. Fastcom shall promptly supplement the
Disclosure Schedule if events occur prior to the Closing Date that would have
been required to be disclosed had they existed at the time of executing this
Agreement. The Disclosure Schedule, as supplemented prior to the Closing Date,
will contain a true, correct and complete list and description of all items
required to be set forth therein. The Disclosure Schedule, as supplemented prior
to the Closing Date, is expressly incorporated herein by reference.
Notwithstanding the foregoing, any such supplement to the Disclosure Schedule
following the date hereof shall not in any way affect Thrucomm's right not to
consummate the transactions contemplated hereby as set forth in Article VII
hereof
4.13 EMPLOYEES. Except as set forth in the Disclosure Schedule, none of the
employees of Fastcom is represented by any labor union or collective bargaining
unit and, to the knowledge of Fastcom, no discussions are taking place with
respect to such representation.
4.14 FINANCIAL STATEMENTS. To its knowledge, the Disclosure Schedule contains
audited balance sheets as of December 31, 1996 and related statements of
operations, statements of cash flows and statements of partner' equity of
Fastcom for the one-year periods ended December 31, 1996, and December 31, 1995
and compiled balance sheets as of March 31, 1997, and related statements of
operations, statements of cash flows and statement of partners' equity for the
three-month period ended June 30, 1997 (collectively, the "Financial
Statements"). The Financial Statements present fairly, in all respects, the
financial position and results of operations of Fastcom as of the dates and
periods indicated, prepared in accordance with generally accepted accounting
principles consistently applied ("GAAP" 1). Without limiting the generality of
the foregoing, (i) there is no basis for any assertion against Fastcom as of the
date of the Financial Statements of any material debt, liability or obligation
of any nature not fully reflected or reserved against in the Financial
Statements; and (ii) there are no assets of Fastcom as of the date of the
Financial Statements, the value of which is overstated in the Financial
Statements. Except as disclosed in the Financial Statements, Fastcom does not
have any known contingent liabilities (including liabilities for Taxes), forward
or long-term commitments or unrealized or anticipated losses from unfavorable
commitments other than in the ordinary course of business. Fastcom is not a
party to any contract or agreement for the forward purchase or sale of any
foreign currency that is material to Fastcom taken as a whole.
4.15 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in the disclosure
Schedule, since December 31,1996, there has not been:
(a) any material adverse change in the financial condition, properties,
assets, liabilities or business or a decrease in net worth of Fastcom;
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(b) any material damage, destruction or loss of any material properties of
Fastcom, whether or not covered by insurance;
(c) any material change in the manner in which the business of Fastcom has
been conducted, including, without limitation, collection of accounts
receivable and payment of accounts receivable;
(d) any change in the accounting principles, methods or practices or any
change in the depreciation or amortization policies or rates utilized by
Fastcom;
(e) any voluntary or involuntary sale, assignment, abandonment, surrender,
termination, transfer, license or other disposition, of any kind or nature,
of any property or right (including, without limitation, any equipment
office equipment, accounts receivable, intangible assets, business records
or Fastcom Contracts, excepting only transfers in accordance with past
practices or collection of accounts receivable in the ordinary course of
business;
(f) any material change in the treatment and protection of trade secrets or
other confidential information of Fastcom;
(g) any material change in the business or contractual relationship of
Fastcom with any customer or supplier which might reasonably be expected to
materially and adversely affect the business or prospects of Fastcom;
(h) any strike, material grievance proceeding or other labor dispute, any
union organizational activity or other occurrence, event or condition of
any similar character which might reasonably be expected to adversely
affect the business of Fastcom;
(i) any loan or advance by Fastcom to any party other than credit extended
to clients in the ordinary course of business as previously conducted;
(j) any incurrence by Fastcom of debts, liabilities or obligations of any
nature whether accrued, absolute, contingent, direct, indirect or inchoate,
or otherwise, and whether due or to become due, except:
(i) current liabilities incurred for services rendered in the ordinary
course of Fastcom's business and entered into at arms' length;
(ii) obligations incurred in the ordinary course of Fastcom's business
entered into at arms' length;
(iii) liabilities on account of taxes and governmental charges, but
not penalties, interest or fines in respect thereof,
(iv) obligations or liabilities incurred by virtue of the execution of
this Agreement; or
(v) liabilities pursuant to the litigation listed in the Disclosure
Schedule; or
(k) any agreement by Fastcom, whether written or oral, to do any of the
foregoing; and
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(l) any occurrence not included in paragraphs (a) through (k) of this
Section 4.15 which has resulted, or which Fastcom have reason to believe,
in their reasonable judgment, might be expected to result, in a material
adverse change in the business or prospects of Fastcom.
4.16 GOVERNMENTAL LICENSES, PERMITS, ETC. To its knowledge, Fastcom has all
governmental licenses, permits, authorizations and approvals necessary for the
conduct of its business as currently conducted ("Licenses and Permits"). The
Disclosure Schedule includes a list of all Licenses and Permits. All Licenses
and Permits are in full force and effect, and no proceedings for the suspension
or cancellation of any thereof is pending or threatened.
4.17 EMPLOYEE AGREEMENTS.
(a) For purposes of this Agreement, the following definitions apply:
(1) "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and any regulations promulgated thereunder.
(2) "Multi-employer Plan" means a plan, as defined in ERISA Section
3(37), to which either Fastcom contributes or is required to
contribute.
(3) "Employee Plan" means any pension, retirement, profit sharing,
deferred compensation, vacation, bonus, incentive, medical, vision,
dental, disability, life insurance or any other employee benefit plan
as defined in Section 3(3) of ERISA other than a Multi-employer Plan
to which either Fastcom contributes, sponsors, maintains or otherwise
is bound to with regard to any benefits on behalf of the employees of
Fastcom.
(4) "Employee Pension Plan" means any Employee Plan for the provision
of retirement income to employees or which results in the deferral of
income by employees extending to the termination of covered employment
or beyond as defined in Section 3(2) of ERISA.
(5) "Employee Welfare Plan" means any Employee Plan other than an
Employee Pension Plan.
(6) "Compensation Arrangement" means any plan or compensation
arrangement other than an Employee Plan, whether written or unwritten,
which provides to employees of Fastcom, former employees, officers,
directors or stockholders of Fastcom any compensation or other
benefits, whether deferred or not in excess of base salary or wages,
including, but not limited to, any bonus or incentive plan stock
rights plan, deferred compensation arrangement, life insurance, stock
purchase plan, severance pay plan and any other employee fringe
benefit plan.
(b) The Disclosure Schedule hereto lists, all
(1) employment agreements and collective bargaining agreements to
which Fastcom is a party;
(2) Compensation Arrangements of Fastcom;
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(3) Employee Welfare Plans;
(4) Employee Pension Plans; and
(5) consulting agreements under which Fastcom has or may have any
monetary obligations to employees or consultants of Fastcom or its
beneficiaries or legal representatives or under which any such persons
may have any rights. Fastcom has previously made available to Thrucomm
true and complete copies of all of the foregoing employment contracts,
collective bargaining agreements, Employee Plans and Compensation
Arrangements, including descriptions of any unwritten contracts,
agreements, Compensation Arrangements or Employee Plans, as amended to
date. In addition, with respect to any Employee Plan which continues
after the Closing Date, Fastcom has previously delivered or made
available to Thrucomm
(1) any related trust agreements, master trust agreements,
annuity contracts or insurance contracts;
(2) certified copies of all Partners' consents adopting such
plans and trust documents and amendments thereto;
(3) current investment management agreements;
(4) custodial agreements;
(5) fiduciary liability insurance policies;
(6) indemnification agreements;
(7) the most recent determination letter (and underlying
application thereof and correspondence and supplemental material
related thereto) issued by the Internal Revenue Service with
respect to the qualification of each Employee Plan under the
provisions of Section 401 (a) of the Code;
(8) copies of all "advisory opinion letters," "private letter
rulings," "no action letters," and any similar correspondence
(and the underlying applications therefor and correspondence and
supplemental material related thereto) that was issued by any
governmental or quasi-governmental agency with respect to the
last plan year;
(9) Annual Reports (Form 5500 Series) and Schedules A and B
thereto for the last plan year;
(10) all actuarial reports prepared for the last plan year;
(11) all certified Financial Statements for the last plan year;
and
(12) all current Summary Plan Descriptions, Summaries of Material
Modifications and Summary Annual Reports. All documents delivered
by Fastcom to Thrucomm as photocopies faithfully reproduce the
originals thereof such originals are authentic and were, to the
extent execution was required, duly executed.
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(c) Except as otherwise disclosed in the Disclosure Schedule:
(1) Each Employee Plan and Compensation Arrangement, to the knowledge
of Fastcom, currently substantially complies and has substantially
complied in the past, both as to form and operation, with their terms
and with the provisions of ERISA, the Code, the Age Discrimination in
Employment Act and all other applicable federal or state laws, rules
and regulations. Each Employee Plan and Compensation Arrangement has
been administered to date in substantial compliance with the
requirements of ERISA and the Code, and all reporting and disclosure
requirements by any governmental agency have been timely filed and
substantially complied with.
(2) With respect to any Multi-employer Plan (within the meaning of
Section 3(37) of the ERISA) Fastcom (under the terms of Section 414(b)
or (c) of the Code) are not required to make any contribution thereto.
(3) To the knowledge of Fastcom, the Employee Pension Plans, to the
extent they are intended to be tax-qualified, satisfy all coverage and
minimum participation requirements, if any, imposed on such Employee
Plans by the applicable terms of the Code and ERISA.
(4) Fastcom is not aware of any failures to provide continuation
coverage, as defined in Section 498OB(l) of the Code, to any such
qualified beneficiaries.
(5) There are no actions, suits or claims pending (other than routine
claims for benefits) or, to the knowledge of Fastcom, which could
reasonably be expected to be asserted against any Employee Plan or
Compensation Arrangement or the assets of any such Plan. None of the
Employee Plans or Compensation Arrangements, to the knowledge of
Fastcom, currently is the subject of any audit, investigation or
examination by any governmental or quasi-governmental agency, nor is
Fastcom aware of the existence of any facts that would lead them to
believe that any such audit, investigation or examination is pending
or threatened.
(6) Except as described in the Disclosure Schedule, Fastcom does not
sponsor, maintain or contribute to any Employee Plan or Compensation
Arrangement that provides retiree medical or retiree life insurance
coverage to former employees of Fastcom.
(7) With respect to each Employee Plan, except as set forth in the
Disclosure Schedule:
(i) each Employee Pension Plan and each amendment thereto is
qualified under the Code and has received favorable determination
letters with regard thereto or is based on a prototype plan which
has received a favorable determination letter;
(ii) the Financial Statements reflect all of the employee benefit
liabilities of Fastcom in a manner satisfying the requirements of
SFAS 87 and 88;
(iii) to the knowledge of Fastcom, Fastcom has not, with respect
to any Employee Plan, engaged in a prohibited transaction, as
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such term is defined in Code Section 4975 or ERISA Section 406,
which would subject Fastcom or Thrucomm to any taxes, penalties
or other liabilities resulting from prohibited transactions under
Code Section 4975 or under ERISA Section 409 or 502(i);
(iv) to the knowledge of Fastcom, no event has occurred and no
condition exists that would subject Fastcom or Thrucomm to any
tax under Code Section 4971, 4972, 4976, 4977 or 4979 or a fine
under ERISA Section 502(c)-,
(v) to the knowledge of Fastcom, Fastcom have complied in all
material respects with the reporting and disclosure requirements
of ERISA;
(vi) all insurance premiums, including PBGC premiums, required
pursuant to the Employee Plans as of the Closing Date have been
or will be paid;
(vii) Fastcom has or will have, as of the Closing Date, made all
contributions or payments (including funding for any past service
liabilities) to or under such Employee Plans required by law or
by the terms of such Plans or any contracts or agreements. To the
knowledge of Fastcom, the aggregate current value of all vested
accrued benefits under all Employee Plans does not exceed the
aggregate current value of all assets of such plans allocable to
such accrued benefits; and
(viii) to the knowledge of Fastcom, Fastcom have performed
substantially all obligations required to be performed by it
under each plan or arrangement under each Employee Plan and
Compensation Arrangement and it is not in default or in violation
of, and has no knowledge of any such default or violation by any
other party to any substantial provision of, any and all such
plans or arrangements.
(8) Notwithstanding anything contained herein to the contrary, all
obligations of Fastcom with respect to any Employee Plans of Fastcom
shall be terminated as of the date of the Closing. Further, Fastcom
shall indemnify and hold harmless Thrucomm of and from any losses or
liabilities accruing to Thrucomm arising out of or in any way related
to Fastcom's Employee Plans.
4.18 KEY MAN LIFE INSURANCE. The parties acknowledge that the insured persons
reflected on those certain key man life insurance policies reflected on Schedule
4.18 of this Agreement shall have the fight to have such policies assigned to
them, at their own discretion, cost and expense
4.19 BROKERS. Fastcom shall indemnify and hold Thrucomm harmless from any claim
by any broker or other person for commissions or other compensation for bringing
about the transactions contemplated hereby, where such claim is based on the
purported employment or authorization of such broker or other person by Fastcom.
4.20 BUSINESS LOCATIONS. Fastcom does not own or lease any real or personal
property in any state except as set forth in the Disclosure Schedule. Fastcom
have no places of business (including, without limitation Fastcom's executive
offices or places where Fastcom's books and records are kept) except as
otherwise set forth in the Disclosure Schedule.
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4.21 INTELLECTUAL PROPERTY. The Disclosure Schedule fists all of the
Intellectual Property (as hereinafter defined) used by Fastcom which constitutes
a material patent, trade name, trademark, service ▇▇▇▇ or application for any of
the foregoing. "Intellectual Property" means all of Fastcom's right, title and
interest in and to all patents, trade names, assumed names, trademarks, service
marks, and proprietary names, copyrights (including any registration and pending
applications for any such registration for any of them), together with all the
goodwill relating thereto and all other intellectual property of Fastcom. Other
than as disclosed in the Disclosure Schedule, Fastcom does not have any licenses
granted by or to it or other agreements to which it is a party, relating in
whole or in part to any Intellectual Property, whether owned by Fastcom or
otherwise. All of the patents, trademark registrations and copyrights listed in
the Disclosure Schedule that are owned by Fastcom are valid and in full force
and effect. To the knowledge of Fastcom, it is not infringing upon, or otherwise
violating, the rights of any third party with respect to any Intellectual
Property. No proceedings have been instituted against or claims received by
Fastcom, nor to its knowledge are any proceedings threatened alleging any such
violation, nor does Fastcom know of any valid basis for any such proceeding or
claim. To the knowledge of Fastcom, there is no infringement or other adverse
claim against any of the Intellectual Property owned or used by Fastcom. To the
knowledge of Fastcom, the use of software by Fastcom does not violate or
otherwise infringe upon the rights of any third party.
4.22 WARRANTIES. The Disclosure Schedule sets forth a true and complete estimate
of the forms of all express warranties and guaranties made by Fastcom to third
parties with respect to any services rendered by Fastcom.
4.23 CLIENTS AND SUPPLIERS. Except as set forth in the Disclosure Schedule,
Fastcom does not know and has no reason to believe that, either as a result of
the transactions contemplated hereby or for any other reason (exclusive of
expiration of a contract upon the passage of time), any present material client
or supplier of Fastcom will not continue to conduct business with Fastcom after
the Closing Date in substantially the same manner as it has conducted business
prior thereto.
4.24 ACCOUNTS RECEIVABLE. The accounts receivable reflected on the balance
sheets included in the Financial Statements, or thereafter acquired by Fastcom,
consist, in the aggregate in all material respects and 90% of such items which
are collectible in the ordinary and usual course of business.
4.25 GOVERNMENTAL APPROVALS. To its knowledge, other than as set forth herein,
no authorization, license, permit, franchise, approval, order or consent of, and
no registration, declaration or filing by Fastcom with, any governmental
authority, federal, state or local, is required in connection with Fastcom's
execution, delivery and performance of this Agreement.
4.26 NO OMISSIONS OR UNTRUE STATEMENTS. To its knowledge, no representation or
warranty made by Fastcom to Thrucomm in this Agreement or in any certificate of
the Fastcom General Partner required to be delivered to Thrucomm pursuant to the
terms of this Agreement contains or will contain any untrue statement of a
material fact, or omits or will omit to state a material fact necessary to make
the statements contained herein or therein not misleading as of the date hereof
and as of the Closing Date.
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V. REPRESENTATIONS AND WARRANTIES OF THRUCOMM
Thrucomm represents and warrants to the Partnerships as follows, with the
knowledge and understanding that the Partnerships are each relying materially on
such representations and warranties:
5.1 ORGANIZATION AND STANDING OF THRUCOMM. Thrucomm is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida, and has the corporate power to carry on its business as now conducted
and to own its assets and is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the failure to
qualify (individually or in the aggregate) does not have any material adverse
effect on the assets, business or financial condition of Thrucomm. The copies of
the articles of incorporation and bylaws of Thrucomm (certified by the Secretary
of Thrucomm), delivered to the Partnerships, are true and complete copies of
those documents as now in effect. Except as set forth in the Disclosure
Schedule, Thrucomm does not own any capital stock in any other corporation,
business trust or similar entity, and is not engaged in a partnership, joint
venture or similar arrangement with any person or entity. The minute book of
Thrucomm contains accurate records of all meetings of its incorporator,
stockholders and Board of Directors since its date of incorporation.
5.2 AUTHORITY. Thrucomm's Board of Directors has approved and adopted this
Agreement and the Reorganization. This Agreement constitutes, and all other
agreements contemplated hereby will constitute, when executed and delivered by
Thrucomm in accordance herewith (and assuming due execution and delivery by the
other parties hereto), the valid and binding obligations of Thrucomm,
enforceable in accordance with their respective terms, subject to general
principles of equity and bankruptcy or other laws relating to or affecting the
fights of creditors generally.
5.3 NO BREACHES. To its knowledge, the making and performance of this Agreement
(including, without limitation, the issuance of the Thrucomm Reorganization
Stock) by Thrucomm will not (i) conflict with the articles of incorporation or
the bylaws of Thrucomm; (ii) violate any order, writ, injunction, or decree
applicable to Thrucomm; or (iii) result in any breach or termination of, or
constitute a default under, or constitute an event which, with notice or lapse
of time, or both, would become a default under, or result in the creation of any
encumbrance, upon any asset of Thrucomm under, or create any rights of
termination, cancellation or acceleration in any person under, any agreement,
arrangement or commitment, or violate any provisions of any laws, ordinances,
rules or regulations or any order, writ, injunction or decree to which Thrucomm
is a party or by which Thrucomm or any of its assets may be bound.
5.4 CAPITALIZATION. The authorized capital stock of Thrucomm is comprised of the
following: (i) 100,000,000 shares of Common Stock, no par value (the "Common
Stock"), one share of which is issued and outstanding; and (ii) 25,000,000
shares of Preferred Stock, no par value (the "Preferred Stock'), with such
designation, fights and preferences as may be determined from time to time by
the Board of Directors of Thrucomm, of which no shares are issued and
outstanding.
All of the outstanding shares of Thrucomm Common Stock is duly authorized,
validly issued, fully paid and nonassessable, and was not issued in violation of
the preemptive rights of any person. The Reorganization Stock, to be issued upon
effectiveness of the Reorganization, when issued in accordance with the terms of
this Agreement, shall be duly authorized, validly issued, fully paid and
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nonassessable. Other than as stated in this Section 5.4, there are no
outstanding subscriptions, options, warrants, calls or fights of any kind issued
or granted by, or binding upon, Thrucomm, to purchase or otherwise acquire any
shares of capital stock of Thrucomm, or other equity securities or equity
interests of Thrucomm or any debt securities of Thrucomm.
5.5 GOVERNMENTAL APPROVAL; CONSENTS. To its knowledge, except for the reports
required to be filed in the future by Thrucomm as a reporting company under the
Exchange Act, no authorization, license, permit, franchise, approval, order or
consent of, and no registration, declaration or filing by Thrucomm with, any
governmental authority, federal state or local, is required in connection with
Thrucomm's execution, delivery and performance of this Agreement. No consents of
any other parties are required to be received by or on the part of Thrucomm to
enable Thrucomm to enter into and carry out this Agreement.
5.6 FINANCIAL STATEMENTS. To its knowledge, the Disclosure schedule contains
audited balance sheets as of December 31, 1996 and related statements of
operations, statements of cash flows and statements of stockholders' equity of
Thrucomm for the one-year period ended December 31, 1996 and compiled balance
sheets as of March 31, 1997, and related statements of operations, statements of
cash flows and statement of stockholder' equity for the three-month period ended
June 30, 1997 (collectively, the "Financial Statements"). The Financial
Statements present fairly, in all respects, the financial position and results
of operations of Thrucomm as of the dates and periods indicated, prepared in
accordance with generally accepted accounting principles consistently applied
("GAAP"). Without limiting the generality of the foregoing, (i) there is no
basis for any assertion against Thrucomm as of the date of the Financial
Statements of any material debt, liability or obligation of any nature not fully
reflected or reserved against in the Financial Statements; and (ii) there are no
assets of Thrucomm as of the date of the Financial Statements, the value of
which is overstated in the Financial Statements. Except as disclosed in the
Financial Statements, Thrucomm does have any known contingent liabilities
(including liabilities for Taxes), forward or long-term commitments or
unrealized or anticipated losses from unfavorable commitments other than in the
ordinary course of business. Thrucomm is not a party to any contract or
agreement for the forward purchase or sale of any foreign currency.
5.7 ADVERSE DEVELOPMENTS. Except as expressly provided or set forth in, or
required by, this Agreement or as set forth in the Thrucomm Financial
Statements, since June 30, 1997, there have been no materially adverse changes
in the assets, liabilities, properties, operations or financial condition of
Thrucomm, and no event has occurred other than in the ordinary and usual course
of business or as set forth in the Thrucomm Financial Statements which could be
reasonably expected to have a materially adverse effect upon Thrucomm, and
Thrucomm does not know of any development or threatened development of a nature
that will, or which could be reasonably expected to, have a materially adverse
effect upon Thrucomm's operations or future prospects.
5.8 CONTRACTS LISTED; NO DEFAULT. All contracts, agreements, licenses, leases,
easements, permits, rights of way, commitments, and understandings, written or
oral connected with or relating in any respect to present or proposed future
operations of Thrucomm (except employment or other agreements terminable at will
and other agreements which, in the aggregate, are not material to the business,
properties or prospects of Thrucomm and except governmental licenses, permits,
authorizations, approvals and other matters referred to in Section 5.5), which
would be required to be listed as exhibits to an Annual Report on Form 10-K if
Thrucomm were subject to the reporting requirements of the Exchange Act
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(individually, the "Thrucomm Contract" and collectively, the "Thrucomm
Contracts"), are listed and described in the Disclosure Schedule. Thrucomm is
the holder of, or party to, all of the Thrucomm Contracts. To the knowledge of
Thrucomm, the Thrucomm Contracts are valid, binding and enforceable by the
signatory thereto against the other parties thereto in accordance with their
terms. Neither Thrucomm nor any signatory thereto is in default or breach of any
material provision of the Thrucomm Contracts. Thrucomm's operation of its
business has been, is, and will, between the date hereof and the Closing Date
(as hereinafter defined), continue to be, consistent with the material terms and
conditions of the Thrucomm Contracts.
5.9 TAXES. Thrucomm has duly filed all Returns required by any law or regulation
to be filed by it except for extensions duly obtained. All such Returns were,
when filed, and to the best of Thrucomm's knowledge are, accurate and complete
in all material respects and were prepared in conformity with applicable laws
and regulations. Thrucomm has paid or will pay in full or has adequately
reserved against all Taxes otherwise assessed against it through the Closing
Date, and the assessment of any material amount of additional Taxes in excess of
those paid and reported is not reasonably expected.
Thrucomm is not a party to any pending action or proceeding by any governmental
authority for the assessment of any Tax, and no claim for assessment or
collection of any Tax has been asserted against Thrucomm that has not been paid.
There are no Tax liens upon the assets of Thrucomm (other than the lien of
personal property taxes not yet due and payable). There is no valid basis, to
the best of Thrucomm's knowledge, except as set forth in the Disclosure
Schedule, for any assessment, deficiency, notice, 30-day letter or similar
intention to assess any Tax to be issued to Thrucomm by any governmental
authority.
5.10 LITIGATION. Except as disclosed in the Disclosure Schedule, there is no
claim action, proceeding or investigation pending or, to Thrucomm's knowledge,
threatened against or affecting Thrucomm before or by any court, arbitrator or
governmental agency or authority which in the reasonable judgment of Thrucomm
could have a materially adverse effect on Thrucomm. There are no decrees,
injunctions or orders of any court, governmental department, agency or
arbitration outstanding against Thrucomm.
5.11 COMPLIANCE WITH LAWS AND REGULATIONS. To its knowledge, Thrucomm is in
compliance, in all material respects, with all laws, rules, regulations, orders
and requirements (federal, state and local) applicable to it in all
jurisdictions in which the business of Thrucomm is currently conducted or to
which Thrucomm is currently subject, which may have a material impact on
Thrucomm, including, without limitation, all applicable civil rights and equal
opportunity employment laws and regulations, all state and federal antitrust,
antimonopolies and fair trade practice laws and the Federal Occupational Health
and Safety Act. Thrucomm does not know of any assertion by any party that
Thrucomm is in violation of any such laws, rules, regulations, orders,
restrictions or requirements with respect to its current operations, and no
notice in that regard has been received by Thrucomm. To Thrucomm's knowledge,
there is not presently pending any proceeding, hearing or investigation with
respect to the adoption of amendments or modifications of existing laws, rules,
regulations, orders, restrictions or requirements which, if adopted, would
materially adversely affect the current operations of Thrucomm
5.12 GOVERNMENTAL LICENSES, PERMITS, ETC. To its knowledge, Thrucomm has all
governmental licenses, permits, authorizations and approvals necessary for the
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conduct of its business as currently conducted. All such licenses, permits,
authorizations and approvals are in full force and effect, and no proceedings
for the suspension or cancellation of any thereof is pending or threatened.
5.13 BROKERS. Thrucomm has not made any agreement or taken any action with any
person or taken any action which would cause any person to be entitled to any
agent's, broker's or finder's fee or commission in connection with the
transactions contemplated by this Agreement.
5.14 EMPLOYEE PLANS. Except as listed in the Disclosure Schedule, Thrucomm has
no Employee Plans or Compensation Agreements.
5.15 NO OMISSIONS OR UNTRUE STATEMENTS. No representation or warranty made by
Thrucomm to the Partnerships in this Agreement or in any certificate of a
Thrucomm officer required to be delivered to the Partnerships pursuant to the
terms of this Agreement contains or will contain any untrue statement of a
material fact, outs or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading as of the date hereof and
as of the Closing Date.
5.16 DISCLOSURE SCHEDULE COMPLETE. Thrucomm shall promptly supplement the
Disclosure Schedule if events occur prior to the Closing Date that would have
been required to be disclosed had they existed at the time of executing this
Agreement. The Disclosure Schedule, as supplemented prior to the Closing Date,
will contain a true, correct and complete fist and description of all items
required to be set forth therein. The Disclosure Schedule, as supplemented prior
to the Closing Date, is expressly incorporated herein by reference.
Notwithstanding the foregoing, any such supplement to the Disclosure Schedule
following the date hereof shall not in any way affect Thrucomm's right not to
consummate the transactions contemplated hereby as set forth in Article VII
hereof
VI. PARTNER/STOCKHOLDER APPROVAL; CLOSING; CLOSING DELIVERIES
6.1 PARTNER/STOCKHOLDER APPROVAL.
(A) DATALINC. Pursuant to the Agreement of Limited Partnership of Datalinc,
the affirmative vote of the holders of at least two-thirds of all of the
outstanding voting rights of the Units is necessary to approve and adopt
the Reorganization. If a Limited Partner does not consent to the
Reorganization but the Reorganization is approved by the requisite vote of
other Limited Partners, such Limited Partner is bound by such approval.
(B) FASTCOM. The Board of Directors of the Fastcom General Partner, without
dissent or abstention, has approved the Reorganization. Datalinc owns
approximately 80% of all of the outstanding voting rights of the Units of
Fastcom and the Datalinc General Partner has given written consent to the
Reorganization, which consent is sufficient to give Fastcom's approval to
the Reorganization Agreement and Reorganization.
(C) THRUCOMM. The Board of Directors of Thrucomm, without dissent or
abstention, and Datalinc, the sole stockholder of Thrucomm, have approved
the Reorganization.
6.2 CLOSING. Subject to the other provisions of this Agreement, the parties
shall hold a closing (the "Closing") no later than the fifth business day (or
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such later date as the parties hereto may agree) following the later of (a) the
date that all of the parties hereto give their consent to the approval and
adoption of the Reorganization and this Agreement; or (b) the business day on
which the last of the conditions set forth in Articles VII and VIII is fulfilled
or waived (such later date, the "Closing Date") at 10:00 a.m. at the offices of
Thrucomm or at such other time and place as the parties may agree upon.
6.3 CLOSING DELIVERIES.
(A) DATALINC. At the Closing, Datalinc shall deliver, or cause to be
delivered to Fastcom and Thrucomm:
(1) a certificate, dated as of the Closing Date, to the effect that
the representations and warranties of Datalinc contained in this
Agreement are true and correct in all material respects at and as of
the Closing Date and that Datalinc has complied with or performed in
all material respects all terms, covenants and conditions to be
complied with or performed by Datalinc on or prior to the Closing
Date;
(2) a certificate, dated as of the Closing Date, executed by the
Datalinc General Partner, certifying the Certificate of Limited
Partnership and Agreement of Limited Partnership of Datalinc, the
incumbency and signature of the Datalinc General Partner and copies of
the Datalinc General Partner's resolutions approving and authorizing
the execution and delivery of this Agreement, and the consummation of
the transactions contemplated hereby;
(3) the books and records of Datalinc;
(4) documentation satisfactory to Thrucomm evidencing the fact that
the signatories on all relevant bank accounts of Datalinc have been
changed to signatories designated by Thrucomm;
(5) such other documents, at the Closing or subsequently, as may be
reasonably requested by Fastcom and Thrucomm as necessary for the
implementation and consummation of this Agreement and the transactions
contemplated hereby; and
(6) an opinion of Datalinc's counsel in form and substance reasonably
satisfactory to Fastcom and Thrucomm in a form mutually agreed to
prior to the Closing.
(b) FASTCOM. At the Closing, Fastcom shall deliver, or cause to be
delivered to Datalinc and Thrucomm:
(1) a certificate, dated as of the Closing Date, to the effect that
the representations and warranties of Fastcom contained in this
Agreement are true and correct in all material respects at and as of
the Closing Date and that Datalinc has complied with or performed in
all material respects all terms, covenants and conditions to be
complied with or performed by Fastcom on or prior to the Closing Date;
(2) a certificate, dated as of the Closing Date, executed by the
Fastcom General Partner, certifying the Certificate of Limited
Partnership and Agreement of Limited Partnership of Fastcom the
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incumbency and signature of the Fastcom General Partner and copies of
the Fastcom General Partner's resolutions approving and authorizing
the execution and delivery of this Agreement, and the consummation of
the transactions contemplated hereby;
(3) the books and records of Fastcom;
(4) documentation satisfactory to Thrucomm evidencing the fact that
the signatories on all relevant bank accounts of Fastcom have been
changed to signatories designated by Thrucomm;
(5) such other documents, at the Closing or subsequently, as may be
reasonably requested by Datalinc and Thrucomm as necessary for the
implementation and consummation of this Agreement and the transactions
contemplated hereby; and
(6) an opinion of Fastcom's counsel in form and substance reasonably
satisfactory to Datalinc and Thrucomm in a form mutually agreed to
prior to the Closing.
(c) THRUCOMM. At the Closing, Thrucomm shall deliver, or cause to be
delivered, to the Partnerships:
(1) a certificate of Thrucomm, dated as of the Closing Date, to the
effect that the representations and warranties of Thrucomm contained
in this Agreement are true and correct in all material respects and
that Thrucomm has complied with or performed in all material respects
all terms, covenants and conditions to be complied with or performed
by Thrucomm on or prior to the Closing Date;
(2) a certificate, dated as of the Closing Date, executed by the
Secretary of Thrucomm, certifying the Articles of Incorporation and
Bylaws of Thrucomm, the incumbency and signatures of the officers of
Thrucomm and copies of the directors' resolutions of Thrucomm
approving and authorizing the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby;
(3) certificates representing the Preferred Stock issuable upon
consummation of the Reorganization;
(4) employment agreements, in the form attached hereto as Schedule
6.3(c), with those particular officers and directors of Thrucomm as
listed therein;
(5) a written consent by any lender whether bank consent is required
as to the consummation of the Reorganization; and
(6) an opinion of Thrucomm's counsel in form and substance reasonably
satisfactory to the Partnerships in a form mutually agreed to prior to
the Closing.
VII. CONDITIONS TO OBLIGATIONS OF THRUCOMM
The obligations of Thrucomm to consummate the Closing are subject to the
following conditions, any of which may be waived by Thrucomm in its sole
discretion:
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7.1 DATALINC.
(a) COMPLIANCE BY DATALINC. Datalinc shall have performed and complied in
all material respects with all agreements and conditions required by this
Agreement to be performed or complied with by Datalinc prior to or on the
Closing Date.
(b) ACCURACY OF THE REPRESENTATIONS AND WARRANTIES OF DATALINC. The
representations and warranties of Datalinc contained in this Agreement
(including the Disclosure Schedule) or any schedule, certificate or other
instrument delivered pursuant to the provisions hereof or in connection
with the transactions contemplated hereby shall be true and correct in all
material respects at and as of the Closing Date (except for such changes
permitted by this Agreement) and shall be deemed to be made again as of the
Closing Date.
(c) MATERIAL ADVERSE CHANGE. No material adverse change shall have occurred
subsequent to December 31, 1996, in the financial position, results of
operations, assets, liabilities or prospects of Datalinc, nor shall any
event or circumstance have occurred which would result in a material
adverse change in the financial position, results of operations, assets,
liabilities or prospects of Datalinc within the reasonable discretion of
Thrucomm.
(d) DOCUMENTS. All documents and instruments delivered by Datalinc to
Thrucomm at the Closing shall be in form and substance reasonably
satisfactory to Thrucomm and its counsel.
(e) CAPITALIZATION. At the Closing Date, the number of Partnership Units of
Datalinc which are issued and outstanding shall be as set forth in the
Disclosure Schedule.
(f) REORGANIZATION. The Reorganization shall qualify as a reorganization
under Section 368 of the Code and further there are no material adverse tax
consequences to the Reorganization.
(g) LITIGATION. No litigation seeking to enjoin the transactions
contemplated by this Agreement or to obtain damages on, account hereof
shall be pending or, to the knowledge of Datalinc, be threatened.
(h) CERTAIN CONSENTS. Other than as set forth herein, Datalinc shall have
received all applicable consents contemplated by the Disclosure Schedule in
writing, in form and substance reasonably satisfactory to Thrucomm and its
counsel, to Datalinc's entry into this Agreement and consummation of the
Reorganization.
(i) PARTNER APPROVAL. Datalinc shall have received Partner approval of the
Reorganization and this Agreement as set forth in Section 6.1 hereof.
(j) ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS. Other than as set forth
herein, Datalinc shall assign or cause to be assigned to Thrucomm all of
its right, title and interest in and to that certain intellectual property
as set forth on Schedule 7. 10).
(k) LIABILITIES DISCLOSED. Subsequent to the satisfaction of that certain
debt as set forth on Schedule 7. 1 (k) of this Agreement, at the Closing
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Date, the liabilities, contingent and otherwise, of Datalinc shall in the
aggregate not exceed $300,000.
(1) SATISFACTION OF DEBT. Datalinc shall contemporaneous with the
Closing, satisfy in full those certain debt obligations as set forth
on Schedule 7. I (I) of this Agreement.
7.2 FASTCOM.
(a) COMPLIANCE BY FASTCOM. Fastcom shall have performed and complied in all
material respects with all agreements and conditions required by this
Agreement to be performed or complied with by Fastcom prior to or on the
Closing Date.
(b) ACCURACY OF THE REPRESENTATIONS AND WARRANTIES OF FASTCOM. The
representations and warranties of Fastcom contained in this Agreement
(including the Disclosure Schedule) or any schedule, certificate or other
instrument delivered pursuant to the provisions hereof or in connection
with the transactions contemplated hereby shall be true and correct in all
material respects at and as of the Closing Date (except for such changes
permitted by this Agreement) and shall be deemed to be made again as of the
Closing Date.
(c) MATERIAL ADVERSE CHANGE. No material adverse change shall have occurred
subsequent to December 31, 1996, in the financial position, results of
operations, assets, liabilities or prospects of Fastcom, nor shall any
event or circumstance have occurred which would result in a material
adverse change in the financial position, results of operations, assets,
liabilities or prospects of Fastcom within the reasonable discretion of
Thrucomm.
(d) DOCUMENTS. All documents and instruments delivered by Fastcom to
Thrucomm at the Closing shall be in form and substance reasonably
satisfactory to Thrucomm and its counsel.
(e) CAPITALIZATION. At the Closing Date, the number of Partnership Units of
Fastcom which are issued and outstanding shall be as set forth in the
Disclosure Schedule.
(f) REORGANIZATION. The Reorganization shall qualify as a reorganization
under Section 368 of the Code and further there are no material adverse tax
consequences to the Reorganization.
(g) LITIGATION. No litigation seeking to enjoin the transactions
contemplated by this Agreement or to obtain damages on, account hereof
shall be pending or, to the knowledge of Fastcom, be threatened.
(h) CERTAIN CONSENTS Other than as set forth herein, Fastcom shall have
received all applicable consents contemplated by the Disclosure Schedule in
writing, in form and substance reasonably satisfactory to Thrucomm and its
counsel, to Fastcom's entry into this Agreement and consummation of the
Reorganization.
(i) PARTNER APPROVAL. Fastcom shall have received Partner approval of the
Reorganization and this Agreement as set forth in Section 6.2 hereof
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(j) ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS. Other than as set forth
herein, Fastcom shall assign or cause to be assigned to Thrucomm all of its
right, title and interest in and to that certain intellectual property as
set forth on Schedule 7.20).
(k) LIABILITIES DISCLOSED. Subsequent to the satisfaction of that certain
debt as set forth on Schedule 7.2(k) of this Agreement, at the Closing
Date, the liabilities, contingent and otherwise, of Datalinc shall in the
aggregate not exceed $300,000.
(1) SATISFACTION OF DEBT. Datalinc shall contemporaneous with the Closing,
satisfy in full those certain debt obligations as set forth on Schedule
7.2(l) of this Agreement.
VIII. CONDITIONS TO THE PARTNERSHIPS OBLIGATIONS
The obligations of the Partnerships to consummate the Closing are subject to the
following conditions, any of which may be waived by the Partnerships in their
sole discretion:
8.1 COMPLIANCE BY THRUCOMM. Thrucomm shall have performed and complied in all
material respects with all agreements and conditions required by this Agreement
to be performed or complied with prior to or on the Closing Date.
8.2 ACCURACY OF THRUCOMM'S REPRESENTATIONS. Thrucomm's representations and
warranties contained in this Agreement (including the exhibits hereto and the
Disclosure Schedule) or any schedule, certificate or other instrument delivered
pursuant to the provisions hereof or in connection with the transactions
contemplated hereby shall be true and correct in all material respects at and as
of the Closing Date (except for such changes permitted by this Agreement) and
shall be deemed to be made again as of the Closing Date.
8.3 MATERIAL ADVERSE CHANGE. No material adverse change shall have occurred
subsequent to December 31, 1996 in the financial position, results of
operations, assets, liabilities or prospects of Thrucomm taken as a whole, nor
shall any event or circumstance have occurred which would result in a material
adverse change in the business, assets or condition, financial or otherwise, of
Thrucomm taken as a whole, within reasonable discretion of Thrucomm.
8.4 LITIGATION. No litigation seeking to enjoin the transactions contemplated by
this Agreement or to obtain damages on account hereof shall be pending or, to
Thrucomm's knowledge, be threatened.
8.5 REORGANIZATION. The Reorganization shall qualify as a reorganization under
Section 368 of the Code and further there are no material adverse tax
consequences to the Reorganization.
8.6 DOCUMENTS. All documents and instruments delivered by Thrucomm to the
Partnerships at the Closing shall be in form and substance reasonably
satisfactory to the Partnerships and their counsel.
III. INDEMNIFICATION
9.1 BY THE PARTNERSHIPS. Subject to Section 9.4, the Partnerships shall
indemnify, defend and hold Thrucomm, its directors, officers, shareholders,
attorneys, agents and affiliates, harmless from and against any and all losses,
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costs, liabilities, damages, and expenses (including legal and other expenses
incident thereto) of every kind, nature and description (collectively, "Losses")
that result from or arise out of (i) the breach of any representation or
warranty of Datalinc or Fastcom set forth in this Agreement or in any
certificate delivered to Thrucomm pursuant hereto; or (ii) the breach of any of
the covenants of Datalinc or Fastcom contained in or arising out of this
Agreement or the transactions contemplated hereby.
9.2 BY THRUCOMM. Subject to Section 9.4, Thrucomm shall indemnify, defend, and
hold the Partnerships and their partners harmless from and against any and all
Losses that arise out of (i) the breach of any representation or warranty of
Thrucomm set forth in this Agreement or in any certificate delivered to Datalinc
or Fastcom pursuant hereto; or (ii) the breach of any of the covenants of
Thrucomm contained in or arising out of this Agreement or the transactions
contemplated hereby.
9.3 CLAIMS PROCEDURE. Should any claim covered by Sections 9.1 or 9.2 be
asserted against a party entitled to indemnification under this Article (the
"Indemnitees"), the Indemnitee shall promptly notify the party obligated to make
indemnification (the "Indemnitor"); provided, however, that any delay or failure
in notifying the Indemnitor shall not affect the Indemnitor's liability under
this Article if such delay or failure was not prejudicial to the Indemnitor. The
Indemnitor upon receipt of such notice shall assume the defense thereof with
counsel reasonably satisfactory to the Indemnitee and the Indemnitee shall
extend reasonable cooperation to the Indemnitor in connection with such defense.
No settlement of any such claim shall be made without the consent of the
Indemnitor and Indemnitee, such consent not to be unreasonably withheld or
delayed, nor shall any such settlement be made by the Indemnitor which does not
provide for the absolute, complete and unconditional release of the Indemnitee
from such claim. In the event that the Indemnitor shall fail, within a
reasonable time, to defend a claim, the Indemnitee shall have the fight to
assume the defense thereof without prejudice to its rights to indemnification
hereunder.
9.4 LIMITATIONS ON LIABILITIES. Neither Datalinc nor Fastcom nor Thrucomm shall
be liable hereunder as a result of any misrepresentation or breach of such
party's representations, warranties or covenants contained in this Agreement
unless and until the Losses incurred by Datalinc, Fastcom or Thrucomm, as the
case may be, as a result of such misrepresentations or breaches under this
Agreement shall exceed, in the aggregate, $50,000 (in which case the party
liable therefor shall be liable for the entire amount of such claims, including
the first $50,000).
X. TERMINATION
10.1 TERMINATION PRIOR TO CLOSING.
(a) If the Closing has not occurred by December 31, 1997, any of the
parties hereto may terminate this Agreement at any time thereafter by
giving written notice of termination to the other parties; provided,
however, that no party may terminate this Agreement if such party has
willfully or materially breached any of the terms and conditions hereof
(b) Prior to December 31, 1997, either Datalinc, Fastcom or Thrucomm may
terminate this Agreement following the insolvency or bankruptcy of the
other, or if any one or more of the conditions to Closing set forth in
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Articles VI, VII or VIII shall become incapable of fulfillment and shall
not have been waived by the party for whose benefit the condition was
established, then either Datalinc, Fastcom or Thrucomm may terminate this
Agreement.
10.2 CONSEQUENCES OF TERMINATION. Upon termination of this Agreement pursuant to
this Article X or any other express right of termination provided elsewhere in
this Agreement, the parties shall be relieved of any further obligation to the
others except as specified in Section 12.3. No termination of this Agreement,
however, whether pursuant to this Article X hereof or under any other express
fight of termination provided elsewhere in this Agreement, shall operate to
release any party from any liability to any other party incurred before the date
of such termination or from any liability resulting from any willful
misrepresentation made in connection with this Agreement or willful breach
hereof
XI. ADDITIONAL COVENANTS
11.1 MUTUAL COOPERATION. The parties hereto will cooperate with each other, and
will use all reasonable efforts to cause the fulfillment of the conditions to
the parties' obligations hereunder and to obtain as promptly as possible all
consents, authorizations, orders or approvals from each and every third party,
whether private or governmental, required in connection with the transactions
contemplated by this Agreement.
11.2 CHANGES IN REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIPS. Between the
date of this Agreement and the Closing Date, neither Datalinc nor Fastcom shall,
directly or indirectly, enter into any transaction, take any action, or by
inaction permit an event to occur, which would result in any of the
representations and warranties of Datalinc or Fastcom herein contained not being
true and correct at and as of (a) the time immediately following the occurrence
of such transaction or event- or (b) the Closing Date. The Partnerships shall
promptly give written notice to Thrucomm upon becoming aware of (i) any fact
which, if known on the date hereof, would have been required to be set forth or
disclosed pursuant to this Agreement; and (ii) any impending or threatened
breach in any material respect of any of the representations and warranties of
the Partnerships contained in this Agreement and with respect to the latter
shall use all reasonable efforts to remedy same.
11.3 CHANGES IN REPRESENTATIONS AND WARRANTIES OF THRUCOMM. Between the date of
this Agreement and the Closing Date, Thrucomm shall not, directly or indirectly,
enter into any transaction, take any action, or by inaction permit an event to
occur, which would result in any of the representations and warranties of
Thrucomm herein contained not being true and correct at and as of (a) the time
immediately following the occurrence of such transaction or event; or (b) the
Closing Date. Thrucomm shall promptly give written notice to the Partnerships
upon becoming aware of (i) any fact which, if known on the date hereof, would
have been required to be set forth or disclosed pursuant to this Agreement; and
(ii) any impending or threatened breach in any material respect of any of the
representations and warranties of Thrucomm contained in this Agreement and with
respect to the latter shall use all reasonable efforts to remedy same.
XII. MISCELLANEOUS
12.1 EXPENSES. Datalinc, Fastcom and Thrucomm shall each pay its own expenses
incident to the negotiation, preparation and carrying out of this Agreement,
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including all fees and expenses of its counsel and accountants for all
activities of such counsel and accountants undertaken pursuant to this
Agreement, whether or not the transactions contemplated hereby are consummated.
12.2 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All statements
contained in this Agreement or in any certificate delivered by or on behalf of
Datalinc, Fastcom or Thrucomm pursuant hereto or in connection with the
transactions contemplated hereby shall be deemed representations, warranties and
covenants by Datalinc, Fastcom or Thrucomm, as the case may be, hereunder. All
representations, warranties and covenants made by Datalinc, Fastcom and Thrucomm
in this Agreement, or pursuant hereto, shall survive for a period of two (2)
years subsequent to the Closing.
12.3 NONDISCLOSURE. Neither Datalinc nor Fastcom will at any time after the date
of this Agreement, without Thrucomm's consent, divulge, furnish to or make
accessible to anyone (other than to its representatives as part of its due
diligence or corporate investigation) any knowledge or information with respect
to confidential or secret processes, inventions, discoveries, improvements,
formulae, plans, material, devices or ideas or know-how, whether patentable or
not, with respect to any confidential or secret aspects (including, without
limitation, customers or suppliers) ("Confidential Information") of Thrucomm.
Thrucomm will not at any time after the date of this Agreement, without the
consent of the Partnerships (except as may be required by law), use, divulge,
furnish to or make accessible to anyone any Confidential Information (other than
to its representatives as part of its due diligence or corporate investigation)
with respect to Datalinc or Fastcom.
The undertakings set forth in the preceding two paragraphs of this Section 12.3
shall lapse if the Closing takes place.
Any information, which (i) at or prior to the time of disclosure by either of
Datalinc, Fastcom or Thrucomm was generally available to the public through no
breach of this covenant; (ii) was available to the public on a nonconfidential
basis prior to its disclosure by Datalinc, Fastcom or Thrucomm; or (iii) was
made available to the public from a third party, provided that such third party
did not obtain or disseminate such information in breach of any legal obligation
to Datalinc, Fastcom or Thrucomm, shall not be deemed Confidential Information
for purposes hereof, and the undertakings in this covenant with respect to
Confidential Information shall not apply thereto.
12.4 SUCCESSION AND ASSIGNMENTS; THIRD PARTY BENEFICIARIES. This Agreement may
not be assigned (either voluntarily or involuntarily) by any party hereto
without the express written consent of the other party. Any attempted assignment
in violation of this Section shall be void and ineffective for all purposes. In
the event of an assignment permitted by this Section, this Agreement shall be
binding upon the heirs, successors and assigns of the parties hereto. Except as
expressly set forth in this Section, there shall be no third party beneficiaries
of this Agreement.
12.5 NOTICES. All notices, requests, demands or other communications with
respect to this Agreement shall be in writing and shall be (i) sent by facsimile
transmission; (ii) sent by the United States Postal Service, registered or
certified mail, return receipt requested; or (iii) personally delivered by a
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nationally recognized express overnight courier service, charges prepaid, to the
following addresses (or such other addresses as the parties may specify from
time to time in accordance with this Section):
If to Datalinc:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chairman of the Board of Integrated Communication Networks, Inc.,
the General Partner
If to Fastcom:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chairman of the Board of Fastcom Management, Inc., the General Partner
If to Thrucomm:
Thrucomm, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
Any such notice shall, when sent in accordance with the preceding sentence, be
deemed to have been given and received on the earliest of (i) the day delivered
to such address or sent by facsimile transmission, (G) the fifth (5th) business
day following the date deposited with the United States Postal Service, or (iii)
twenty-four (24) hours after shipment by such courier service.
12.6 CONSTRUCTION. This Agreement shall be construed and enforced in accordance
with the internal laws of the State of Florida without giving effect to the
principles of conflicts of law thereof
12.7 COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which shall together
constitute one and the same Agreement.
12.8 NO IMPLIED WAIVER; REMEDIES. No failure or delay on the part of the parties
hereto to exercise any right, power or privilege hereunder or under any
instrument executed pursuant hereto shall operate as a waiver, nor shall any
single or partial exercise of any right, power or privilege preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege. All rights, powers and privileges granted herein shall be in addition
to other rights and remedies to which the parties may be entitled at law or in
equity.
12.9 ENTIRE AGREEMENT. This Agreement, including the Exhibits and Schedules
attached hereto, sets forth the entire understandings of the parties with
respect to the subject matter hereof, and it incorporates and merges any and all
previous communications, understandings, oral or written, as to the subject
matter hereof, and cannot be amended or changed except in writing, signed by the
A-44
parties. 12.10 HEADINGS. The headings of the Sections of this Agreement, where
employed, are for the convenience of reference only and do not form a part
hereof and in no way modify, interpret or construe the meanings of the parties.
12.11 SEVERABILITY. To the extent that any provision of this Agreement shall be
invalid or unenforceable, it shall be considered deleted therefrom and the
remainder of such provision and of this Agreement shall be unaffected and shall
continue in full force and effect.
12.12 PUBLIC DISCLOSURE. From and after the date hereof through the Closing
Date, neither Datalinc nor Fastcom nor Thrucomm shall issue a press release or
any other public announcement with respect to the transactions contemplated
hereby without the prior consent of the other party, which consent shall not be
unreasonably withheld or delayed.
THE PARTIES TO THIS AGREEMENT HAVE READ THIS AGREEMENT, HAVE HAD THE OPPORTUNITY
TO CONSULT WITH INDEPENDENT COUNSEL OF THEIR OWN CHOICE, AND UNDERSTAND EACH OF
THE PROVISIONS OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
DATALINC, LTD., a Florida limited partnership
By: Integrated Communication Networks, Inc.,
a Florida corporation General Partner
___________________________
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board
FASTCOM, LTD., a Florida limited partnership
___________________________
By: Fastcom Management, Inc.,
a Florida corporation General Partner
THRUCOMM, INC.
___________________________
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chairman of the Board
A-45
No dealer, salesperson or other person has been authorized to give any
information or to make any representation not contained in this consent
statement/prospectus and, if given or made, such information or representation
must not be relied upon as having been authorized by thrucomm. This consent
statement/prospectus does not constitute an offer to sell or a solicitation of
any offer to buy any security other than the preferred stock offered hereby, nor
does it constitute an offer to sell or a solicitation to any person in any
jurisdiction or under any circumstances in which such offering would be
unlawful. Neither the delivery of this consent statement/prospectus nor any sale
made hereunder shall under any circumstances create any implication that the
information contained herein is correct as of any time subsequent to the date
hereof.
TABLE OF CONTENTS
PAGE
AVAILABLE INFORMATION..................V
SUMMARY................................ 1 THRUCOMM, INC.
SELECTED FINANCIAL INFORMATION.........14
RISK FACTORS...........................16
THE REORGANIZATION.....................22
EQUITY OWNERSHIP OF THE PARTNERSHIPS...27
THE FORMULA............................34
THRUCOMM OWNERSHIP TABLES..............38
RECOMMENDATION OF THE GENERAL PARTNERS.43
FAILURE TO APPROVE THE REORGANIZATION..47
CONSENT PROCEDURES.....................48 MANDATORY CONVERTIBLE
CERTAIN TAX CONSEQUENCES...............50 PREFERRED STOCK
COMPARATIVE RIGHTS OF INVESTORS........51 SERIES A-P
PRO FORMA CONDENSED FINANCIAL
INFORMATION............................58
DATALINC LTD., MANAGEMENT'S DISCUSSION
AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS..................67
FASTCOM LTD., MANAGEMENT'S DISCUSSION
AND ANALYSIS OF FINANCIAL CONDITION ----------------------------
AND RESULTS OF OPERATIONS..............73 CONSENT STATEMENT/PROSPECTUS
BUSINESS - FASTCOM.....................76 ----------------------------
BUSINESS - DATALINC....................85
MANAGEMENT.............................87
PRINCIPAL STOCKHOLDERS.................93
DESCRIPTION OF THRUCOMM'S SECURITIES...95
LEGAL MATTERS..........................101
EXPERTS................................101
GLOSSARY...............................102
INDEX TO FINANCIAL STATEMENTS..........F-1 August ___, 1997
AGREEMENT AND PLAN OF REORGANIZATION...A-1
OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., P.A....B-1
UNTIL ______________, 1997 (25 DAYS AFTER COMMENCEMENT OF THE OFFERING), ALL
DEALERS EFFECTING TRANSACTIONS IN THE REGISTERED SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS DESCRIPTION, MAY BE REQUIRED TO DELIVER A CONSENT
STATEMENT/PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR
UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
113
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850(1) of the Florida Business Corporation Act ("FBCA")
permits a Florida corporation to indemnify any person who may be a party to any
third party proceeding by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, against liability
incurred in connection with such proceeding (including any appeal thereof) if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Section 607.0850(2) of the FBCA permits a Florida corporation to indemnify
any person who may be a party to a derivative action if such person acted in any
of the capacities set forth in the preceding paragraph, against expenses and
amounts paid in settlement not exceeding, in the judgement of the board of
directors, the estimated expenses of litigating the proceeding to conclusion,
actually and reasonably incurred in connection with the defense or settlement of
such proceeding including appeals, provided that the person acted under the
standards set forth in the preceding paragraph. However, no indemnification
shall be made for any claim, issue or matter for which such person is found to
be liable unless, and only to the extent that, the court determines that,
despite the adjudication of liability, but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnification for
such expenses which the court deems proper.
Section 607.0850(4) of the FCBA provides that any indemnification made
under the above provisions, unless pursuant to a court determination, may be
made only after a determination that the person to be indemnified has met the
standard of conduct described above. This determination is to be made by a
majority vote of a quorum consisting of the disinterested directors of the board
of directors, by independent legal counsel, or by a majority vote of the
disinterested shareholders. The board of directors also may designate a special
committee of disinterested directors to make this determination.
Section 607.0850(3), however, provides that a Florida corporation must
indemnify any director or officer of a corporation that has been successful in
the defense of any proceeding referred to in Section 607.0850(1) or (2), or in
the defense of any claim, issue or matter therein, against expenses actually and
reasonably incurred by him in connection therewith.
Expenses incurred by a director or officer in defending a civil or criminal
proceeding may be paid by the corporation in advance of the final disposition
thereof upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it is ultimately determined that such director
or officer is not entitled to indemnification under Section 607.0850.
Section 607.0850 of the FBCA further provides that the indemnification
provisions contained therein are not exclusive and it specifically empowers a
corporation to make any other further indemnification or advancement of expenses
under any bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, for actions in an official capacity and in other capacities while
holding an office. However, a corporation cannot indemnify or advance expenses
II-1
if a judgment or other final adjudication establishes that the actions of the
director or officer were material to the adjudicated cause of action and the
director or officer (a) violated criminal law, unless the director or officer
had reasonable cause to believe his conduct was unlawful, (b) derived an
improper personal benefit from a transaction, (c) was or is a director in a
circumstance where the liability under Section 607.0834 (relating to unlawful
distributions) applies, or (d) engages in willful misconduct or conscious
disregard for the best interests of the corporation in a proceeding by or in
right of the corporation to procure a judgment in its favor or in a proceeding
by or in right of a shareholder.
THE FOREGOING IS ONLY A GENERAL SUMMARY OF CERTAIN ASPECTS OF FLORIDA LAW
DEALING WITH INDEMNIFICATION OF DIRECTORS AND OFFICERS AND DOES NOT PURPORT TO
BE COMPLETE. IT IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE RELEVANT
STATUTES OF THE FBCA.
Reference is made to Article 7 of the Company's Articles of Incorporation
filed as Exhibit 3.2 hereto.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following exhibits are filed with or incorporated by reference in this
Registration Statement:
EXHIBIT NO. DESCRIPTION OF EXHIBIT
================================================================================
2.1 Agreement and Plan of Reorganization, by and among Datalinc, Ltd.,
Fastcom, Ltd. and Thrucomm, Inc., dated May 5, 1997 **
2.1.1 (Revised) Agreement and Plan of Reorganization, by and among Datalinc,
Ltd.., Fastcom, Ltd. and Thrucomm, Inc., dated August 1, 1997 -
Included as Appendix A to the Consent Statement/Prospectus.*
3.1 Articles of Incorporation of Thruco, Inc.**
3.1.1 Articles of Amendment to Articles of Incorporation of Thruco, Inc.
changing the corporate name to Thrucomm, Inc.*
3.1.2 Designation of Class, Series, Preferences and Right of Preferred
Shares by Thrucomm, Inc.***
3.2 By-laws of Thruco, Inc.**
5.1 Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.A.*
8.1 Opinion of Schifino & ▇▇▇▇▇▇▇▇▇, P.A.*
10.1 Purchase Agreement by and between Blue Chip/Datalinc
Corporation, Integrated Communication Networks, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and Datalinc, Ltd., dated as of September 1,
1993.*
10.1.1 Amendment to Purchase Agreement, dated September 1, 1993.*
II-2
10.1.2 Purchase Agreement by and among Thrucomm, Inc., Blue Chip/Datalinc
Corporation, Integrated Communications Networks, Inc., ▇▇▇▇ ▇.▇▇▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and Datalinc, Inc., dated August __, 1997.***
10.1.3 Terms Sheet, Blue Chip Guarantee to Datalinc, Ltd., dated
July 9, 1997*
10.1.4 $100,000 Demand Note between Datalinc, Ltd. and Blue Chip Capital
Fund Limited, dated June 27, 1997.*
10.2 Option Agreement by and between Datalinc, Ltd. and CFG
Securities Corp.**
10.3 Managing Dealer Agreement by and between Fastcom, Ltd. and CFG
Securities Corp., dated as of April 24, 1996.**
10.4.1 Agreement by and between Information Leasing Corporation, Datalinc,
Ltd. and Fastcom, Ltd., dated as of September 6, 1995.**
10.4.2 Master Lease Agreement by and between Information Leasing Corporation,
Datalinc, Ltd. and Fastcom, Ltd., dated as of November 7, 1995.**
10.5 Payment Agreement by and between Fastcom, Ltd. and Nova Engineering
dated July 25, 1997.*
10.6 Form of Employment Agreement to be entered into by and among Thrucomm,
Inc. and Messrs. ▇▇▇▇▇▇▇ and Gianinni.*
10.7 Incentive and Non-Statutory Stock Option Plan.**
10.8 Non-Employee Directors Non-Statutory Stock Option Plan.**
10.9 Datalinc, Ltd., Management Incentive Plan **
10.9.1 Fastcom, Ltd., Management Incentive Plan, dated August 1, 1997.*
10.10.1 Thruco, Inc.'s $600,000 Line of Credit with United Bank and Trust Co.,
dated as of March 24, 1997.*
10.10.2 Datalinc's $300,000 Line of Credit with United Bank and Trust Co.,
dated as of October 3, 1994.*
10.10.3 $500,000 Line of Credit, Commitment Letter from United Bank, dated
July 18, 1997.*
10.11 Industrial Lease Agreement between Industrial Developments
International, Inc. and Datalinc-I, Ltd., dated as of April 15, 1991.*
10.12 Customer Protection Letter from ▇▇▇▇▇▇ Network Systems.**
10.13 Letter from ▇▇▇▇▇▇ Network Systems, dated July 17, 1997. *
23.1 Consent of Price Waterhouse LLP dated August 7, 1997 - Included at
Page II-8.*
23.2 Consent of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.A. - Included in Exhibit 5.1.*
II-3
23.3 Consent of Schifino & ▇▇▇▇▇▇▇▇▇, P.A. - Included in Exhibit 8.1.*
23.4 Consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Company, P.A. dated July 29, 1997 -
Included in Exhibit 99.2.*
24.1 Powers of Attorney **
27.1 Financial Data Schedule.**
99.1 Form of Written Consent of the Investors of Datalinc, Ltd.*
99.2 Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, P.A. dated July 29, 1997 -
Included as Appendix B to the Proxy Statement-Prospectus.*
99.3 Amended Agreement of Limited Partnership of Datalinc, Ltd.*
99.4 Amended and Restated Agreement of Limited Partnership of
Fastcom, Ltd.*
-----------------
* Filed herewith.
** Previously filed.
*** To be filed by Amendment
ITEM 22. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any consent statement/prospectus required by
Section 10(a)(3) of the Securities Act.
(ii) To reflect in the consent statement/prospectus any
facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in
the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change in such information
in the Registration Statement.
II-4
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form ▇-▇, ▇▇▇▇ ▇-▇ or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the consent statement/prospectus is sent or
given, the latest quarterly report that is specifically incorporated by
reference in the consent statement/prospectus to provide such interim financial
information.
(d) (1) The undersigned Registrant hereby undertakes as follows: that
prior to any public reoffering of the securities registered hereunder through
use of a consent statement/prospectus which is a part of this Registration
Statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuer undertakes that such reoffering consent
statement/prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items of
the applicable form.
(2) The Registrant undertakes that every consent
statement/prospectus (i) that is filed pursuant to paragraph (1) immediately
preceding, or (ii) that purports to meet the requirements of Section 10(a)(3) of
the Securities Act and is used in connection with an offering of securities
subject to Rule 415, will be filed as a part of an amendment to the Registration
Statement and will not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act, each such
post-effective
II-5
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(f) The undersigned Registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the consent
statement/prospectus pursuant to items 4, 10(b), 11 or 13 of this Form, within
one business day of receipt of such request and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
(g) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
II-6
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS PREEFFECTIVE AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT
TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ON
AUGUST 1, 1997.
THRUCOMM, INC.
BY: ______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS PRE-EFFECTIVE
AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATE INDICATED.
SIGNATURE TITLE DATE
* President and Director August 1, 1997
___________________________ (Principal Executive Officer)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
* Chairman of the Board and August 1, 1997
___________________________ Chief Financial Officer and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Director (Principal Financial
and Accounting Officer)
*
___________________________ Director August 1, 1997
▇▇▇▇▇▇ ▇. ▇▇▇▇
* Director August 1, 1997
___________________________
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr.
*
___________________________ Director August 1, 1997
Z. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
*
___________________________ Director August 1, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
* ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, by signing his name hereto, does sign this document on
behalf of the persons named above pursuant to the Power of Attorney executed
by each such person and filed with the Securities and Exchange Commission.
/S/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Attorney-in-Fact
II-7
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form S-4 of our reports dated February 12, 1997,
relating to the consolidated financial statements of Datalinc, Ltd., and the
financial statements of Fastcom, Ltd. and Thrucomm, Inc., which appear in such
Prospectus. We also consent to the references to us under the heading "Experts"
in such Prospectus.
/s/Price Waterhouse LLP
________________________________
PRICE WATERHOUSE LLP
Tampa, Florida
August 7 1997
II-8
EXHIBIT NO. DESCRIPTION OF EXHIBIT
2.1 Agreement and Plan of Reorganization, by and among Datalinc,
Ltd., Fastcom, Ltd. and Thrucomm, Inc., dated May 5, 1997 **
2.1.1 (Revised) Agreement and Plan of Reorganization, by and among
Datalinc, Ltd.., Fastcom, Ltd. and Thrucomm, Inc., dated August 1,
1997 - Included as Appendix A to the Consent Statement/Prospectus.*
3.1 Articles of Incorporation of Thruco, Inc.**
3.1.1 Articles of Amendment to Articles of Incorporation of Thruco, Inc.
changing the corporate name to Thrucomm, Inc.*
3.1.2 Designation of Class, Series, Preferences and Right of Preferred
Shares by Thrucomm, Inc.***
3.2 By-laws of Thruco, Inc.**
5.1 Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.A.*
8.1 Opinion of Schifino & ▇▇▇▇▇▇▇▇▇, P.A.*
10.1 Purchase Agreement by and between Blue Chip/Datalinc Corporation,
Integrated Communication Networks, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and Datalinc, Ltd., dated as of September 1, 1993.*
10.1.1 Amendment to Purchase Agreement, dated September 1, 1993.*
10.1.2 Purchase Agreement by and among Thrucomm, Inc., Blue Chip/Datalinc
Corporation, Integrated Communications Networks, Inc.,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and Datalinc, Inc., dated
August __, 1997.***
10.1.3 Terms Sheet, Blue Chip Guarantee to Datalinc, Ltd., dated
July 9, 1997*
10.1.4 $100,000 Demand Note between Datalinc, Ltd. and Blue Chip
Capital Fund Limited, dated June 27, 1997.*
10.2 Option Agreement by and between Datalinc, Ltd. and CFG Securities
Corp.**
10.3 Managing Dealer Agreement by and between Fastcom, Ltd. and
CFG Securities Corp., dated as of April 24, 1996.**
10.4.1 Agreement by and between Information Leasing Corporation,
Datalinc, Ltd. and Fastcom, Ltd., dated as of September 6, 1995.**
10.4.2 Master Lease Agreement by and between Information Leasing
Corporation, Datalinc, Ltd. and Fastcom, Ltd., dated as of
November 7, 1995.**
10.5 Payment Agreement by and between Fastcom, Ltd. and Nova
Engineering dated July 25, 1997.*
II-9
10.6 Form of Employment Agreement to be entered into by and among
Thrucomm, Inc. and Messrs. ▇▇▇▇▇▇▇ and Gianinni.*
10.7 Incentive and Non-Statutory Stock Option Plan.**
10.8 Non-Employee Directors Non-Statutory Stock Option Plan.**
10.9 Datalinc, Ltd., Management Incentive Plan **
10.9.1 Fastcom, Ltd., Management Incentive Plan, dated August 1, 1997.*
10.10.1 Thruco, Inc.'s $600,000 Line of Credit with United Bank and
Trust Co., dated as of March 24, 1997.*
10.10.2 Datalinc's $300,000 Line of Credit with United Bank and Trust Co.,
dated as of October 3, 1994.*
10.10.3 $500,000 Line of Credit, Commitment Letter from United Bank, dated
July 18, 1997.*
10.11 Industrial Lease Agreement between Industrial Developments
International, Inc. and Datalinc-I, Ltd., dated as of April 15,
1991.*
10.12 Customer Protection Letter from ▇▇▇▇▇▇ Network Systems **
10.13 Letter from ▇▇▇▇▇▇ Network Systems, dated July 17, 1997 *
23.1 Consentof Price Waterhouse LLP dated August 7, 1997 - Included at
Page II-8.*
23.2 Consent of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.A. - Included in Exhibit 5.1.*
23.3 Consent of Schifino & ▇▇▇▇▇▇▇▇▇, P.A. - Included in Exhibit 8.1.*
23.4 Consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Company, P.A. dated July 29, 1997 -
Included in Exhibit 99.2.*
24.1 Powers of Attorney **
27.1 Financial Data Schedule.**
99.1 Form of Written Consent of the Investors of Datalinc, Ltd.*
99.2 Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, P.A. dated July 29, 1997
- Included as Appendix B to the Proxy Statement-Prospectus.*
99.3 Amended Agreement of Limited Partnership of Datalinc, Ltd.*
99.4 Amended and Restated Agreement of Limited Partnership of
Fastcom, Ltd.*
-----------------
* Filed herewith.
** Previously filed.
*** To be filed by Amendment
II-10
