APPENDIX A
AGREEMENT AND PLAN OF REORGANIZATION
of
Datalinc, Ltd.
Fastcom, Ltd.
and
Thrucomm, Inc.
August 26, 1997
AGREEMENT AND PLAN OF REORGANIZATION dated as of the 26th 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.
2.1 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 Preferred 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 Distributees"), 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, 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 Preferred Stock:
TO DATALINC:
1 share of Preferred Stock, Series A; the Underlying Shares to be
distributed to the holders of Series 100 Limited Partnership Units upon
Mandatory Conversion;
1 share of Preferred Stock, Series B; the Underlying Shares to be
distributed to the holders of Series 200 Limited Partnership Units upon
Mandatory Conversion;
1 share of Preferred Stock, Series C; the Underlying Shares to be
distributed to the holders of Series 300 Limited Partnership Units upon
Mandatory Conversion;
1 share of Preferred Stock, Series D; the Underlying Shares to be
distributed to the holders of Series 300E1 Limited Partnership Units upon
Mandatory Conversion;
1 share of Preferred Stock, Series E; the Underlying Shares to be
distributed to the holders of Series 300E2 Limited Partnership Units upon
Mandatory Conversion;
1 share of Preferred Stock, Series F; the Underlying Shares to be
distributed to the holder of the Managing Dealer Units upon Mandatory
Conversion; and
1 share of Preferred Stock, Series G; the Underlying Shares to be
distributed to Datalinc's General Partner upon Mandatory Conversion.
TO FASTCOM:
1 share of Preferred Stock, Series H; the Underlying Shares to be
distributed to the holders of Series 100 Limited Partnership Units upon
Mandatory Conversion;
1 share of Preferred Stock, Series I; the Underlying Shares to be
distributed to the holders of Series 100EA Limited Partnership Units upon
Mandatory Conversion;
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1 share of Preferred Stock, Series J; the Underlying Shares to be
distributed to the holders of Series 200 Limited Partnership Units upon
Mandatory Conversion;
1 share of Preferred Stock, Series K; the Underlying Shares to be
distributed to the holders of Series 300 Limited Partnership Units upon
Mandatory Conversion;
1 share of Preferred Stock, Series L; the Underlying Shares to be
distributed to Datalinc, as the holder of the Datalinc Limited Partnership
Units, upon Mandatory Conversion;
1 share of Preferred Stock, Series M; the Underlying Shares to be
distributed to the holders of MIP Special Limited Partnership Units upon
Mandatory Conversion;
1 share of Preferred Stock, Series N; the Underlying Shares to be
distributed to the holder of the Managing Dealer Units upon Mandatory
Conversion;
1 share of Preferred Stock, Series O; the Underlying Shares to be
distributed to Information Leasing Corporation upon Mandatory Conversion; and
1 share of Preferred Stock, Series P; the Underlying Shares to be
distributed to Fastcom's General Partner upon Mandatory Conversion.
(b) DIVIDENDS
Dividend Participation of the Preferred Stock
Prior to a Mandatory Conversion Event, as defined in Section 2.4(e), all
Series of Preferred Stock shall 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.
(c) VOTING RIGHTS
Except as provided by law, the holders of the Preferred Stock will not
be entitled to vote.
(d) 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,
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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 the surviving corporation in
such consolidation or merger) will not be deemed to be a liquidation,
dissolution or winding-up, voluntary or involuntary.
(e) CONVERSION
The Preferred Stock shall be mandatorily convertible into Underlying
Shares upon the earliest to occur of one of the following events: (i)
the completion of an initial public offering of Thrucomm's Common
Stock (an "IPO"), (ii) the sale of all or substantially all of the
assets of Thrucomm (a "Sale"), (iii) the merger of Thrucomm into a
non-affiliated entity, whereby Thrucomm is not the surviving entity (a
"Merger"), or (iv) the sale of one-third or more of the equity
interest in Thrucomm, in a single transaction, to one or more
investors (an "Investment"), (collectively, the "Mandatory Conversion
Events"). The "sale of all or substantially all of the assets of
Thrucomm" shall occur upon the sale of at least 80% of Thrucomm's
assets.
The Preferred Stock will be mandatorily convertible into Underlying
Shares prior to a 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 a Sale or
Merger is not approved by the stockholders, the Preferred Stock will
have been converted into Underlying Shares based upon a proposed
transaction, and there shall be no further right to convert into
Underlying Shares of Thrucomm.
(f) RIGHTS AND PREFERENCES OF SERIES A-P PREFERRED STOCK UPON MANDATORY
CONVERSION
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 to (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.
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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.
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.
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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.
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.
No fractional shares will be issued to any Series of Preferred Stock upon
Mandatory Conversion.
(g) EARNED PREFERRED RETURNS OF THE PREFERRED STOCK
The Series A-E, H, J, K, and M Preferred Stock shall be entitled to
Earned Preferred Returns (the "Earned Preferred Returns"), upon the
occurrence of a Mandatory Conversion Event as set forth below:
(1) 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.
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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.
(2) Series H, J and K Earned Preferred Returns
The Fastcom Series 100, 200 and 300 Investors may be 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.
(i) Series H
The Earned Preferred Return on the Series H Preferred Stock
is measured as a 30% discount to the Fastcom Value in an
IPO. 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 shall be made where the Discounted Fastcom
Value in an IPO is less than $18,431,595 (the "Series H
Guaranteed Minimum 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
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.
(ii) Series J
The Earned Preferred Return on the Series J Preferred Stock
is measured as a 30% discount to the Fastcom Value. If the
Discounted Fastcom Value in an IPO is less than $19,894,940
(the "Series J Guaranteed Minimum Fastcom Value"), the
adjusted ownership interest of the Series J Preferred Stock
in an IPO is calculated as follows:
Series J Guaranteed Minimum Fastcom Value x .10832 x 100 = % Adjusted Ownership
----------------------------------------- Interest
Discounted Fastcom Value
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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.
(iii) 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 in any
Mandatory Conversion Event.
(3) Series M Earned Preferred Return
The Series M Preferred Stock is entitled, under the circumstances
described below, to receive an Earned Preferred Return upon the
occurrence of any Mandatory Conversion Event in an amount equal
to $750,000, plus 4.3% of Datalinc's aggregate share of the
Conversion Value of Thrucomm. Four and three tenths of a percent
of Datalinc's aggregate share of the Conversion Value of Thrucomm
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.
Except as set forth below, the MIP Units are entitled to an
Earned Preferred Return when the Conversion Value of Thrucomm is
$30 million or greater (the "MIP Minimum Conversion Value"). The
MIP Minimum Conversion Value is subject to an adjustment upwards,
if within 6 months from the date of the adoption of Fastcom's
Management Incentive 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.
2.5 THE FORMULA.
The number of Underlying Shares that will be distributed to Datalinc and
Fastcom upon the occurrence of a Mandatory Conversion Event shall be determined
pursuant to the following formula (the "Formula"): The Conversion Value, minus
the Datalinc Value, equals the Fastcom Value.
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(a) CONVERSION VALUE
If the Mandatory Conversion Event is an IPO, the Conversion Value is
equal to the value of Thrucomm (the "Thrucomm Value"), minus the gross
proceeds of the IPO (the "Gross Proceeds"). The Thrucomm Value shall
be equal to the Gross Proceeds multiplied by the fraction of the
number of authorized Common Shares sold in the IPO (the "Multiplier").
The total number of Common Shares of Thrucomm that may be sold in an
IPO shall not exceed forty percent (40%) of the total number of
authorized Common Shares of Thrucomm.
If Mandatory Conversion should occur as a result of a Sale, Merger, or
Investment, the Conversion Value shall be equal to the aggregate
consideration received or proposed to be received in that Sale or
Merger or the aggregate funds invested in an Investment. 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.
In any Mandatory Conversion Event, the Conversion Value shall not be
less than $20 million.
(b) THE DATALINC VALUE AND THE FASTCOM VALUE
The Datalinc Value and the Fastcom Value shall be equal to the portion
of the Conversion Value that is allocated to them in one of the
following manners:
(i) If the Conversion Value is $30 million, thirty percent (30%)
of the Conversion Value shall be allocated to Datalinc and
seventy percent (70%) to Fastcom;
(ii) If the Conversion Value of $60 million, twenty-five percent
(25%) of the Conversion Value shall be allocated to Datalinc and
seventy-five percent (75%) to Fastcom; and
(iii) If the Conversion Value is in excess of $60 million, twenty
percent (20%) of the Conversion Value shall be allocated to
Datalinc and eighty percent (80%) to Fastcom.
(iv) If the Conversion Value of Thrucomm is greater than $30
million, but less than $60 million, the Datalinc Value will be
determined by application of the following 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
-------------------------------------------
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(v) If the Conversion Value of Thrucomm is greater 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:
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Datalinc Value = $15,000,000 + Conversion Value of Thrucomm - $60,000,000
-------------------------------------------
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(vi) If the Conversion Value of Thrucomm is less than $30
million, the Datalinc Value shall be $9 million (the "Minimum
Datalinc Value").
The Fastcom Value shall always be equal to the Conversion Value
minus the Datalinc Value.
2.6 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 xxxxx or be discontinued by the
Reorganization, but may be enforced, prosecuted, settled or
compromised as if the Reorganization had not occurred.
(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.
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2.6 REGISTRATION STATEMENT
Datalinc and Thrucomm have prepared a joint Consent Statement/Prospectus
that is included in Thrucomm's Registration Statement No. 333-27161, as amended
and filed with the U. S. Securities & Exchange Commission (the "Consent
Statement/Prospectus"). The Consent Statement/Prospectus sets forth certain
matters described elsewhere in this Agreement and 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. 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.
Datalinc does not own any interest in any other corporation, business trust or
similar entity, except Thrucomm and Fastcom. The minute books of Datalinc
contains accurate records of all meetings of its Partners since its formation.
3.2 CAPITALIZATION.
All of the issued and outstanding Partnership Units of Datalinc are duly
authorized, validly issued and outstanding, fully paid and nonassessable, and
were not issued in violation of the preemptive rights of any person. To
Datalinc's knowledge, there are no subscriptions, options, warrants, rights or
calls or other commitments or agreements to which the holders of Datalinc
Partnership Units 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
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.
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3.4 PROPERTIES.
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; NO DEFAULT.
To the knowledge of Datalinc, all material 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 (individually, the "Datalinc Contract"
and collectively, 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.
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.
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.
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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, 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 which are 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.
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.
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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.
3.13 EMPLOYEES.
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.
Datalinc has provided Fastcom and Thrucomm with audited balance sheets as
of December 31, 1995 and 1996 and related statements of operations, statements
of cash flows and statements of partners' equity of Datalinc for the one-year
periods ended December 31, 1994, 1995 and 1996, and compiled balance sheets and
related statements of operations, statements of cash flows and statement of
partners' equity for the four-month period ended April 30, 1996 and 1997
(collectively, the "Financial Statements"). To its knowledge, 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.
3.15 ABSENCE OF CERTAIN CHANGES OR EVENTS CHANGES OR EVENTS.
To the knowledge of Datalinc, since April 30, 1997, 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;
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(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 right (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 (v) liabilities pursuant to
litigation; 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.
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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"). 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.
(B) Datalinc has previously made available to Thrucomm true and complete copies
of any and 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. 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
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(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 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) To the knowledge of Datalinc:
(1) Each Employee Plan and Compensation Arrangement currently and
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) is not required to make any contribution thereto.
(3) 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) There are no failures to provide continuation coverage, as defined in
Section 4980 B(l) of the Code, to any such qualified beneficiaries.
(5) There are no actions, suits or claims pending (other than routine
claims for benefits) 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
currently is the subject of any audit, investigation or examination by
any governmental or quasi-governmental agency, nor is any such audit,
investigation or examination is pending or threatened.
(6) 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.
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(7) With respect to each Employee Plan: (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 Datalinc in a manner satisfying the requirements of
SFAS 87 and 88; (iii) 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) 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) Datalinc has 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. 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) Datalinc has 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.
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.
Datalinc has provided Thrucomm with copies of the key man life insurance
policies on Xx. Xxxx X. Xxxxxxx and Xx. Xxxx X. Xxxxxxxx. Subsequent to the
consummation of the Reorganization, Datalinc shall use its best efforts to cause
the transfer of, and otherwise assign such key man life insurance policies for
the benefit of Thrucomm.
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 about
the transactions contemplated hereby, where such claim is based on the purported
employment or authorization of such broker or other person by Xxxxxxxx.
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3.20 BUSINESS LOCATIONS.
Datalinc does not own or lease, any real or personal property, in any
state, except as set forth in the Consent Statement/Prospectus. Datalinc has 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 Consent Statement/Prospectus.
3.21 INTELLECTUAL PROPERTY.
"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. All
of the patents, trademark registrations and copyrights 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 rights of any third
party.
3.23 CLIENTS AND SUPPLIERS.
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.
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
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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. 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. 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.
All of the Partnership Units of Fastcom are duly authorized, validly issued
and outstanding, fully paid and nonassessable, and were not issued in violation
of the preemptive rights of any person. To Fastcom's knowledge, there are no
subscriptions, options, warrants, rights or calls or other commitments or
agreements to which the holders of Fastcom's Partnership Units 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.
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 material property of which it is the lessee and each
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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; NO DEFAULT.
To the knowledge of Fastcom, all material 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 (individually, the "Fastcom Contract" and
collectively, 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.
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
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
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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, 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 which are 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.
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; (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
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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.
4.13 EMPLOYEES.
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.
Fastcom has provided Datalinc and Thrucomm with audited balance sheets as
of December 31, 1995 and 1996 and related statements of operations, statements
of cash flows and statements of partners' equity of Datalinc for the one-year
periods ended December 31, 1994, 1995 and 1996, and compiled balance sheets and
related statements of operations, statements of cash flows and statement of
partners' equity for the four-month period ended April 30, 1996 and 1997
(collectively, the "Financial Statements"). To its knowledge, 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"). 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.
To the knowledge of Fastcom, since April 30, 1997, 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;
(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
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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
litigation; or
(k) any agreement by Fastcom, whether written or oral, to do any of the
foregoing; and
(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"). 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.
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(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) Fastcom has previously made available to Thrucomm
true and complete copies of any and all (1) employment agreements and
collective bargaining agreements to which Fastcom is a party; (2)
Compensation Arrangements of Fastcom; (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 40(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
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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.
(C) To the knowledge of Fastcom:
(1) Each Employee Plan and Compensation Arrangement currently and
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) is not required to make any
contribution thereto.
(3) 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) There are no failures to provide continuation coverage, as
defined in Section 4980 B(l) of the Code, to any such qualified
beneficiaries.
(5) There are no actions, suits or claims pending (other than routine
) 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 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) 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: (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
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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) Fastcom 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 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) 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) Fastcom has 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. 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) Fastcom has 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.
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.
Fastcom has provided Thrucomm with copies of the key man life insurance
policies on Xx. Xxxx X. Xxxxxxx and Xx. Xxxx X. Xxxxxxxx. Subsequent to the
consummation of the Reorganization, Fastcom shall use its best efforts to cause
the transfer of, and otherwise assign such key man life insurance policies for
the benefit of Thrucomm. 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 Consent Statement/Prospectus. Fastcom has 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
Consent Statement/Prospectus.
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4.21 INTELLECTUAL PROPERTY.
"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. To its
knowledge, 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 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.
4.23 CLIENTS AND SUPPLIERS.
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 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.
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 rights 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 Preferred 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, rights and
preferences as may be determined from time to time by the Board of Directors of
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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 Preferred 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 nonassessable. Other
than as stated in this Section 5.4, there are no outstanding subscriptions,
options, warrants, calls or rights 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.
Datalinc and Fastcom have been provided with audited balance sheets of
Thrucomm 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 and
related statements of operations, statements of cash flows and statement of
stockholder' equity for the four-month period ended April 30, 1997
(collectively, the "Financial Statements"). To Thrucomm's knowledge, 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
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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; NO DEFAULT.
To the knowledge of Thrucomm, all material 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 (individually, the "Thrucomm Contract"
and collectively, 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. Subsequent to the consummation of the
Reorganization, Thrucomm shall use its best efforts to cause the transfer and
otherwise assign for the benefit of Thrucomm, 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, 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.
To Thrucomm's knowledge, there is no claim action, proceeding or
investigation pending or 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
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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 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.
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.
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.
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(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 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: (i) 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; (ii) 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; (iii) the books
and records of Datalinc; (iv) 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;
(v) 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 (vi) an opinion of Xxxxxxxx'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: (i) 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; (ii) a certificate, dated as of the Closing Date,
executed by the Fastcom General Partner, certifying the Certificate of
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Limited Partnership and Agreement of Limited Partnership of Fastcom
the 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; (iii) the books and records of
Fastcom; (iv) 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; (v) 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 (vi) 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: (i) 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; (ii) 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; (iii)
certificates representing the Preferred Stock issuable upon
consummation of the Reorganization; (iv) a written consent by any
lender whether bank consent is required as to the consummation of the
Reorganization; and (v) 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:
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 or any schedule, certificate or other instrument delivered
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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 Consent
Statement/Prospectus.
(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 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.
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(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
its Intellectual Property.
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 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 Consent
Statement/Prospectus.
(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.
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(h) Certain Consents.
Other than as set forth herein, Fastcom shall have received all
applicable consents 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
(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 its
Intellectual Property.
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 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.
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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.
X. 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, 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 right 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
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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).
XI. 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 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 right 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
XII. 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.
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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.
XIII. 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, 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 NON-DISCLOSURE.
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
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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 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:
0000 Xxxxxxxx Xxxxxx, Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Chairman of the Board
Integrated Communication Networks, Inc.,
General Partner
If to Fastcom:
0000 Xxxxxxxx Xxxxxx, Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Chairman of the Board
Fastcom Management, Inc.,
General Partner
If to Thrucomm:
0000 Xxxxxxxx Xxxxxx, Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, President
Any such notice, when sent in accordance with this section 12.5, shall 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.
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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 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 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.
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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: /s/ Xxxx X. Xxxxxxx
------------------------------
Xxxx X. Xxxxxxx
Chairman of the Board
FASTCOM, LTD.,
a Florida limited partnership
By: Fastcom Management, Inc.,
a Florida corporation
General Partner
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
Chairman of the Board
THRUCOMM, INC.
a Florida corporation
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Xxxx X. Xxxxxxx
Chairman of the Board
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