EXHIBIT 10.1.1
AMENDMENT TO PURCHASE AGREEMENT
BY AND AMONG BLUE CHIP/DATALINC CORPORATION, ICN,
XXXX XXXXXXX, XXXX XXXXXXXX AND DATALINC, LTD.
dated September 1, 1993
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AMENDMENT TO PURCHASE AGREEMENT
THIS AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made and entered
into as of this lst day of September, 1993 by and among BLUE CHIP/DATALINC
CORPORATION, an Ohio corporation (the "Purchaser"), INTEGRATED COMMUNICATION
NETWORKS, INC., a Florida corporation ("ICN"), XXXX X. XXXXXXX, an individual
("Xxxxxxx"), XXXX X. XXXXXXXX, an individual ("Gianinni," and together with
Xxxxxxx, the "Shareholders"), and DATALINC, LTD., a Florida limited partnership
(the "Partnership"), under the following circumstances:
WHEREAS, pursuant to a Purchase Agreement dated as of April 30, 1993 among
the Purchaser, the Partnership, ICN and the Shareholders (the "Agreement"), the
Purchaser purchased from the Partnership one hundred eighty (180) of the
Partnership's Series 300 Limited Partnership Units (the "First Purchaser
Units"); and
WHEREAS, pursuant to a Purchase Agreement of even date herewith among the
Purchaser, the Partnership, ICN and the Shareholders (the "Additional
Agreement"), the Purchaser is purchasing from the Partnership an additional two
hundred (200) of the Partnership's Series 300 Limited Partnership Units (the
"Additional Purchaser Units"); and
WHEREAS, it is a condition to the entering into of the Additional Agreement
that the parties shall have entered into this Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby agree as follows:
1. Escrow agent and escrow agreement. The "Escrow Agent" under the
Agreement shall be Star Bank, National Association, and Exhibit A to the
Agreement is hereby deleted and replaced with Exhibit A attached hereto, which
hereupon shall be deemed Exhibit A to the Agreement.
2. Purchaser units. The term "Purchaser Units" as used in Paragraphs 2(b),
2(d), 2(e), 5(a), 5(b), 5(c), 5(e), 7(a), 7(b) and 7(d) of the Agreement shall
hereupon be deemed to refer to the First Purchaser Units and the Additional
Purchaser Units.
3. Rate of return. The phrases "Rate of Return on its investment in all of
the Purchaser Units" and "Rate of Return on its investment in all of the
Partnership Units" as used in Paragraph 2(d) of the Agreement shall be deemed to
refer to the Rate of Return on the Purchaser's investment in all of the First
Purchaser Units and the Rate of Return on the Purchaser's investment in all of
the Additional Purchaser Units. "Rate of Return" for purposes of the Agreement
shall be calculated in the case of each Purchaser Unit from the date of purchase
thereof to the date of transfer thereof, whether to ICN as provided in the
Agreement or to any other transferee thereof.
4. Cessation of Escrow Deposits. Paragraph 2(h) of the Agreement is hereby
deleted in its entirety and replaced with the following, which hereupon shall be
deemed Paragraph 2(h) of the Agreement:
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(h) Cessation of Escrow Deposits. The Partnership may cease making
deposits into the Escrow Account at such time, if any, as (i) on or prior
to December 31, 1994, the sum of the balance of the Escrow Account plus the
amount of the Receipts is equal to or greater than Five Million Dollars
($5,000,000), (ii) on or prior to December 31, 1995, the sum of the balance
of the Escrow Account plus the amount of the Receipts is equal to or
greater than Five Million Two Hundred Thousand Dollars ($5,200,000), or
(iii) on or prior to December 31, 1996, the sum of the balance of the
Escrow Account plus the amount of the Receipts is equal to or greater than
Five Million Four Hundred Thousand Dollars ($5,400,000).
5. Transfer of Units. The following paragraph is hereby added to the
Agreement as Paragraph 2(i) thereof:
(i) Transfer of Units. When any Purchaser Units are required to be
transferred by the Purchaser to ICN pursuant to this Paragraph 2, the
Purchaser shall have the option of transferring either First Purchaser
Units or Additional Purchaser Units, or any combination thereof.
6. Timing of Election of ICN Board. Paragraph 3(a) of the Agreement is
hereby amended to provide that the five (5) person Board of Directors of ICN
required thereunder shall have been elected prior to the execution of the
Additional Agreement rather than within the time periods provided in the second
sentence of Paragraph 3(a) of the Agreement, and to that end the second sentence
of Paragraph 3(a) of the Agreement is hereby deleted in its entirety.
7. Expansion of ICN Board. The following paragraph is hereby added to the
Agreement as Paragraph 3(b) thereof:
(b) Expansion of Board. In the event that the Board of Directors of
ICN is increased to more than five (5) persons, at least one of such
additional Directors shall be an individual nominated by the Purchaser.
In connection therewith, subparagraph 11(b)" of Paragraph 3 of the
Agreement entitled "Further Assurances" is hereby re-lettered to become
subparagraph 11(c)", the references therein to "Paragraph 3(a)" shall be deemed
references to "Paragraph 311, and clause (iv) therein is hereby deleted in its
entirety and replaced with the following, which hereupon shall be deemed clause
(iv) therein:
(iv) amend the Articles of Incorporation of ICN to provide for the
election of the Board of Directors of ICN as required under Paragraphs 3(a)
and 3(b) above.
8. Compliance With Partnership Agreement. The phrase "to ICN or either of
the Shareholders" contained in Paragraph 5(e) of the Agreement is hereby deleted
and replaced with the phrase "to a Third Party".
9. Transfer of Units to Third Parties. The following paragraph is hereby
added to the Agreement as Paragraph 5(f) thereof:(f) Transfer of Units to Third
Parties. When any Purchaser Units are to be transferred by the Purchaser to a
Third Party pursuant to this Paragraph 5, the Purchaser shall have the option of
transferring either First Purchaser Units or Additional Purchaser Units, or any
combination thereof.
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10. Insurance. Without limitation on the generality of anything contained
in Paragraph 6 of the Agreement, prior to the execution of the Additional
Agreement, the Shareholders shall cause the Board of Directors of ICN to adopt a
resolution, as general partner of the Partnership, to the effect that the
Partnership shall not, without the prior written consent of the Purchaser, cause
or permit such policies to be cancelled or revoked, the amount of such policies
to be reduced, or the beneficiaries of such policies to be any person or entity
other than the Partnership.
11. Related Activity. The term "Related Business" as used in Paragraphs
8(b)(ii)(A) and 8(b)(ii)(B)of the Agreement is hereby deleted and replaced with
the term "Related Activity".
12. "With Cause" Defined. Paragraph 8(d) of the Agreement is hereby deleted
in its entirety and replaced with the following, which hereupon shall be deemed
Paragraph 8(d) of the Agreement:
(d) "With Cause" Defined. If the Partnership or ICN shall have
terminated the employment of either of the Shareholders by reason of such
Shareholder at any time materially neglecting or refusing to perform the
duties of his employment, failing to devote his full employment time, in
the case of Gianinni, and approximately seventy-five percent (75%) of his
employment time, in the case of Xxxxxxx, and best efforts to the business
of the Partnership or ICN, as the case may be, being guilty of misconduct
in connection with the business of the Partnership or ICN, as the case may
be, or becoming physically or mentally incapable of reasonably performing
the duties of his employment for a continuous period of ninety (90) days,
then such termination shall be deemed "with cause."
13. Remedies. The first sentence of Paragraph 12(i) of the Agreement is
hereby amended to include Paragraph 3(b) among the Paragraphs listed therein.
14. Full Force and Effect. The Agreement shall remain in full force and
effect as amended hereby.
15. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first above written.
BLUE CHIP/DATALINC CORPORATION
s/s Z. Del Xxxxxxxxx
By: _____________________________
Title: President
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INTEGRATED COMMUNICATION NETWORKS, INC.
s/s Xxxx Xxxxxxxx
By: ______________________________
Title: President
s/s Xxxx X. Xxxxxxx
_______________________________
XXXX X. XXXXXXX
s/s Xxxx X. Xxxxxxxx
________________________________
XXXX X. XXXXXXXX
DATALINC, LTD.
By: Integrated Communication Networks, Inc., its General Partner
s/s Xxxx X. Xxxxxxx
By: _______________________
Title: Chairman
Amend(2).Pur
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EXHIBIT A
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as of
this ist day of September, 1993, by and among BLUE CHIP/DATALINC CORPORATION, an
Ohio corporation whose address is 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000
(the "Purchaser"), INTEGRATED COMMUNICATION NETWORKS, INC., a Florida
corporation whose address is 0000 Xxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx
00000 ("ICNII), DATALINC, LTD., a Florida limited partnership whose address is
0000 Xxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 (the "Partnership"),
XXXX X. XXXXXXX, an individual with a mailing address at 0000 Xxxxxxxx Xxxxxx
Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 ("Kolendall), XXXX X. XXXXXXXX, an
individual with a mailing address at 0000 Xxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx,
Xxxxxxx 00000 ("Gianinni," and together with Xxxxxxx, the "Shareholders"), and
STAR BANK, NATIONAL ASSOCIATION, a national banking association whose address is
000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (the "Escrow Agent"), under the
following circumstances:
WHEREAS, the Partnership has agreed to sell certain of its limited
partnership units to the Purchaser pursuant to and subject to the terms and
conditions set forth in the Purchage Agreement dated as of April 30, 1993 among
the Purchaser, the Partnership, ICN and the Shareholders (the "First Purchase
Agreement") and the Subscription Agreement dated as of April 30, 1993 between
the Purchaser and the Partnership (the "First Subscription Agreement"); and
WHEREAS, the Partnership has agreed to sell certain additional limited
partnership units to the Purchaser pursuant to and subject to the terms and
conditions set forth in the Purchase Agreement dated as of September 1, 1993
among the Purchaser, the Partnership, ICN and the Shareholders (the "Additional
Purchase Agreement," and together with the First Purchase Agreement, the
"Purchase Agreements") and the Subscription Agreement dated as of September 1,
1993 between the Purchaser and the Partnership (the "Additional Subscription
Agreement," and together with the First Subscription Agreement, the
"Subscription Agreements"); and
WHEREAS, pursuant to Paragraph 2 of each of the Purchase Agreements,
certain funds are required to be deposited into an escrow account; and
WHEREAS, the Purchaser, ICN, the Partnership and the Shareholders desire to
enter into this Agreement with the Escrow Agent in order to establish the escrow
account required under Paragraph 2 of each of the Purchase Agreements.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged by the parties hereto, the parties hereby
agree as follows:
1. Deposits With Escrow Agent. Immediately upon receipt thereof, the
Partnership shall deposit with the Escrow Agent all Distributions (as defined in
the Partnership's Amended Agreement of Limited Partnership dated as of January
1, 1993) which ICN would otherwise be entitled to receive from the Partnership,
less the amount estimated by the Shareholders to be necessary to be paid in
dividends to the Shareholders in order to meet the Shareholders' income tax
liabilities with respect to earnings of ICN being attributed to the Shareholders
as a result of ICN's election to be treated as a Subchapter S Corporation
including without limitation interest on funds deposited with the Escrow Agent
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(the "Tax Amount") for the year during which the applicable deposit is being
made, and ICN shall deposit with the Escrow Agent all amounts which it is
entitled to receive from the sale of any portion of its interest in the
Partnership.
2. Escrow Account. The Escrow Agent shall hold all funds deposited with it
pursuant to this Agreement (the "Escrowed Funds") in an interest-bearing account
(the "Escrow Account"). All interest accumulated thereon shall be added to the
Escrowed Funds and be deemed Escrowed Funds for purposes of this Agreement. Any
and all income or other tax liabilities with respect to the Escrow Account shall
be the responsibility of ICN, and the Purchaser shall have no responsibility or
liability. therefor.
3. Certain Conditions. Within thirty (30) days after the earliest to occur
of (I) December 31, 1996, (II) the date on which all of the Units of the
Partnership have been sold pursuant to a sale of the business of the
Partnership, or (III) the date on which the Partnership's assets have been
liquidated (the "Target Date"), the Purchaser shall provide to the Escrow Agent,
ICN and the Partnership a certification as to whether or not any of the
following conditions have been satisfied on or prior to the Target Date:
(i) The Purchaser has received cash Distributions from the Partnership
with respect to the Series 300 Limited Partnership Units of the Partnership
which the Purchaser has purchased pursuant to the First Purchase Agreement
and the First Subscription Agreement (the "First Purchaser Units"), cash
Distributions from the Partnership with respect to the Series 300 Limited
Partnership Units of the Partnership which the Purchaser has purchased
pursuant to the Additional Purchase Agreement and the Additional
Subscription Agreement (the "Additional Purchaser Units," and together with
the First Purchaser Units, the "Purchaser Units"), and/or cash proceeds
from the sale of Purchaser Units in an amount equal to at least three (3)
times the amount of cash paid by the Purchaser for the Purchaser Units (the
"Purchaser's Investment");
(ii) Either all or substantially all of the Partnership's assets or
all Units in the Partnership have beensold and the Purchaser has received
in exchange for the Purchaser Units (net of any Partnership liabilities
retained by the Purchaser and any reasonable costs of sale incurred by the
Purchaser) either (A) cash in an amount equal to at least three (3) times
the amount of the Purchaser's Investment or (B) securities for which there
is a liquid market, and which may be freely sold by the Purchaser without
restriction on the amount or manner of sale under applicable securities
laws or agreement, with a market value as determined in good faith, and
assuming sale within a period of not more than four (4) weeks, by the
majority vote of the Board of Directors of ICN (excluding the vote of the
Director nominated by the Purchaser) equal to at least three (3) times the
amount of the Purchaser's Investment; or
(iii) The Purchaser has received cash Distributions from the
Partnership with respect to the Purchaser Units and/or net cash proceeds
from the sale of Purchaser Units in an amount equal to at least two (2)
times the amount of the Purchaser's Investment and either (A) the
Partnership (or any successor thereto) has completed a public offering of
its equity securities and the total market value of the equity securities
of the Partnership (or such successor) owned by the Purchaser as of the
Target Date, and which may be freely sold by the Purchaser without
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restriction on the amount or manner of sale under applicable securities
laws or agreement, as determined in good faith by the Purchaser, is at
least equal to the amount of the Purchaser's Investment or (B) the
Purchaser Units then owned by the Purchaser are, in the Purchaser's sole
opinion exercised in a reasonable manner, readily salable (subject to
compliance with applicable securities laws) in a transaction in which the
net proceeds of such sale would equal at least the amount of the
Purchaser's Investment.
4. Satisfaction of Conditions. In the event that the Purchaser has
certified to the Escrow Agent that a condition set forth in Paragraph 3 above
has been satisfied on or prior to the Target Date, the Escrow Agent shall
release all of the Escrowed Funds to ICN, and the Escrow Account shall be
closed.
5. Failure to Satisfy Conditions. In the event that the Purchaser has
certified to the Escrow Agent that none of the conditions set forth in Paragraph
3 above have been satisfied on or prior to the Target Date, the Escrow Agent
shall, as soon as possible after receipt of the Purchaser's certification,
notify the Purchaser, ICN and the Partnership of the balance of the Escrow
Account as of the Target Date (the "Target Date Balance Notice"), and:
(a) Target Date Escrowed Funds Sufficient to Provide Rate of Return.
In the event that the Escrowed Funds as reflected in the Target Date
Balance Notice are in an amount sufficient, when added to the amount of
cash Distributions received by the Purchaser with respect to the Purchaser
Units and the amount of net cash proceeds received by the Purchaser from
the sale of Purchaser Units (the "Receipts"), to provide the Purchaser with
a weighted average thirty-five percent (35%) per annum internal rate of
return as calculated by the Purchaser (the "Rate of Return") on its
investment in all of the First Purchaser Units and the Rate of Return on
its investment in all of the Additional Purchaser Units ("Rate of Return"
for purposes of this Agreement shall be calculated in the case of each
Purchaser Unit from the date of purchase thereof to the date of transfer
thereof, whether to ICN as hereinafter provided or to any other transferee
thereof), the Purchaser, at its option, may certify to the Escrow Agent,
the Partnership and ICN the amount which is sufficient, when added to the
Receipts, to provide the Purchaser with the Rate of Return on its
investment in all of the First Purchaser Units and the Rate of Return on
its investment in all of the Additional Purchaser Units, and direct the
Escrow Agent to release such amount to the Purchaser from the Escrowed
Funds. Upon receipt from the Purchaser of such certification and direction,
the Escrow Agent shall release such amount of the Escrowed Funds to the
Purchaser and release all remaining Escrowed Funds, if any, to ICN, and the
Escrow Account shall be closed; provided, however, that if the Purchaser
does not provide such certification and direction to the Escrow Agent
within thirty (30) days after receipt of the Target Date Balance Notice,
then the Escrow Agent shall release all Escrowed Funds to ICN, and the
Escrow Account shall be closed.
(b) Target Date Escrowed Funds Insufficient to Provide Rate of Return.
In the event that the Escrowed Funds as reflected in the Target Date
Balance Notice are not in an amount sufficient, when added to the Receipts,
to provide the Purchaser with the Rate of Return on its investment in all
of the First Purchaser Units and the Rate of Return on its investment in
all of the Additional Purchaser Units, if the Target Date resulted from the
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sale of all of the Units in the Partnership pursuant to a sale of the
business of the Partnership or liquidation of the Partnership's assets,
then the Purchaser shall direct the Escrow Agent to release all of the
Escrowed Funds to the Purchaser. Upon receipt of such direction from the
Purchaser, the Escrow Agent shall release all of the Escrowed Funds to the
Purchaser, and the Escrow Account shall be closed. If the Target Date did
not result from either of those events, the Purchaser shall determine the
number of Purchaser Units, considered in the order of purchase, with
respect to which there are Escrowed Funds sufficient in amount, when added
to the Receipts, to provide the Purchaser with the Rate of Return (the
"Original Number"). If the original Number is less than ten (10), the
Escrowed Funds shall remain in the Escrow Account. If the Original Number
is ten (10) or more, the Purchaser shall so certify to the Escrow Agent,
ICN and the Partnership and the Purchaser, at its option, may certify to
the Escrow Agent, the Partnership and ICN the amount of the Escrowed Funds
which are sufficient, when added to the Receipts, to provide the Purchaser
with the Rate of Return on the number of Purchaser Units, considered in the
order of purchase, which is a multiple of ten (10) and is closest to, but
not greater than, the original Number (the "Original Satisfied Units") and
direct the Escrow Agent to release such amount to the Purchaser. Upon
receipt of such certification and direction from the Purchaser, the Escrow
Agent shall release such amount of the Escrowed Funds to the Purchaser, and
any Escrowed Funds then remaining in the Escrow Account shall continue to
be held in the Escrow Account; provided, however, that if the Original
Number is ten (10) or more and the Purchaser does not provide such
certification and direction to the Escrow Agent within thirty (30) days
after receipt of the Target Date Balance Notice, then the Escrow Agent
shall release all of the Escrowed Funds to ICN, and the Escrow Account
shall be closed.
(c) Continuance of Escrow. Unless the Escrow Account has been closed
as described in Paragraphs 5(a) and (b) above, the Partnership shall
continue to deposit with the Escrow Agent all Distributions which ICN would
otherwise be entitled to receive from the Partnership, less the Tax Amount
as estimated by the Shareholders for the year during which the applicable
deposit is being made, and ICN shall continue to deposit with the Escrow
Agent any amounts which it is entitled to receive from the sale of any
portion of its interest in the Partnership, until such time as the
Purchaser has received the Rate of Return on its investment in all of the
First Purchaser Units and the Rate of Return on its investment in all of
the Additional Purchaser Units or the Escrow Account has been closed in
accordance with this Paragraph 5(c), whichever first occurs. As soon as
possible after the end of each month after the Target Date, the Escrow
Agent shall notify the Purchaser, the Partnership and ICN of the balance of
the Escrow Account as of the end of such month (the "Monthly Balance
Notice"), and after receipt of each Monthly Balance Notice, the Purchaser
shall determine the number of Purchaser Units, considered in the order of
purchase, with respect to which there are Escrowed Funds sufficient in
amount, when added to the Receipts, to provide the Purchaser with the Rate
of Return (the "Monthly Number"). Each month until such time as the
Purchaser owns less than ten (10) Purchaser Units, if the Monthly Number is
less than ten (10), the Escrowed Funds shall remain in the Escrow Account.
If the Monthly Number is ten (10) or more, the Purchaser shall so certify
to the Escrow Agent, ICN and the Partnership, and the Purchaser, at its
option, may certify to the Escrow Agent, ICN and the Partnership, the
amount of the Escrowed Funds which is sufficient, when added to the
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Receipts, to provide the Purchaser with the Rate of Return on the number of
Purchaser Units, considered in the order of purchase, which is a multiple
of ten (10) and is closest to, but not greater than, the Monthly Number
(the "Monthly Satisfied Units") and direct the Escrow Agent to release such
amount to the Purchaser. Upon receipt of such certification and direction
from the Purchaser, the Escrow Agent shall release such amount of the
Escrowed Funds to the Purchaser, and any Escrowed Funds then remaining in
the Escrow Account shall continue to be held in the Escrow Account;
provided, however, that if any Monthly Number is ten (10) or more and the
Purchaser does not provide such certification and direction to the Escrow
Agent within thirty (30) days after receipt of the Monthly Balance Notice
applicable thereto, then the Escrow Agent shall release all of the Escrowed
Funds to ICN, and the Escrow Account shall be closed. Each month after the
Purchaser owns less than ten (10) Purchaser Units, if the Monthly Number is
less than one (1), the Escrowed Funds shall remain in the Escrow Account.
If the Monthly Number is one (1) or more, the Purchaser shall so certify to
the Escrow Agent, ICN and the Partnership, and the Purchaser, at its
option, may certify to the Escrow Agent, ICN and the Partnership, the
amount of the Escrowed Funds which is sufficient, when added to the
Receipts, to provide the Purchaser with the Rate of Return on the number of
Purchaser Units, considered in the order of purchase, which is the largest
whole number that is not greater than the Monthly Number (the "Additional
Monthly Satisfied Units") and direct the Escrow Agent to release such
amount to the Purchaser. Upon receipt of such certification and direction
from the Purchaser, the Escrow Agent shall release such amount of the
Escrowed Funds to the Purchaser, and any Escrowed Funds then remaining in
the Escrow Account shall continue to be held in the Escrow Account;
provided, however, that if any Monthly Number is one (1) or more and the
Purchaser does not provide such certification and direction to the Escrow
Agent within thirty (30) days after receipt of the Monthly Notice
applicable thereto, then the Escrow Agent shall release all Escrowed Funds
to ICN, and the Escrow Account shall be closed.
(d) Rate of Return Provided. The Purchaser shall notify the Escrow
Agent at such time as the Purchaser has been provided with the Rate of
Return on its investment in all of the First Purchaser Units and the Rate
of Return on its investment in all of the Additional Purchaser Units, and
upon receipt of such notification the Escrow Agent shall release any
amounts remaining in the Escrow Account to ICN, and shall close the Escrow
Account.
(e) Notification of Deposits. Simultaneously with the making of each
deposit into the Escrow Account pursuant to Paragraphs 1 or 5(c) above, the
Partnership or ICN, as the case may be, shall notify the Purchaser in
writing of the amount thereof, and shall also notify the Purchaser in
writing of the estimated Tax Amount subtracted from the amount of the
applicable Distribution prior to making each such deposit.
(f) Tax Amount Adjustments. On or prior to April 15 of each year, (i)
if the actual Tax Amount for the preceding year is less than the estimated
Tax Amount subtracted from the amount of the applicable Distributions
pursuant to Paragraphs 1 and/or 5(c) above during the preceding year, ICN
and the Shareholders shall certify to the Purchaser the amount of such
difference (and attach to such certification a copy of ICN's Form 1120S and
Schedule K thereto for such year) and shall deposit the amount of such
difference into the Escrow Account, and (ii) if the actual Tax Amount for
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the preceding year is greater than the estimated Tax Amount subtracted from
the amount of the applicable Distributions pursuant to Paragraphs 1 and/or
5(c) above during the preceding year, ICN and the Shareholders may certify
to the Purchaser and the Escrow Agent the amount of such difference (and
attach to such certification to the Purchaser a copy of ICN's Form 1120S
and Schedule K thereto for such year) and direct the Escrow Agent to
release to ICN the amount of such difference. Upon receipt of such
certification and direction from ICN and the Shareholders, the Escrow Agent
shall release such amount to ICN.
(g) Cessation of Escrow Deposits. The Partnership may cease making
deposits into the Escrow Account at such time, if any, as (i) on or prior
to December 31, 1994, the sum of the balance of the Escrow Account plus the
amount of the Receipts is equal to or greater than Five Million Dollars
($5,000,000), (ii) on or prior to December 31, 1995, the sum of the balance
of the Escrow Account plus the amount of the Receipts is equal to or
greater than Five Million Two Hundred Thousand Dollars ($5,200,000), or
(iii) on or prior to December 31, 1996, the sum of the balance of the
Escrow Account plus the amount of the Receipts is equal to or greater than
Five Million Four Hundred Thousand Dollars ($5,400,000).
6. Escrow Agent.
(a) The Escrow Agent agrees to act as escrow agent hereunder and to
hold, safeguard and disburse the Escrow Funds in accordance with the terms
hereof, but the Escrow Agent does not undertake hereby to perform any
duties which are not expressly set forth herein.
(b) The Escrow Agent may rely and shall be protected in acting upon
any written notice, certification or direction furnished to it in
accordance with this Agreement and reasonably believed by it to be genuine
and to have been signed or presented by the proper party.
(c) The Escrow Agent shall not be liable for any action taken by it in
good faith and reasonably believed by it to be authorized or within the
rights or powers conferred upon it by this Agreement, and may consult with
counsel of its own choice and shall be protected with respect to any action
taken or suffered by it hereunder in good faith and in accordance with the
opinion of such counsel.
(d) The Escrow Agent may resign and be discharged from its duties or
obligations hereunder by giving notice in writing of such resignation
specifying a date not less than thirty (30) days from the date of such
notice upon which such resignation shall take effect, whereupon a successor
Escrow Agent shall be appointed by the Purchaser.
(e) In the event of a dispute among the parties as to the proper
disposition of the Escrowed Funds, the Escrow Agent, at its option, shall
have the right to do either or both of the following: (i) decline to
release any of the Escrowed Funds until it is satisfied, in its discretion,
that such dispute has been resolved or (ii) deliver the Escrowed Funds into
the Court of Common Pleas for Xxxxxxxx County, Ohio or the Federal District
Court located in Xxxxxxxx County, Ohio and thereupon be relieved of further
responsibility with respect to the Escrowed Funds.
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(f) The Escrow Agent shall be entitled to a fee in the amount of Two
Hundred Fifty Dollars ($250.00) per year and Fifty Dollars ($50.00) per
release by the Escrow Agent of Funds from the Escrow Account as
compensation for the services to be rendered by it hereunder and shall also
be entitled to reimbursement for all losses, liabilities or expenses,
including reasonable attorneys' fees, incurred by it without gross
negligence or bad faith on its part, arising out of or in connection with
its entering into this Agreement or carrying out its duties hereunder. Any
such compensation and reimbursement to which the Escrow Agent is entitled
shall be the responsibility of ICN, and the Purchaser shall have no
responsibility or liability therefor.
(g) This Agreement expressly sets forth all of the duties of the
Escrow Agent with respect to any and all matters pertinent hereto. The
Escrow Agent shall not be bound by the provisions of any agreement among
the parties hereto except this Agreement.
7. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio.
(c) This Agreement cannot be modified or amended except by a writing
signed by all of the parties hereto.
(d) All notices and other communications under this Agreement shall be
in writing and shall be deemed to have been given on the date of personal
delivery, or of deposit in the United States mail, postage prepaid, by
registered or certified mail, return receipt requested, or of delivery to a
nationally recognized overnight courier service with arrangements made by
the sender for payment thereof, addressed to the parties at the following
addresses or such other address as any party has notified the others as
provided herein:
In case of the Purchaser:
Blue Chip/Datalinc Corporation
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Z. Xxxxx Xxxxxxxxx
with a copy to:
Blue Chip Capital Fund
Limited Partnership
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Z. Xxxxx Xxxxxxxxx
In case of ICN:
Integrated Communication Networks, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
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In case of the Partnership:
Datalinc, Ltd.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
In case of Xxxxxxx:
Xxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
In case of Gianinni:
Xxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
In case of the Escrow Agent:
Star Bank, National Association
Mail Location 5125
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxx
(e) This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(f) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
(g) The headings of paragraphs and subparagraphs of this
Agreement are included for convenience of reference only and shall not
be considered in construing any provisions contained therein.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
BLUE CHIP/DATALINC CORPORATION
By:_____________________________
Title:
INTEGRATED COMMUNICATIONS NETWORKS, INC.
By:_____________________________
Title:
DATALINC, LTD.
By: Integrated Communications Networks, Inc.
By: ____________________________
Title:
STAR BANK, NATIONAL ASSOCIATION
By: ____________________________
Title:
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