ASSET PURCHASE AGREEMENT
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Asset Purchase Agreement, dated as of December__, 2001 (the "Agreement"),
between ICOA, Inc., a Nevada corporation having an address at 000 Xxxxxxx Xxxx,
Xxxxxxx, Xxxxx Xxxxxx 00000 (the "Purchaser"), and Go Online Networks
Corporation, a Delaware corporation having an address at 0000 Xxxxx Xxxxxxxxx,
Xxxxx Xxxx, Xxxxxxxxxx 00000 (the "Seller").
RECITALS:
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The Purchaser desires to acquire from the Seller, and the Seller desires to
sell and transfer to the Purchaser, the assets described in Exhibit A annexed
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hereto (the "Purchased Assets").
To accomplish such purposes and in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
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SALE AND PURCHASE OF ASSETS
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1.1. Sale and Purchase of Assets. Upon the terms and subject to the
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conditions of this Agreement, the Seller hereby sells, assigns, conveys,
transfers and delivers on the date hereof to the Purchaser, all of Seller's
right, title and interest in and to the Purchased Assets, in consideration of
the payment by the Purchaser of the Purchase Price.
1.2. Purchase Price. The full and complete purchase price (the
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"Purchase Price") for the Purchased Assets shall consist of a five-year warrant,
in the form of Exhibit B annexed hereto (the "Warrant"), exercisable in whole or
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in part at any time after December __, 2002 (the "Exercise Date"), to acquire
such number of shares (the "Warrant Shares") of common stock, par value $.0001
per share, of the Purchaser ("Common Stock"), at an aggregate purchase price of
One Dollar ($1.00), that represent, in the aggregate, a total value of One
Hundred Thousand Dollars ($100,000), determined as of the Exercise Date, as
follows: The number of Warrant Shares shall be equal One Hundred Thousand
Dollars ($100,000) divided by seventy five percent (75%) of the average bid
price per share of Common Stock for the three (3) trading days immediately
preceding the Exercise Date. The number of Warrant Shares issuable upon Warrant
exercise shall be subject to adjustment to reflect stock splits, combinations,
reclassifications and other capital changes. The Seller acknowledges that such
number of Warrant Shares as may be issued upon Warrant exercise have not yet
been authorized for issuance by the Purchaser, but that the Purchaser will take
appropriate actions to authorize such issuance prior to the Exercise Date.
1.3. Expenses. The Seller and the Purchaser shall pay their own
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expenses (including, without limitation, attorneys' and accountants' fees and
disbursements) incident to this Agreement and the transactions contemplated
hereby.
1.4. Restrictive Legend. Neither the Warrant nor the Warrant Shares
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have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities laws. The Seller acknowledges and
agrees that, until such time as the Warrant and Warrant Shares shall have been
registered under the Securities Act or the Seller demonstrates to the reasonable
satisfaction of the Purchaser and its counsel that such registration shall no
longer be required, such securities may be subject to a stop-transfer order
placed against the transfer of such securities, and any certificates
representing the Warrant and the Warrant Shares shall bear a restrictive legend
in substantially the following form:
THESE SECURITIES (INCLUDING ANY UNDERLYING SECURITIES) HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN
OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION SHALL NO LONGER BE REQUIRED.
1.5 Certain Transactions to be Effected at Closing. The following
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steps are being taken concurrently on the date hereof.
1.5.1. The Seller is delivering or causing to be delivered, to the
Purchaser the following:
(a) All bills of sale, assignments and instruments of
transfer as shall be necessary or desirable by the Purchaser in order to assign
and transfer, or to evidence the assignment and transfer of, the Purchased
Assets to the Purchaser; and
(b) Such other documents as shall reasonably be requested by
the Purchaser in order effectively to carry out the transactions contemplated by
this Agreement, duly executed by the Seller where appropriate.
1.5.2. The Purchaser is delivering, or causing to be delivered, to
the Seller the following:
(a) The Warrant; and
(b) Such other documents as shall reasonably be requested by the Seller
in order effectively to carry out the transactions contemplated by this
Agreement, duly executed by the Purchaser where appropriate.
ARTICLE II
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REPRESENTATIONS AND WARRANTIES OF THE SELLER
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The Seller represents and warrants to the Purchaser as follows:
2.1. Due Organization and Authority. The Seller is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
its incorporation, and has full power and authority to own, lease and operate
its properties and assets, to carry on its business as now conducted and as
presently proposed to be conducted, and to execute, deliver and perform its
obligations under this Agreement (including, without limitation, to transfer the
Purchased Assets hereunder).
2.2. Agreement Authorized; Binding and Enforceable. The execution,
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delivery and performance by the Seller of this Agreement have been duly
authorized by all required action on the part of the Seller. This Agreement is
the valid, legal and binding obligation of the Seller, enforceable against it in
accordance with its terms.
2.3. Title to Purchased Assets. The Seller has good and marketable
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title to the Purchased Assets, free and clear of any and all Liens (hereinafter
defined) and the sale, transfer, assignment and delivery of the Purchased Assets
under this Agreement shall transfer to the Purchaser good and marketable title
to the Purchased Assets, free and clear of all liens, mortgages, pledges,
conditional sale agreements, security interests, restrictions, claims, options,
encumbrances or rights of third parties of every kind and nature (collectively,
"Liens").
2.4 AS IS/WHERE IS. Except as otherwise set forth herein, the
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Purchased Assets are being sold "as is" and "where is".
2.5 Securities Law Matters. In connection with its acquisition of the
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Warrant and the Warrant Shares (collectively, the "Securities"), the Seller
represents to the Purchaser that:
(a) The Seller is (i) experienced in making investments of the kind
described in this Agreement, (ii) able, by reason of the business and financial
experience of its management, to protect its own interests in connection with
the transactions described in this Agreement, (iii) able to afford the entire
loss of its investment in the Securities and (iv) an Accredited Investor, as
defined in Rule 501 of the Securities Act.
(b) The Seller understands that the Securities are being offered and sold to
it in reliance upon exemptions from the registration requirements of the
United States federal securities laws, and that the Purchaser is relying upon
the truth and accuracy of the Seller's representations and warranties, as set
forth herein, in order to determine the availability of such exemptions and the
eligibility of the Seller to acquire the Securities.
(c) The Seller: (i) has been provided with sufficient information with
respect to the business of the Purchaser and such documents relating to the
Purchaser as the Seller has requested and Seller has carefully reviewed the
same, including, without limitation, the Purchaser's public filings with the
Securities and Exchange Commission, (ii) has been provided with such additional
information with respect to the Purchaser and its business and financial
condition as the Seller, or the Seller's agent or attorney, has requested, and
(iii) has had access to management of the Purchaser and the opportunity to
discuss the information provided by management of the Purchaser and any
questions that the Seller has had with respect thereto have been answered to the
full satisfaction of the Seller.
(d) The Seller acknowledges that (i) neither the Warrant nor the Warrant
Shares may be transferred unless they are (1) subsequently registered thereunder
or otherwise registered pursuant to the Securities Act, or (2) transferred
pursuant to an exemption from such registration. The provisions of this Section
shall be binding upon any subsequent transferee of the Securities.
ARTICLE III
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REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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The Purchaser hereby represents and warrants to the Seller as follows:
3.1. Due Organization and Authority. The Purchaser is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Nevada, and has full corporate power and authority to enter into this
Agreement consummate the transactions contemplated hereby and thereby and
perform its obligations hereunder and thereunder.
3.2. Agreement Authorized; Binding and Enforceable. The execution,
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delivery and performance of this Agreement have been duly authorized by all
required corporate action on the part of the Purchaser. This Agreement is the
valid, legal and binding obligation of the Purchaser enforceable against it in
accordance with its terms.
ARTICLE IV
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INDEMNIFICATION
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4.1. Agreement to Indemnify. The Seller agrees to indemnify and hold
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the Purchaser, its affiliates and its officers, directors, shareholders,
members, employees and representatives (the "Indemnified Parties") harmless from
and against any and all loss, liability, obligation, damage, cost or expense
(including, without limitation, reasonable attorneys' fees and disbursements),
directly or indirectly incurred or suffered by or asserted against any of the
Indemnified Parties as a result of (a) the breach by the Seller of any
representation or warranty made by it hereunder or (b) any liability relating
to the Purchased Assets arising prior to the date hereof or relating to any
period prior to the date hereof, including, without limitation, any liability or
obligation relating to the performance of the location contracts and other
agreements and licenses included in the Purchased Assets.
4.2. Conditions of Indemnification. The obligations and liabilities of
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the Seller under Section 4.1 with respect to any claim, action, suit,
proceeding, demand or liability (a "Claim") asserted or instituted by any third
party on account of any matter giving rise to a claim of indemnity by any
Indemnified Party shall be subject to the following terms and conditions:
4.2.1. The Indemnified Party will give the Seller reasonably
prompt notice of a Claim, and the Seller will assume the defense thereof by
representatives chosen by it; provided, however, that the Indemnified Party
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shall be entitled to participate in the defense of such Claim and to employ
counsel at its own expense to assist in the handling of such Claim.
4.2.2. If the Seller, within a reasonable time after notice of any
such Claim, fails to assume the defense thereof, the Indemnified Party shall
(upon further notice to the Seller) have the right to undertake the defense or
to undertake a compromise or settlement of such Claim on behalf of and for the
account and risk of the Seller, subject to the right of the Seller to assume the
defense of such Claim at any time prior to the settlement, compromise or final
determination thereof.
4.2.3 Anything in this Section 4.2 to the contrary notwithstanding, (a)
if there is a reasonable probability that a Claim may materially and adversely
affect the Indemnified Party other than as a result of money damages or other
money payments, the Indemnified Party shall have the right to defend, at its own
cost and expense, and to compromise or settle such Claim and (b) the Seller
shall not, without the written consent of the Purchaser, settle or compromise
any Claim or consent to the entry of any judgment which imposes any future
obligation on the Indemnified Party or which does not include as an
unconditional term thereof the giving by the claimant or the plaintiff to the
Purchaser, a release from all liability in respect of such Claim.
4.2.4 Any notice or demand for indemnification shall be accompanied by
all relevant documentation, including any legal process that has been served
upon the party claiming indemnification. The Indemnified Party shall furnish all
cooperation, including access to site, witnesses and records, which the Seller
may reasonably request in order to carry out said indemnification.
4.3. Remedies Cumulative. The remedies provided in this Article IV
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shall be cumulative and shall not preclude assertion by the Purchaser of any
other rights or the seeking of any other remedies against the Seller.
ARTICLE V
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MISCELLANEOUS
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5.1. Survival. All indemnifications, representations and warranties
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made by the parties in this Agreement or in any document, exhibit, schedule or
certificate furnished pursuant hereto or in connection herewith, shall survive
the closing irrespective of any investigation made by or on behalf of such
party.
5.2. Notices. All notices, requests, demands and other communications
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required or permitted to be given hereunder shall be in writing and shall be
deemed to have been given (a) when received, if delivered in person, or (b) when
sent, if sent by telecopier and confirmed within 48 hours by letter mailed or
delivered to the party to be notified at its address set forth herein or (c)
three (3) business days following the mailing thereof, if mailed by certified
first class mail, postage prepaid, return receipt requested, in any such case as
follows:
If to the Seller, to:
Go Online Networks Corporation
0000 Xxxxx Xxxxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: President
If to the Purchaser, to:
ICOA, Inc.
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxx 00000
Attention: President
or at such other address or addresses as any party may have advised the other in
the manner provided in this Section.
5.3. Complete Agreement. This Agreement, together with its exhibits
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and schedules, sets forth the entire agreement of the parties with respect to
the subject matter hereof and supersedes all prior agreements, contracts,
promises, representations, warranties, statements, arrangements and
understandings, if any, among the parties hereto or their representatives. No
waiver, modification or amendment of any provision, term or condition hereof
shall be valid unless in writing and signed by the party to be charged
therewith, and any such waiver, modification or amendment shall be valid only to
the extent therein set forth.
5.4. Further Assurances. Each of the parties hereto shall, from time
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to time after the closing, upon the request of the other party hereto and at the
expense of such requesting party, duly execute, acknowledge and deliver or cause
to be duly executed, acknowledged and delivered, all such further instruments
and documents reasonably requested by the other party to further effectuate the
intents and purposes of this Agreement.
5.5. Public Announcements. The timing and text of any public
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announcements or statements pertaining to the subject matter of this Agreement
or the transactions contemplated herein shall be mutually agreed to by the
parties hereto except as may be required by law (and in the event any
announcement or statement by a party is so required by law to be made, such
party shall use its best efforts to consult with the other party prior to making
such announcement or statement).
5.6. Governing Law; Jurisdiction. The validity, performance,
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construction and effect of this Agreement shall be governed by the substantive
laws of the State of New York, without regard to the provisions relating to
conflicts of law.
5.7. Binding Effect. This Agreement shall be binding upon and inure to
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the benefit of the parties hereto and their respective successors and permitted
assigns. The obligations of either party hereunder may not be assigned without
the other party's prior written consent.
5.8. Separability. Any provision of this Agreement which may be
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determined by competent authority to be 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.
5.9. Counterparts. This Agreement may be executed in counterparts, each
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of which shall be deemed an original and all of which taken together shall
constitute a single agreement.
5.10. Captions. The captions appearing in this Agreement are inserted
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only as a matter of convenience and for reference and shall in no way affect the
interpretation or construction of this Agreement or any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
ICOA, INC.
By: /S/
Name:
Title:
GO ONLINE NETWORKS CORPORATION
By: /S/
Name:
Title:
EXHIBIT A
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PURCHASED ASSETS
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[Attached]
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