ASSET PURCHASE AGREEMENT
EXECUTION
COPY
This
Asset Purchase Agreement (“Agreement”), dated as of March ___, 2006 (“Effective
Date”) is entered into by and among ICEWEB
ONLINE, INC., a
Virginia corporation (“IOI”); ICEWEB,
INC., a
Delaware corporation (“IceWEB”); PATRIOTNET,
INC., a
Virginia corporation (“PatriotNet”); and PATRIOT
COMPUTER GROUP, INC., a
Virginia corporation (“PCG”).
RECITALS:
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A.
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PatriotNet
is in the business of providing high-quality Internet services and
acclaimed customer care and support (the “Business”).
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B.
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PatriotNet
is the owner of certain assets which IOI wishes to acquire in exchange
for
certain cash consideration and common stock of IceWEB.
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C.
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IOI
and IceWEB require and rely on representations and warranties by
PatriotNet and PCG in consideration for IOI’s purchase of Assets (as
defined below) and IceWEB’s issuance of IceWEB Shares (as defined
below)
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NOW
THEREFORE,
in
consideration of the Recital above, mutual covenants, agreements,
representations and warranties contained in this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE
I
ACQUISITION
OF ASSETS
SECTION
1.1 - ACQUISITION OF ASSETS; ASSUMPTION OF LIABILITIES
1.11 Acquisition
of Assets.
IOI and
PatriotNet hereby agree that for and in consideration of (a) the payment of
cash
consideration by IOI to PatriotNet of ONE HUNDRED NINETY THOUSAND AND NO/100
US
DOLLARS (US $190,000.00) at Closing; (b) the issuance by IceWEB of 100,000
shares of IceWEB common stock to PatriotNet at Closing; and (c) the assumption
by IOI of certain PatriotNet liabilities as defined below, PatriotNet shall
sell
to IOI, and IOI shall purchase from PatriotNet, free of all liens and
encumbrances, to the extent of PatriotNet’s rights therein and except those
excluded assets set forth on Schedule 1.11(a), all of the assets of PatriotNet
related to or useful in the Business as set forth on Schedule 1.11(b) (“Assets”)
and described generally as follows:
a.
Software and Documentation. Software
and documentation developed, under development, and used by PatriotNet,
including the billing system referred to as Sherlock, plus all other software
and documentation developed by or for PatriotNet at any time.
b.
Other Content. Content
not included in the software assets described in subparagraph a. above, whether
said content is analog or digital, voice, video, or data content stored on
tape,
disk, or any form of analog, digital, electronic, or other media.
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c.
Customer Contracts.
Contracts, agreements, licenses, and other commitments and arrangements, oral
or
written, with any person or entity (including for-profit businesses, non-profit
organizations, and government entities) respecting the provision of Internet,
technology, business and telework solutions and consulting businesses, broadband
and narrowband Internet access service, and other businesses operated by
PatriotNet or otherwise arising out of the Business. Also included, without
limiting the inclusiveness of the customer contracts included among the Assets,
are sales leads, teaming arrangements in process, hosting opportunities, and
application service provider software provision opportunities.
d.
Computer, and other Equipment.
Computer, telecommunications, and other equipment and devices, peripheral
devices, input/output devices, including mini- and micro-computers and other
digital and analog data, voice, and video equipment of all types; modems,
routers, switches, gateways, UPS equipment, telecommunications equipment, media,
and tools and all ROMs, tapes, diskettes, and electronic media (the
“Equipment”), including PatriotNet’s rights under all related
warranties.
e.
Office Furniture. Office
furniture and fixtures.
f.
Leases.
The
entire leasehold or rental interest arising under leases of:
(i)
Equipment, including data processing hardware and associated telecommunications
equipment, media, and tools;
(ii)
Office furnishings and fixtures; and
(iii)
Other personalty.
g.
Other Contracts.
Other
contracts, agreements, licenses, commitments, arrangements, and
permissions.
h.
Business Records. Copies
of
all business and marketing records, including accounting and operating records,
asset ledgers, inventory records, budgets, personnel records, payroll records,
customer lists, employment and consulting agreements, supplier lists,
information and data respecting leased or owned equipment, files, correspondence
and mailing lists, advertising materials and brochures, and other business
records.
i.
Authorizations. Governmental
approvals, authorizations, certifications, consents, variances, permissions,
licenses, and permits to or from, or filings, notices, or recordings to or
with,
federal, state, and local governmental authorities, but subject, as to the
re-assignability to IOI, to the procurement of any required government consents
which shall be the sole responsibility of IOI after the Closing.
j.
Accounts Receivable. Accounts
receivable as of the Effective Date, including all license fees, maintenance
fees, hosting fees, and charges owing or to become owing to PatriotNet under
Customer Contracts.
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k.
Websites, Domain Names, and Intellectual Property.
Websites, domain names, patents, trademarks, service marks, trade names, and
copyrights (including registrations, licenses, reservations of names and domain
names, and applications pertaining thereto), and all other intellectual property
rights, trade secrets, know-how, show-how, and other proprietary information,
processes, and formulae (the “Intellectual Property”). The Websites and
Intellectual Property includes the <xxxxxxx.xxx> website, the
<xxxxxxx.xxx> domain name, the PatriotNet service xxxx and trademark, all
registered trademarks and service marks, all reserved trade names, all
registered copyrights, and all filed patent applications and issued patents
owned by PatriotNet.
l.
Insurance Policies.
Insurance and reinsurance, surety, bonding, or indemnity policies, binders,
or
contracts, and the benefits of any prior insurance coverage to the extent still
available.
m.
Claims. Claims
PatriotNet may have against any person relating to or arising from the Assets,
including rights to recoveries for damages or defective goods, to refunds,
insurance claims, and choses in action.
n.
Liquid Assets. Deposits,
other receivable items, prepaid expense items, and investments, and all other
products and proceeds of any Assets.
o.
Business Interests, Participations, and Ownership Positions.
Interests,
participations, and ownership positions held by PatriotNet in any corporation,
partnership, joint venture, co-marketing arrangement, or similar enterprise
or
undertaking relating to PatriotNet’s Business.
p.
Agreements with Employees and Independent Contractors Respecting Intellectual
Property. Agreements
with employees and independent contractors: acknowledging development of works
for hire by employees and/or contractors for PatriotNet; assigning inventions
and other intellectual property assignments; promising confidentiality,
non-disclosure, and non-competition; and other agreements, covenants,
restrictions and prohibitions, protecting PatriotNet’s Business and intellectual
property rights. Provided, however, that said agreements respecting intellectual
property shall in no way obligate IOI to employ any persons or accept duties
delegated under independent contracts, except to the extent liabilities are
expressly assumed in connection with the purchase of Assets.
q.
Security and other Deposits. All
deposits posted by PatriotNet related to the Business. However, IOI is not
assuming any lease of real property entered into by PatriotNet or PCG.
Therefore, any security deposit posted with a landlord of real property (other
than owners of co-location and other third party hosting facilities) is not
assigned to IOI.
1.12 Assumption
of Liabilities.
IOI and
PatriotNet hereby agree that, in connection with the Assets being acquired
by
IOI from PatriotNet, PatriotNet shall delegate to IOI those liabilities as
set
forth in Schedule 1.12.a only, and IOI agrees to accept and assume those
liabilities. Liabilities of PatriotNet not being assumed are set forth in
Schedule 1.12.b.
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SECTION
1.2 - ISSUANCE OF SHARES
1.21 Issuance
of Shares.
IOI,
IceWEB and PatriotNet hereby agree that on the Closing Date (as hereinafter
defined), IceWEB shall issue to PatriotNet ONE HUNDRED THOUSAND (100,000) shares
of IceWEB Common Stock (the “IceWEB Shares”).
1.22 Delivery
of IceWEB Shares.
Prior
to
or on the Closing Date, IceWEB will instruct its transfer agent to deliver
the
certificate representing the IceWEB Shares to PatriotNet at the Closing.
1.23 Investment
Intent.
The
IceWEB Shares have not been registered under the Securities Act of 1933, as
amended (the “Act”), and may not be resold unless the IceWEB Shares are
registered under the Act or an exemption from such registration is available.
PatriotNet represents and warrants it is acquiring the IceWEB Shares for
investment, and not with a view to the sale or distribution of the IceWEB
Shares. Each certificate representing the IceWEB Shares will have a legend
thereon incorporating language as follows:
“The
shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended (the “Act”) or any state securities laws. The
shares have been acquired for investment and may not be sold or transferred
in
the absence of an effective Registration Statement for the shares under the
Act
unless in the opinion of counsel satisfactory to the Company, registration
is
not required under the Act or any applicable state securities laws. The shares
are further subject to the terms of that certain Asset Purchase Agreement dated
March ___, 2006, terms of which will be made available by the
Company.”
1.24 Registration
Rights.
a.
Incidental
Registration.
In
connection with any future Public Offering of IceWEB securities, PatriotNet
shall have the right to require IceWEB to include all or (at PatriotNet’s
election) any portion of the IceWEB Shares. Notwithstanding the foregoing,
if
the underwriters shall advise IceWEB in writing that, in their experience and
professional opinion arrived at in good faith based upon existing market
conditions, inclusion of such number of IceWEB Shares will adversely affect
the
price or distribution of the securities to be offered in such Public Offering,
then PatriotNet shall then have the right to include only such number of IceWEB
Shares that such advice by the underwriters indicates may be distributed
without adversely affecting the other planned distribution of the securities.
As
between PatriotNet and any other holders of IceWEB Common Stock requesting
to be
included in such Public Offering, such availability for inclusion in the
registration for such Public Offering shall be allocated pro
rata
based
upon the total number of shares of IceWEB Common Stock owned or purchasable.
In
connection with any underwritten Public Offering, provided that all other
holders of equity interests of IceWEB are subject to identical (or more
restrictive) restrictions with respect to their equity interests, then
Shareholders shall agree to refrain from selling or otherwise transferring
(other than to affiliates) any IceWEB Shares not included in such Public
Offering for a period of time (not to exceed 14 calendar days prior to and
180
calendar days after the effective date of the registration statement for such
Public Offering) as may be appropriate under the circumstances and reasonably
requested by IceWEB and the underwriters for such offering.
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b.
Certain
Additional Agreements in Connection with Registrations.
In
connection with any Public Offering, IceWEB (i) shall furnish PatriotNet such
numbers of copies of registration statements and prospectuses (and amendments
and supplements thereto) as PatriotNet may reasonably request, and
(ii)
shall take all such other actions as are necessary or advisable to facilitate
the registration and sale of such IceWEB Shares. In connection with any Public
Offering as to which a Shareholder is requesting registration of IceWEB Shares,
PatriotNet (A) shall provide IceWEB with such information regarding itself
as
may be reasonably required by IceWEB, and
(B)
shall reasonably cooperate with IceWEB in the preparation of the registration
statement. In connection with any offering of IceWEB Shares pursuant to the
provisions of this Section, IceWEB and PatriotNet shall provide each other
with
customary indemnifications that are no more favorable to IceWEB than those
applicable to any other Persons participating in such Public
Offering.
c.
Public
Offering
means
any issuance or other sale of any IceWEB Common Stock (or securities convertible
into, or exchangeable for, Common Stock or rights to acquire common Stock or
such securities) of IceWEB pursuant to a registration statement filed with
the
Commission under the Securities Act, other than (i) a registration on Form
S-8
(or any successor form) relating solely to employee benefits or stock plans
and
(ii) a registration of IceWEB Common Stock entirely or primarily for the benefit
of Xxxxxx Partners, LP, or its designees or assignees; provided, however, that
if a registration statement is filed at the request of holders of the Common
Stock of IceWEB and no shares of Common Stock will be sold under such
registration statement on the account of IceWEB, then such registration
statement will only be considered a Public Offering if such offering will result
in gross proceeds of at least $5,000,000 to the selling security
holders.
ARTICLE
II
CLOSING
2.01 Time
and Place of Closing.
The
transactions contemplated by this Agreement shall be consummated on or before
five (5) business days following the Effective Date, at the law offices of
Xxx
X. Xxxx, PLC, 0000 Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx 00000 (the “Closing Date”).
The time and place at which the transactions contemplated hereby are consummated
is hereinafter referred to as the “Closing”.
2.02 Deliveries
at Closing.
At the
Closing:
(a) Subject
to the Escrow Agreement as set forth in Paragraph 2.03 below, IOI shall deliver
to PatriotNet the cash proceeds of $190,000.00;
(b) IceWEB
shall deliver to PatriotNet, or provide its transfer agent instructions to
issue
and deliver, the IceWEB Shares;
(c) PatriotNet
shall deliver the Assets to IOI, including all transfers required to be carried
out through third parties (e.g.,
transfer of xxxxxxx.xxx domain name through Verisign).
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(d) PatriotNet
shall deliver Articles of Amendment changing its name to a name that does not
use the “PatriotNet” trademark and service xxxx acquired by IOI, which shall be
completed within five (5) business days following Closing; and
(e) PatriotNet
and IOI shall execute and deliver each to the other the Non-Solicitation
Covenant (as defined below).
2.03 Escrow.
At the
Closing $50,000.00 (the “Escrow Amount”) will be deducted from the cash proceeds
and held in escrow with Xxxxxxxxx X. Xxxxxxx, PLC, Escrow Agent, to pay
undisclosed liabilities of PatriotNet or damages suffered by IOI or IceWEB
because of a breach of representations and warranties by PatriotNet or PCG.
The
Escrow Agreement is attached as Exhibit 2.03.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
OF
PATRIOTNET AND PCG
PatriotNet
and PCG, jointly and severally, hereby represent and warrant to IceWEB and
IOI,
jointly and severally, as follows:
3.01
Legal
Capacity of PatriotNet.
(a) PatriotNet
has the legal capacity to execute and deliver this Agreement and to consummate
the transactions contemplated hereby.
(b) The
execution and delivery of this Agreement by PatriotNet, and the consummation
by
it of the transactions contemplated hereby, does not violate or conflict with
(i) any material terms of any organizational document or any instrument,
contractual restriction or commitment of any kind or character to which
PatriotNet is a party or by which it is bound, or (ii) any requirement of law
or
any judgment, decree or order of any governmental or regulatory authority to
which PatriotNet is subject or by which PatriotNet or any of its respective
assets or properties is bound.
(c) This
Agreement has been duly and validly executed by PatriotNet, and constitutes
a
valid and binding obligation of PatriotNet enforceable against PatriotNet in
accordance with its terms.
3.02 Organization
and Authority of PatriotNet.
PatriotNet is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Virginia, and has all requisite
corporate power and authority to carry on its Business as presently conducted
and to own or lease and to operate its properties. PatriotNet is qualified
to
transact business as a foreign corporation in each jurisdiction wherein the
failure to so qualify would have a material adverse effect on the Business,
financial condition, results of operations, assets or properties of PatriotNet
(a “PatriotNet Material Adverse Effect”). PatriotNet has no
subsidiaries.
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3.03 Legal
Capacity of PCG.
(a) PCG
has
the legal capacity to execute and deliver this Agreement and to consummate
the
transactions contemplated hereby.
(b) The
execution and delivery of this Agreement by PCG and the consummation by them
of
the transactions contemplated hereby, do not violate or conflict with
(i) any material terms of any organizational document or any instrument,
contractual restriction or commitment of any kind or character to which PCG
is a
party or by which it is bound, or (ii) any requirement of law or any judgment,
decree or order of any governmental or regulatory authority to which PCG is
subject or by which PCG or any of its assets or properties is
bound.
(c) This
Agreement has been duly and validly executed by PCG and constitutes a valid
and
binding obligation of PCG enforceable against PCG in accordance with its terms.
3.04 Organization
and Authority of PCG.
PCG is a
corporation duly organized, validly existing and in good standing under the
laws
of the Commonwealth of Virginia, and has all requisite corporate power and
authority to carry on its business as presently conducted and to own or lease
and to operate its properties. PCG is qualified to transact business as a
foreign corporation in each jurisdiction wherein the failure to so qualify
would
have a material adverse effect on the business, financial condition, results
of
operations, assets or properties of PCG (a “PCG Material Adverse Effect”).
PatriotNet is a wholly owned subsidiary of PCG.
3.05 PatriotNet
Common Stock owned by PCG.
PCG has
good and marketable title to all of the issued and outstanding common stock
of
PatriotNet, which is fully paid and non-assessable.
3.06 Consents
and Approvals.
This
Agreement and the transactions contemplated hereby have been duly authorized
by
the Board of Directors and by the Shareholders of both PatriotNet and PCG.
Copies of all of said consents and approvals are attached as Schedule 3.06.
No
approval, order or consent of, filing or registration with or notice or payment
to, any foreign, federal, state, county, local or other governmental or
regulatory body, and no other approval or consent of, or filing with or notice
or payment to, any other person is required by PatriotNet or PCG in connection
with the execution and delivery by PatriotNet and PCG of this Agreement and
the
consummation and performance by it of the transactions contemplated hereby.
To
the Knowledge (defined below) of PatriotNet and PCG, the execution and delivery
of this Agreement, the consummation of the transactions contemplated hereby,
and
the performance by PatriotNet and PCG of this Agreement in accordance with
its
terms and conditions will not (a) conflict with or result in the breach or
violation of any of the terms or conditions of, or give rise to any acceleration
of PatriotNet’s or PCG’s obligations or constitute (or with notice or lapse of
time or both would constitute) a default under (i) the Articles of Incorporation
or By-Laws of PatriotNet or PCG, as the same have been amended and/or restated
from time to time; (ii) any instrument, contract or other material agreement
by
or to which PatriotNet or PCG is a party or by or to which PatriotNet’s or PCG’s
assets or properties are bound or subject; (iii) any statute, law or regulation
of any jurisdiction or any order, writ, judgment, injunction, award or decree
of
any court, arbitrator or governmental or regulatory body against, or binding
upon, PatriotNet or PCG, or the respective assets or properties of PatriotNet
or
PCG; or (iv) any license, franchise, approval, certificate, permit or
authorization applicable to PatriotNet or PCG, or any of their respective
assets; or (b) result in the creation of any lien, charge or encumbrance of
any
nature, upon the capital stock of PatriotNet or PCG, or assets or property
of
PatriotNet or PCG. For purposes of this Agreement, “Knowledge” in the case of
PatriotNet and PCG shall mean the actual knowledge of Xxxxxxx X. xx Xxxxxxx,
Chief Executive Officer of PatriotNet and PCG, following reasonable inquiry
by
Xxxxxxx X. xx Xxxxxxx.
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3.07 Litigation.
To the
Knowledge of PatriotNet, there is no action, suit or proceeding pending or
threatened, or any investigation, at law or in equity, before any arbitrator,
court or other governmental authority, pending or threatened, nor any judgment,
decree, injunction, award or order outstanding, against or in any manner
involving PatriotNet, or PCG, or any of PatriotNet’s or PCG’s properties or
rights which (a) could reasonably be expected to have a PatriotNet Material
Adverse Effect, or (b) could reasonably be expected to prevent the consummation
of any of the transactions contemplated by this Agreement.
3.08 Taxes.
PatriotNet and PCG have filed or will file all tax returns that either was
required to file, and have paid all taxes indicated on such returns for such
periods which are due and payable as of the date hereof. All such tax returns
were in all respects true, complete and correct. None of the income tax returns
filed by, on behalf of or with respect to PatriotNet or PCG is currently the
Subject of an audit, and no notice of a planned audit has been received by
PatriotNet. PatriotNet is a C-corporation.
3.09 Corporate
Records.
PatriotNet has granted IOI and IceWEB access to all the tax, accounting,
corporate and financial books and records relating to the Business. To the
Knowledge of PatriotNet and PCG, all financial statements and other supporting
information regarding the financial affairs relating to the Business supplied
to
IOI and IceWEB are true and correct in all material respects. Copies of
financial statements submitted to IOI, on which IOI relies in purchasing the
Assets, are attached as Schedule 3.09.
3.10 PatriotNet’s
Properties.
PatriotNet has good and marketable title to all its Assets, including its
contracts, domain names, websites, personal property, equipment, fixtures,
customer contracts, software, processes, patents, copyrights, trademarks,
franchises, licenses and other properties and assets (except for items leased
or
licensed to PatriotNet), in each case free and clear of all liens, claims and
encumbrances of every kind and character. PatriotNet has no ownership interest
in any real property, but it does have a leasehold interest as provided to
IOI
and IceWEB. The assets and properties owned, operated or leased by PatriotNet
and used in its Business are in good operating condition, reasonable wear and
tear excepted, and suitable for the uses for which intended.
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3.11 Insurance.
PatriotNet
has granted IOI and IceWEB access to all performance bonds and policies of
insurance, including fire and extended coverage, general liability, workers
compensation, products liability, property, and other forms of insurance or
indemnity the bonds held by PatriotNet. To the Knowledge of PatriotNet,
PatriotNet is not in default with respect to any provisions of any such policy
and has not failed to give any notice or present any claim hereunder in due
and
timely fashion. To the Knowledge of PatriotNet, all policies of insurance and
the bonds are: (1) in full force and effect; (2) are sufficient for compliance
by PatriotNet with all requirements of law and of all agreements and instruments
to which PatriotNet is a party; (3) are valid, outstanding and enforceable;
(4)
provide adequate insurance coverage for the assets, business and operations
of
PatriotNet in amounts at least equal to customary coverage in PatriotNet’s
industry; (5) will remain in full force and effect through the Closing; and
(6)
will not be affected by, and will terminate or lapse by reason of, the
transactions contemplated by this Agreement.
3.12 Employment
Matters.
PatriotNet has granted IOI and IceWEB access to all information regarding
PatriotNet’s officers, their contracts, base salaries, accrued vacation pay,
sick pay, and severance pay. PatriotNet has not incurred any unfunded deficiency
or liability within the meaning of the Employee Retirement Income Security
Act
of 1974 (“ERISA”), has not incurred any liability to the Pension Benefit
Guaranty Corporation established under ERISA in connection with any employee
benefit plan and has no outstanding obligations or liabilities under any
employee benefit plan. PatriotNet has not been a party to a “prohibited
transaction,” which would subject PatriotNet to any tax or penalty. There is no
collective bargaining agreement or negotiations therefor, labor grievance or
arbitration proceeding against PatriotNet pending or threatened, and to the
Knowledge of PatriotNet, there are no union organizing activities currently
pending or threatened against or involving PatriotNet. There are no employment
agreements being assigned and delegated to IOI. PatriotNet and PCG hold IOI
and
IceWEB absolutely free and harmless from all liabilities to PatriotNet employees
and PCG employees.
3.13 Compliance
with Laws.
PatriotNet is not in violation of any federal, state, local or other law,
ordinance, rule or regulation applicable to its Business, and has not received
any actual or, to the Knowledge of PatriotNet, threatened complaint, citation
or
notice of violation or investigation from any governmental
authority.
3.14 Compliance
with Environmental Laws.
PatriotNet is in compliance with all applicable pollution control and
environmental laws, rules and regulations. PatriotNet has no environmental
licenses, permits and other authorizations relative to compliance with
environmental laws, rules and regulations.
3.15 Validity.
All
contracts, agreements, leases and licenses to which PatriotNet is a party or
by
which it or any of its properties or assets are bound or affected, are valid
and
in full force and effect; and no material breach or default exists, or upon
the
giving of notice or lapse of time, or both, would exist, on the part of
PatriotNet or by any other party thereto.
3.16 No
Brokers.
PatriotNet is not a party to any agreement pursuant to which PatriotNet, IOI,
or
IceWEB will become obligated to pay a commission to any person as a result
of
consummation of the transactions contemplated hereby.
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3.17 No
Brokers.
PCG is
not a party to any agreement pursuant to which PCG, PatriotNet, IOI, or IceWEB
will become obligated to pay a commission to any person as a result of
consummation of the transactions contemplated hereby.
3.18 Information
on IceWEB.
PatriotNet represents that it is an “accredited investor,” as such term is
defined in Regulation D promulgated by the Act, is experienced in investments
and business matters, has made investments of a speculative nature and, with
its
representatives, has such knowledge and experience in financial, tax and other
business matters as to enable it to utilize the information made available
by
IceWEB to evaluate the merits and risks of and to make an informed investment
decision with respect to this Agreement, which represents a speculative
investment. PatriotNet is able to bear the risk of such investment for an
indefinite period and to afford a complete loss thereof.
3.19 Ownership
of PatriotNet Shares and Authorization of Agreement.
PCG
represents that it is the sole owner of record and beneficially owns all of
the
shares of capital stock of PatriotNet issued and outstanding, all of which
shares are owned free and clear of all rights, claims, liens and encumbrances,
and have not been sold, pledged, assigned or otherwise transferred except
pursuant to this Agreement. There are no outstanding subscriptions, rights,
options, warrants or other agreements obligating PatriotNet to issue, sell
or
transfer any stock or other securities of PatriotNet.
3.20 No
Untrue Statements.
No
representation or warranty made by PatriotNet in this Agreement, or in any
Schedule or Exhibit attached hereto, contains any untrue statement of a material
fact or omits any material fact necessary in order to make the statements
contained herein or therein not misleading. PatriotNet has not knowingly failed
to disclose to IceWEB and IOI any facts material to the condition (financial
or
otherwise), properties, business, operations or prospects of
PatriotNet.
3.21 Prior
Registration Rights.
PatriotNet is under no obligation, contractual or otherwise, to register under
the Act, any of its presently outstanding securities or any securities that
may
subsequently be issued by PatriotNet.
3.22 Non-Solicitation
Covenant.
Following the Closing, PatriotNet, PCG, and Xxxxxxx X. xx Xxxxxxx agree not
to
solicit the customers of PatriotNet, or IOI or IceWEB, in an attempt to provide
goods or services to any such customer related to the Business, all as set
forth
in the Non-Solicitation Covenant attached at Schedule 3.22.
ARTICLE
IV
[RESERVED]
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF ICEWEB
IceWEB
hereby represents and warrants to PatriotNet as follows:
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5.01 Legal
Capacity of IceWEB.
(a) IceWEB
has the legal capacity to execute and deliver this Agreement and to consummate
the transactions contemplated hereby.
(b) The
execution and delivery of this Agreement by IceWEB, and the consummation of
the
transactions contemplated hereby, do not violate or conflict with (i) any
material terms of any organizational document or any instrument, contractual
restriction or commitment of any kind or character to which IceWEB is a party
or
by which it is bound, or (ii) any requirement of law or any judgment, decree
or
order of any governmental or regulatory authority to which IceWEB is subject
or
by which IceWEB or any of its respective assets or properties is
bound.
(c) This
Agreement has been duly and validly executed by IceWEB, and constitutes a valid
and binding obligation of IceWEB enforceable against IceWEB in accordance with
its terms except to the extent that (i) such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally and (ii) the
availability of remedies, including specific performance, is subject to the
discretion of the court before which any proceeding therefor may be
brought.
5.02 Organization
and Authority of IceWEB.
IceWEB
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Delaware, and has all requisite corporate power and
authority to carry on its business as presently conducted and to own or lease
and to operate its properties. IceWEB is qualified to transact business as
a
foreign corporation in each jurisdiction wherein the failure to so qualify
would
have a material adverse effect on the business, financial condition, results
of
operations, assets or properties of IceWEB (an “IceWEB Material Adverse
Effect”).
5.03 Capitalization.
The
authorized, issued and outstanding capital stock of IceWEB is listed in filings
with the US Securities and Exchange Commission. The IceWEB Shares have been
duly
authorized and, upon issuance as contemplated hereby, will be validly issued,
fully paid and non-assessable and not subject to the preemptive or anti-dilution
rights of any person.
5.04 Consents
and Approvals.
This
Agreement and the transactions contemplated hereby have been duly authorized
by
the IceWEB Board of Directors. No approval, order or consent of, filing or
registration with or notice or payment to, any foreign, federal, state, county,
local or other governmental or regulatory body, and no approval or consent
of,
or filing with or notice or payment to, any other person is required by or
with
respect to IceWEB in connection with the execution and delivery by IceWEB of
this Agreement and its consummation and performance of the transactions
contemplated hereby. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the performance by
IceWEB of this Agreement in accordance with its terms and conditions will not
(a) conflict with or result in the breach or violation of any of the terms
or
conditions of, or give rise to any acceleration of IceWEB’s obligations or
constitute (or with notice or lapse of time or both would constitute) a default
under (i) the Certificate of Incorporation or By-Laws of IceWEB (ii) any
material instrument, contract or other agreement by or to which IceWEB is a
party or by or to which IceWEB’s assets or properties are bound or Subject;
(iii) any statute, law or regulation of any jurisdiction or any order, writ,
judgment, injunction, award or decree of any court, arbitrator or governmental
or regulatory body against, or binding upon, IceWEB or the assets or properties
of IceWEB; or (iv) any license, franchise, approval, certificate, permit or
authorization applicable to IceWEB or any of the its assets; or (b) result
in
the creation of any lien, charge or encumbrance of any nature, upon the assets
or property of IceWEB.
11
5.05 Filings.
The
Common Stock of IceWEB is registered under Section 12(g) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). IceWEB has filed with the
United States Securities and Exchange Commission (“SEC”) all reports required to
be filed by it under the Exchange Act (the “SEC Filings”), and IceWEB is current
in its filing obligations under the Exchange Act. The cumulative SEC Filings
are
true, complete and accurate in all material respects.
5.06 Litigation.
There is
no action, suit or proceeding pending or threatened, or any investigation,
at
law or in equity, before any arbitrator, court or other governmental authority,
pending or threatened, nor any judgment, decree, injunction, award or order
outstanding, against or in any manner involving IceWEB or any of its properties
or rights which (i) could reasonably be expected to have an IceWEB Material
Adverse Effect, or (ii) could reasonably be expected to prevent the consummation
of any of the transactions contemplated by this Agreement.
5.07 Taxes.
IceWEB
has filed all tax returns that it was required to file, and has paid all taxes
indicated on such returns for such periods which are due and payable as of
the
date hereof. All such tax returns were in all respects true, complete and
correct and filed on a timely basis. None of the income tax returns filed by,
on
behalf of or with respect to IceWEB is currently the Subject of an audit, and
no
notice of a planned audit has been received by or on behalf of
IceWEB.
5.08 No
Brokers.
IceWEB
is not a party to any agreement pursuant to which PatriotNet, PCG, IceWEB,
or
IOI will become obligated to pay a commission to any person as a result of
consummation of the transactions contemplated hereby and any action by IceWEB.
5.09 Knowledge
of Inaccuracies.
IceWEB
has no knowledge that any of the representations or warranties of PatriotNet
or
PCG in this Agreement are inaccurate or in breach.
5.10 Examination.
IceWEB
and its representatives have received or been given access to all of the
information described or referred to in this Agreement and all other information
requested by them. IceWEB and its representatives have been afforded the
opportunity to meet with, ask questions of and receive answers from the
management of PatriotNet and PCG regarding the Business in connection with
the
determination by IceWEB to enter into this Agreement and the agreements related
hereto and consummate the transactions contemplated hereby and thereby, and
all
such questions have been answered to the full satisfaction of
IceWEB.
12
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES OF IOI
IOI
hereby represents and warrants to PatriotNet as follows:
6.01 Legal
Capacity of IOI.
(a) IOI
has
the legal capacity to execute and deliver this Agreement and to consummate
the
transactions contemplated hereby.
(b) The
execution and delivery of this Agreement by IOI, and the consummation of the
transactions contemplated hereby, do not violate or conflict with (i) any
material terms of any organizational document or any instrument, contractual
restriction or commitment of any kind or character to which IOI is a party
or by
which it is bound, or (ii) any requirement of law or any judgment, decree or
order of any governmental or regulatory authority to which IOI is subject or
by
which IOI or any of its respective assets or properties is bound.
(c) This
Agreement has been duly and validly executed by IOI, and constitutes a valid
and
binding obligation of IOI enforceable against IOI in accordance with its terms
except to the extent that (i) such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and (ii) the availability of
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought.
6.02 Organization
and Authority of IOI.
IOI is a
corporation duly organized, validly existing and in good standing under the
laws
of the Commonwealth of Virginia, and has all requisite corporate power and
authority to carry on its business as presently conducted and to own or lease
and to operate its properties. IOI is qualified to transact business as a
foreign corporation in each jurisdiction wherein the failure to so qualify
would
have a material adverse effect on the business, financial condition, results
of
operations, assets or properties of IceWEB (an “IOI Material Adverse
Effect”).
6.03 Capitalization.
The
authorized capital stock of IOI consists of 5,000 shares of IOI Common Stock,
of
which 1,000 shares of IOI Common Stock are issued and outstanding on the date
hereof. IOI is a wholly owned subsidiary of IceWEB. IOI is not a party to or
bound by any options, calls, voting agreements, contracts, or commitments of
any
character relating to any issued or unissued capital stock or any other equity
security issued or to be issued by IOI. The issued and outstanding IOI Common
Stock has been duly authorized and is validly issued, fully paid and
non-assessable and not subject to the preemptive or anti-dilution rights of
any
person.
6.04 Consents
and Approvals.
This
Agreement and the transactions contemplated hereby have been duly authorized
by
the IOI Board of Directors. No approval, order or consent of, filing or
registration with or notice or payment to, any foreign, federal, state, county,
local or other governmental or regulatory body, and no approval or consent
of,
or filing with or notice or payment to, any other person is required by or
with
respect to IOI in connection with the execution and delivery by IOI of this
Agreement and its consummation and performance of the transactions contemplated
hereby. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the performance by IOI of this Agreement
in accordance with its terms and conditions will not (a) conflict with or result
in the breach or violation of any of the terms or conditions of, or give rise
to
any acceleration of IOI’s obligations or constitute (or with notice or lapse of
time or both would constitute) a default under (i) the Articles of Incorporation
or By-Laws of IOI (ii) any material instrument, contract or other agreement
by
or to which IOI is a party or by or to which IOI’s assets or properties are
bound or Subject; (iii) any statute, law or regulation of any jurisdiction
or
any order, writ, judgment, injunction, award or decree of any court, arbitrator
or governmental or regulatory body against, or binding upon, IOI or the assets
or properties of IOI; or (iv) any license, franchise, approval, certificate,
permit or authorization applicable to IOI or any of the its assets; or (b)
result in the creation of any lien, charge or encumbrance of any nature, upon
the assets or property of IOI.
13
6.05 Reserved.
6.06 Litigation.
There is
no action, suit or proceeding pending or threatened, or any investigation,
at
law or in equity, before any arbitrator, court or other governmental authority,
pending or threatened, nor any judgment, decree, injunction, award or order
outstanding, against or in any manner involving IOI or any of its properties
or
rights which (i) could reasonably be expected to have an IOI Material Adverse
Effect, or (ii) could reasonably be expected to prevent the consummation of
any
of the transactions contemplated by this Agreement.
6.07 Taxes.
IOI has
filed all tax returns that it was required to file, and has paid all taxes
indicated on such returns for such periods which are due and payable as of
the
date hereof. All such tax returns were in all respects true, complete and
correct and filed on a timely basis. None of the income tax returns filed by,
on
behalf of or with respect to IOI is currently the Subject of an audit, and
no
notice of a planned audit has been received by or on behalf of IOI.
6.08 No
Brokers.
IOI is
not a party to any agreement pursuant to which PatriotNet, PCG, IceWEB, or
IOI
will become obligated to pay a commission to any person as a result of
consummation of the transactions contemplated hereby and any action by IOI.
6.09 Knowledge
of Inaccuracies.
IOI has
no knowledge that any of the representations or warranties of PatriotNet or
PCG
in this Agreement are inaccurate or in breach.
6.10 Examination.
IOI and
its representatives have received or been given access to all of the information
described or referred to in this Agreement and all other information requested
by them. IOI and its representatives have been afforded the opportunity to
meet
with, ask questions of and receive answers from the management of PatriotNet
and
PCG regarding the Business in connection with the determination by IOI to enter
into this Agreement and the agreements related hereto and consummate the
transactions contemplated hereby and thereby, and all such questions have been
answered to the full satisfaction of IOI.
14
ARTICLE
VII
CONDITIONS
PRECEDENT TO THE
OBLIGATION
OF ICEWEB AND IOI TO CLOSE
The
obligation of IceWEB and IOI to close the transactions contemplated hereby
is
subject to the fulfillment by PatriotNet and PCG prior to Closing of each of
the
following conditions, which may be waived in whole or in part by IceWEB and
IOI:
7.01 Compliance
with Representations, Warranties and Covenants.
The
representations and warranties and covenants of PatriotNet and PCG contained
in
this Agreement shall have been true and correct when made and shall be true
and
correct in all material respects at the Closing with the same force and effect
as if made at the Closing, and PatriotNet and PCG shall have performed all
agreements, covenants and conditions required to be performed by PatriotNet
and
PCG prior to the Closing.
7.02 No
Adverse Change.
There
shall have been no event which has, had, or may have a material adverse effect
upon the Business, financial condition, results of operation, assets,
liabilities or prospects of PatriotNet or PCG.
7.03 No
Legal Proceedings.
No suit,
action or other legal or administrative proceeding before any court or other
governmental agency shall be pending or threatened seeking to enjoin the
consummation of the transactions contemplated hereby.
7.04 Documents
to be Delivered by PatriotNet and PCG.
PatriotNet
and PCG shall have delivered all of the documents required to be delivered
to
IOI and IceWEB under this Agreement.
7.05 Assets
to be Delivered by PatriotNet.
PatriotNet shall have delivered the Assets to IOI and the Assets shall be as
represented in this Agreement.
ARTICLE
VIII
CONDITIONS
PRECEDENT TO THE OBLIGATIONS
OF
PATRIOTNET AND PCG TO CLOSE
The
obligations of PatriotNet and PCG to close the transactions is subject to the
fulfillment prior to Closing of each of the following conditions, any of which
may be waived, in whole or in part, by PatriotNet or PCG,
respectively:
8.01 Compliance
with Representations, Warranties and Covenants.
The
representations and warranties made by IceWEB and IOI in this Agreement shall
have been true and correct when made and shall be true and correct in all
material respects at the Closing with the same force and effect as if made
at
the Closing, and IceWEB and IOI shall have performed all agreements, covenants
and conditions required to be performed by IceWEB and IOI prior to the
Closing.
15
8.02 No
Legal Proceedings.
No suit,
action or other legal or administrative proceedings before any court or other
governmental agency shall be pending or threatened seeking to enjoin the
consummation of the transactions contemplated hereby.
8.03
Issuance
of IceWEB Shares and Payment of Cash Proceeds.
IceWEB
shall issue 100,000 IceWEB Shares and cause its transfer agent to deliver the
certificates representing such shares, and IOI shall have paid the $190,000.00
to the Closing agent for disbursement, and reimbursement of the attorneys’ fees
of counsel to PatriotNet and PCG, as required by this Agreement.
ARTICLE
IX
MODIFICATION,
WAIVERS, TERMINATION AND EXPENSES
9.01 Modifications.
IceWEB,
IOI, PatriotNet and PCG may amend, modify or supplement this Agreement in any
manner as they may mutually agree in writing.
9.02 Waivers.
IceWEB,
IOI, PatriotNet and PCG may, in writing, extend the time for or waive compliance
by the other with any of the covenants or conditions of the other contained
herein.
9.03 Termination
before Closing.
This
Agreement may be terminated before the Closing:
(a) By
the
mutual consent of IceWEB, IOI and PatriotNet;
(b) By
IceWEB
and IOI, if the representations and warranties of PatriotNet and PCG set forth
herein shall not be accurate, or conditions precedent set forth herein shall
not
have been satisfied in all material respects;
(c) By
PatriotNet and PCG, if the representations and warranties of IceWEB and IOI
set
forth herein shall not be accurate, or conditions precedent set forth herein
shall not have been satisfied in all material respects; and
(d) In
the
event of any such termination, each party shall bear their own
expenses.
9.04 Termination
after Closing.
This
Agreement may be terminated after the Closing:
(a) By
the
mutual consent of IceWEB, IOI, PatriotNet and PCG;
(b) In
the
event of any such termination, each party shall bear their own
expenses.
16
ARTICLE
X
INDEMNIFICATION
10.01 Indemnification
by PatriotNet and PCG.
PatriotNet and PCG, jointly and severally, hereby indemnify and hold IceWEB
and
IOI, jointly and severally, harmless from and against any and all damages,
losses, liabilities, obligations, costs or expenses incurred by IceWEB or IOI
and arising out of (a) the breach of any representation or warranty by
PatriotNet or PCG, to the extent such breach results in a material adverse
effect to the business and operation of IceWEB or IOI taken as a whole, or
(b)
failure to perform any covenant or obligation required to be performed by them
hereunder, or (c) all liabilities of PatriotNet or PCG not being assumed by
IOI;
provided, however, that PatriotNet and PCG shall not be required to pay to
IceWEB or IOI, in the aggregate, any amount greater than the Escrow Amount,
and
the Escrow Amount shall be the sole source of the payment of any obligations
by
PatriotNet or PCG under this Agreement.
10.02 Indemnification
by IceWEB and IOI.
IceWEB
and IOI, jointly and severally, hereby indemnify and hold PatriotNet and PCG,
jointly and severally, harmless from and against any and all damages, losses,
liabilities, obligations, costs or expenses incurred by PatriotNet or PCG and
arising out of (a) the breach of any representation or warranty by IceWEB or
IOI, to the extent such breach results in a material adverse effect to the
business and operation of PatriotNet or PCG taken as a whole, or (b) failure
to
perform any covenant or obligation required to be performed by them hereunder;
provided, however, that IceWEB and IOI shall not be required to pay to
PatriotNet or PCG any amount greater than US $50,000.00 in the aggregate, said
$50,000.00 shall be the sole source of the payment of any obligations by IceWEB
or IOI under this Agreement, and said indemnification amount, or any portion
thereof, shall not be paid by IceWEB or IOI until and unless liability therefor
has been adjudicated by one of the Courts constituting a stipulated venue in
Section 11.03 below, to finality.
10.03 Time
for Assertion.
No
party to this Agreement shall have any liability (for indemnification or
otherwise) with respect to any representation, warranty or covenant or
obligation to be performed and complied hereunder, unless notice of any such
liability is provided on or before 12 months from the date hereof.
10.04 Waiver.
The
sole and exclusive remedy of PatriotNet, PCG, IceWEB and IOI for any breach
of
any covenant or agreement, or any inaccuracy or other breach of any
representation or warranty, contained in this Agreement or any other writing
delivered pursuant hereto or in connection herewith, for any indemnification
with respect to any tort, violation of law, breach of contract or environmental
liability or for any other matter relating to or arising under or in connection
with this Agreement or any related agreements, or the transactions contemplated
herein or therein shall be the indemnities contained in Sections 10.01 and
10.02, respectively, and the parties hereby waive, release and agree not to
assert any other right, whether arising by statute, common law or otherwise
in
connection therewith.
17
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
11.01 Waiver.
Any
party hereto may with respect to any other party hereto (a) extend the time
for
the performance of any of the obligations or other acts, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions contained herein. Any such extension or waiver shall
be
valid if set forth in an instrument in writing signed by the party or parties
to
be bound thereby.
11.02 Notices.
All
communications provided for herein shall be in writing and shall be deemed
to be
given or made (a) when delivered personally, including by courier service,
(b) three business days following deposit in the United Sates mail,
certified mail, return receipt requested, or (c) when transmitted by facsimile
provided that electronic confirmation of receipt is retained by the party
transmitting such facsimile. The addresses to which notices are to be provided
are as follows:
|
If
to IceWEB:
|
IceWEB,
INC.
|
|
000
Xxxxxxx Xxxxxxx, Xxxxx 000
|
|
|
Xxxxxxx,
Xxxxxxxx 00000
|
|
|
Attention:
Xxxxxxx Xxxxx, President
|
|
|
Voice:
(000) 000-0000
|
|
|
with
a copy to:
|
Xxx
X. Xxxx, PLC
|
|
0000
Xxxxxxx Xxxxx
|
|
|
Xxxxxxx,
XX 00000
|
|
|
Attention:
Xxx Xxxx, Esq.
|
|
|
If
to IOI:
|
Iceweb
Online, Inc.
|
|
000
Xxxxxxx Xxxxxxx, Xxxxx 000
|
|
|
Xxxxxxx,
Xxxxxxxx 00000
|
|
|
Attention:
Xxxxxxx Xxxxx, President
|
|
|
Voice:
(000) 000-0000
|
|
|
with
a copy to:
|
Xxx
X. Xxxx, PLC
|
|
0000
Xxxxxxx Xxxxx
|
|
|
Xxxxxxx,
XX 00000
|
|
|
Attention:
Xxx Xxxx, Esq.
|
18
|
If
to PatriotNet:
|
PatriotNet,
Inc.
|
|
00000
Xxx Xxxxxxx
|
|
|
Xxxxx
000
|
|
|
Xxxxxxx,
XX 00000
|
|
|
Attention:
Chief Executive Officer
|
|
|
with
a copy to:
|
Holland
& Knight LLP
|
|
0000
Xxxxxx Xxxxxxxxx, Xxxxx 000
|
|
|
XxXxxx,
XX 00000
|
|
|
Attention:
Xxxxx-Xxxxxxxxx Xxxxx, Esq.
|
|
|
If
to PCG:
|
Patriot
Computer Group, Inc.
|
|
00000
Xxx Xxxxxxx
|
|
|
Xxxxx
000
|
|
|
Xxxxxxx,
XX 00000
|
|
|
Attention:
Chief Executive Officer
|
|
|
with
a copy to:
|
Holland
& Knight LLP
|
|
0000
Xxxxxx Xxxxxxxxx, Xxxxx 000
|
|
|
XxXxxx,
XX 00000
|
|
|
Attention:
Xxxxx-Xxxxxxxxx Xxxxx, Esq.
|
Any
party
may change the address to which notice is to be provided to it by written notice
to the other party hereto delivered pursuant to this Section.
11.03 Governing
Law; Venue.
This
Agreement and the rights and duties of the parties hereto shall be construed
and
determined in accordance with the laws of the Commonwealth of Virginia, without
regard to the choice of laws provisions thereof. In the event of a dispute
arising out of or related to this Agreement, all parties agree to litigate
said
dispute or disputes in either the General District Court of Fairfax County,
Virginia or the Circuit Court of Fairfax County, Virginia
11.04 Successors
and Assigns.
This
Agreement shall be binding upon the parties and their successors and assigns
and
shall inure to the benefit of the other parties and successors and
assigns.
11.05 Counterparts.
This
Agreement may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one
instrument.
11.06 Entire
Agreement.
This
Agreement constitutes the entire understanding of the parties with respect
to
transactions contemplated hereby, and all prior understandings with respect
thereto, whether written or oral, shall be of no force and effect.
11.07 Partial
Invalidity.
If any
term of this Agreement shall be held to be invalid or unenforceable, such term
shall be deemed to be severable and the validity of the other terms of this
Agreement shall in no way be affected thereby.
19
11.08 Headings.
The
descriptive headings of the various Sections or parts of this Agreement are
for
convenience only and shall not affect the meaning or construction of any of
the
provisions hereof.
11.09 Limitation
on Warranties.
(a)
PatriotNet and PCG make no representations or warranties with respect to any
projections, forecasts or forward-looking information provided to IceWEB or
IOI.
There is no assurance that any projected or forecasted results will be achieved.
EXCEPT
AS TO THOSE MATTERS EXPRESSLY COVERED BY THE REPRESENTATIONS AND WARRANTIES
IN
ARTICLE
III,
PATRIOTNET AND PCG DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS
OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
ANY
PARTICULAR PURPOSE, AND, EXCEPT AS TO THOSE MATTERS EXPRESSLY COVERED BY THE
REPRESENTATIONS AND WARRANTIES IN ARTICLE
III,
ICEWEB AND IOI ACKNOWLEDGE THAT THEY WILL BE ACQUIRING THE ASSETS ON AN “AS IS,
WHERE IS” BASIS.
IceWEB
and IOI acknowledge that neither PatriotNet and PCG nor any other person or
entity has made any representation or warranty, express or implied, as to the
accuracy or completeness of any information which is not included in this
Agreement, and neither PatriotNet and PCG nor any other person will have, or
be
subject to, any liability to IceWEB or IOI, or any of their respective
affiliates or any other person or entity resulting from the distribution of
any
such information to, or use of any such information by, IceWEB or IOI, or any
of
their respective affiliates, or any of their respective agents, consultants,
accountants, counsel or other representatives. Without limitation of the
foregoing, to the extent that any memoranda or summaries prepared by PatriotNet
and PCG or by any of its advisors or representatives regarding the Business,
the
Assets or the assumed liabilities as set forth in Schedule 1.12.a are or have
been provided to IceWEB or IOI, IceWEB or IOI acknowledges and agrees that
no
representation or warranty is made to IceWEB or IOI or any of their respective
affiliates, or any other person or entity as to the completeness or accuracy
of
such memoranda or summaries.
20
(b)
IceWEB and IOI make no representations or warranties with respect to any
projections, forecasts or forward-looking information provided to PatriotNet
or
PCG. There is no assurance that any projected or forecasted results will be
achieved. EXCEPT
AS TO THOSE MATTERS EXPRESSLY COVERED BY THE REPRESENTATIONS AND WARRANTIES
IN
ARTICLES
V AND VI,
ICEWEB AND IOI DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS
OR
IMPLIED, AND, EXCEPT AS TO THOSE MATTERS EXPRESSLY COVERED BY THE
REPRESENTATIONS AND WARRANTIES IN ARTICLES
V AND VI,
PATRIOTNET AND PCG ACKNOWLEDGE THAT THEY WILL BE ACQUIRING THE ICEWEB SHARES
ON
AN “AS IS, WHERE IS” BASIS.
PatriotNet and PCG acknowledge that neither IceWEB, nor IOI, nor any other
person or entity has made any representation or warranty, express or implied,
as
to the accuracy or completeness of any information which is not included in
this
Agreement, and neither IceWEB, nor IOI, nor any other person will have, or
be
subject to, any liability to PatriotNet or PCG, or any of their respective
affiliates or any other person or entity resulting from the distribution of
any
such information to, or use of any such information by, PatriotNet or PCG,
or
any of their respective affiliates, or any of their respective agents,
consultants, accountants, counsel or other representatives. Without limitation
of the foregoing, to the extent that any memoranda or summaries prepared by
IceWEB and IOI or by any of its advisors or representatives regarding IceWEB
or
IOI, or the IceWEB Shares, are or have been provided to PatriotNet or PCG,
PatriotNet and PCG acknowledge and agree that no representation or warranty
is
made to PatriotNet or PCG or any of their respective affiliates, or any other
person or entity as to the completeness or accuracy of such memoranda or
summaries.
(Remainder
of page intentionally left blank; signatures on following
pages.)
21
IN
WITNESS WHEREOF,
the
undersigned have executed this Asset Purchase Agreement, effective as of the
Effective Date.
|
IOI:
|
||||
|
ICEWEB
ONLINE, INC.,
|
||||
|
a
Virginia corporation
|
||||
|
By:
|
||||
|
|
Xxxxxxx
Xxxxx, President
|
|||
|
ATTEST:
|
||||
|
By:
|
||||
|
My
Xx Xxxxxx, Corporate Secretary
|
||||
|
(SEAL)
|
||||
|
ICEWEB:
|
||||
|
ICEWEB,
INC., a
Delaware corporation
|
||||
|
By:
|
||||
|
|
Xxxxxxx
Xxxxx, President
|
|||
|
ATTEST:
|
||||
|
By:
|
||||
|
My
Xx Xxxxxx, Corporate Secretary
|
||||
|
(SEAL)
|
||||
(Signatures
continue on following page.)
22
| PATRIOTNET: | ||||
| PATRIOTNET, INC., | ||||
| a Virginia corporation | ||||
|
By:
|
||||
|
Xxxxxxx
X. xx Xxxxxxx
|
||||
|
Chief
Executive Officer
|
||||
|
ATTEST:
|
||||
|
By:
|
||||
|
,
Corporate Secretary
|
||||
|
(SEAL)
|
||||
| PATRIOTNET: | ||||
| PATRIOT COMPUTER GROUP, INC., | ||||
| a Virginia corporation | ||||
|
By:
|
|
|||
|
Xxxxxxx
X. xx Xxxxxxx
|
||||
|
Chief
Executive Officer
|
||||
|
ATTEST:
|
||||
|
By:
|
||||
|
,
Corporate Secretary
|
||||
|
(SEAL)
|
||||
23
