EXHIBIT 2.1
STOCK PURCHASE AND EXCHANGE AGREEMENT
This Stock Purchase and Exchange Agreement and Plan of Merger
("Agreement"), dated as of June 18, 2003, is entered into by and among ICEWEB
COMMUNICATIONS, INC. a Delaware corporation ("Iceweb"), INTERLAN COMMUNICATIONS,
a Virginia corporation ("Interlan") and G. ANTHONY MUNNO, BRIAN J. IANNIELLO and
MARTIN SAINSBURY-CARTER (collectively the "Shareholders"), being all the
Shareholders of INTERLAN
RECITALS:
A. The Shareholders are the owners of all of the issues and
outstanding capital stock of Interlan.
B. Iceweb desires to acquire all of the capital stock of Interlan
owned by the Shareholders, making Interlan a wholly owned
subsidiary of Iceweb, and the Shareholders desire to exchange
their shares of Interlan's capital stock for authorized but
unissued shares of Common Stock, par value $.001 per share
(the "Common Stock") of Iceweb as hereinafter provided.
C. It is the intention of the parties hereto that: (i) Iceweb
shall acquire all of the capital stock of Interlan owned by
the Shareholders in exchange solely for the consideration set
forth below (the "Exchange"); (ii) the Exchange shall qualify
as a transaction in securities exempt from registration or
qualification under the Securities Act of 1933, as amended,
and under the applicable securities laws of each jurisdiction
where the Shareholders reside, and (iii) the Exchange is
intended to qualify as a "tax-free" transaction within the
meaning of Section 368 of the Internal Revenue Code of 1986.
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows: herein set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
PURCHASE OF SHARES
1.01 ACQUISITION OF SHARES. Iceweb and the Shareholders hereby agree
that the Shareholders shall, on the Closing Date (as hereinafter defined),
exchange 15,000 shares of the Common Stock of Interlan, which constitute 100% of
the issued and outstanding shares of capital stock of Interlan (the "Interlan
Shares") and, in exchange therefore, Iceweb shall issue to the Shareholders
200,000 shares of Iceweb's Common Stock (the "Iceweb Shares") to be divided
equally among the three shareholders.
1.02 DELIVERY OF INTERLAN AND ICEWEB SHARES. On the Closing Date, the
Shareholders will deliver to Iceweb the certificates representing the Interlan
Shares, duly endorsed for transfer (or with executed stock powers), so as to
make Iceweb the sole owner thereof. Simultaneously, Iceweb will deliver
certificates representing the Iceweb Shares to the Shareholders as provided in
Exhibit A.
1.03 INVESTMENT INTENT. The Iceweb shares have not been registered
under the Securities Act
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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. The Shareholders represent and warrant that they are acquiring the
Iceweb Shares for their respective accounts 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."
ARTICLE II
CLOSING
2.01 TIME AND PLACE OF CLOSING. If not consummate simultaneously
herewith, the transactions contemplated by this Agreement shall be consummated
on or about June ____, 2003, at such place as the parties shall mutually agree
(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) The Shareholders shall cause the Interlan Common Stock to be
delivered to Iceweb, duly endorsed for transfer;
(b) Iceweb shall deliver, or provide irrevocable instructions to issue
and deliver, the Iceweb Shares; and
(c) the current officers and directors of nd Iceweb shall deliver their
resignations as such.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF INTERLAN AND THE SHAREHOLDERS
Interlan and the Shareholders, jointly and severally, hereby represent
and warrant to Iceweb as follows:
3.01 LEGAL CAPACITY OF INTERLAN.
(a) Interlan 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 Interlan, 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 Interlan 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 Interlan is subject or by which Interlan or any of its respective
assets or properties is bound.
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(c) This Agreement has been duly and validly executed by Interlan, and
constitutes a valid and binding obligation of Interlan enforceable against
Interlan 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.
3.02 ORGANIZATION AND AUTHORITY OF INTERLAN. Interlan is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, 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. Interlan 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 Interlan (a "Interlan Material Adverse
Effect"). Interlan has no subsidiaries.
3.03 CAPITALIZATION. The authorized capital stock of Interlan consists
of (i) 15,000 shares of Interlan Common Stock, of which 15,000 shares of Common
Stock are issued and outstanding on the date hereof, and (ii) 0 shares of
Interlan Preferred Stock, none of which are issued and outstanding on the date
hereof. Interlan 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
Interlan. The issued and outstanding Interlan 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.
3.04 CONSENTS AND APPROVALS. This Agreement and the transactions
contemplated hereby have been duly authorized by the Board of Directors and by
the Shareholders. 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 or with respect to
FRI in connection with the execution and delivery by Interlan of this Agreement
and the consummation and performance by it of the transactions contemplated
hereby. The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the performance by Interlan 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 Interlan'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 Interlan (ii) any instrument,
contract or other material agreement by or to which Interlan is a party or by or
to which Interlan'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, Interlan or the assets or properties
of Interlan; or (iv) any license, franchise, approval, certificate, permit or
authorization applicable to Interlan or any of Interlan's assets; or (b) result
in the creation of any lien, charge or encumbrance of any nature, upon the
Interlan Shares or assets or property of Interlan.
3.05 FINANCIAL STATEMENTS, BOOKS AND RECORDS. The following Interlan
financial statements are attached hereto as Schedule 3.05: the unaudited balance
sheet of Interlan as of June _______________________ (the "Balance Sheet"), and
the related unaudited statement of operations for the period then ended (the
"Financial Statements"). The Financial Statements are true and accurate and
fairly represent the financial position of Interlan as at such date and the
results of its operations for the period then ended, and have been prepared in
accordance with generally accepted accounting principles
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consistently applied, except for the omission of footnotes or otherwise as
indicated therein. Since the date of the Balance Sheet there has not been:
(a) any change which could reasonably be expected to have a
Interlan Material Adverse Effect:
(b) any damage, destruction or loss which could reasonably be
expected to have a Interlan Material Adverse Effect;
(c) any declaration, setting aside or payment of any distribution
or with respect to any redemption or repurchase of Interlan's
capital stock; or
(d) any sale of an asset (other than in the ordinary course of
business) or any mortgage or pledge by Interlan of any
properties or assets.
3.06 LITIGATION. Except as disclosed in Schedule 3.06 hereto, 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 Interlan or any of Interlan's
properties or rights which (a) could reasonably be expected to have an Interlan
Material Adverse Effect, or (b) could reasonably be expected to prevent the
consummation of any of the transactions contemplated by this Agreement.
3.07 TAXES. Interlan 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 Interlan is
currently the Subject of an audit, and no notice of a planned audit has been
received by Interlan.
3.08 CORPORATE RECORDS. Interlan has granted Iceweb access to all the
tax, accounting, corporate and financial books and records relating to the
business of Interlan. Such books and records have been maintained on a current
basis, are true and complete in all material respects, and fairly reflect the
financial condition and results of operations of Interlan as of the dates
thereof and the periods ended. The minute books of Interlan contain complete and
accurate records of all meetings and other corporate actions of its Board of
Directors and stockholders and have been made available to Iceweb for review.
3.09 INTERLAN'S PROPERTIES. Interlan has good and marketable title to
all its personal property, equipment, processes, patents copyrights, trademarks,
franchises, licenses and other properties and assets (except for items leased or
licensed to Interlan), including all property reflected in Interlan's Financial
Statements (except for assets reflected therein which have been sold in the
normal course of its business where the proceeds from such sale or other
disposition have been properly accounted for in the financial statements of
Interlan), in each case free and clear of all liens, claims and encumbrances of
every kind and character, except as set for the in Schedule 3.09. Interlan has
no ownership interest in any real property. The assets and properties owned,
operated or leased by Interlan and used in its business are in good operating
condition, reasonable wear and tear excepted, and suitable for the uses for
which intended.
3.10 INSURANCE. Schedule 3.10 contains an accurate and complete list
and brief description of 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 Interlan. Interlan is not in default with respect to any
provisions of any such policy or indemnity the Shareholders and has not failed
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to give any notice or present any claim hereunder in due and timely fashion. All
policies of insurance and the bonds are: (1) in full force and effect; (2) are
sufficient for compliance by Interlan with all requirements of law and of all
agreements and instruments to which Interlan is a party; (3) are valid,
outstanding and enforceable; (4) provide adequate insurance coverage for the
assets, business and operations of Interlan in amounts at least equal to
customary coverage in Interlan'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.
3.11 TRANSACTIONS WITH CERTAIN PERSONS. Except as disclosed in Schedule
3.11, Interlan has no outstanding agreement, understanding, contract, lease,
commitment, loan or other arrangement with any officer, director or shareholder
of Interlan or any relative of any such person, or any corporation or other
entity in which such person owns beneficial interest.
3.12 MATERIAL CONTRACTS. Interlan has no purchase, sale, commitment, or
other contract, the breach or termination of which would have a Interlan
Materially Adverse Effect on the business, financial condition results of
operations, assets, liabilities, or prospects of Interlan
3.13 EMPLOYMENT MATTERS. Schedule 3.13 contains a list of all officers,
their contracts, base salaries, accrued vacation pay, sick pay, and severance
pay. Interlan 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. Interlan
has not been a party to a "prohibited transaction," which would Subject Interlan
to any tax or penalty. There is no collective bargaining agreement or
negotiations therefore, labor grievance or arbitration proceeding against
Interlan pending or threatened, and to the knowledge of Interlan, there are no
union organizing activities currently pending or threatened against or involving
Interlan.
3.14 AUTHORIZATIONS. Interlan has no licenses, permits, approvals and
other authorizations from any governmental agencies and any other entities that
are necessary for the conduct of its business except as set for the in Schedule
3.14, which contains a list of all licenses, permits approvals, and other
authorizations, as well as a list of all copyrights, patents, trademarks, trade
names, service marks, franchises, licenses and other permits, each of which is
valid and in full force and effect.
3.15 COMPLIANCE WITH LAWS. Interlan 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 threatened complaint, citation or
notice of violation or investigation from any governmental authority.
3.16 COMPLIANCE WITH ENVIRONMENTAL LAWS. Interlan is in Compliance with
all applicable pollution control and environmental laws, rules and regulations.
Interlan has no environmental licenses, permits and other authorizations
relative to compliance with environmental laws, rules and regulations.
3.17 NO LITIGATION. There are no actions, suits, claims, complaints or
proceedings pending or threatened against Interlan, at law or in equity, or
before or by any governmental department, commission, court, board, bureau,
agency or instrumentality; and there are no facts which would provide a valid
basis for any such action, suit or proceeding. There are no orders, judgments or
decrees or any governmental authority outstanding, which specifically apply to
Interlan or any of its assets.
3.18 VALIDITY. All contracts, agreements, leases and licenses to which
Interlan is a party or by which it or any of its properties or assets are bound
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or affected, are valid and in full force and effect; and no breach or default
exists, or upon the giving of notice or lapse of time, or both, would exist, on
the part of Interlan or by any other party thereto.
3.19 NO BROKERS. Neither Interlan nor The Shareholders is a party to
any agreement pursuant to which Interlan or Iceweb will become obligated to pay
a commission to any person as a result of consummation of the transactions
contemplated hereby.
3.20 INFORMATION ON THE SHAREHOLDERS. The Shareholders each represent
that they are each an "accredited investor," as such term is defined in
Regulation D promulgated by the Act, are experienced in investments and business
matters, has made investments of a speculative nature and, with its
representatives, have such knowledge and experience in financial, tax and other
business matters as to enable them 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. The Shareholders are able to bear the risk of such investment for an
indefinite period and to afford a complete loss thereof.
3.21 OWNERSHIP OF INTERLAN SHARES AND AUTHORIZATION OF AGREEMENT. Each
of the Shareholders represents that he is the sole owner of record and
beneficially owns all of the shares of capital stock of Interlan attributed to
him in Exhibit A, 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 either Interlan or the Shareholders to issue, sell or transfer any
stock or other securities of Interlan. The Shareholders have the power to enter
into this Agreement and to carry out the obligations hereunder This Agreement
has been duly executed by the Shareholders and constitutes the valid and binding
obligation of the Shareholders and is enforceable against the Shareholders in
accordance with its terms.
3.22 FULL DISCLOSURE. No representation or warranty by Interlan or the
Shareholders in this Agreement or in any document or schedule to be delivered by
them pursuant hereto, and no written statement, certificate or instrument
furnished or to be furnished to Iceweb or Iceweb pursuant hereto or in
connection with the negotiation, execution or performance of this Agreement,
contains or will contain any untrue statement of a material fact or omits or
will omit to state any material fact or any fact necessary to make any statement
herein or therein not materially misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ICEWEB
Iceweb hereby represents and warrants to Interlan and the Shareholders
as follows:
4.01 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 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.
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(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.
4.02 ORGANIZATION AND AUTHORITY OF ICEWEB. Iceweb is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, 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 (a "Iceweb Material Adverse Effect").
4.03 CAPITALIZATION. The authorized capital stock of Iceweb consists of
100,000,000 shares of Common Stock, of which 31,053,000 shares are issued and
outstanding on the date hereof and 0 shares of Preferred Stock, no shares of
which are issued and outstanding. 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.
4.04 CONSENTS AND APPROVALS. This Agreement and the transactions
contemplated hereby have been duly authorized by the 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.
4.05 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.
4.06 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 Iceweb or any of their respective properties or rights which
(i) could reasonably be
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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.
4.07 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.
4.08 CORPORATE RECORDS. Iceweb has provided Interlan access to all the
tax, accounting, corporate and financial books and records relating to Iceweb.
Such books and records have been maintained on a current basis, are true and
complete and fairly reflect the financial condition and results of operations of
Iceweb as of the dates thereof and the periods ended.
4.09 NO BROKERS. Iceweb is not a party to any agreement pursuant to
which Interlan, the Shareholders or Iceweb 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.
4.10 FULL DISCLOSURE. No representation or warranty by Iceweb in this
Agreement or in any document or schedule to be delivered by them pursuant
hereto, and no written statement, certificate or instrument furnished or to be
furnished to Interlan or the Shareholders pursuant hereto or in connection with
the negotiation, execution or performance of this Agreement, contains or will
contain any untrue statement of a material fact or omits or will omit to state
any material fact or any fact necessary to make any statement herein or therein
not materially misleading.
ARTICLE V
COVENANTS OF INTERLAN AND THE SHAREHOLDERS
Interlan and the Shareholders covenant and agree that from the date
hereof to the Closing without the prior written consent of Iceweb:
5.01 ORDINARY COURSE OF BUSINESS. Interlan will operate the business of
Interlan only in the ordinary course and will use its best efforts to preserve
Interlan's business, origination, goodwill and relationships with persons having
business dealings with them.
5.02 MAINTAIN PROPERTIES. Interlan will maintain all of Interlan's
properties in good working order, repair and condition (reasonable wear and use
excepted) and cause Interlan to take all steps reasonably necessary to maintain
in full force and effect its patents, trademarks, service marks, trade names,
brand names, copyrights and other intangible assets.
5.03 COMPENSATION. Interlan will not (a) enter into or alter any
employment agreements; (b) grant any increase in compensation other than normal
merit increases consistent with Interlan's general prevailing practices to any
officer or employee; or (c) enter into or alter any labor or collective
bargaining agreement or any bonus or other employee fringe benefit.
5.04 NO INDEBTEDNESS. Interlan will create, incur, assume guarantee or
otherwise become liable with respect to any obligation for borrowed money,
indebtedness, capitalized lease or similar obligation, except in the ordinary
course of business consistent with past practices where the entire net proceeds
thereof are deposited with and used by and in connection with the business of
Interlan.
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5.05 NO DISPOSITION ON ENCUMBRANCE. Except in the ordinary course of
business consistent with past practice, Interlan will not (a) dispose of or
encumber any of its properties and assets, (b) discharge or satisfy any lien or
encumbrance or pay any obligation or liability (fixed or contingent) except for
previously scheduled repayment of debt, (c) cancel or compromise any debt or
claim, (d) transfer or grant any rights under any concessions, leases, licenses,
agreements, patents, inventions, proprietary technology or process, trademarks,
service marks or copyrights, or with respect to any know-how, or (e) enter into
or modify in any material respect or terminate any existing license, lease, or
contract.
5.06 NO SECURITIES ISSUANCES. Neither Interlan nor the Shareholders
will issue any shares of any class of capital stock, or enter into any contract,
option, warrant or right calling for the issuance of any such shares of capital
stock, or create or issue any securities convertible into any securities of
Interlan except for the transactions contemplated herein.
5.07 CAPITAL COMMITMENTS. Interlan will not make or commit to make any
capital expenditure, capital addition or capital improvement.
5.08 NOTICE OF CHANGE. Interlan will promptly advise Iceweb in writing
of any Interlan Material Adverse Change, or the occurrence of any event which
involves any Icewebstantial possibility of a material adverse change, in the
business, financial condition, results of operations, assets, liabilities or
prospects of Interlan.
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF ICEWEB TO CLOSE
The obligation of Iceweb to close the transactions contemplated hereby
is Subject to the fulfillment by Interlan and the Shareholders prior to Closing
of each of the following conditions, which may be waived in whole or in part by
Iceweb:
6.01 COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties and covenants of Interlan and the Shareholders
contained in this Agreement shall have been true and correct when made.
6.02 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 Interlan.
6.03 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.
6.04 DOCUMENTS TO BE DELIVERED BY INTERLAN. Interlan or the
Shareholders shall have delivered the following documents:
(a) Stock certificates representing all of the Interlan Common Stock,
duly endorsed or in blank or accompanied by duly executed stock powers.
(b) All corporate and other records of applicable to Interlan
including, but not limited to, current and up to date minute books, stock
transfer books and registers, books or accounts, leases and material contracts.
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(c) Such other documents or certificates as shall be reasonably
required by Iceweb or its counsel in order to close and consummate this
Agreement.
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF INTERLAN
AND THE SHAREHOLDERS TO CLOSE
The obligation of Interlan and the Shareholders 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
Interlan:
7.01 COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties made by Iceweb 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 shall have performed all agreements, covenants and
conditions required to be performed by Iceweb prior to the Closing.
7.02 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.
7.03 ISSUANCE OF ICEWEB SHARES. Iceweb shall issue 200,000 shares.
7.04 BANK NOTE PAYABLE. IceWEB shall pay $29,500 to United Bank.
7.05 PURCHASE PRICE. $42,000 payable to
7.05.1 $18,900 PAYABLE TO ANTHONY MUNNO
7.05.2 $18,900 PAYABLE TO BRIAN J. IANNIELLO
7.05.3 $ 4,000 PAYABLE TO MARTIN SAINSBURY-CARTER
ARTICLE VIII
MODIFICATION, WAIVERS, TERMINATION AND EXPENSES
8.01 MODIFICATIONS. Iceweb and Interlan and the Shareholders may amend,
modify or supplement this Agreement in any manner as they may mutually agree in
writing.
8.02 WAIVERS. Iceweb and Interlan and the Shareholders 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.
8.03 TERMINATION BY ABANDONMENT. This Agreement may be terminated
before the Closing:
a) By the mutual consent of Iceweb, Interlan and the Shareholders;
b) By Iceweb, if the representations and warranties of Interlan and the
Shareholders set forth herein shall not be accurate, or conditions precedent set
forth herein shall not have been satisfied in all material respects;
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c) By Interlan and the Shareholders, if the representations and
warranties of Iceweb 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.
ARTICLE IX
INDEMNIFICATION
9.01 INDEMNIFICATION BY INTERLAN AND THE SHAREHOLDERS. Interlan and the
Shareholders hereby indemnify and hold Iceweb harmless from and against any and
all damages, losses, liabilities, obligations, costs or expenses incurred by
Iceweb and arising out of the breach of any representation, warranty or covenant
of Interlan or the Shareholders hereunder, or failure to perform any covenant or
obligation required to be performed by them hereunder.
9.02 INDEMNIFICATION BY ICEWEB. Iceweb hereby indemnifies and holds
Interlan and the Shareholders harmless from and against any and all damages,
losses, liabilities, obligations, costs or expenses incurred by Interlan and
arising out of the breach of any representation or warranty of Iceweb hereunder,
or Iceweb's failure to perform any covenant or obligation required to be
performed by either of them hereunder.
9.03 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.
9.04 BASKET. Notwithstanding any conflicting or inconsistent provisions
hereof, Interlan and the Shareholders shall not be liable in damages, indemnity
or otherwise to Iceweb in respect of the inaccuracy or breach of any
representations, warranties, covenants or agreements herein, except to the
extent that the damages to Iceweb, singularly or in the aggregate, exceed the
sum of $10,000. Notwithstanding any conflicting or inconsistent provisions
hereof, Iceweb shall not be liable in damages, indemnity or otherwise to
Interlan or the Shareholders in respect to the inaccuracy or breach of any
representations, warranties, covenants or agreements herein except to the extent
that damages to Interlan exceed, individually or in the aggregate, the sum of
$10,000.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.01 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.
10.02 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:
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If to Iceweb: Iceweb, INC.
620 Herndon Parkway, Suite 360
Herndon, Virginia 20170
Attention: John R. Signorello, President
Facsimile: (703) 964-0160
If to Interlan: Interlan Communications, Inc.
131 Elden Street, Suite 100
Herdon, Virginia 20170
Attenion: G. Anthony Munno
Facsimile: (___) ___-____
If to the Shareholders: c/o
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.
10.03 GOVERNING LAW. This Agreement and the rights and duties of the
parties hereto shall be construed and determined in accordance with the laws of
the State of Virginia, without regard to the choice of laws provisions thereof.
10.04 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.
10.05 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and all such counterparts taken together shall be deemed to
constitute one instrument.
10.06 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.
10.7 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.
10.8 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.
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IN WITNESS WHEREOF, the undersigned have executed this Stock Purchase
and Exchange Agreement effective the 18th day of June, 2003.
ICEWEB, INC.
By: _____________________________
John R. Signorello, President
INTERLAN COMMUNICATIONS, INC.
By: _____________________________
G. Anthony Munno, President
_____________________________
G. Anthony Munno
_____________________________
Brian J. Ianniello
_____________________________
Martin Salisbury-Carter
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