EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Agreement"), dated as of June 12,
2003, is entered into by and among ICEWEB COMMUNICATIONS, INC. a Delaware
corporation ("Iceweb"), SEVEN ACQUISITION CORP., a Virginia corporation to be
formed as wholly-owned subsidiary of Iceweb ("SUB"), and SEVEN CORPORATION,
INC., a Virginia corporation ("Seven"), and JAMES BOND, the sole stockholder of
Seven ("Bond").
WHEREAS, the Boards of Directors of Iceweb, SUB and Seven deem it
advisable and in the best interests of each corporation and their respective
stockholders that Seven be acquired by Iceweb in a merger consummated as
hereinafter set forth and in accordance with the applicable laws of the State of
Virginia; and
WHEREAS, it is intended that the acquisition of Seven by Iceweb be
effected by a Merger (as defined below) of SUB with and into Seven, with Seven
surviving such Merger, and which is intended to be treated for Federal income
tax purposes as a reorganization described in Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "Code").
NOW THEREFORE, in consideration of the mutual promises and covenants
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
THE MERGER
1.01 TERMS OF THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as hereinafter defined), SUB shall be merged
with and into Seven and the separate corporate existence of SUB shall thereupon
cease (the "Merger"). Seven (sometimes hereinafter referred to as the "Surviving
Corporation") shall be the surviving corporation to the Merger. The Merger shall
have the effects set forth in the applicable provisions of the Virginia General
Corporation Act (the "Virginia Act").
1.02 EFFECTIVE TIME OF THE MERGER. If all the conditions to the Merger
set forth herein shall have been fulfilled or waived, as hereinafter provided,
and this Agreement shall not have been terminated, on the Closing Date (as
hereinafter defined), the parties hereto shall cause Articles of Merger (the
"Articles of Merger") that meet the applicable requirements of the Virginia Act
to be properly executed and filed with the Secretary of the State of Virginia.
The Merger shall be effective at the time of filing of the Articles of Merger
with the Secretary of the State of Virginia, or at such later time which the
parties hereto shall have lawfully agreed upon and designated in such filings as
the effective time of the Merger (the "Effective Time").
1.03 THE SURVIVING CORPORATION. At the Effective Time:
(a) ARTICLES OF INCORPORATION. The Certificate of Incorporation of
Seven in effect immediately prior to the Effective Time shall be the Certificate
of Incorporation of the Surviving Corporation.
(b) BYLAWS. The Bylaws of Seven as in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation.
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(c) DIRECTORS AND OFFICERS. The directors and officers of SUB at the
Effective Time shall resign, and the directors and officers of Seven, in
addition to officers and directors designated by Iceweb, shall assume their
duties as the initial directors and officers of the Surviving Corporation and
shall hold office from the Effective Time until their respective successors are
duly elected or appointed and qualify in the manner provided in the Certificate
of Incorporation and Bylaws of the Surviving Corporation, or as otherwise
provided by law.
1.04 DIRECTORS AND OFFICERS OF ICEWEB James Bond shall hold office from
the Effective Time until their respective successors are duly elected or
appointed and qualify in the manner provided in the Certificate of Incorporation
and Bylaws of Iceweb, or as otherwise provided by law.
1.05 CONVERSION OF SEVEN SHARES.
(a) SEVEN SECURITIES. At the Effective Time, by virtue of the Merger
and without any action on the part of Iceweb, SUB or Seven, or the holder of
capital stock of any of them, the 25,000 shares of Seven common stock, par value
$.01 per share (the "Seven Common Stock"), issued and outstanding immediately
prior to the Effective Time, shall be converted into the right to receive
300,000 shares (the "Iceweb Shares") of Iceweb common stock, par value $.001 per
share ("Common Stock").
(b) EFFECT OF MERGER. At the Effective Time, all outstanding Seven
Common Stock shall be cancelled except for 100 shares which shall be retained by
Iceweb.
(c) STATUS OF REGISTRATION. The Iceweb Shares are not registered under
the Securities Act of 1933, as amended (the "Act"), and will be issued pursuant
to the exemption afforded under Section 4(2) of the Act and the rules and
regulations promulgated thereunder.
(d) DISSENTERS. Notwithstanding the foregoing, any holder of Seven
Common Stock who shall exercise the rights of a dissenting stockholder pursuant
to and strictly in accordance with the Virginia Act shall be entitled to receive
only the payment therein provided for and shall not be entitled to receive
Iceweb Shares.
1.06 STOCK CERTIFICATES. At or following the Effective Time, each
holder of an outstanding certificate or certificates representing Seven Common
Stock shall surrender the same to SUB and SUB shall, in exchange therefor, cause
to be issued to the holder of such certificate(s) a new certificate representing
shares of Iceweb Shares, and the surrendered certificate(s) shall be cancelled
as provided above. Until so surrendered and exchanged, each such certificate
shall represent solely the right to receive the consideration described in
Section 1.05, without interest.
1.07 FRACTIONAL SHARES. No fractional shares of Iceweb Common Stock
shall be issued in the Merger. In the event that a holder of FRI Common Stock
would otherwise be entitled to receive any fractional shares of Iceweb Common
Stock as a result of the Merger, such holder shall be entitled to receive one
full share in lieu thereof.
1.08 TRANSFERS. From and after the Effective Time, there shall be no
further transfers on the stock transfer books of Seven. If, subsequent to the
Effective Time, certificates evidencing shares of Seven are presented, they
shall be cancelled and exchanged as provided in this Article I.
1.09 ICEWEB GUARANTEE. Iceweb hereby unconditionally guarantees the
performance of the obligations of SUB pursuant to the terms and conditions
hereof.
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ARTICLE II
CLOSING
2.01 TIME AND PLACE OF CLOSING. The transactions contemplated by this
Agreement shall be consummated on or about June 14th, 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) Seven shall cause the Seven Common Stock to be delivered to SUB,
duly endorsed for transfer;
(b) Iceweb shall deliver, or provide irrevocable instructions to issue
and deliver, the consideration described in Section 1.05(a); and
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SEVEN AND BOND
Seven and Bond, jointly and severally, hereby represent and warrant to
Iceweb as follows:
3.01 LEGAL CAPACITY OF SEVEN.
(a) Seven 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 Seven, 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 Seven 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 Seven is subject or by which Seven or any of its respective assets or
properties is bound.
(c) This Agreement has been duly and validly executed by Seven, and
constitutes a valid and binding obligation of Seven enforceable against Seven 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 therefore may be brought.
3.02 ORGANIZATION AND AUTHORITY OF SEVEN. Seven 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. Seven 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 Seven (a "Seven Material Adverse Effect").
Seven has no subsidiaries.
3.03 CAPITALIZATION. The authorized capital stock of Seven consists of
(i)25,000 shares of Seven Common Stock, of which 25,000 shares of Common Stock
are issued and outstanding on the date hereof, and (ii) 0 shares of Seven
Preferred Stock, none of which are issued and outstanding on the date hereof.
Seven is not a party to or bound by any options,
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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 Seven. The issued and outstanding Seven 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
prior to the Closing will have been authorized by the sole Stockholder, of
Seven. 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 Seven 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 Seven 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 Seven'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 Seven (ii) any instrument, contract or other
material agreement by or to which Seven is a party or by or to which Seven'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, Seven or the assets or properties of Seven; or (iv) any license,
franchise, approval, certificate, permit or authorization applicable to Seven or
any of Seven's assets; or (b) result in the creation of any lien, charge or
encumbrance of any nature, upon the Seven Shares or assets or property of Seven.
3.05 FINANCIAL STATEMENTS. SEE ATTACHED
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 Seven or any of Seven's
properties or rights which (a) could reasonably be expected to have an Seven
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. Seven 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 Seven is currently
the subject of an audit, and no notice of a planned audit has been received by
Seven.
3.08 CORPORATE RECORDS. Seven has granted Iceweb access to all the tax,
accounting, corporate and financial books and records relating to the business
of Seven. 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 Seven as of the dates thereof and the
periods ended. The minute books of Seven 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 SEVEN'S PROPERTIES. Seven 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 Seven), including all property reflected in Seven's Financial
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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
Seven), 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. Seven has no
ownership interest in any real property. The assets and properties owned,
operated or leased by Seven 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 bonds
held by Seven. Seven is not in default with respect to any provisions of any
such policy or indemnity bond and has not failed to give any notice or present
any claim hereunder in due and timely fashion. All policies of insurance and
bonds are: (1) in full force and effect; (2) are sufficient for compliance by
Seven with all requirements of law and of all agreements and instruments to
which Seven is a party; (3) are valid, outstanding and enforceable; (4) provide
adequate insurance coverage for the assets, business and operations of Seven in
amounts at least equal to customary coverage in Seven'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, Seven has no outstanding agreement, understanding, contract, lease,
commitment, loan or other arrangement with any officer, director or shareholder
of Seven or any relative of any such person, or any corporation or other entity
in which such person owns beneficial interest.
3.12 MATERIAL CONTRACTS. Seven has no purchase, sale, commitment, or
other contract, the breach or termination of which would have a Seven Materially
Adverse Effect on the business, financial condition results of operations,
assets, liabilities, or prospects of Seven
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. Seven 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. Seven
has not been a party to a "prohibited transaction," which would subject Seven to
any tax or penalty. There is no collective bargaining agreement or negotiations
therefore, labor grievance or arbitration proceeding against Seven pending or
threatened, and to the knowledge of Seven, there are no union organizing
activities currently pending or threatened against or involving Seven.
3.14 AUTHORIZATIONS. Seven 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. Seven 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.
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3.16 COMPLIANCE WITH ENVIRONMENTAL LAWS. Seven is in Compliance with
all applicable pollution control and environmental laws, rules and regulations.
Seven 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 Seven, 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 Seven or
any of its assets.
3.18 VALIDITY. All contracts, agreements, leases and licenses to which
Seven 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 breach or default
exists, or upon the giving of notice or lapse of time, or both, would exist, on
the part of Seven or by any other party thereto.
3.19 NO BROKERS. Neither Seven nor Bond is a party to any agreement
pursuant to which Seven or Iceweb will become obligated to pay a commission to
any person as a result of consummation of the transactions contemplated hereby.
3.20 FULL DISCLOSURE. No representation or warranty by Seven or Bond 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 SUB 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 AND SUB
Iceweb and SUB, jointly and severally, hereby represent and warrant to
Seven and Bond as follows:
4.01 LEGAL CAPACITY OF ICEWEB AND SUB.
(a) Iceweb and SUB each have 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 SUB, 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 or SUB a party or by which either of them is bound, or (ii) any
requirement of law or any judgment, decree or order of any governmental or
regulatory authority to which Iceweb or SUB is subject or by which Iceweb or SUB
or any of their respective assets or properties is bound.
(c) This Agreement has been duly and validly executed by Iceweb and
SUB, and constitutes a valid and binding obligation of Iceweb and SUB
enforceable against Iceweb and SUB 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.
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4.02 ORGANIZATION AND AUTHORITY OF ICEWEB AND SUB. Iceweb and SUB are
each corporations duly organized, validly existing and in good standing under
the laws of their respective jurisdictions of organization, and have all
requisite corporate power and authority to carry on their respective businesses
as presently conducted and to own or lease and to operate their respective
properties. Iceweb and SUB are 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 or SUB (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 30,500,000 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, and
prior to the Closing will have been authorized by the Stockholder, of SUB. 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 or SUB in
connection with the execution and delivery by Iceweb and SUB of this Agreement
and their 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 and SUB 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 and SUB'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 or SUB (ii) any material
instrument, contract or other agreement by or to which Iceweb or SUB is a party
or by or to which Iceweb or SUB'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 SUB or the assets or
properties of Iceweb or SUB; or (iv) any license, franchise, approval,
certificate, permit or authorization applicable to Iceweb or SUB 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 or SUB.
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. All material contracts to which Iceweb is a party have been filed with
the SEC Reports.
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 SUB or any of their respective 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.
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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. There is an outstanding tax issue
from a prior acquisition that is not believed to have a material adverse affect
of the operation of the company. 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 Seven 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. Neither Iceweb nor SUB is a party to any agreement
pursuant to which Seven or Iceweb will become obligated to pay a commission to
any person as a result of consummation of the transactions contemplated hereby.
4.10 FULL DISCLOSURE. No representation or warranty by Iceweb or SUB 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 Seven 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 SEVEN AND BOND
Seven and Bond covenant and agree that from the date hereof to the
Closing without the prior written consent of Iceweb:
5.01 ORDINARY COURSE OF BUSINESS. Seven will operate the business of
Seven only in the ordinary course and will use its best efforts to preserve
Seven's business, origination, goodwill and relationships with persons having
business dealings with them.
5.02 MAINTAIN PROPERTIES. Seven will maintain all of Seven's properties
in good working order, repair and condition (reasonable wear and use excepted)
and cause Seven 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. Seven will not (a) enter into or alter any
employment agreements; (b) grant any increase in compensation other than normal
merit increases consistent with Seven'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. Seven 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
Seven.
5.05 NO DISPOSITION ON ENCUMBRANCE. Except in the ordinary course of
business consistent with past practice, Seven 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
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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. Seven will not 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 Seven except for the
transactions contemplated herein.
5.07 CAPITAL COMMITMENTS. Seven will not make or commit to make any
capital expenditure, capital addition or capital improvement.
5.08 NOTICE OF CHANGE. Seven will promptly advise Iceweb in writing of
any Seven Material Adverse Change, or the occurrence of any event which involves
any substantial possibility of a material adverse change, in the business,
financial condition, results of operations, assets, liabilities or prospects of
Seven.
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF ICEWEB AND SUB TO CLOSE
The obligation of Iceweb and SUB to close the transactions contemplated
hereby is subject to the fulfillment by Seven and Bond 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 Seven and Bond 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 Seven.
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 SEVEN. Seven shall have delivered the
following documents:
(a) Stock certificates representing all of the Seven Common Stock, duly
endorsed or in blank or accompanied by duly executed stock powers.
(b) All corporate and other records of applicable to Seven including,
but not limited to, current and up to date minute books, stock transfer books
and registers, books or accounts, bank accounts, leases and material contracts.
(c) Such other documents or certificates as shall be reasonably
required by Iceweb or its counsel in order to close and consummate this
Agreement.
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ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SEVEN AND BOND TO CLOSE
The obligation of Seven and Bond 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 Seven:
7.01 COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties made by Iceweb and SUB 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 SUB shall have performed all agreements, covenants
and conditions required to be performed by Iceweb and SUB 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 PAYMENTS. Seven's sole shareholder shall have received from Iceweb
(a) the 300,000 Iceweb Shares. Seven Shareholder shall receive in the form of
Payments from the New Corporation $60,000 within the first 3 months and
approximately $63,000 in Payments in the next 6 months. Bond as the majority
owner of Seven and the director of the newly formed sub, can in his sole
discretion decide the timing of the disbursements.
ARTICLE VIII
MODIFICATION, WAIVERS, TERMINATION AND EXPENSES
8.01 MODIFICATIONS. Iceweb and Seven may amend, modify or supplement
this Agreement in any manner as they may mutually agree in writing.
8.02 WAIVERS. Iceweb and Seven 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, SUB and Seven; and
(b) By Iceweb, if the representations and warranties of Seven and Bond
set forth herein shall not be accurate, or conditions precedent set forth herein
shall not have been satisfied in all material respects;
(c) By Seven, if the representations and warranties of Iceweb and SUB
set forth herein shall not be accurate, or conditions precedent set forth herein
shall not have been satisfied in all material respects;
(d) In the event of any such termination, each party shall bear their
own expenses.
ARTICLE IX
INDEMNIFICATION
9.01 INDEMNIFICATION BY SEVEN AND BOND. Seven and Bond hereby indemnify
and hold Iceweb and SUB harmless from and against any and all damages, losses,
liabilities, obligations, costs or expenses incurred by Iceweb or SUB and
arising out of the breach of any representation, warranty or covenant of
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Seven or Bond 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
Seven and Bond harmless from and against any and all damages, losses,
liabilities, obligations, costs or expenses incurred by Seven and arising out of
the breach of any representation or warranty of Iceweb or SUB hereunder, or
Iceweb's or SUB'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, Seven and Bond shall not be liable in damages, indemnity or otherwise to
Iceweb or SUB in respect of the inaccuracy or breach of any representations,
warranties, covenants or agreements herein, except to the extent that the
damages to Iceweb and SUB, 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 Seven or Bond
in respect to the inaccuracy or breach of any representations, warranties,
covenants or agreements herein except to the extent that damages to Seven
exceed, individually or in the aggregate, the sum of $10,000.
ARTICLE X
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 or SUB: IceWEB, INC.
620 Herndon Parkway, Suite 360
Herndon, Virginia 20170
Attention: John R. Signorello, President
Facsimile: (703) 964-0160
If to Seven: Seven Acquisition Corp.
_____________________________
_____________, Virginia _____
Attention: _________________
Facsimile: (___) ___-____
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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. 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.
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.
11.7 PARTIAL INVALIDITY. If any term of this Agreement shall be held to
be invalid or unenforceable, such term shall be deemed to be sever able and the
validity of the other terms of this Agreement shall in no way be affected
thereby.
11.8 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.
11.9 TAX-FREE TRANSACTION. Each of the parties to this Agreement agrees
to refrain from taking any action that could reasonably be anticipated to
jeopardize the tax-free treatment intended to be accorded to the transactions
contemplated by this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement and
Plan of Merger effective the _______ day of June, 2003.
ICEWEB, INC.
By:_____________________________________
John R. Signorello, President
SEVEN ACQUISITION CORP.
By:_____________________________________
Name:___________________________________
Title:__________________________________
SEVEN CORPORATION, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
________________________________________
JAMES BOND
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