Exhibit 2.1
Stock purchase agreement
STOCK PURCHASE
AGREEMENT
BY AND
AMONG
ICEWEB
VIRGINIA, INC.,
ICEWEB,
INC.
AND
ABC NETWORKS,
INC.
DATED AS
OF
THE 30
th DAY OF MARCH,
2009
STOCK PURCHASE
AGREEMENT
This STOCK
PURCHASE AGREEMENT (the “ Agreement
”) is made and entered into as of the 30 th day of
March, 2009 (the “ Agreement Date ”) by
and among ICEWEB VIRGINIA, INC., a Virginia corporation (the
“ Company ”), ICEWEB, INC., a
Delaware corporation (“ Seller ”) and
ABC NETWORKS, INC. , a Virginia corporation (“
Investor ”).
RECITALS:
WHEREAS
,
the Company is a wholly owned subsidiary of Seller;
WHEREAS
,
the Investor wishes to purchase from Seller and Seller wishes to
sell to Investor all of the issued and outstanding common stock of
the Company, upon the terms and subject to the conditions of this
Agreement;
WHEREAS
,
the parties intend to memorialize the sale of said common stock
owned by Seller and the purchase of all of said common stock by
Investor.
NOW,
THEREFORE , in
consideration of the Recitals, the mutual covenants and conditions
contained herein, and for other good and valuable consideration,
the receipt and adequacy of which are hereby conclusively
acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE
I
INCORPORATION
BY REFERENCE, SUPERSEDER, AND DEFINITIONS
1.1
Incorporation by Reference . The foregoing recitals
and the Exhibits and Schedules attached hereto, otherwise provided
to Investor, and referred to herein, are hereby acknowledged to be
true and accurate, and are incorporated herein by this
reference.
1.2
Superseder . This Agreement, to the extent that it is
inconsistent with any other instrument or understanding among the
parties governing the affairs of the Company, shall supersede such
instrument or understanding to the fullest extent permitted by law.
A copy of this Agreement shall be filed at the Company’s
principal office.
1.3
Certain Definitions . For purposes of this Agreement,
the following capitalized terms shall have the following meanings
(all capitalized terms used in this Agreement that are not defined
in this Article I shall have the meanings set forth elsewhere in
this Agreement):
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1.3.1
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“ 1933 Act
” means the
Securities Act of 1933, as amended.
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1.3.2
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“ 1934 Act
” means the
Securities Exchange Act of 1934, as amended.
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1.3.3
“ Affiliate ” means a Person or Persons
directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with the
Person(s) in question. The term “control,” as used in
the immediately preceding sentence, means, with respect to a Person
that is a corporation, the right to the exercise, directly or
indirectly, of more than 50 percent of the voting rights
attributable to the shares of such controlled corporation and, with
respect to a Person that is not a corporation, the possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies of such controlled
Person.
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1.3.4
“ Articles ” means the Articles of
Incorporation and Articles of Amendment of the Company, as the same
may be further amended from time to time.
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1.3.5
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“ Closing
” shall mean the
Closing of the transactions contemplated by this
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Agreement on
the Closing Date.
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1.3.6
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“ Closing Date
” means not more
than five (5) business days following the
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Agreement
Date.
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1.3.7
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“ Common Stock
” means shares of
common stock of the Company, par value
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$0.10 per
share.
1.3.8
“ Material Adverse Effect ” shall mean
any adverse effect on the business,operations, properties or
financial condition of the Company or the Investor, as the case may
be, that is material and adverse to the Company or to the Investor,
as the case may be, taken as a whole and/or any condition,
circumstance, or situation that would prohibit or otherwise
materially interfere with the ability of the Company or the
Investor, as the case may be, to perform any of their respective
material obligations under this Agreement or to perform their
respective obligations under any other material
agreement.
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1.3.9
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“ Person
” means an
individual, partnership, firm, limited liability
company,
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trust, joint
venture, association, corporation, or any other legal
entity.
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1.3.10
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“ Purchase Price Payable
to the Seller ” is defined in Section 7.1 below.
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1.3.11
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“ SEC
” means the
Securities and Exchange Commission.
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1.3.12
“ Transaction Documents ” shall mean this
Agreement, all Schedules and Exhibits attached hereto, the
certificate(s) for the Common Stock to be titled in the name of
Investor, and all other documents and instruments to be executed
and delivered by the parties in order to consummate the
transactions contemplated hereby, including, but not limited to the
documents listed in Sections 3.2 and 3.3 hereof.
1.3.13
“ NASD ” shall mean the National
Association of Securities Dealers.
ARTICLE
II
PURCHASE OF
ICEWEB VIRGINIA, INC. COMMON STOCK
2.1
Sale of Common Stock Owned by Seller . Upon the terms
and subject to the conditions set forth herein, and in accordance
with applicable law, Seller agree to sell to the Investor, and the
Investor agrees to purchase from Seller, on the Closing Date, One
Thousand (1,000) shares of Common Stock (the “
Shares ”) for the Purchase Price Payable to
Seller. Seller shall cause the Shares to be transferred to the
Investor at Closing.
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2.2
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Purchase Price
. The Purchase Price Payable to Seller is set
forth in Section 7.1 below.
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2.3
Consideration from Seller to Investor . Seller will
issue ONE MILLION 1,000,000 shares of Seller’s common stock
(“Seller Stock”) to Investor on the Closing Date.
Seller will further indemnify Investor and the Company as set forth
in Section 8.1 below
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ARTICLE
III
CLOSING DATE
AND DELIVERIES AT AND AFTER CLOSING
3.1
Closing Date . The closing of the transactions
contemplated by this Agreement (the “ Closing
”), unless expressly determined herein, shall be held at the
offices of the Company, at 5:00 P.M. local time, on the Closing
Date or on such other date and at such other place as may be
mutually agreed by the parties, including closing by facsimile with
originals to follow.
3.2
Deliveries by Seller . In addition to and without
limiting any other provision of this Agreement, Seller agree to
deliver, or cause to be delivered, to the Investor, the
following:
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(a)
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On the Agreement Date, an executed
Agreement with all exhibits and schedules attached
hereto;
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(b)
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At or prior to Closing, a
certificate evidencing ownership of the Shares;
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(c)
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A certificate for 1,000,000 shares
of Seller Stock titled in Investor’s name; and
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(d)
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Such other documents or certificates
as shall be reasonably requested by Investor.
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3.3
Deliveries by Investor . In addition to and without
limiting any other provision of this Agreement, the Investor agrees
to deliver, or cause to be delivered, to Seller, the
following:
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(a)
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After Closing, the good faith
efforts as set forth in Section 7.1 below;
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(b)
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On the Agreement Date, the executed
Agreement with all Exhibits and schedules attached hereto;
and
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(c)
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Such other documents or certificates
as shall be reasonably requested by the Company or its
counsel.
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In
the event any document provided to the other parties in Paragraphs
3.2, 3.3, or 3.4 herein are provided by facsimile, the party shall
forward an original document to the other party within seven (7)
business days.
3.4
Further Assurances . Seller and Investor shall, upon
request, on or after the Closing Date, cooperate with each other by
furnishing any additional information, executing and delivering any
additional documents and/or other instruments, and doing any and
all such things as may be reasonably required by the parties or
their counsel to consummate or otherwise implement the transactions
contemplated by this Agreement.
3.5
Waiver . Investor may waive any of the requirements
of Sections 3.2 of this Agreement, and Seller may waive any of the
provisions of Section 3.3 of this Agreement.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Investor as of the date
hereof and as of Closing (which warranties and representations
shall survive the Closing regardless of what examinations,
inspections, audits and other investigations the Investor has
heretofore made or may hereinafter make with respect to such
warranties and representations) as follows:
4.1
Organization and Qualification . ICEWEB VIRGINIA,
INC. is a corporation duly organized and in good standing under the
laws of the Commonwealth of Virginia.
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4.2
Articles of Incorporation and By-Laws . The complete
and correct copies of the Company’s Articles and By-laws, as
amended to date, are attached as Schedule 4.2.
4.3
Capitalization .
4.3.1 The
authorized capital stock of the Company consists of 5,000 shares of
Common Stock ($0.10 par value), of which 1,000 shares of Common
Stock are issued and outstanding. All shares of capital stock are
duly authorized and said 1,000 shares of Common Stock issued and
outstanding were validly issued, fully paid and not assessable, and
free of preemptive rights.
4.3.2 As
of the Agreement Date there are, and as of the Closing Date, there
will be no outstanding options, warrants, rights to subscribe for,
calls, shared appreciation rights, phantom stock, or commitments of
any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of any class of
capital stock of the Company, or agreements, understandings or
arrangements to which the Company is a party, or by which the
Company is or may be bound, to issue additional shares of its
capital stock or options, warrants, scrip or rights to subscribe
for, calls or commitment of any character whatsoever relating to,
or securities or rights convertible into or exchangeable for, any
shares of any class of its capital stock. The Company will not
issue any stock, options, warrants, shared appreciation rights,
phantom stock, or other rights to Company stock prior to the
Closing Date.
4.4
Authority Relative to this Agreement; Consents and
Approvals .
4.4.1 The
Company has the corporate power to enter into this Agreement and to
carry out its obligations hereunder. The execution and delivery of
this Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby have been duly authorized
by its Board of Directors, and no other corporate proceedings on
the part of the Company are necessary to approve this Agreement or
the transactions contemplated hereby.
4.4.2 No
filing with, and no permit, authorization, consent, or approval of,
any public body or authority is necessary for the consummation by
the Company of the transactions contemplated by this Agreement.
Neither the execution and delivery of this Agreement by the
Company, nor the consummation by it of the transactions
contemplated hereby, nor compliance by the Company with any of the
provisions hereof, shall (a) result in any breach of the Articles
or Certificate of Incorporation, or Bylaws of the Company, (b)
result in a violation or breach of, or constitute (with or without
due notice or lapse of time or both) a default (or give rise to any
type of termination, cancellation, or acceleration) under, any of
the terms, conditions, or provisions of any note, bond, mortgage,
indenture, license, contract, agreement, or other instrument or
obligation to which the Company is a party, or by which it or any
of its properties or assets may be bound or (c) violate any order,
writ, injunction, decree, statute, rule, or regulation applicable
to the Company, or any of its properties or assets, except in the
case of clauses (b) and (c) for violations, breaches and defaults,
that would not have a Material Adverse Effect on the
Company.
4.5
Financial Statements and Related Securities Matters .
The audited financial statements of the Seller are listed in its
SEC filings. The Company’s financial statements are
consolidated with the Seller’s financial statements. The
Company has not, in connection with the sale or purchase of Common
Stock or Preferred Stock, directly or indirectly, by the use of any
means or instrumentality of interstate commerce, or of the mails,
or of any facility of any national securities exchange, or
otherwise, (x) employed any device, scheme, or artifice to defraud;
(y) made any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
made, in the light of the circumstances under which they were made,
not misleading; or (z) engaged in any act, practice, or course of
business which operates or would operate as a fraud or deceit upon
any person, in connection with the purchase or sale of any
security. There have been no investigations of the Company by the
SEC or any state Blue Sky Commission and the Company knows of no
reason any such investigation should be commenced.
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4.6
Absence of Certain Changes or Events; Undisclosed
Liabilities .
4.6.1 Since
the most recent financial statements of Seller, the Company has not
(a) taken any actions not in the ordinary course of business; (b)
incurred any liability material to the Company other than those
listed on the liabilities schedule provided to Investor;
4.6.2. The
Company is not aware of any liability (and the Company is not aware
of any basis for any present or future action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand against
any of them giving rising to any liability which individually or is
in the aggregate are reasonably likely to have a Material Adverse
Effect on the Company) except for (a) liabilities set forth on the
liabilities schedule provided to Investor, and matters revealed in
the litigation schedule provided to Investor.
4.7
Litigation . As of the date of this Agreement,
pending litigation against the Company has been disclosed to
Investor in a litigation schedule.
4.8
Subsidiaries . The Company has no
subsidiaries.
4.9
Brokers . No broker, finder or investment banker is
entitled to any brokerage, finder’s or other fee or
Commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of the
Company.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
represent and warrant to the Investor as of the date hereof and as
of Closing as follows:
5.1
Authority . Seller has all requisite power and
authority to execute and deliver this Agreement, the Common Stock,
and the Seller Stock, and to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement by Seller
and the consummation of the transactions contemplated hereby have
been duly authorized by its Board of Directors and no other
proceedings on Seller’s part are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Seller and
constitutes the legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms.
5.2
No Conflicts . The execution, delivery and
performance of this Agreement and the consummation by Seller of the
transactions contemplated hereby or relating hereto do not and will
not (i) conflict with, or constitute a default (or an event which
with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment,
acceleration or cancellation of any agreement, indenture or
instrument to which Seller is a party, or result in a violation of
any law, rule, or regulation, or any order, judgment or decree of
any court or governmental agency applicable to Seller, or the
properties of either (except for such conflicts, defaults and
violations as would not, individually or in the aggregate, have a
Material Adverse Effect on Seller). Seller is not required to
obtain any consent, authorization or order of, or make any filing
or registration with, any court or governmental agency in order for
Seller to execute, deliver or perform any of its obligations under
this Agreement, to sell the Shares to Investor, or to issue the
Seller Stock to Investor in accordance with the terms
hereof.
5.3
Brokers . No broker, finder or investment banker is
entitled to any brokerage, finder’s or other fee or
Commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of
Seller.
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5.4
Full Disclosure . No representation or warranty made
by Seller in this Agreement and no certificate or document
furnished or to be furnished to the Investor pursuant to this
Agreement contains or will contain any untrue statement of a
material fact, or omits or will omit to state a material fact
necessary to make the statements contained herein or therein not
misleading. Except as set forth or referred to in this Agreement,
Seller does not have any agreement or understanding with any
per
