UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date of Report (date of earliest event reported): December 28, 1998
ICON SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
NEVADA 0-21899 87-0565018
State or Other (Commission (IRS Employer
Jurisdiction) File Number) Identification
Number)
4835 North O'Connor, Suite 134-136, Irving, Texas 75062.
(Address of Principal Executive Offices and Principal Place of Business)
4848 South Highland Drive #353, Salt Lake City, Utah 84117
(Former Address, If Changed since Last Report)
Registrant's Telephone Number, Including Area Code: (817) 267-1866
<PAGE>
FORM 8-K
Item 1. Changes in Control of Registrant.
See Item 2 below.
Item 2. Acquisition or Disposition of Assets.
On December 22, 1998 Icon Systems, Inc. (the "Company")
entered into an Acquisition Agreement and Plan of Reorganization
with Prospero Investments Limited, a United Kingdom company
("Prospero"), and the shareholders of Prospero. Under the terms of
the acquisition, the Company acquired 100% of the issued and
outstanding capital stock of Prospero in exchange for 5,100,000
shares of the Company's authorized but previously unissued common
stock, post-split as set forth below. The 5,100,000 shares are to
be issued to the shareholders of Prospero in exchange for all of
their Prospero shares.
In connection with the acquisition, the Company effected on
December 28, 1998 a reverse stock split of its issued and
outstanding shares of common stock on a one (1) share for fifty
(50) shares basis.
Prospero is the owner of SR Gent PLC ("SR Gent"), a clothing
manufacturer and supplier located in Barnsley, South Yorkshire,
England. Following the acquisition, the business of SR Gent will
become the principal business of the Company.
Prospero, through its subsidiary SR Gent, designs,
manufactures and distributes apparel for women and children. SR
Gent has been engaged in fashion design and apparel manufacturing
for more than fifty years and is a major supplier of ladieswear and
childrenswear to Marks & Spencer. SR Gent employs an experienced
design team in London that creates ladies formal blouses, ladies
tops, sportswear and girlswear. SR Gent also manufactures and
markets formal skirts, trousers, boyswear and babywear.
As a result of the exchange, the former Prospero shareholders
will have effective voting control of the Company. Also, the
Company's current Board of Directors will resign and be replaced by
persons associated with Prospero and SR Gent. The new directors
will hold office until the Company's next annual meeting, which is
expected to be held in May 1999, or until their successors are
elected or appointed and qualified, or their prior resignation or
termination.
The Company is presently investigating the possibility of
making additional acquisitions. No definitive agreements have been
executed and there can be no assurance that additional acquisitions
will be completed.
Item 7. Financial Statements and Exhibits.
Financial statements required under this Item 7 will be filed
upon completion but no later than sixty (60) days from the date
this report is filed as provided in Item 7(a)(4).
(c) Exhibits included herewith:
Exhibit 2.1 Acquisition Agreement and Plan of
Reorganization
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Exchange
Act of 1934, the Registrant caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
ICON SYSTEMS, INC.
Date: January 8, 1999 By: /S/ Chandra Sekar
Chandra Sekar, President
ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION
THIS ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION,
(hereinafter the "Agreement") is made and entered into this 22nd day
of December, 1998 by and between Icon Systems, Inc., a Nevada
corporation (hereinafter "Icon"), Prospero Investments Limited, a
United Kingdom company (hereinafter "Prospero"), and the
shareholders of Prospero (hereinafter "Shareholders").
RECITALS
WHEREAS, Icon desires to acquire all of the issued and
outstanding shares of Prospero capital stock in exchange for
5,100,000 shares of authorized but previously unissued Icon common
stock, par value $.001 per share, post-split as per Section 1.4
below, and pursuant to the terms and conditions set forth herein;
WHEREAS, the Shareholders of Prospero desire to exchange all
of their shares of Prospero capital stock for shares of Icon common
stock in the respective amounts set forth herein;
WHEREAS, Icon and Prospero intend to cooperate in order to
facilitate the private offering and sale of up to 6,250,000 shares
of Icon common stock pursuant to an exemption from registration;
and
WHEREAS, the parties hereto desire to reorganize the
management and operations of Icon, and to change the principal
place of business of the corporation.
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties and covenants herein contained, the
parties hereby agree as follows:
ARTICLE I
ACQUISITION AND EXCHANGE OF SHARES
SECTION 1.1 Acquisition and Plan of Reorganization. The parties
hereby agree that Icon shall acquire all of the issued and
outstanding shares of Prospero capital stock and/or options and/or
other securities, in exchange for five million one hundred thousand
(5,100,000) shares of authorized but previously unissued
Icon common stock, par value $.001 per share, post-split as per
Section 1.4 below.
(a) Assets. It is also agreed to by the parties hereto that
by acquiring the shares of Prospero capital stock, Icon will
acquire all rights, title and interest to the assets and
property presently owned by Prospero and represented in
Prospero's financial statements or other schedules provided to
Icon. Said assets and property may be subject to certain
interests, liens and/or encumbrances which are to be further
described in Prospero's financial statements or other
schedules provided to Icon.
(b) Reorganization. The parties hereto agree that at the
Closing (i) Prospero shall become a wholly-owned subsidiary
of Icon subject to the conditions and provisions of Section
1.6 hereof; and (ii) the necessary steps shall be taken in
order to reflect the relocation of Icon's principal place of
business.
SECTION 1.2 Exchange of Shares.
(a) Upon the Closing of this Agreement, Icon shall cause to
be issued and held for delivery to the Shareholders of
Prospero or their designees, stock certificates representing
an aggregate of 5,100,000 shares (the "Icon Shares") of Icon
common stock (post-split), in exchange for all the issued and
outstanding shares of Prospero capital stock, which shares
shall be delivered to Icon at the Closing. It is agreed that
the Icon Shares shall be held and not delivered to
Shareholders until the closing of the 6,250,000 share offering
described in Section 1.5 below.
(b) The Icon Shares to be issued hereunder shall be
authorized but previously unissued shares of Icon common
stock. The Icon Shares shall be issued to those persons and
in the respective amounts set forth in Exhibit 1.2 annexed
hereto and by this reference made a part hereof.
(c) All Icon Shares to be issued hereunder are deemed
"restricted securities" as defined by Rule 144 of the
Securities Act of 1933, as amended (the "1933 Act"), and the
recipients shall represent in writing that they are acquiring
said shares for investment purposes only and without the
intent to make a further distribution of the Icon Shares. All
Icon Shares to be issued under the terms of this Agreement
shall be issued pursuant to an exemption from the registration
requirements of the 1933 Act, under Section 4(2) of the 1933
Act and the rules and regulations promulgated thereunder.
Certificates representing the Icon Shares to be issued
hereunder shall bear a restrictive legend in substantially the
following form:
The shares represented by this certificate
have not been registered under the Securities
Act of 1933, as amended, and may not be
offered for sale, sold or otherwise
transferred except in compliance with the
registration provisions of such Act or
pursuant to an exemption from such
registration provisions, the availability of
which is to be established to the satisfaction
of the Company.
(d) Prospero and Shareholders acknowledge and agree that the
Icon Shares to be issued hereunder shall be issued upon the
closing of the 6,250,000 share offering described in Section
1.5 below.
SECTION 1.3 Closing. The closing of this Agreement and the
transactions contemplated hereby (the "Closing") shall take place
on the __ day of December, 1998 (the "Closing Date"), at a time
and place to be mutually agreed upon by the parties hereto, and
shall be subject to the provisions of Article X of this Agreement.
At the Closing:
(a) Prospero shall deliver to Icon stock certificates
representing 100% of the issued and outstanding shares of
Prospero capital stock, duly endorsed, so as to make Icon the
sole holder thereof, free and clear of all claims and
encumbrances;
(b) Icon shall deliver to those persons listed in Exhibit
1.2, stock certificates representing an aggregate of 5,100,000
shares of Icon common stock, which certificates shall bear a
standard restrictive legend in the form customarily used with
restricted securities and as set forth in Section 1.2(c)
above;
(c) Icon shall deliver an Officer's Certificate as described
in Sections 9.1, 9.2 and 9.4 hereof, dated the Closing Date,
that all representations, warranties, covenants and conditions
set forth herein by Icon are true and correct as of, or have
been fully performed and complied with by, the Closing Date;
and
(d) Prospero shall deliver an Officer's Certificate as
described in Sections 8.1, 8.2 and 8.4 hereof, dated the
Closing Date, that all representations, warranties, covenants
and conditions set forth herein by Prospero and Shareholders
are true and correct as of, or have been fully performed and
complied with by, the Closing Date;
SECTION 1.4 Icon Special Meeting of Shareholders or Action by
Written Consent. In anticipation of this Agreement, Icon has taken
all necessary and requisite action to call for and hold a Special
Meeting of Shareholders or, in the alternative, to obtain written
consents from a majority of its shareholders in order to transact
the following business:
(a) To ratify the prior action by the Icon Board of Directors
to effect a reverse stock split of Icon's issued and
outstanding shares of common stock on a one (1) share for
fifty (50) shares basis, to be effective December 28, 1998;
and
(b) To ratify this Agreement and all transactions
contemplated hereby.
SECTION 1.5 Offering and Sale of Icon Common Stock. The parties
hereto agree to cooperate to cause the offering and sale of up to
6,250,000 shares (post-split) of Icon's authorized but previously
unissued common stock pursuant to the provisions of Regulation D,
Rule 506 of the 1933 Act, Section 4(2) of the 1933 Act, or other
comparable exemption. It is further agreed that Prospero will
facilitate the offering and sale and that all sales will be made
outside the United States and to persons not citizens of the United
States.
SECTION 1.6 Consummation of Transaction. If at the Closing, no
condition exists which would permit any of the parties to terminate
this Agreement, or a condition then exists and the party entitled
to terminate because of that condition elects not to do so, then
the transactions herein contemplated shall be consummated upon such
date, and then and thereupon, Icon shall file any additional
necessary documents that may be required by the State of Nevada.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF Icon
Icon hereby represents, warrants and agrees that:
SECTION 2.1 Organization, Good Standing and Corporate Power of
Icon. Icon is a corporation duly organized, validly existing and
presently in good standing under the laws of the State of Nevada,
is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which such
qualification is necessary, and has the corporate power and
authority to own its properties and assets and to transact the
business in which it is engaged. There are no corporations or
other entities with respect to which (i) Icon owns any of the
outstanding stock or other interest, or (ii) Icon may be deemed to
be in control because of factors or relationships other that the
quantity of stock or other interest owned.
SECTION 2.2 Capitalization of Icon. Prior to the action to be
taken by the Icon shareholders as set forth in Section 1.4 above
and the transactions contemplated by this Agreement, the authorized
capital stock of Icon consisted of 100,000,000 shares of common
stock, par value $.001 per share, of which 16,582,689 shares were
issued and outstanding. Taking into consideration the effect of
the proposed one share for fifty shares reverse stock split, the
number of shares of common stock issued and outstanding shall be
approximately 331,654 shares, par value $.001 per share, without
giving effect to the rounding-up of fractional shares resulting
from the reverse stock split, and the shares to be issued pursuant
to this Agreement. All shares of Icon common stock currently
issued and outstanding have been duly authorized, validly issued
and are fully paid and non-assessable. There are no preemptive
rights, or other outstanding rights, options, warrants, conversion
rights, stock appreciation rights, redemption rights, repurchase
rights, calls, agreements or commitments of any character
obligating Icon to issue any shares of its capital stock or any
security representing the right to acquire, purchase or otherwise
receive any such stock. Shares of Icon common stock to be issued
pursuant to this Agreement, when so issued, will be duly
authorized, validly issued, fully paid and non-assessable.
SECTION 2.3 Charter Documents. Certified copies of the Icon
Articles of Incorporation and By-Laws, as amended to date, have
been or will be delivered to Prospero prior to the Closing.
SECTION 2.4 Corporate Documents. The most recent Icon
shareholders' list and corporate minute books, which have been made
available to Prospero, are complete and accurate as of the date
hereof and the corporate minute books contain the recorded minutes
of all corporate meetings of shareholders and directors.
SECTION 2.5 Financial Statements. Icon's financial statements for
the period ended year ended June 30, 1998, a copy of which is
annexed hereto as Exhibit 2.5 and by this reference made a part
hereof, are true and complete in all material respects, having been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis for the periods covered by
such statements, and fairly present, in accordance with generally
accepted accounting principles, the financial condition of Icon and
results of its operations for the periods covered thereby. Except
as otherwise disclosed to Prospero in writing and as set forth
herein and in Exhibit 2.5, and other than according to the ordinary
and usual course of Icon's business consistent with such practice,
(a) Icon has not engaged in any material transaction since the date
of its financial statements, and (b) there has not been any
material adverse change in the business operations, assets,
properties, prospects or condition (financial or otherwise) of
Icon, taken as a whole, from that reflected in the financial
statements referred to in this Section 2.5.
SECTION 2.6 Absence of Certain Changes or Events. Since the date
of the Icon financial report attached hereto as Exhibit 2.5 and
except as disclosed otherwise herein, Icon has not (i) issued or
sold any promissory note, stock, bond, option or other corporate
security of which it was an issuer or other obligor, (ii)
discharged or satisfied any lien or encumbrance or paid any
obligation or liability, absolute or contingent, direct of
indirect, (iii) incurred or suffered to be incurred any liability
or obligation other than in the ordinary and usual course of
business, (iv) caused or permitted any lien, encumbrance or
security interest to be created or arise on or in any of its
properties or assets, (v) declared, set aside or made any dividend,
payment or other distribution to any shareholder or purchased or
redeemed or agreed to purchase or redeem any shares of its capital
stock, (vi) reclassified its shares of capital stock, or (vii)
entered into any agreement or transaction except in the ordinary
and usual course of business or in connection with the execution
and performance of this Agreement.
SECTION 2.7. Reporting Requirements Under the Securities Exchange
Act of 1934. Icon is current in its annual and periodic filing
obligations under Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended.
SECTION 2.8 Tax Returns and Payments. Icon has filed with the
appropriate governmental authority, all tax returns, whether based
upon income, sales or franchise, as required by law to be filed on
or before the date of this Agreement, and Icon has paid all taxes
to be due on said returns, any assessments made against Icon and
all other taxes, fees and similar charges imposed on Icon by any
governmental authority. No tax liens have been filed and no claims
are being assessed and no returns are under audit with respect to
any such taxes, fees or other similar charges.
SECTION 2.9 Contracts. Icon is not a party to or bound by any
material contract or commitment, including guaranty whether written
or oral, except as may otherwise be disclosed in Exhibit 2.9,
annexed hereto and by this reference made a part hereof.
SECTION 2.10 Compliance with Law and Government Regulations. Icon
is in compliance with and is not in violation of applicable
federal, state, local or foreign statutes, laws and regulations
(including without limitation, any applicable building, zoning or
other law, ordinance or regulation) affecting its properties or the
operation of its business. Icon is not subject to any order,
decree, judgment or other sanction of any court, administrative
agency or other tribunal.
SECTION 2.11 Litigation. There is no material litigation,
arbitration, proceeding or investigation pending or threatened to
which Icon is a party or which may result in any material adverse
change in the business or condition, financial or otherwise, of
Icon or in any of its properties or assets, or which might result
in any liability on the part of Icon, or which questions the
validity of this Agreement or of any action taken or to be taken
pursuant to or in connection with the provisions of this Agreement
and, to the best knowledge of Icon, there is no basis for any such
litigation, arbitration, proceeding or investigation.
SECTION 2.12 Trade Names and Rights. Icon does not use any trade
mark, service mark, trade name, or copyright in its business, nor
does it own any trade marks, trade mark registrations or
application, trade name, service marks, copyrights, copyright
registrations or application. No person owns any trade mark, trade
mark registration or application, service mark, trade name,
copyright, or copyright registration or application, the use of
which is necessary or contemplated in connection with the operation
of Icon's business.
SECTION 2.13 Governmental Consent. No notices, reports or other
filings are required to be made nor are any consents,
registrations, approvals, permits, authorizations or designations
required to be obtained by Icon from any court, governmental or
regulatory authority, agency, commission, body or other
governmental entity, in connection with the execution and delivery
of this Agreement by Icon or the carrying out and consummation of
any transactions contemplated hereby, except those that the failure
to make or obtain are not, individually or in the aggregate,
reasonably likely to have a material adverse effect or prevent,
materially delay or materially impair the ability of Icon to
consummate the transactions contemplated by this Agreement.
SECTION 2.14 Corporate Authority. Icon has all requisite
corporate power and authority and has taken all corporate actions
necessary in order to execute, deliver and perform its obligations
under this Agreement and to consummate, subject (if required by
law) only to approval of this Agreement by the holders of a
majority of the outstanding shares of Icon common stock. The Icon
Board of Directors has unanimously approved this Agreement and all
transactions contemplated hereby. The execution and delivery of
this Agreement, the consummation of the transactions contemplated
hereby and compliance by Icon with the provisions hereof will not
(a) conflict with or result in a breach of any provisions of, or
constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default) under, or result in the
creation of any lien, security interest, charge or encumbrance upon
any of the properties or assets of Icon under, any of the terms,
conditions or provisions of the Articles of Incorporation or By-
Laws of Icon, or any note, bond, mortgage, indenture, license,
lease, agreement or any instrument or obligation to which Icon is
a party or by which it is bound; or (b) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Icon
or any of its properties or assets. Assuming due execution and
delivery by the parties hereto, this Agreement is the valid and
binding agreement of Icon enforceable against Icon in accordance
with its respective terms, except as such enforceability may be
limited by applicable bankruptcy laws or creditors' rights
generally or by general principles of equity.
SECTION 2.15 Full Disclosure. None of the representations and
warranties made by Icon herein, or in any exhibit, certificate or
memorandum furnished or to be furnished by Icon or on its behalf
pursuant hereto, contains or will contain any untrue statement of
material fact, or omits any material fact, the omission of which
would be misleading.
ARTICLE III
COVENANTS OF ICON
SECTION 3.1 Conduct Prior to the Closing. Icon covenants and
agrees as to itself that, after the date hereof and prior to the
Closing (unless Prospero shall otherwise approve in writing, which
approval shall not be unreasonably withheld):
(a) Except within the regular course of business and for the
transactions contemplated by this Agreement, Icon will not
enter into any material agreement, contract or commitment,
whether written or oral, or engage in any substantive
transaction;
(b) Icon will not declare, set aside or pay any dividends or
distributions payable in cash, stock or property, in respect
of its capital stock
(c) Icon will not amend its Articles of Incorporation or By-
Laws, except as set forth in Section 1.4 above or except for
any amendment which will not hinder, delay or make more costly
to Prospero the transactions contemplated by this Agreement;
(d) Icon will not authorize, issue, sell, purchase or redeem
or repurchase any shares of its capital stock or any options,
rights or other securities convertible, exchangeable or
exercisable for any shares of its capital stock, except as set
forth in Section 1.1(b) above;
(e) Icon will comply with all requirements which federal or
state law may impose on it with respect to this Agreement and
the transactions contemplated hereby, and will promptly
cooperate with and furnish written information to Prospero in
connection with any such requirements imposed upon the parties
hereto in connection therewith;
(f) Except within the regular course of business, Icon will
not incur any indebtedness for money borrowed, issue or sell
any debt securities, incur or suffer to be incurred any
liability or obligation of any nature whatsoever, cause or
permit any lien, encumbrance or security interest to be
created or arise on or in any of its properties or assets,
acquire or dispose of fixed assets, change employment terms,
enter into any material or long-term contract, guarantee
obligations of any third party, settle or discharge any
balance sheet receivable for less than its stated amount or
enter into any other transaction, except to comply with the
terms of this Agreement; and
(g) Icon shall grant to Prospero and its counsel, accountants
and other representatives, full access during normal business
hours during the period prior to the Closing to all its
respective properties, books, contracts, commitments and
records and, during such period, furnish promptly to Prospero
and such representatives all information relating to Icon as
Prospero may reasonably request, and shall extend to Prospero
the opportunity to meet with Icon's accountants and attorneys
to discuss the financial condition of Icon;
SECTION 3.2 Affirmative Covenants. Prior to Closing, Icon will do
the following:
(a) Use its best efforts to accomplish all actions necessary
to consummate this Agreement, including satisfaction of all
conditions contained in this Agreement;
(b) Promptly notify Prospero in writing of any material
adverse change in the financial condition, business,
operations or key personnel of Icon, any threatened material
litigation or investigation, any breach of its representations
or warranties contained herein, and any material contract,
agreement, license or other agreement which, if in effect on
the date of this Agreement, should have been included in this
Agreement or in an exhibit annexed hereto and made a part
hereof;
(c) Reserve, and promptly after the Closing, issue and
deliver to Shareholders and/or their designees, the number of
shares of Icon common stock required hereunder;
(d) Upon completion of the offering and sale of the 6,250,000
shares of common stock as set forth in Section 1.5 above, the
Icon Board of Directors will nominate as new directors to its
Board those persons to be designated by Prospero and,
contemporaneous with or immediately thereafter, the current
members of the Icon Board of Directors will tender to the
Board their respective resignations as directors and/or
officers.; and
(e) Take any and all other necessary and requisite corporate
actions to accomplish the transactions anticipated by this
Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PROSPERO AND SHAREHOLDERS
Prospero and Shareholders hereby represent, warrant and agree
that:
SECTION 4.1 Organization, Good Standing and Corporate Power of
Prospero. Prospero is a corporation duly organized, validly
existing and presently in good standing under the laws of the
United Kingdom, is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which
such qualification is necessary, and has the corporate power and
authority to own its properties and assets and to transact the
business in which it is engaged. There are no corporations or
other entities with respect to which (i) Prospero owns any of the
outstanding stock or other interest, or (ii) Prospero may be deemed
to be in control because of factors or relationships other that the
quantity of stock or other interest owned.
SECTION 4.2 Charter Documents. Complete and correct copies of the
Articles of Incorporation and By-Laws of Prospero and all
amendments thereto, have been or will be delivered to Icon prior to
the Closing.
SECTION 4.3 Financial Statements / Assets and Liabilities.
Prospero's financial statements for the period ended June 30, 1998,
a copy of which is annexed hereto as Exhibit 4.3 and by this
reference made a part hereof, are true and complete in all material
respects, having been prepared in accordance with generally
accepted accounting principles applied on a consistent basis for
the periods covered by such statements, and fairly present the
financial condition of Prospero and results of its operations for
the periods covered thereby. Prospero has good and marketable
title to all of its assets and property to be acquired by Icon
hereunder (by way of Shareholders tendering all of their
outstanding shares of common stock to Icon), free and clear of any
and all liens, claims and encumbrances, except as may be otherwise
set forth herein and in its financial statements. Except as
otherwise disclosed to Icon in writing and as set forth herein and
in Exhibit 4.3, and other than according to the ordinary and usual
course of Prospero's business, consistent with such practice, (a)
Prospero has engaged only in its routine daily business since the
date of its financial statements, and (b) there has not been any
material adverse change in the business operations, assets,
properties, prospects or condition (financial or otherwise) of
Prospero taken as a whole, from that reflected in the financial
statements referred to in this Section 4.3.
SECTION 4.4 Tax Returns and Payments. All tax returns for
Prospero (federal, state, city, county or foreign) which are
required by law to be filed on or before the date of this
Agreement, have been duly filed or extended with the appropriate
governmental authority. Prospero has paid all taxes to be due on
said returns, any assessments made against Prospero, and all other
taxes, fees and similar charges imposed on Prospero by any
governmental authority (other than those, the amount or validity of
which is being contested in good faith by appropriate proceedings).
No tax liens have been filed and no claims are being assessed with
respect to any such taxes, fees or other similar charges.
SECTION 4.5 Required Authorizations. There have been or will be
timely filed, given, obtained or taken, all applications, notices,
consents, approvals, orders, registrations, qualifications waivers
or other actions of any kind required by virtue of execution and
delivery of this Agreement by Prospero or the consummation by it of
the transactions contemplated hereby.
SECTION 4.6 Compliance with Law and Government Regulations.
Prospero is in compliance with all applicable federal, state, local
or foreign statutes, laws and regulations (including without
limitation, any applicable building, zoning or other law, ordinance
or regulation) affecting their properties or operation of their
businesses. Prospero is not subject to any order, decree, judgment
or other sanction of any court, administrative agency or other
tribunal.
SECTION 4.7 Litigation. There is no material litigation,
arbitration, proceeding or investigation pending or threatened to
which Prospero is a party or which may result in any material
change in the business or condition, financial or otherwise, of
Prospero or in any of its properties or assets, or which if
determined against Prospero, would have a material adverse effect
against Prospero, or which might result in any liability on the
part of Prospero, or which questions the validity of this Agreement
or of any action taken or to be taken pursuant to or in connection
with the provisions of this Agreement, and to the best knowledge of
Prospero, there is no basis for any such litigation, arbitration,
proceeding or investigation.
SECTION 4.8 Patents, Trade Names and Rights. Exhibit 4.8 annexed
hereto and by this reference made a part hereof, contains a
complete list of all patents, trademarks, service marks, trademark,
service mark and copyright registrations, applications and licenses
with respect to the foregoing owned or held by Prospero. Prospero
has no knowledge of any facts and nothing has come to its attention
that would lead it to believe that Prospero has infringed or
misappropriated or are infringing upon any trademark, copyright,
patent or other similar right of any person. No claim relating
thereto is pending or to the knowledge of Prospero is threatened.
SECTION 4.9 Employee Benefit Plans. Prospero represents that
unless otherwise set forth by an exhibit annexed hereto as Exhibit
4.9, there are not now nor have there ever been any bonus, deferred
compensation, incentive compensation, stock purchase, stock option,
severance or termination pay, hospitalization or other medical,
life or other insurance, supplemental unemployment benefits,
profit-sharing, pension, or retirement plan, program, agreement or
arrangement, other employee benefit plan, program, agreement or
arrangement (other than arrangements involving the payment of
wages), sponsored, maintained or contributed to or required to be
contributed to by Prospero or any of its subsidiaries or by any
trade or business, whether or not incorporated (an "ERISA
Affiliate") that together with Prospero or any of its subsidiaries
would be deemed a "single employer" within the meaning of Section
4001(a)(14) of the Employee Retirement Income Security Act of 1974,
as amended, and the rules and regulations promulgated thereunder
("ERISA"), for the benefit of any current or former employee,
director or officer of Prospero or any of its subsidiaries or any
ERISA Affiliate whether formal or informal and whether legally
binding or not with respect to which Prospero or any of its
subsidiaries or any ERISA Affiliate has or may in the future have
any liability or obligation to contribute or make payments or any
kind.
SECTION 4.10 Environmental Matters. There are no actions,
proceedings or investigations pending or, to the actual knowledge
of Prospero, threatened before any federal or state environmental
regulatory body, or before any federal or state court, alleging
noncompliance by Prospero with the Comprehensive Environmental
Response, Compensation and Liability Act of 1990 ("CERCLA") or any
other Environmental Laws. To the actual knowledge of Prospero: (i)
there is no reasonable basis for the institution of any action,
proceeding or investigation against Prospero under any
Environmental Law; (ii) Prospero is not responsible under any
Environmental Law for any release by any person at or in the
vicinity of real property of any hazardous substance (as defined by
CERCLA), caused by the spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing of any such hazardous substance into the
environment; (iii) Prospero is not responsible for any costs of any
remedial action required by virtue of any release of any toxic or
hazardous substance, pollutant or contaminant into the environment
including, without limitation, costs arising from security fencing,
alternative water supplies, temporary evacuation and housing and
other emergency assistance undertaken by any environmental
regulatory body; (iv) Prospero is in material compliance with all
applicable Environmental Laws; and (v) no real property used,
owned, managed or controlled by Prospero contains any toxic or
hazardous substance including, without limitation, any asbestos,
PCBs or petroleum products or byproducts in any form, the presence,
location or condition of which (a) violates any Environmental Law,
or (b) cannot be cleaned by ordinary reclamation procedures
customary in the oil and gas industry. For purposes of this
Agreement, "Environmental Laws" shall mean any federal, state,
local or municipal statute, ordinance or regulation, or order,
ruling or other decision of any court, administrative agency or
other governmental authority pertaining to the release of hazardous
substances (as defined in CERCLA) into the environment.
SECTION 4.11 Governmental Consent. No notices, reports or other
filings are required to be made nor are any consents,
registrations, approvals, permits, authorizations or designations
required to be obtained by Prospero from any court, governmental or
regulatory authority, agency, commission, body or other
governmental entity, in connection with the execution and delivery
of this Agreement by Prospero or the carrying out and consummation
of any transactions contemplated hereby, except those that the
failure to make or obtain are not, individually or in the
aggregate, reasonably likely to have a material adverse effect or
prevent, materially delay or materially impair the ability of
Prospero to consummate the transactions contemplated by this
Agreement.
SECTION 4.12 Authority. Prospero and its Shareholders
representing no less than one hundred percent (100%) of the issued
and outstanding shares of Prospero capital stock of record, have
approved this Agreement and duly authorized the execution and
delivery hereof. Prospero has full power, authority and legal
right to enter into this Agreement on behalf of Prospero and its
Shareholders and to consummate the transactions contemplated
hereby, and all corporate action necessary to authorize the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby has been duly and validly
taken. Prospero further represents that it, or its representative,
has been empowered by Shareholders by powers of attorney and/or
otherwise, to execute this Agreement on behalf of Shareholders.
The execution and delivery of this Agreement, the consummation of
the transactions contemplated hereby and compliance by Prospero
with the provisions hereof will not (a) conflict with or result in
a breach of any provisions of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a
default) under, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or
assets of Prospero under, any of the terms, conditions or
provisions of the Articles of Incorporation or By-Laws of Prospero,
or any note, bond, mortgage, indenture, license, agreement or any
instrument or obligation to which Prospero is party or by which it
is bound; or (b) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Prospero or any of its
properties or assets. Assuming due execution and delivery by the
parties hereto, this Agreement represents the valid and binding
agreement of Prospero enforceable against Prospero in accordance
with its respective term, except as such enforceability may limited
by applicable bankruptcy laws or creditors' rights generally or by
general principles or equity.
SECTION 4.13 Legal Proceedings and History. Prospero and
Shareholders hereby represent that, unless otherwise disclosed
herein or by a written attachment hereto, no officer, director or
affiliate of Prospero nor any Shareholder or any other person
receiving a portion or all of the Icon Shares to be issued
hereunder, shall have been, within the past five years; a party to
any bankruptcy petition against such person or against any business
of which such person was affiliated; convicted in a criminal
proceeding or subject to a pending criminal proceeding (excluding
traffic violations and other minor offenses; subject to any order,
judgment or decree, not subsequently reversed, suspended or
vacated, of any court of competent jurisdiction, permanently or
temporarily enjoining, barring, suspending or otherwise limiting
their involvement in any type of business, securities or banking
activities; or found by a court of competent jurisdiction in a
civil action, by the Securities Exchange Commission or the
Commodity Futures Trading Commission to have violated a federal or
state securities or commodities law, and the judgment has not been
reversed, suspended or vacated.
SECTION 4.14 Ownership of Shares. Shareholders representing 100%
of the Prospero capital stock currently issued and outstanding and
which stock is to be transferred to Icon under this Agreement, have
full power and authority to transfer such shares of Prospero
capital stock to Icon hereunder, and such shares are free and clear
of any liens, charges, mortgages, pledges or encumbrances and such
shares are not subject to any claims as to the ownership thereof,
or any rights, powers or interest therein, by any third party.
SECTION 4.15 Investment Purpose . Prospero and Shareholders
represent that the recipients of the Icon Shares hereunder are
acquiring the shares for investment purposes only and acknowledges
that the Icon Shares issued hereunder are "restricted securities"
and may not be sold, traded or otherwise transferred without
registration under the 1933 Act or exemption therefrom.
SECTION 4.16 Full Disclosure. None of the representations and
warranties made by Prospero or Shareholders herein, or in any
exhibit, certificate or memorandum furnished or to be furnished by
Prospero or Shareholders, on their behalf pursuant hereto, contains
or will contain any untrue statement of material fact, or omit any
material fact, the omission of which would be misleading.
ARTICLE V
COVENANTS OF PROSPERO
SECTION 5.1 Conduct Prior to the Closing. Prospero covenants and
agrees that, after the date hereof and prior to the Closing (unless
Icon shall otherwise approve in writing, which approval shall not
be unreasonably withheld):
(a) Prospero will not declare, set aside or pay any dividends
or distributions payable in cash, stock or property, in
respect of its capital stock;
(b) Prospero will not amend its Articles of Incorporation or
By-Laws, except for any amendment which will not hinder, delay
or make more costly to Icon the transactions contemplated by
this Agreement;
(c) Prospero will comply with all requirements which federal
or state law may impose on it with respect to this Agreement
and the transactions contemplated hereby, and will promptly
cooperate with and furnish written information to Icon in
connection with any such requirements imposed upon the parties
hereto in connection therewith;
(d) Except within the regular course of business, Prospero
will not incur any indebtedness for money borrowed, issue or
sell any debt securities, incur or suffer to be incurred any
liability or obligation of any nature whatsoever, cause or
permit any lien, encumbrance or security interest to be
created or arise on or in any of its properties or assets,
acquire or dispose of fixed assets, change employment terms,
enter into any material or long-term contract, guarantee
obligations of any third party, settle or discharge any
balance sheet receivable for less than its stated amount or
enter into any other transaction, except to comply with the
terms of this Agreement;
(e) Prospero shall grant to Icon and its counsel, accountants
and other representatives, full access during normal business
hours during the period prior to the Closing to all its
respective properties, books, contracts, commitments and
records and, during such period, furnish promptly to Icon and
such representatives all information relating to Prospero as
Icon may reasonably request, and shall extend to Icon the
opportunity to meet with Prospero's accountants and attorneys
to discuss the financial condition of Prospero; and
SECTION 5.2 Affirmative Covenants. Prior to Closing, Prospero
will do the following:
(a) Use its best efforts to accomplish all actions necessary
to consummate this Agreement, including satisfaction of all
the conditions contained in this Agreement; and
(b) Promptly notify Icon in writing of any materially adverse
change in the financial condition, business, operations or key
personnel of Prospero, any breach of its representations or
warranties contained herein, and any material contract,
agreement, license or other agreement which, if in effect on
the date of this Agreement, should have been included in this
Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Expenses. Whether or not the transactions
contemplated in this Agreement are consummated, all costs and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such expense or as otherwise agreed to herein.
SECTION 6.2 Brokers and Finders. Each of the parties hereto
represents, as to itself, that no agent, broker, investment banker
or firm or person is or will be entitled to any broker's or
finder's fee or any other commission or similar fee in connection
with any of the transactions contemplated by this Agreement, except
as may be otherwise set forth herein or by separate document.
SECTION 6.3 Necessary Actions. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to
use all reasonable efforts to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate
and make effective the transactions contemplated by this Agreement.
In the event at any time after the Closing, any further action is
necessary or desirable to carry out the purposes of this Agreement,
the proper officers and/or directors of Icon or Prospero, as the
case may be, shall take all such necessary action.
SECTION 6.4 Indemnification.
(a) From and after the Closing of this Agreement, Prospero
and Shareholders agree to indemnify, defend and hold harmless
each person who is now, or has been at any time prior to the
date of this Agreement, or who becomes prior to the Closing a
director or officer of Icon, against any costs or expenses
(including reasonable attorneys' fees), judgments, fines,
losses, claims, demands, liabilities, damages and
deficiencies, including interest and penalties, incurred or
suffered in connection with any claim action, suit, proceeding
or investigation, whether civil, criminal or administrative,
arising out of matters existing or occurring prior to the
Closing, whether asserted or claimed prior to, at or after the
Closing, which is based in whole or in part on, or arising in
whole or in part out of the fact that such person is or was a
director or officer of Icon including, without limitation, all
losses, claims, damages, costs, expenses, liabilities,
judgments or settlement amounts based in whole or in part on,
or arising in whole or in part out of, or pertaining to this
Agreement or the transactions contemplated hereby to the
fullest extent that Icon could have been permitted under
applicable state laws and its certificate of incorporation,
by-laws and other agreements in effect on the date hereof to
indemnify such individual.
(b) From and after the Closing of this Agreement, Icon agrees
to indemnify, defend and hold harmless each person who is now,
or has been at any time prior to the date of this Agreement,
or who becomes prior to the Closing a director or officer of
Prospero, against any costs or expenses (including reasonable
attorneys' fees), judgments, fines, losses, claims, demands,
liabilities, damages and deficiencies, including interest and
penalties, incurred or suffered in connection with any claim
action, suit, proceeding or investigation, whether civil,
criminal or administrative, arising out of matters existing or
occurring prior to the Closing, whether asserted or claimed
prior to, at or after the Closing, which is based in whole or
in part on, or arising in whole or in part out of the fact
that such person is or was a director or officer of Icon
including, without limitation, all losses, claims, damages,
costs, expenses, liabilities, judgments or settlement amounts
based in whole or in part on, or arising in whole or in part
out of, or pertaining to this Agreement or the transactions
contemplated hereby to the fullest extent that Prospero could
have been permitted under applicable state laws and its
certificate of incorporation, by-laws and other agreements in
effect on the date hereof to indemnify such individual.
(c) Any indemnified party wishing to claim indemnification
under subsection (a) or (b) of this Section 6.4, upon leaning
of any such claim, action , suit, proceeding or investigation,
shall promptly notify Prospero if under subsection (a), or
Icon if under subsection (b), but failure to so notify the
appropriate party shall not relieve the indemnifying party
from any liability which it may have under this Section 6.4
except to the extent such failure materially prejudices such
party. In the event of any such claim, action, suit,
proceeding or investigation, (i) the indemnifying party shall
have the right to assume the defense thereof and shall not be
liable to any such indemnified party in connection with the
defense thereof, (ii) the indemnified party will cooperate in
all respects as requested by the indemnifying party in the
defense of any such matter, and (iii) the indemnifying party
shall not be liable for any settlement effected without its
prior written consent, which consent shall not be unreasonably
withheld; provided, however, that the indemnifying party shall
not have any obligation hereunder to any indemnified party if
and when a court shall ultimately determine, and such
determination shall have become final, that the
indemnification of such indemnified party in the manner
contemplated hereby is prohibited by law.
SECTION 6.5 Confidentiality. All parties hereto agree to keep
confidential this Agreement and all information and documents
relating to this Agreement until such time as the Agreement and the
transactions contemplated hereunder are made public by means of an
appropriate press release or by any other means reasonably assured
to make such information publicly available.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The respective obligations of each party to this Agreement are
subject to the fulfillment, satisfaction or waiver at or prior to
the Closing of each of the following conditions:
SECTION 7.1 Legal Action. No federal or state court or other
governmental entity of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, preliminary or permanent injunction
or other order that is in effect and restrains, enjoins or
otherwise prohibits consummation of the transactions contemplated
by this Agreement (collectively, an "Order"), and no governmental
entity shall have instituted any proceeding or formally threatened
to institute any proceeding seeking any such Order and such
proceeding or threat remains unresolved.
SECTION 7.2 Absence of Termination. The obligations to consummate
the transactions contemplated hereby shall not have been canceled
pursuant to Article X hereof.
SECTION 7.3 Required Approvals. Icon and Prospero shall have
received all such approvals, consents, authorizations or
modifications as may be required to permit the performance by Icon
and Prospero of the respective obligations under this Agreement,
and the consummation of the transactions herein contemplated,
whether from governmental authorities or other persons, and Icon
and Prospero shall each have received any and all permits and
approvals from any regulatory authority having jurisdiction
required for the lawful consummation of this Agreement.
SECTION 7.4 Blue Sky Compliance. There shall have been obtained
any and all permits, approvals and consents of the Securities or
"Blue Sky" Commissions of any jurisdictions, and of any other
governmental body or agency, which counsel for Icon may reasonably
deem necessary or appropriate so that consummation of the
transactions contemplated by this Agreement may be in compliance
with all applicable laws.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF ICON
All obligations of Icon under this Agreement are subject to
the fulfillment and satisfaction by Prospero and Shareholders prior
to or at the time of the Closing, of each of the following
conditions, any one or more of which may be waived by Icon.
SECTION 8.1 Representations and Warranties True at the Closing.
All representations and warranties of Prospero and Shareholders
contained in this Agreement shall be true and correct in all
material respects as of the date of this Agreement and, except to
the extent such representations and warranties speak as of an
earlier date, as of the time of the Closing as though made on and
as of the Closing, and Prospero shall have delivered to Icon a
closing certificate, dated the date of the Closing, to such effect
and in the form and substance satisfactory to Icon, and signed, in
the case of Prospero, by its president and secretary.
SECTION 8.2 Performance. Each of the obligations of Prospero and
Shareholders to be performed on or before the Closing pursuant to
the terms of this Agreement shall have been duly performed at such
time, and Prospero shall have delivered to Icon a closing
certificate, dated the date of the Closing, to such effect and in
form and substance satisfactory to Icon.
SECTION 8.3 Authority. All action required to be taken by, or on
the part of Prospero and Shareholders to authorize the execution,
delivery and performance of this Agreement by Prospero and
Shareholders and the consummation of the transactions contemplated
hereby, shall have been duly and validly taken.
SECTION 8.4 Absence of Certain Changes or Events. There shall not
have occurred, since the date hereof, any adverse change in the
business, condition, (financial or otherwise), assets or
liabilities of Prospero, or any event or condition of any character
adversely affecting Prospero, and Prospero shall have delivered to
Icon, a closing certificate, dated the date of the Closing, to such
effect and in form and substance satisfactory to Icon and signed,
in the case of Prospero, by its president and secretary.
SECTION 8.5 Acceptance by Prospero Shareholders. The holders of
record as of the Closing of an aggregate of not less than one
hundred percent (100%) of the issued and outstanding shares of
capital stock of Prospero have agreed to exchange their shares for
the Icon Shares specified herein.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF PROSPERO
All obligations of Prospero and Shareholders under this
Agreement are subject to the fulfillment and satisfaction by Icon,
prior to or at the time of Closing, of each of the following
conditions, any one or more of which may be waived by Prospero and
Shareholders.
SECTION 9.1 Representations and Warranties True at the Closing.
All representations and warranties of Icon contained in this
Agreement shall be true and correct in all material respects as of
the date of this Agreement and, except to the extent such
representations and warranties speak as of an earlier date, as of
the time of the Closing as though made on and as of the Closing,
and Icon shall have delivered to Prospero a certificate, dated the
date of the Closing, to such effect and in the form and substance
satisfactory to Prospero and Shareholders, and signed, in the case
of Icon, by its president and secretary.
SECTION 9.2 Performance. Each of the obligations of Icon to be
performed on or before the Closing pursuant to the terms of this
Agreement shall have been duly performed at the time of the
Closing, and Icon shall have delivered to Prospero a closing
certificate, dated the date of the Closing, to such effect and in
form and substance satisfactory to Prospero and Shareholders, and
signed, in the case of Icon, by its president and secretary.
SECTION 9.3 Authority. All action required to be taken by, or on
the part of Icon, to authorize the execution, delivery and
performance of this Agreement by Icon, and the consummation of the
transactions contemplated hereby shall be duly and validly taken.
SECTION 9.4 Absence of Certain Changes or Events. There shall not
have occurred, since the date hereof, any adverse change in the
business, condition, (financial or otherwise), assets or
liabilities of Icon or any event or condition of any character
adversely affecting Icon and Icon shall have delivered to Prospero,
a closing certificate, dated the date of the Closing, to such
effect and in form and substance satisfactory to Prospero and
Shareholders and signed, in the case of Icon by its president
and secretary.
SECTION 9.5 Action by Icon Shareholders. Prior to the Closing of
this Agreement, the shareholders of Icon shall have approved the
reverse stock split and the amendment to the Icon Articles of
Incorporation changing the corporate name as set forth in
Section 1.4 above
ARTICLE X
TERMINATION
SECTION 10.1 Termination. Notwithstanding anything herein or
elsewhere to the contrary, this Agreement may be terminated and the
transactions contemplated hereby abandoned an/or rescinded:
(a) By mutual written agreement of all the parties hereto at
any time, whether before or after the approval of this
Agreement by the respective parties;
(b) By the board of directors of Icon at any time prior to
the Closing if:
(i) a condition to Icon's performance under this
Agreement or a covenant of Prospero and/or Shareholders
contained herein shall not be fulfilled on or before the
time of the Closing or at such other time and date
specified for the fulfillment for such covenant or
condition;
(ii) a material default or breach of this Agreement shall
be made by Prospero and/ or Shareholders; or
(iii) the Closing shall not have taken place on or
prior to January 31, 1999.
(c) By the board of directors of Prospero at any time prior
to the Closing if:
(i) a condition to Prospero's and Shareholders'
performance under this Agreement or a covenant of Icon
contained in this Agreement shall not be fulfilled on or
before the Closing or at such other time and date
specified for the fulfillment of such covenant or
conditions;
(ii) a material default or breach of this Agreement shall
be made by Icon; or
(iii) the Closing shall not have taken place on or
prior to January 31, 1999.
(d) By either Icon or Prospero at any time within two (2)
years from the Closing Date, if it is discovered or
determined that any representation or warranty set forth
in the Agreement is proven to be false or materially
misleading or any obligation to be performed hereunder
shall not be fulfilled within the time and date specified
herein, by the non-offending party serving at least ten
(10) days written notice upon the other party that they
intend to terminate the Agreement and all transactions
contemplated herein.
SECTION 10.2 Effect of Termination. If this Agreement is
terminated, this Agreement, except as to Section 11.1 and Section
11.2, shall become void and of no further effect and there shall be
no liability on the part of any party hereto or any of its
respective directors, officers, employees, agents, shareholders,
legal, accounting and financial advisors or other representatives;
provided however, that in the case of a Termination without cause
by a party or a termination pursuant to Sections 10.1(b)(i) or
10.1(c)(i) hereof because of a prior material default under or a
material breach of this Agreement by another party, the damages
which the aggrieved party or parties may recover from the
defaulting party or parties shall in no event exceed the amount of
out-of-pocket costs and expenses actually incurred by such
aggravated party or parties in connection with this Agreement, and
no party to this Agreement shall be entitled to any injunctive
relief. It is further agreed to by the parties hereto that upon
the termination of this Agreement pursuant to Section 10.1 above,
all shares of Icon common stock (Icon Shares) issued hereunder
shall be returned to Icon to be cancelled on its stock ledger and,
in the event such Icon Shares are not returned to Icon, Icon will
have the absolute right to immediately proceed with the
cancellation of the Icon Shares without having possession thereof.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Cost and Expenses. All costs and expenses incurred
in connection with this Agreement will be paid by the party
incurring such expenses. In the event of any termination of this
Agreement pursuant to Section 10.1, subject to the provisions of
Section 10.2, Icon and Prospero will each bear their own respective
expenses.
SECTION 11.2 Extension of Time: Waivers. At any time prior to
the Closing date:
(a) Icon may (i) extend the time for the performance of any
of the obligations or other acts of Prospero and/or
Shareholders, (ii) waive any inaccuracies in the
representations and warranties of Prospero and Shareholders
contained herein or in any document delivered pursuant hereto
by Prospero and Shareholders, and (iii) waive compliance with
any of the agreements or conditions contained herein to be
performed by Prospero and Shareholders. Any agreement on the
part of Icon to any such extension or waiver shall be valid
only if set forth in an instrument, in writing, signed on
behalf of Icon;
(b) Prospero may (i) extend the time for the performance of
any of the obligations or other acts of Icon, (ii) waive any
inaccuracies in the representations and warranties of Icon
contained herein or in any document delivered pursuant hereto
by Icon and (iii) waive compliance with any of the agreements
or conditions contained herein to be performed by Icon. Any
agreement on the part of Prospero and to any such extension or
waiver shall be valid only if set forth in an instrument, in
writing, signed on behalf of Prospero.
SECTION 11.3 Notices. Any notice to any party hereto pursuant to
this Agreement shall be in writing and given by Certified or
Registered Mail or by facsimile, addressed as follows:
Copy to:
Icon Systems, Inc. Leonard E. Neilson
Attorney at Law
1121 East 3900 South,Suite 200
Salt Lake City, Utah 84124
Copy to:
Prospero Investments Limited Appleton Company
Services limited
186 Hammersmith Road
London W8 7Dj
Additional notices are to be given as to each party, at such
other address as should be designated in writing complying as to
delivery with the terms of this Section 11.3. All such notices
shall be effective when sent, addressed as aforesaid.
SECTION 11.4 No Personal Liability. This Agreement shall not
create or be deemed to create any personal liability or obligation
on the part of any direct or indirect shareholder of Icon,
Prospero, or any of their respective officers, directors,
employees, agents or representative.
SECTION 11.5 Parties in Interest. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and the
respective successors and assigns. Nothing in this Agreement is
intended to confer, expressly or by implication, upon any other
person any rights or remedies under or by reason of this Agreement.
SECTION 11.6 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and
together shall constitute one document. The delivery by facsimile
of an executed counterpart of this Agreement shall be deemed to be
an original and shall have the full force and effect of an original
executed copy.
SECTION 11.7 Severability. The provisions of this Agreement shall
be deemed severable and the invalidity or unenforceability of any
provision hereof shall not affect the validity or enforceability of
any of the other provisions hereof. If any provisions of this
Agreement, or the application thereof to any person or any
circumstance, is illegal, invalid or unenforceable, (a) a suitable
and equitable provision shall be substituted therefor in order to
carry out, so far as may be valid and enforceable, the intent and
purpose of such invalid or unenforceable provision, and (b) the
remainder of this Agreement and the application of such provision
to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other jurisdiction.
SECTION 11.8 Headings. The Article and Section headings are
provided herein for convenience of reference only and do not
constitute a part of this Agreement and shall not be deemed to
limit or otherwise affect any of the provisions hereof.
SECTION 11.9 Governing Law. This Agreement shall be deemed to be
made in and in all respects shall be interpreted, construed and
governed by and in accordance with the law of the State of Utah
without regard to the conflict of law principles thereof. Any
action to enforce the provisions of this Agreement shall be brought
in a court of competent jurisdiction in the State of Utah and in on
other place.
SECTION 11.10 Survival of Representations and Warranties. All
terms, conditions, representations and warranties set forth in this
Agreement or in any instrument, certificate, opinion, or other
writing providing for in it, shall survive the Closing and the
delivery of the Shares of Icon common stock to be issued hereunder
at the Closing, regardless of any investigation made by or on
behalf of any of the parties hereto.
SECTION 11.11 Assignability. This Agreement shall not be
assignable by operation of law or otherwise and any attempted
assignment of this Agreement in violation of this subsection shall
be void.
SECTION 11.12 Amendment. This Agreement may be amended with the
approval of Shareholders and the boards of directors of Icon and
Prospero at any time before or after approval thereof by
shareholders of Icon and Prospero, if required; but after such
approval, if required, no amendment shall be made which
substantially and adversely changes the terms hereof. This
Agreement may not be amended except by an instrument, in writing,
signed on behalf of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement in a manner legally binding upon them as
of the date first above written.
"Icon"
ICON SYSTEMS, INC. Attest:
By: _____________________________ _________________________
Its: President Secretary
"Prospero"
PROSPERO INVESTMENTS LIMITED
Attest:
By: _____________________________ _________________________
Its: President Secretary
Prospero on behalf of Shareholders
By:__________________________
Its:
