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Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of November 27, 2000 (this
"Agreement"), is made by and between PCSupport.com, Inc., a Nevada corporation
("Buyer") and MyHelpDesk, Inc., a Delaware corporation ("Seller").
W I T N E S S E T H:
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WHEREAS, Buyer desires to purchase from Seller and Seller desires to sell
to Buyer all of the assets of Seller (the "Assets") relating to Seller's
business of developing and providing computer support help services (the
"Business") in exchange for shares of the Buyer's common stock; and
WHEREAS, the parties desire to enter into this Agreement to set forth their
mutual agreements concerning the sale of the Assets to Buyer and certain related
matters;
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereto, and of good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, it is mutually agreed by and between the parties
hereto as follows:
ARTICLE 1
SALE AND TRANSFER OF ASSETS; CLOSING
1.1 Sale of Assets and Assumption of Liabilities.
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(a) Sale of Assets. Subject to the terms and conditions of this
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Agreement, and in reliance upon the representations, warranties, covenants and
agreements contained herein, at the closing of the transactions contemplated
hereby (the "Closing"), Seller will sell, convey, assign and transfer the Assets
to Buyer, and Buyer will purchase the Assets from Seller. The Assets shall be
free and clear of any claims or Encumbrances (as defined in Section 2.6), and
shall include all of Seller's right, title and interest in and to all real,
personal and mixed property, rights, benefits and privileges, both tangible and
intangible, wheresoever situated or located, owned, leased, used or held for use
by Seller in connection with the conduct and operations of the Business. The
Assets shall include all such assets existing on the date hereof and all such
assets acquired between the date hereof and the Closing Date (as defined in
Section 1.3). The Assets shall include all of Seller's right, title and interest
in, to and under the following:
(i) Contracts. All contracts, commitments, agreements,
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promises, leases, arrangements, undertakings and licenses (whether oral or
written, express or implied) which relate to the Business (the "Assumed
Contracts"), including those set forth on Schedule 1.1(a)(i) attached hereto,
which Seller represents to be a complete list of such items as of the date
hereof;
(ii) Intellectual Property. All rights in and to patents and
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patent applications, registered or unregistered trademarks, service marks, and
trademark or service mark registrations and applications, trade names (including
the names "MYHELPDESK", "1STHELP", and "FIRSTHELP" or any derivative rights
related thereto), logos, designs, Internet domain names, slogans and general
intangibles of like nature, together with all goodwill relating
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to the foregoing, copyrights, copyright registrations, renewals and
applications, Software (as defined in Section 2.7(h), Trade Secrets (as defined
below), licenses, agreements and all other proprietary rights, which relate to
the Business (collectively, the "Intellectual Property"), including those set
forth on Schedule 1.1(a)(ii) attached hereto, which Seller represents to be a
complete list of all material items included in the Intellectual Property as of
the date hereof. "Trade Secrets" means all databases, technology, trade secrets
and other confidential information, know-how, show-how, proprietary processes,
formulae, algorithms, models and methodologies, drawings, specifications, plans,
proposals, financing and marketing plans, customer, advertiser and supplier
lists and all other information relating to customers, advertisers or suppliers
(whether or not reduced to writing). Intellectual Property shall also include
all technology and proprietary information developed by any of the employees of
Seller during the course of and in connection with their employment with Seller;
(iii) Third-Party Claims. All rights and claims of Seller,
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whether mature, contingent or otherwise, against third parties relating to the
Assets or the Business, whether in tort, contract or otherwise, including causes
of action, unliquidated rights and claims under or pursuant to all warranties,
representations and guarantees made by manufacturers, suppliers or vendors;
(iv) Permits and Licenses. To the extent transferable, all
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rights of the Seller with respect to permits, approvals, orders, authorizations,
consents, licenses, certificates, qualifications, franchises, concessions,
grants, security clearances, exemptions from or of, or filings or registrations
with, any court or governmental entity in any jurisdiction, and all pending
applications therefor (collectively, "Permits"), which have been issued or
granted to, or are owned or used by, Seller in connection with the Business or
ownership or use of the Assets, including those set forth on Schedule
1.1(a)(iv), which Seller represents to be a complete list of such material items
as of the date hereof;
(v) Books and Records. Copies of all of Seller's books of
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account, general, accounting and personnel records, engineering, business and
other books, papers, logs, ledgers, files, records, invoices, sales data,
advertising and promotional materials, catalogues and price lists, which relate
to the Business or the Assets, and all computerized or electronically stored
versions thereof (collectively, "Books and Records"); and
(vi) Other Assets. All other assets of Seller related to the
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Business, tangible or intangible, real, personal or mixed, whether currently in
use or idle, whether or not specifically referred to herein or in any instrument
of conveyance delivered pursuant hereto.
(b) Assumption of Liabilities.
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(i) Upon the terms and subject to the conditions set forth in
this Agreement, Buyer upon the Closing shall assume and become liable for those
of the Assumed Contracts that are set forth in Schedule 1.1(b)(i) and the other
liabilities, obligations and commitments set forth in Section 1.1(b)(i), all of
the loans made by Buyer to Seller pursuant to
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Section 4.6, together with any additional liabilities, obligations and
commitments incurred by Seller in the ordinary course of business in compliance
with the terms of this Agreement subsequent to the date of Schedule 1.1(b)(i)
specified therein (collectively, the "Assumed Liabilities").
(ii) Except for the Assumed Liabilities expressly assumed by
Buyer pursuant to Section 1.1(b)(i), Buyer shall not assume any liabilities,
obligations or commitments of Seller whatsoever. Pursuant to Section 10.8, Buyer
shall pay Seller at the Closing the amounts described therein to cover certain
legal fees and expenses of Seller, and Buyer shall not assume any other legal
fees of Seller.
(c) Taxes. Seller shall pay all foreign, Federal, state and local
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taxes and fees as would normally be charged to or borne by the seller in a
transaction such as the sale of the Assets, which may be due as the result of
the transaction made the basis of this Agreement, including any sales taxes with
respect to the sale of the Assets. Buyer shall pay all foreign, Federal, state
and local taxes and fees as would normally be charged to or borne by the buyer
in a transaction such as the sale of the Assets, which may be due as the result
of the transaction made the basis of this Agreement. For purposes of this
Agreement, the terms "Federal," "state" and "local" refer to the Federal, state
and local governments of the United States, and "foreign" refers to any
government outside of the United States.
1.2 Purchase Price. In consideration of the sale, transfer and assignment
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to Buyer of the Assets, Buyer shall:
(a) issue to Seller at the Closing 1,000,000 shares (the "Closing
Shares") of Buyer's common stock, par value $0.001 per share ("Common Stock");
(b) issue to the individuals listed on Exhibit A attached hereto an
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aggregate of up to 112,500 shares of Common Stock (the "Management Shares"), in
the respective amounts set forth opposite their names on Exhibit A, as provided
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in Section 1.5;
(c) issue to Seller up to 387,500 shares of the Common Stock (the
"Post-Closing Shares"), in accordance with Section 1.5, with such shares to be
delivered to Seller not later than one year from the Closing Date as provided in
Section 1.5;
(d) pay to Seller a cash amount to cover the reasonable legal fees
and expenses incurred by Seller in connection with the transactions contemplated
hereby, as provided in Section 10.8; and
(e) assume the Assumed Liabilities.
1.3 The Closing. The Closing will take place at 5:00 p.m.on November 27,
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2000 at the offices of Troy & Gould Professional Corporation, 1801 Century Park
East, Suite 1600, Los
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Angeles, California or at such other time as soon as possible following such
execution of this Agreement and place as the parties may mutually agree (the
"Closing Date").
1.4 Closing Obligations. At the Closing, Buyer and Seller shall take the
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following actions, in addition to such other actions as may otherwise be
required under this Agreement:
(a) Conveyance Instruments. Seller shall deliver to Buyer or its
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designee such warranty deeds, bills of sale, assignments, and other instruments
of conveyance and transfer as Buyer may reasonably request to effect the
assignment to Buyer or its designee of the Assets.
(b) Assignment and Assumption Agreement. Seller shall deliver to
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Buyer and Buyer shall deliver to Seller a duly executed Assignment and
Assumption Agreement in the form of Exhibit B hereto, pursuant to which Buyer
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assumes all of the Assumed Liabilities.
(c) Registration Rights Agreement. Seller shall deliver to Buyer and
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Buyer shall deliver to Seller a duly executed Registration Rights Agreement in
the form of Exhibit C hereto, which will cover the registration under the
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Securities Act of 1933, as amended (the "Securities Act"), of the Closing
Shares, the Management Shares and the Post-Closing Shares.
(d) Legal Opinions. Seller shall deliver to Buyer an opinion of
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counsel to Seller (who shall be reasonably acceptable to Buyer) in the form of
Exhibit D hereto, and Buyer shall deliver to Seller an opinion of counsel to
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Buyer (who shall be reasonably acceptable to Seller) in the form of Exhibit E
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hereto.
(e) Certificates. Each party shall deliver to the other certificates
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as to the accuracy of the representations and warranties contained herein, the
compliance with the covenants and agreements contained herein, and the
satisfaction of the conditions to Closing contained herein.
(f) Consideration. Buyer shall issue the Closing Shares to Seller
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and deliver to Seller duly executed certificate(s) in the name of Seller
evidencing the Closing Shares.
1.5 Post-Closing Shares and Management Shares.
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(a) Number of Post-Closing Shares. The number of Post-Closing Shares
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to be issued and delivered to Seller will be 387,500 shares; provided, however,
that the number of shares to be delivered to Seller will be reduced as described
in Article 8.
(b) Number of Management Shares. The number of Management Shares to
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be issued to the individuals set forth in Exhibit A will be an aggregate of
112,500 shares; provided, however, that the number of shares to be delivered to
these individuals will be reduced as described in Article 8, with any such
reduction to be made pro rata among such individuals. Buyer shall have no
obligation to issue any of the Management Shares to any of the individuals
listed in Exhibit A unless and until such individual has first delivered to
Buyer the investment representation letter described in Section 6.6.
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(c) Early Issuance of Post-Closing Shares and Management Shares. The
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Post-Closing Shares will be issued and delivered to Seller and the Management
Shares will be issued to the individuals set forth in Exhibit A one year from
the Closing Date; provided, however, that such shares will be issued immediately
upon Buyer's Common Stock becoming listed on a major United States market (i.e.,
New York Stock Exchange, American Stock Exchange or NASDAQ National Market
System or NASDAQ Small Cap Market), if such listing occurs prior to one year
from the Closing Date (an "Early Share Issuance"). In the event of an Early
Share Issuance, all of the Post-Closing Shares will be issued in the name of
Seller and the Management Shares will be issued in the respective names of the
individuals set forth in Exhibit A, but the certificate(s) evidencing such Post-
Closing Shares and Management Shares will be delivered to OB Services, Inc., as
escrow holder, to be held until one year from the Closing Date and subject to
the forfeiture provisions of Article 8 in accordance with an escrow agreement in
the form of Exhibit F hereto.
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(d) No Transfer of Post-Closing Shares or Management Shares. The
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Post-Closing Shares and the Management Shares may not be disposed of, assigned,
pledged or otherwise transferred at any time prior to their release from escrow
in accordance with the Escrow Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
To induce Buyer to execute, deliver and perform this Agreement, and in
acknowledgement of Buyer's reliance on the following representations and
warranties (in addition to the representations and warranties in Article 1),
Seller hereby represents and warrants to Buyer as follows as of the date hereof
and as of the Closing Date:
2.1 Organization. Seller is a corporation duly organized, validly
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existing and in good standing under the laws of the State of Delaware, with the
power and authority to conduct its business as it is now being conducted and to
own and lease its assets. Except as otherwise set forth in Schedule 2.1 attached
hereto, there are not outstanding any warrants, options or other rights to
acquire any ownership interest in Seller. Seller's assets do not include any
capital stock of, or any other equity interest in, or securities convertible
into or exchangeable for any capital stock or other equity interest in, any
person, or any direct or indirect equity or ownership interest in any other
business.
2.2 Power and Authority. Seller has the power and authority to execute,
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deliver, and perform this Agreement and the other agreements and instruments to
be executed and delivered by Seller in connection with the transactions
contemplated hereby, and Seller has taken all necessary corporate action to
authorize the execution and delivery of this Agreement and such other agreements
and instruments and the consummation of the transactions contemplated hereby.
This Agreement is, and the other agreements and instruments to be executed and
delivered by Seller in connection with the transactions contemplated hereby,
when such other agreements and instruments are executed and delivered, shall be,
the valid and legally binding
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obligations of Seller, as the case may be, enforceable against Seller in
accordance with their respective terms. Seller has obtained the approval of its
shareholders to enter into and perform this Agreement, including any separate
approval required by the holders of its preferred stock.
2.3 No Conflict. Except as set forth on Schedule 2.3 attached hereto, the
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execution and delivery by Seller of this Agreement and the other agreements and
instruments to be executed and delivered in connection with the transactions
contemplated hereby, and the consummation of the transactions contemplated
hereby, will not result in a violation of or conflict with: (a) any foreign,
Federal, state, or local law, regulation, ordinance, zoning requirement,
governmental restriction, order, judgment or decree applicable to Seller, (b)
any provision of any charter, bylaw or other governing or organizational
instrument of Seller, or (c) any mortgage, indenture, license, instrument,
trust, contract, agreement, or other commitment or arrangement to which Seller
is a party or by which Seller is bound, and in each case which would have a
material adverse effect on Seller.
2.4 Required Government Consents. No material Permit (as defined in
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Section 1.1(a)(iv)) is necessary for Seller for the execution and delivery of
this Agreement and the other agreements and instruments to be executed and
delivered by Seller in connection with the transactions contemplated hereby, or
the consummation by Seller of the transactions contemplated hereby.
2.5 Required Contract Consents. Except as set forth on Schedule 2.5
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attached hereto or as specifically waived by Buyer in writing, no approval,
authorization, consent, permission, or waiver to or from any person, or notice,
filing, or recording to or with, any person, is necessary for Seller for: (a)
the execution and delivery of this Agreement and the other agreements and
instruments to be executed and delivered in connection with the transactions
contemplated hereby by Seller, or the consummation by Seller of the transactions
contemplated hereby, or (b) the ownership and use of the Assets and the conduct
of the Business by Seller, in each case as presently owned, used or conducted.
2.6 Title to Assets. Except as set forth on Schedule 2.6 attached hereto,
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Seller has, and will transfer to Buyer at Closing, good and marketable title to,
or a valid leasehold interest in, the properties and assets used by or in
connection with the Business (real, personal and mixed, tangible or intangible),
free and clear of all Encumbrances or other restrictions on transfer.
"Encumbrance" means any mortgage, charge (whether fixed or floating), security
interest, pledge, right of first refusal, lien (including any unpaid vendor's
lien), option, hypothecation, title retention or conditional sale agreement,
lease, option, restriction as to transfer or possession, or subordination to any
right of any other person.
2.7 Intellectual Property.
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(a) Seller owns or has the valid right to use all of the Intellectual
Property (as defined in Section 1.1(a)(ii)) used in the Business as currently
conducted or as presently contemplated to be conducted.
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(b) The Intellectual Property owned or used by Seller is free and
clear of all Encumbrances or other restrictions on transfer. Seller is listed in
the appropriate foreign, Federal or state agency as the sole owner of record for
each application and registration listed on Schedule 1.1(a)(ii). Seller is the
registered owner of the Internet domain names listed on Schedule 1.1(a)(ii) and
has a currently valid registration of such domain names with Network Solutions,
Inc. or InterNIC ("NSI"). The registration and renewal fees charged by NSI for
such domain names are paid through ___________.
(c) The registrations listed in Schedule 1.1(a)(ii) are valid and
subsisting, in full force and effect, and have not been cancelled, expired, or
abandoned. There is no pending or, to Seller's knowledge, threatened opposition,
interference or cancellation proceeding before any court or registration
authority in any jurisdiction against such registrations or against any
Intellectual Property licensed to Seller pursuant to the License Agreements (as
defined in the next paragraph).
(d) Schedule 2.7(d) attached hereto sets forth a complete and
accurate list of all material agreements pertaining to the use of, or granting
any right to use or practice any rights under, any Intellectual Property,
whether Seller is the licensee or licensor thereunder and whether written, oral,
express or implied, any written settlements or consents relating to any
Intellectual Property and covenants not to sue, but excluding any commercial
off-the-shelf software packages (collectively, the "License Agreements"),
indicating for each the title, the parties, date executed, and the subject
matter thereof. Except as set forth in Schedule 2.7(d), there are no
settlements, consents, judgments, or orders or other agreements to which Seller
is a party or by which Seller is bound which restrict any of Seller's rights to
use any Intellectual Property or permit third parties to use any Intellectual
Property which would otherwise infringe any Intellectual Property owned by
Seller.
(e) Seller takes and has taken reasonable measures to protect the
confidentiality of its material Trade Secrets (as defined in Section
1.1(a)(ii)). No Trade Secret has been disclosed to or has been authorized to be
disclosed to any employee, consultant or contractor of Seller who contributed
materially to the creation or invention of such material Trade Secrets, other
than pursuant to a non-disclosure agreement or similar arrangement or obligation
agreeing to maintain the confidentiality of Seller's Trade Secrets, with each
employee, consultant and contractor of Seller that has worked on the development
of any Intellectual Property having assigned all of such employee's,
consultant's or contractor's rights, title and interest in the Intellectual
Property to Seller, and with all of such assignments being in full force and
effect as of the Closing Date. To the best of Seller's knowledge, no party to
any non-disclosure agreement relating to any Trade Secrets is in breach thereof.
(f) The conduct of the Business as currently conducted and as
currently proposed to be conducted does not infringe upon (either directly or
indirectly) any Intellectual Property owned or controlled by any third party.
There are no claims or suits pending or, to Seller's knowledge, threatened
against Seller, and Seller has not received any notice of a third party claim or
suit (i) alleging that any of Seller's activities or the conduct of the Business
has
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infringed upon or constitutes the unauthorized use of the Intellectual Property
rights of any third party, or (ii) challenging the ownership, use, validity or
enforceability of any Intellectual Property.
(g) To the best of Seller's knowledge, no third party is
misappropriating, infringing, diluting, or violating any Intellectual Property
owned by or licensed to Seller, and no such claims are pending against a third
party by Seller.
(h) Schedule 2.7(h) attached hereto lists all material computer
programs and other software products currently owned, licensed, sublicensed,
leased, sold to or by or otherwise used by Seller (collectively, "Software"),
and identifies which is owned, licensed, sublicensed, leased, sold or otherwise
used, as the case may be.
(i) Each item of Software listed in Schedule 2.7(h) attached hereto
is either (i) owned by Seller, (ii) currently in the public domain or otherwise
available to Seller without the license, lease or consent of any third party, or
(iii) used under rights granted to Seller pursuant to a written agreement,
license or lease from a third party, which written agreement, license or lease
is listed in Schedule 2.7(i) attached hereto. Seller's use of the Software set
forth in Schedule 2.7(h) does not violate the rights of any third party. With
respect to the Software set forth in Schedule 2.7(h) which Seller purports to
own, such Software was either (x) developed by employees of Seller within the
scope of their employment; (y) developed by independent contractors who have
assigned their rights to Seller pursuant to written agreements; or (z) acquired
by Seller from third parties.
(j) The Software owned by Seller does not incorporate codes other
than those developed by Seller, its employees or consultants who developed such
codes under work for hire agreements with Seller.
2.8 Compliance with Rules.
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(a) Seller at all times has been and is currently in compliance with
all Rules applicable to the Business, except for any failure to so comply which
would not have a material adverse effect on Seller. "Rule" means any law,
statute, rule, regulation, order, court decision, judgment or decree of any
foreign, Federal, state, territorial, provincial or municipal governmental
authority.
(b) Seller is in full compliance with, and has obtained, all Permits
(as defined in Section 1.1(a)(iv)) and other authorizations which are required
by any Rule, the lack of which would have a material adverse effect on Seller.
2.9 Tax Matters. Except as set forth on Schedule 2.9 attached hereto:
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(a) Seller has filed or caused to be filed all tax returns required
to be filed prior to the Closing Date. All such tax returns were correct and
complete in all material respects.
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All taxes owed by Seller pertaining to the Business or the Assets (whether or
not shown on any tax return) have been paid on a timely basis. Seller is not the
beneficiary of any extension of time within which to file any tax return. To
Seller's knowledge, no claim has ever been made by an authority in a
jurisdiction where Seller does not file tax returns that Seller is or may be
subject to taxation by that jurisdiction. There are no Encumbrances (as defined
in Section 2.6) or other restrictions on transfer on any of the Assets that
arose in connection with any failure (or alleged failure) to pay any tax. Seller
is, and has been at all times since its formation, properly characterized as a
corporation for Federal and state income tax purposes.
(b) Seller has withheld and paid all taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, or third party.
(c) Seller does not expect any authority to assess any additional
taxes for any period for which tax returns have been filed. There is no dispute
or claim concerning any tax liability of Seller either (A) claimed or raised by
any authority in writing or (B) as to which Seller has knowledge. Seller has
delivered to Buyer correct and complete copies of all tax returns, examination
reports, and statements of deficiencies assessed against or agreed to by Seller
for all tax years since inception.
(d) Seller has not waived any statute of limitations in respect of
taxes or agreed to any extension of time with respect to a tax assessment or
deficiency.
2.10 Contracts.
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(a) Each of the Assumed Contracts is in full force and effect and
enforceable against Seller, and to Seller's knowledge, against all other parties
thereto, in accordance with its terms. Except as set forth in Schedule 2.10(a)
attached hereto, there exists no event of default or occurrence, condition or
act on the part of Seller or, to the best knowledge of Seller, on the part of
any other party to any Assumed Contract, which constitutes or would constitute
(with or without notice or lapse of time or both) a material breach of or
material default under any of the Assumed Contracts or cause or permit
acceleration of any obligation of Seller or, to the best knowledge of Seller,
any other party. There are no renegotiations of, attempts to renegotiate, or
outstanding rights to renegotiate any amounts paid or payable to Seller under
any Assumed Contract with any person having the contractual or statutory right
to demand or require such renegotiation and no such person has made written
demand for such renegotiation.
(b) Except as set forth in Schedule 2.10(b) attached hereto, no
consent of any other party to any Assumed Contract is required in order for any
Assumed Contract to remain in full force and effect following the consummation
of the transactions contemplated by this Agreement.
(c) Seller is not a party to any agreement that limits its freedom to
compete in any line of business in which Seller currently operates or with any
person.
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(d) Except as set forth in Schedule 2.10(d) attached hereto, Seller
is not a party to or subject to any agreement or arrangement other than the
Assumed Contracts.
2.11 Employee Matters. Seller has complied with all Rules (as defined in
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Section 2.8(a)) with respect to any current and former employees, the failure so
to comply would have a material adverse effect on Seller.
2.12 Customers, Advertisers and Suppliers. Schedule 2.12 attached hereto
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sets forth a list of all of Seller's customers, advertisers and suppliers during
the twelve month period ending on the date of this Agreement. Except for
customer support requests in the ordinary course of business, there has not been
any material adverse change in the relations of Seller, or any material
controversies, with any such customer, advertiser or supplier and Seller has not
received notice, nor does Seller have reason to believe, that any such customer,
advertiser or supplier is contemplating terminating its relationship with
Seller.
2.13 Litigation. Except as disclosed on Schedule 2.13 attached hereto,
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there is no legal, administrative or other action, claim, proceeding or
governmental investigation, domestic or foreign ("Litigation"), pending or, to
Seller's knowledge, threatened against Seller affecting the Business or the
Assets, or that challenges or reviews the execution, delivery or performance of
this Agreement by Seller or of the consummation of the transactions contemplated
hereby, or that seeks to enjoin or obtain damages in respect of the consummation
of any of the transactions contemplated hereby. Seller is not a party to and is
not bound by any order or any ruling or award of any other person that has
resulted in or could reasonably be expected to result in, individually or in the
aggregate, a material adverse effect on the Business or which could reasonably
be expected to adversely affect the consummation of the transactions
contemplated hereby.
2.14 Financial Statements. The balance sheets of Seller as of December
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31, 1998, December 31, 1999 and September 30, 2000 (the "September Balance
Sheet"), the statements of operations, stockholders' equity and cash flows of
Seller for the period from October 8, 1998 to December 31, 1998, the one-year
period ended December 31, 1999 and the nine-month period ended September 30,
2000, and all related schedules and notes to the foregoing, copies of which have
been supplied to Buyer, were prepared in accordance with generally accepted
accounting principles and fairly and accurately present the financial position,
results of operations and changes in financial position of Seller as of their
respective dates and for the periods indicated, subject to normal year-end
adjustments in the case of the financial statements for the period ended
September 30, 2000, which are not expected by Seller to be material. The
foregoing financial statements for the period from October 8, 1998 to December
31, 1998 and for the one-year period ended December 31, 1999 have been audited
by independent public accountants; and each of the foregoing financial
statements for the nine-month period ended September 30, 2000 have been
certified by the principal financial officer of Seller. Except as set forth on
Schedule 2.14, Seller does not have any material liabilities or obligations of a
type which would be included in a balance sheet prepared in accordance with
generally accepted accounting principles, whether related to tax or non-tax
matters, accrued or contingent, due or not yet due,
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liquidated or unliquidated, or otherwise, except as and to the extent disclosed
or reflected in the September Balance Sheet or incurred since September 30, 2000
in the ordinary course of business. Seller acknowledges and agrees that all of
the foregoing financial statements may be filed by Buyer with the Securities and
Exchange Commission.
2.15 No Adverse Change. Except as set forth on Schedule 2.15 attached
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hereto, and other than changes resulting from general economic conditions or
conditions affecting Seller's industry, since September 30, 2000, there has not
been and, to the knowledge of Seller, there is not threatened (i) any material
adverse change in the financial condition, business, properties, assets or
results of operations of Seller; (ii) any loss or damage (whether or not covered
by insurance) to any of the assets or properties of Seller which materially
affects or impairs its ability to conduct its business; (iii) any event or
condition of any character which has materially and adversely affected the
business or prospects (financial or otherwise) of Seller; or (iv) any mortgage
or pledge of any material amount of the assets or properties of Seller, or any
indebtedness incurred by Seller other than indebtedness, not material in the
aggregate, incurred in the ordinary course of business.
2.16 Conduct of Business.
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(a) Ordinary Course of Business: No Removal or Disposal of Assets.
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Since inception, Seller has operated the Business in the ordinary course
consistent with past practices, and has not removed or disposed of any material
assets except in the ordinary course.
(b) No Material Adverse Change. Except as set forth on Schedule
--------------------------
2.16(b) attached hereto, and other than changes resulting from general economic
conditions or conditions affecting Seller's industry, since the date of the
September Balance Sheet, there has been no material adverse change in the Assets
or in the financial condition, operations, or prospects of the Business.
(c) Absence of Particular Events. Except as set forth on Schedule
----------------------------
2.16(c) attached hereto, since inception, Seller has not: (i) suffered any
damage or destruction materially adversely affecting the Business or involving
the Assets; (ii) incurred any material liability or obligation other than in the
ordinary course consistent with past practice; (iii) made any change or
alteration in the manner of keeping the books, accounts or records of the
Business or in the accounting practices therein reflected; (iv) paid, loaned, or
advanced any monetary amount or other asset to, or sold, transferred, or leased
any asset to, any employee except for normal compensation involving salary,
benefits or reimbursement; (v) received any notice of or become aware of any
loss of any one or more customers, representing 3% or more of the revenue of the
Business for the period from inception to the date hereof; (vi) entered into or
engaged in any transaction in respect of the Business other than on commercially
reasonable terms determined on the basis of the facts existing at the time such
transaction was entered into or engaged in; or (viii) agreed to take or allow
any of the foregoing actions described in this Section 2.16(c).
11
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(d) Absence of Joint Ventures, etc. Seller is not a party to any
------------------------------
joint venture or other similar agreement or arrangement.
2.17 Broker's or Finder's Fees. Seller has not authorized any person to act
-------------------------
as broker or finder or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
2.18 No Undisclosed Liabilities. Seller has no liabilities or indebtedness
--------------------------
relating to the Business (whether known or unknown and whether absolute,
accrued, contingent, or otherwise), including any accounts payable or any
obligations relating to unfulfilled contracts or customers of the Business,
which are not reflected or reserved for in the September Balance Sheet or
disclosed on Schedule 2.18 or any other schedule attached hereto.
2.19 Unregistered Stock. Seller understands and acknowledges that (i) the
------------------
Post-Closing Shares and the Closing Shares (collectively, the "Shares") have not
been registered under the Securities Act, and are therefore restricted
securities; (ii) the Shares may not be sold or transferred unless they are
registered under the Securities Act or an exemption from such registration is
available; and (iii) a legend to that effect will be placed on the certificates
representing the Shares. Furthermore, as provided in Section 1.5, no Post-
Closing Shares or Management Shares may be transferred at any time prior to
their release from escrow, in accordance with the Escrow Agreement.
2.20 Investor Representations. Seller (i) is an accredited investor as
------------------------
defined in Regulation D under the Securities Act, or by reason of its business
and financial experience, and the business and financial experience of those
persons unaffiliated with Buyer retained by it, if any, to advise it with
respect to its investment in the Shares, it together with such advisers has such
knowledge, sophistication and experience in business and financial matters as to
be capable of evaluating the merits and risk of the prospective investment; (ii)
is acquiring the Shares for its own account and not with a view to the
distribution thereof, except in compliance with the Securities Act or an
exemption available thereunder; (iii) acknowledges that it has been granted the
opportunity to investigate the business and affairs of Buyer and to ask
questions of its officers and employees, and has availed itself of such
opportunity either directly or through its authorized representations; (iv) has
received and reviewed a copy of Pre-Effective Amendment No. 1 to Buyer's
Registration Statement on Form SB-2, as filed with the Securities and Exchange
Commission on June 19, 2000; and (v) has received and reviewed Buyer's Form 10-
KSB for the fiscal year ended June 30, 2000 and the Buyer's Form 10-QSB for the
quarter ended September 30, 2000.
2.21 Disclosure. No representation, warranty, or statement made by Seller
----------
in this Agreement or in any document or certificate furnished or to be furnished
to Buyer pursuant to this Agreement contains or will contain any untrue
statement or omits or will omit to state any fact necessary to make the
statements contained herein or therein not misleading. Seller has disclosed to
Buyer all facts known or reasonably available to Seller that are material to the
financial condition, operation or prospects of the Business or the Assets.
12
<PAGE>
2.22 Truth at Closing. All of the representations, warranties and
----------------
agreements made by Seller contained in this Agreement shall be true and correct
and in full force and effect on and as of the Closing Date.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
To induce Seller to execute, deliver and perform this Agreement, and in
acknowledgement of Seller's reliance on the following representations and
warranties, Buyer hereby represents and warrants to Seller as follows as of the
date hereof and as of the Closing Date:
3.1 Organization. Buyer is a corporation duly incorporated, validly
------------
existing and in good standing under the laws of the State of Nevada, with the
power and authority to conduct its business as it is now being conducted and to
own and lease its properties and assets.
3.2 Power and Authority. Buyer has the power and authority to execute,
-------------------
deliver, and perform this Agreement and the other agreements and instruments to
be executed and delivered by it in connection with the transactions contemplated
hereby, and Buyer has taken all necessary action to authorize the execution and
delivery of this Agreement and such other agreements and instruments and the
consummation of the transactions contemplated hereby. This Agreement is, and,
when such other agreements and instruments are executed and delivered, the other
agreements and instruments to be executed and delivered by Buyer in connection
with the transactions contemplated hereby shall be, the valid and legally
binding obligations of Buyer, enforceable in accordance with their respective
terms.
3.3 Authorized Capital Stock. The authorized capital stock of Buyer
------------------------
consists of 100,000,000 shares of Common Stock. The numbers of shares of Common
Stock and all subscriptions, warrants, options, convertible securities, and
other rights (contingent or other) to purchase or otherwise acquire equity
securities of Buyer issued and outstanding on the Closing Date, are as set forth
on Schedule 3.3 attached hereto. Except as set forth on Schedule 3.3 attached
hereto, no shares of Common Stock nor any subscription, warrant, option,
convertible security, or other right (contingent or other) to purchase or
otherwise acquire equity securities of Buyer is outstanding on the Closing Date.
The issued and outstanding shares of Buyer's capital stock have been duly
authorized and validly issued, are fully paid and nonassessable.
3.4 Issuance, Sale and Delivery of the Shares. The Closing Shares, the
-----------------------------------------
Management Shares and the Post-Closing Shares being purchased hereunder have
been duly authorized and, when issued and delivered in the manner set forth in
this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable. No preemptive rights or other rights of any stockholder of Buyer
to subscribe for or purchase exist with respect to the issuance and sale of the
Closing Shares or the Post-Closing Shares by Buyer pursuant to this Agreement.
No further approval or authority of the stockholders or the Board of Directors
of Buyer will be required for the issuance and sale of the Closing Shares, the
Management Shares and the Post-Closing Shares
13
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as contemplated herein. Buyer's issuance and sale of the Closing Shares, the
Management Shares and the Post-Closing Shares will be in compliance with all
applicable federal and state securities laws.
3.5 No Conflict. The execution and delivery by Buyer of this Agreement
-----------
and the other agreements and instruments to be executed and delivered in
connection with the transactions contemplated hereby, and the consummation of
the transactions contemplated hereby, will not result in a violation of or
conflict with: (a) to Buyer's knowledge, any foreign, Federal, state, or local
law, regulation, ordinance, zoning requirement, governmental restriction, order,
judgment or decree applicable to Buyer, (b) any provision of any charter, bylaw
or other governing or organizational instrument of Buyer, or (c) any mortgage,
indenture, license, instrument, trust, contract, agreement, or other commitment
or arrangement to which Buyer is a party or by which Buyer is bound, and in each
case which would have a material adverse effect on Buyer.
3.6 Required Government Consents. No material Permit (as defined in
----------------------------
Section 1.1(a)(iv)) is necessary for Buyer for the execution and delivery of
this Agreement and the other agreements and instruments to be executed and
delivered by Buyer in connection with the transactions contemplated hereby, or
the consummation by Buyer of the transactions contemplated hereby.
3.7 Required Contract Consents. No approval, authorization, consent,
--------------------------
permission, or waiver to or from any person, or notice, filing, or recording to
or with, any person, is necessary for Buyer for the execution and delivery of
this Agreement and the other agreements and instruments to be executed and
delivered in connection with the transactions contemplated hereby by Buyer, or
the consummation by Buyer of the transactions contemplated hereby.
3.8 Reporting Company; Small Business Issuer; Additional Information.
----------------------------------------------------------------
Buyer has filed all reports required to be filed by Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act"). Buyer is a "small
business issuer", as such term is defined in Rule 405 promulgated under the
Securities Act. Buyer has made available to Seller a true and complete copy of
each report, schedule, registration statement, or proxy statement filed by Buyer
with the Securities and Exchange Commission (the "Commission") under the
Exchange Act and the Securities Act since January 1, 2000 (as such documents
have since the time of their filing been amended, the "Information Documents"),
which are all the documents (other than preliminary material) that Buyer was
required to file with the Commission since such date. As of their respective
dates, the Information Documents and any forms, reports and other documents
filed by Buyer complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the Commission thereunder applicable to the Information Documents
or such other forms, reports or other documents, and none of the Information
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the
Information Documents comply as to form in all
14
<PAGE>
material respects with applicable accounting requirements and with the published
rules and regulations of the Commission with respect thereto, have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto) and fairly present (subject, in the case of the unaudited
statements, to normal, recurring audit adjustments, which were not individually
or in the aggregate material) in all material respects the financial position of
Buyer as at the dates thereof and the results of its operations and cash flows
for the periods then ended.
3.9 Litigation. Except as disclosed in the Information Documents, there
----------
is no legal, administrative or other action, claim, proceeding or governmental
investigation, domestic or foreign, pending or, to Buyer's knowledge, threatened
against Buyer materially affecting Buyer's business or assets, or that
challenges or reviews the execution, delivery or performance of this Agreement
by Buyer or of the consummation of the transactions contemplated hereby, or that
seeks to enjoin or obtain damages in respect of the consummation of any of the
transactions contemplated hereby. However, Buyer is seeking to renegotiate
certain terms of its agreements with Alta Vista, which could result in future
litigation between those parties. Buyer is not a party to and is not bound by
any order or any ruling or award of any other person that has resulted in or
could reasonably be expected to result in, individually or in the aggregate, a
material adverse effect on Buyer's business or which could reasonably be
expected to materially adversely affect the consummation of the transactions
contemplated hereby.
3.10 Broker's or Finder's Fees. Buyer has not authorized any person to act
-------------------------
as broker, finder, or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
3.11 Disclosure. No representation, warranty, or statement made by Buyer
----------
in this Agreement or in any document or certificate furnished or to be furnished
to Buyer pursuant to this Agreement contains or will contain any untrue
statement or omits or will omit to state any fact necessary to make the
statements contained herein or therein not misleading.
3.12 Truth at Closing. All of the representations, warranties, and
----------------
agreements of Buyer contained in this Article 3 shall be true and correct and in
full force and effect on and as of the Closing Date.
ARTICLE 4
COVENANTS OF SELLER AND BUYER PRIOR TO CLOSING
4.1 Course of Business. Prior to the Closing Date, Seller shall conduct
------------------
the Business substantially in the same manner heretofore conducted, and Seller
shall not institute any new methods of accounting or operation or engage in any
transaction or activity, enter into any agreement, or make any commitment,
except in the ordinary course of business and consistent with past practice.
Seller shall not incur any liabilities in excess in the aggregate of $5,000,
other than those incurred in the ordinary course of business, without the prior
written consent of Buyer.
15
<PAGE>
4.2 Required Approvals. As promptly as practicable after the date of this
------------------
Agreement, Seller shall make all filings required by foreign, Federal, state or
local law to be made by it in order to consummate the transactions contemplated
hereby. Seller shall (a) cooperate with Buyer with respect to all filings that
Buyer elects to make or is required by law to make in connection with the
transactions contemplated hereby, and (b) cooperate with Buyer in obtaining any
consents of the type described in Sections 2.4 and 2.5.
4.3 Prohibited Actions. In no event, without the prior written consent of
------------------
Buyer, shall Seller:
(a) Encumbrances. Permit any of the Assets to be subjected to any
------------
claim or Encumbrance not existing on the date hereof.
(b) Disposition of Assets. Waive any claims or rights of substantial
---------------------
value respecting the Business or Assets, or sell, transfer, or otherwise dispose
of any of the Assets, except in the ordinary course of business and consistent
with past practice.
(c) Intellectual Property. Dispose of, license, or permit to lapse
---------------------
any rights in any material Intellectual Property.
4.4 Access. From the date of this Agreement to the Closing Date, Seller
------
shall: (a) provide Buyer with such information in connection with the Business
and the Assets as Buyer may from time to time reasonably request; (b) provide
the Buyer and its officers, counsel and other authorized representatives access
during regular business hours and upon reasonable notice to its books, records,
and offices, as Buyer may from time to time reasonably request; and (c) permit
Buyer to make such inspections thereof as it may reasonably request. Any
investigation shall be conducted in such a manner as not to interfere
unreasonably with the operation of the Business.
4.5 Non-Solicitation. Until the completion or termination of the
----------------
transactions contemplated by this Agreement, Seller shall not, nor shall any of
its representatives, solicit, offer or encourage any sale of any of the Assets
or the Business.
4.6 Funding of Seller. Without derogating from Buyer's obligation to
-----------------
assume the Assumed Liabilities and from Buyer's responsibility therefore after
the Closing, Buyer shall pay the ongoing costs of operating the Business in the
ordinary course through the Closing or the termination of the Agreement, to a
maximum of $100,000 per week, calculated on a cumulative basis from September 1,
2000. In the event this Agreement is terminated for any reason, the amounts so
advanced by Buyer pursuant to this Section 4.6 shall be converted into a one-
year debenture of Seller issued to Buyer in an amount equal to the aggregate
amounts advanced by Buyer to Seller that shall bear interest at 12% per annum,
payable monthly, and the debenture shall be secured by a security interest in
all of Seller's assets that is senior to all other liens of Seller's creditors
except for existing liens (other than those held by any of Seller's
shareholders) as of the date of this Agreement.
16
<PAGE>
ARTICLE 5
CONDITIONS TO SELLER'S OBLIGATIONS
Each of the obligations of Seller to be performed hereunder shall be
subject to the satisfaction (or waiver by Seller) at or prior to the Closing
Date of each of the following conditions:
5.1 Representations and Warranties; Performance. Buyer shall have
-------------------------------------------
performed and complied in all material respects with the covenants and
agreements contained in this Agreement required to be performed and complied
with by it at or prior to the Closing Date, the representations and warranties
of Buyer set forth in this Agreement shall be true and correct in all material
respects as of the date hereof and as of the Closing Date as though made at and
as of the Closing Date (except as otherwise expressly contemplated by this
Agreement), and the execution and delivery of this Agreement by Buyer and the
consummation of the transactions contemplated hereby shall have been duly and
validly authorized by Buyer's Board of Directors , and Seller shall have
received a certificate to that effect signed by Buyer.
5.2 Consents. All required approvals, consents and authorizations for the
--------
consummation of the transactions contemplated hereby shall have been obtained.
5.3 Litigation. No Litigation shall be threatened or pending against Buyer
----------
or Seller that, in the reasonable opinion of counsel for Seller, could result in
the restraint or prohibition of any such party, or the obtaining of damages or
other relief from such party, in connection with this Agreement or the
consummation of the transactions contemplated hereby.
5.4 Legal Opinion. Buyer shall have delivered to Seller an opinion of
-------------
counsel to Buyer (who shall be reasonably acceptable to Seller) in the form of
Exhibit E.
---------
5.5 No Material Adverse Change. From the date of this Agreement until the
--------------------------
Closing Date, Buyer shall not have suffered any material adverse change with
respect to the financial condition, operations or prospects of its business.
5.6 Documents Satisfactory in Form and Substance. All agreements,
--------------------------------------------
certificates, and other documents delivered by Buyer to Seller hereunder shall
be in form and substance satisfactory to counsel for Seller, in the exercise of
such counsel's reasonable judgment.
ARTICLE 6
CONDITIONS TO BUYER'S OBLIGATIONS
Each of the obligations of Buyer to be performed hereunder shall be subject
to the satisfaction (or the waiver by Buyer) at or prior to the Closing Date of
each of the following conditions:
6.1 Representations and Warranties; Performance. Seller shall have
-------------------------------------------
performed and complied in all material respects with the covenants and
agreements contained in this Agreement
17
<PAGE>
required to be performed and complied with by it at or prior to the Closing
Date, the representations and warranties of Seller set forth in this Agreement
shall be true and correct in all material respects as of the date hereof and as
of the Closing Date as though made at and as of the Closing Date (except as
otherwise expressly contemplated by this Agreement), and the execution and
delivery of this Agreement by Seller and the consummation of the transactions
contemplated hereby shall have been duly and validly authorized, and Buyer shall
have received a certificate to that effect signed by Seller.
6.2 Consents. All required approvals, consents and authorizations for the
--------
consummation of the transactions contemplated hereby shall have been obtained.
Buyer hereby waives the requirement that Seller obtain the consent of NaviSite.
6.3 No Litigation. No Litigation shall be threatened or pending against
-------------
Buyer or Seller that, in the reasonable opinion of counsel for Buyer, could
result in the restraint or prohibition of any such party, or the obtaining of
damages or other relief from such party, in connection with this Agreement or
the consummation of the transactions contemplated hereby.
6.4 Legal Opinion. Seller shall have delivered to Buyer an opinion of
-------------
counsel to Seller, in the form of Exhibit D.
---------
6.5 No Material Adverse Change. From the date of this Agreement until the
--------------------------
Closing Date, Seller shall not have suffered any material adverse change with
respect to the financial condition, operations or prospects of the Business.
6.6 Investment Representations for Management Shares. Seller shall have
------------------------------------------------
used its commerically reasonable best efforts to cause each of the individuals
set forth in Exhibit A to have executed and delivered to Buyer prior to the
Closing an investment representation letter with respect to his Management
Shares in the form of Exhibit G.
6.7 Documents Satisfactory in Form and Substance. All agreements,
--------------------------------------------
certificates and other documents delivered to Buyer by Seller hereunder shall be
in form and substance satisfactory to counsel for Buyer, in the exercise of such
counsel's reasonable judgment.
ARTICLE 7
COVENANTS OF SELLER AND BUYER FOLLOWING CLOSING
7.1 Allocation of Purchase Price; Transfer Taxes.
--------------------------------------------
(a) Consistent with Section 1060 of the Internal Revenue Code of
1986, as amended, and the applicable Treasury Regulations thereunder, Buyer
shall allocate the Purchase Price to the Assets. Buyer and Seller shall jointly
prepare Form 8594 in a manner consistent with such allocation, and shall timely
file such Form 8594 with the Internal Revenue Service. All tax returns and
reports filed or prepared by Buyer and Seller with respect to the transactions
18
<PAGE>
contemplated by this Agreement shall be consistent with the allocation made
under this Section 7.1(a).
(b) All sales, transfer, and similar taxes and fees (including all
recording fees, if any) incurred by Seller in connection with this Agreement and
the transactions contemplated hereby shall be borne by Seller, and Seller shall
file all necessary documentation with respect to such taxes.
7.2 Cooperation. Seller and Buyer shall cooperate fully with each other
-----------
and their respective employees, counsel, accountants and other representatives
and advisers in connection with the steps required to be taken as part of their
respective obligations under this Agreement; and each of them shall, at any time
and from time to time after the Closing, upon the request of the other, do,
execute, acknowledge and deliver, or cause to be done, executed, acknowledged
and delivered, all such further acts, deeds, assignments, transfers,
conveyances, receipts, acknowledgments, acceptances and assurances as may be
reasonably required to satisfy and perform the obligations of such party
hereunder, and to allow Buyer to operate the Business after the Closing in the
manner in which it was operated before the Closing. In this regard, without
limiting the generality of the foregoing, Seller shall make such introductions
to the customers, licensors, advertisers, suppliers, distributors and brokers
with which the Business has relations, and shall otherwise use reasonable
commercial efforts to cooperate with Buyer, in order to preserve intact such
relationships following the Closing.
7.3 No Public Announcements. Without the prior written consent of Buyer,
-----------------------
Seller shall not make any press release or other public disclosure, or make any
statement to any customer, advertiser, supplier or other person with regard to
the transactions contemplated by this Agreement, except to the extent Seller is
required to make such disclosure pursuant to law or legal process.
7.4 Further Assurances. Subject to the terms and conditions of this
------------------
Agreement, each party agrees to use all of its reasonable efforts to take, or
cause to be taken, all actions and to do or cause to be done, all things
necessary and proper or advisable to consummate and make effective the
transactions contemplated by this Agreement (including the execution and
delivery of such further instruments and documents) as the other party may
reasonably request.
7.5 Nondisclosure of Proprietary Data. Seller shall hold in a fiduciary
---------------------------------
capacity for the benefit of Buyer all secret or confidential information,
knowledge or data relating to Buyer or any of its affiliated companies, and
their respective businesses, which shall not be or become public knowledge.
Seller shall not, without the prior written consent of Buyer, or as may
otherwise be required by law or legal process or in order to defend itself in
legal proceedings, communicate or divulge either before or after the Closing
Date any such information, knowledge or data to anyone other than Buyer and
those designated by Buyer in writing.
19
<PAGE>
7.6 Funds Received After Closing. Any and all funds received by Seller
----------------------------
after the Closing in respect of the Assets or otherwise relating to the Business
(other than funds received by Seller from Buyer pursuant to this Agreement)
shall be promptly remitted to Buyer.
7.7 Liquidation of Seller; Distribution of Shares. Seller shall not
---------------------------------------------
terminate its corporate existence or otherwise dissolve for at least one year
from the Closing Date. Seller shall be entitled, subject only to compliance with
any applicable securities laws, to transfer to its stockholders all of the
Closing Shares at any time, and all of the Post-Closing Shares at any time,
after their issuance or release from escrow, as the case may be; provided,
however, that prior to any such transfer Seller shall have received from each
such stockholder that such stockholder: (i) is an accredited investor as defined
in Regulation D under the Securities Act; and (ii) is acquiring the Shares for
his own account and not with a view to the distribution thereof, except in
compliance with the Securities Act or an exemption available thereunder. Seller
shall provide an opinion of counsel that is reasonably satisfactory to Buyer and
its transfer agent to the effect that any transfer of the Shares by Seller is in
compliance with the applicable securities laws.
7.8 Shareholder Debt. All debt of Seller owing to any of its shareholders
----------------
shall have been converted by Seller into equity in Seller or otherwise waived or
discharged in full.
ARTICLE 8
SURVIVAL; INDEMNITY; ESCROW
8.1 Survival of Representations, Warranties, etc. Each of the
--------------------------------------------
representations, warranties, agreements, covenants and obligations herein is
material and shall be deemed to have been relied upon by the other party or
parties and shall survive the Closing hereof, and shall not merge in the
performance of any obligation by any party hereto, subject to the provisions of
Section 8.3(c) below. All rights to indemnification contained in this Agreement
shall survive the Closing hereof, subject to the provisions of Section 8.4.
8.2 Indemnification by Seller. Subject to Section 8.4, Seller shall
-------------------------
indemnify, defend, and hold harmless Buyer, and Buyer's representatives,
stockholders, controlling persons and affiliates ("Buyer Indemnified Persons"),
at, and at any time after, the Closing, from and against any and all demands,
claim, actions, or causes of action, assessments, losses, damages (including
incidental and consequential damages), liabilities, costs, and expenses,
including reasonable fees and expenses of counsel, other expenses of
investigation, handling, and Litigation (as defined in Section 2.13), and
settlement amounts, together with interest and penalties (collectively, a "Loss"
or "Losses"), asserted against, resulting to, imposed upon, or incurred by
Buyer, directly or indirectly, by reason of, resulting from, or arising in
connection with, any of the following:
(a) Breach. (i) Any breach of any representation, warranty, covenant
------
or agreement of Seller contained in or made pursuant to this Agreement,
including the agreements and other instruments contemplated hereby; and (ii) any
breach of any representation, warranty, or agreement of Seller contained in or
made pursuant to this Agreement, including the
20
<PAGE>
agreements and other instruments contemplated hereby, as if such representation
or warranty were made on and as of the Closing Date.
(b) Products and Services Prior to Closing. Any liabilities or
--------------------------------------
obligations (other than Assumed Liabilities) relating to any product shipped or
manufactured by, or service provided by, Seller prior to the Closing Date.
(c) Brokerage or Finder's Fees. Any claim by any person for
--------------------------
brokerage or finder's fees or commissions or similar payments based upon any
agreement or understanding alleged to have been made by any such person with
Seller in connection this Agreement or any of the transactions contemplated
hereby.
(d) Liabilities. Any of Seller's liabilities or obligations of any
-----------
kind or nature whatsoever, whether accrued, absolute, contingent or otherwise,
known or unknown, other than the Assumed Liabilities.
(e) Incidental Matters. To the extent not covered by the foregoing,
------------------
any and all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs, and expenses, including reasonable fees and
expenses of counsel, other expenses of investigation, handling, and Litigation
and settlement amounts, together with interest and penalties, incident to the
foregoing.
8.3 Indemnification by Buyer. Subject to Section 8.4, Buyer shall
------------------------
indemnify, defend, and hold harmless Seller, and its respective representatives,
stockholders, controlling persons and affiliates ("Seller Indemnified Persons"),
at, and at any time after, the Closing, from and against any and all Losses
asserted against, resulting to, imposed upon, or incurred by Seller, to the
extent arising from any of the following:
(a) Breach. (i) Any breach of any representation, warranty, covenant
------
or agreement of Buyer contained in or made pursuant to this Agreement, including
the agreements and other instruments contemplated hereby; and (ii) any breach of
any representation, warranty, or agreement of Buyer contained in or made
pursuant to this Agreement, including the agreements and other instruments
contemplated hereby, as if such representation or warranty were made on and as
of the Closing Date.
(b) Employees. Any acts or omissions of Buyer from and after the
---------
Closing with respect to any former employees of Seller that are employed by
Buyer after the Closing.
(c) Incidental Matters. To the extent not covered by the foregoing,
------------------
any and all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs, and expenses, including reasonable fees and
expenses of counsel, other expenses of investigation, handling, and Litigation,
and settlement amounts, together with interest and penalties, incident to the
foregoing.
21
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8.4 Limitation on Liability; Time Limitation.
----------------------------------------
(a) The right of any Buyer Indemnified Person or Seller Indemnified
Person to indemnification for any Loss will apply only to those claims for
indemnification that are given in writing on or before the first anniversary of
the Closing Date.
(b) The indemnification provided for in this Section 8 shall not
apply unless the aggregate Loss, as the case may be, for which one or more Buyer
Indemnified Persons seeks indemnification exceeds $50,000. In the event that the
aggregate Loss from all items under Section 8.2 does exceed $50,000, Seller will
indemnify the entire amount of such Loss, including the first $50,000 of such
Loss.
(c) Except or any breach of the representations, warranties or
covenants set forth in Sections 1.1(a)(ii), 2.6 (with respect to any
Intellectual Property), 2.7 or 7.8, the Post-Closing Shares deposited in escrow
pursuant to the Escrow Agreement shall be the Buyer Indemnified Persons' sole
recourse under Article 8 of this Agreement under any theory or liability, and
the aggregate amount of indemnification for such Buyer Indemnified Persons shall
be limited to 250,000 shares. For purposes of this indemnification, the Post-
Closing Shares will be valued at $2 per share.
(d) In the case of any breach of any of the representations,
warranties or covenants set forth in Sections 1.1(a)(ii), 2.6 (with respect to
any Intellectual Property), 2.7 or 7.8, the remedies of the Buyer Indemnified
Persons shall not be limited in any manner and the aggregate amount of
indemnification for such Buyer Indemnified Persons shall not be limited in
amount. The Buyer Indemnified Persons' recourse shall include without limitation
monetary damages payable in cash and the Post-Closing Shares and, to the extent
at least 250,000 of the Post-Closing Shares have already been cancelled pursuant
to this Article 8, the Management Shares. For purposes of this indemnification,
the Post-Closing Shares and Management Shares will be valued at $2 per share.
8.5 Procedures; Third Party Claims, etc.
-----------------------------------
(a) A person entitled to make a claim of indemnification hereunder
shall be referred to as an "Indemnified Party." A person obligated for
indemnification hereunder shall be referred to as an "Indemnifying Party". The
Indemnifying Party shall be entitled to defend any claim, action, suit or
proceeding made by any third party against an Indemnified Party; provided,
--------
however, that the Indemnified Party shall be entitled to participate in such
------
defense with counsel of its choice and at its own expense and, if (i) the
Indemnifying Party is also a party to such claim, action, suit or proceeding and
the Indemnified Party and the Indemnifying Party have conflicting defenses, (ii)
the Indemnifying Party does not provide a competent defense, or (iii) the
Indemnifying Party agrees, then the Indemnified Party's participation shall be
at the expense of the Indemnifying Party. The Indemnified Party shall provide
such cooperation and access to its books, records and properties as the
Indemnifying Party shall reasonably request with respect to such matter; and the
parties shall cooperate with each other in order to ensure the proper and
22
<PAGE>
adequate defense thereof. An Indemnified Party shall not settle any claim
subject to indemnification hereunder without the prior written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
(b) With regard to claims of third parties for which indemnification
is payable hereunder, such indemnification shall be paid by the Indemnifying
Party upon the earliest to occur of: (i) the entry of a judgment against the
Indemnified Party; (ii) the settlement of the claim; (iii) with respect to
indemnities for tax liabilities, upon the issuance of any final resolution by a
taxation authority; or (iv) with respect to claims before any administrative or
regulatory authority, when the Loss is determined (regardless of whether such
Loss is subject to further review or appeal); provided, however, that the
-------- -------
Indemnifying Party shall pay on the Indemnified Party's demand any cost or
expense reasonably incurred by the Indemnified Party in defending or otherwise
dealing with such claim, and provided, further, that nothing in this paragraph
-------- -------
shall limit Buyer's rights under the Escrow Agreement.
(c) To seek indemnification hereunder, an Indemnified Party shall
notify in writing each Indemnifying Party from whom indemnification is sought of
any claim for indemnification, specifying in reasonable detail the nature of the
Loss and the amount or an estimate of the amount thereof. Neither the giving of
such notice nor the failure to give such notice shall constitute an election of
remedies or limit an Indemnified Party in any manner in the enforcement of any
other remedies that may be available to it pursuant to this Agreement, including
the right to proceed against an Indemnifying Party or give notice of a claim
under the Escrow Agreement.
8.6 Notice of Claim Under Escrow Agreement. Upon notice to Seller
--------------------------------------
specifying the basis for such action, Buyer may give notice of a claim under the
Escrow Agreement. Neither the giving of such notice nor the failure to give such
notice shall constitute an election of remedies or limit Buyer in any manner in
the enforcement of any other remedies that may be available to it, including
Buyer's right to otherwise seek indemnification from Seller or proceed against
Seller.
ARTICLE 9
TERMINATION
9.1 Termination. This Agreement may be terminated at any time prior to
-----------
the Closing Date:
(a) by mutual written consent of Seller and Buyer;
(b) by either Seller or Buyer if (i) there shall have been a material
breach of any representation, warranty, covenant or agreement set forth in this
Agreement, on the part of Buyer, in the case of a termination by Seller, or on
the part of Seller, in the case of a termination by Buyer, which breach shall
not have been cured, in the case of a representation or warranty, prior to
Closing or, in the case of a covenant or agreement, within five (5) business
days
23
<PAGE>
following receipt by the breaching party of notice of such breach, or (ii) any
permanent injunction or other order of a court or other competent authority
preventing the consummation of the transactions contemplated hereby shall have
become final and non-appealable;
(c) by either Seller or Buyer if the transactions contemplated
hereby shall not have been consummated on or before November 15, 2000; provided,
--------
however, that the right to terminate this Agreement pursuant to this Section
-------
9.1(c) shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of, or resulted in, the
failure of the consummation of the transactions contemplated hereby to have
occurred on or before the aforesaid date; or
9.2 Effect of Termination. Each party's right of termination under Section
---------------------
9.1 is in addition to any other rights it may have under this Agreement or
otherwise, and the exercise of a right of termination will not be an election of
remedies. If this Agreement is terminated pursuant to Section 9.1, all further
obligations of the parties under this Agreement will terminate; provided,
--------
however, that if this Agreement is terminated by a party because of the breach
-------
of this Agreement by the other party or because one or more of the conditions to
the terminating party's obligations under this Agreement is not satisfied as a
result of the other party's failure to comply with its obligations under this
Agreement, the terminating party's rights to pursue all legal remedies will
survive such termination unimpaired.
ARTICLE 10
MISCELLANEOUS
10.1 Entire Agreement. This Agreement, and the other certificates,
----------------
agreements, and other instruments to be executed and delivered by the parties in
connection with the transactions contemplated hereby, constitute the sole
understanding of the parties with respect to the subject matter hereof and
supersede all prior oral or written agreements with respect to the subject
matter hereof.
10.2 Parties Bound by Agreement; Successors and Assigns. The terms,
--------------------------------------------------
conditions, and obligations of this Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and assigns.
10.3 Amendments and Waivers. No modification, termination, extension,
----------------------
renewal or waiver of any provision of this Agreement shall be binding upon a
party unless made in writing and signed by such party. A waiver on one occasion
shall not be construed as a waiver of any right on any future occasion. No delay
or omission by a party in exercising any of its rights hereunder shall operate
as a waiver of such rights.
10.4 Severability. If for any reason any term or provision of this
------------
Agreement is held to be invalid or unenforceable, all other valid terms and
provisions hereof shall remain in full force and effect, and all of the terms
and provisions of this Agreement shall be deemed to be severable in nature. If
for any reason any term or provision containing a restriction set forth herein
is held
24
<PAGE>
to cover an area or to be for a length of time which is unreasonable, or in any
other way is construed to be too broad or to any extent invalid, such term or
provision shall not be determined to be null, void and of no effect, but to the
extent the same is or would be valid or enforceable under applicable law, any
court of competent jurisdiction shall construe and interpret or reform this
Agreement to provide for a restriction having the maximum enforceable area, time
period and other provisions (not greater than those contained herein) as shall
be valid and enforceable under applicable law.
10.5 Attorney's Fees. Should any party hereto retain counsel for the
---------------
purpose of enforcing, or preventing the breach of, any provision hereof
including, but not limited to, the institution of any action or proceeding,
whether by arbitration, judicial or quasi-judicial action or otherwise, to
enforce any provision hereof or for damages for any alleged breach of any
provision hereof, or for a declaration of such party's rights or obligations
hereunder, then, whether such matter is settled by negotiation, or by
arbitration or judicial determination, the prevailing party shall be entitled to
be reimbursed by the losing party for all costs and expenses incurred thereby,
including, but not limited to, reasonable attorneys' fees for the services
rendered to such prevailing party.
10.6 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
10.7 Headings. The headings of the Sections and paragraphs of this
--------
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
10.8 Expenses. At the Closing, Buyer will pay Seller a cash amount to
--------
cover the reasonable legal fees and expenses incurred by Seller in connection
with the transactions contemplated hereby, which amount shall be notified by
Seller to Buyer two days prior to the Closing Date. Except as specifically
provided herein, Seller and Buyer shall each pay all costs and expenses incurred
by it or on its behalf in connection with this Agreement and the transactions
contemplated hereby, including fees and expenses of its own financial
consultants and accountants.
10.9 Shareholder Representative. Matt d'Arbeloff (or another person
--------------------------
designated by Seller in writing to Buyer) shall, by virtue of resolutions to be
adopted by the stockholders of Seller, be irrevocably appointed attorney-in-fact
and authorized and empowered to act, for and on behalf of any or all of the
shareholders of Seller (with full power of substitution) in connection with the
notice provisions of this Agreement, the Escrow Agreement, the Registration
Rights Agreement, and such other matters as are reasonably necessary for the
consummation of the transactions contemplated hereby, including to act as the
representative of such shareholders to review and authorize all claims and other
payments under the Escrow Agreement and dispute or question the accuracy
thereof, to compromise on their behalf with Buyer any claims asserted thereunder
and to authorize payments to be made with respect thereto, and to take such
further
25
<PAGE>
actions as are authorized in this Agreement. The above-named representative, as
well as any subsequent representative of the shareholders of Seller appointed by
such representative (or, after such representative's death or incapacity,
elected by vote of the holders of a majority of capital stock of Seller
outstanding immediately prior to the consummation of the transactions
contemplated hereby), is referred to herein as the "Shareholder Representative".
Notwithstanding anything in this Agreement to the contrary, Buyer and each of
its respective affiliates shall be entitled to rely on such appointment and
treat the Shareholder Representative as the duly appointed attorney-in-fact of
each shareholder of Seller. The Shareholder Representative shall not be liable
to any stockholder of Seller, Seller, Buyer or any other person with respect to
any action taken or omitted to be taken by the Shareholder Representative under
or in connection with this Agreement, the Escrow Agreement or the Registration
Rights Agreement, unless such action or omission results from or arises out of
fraud, willful misconduct, bad faith or gross negligence on the part of the
Shareholder Representative. The shareholders of Seller shall severally indemnify
and hold the Shareholder Representative harmless against any loss, liability or
expense incurred without fraud, willful misconduct, bad faith or gross
negligence on the part of the Shareholder Representative and arising out of or
in connection with the acceptance or administration of the duties of the
Shareholder Representative hereunder, including the reasonable fees and expenses
of any legal counsel retained by the Shareholder Representative, and shall
reimburse the Shareholder Representative for all reasonable expenses, including
without limitation reasonable legal fees and expenses, incurred by the
Shareholder Representative in connection with administration of the duties of
the Shareholder Representative hereunder. It is hereby agreed that any such
loss, liability or expense may be paid out of the escrow proceeds to which the
shareholders of Seller are entitled under the Escrow Agreement.
10.10 Notices. All notices, requests, demands, claims, and other
-------
communications which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given: when received, if
personally delivered; when transmitted, if transmitted by facsimile, electronic
or digital transmission method; or five business days after such notice,
request, demand, claim or other communication is sent, if sent by registered or
certified mail, return receipt requested, postage prepaid; and, in any case, all
such communications must be addressed to the intended recipient as set forth
below:
if to Seller to (prior to Closing):
MyHelpDesk, Inc.
60 Central St.
Norwood, MA 02062
Attention: Matt d'Arbeloff
facsimile:
26
<PAGE>
if to Seller (after Closing):
Matt d'Arbeloff
c/o Edward N. Gadsby, Esq.
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
facsimile: (617) 832-7000
with a copy (in any case) to:
Edward N. Gadsby, Esq.
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
facsimile: (617) 832-7000
if to Buyer to:
PCSupport.com, Inc.
3605 Gilmore Way, Suite 300
Columbia, Canada V5G 4X5
Attention: David Rowat
facsimile: (604) 419-4494
with a copy to:
Troy & Gould Professional Corporation
1801 Century Park East, 16th Floor
Los Angeles, California 90067
Attention: Sanford J. Hillsberg, Esq.
facsimile: (310) 201-4746
Any party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means, but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party may change the address
to which notices, requests, demands, claims, and other communications hereunder
are to be delivered by giving the other parties notice in the manner herein set
forth.
10.11 Governing Law. This Agreement shall be construed in accordance with
-------------
and governed by the laws of the State of Delaware without giving effect to the
principles of choice of law thereof.
10.12 Arbitration.
-----------
Any dispute arising under or in connection with any matter related to this
Agreement or any related agreement shall be resolved exclusively by arbitration.
The arbitration shall be in
27
<PAGE>
conformity with and subject to the applicable rules and procedures of the
American Arbitration Association. Any arbitration shall incorporate Section
1283.05 of the Code with respect to discovery matters. All parties agree to be
(1) subject to the jurisdiction and venue of the arbitration in the County of
Los Angeles, State of California, (2) bound by the decision of the arbitrator as
the final decision with respect to the dispute and (3) subject to the
jurisdiction of the Superior Court of the State of California for the purpose of
confirmation and enforcement of any award.
10.13 References, etc.
---------------
(a) Whenever reference is made in this Agreement to any Article,
Section, paragraph or Exhibit, such reference shall be deemed to apply to the
specified Article, Section or paragraph of this Agreement or the specified
Exhibit to this Agreement.
(b) Any form of the word "include" when used herein is not intended
to be exclusive (e.g., "including" means "including, without limitation").
10.14 No Strict Construction. The language used in this Agreement will be
----------------------
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any person.
10.15 No Third Party Beneficiary Rights. No provision in this Agreement is
---------------------------------
intended or shall create any rights with respect to the subject matter of this
Agreement in any third party.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed on its behalf as of the date first indicated above.
PCSUPPORT.COM, INC.
By: /s/ Mike McLean
--------------------------
Name: Mike McLean
Title: CEO
MYHELPDESK, INC.
By: /s/ Brian McAdams
--------------------------
Name: Brian McAdams
Title: President
28
<PAGE>
Asset Purchase Agreement
MyHelpDesk, Inc. -- PCSupport.com, Inc.
Seller's Disclosure Schedules
-----------------------------
The following disclosure schedules are being provided pursuant to the Asset
Purchase Agreement (the "Purchase Agreement") dated as of November 27, 2000, by
and between MyHelpDesk, Inc. ("MHD") and PCSupport.com, Inc. ("PCS"). All
capitalized terms used in the following disclosure schedules but not otherwise
defined shall have the meanings assigned to them in the Purchase Agreement.
In the effort to accomplish full disclosure, MHD has provided information that
is not necessarily called for by the Purchase Agreement but which seemed
relevant or possibly useful to PCS, even though MHD does not believe all such
information to be material to the Acquired Assets or the Assumed Liabilities.
The disclosure schedules are intended to be construed as an integrated document
and each schedule should be read in conjunction with the other schedules. To
the extent there is any inconsistency between any aspect of the disclosure
schedules and any provision of the Purchase Agreement, the disclosure schedules
shall be deemed to be controlling.
Schedule 1.1(a)(i) - Assumed Contracts
--------------------------------------
General:
--------
Office Lease: Norwood Retail Trust.
Equipment Leases: Equipment lease with Advanta Commercial Equipment; Office
equipment lease with Pacific Atlantic Systems.
Internet: ISP Agreement with UUNET; Web Hosting Agreement with NaviSite;
Other: IDC White Paper Agreement; settlement agreement with NaviSite and
settlement agreement with Schwartz.
Severance arrangements:
1. As agreed with the following people upon their departure September,
2000, in amounts not to exceed two weeks salary plus accrued vacation,
as prescribed by Massachusetts law: Karen Chase; Paul Critikos; Janine
Fullett; Richard Perkinson; Michael Shaporkin; Jennifer Williams;
Heather Lyzenga; Steven Telio
2. As contained in written agreements with the following people: Karen
Angelini; Howard Marson; Michael Gershon; Paula Malzone.
MyHelpdesk Affiliate Agreements:
-------------------------------
1. CPAX: dated 8-26-99.
2. U-Geek: dated 12-10-99.
3. iVillage Inc.: dated 11-2-99.
4. CMP Media, Inc.: dated 9-14-00.
5. Spinway.com: dated 8-27-99.
6. eCode.com: dated 10-27-99.
<PAGE>
7. LM Ericsson: dated 10-28-99.
8. Fatbrain.com: dated 8-27-99.
9. CommonPlaces, LLC: dated 8-1-99.
10. The Sutherland Group, Ltd.: dated 3-13-00.
MyHelpdesk Co-Branded Computer Help Center Agreements:
------------------------------------------------------
11. Webforia: dated 12-30-99.
12. Spire, Inc.: dated 3-20-2000.
13. IntelleSale.com: dated 4-11-00.
14. Computer.com: dated 12-16-99.
15. COMPUTER4LESS.com: dated 3-2-2000.
16. everdream.com: dated 3-20-00.
17. Help Desk 2000: dated 1-12-00.
18. Freei Networks, Inc.: dated 3-13-00.
19. Help Desk Institute: dated 1-13-00.
20. Deja.com, Inc.:
Partnership, Royalty, Licensing, Operating and Conditional Sales Agreements:
----------------------------------------------------------------------------
21. Lycos: Agreement to Operate Co-Branded Site; dated 12-1-99.
22. Onyx Software: Onyx Software Strategic Alliance Agreement; dated 7-30-
99.
23. STERLING Information Technologies, Inc.: MHD Enterprise Support Portal
Agreement; dated 9-18-00.
24. Concentric Network Corporation (CNC): Provider Referral Agreement;
dated 11-29-99.
25. CompUSA: license to use MHD's directory; dated 1-28-00.
26. AllBusiness.com, Inc.: Tools Partner Co-Branding Agreement; dated
3-15-00.
27. Acer America Corporation: Merchandising Agreement; dated 2-14-00.
28. InScribe Technologies: Consulting Agreement; dated 4-1-99.
29. Support.com: Alliance Program Master Agreement; dated 9-8-00.
30. Freeup LLC: MyHelpdesk Support Portal Agreement; dated 9-19-00.
31. Upgradebase.com: Cross Marketing Agreement; dated 3-16-00.
32. Software BuyLine: E-Commerce Agreement; dated 3-23-99.
33. NECX Direct, LLC: Interactive Operating Agreement; dated 8-3-99.
34. Motive Communications Inc.: Internet OEM Service Agreement; dated
9-15-99.
35. McAfee: Affiliate Marketing Agreement; dated 2-3-00.
36. KnowledgeBroker, Inc.: dated 1-10-00.
37. SITEL Corporation: MyHelpdesk Enterprise Support Portal SITEL
Agreement; dated 7-7-00.
38. HPC Tech: Reseller Agreement; dated 9-1-00.
39. Control-F1: Reseller Agreement; dated 7-17-00.
40. Delphi Internet Services: Distribution Agreement; dated 5-3-99.
41. Verity: Software License Agreement; serial # 1197, 30 Jul 1999.
42. Connected Corporation: VAR Agreement; dated 2-22-00.
43. Vignette software license agreement.
-2-
<PAGE>
Schedule 1.1(a)(ii) - Intellectual Property
-------------------------------------------
Software: The Company has developed two web sites: www.firsthelp.com and
-----------------
www.myhelpdesk.com; see also Schedule 2.7(h);
------------------
Patents and Patent Applications: the Company has filed one provisional patent
application, entitled - Systems and Methods for Targeting Computer Consumers in
the Context of a Technical Support Session.
Trademarks, Service Marks, Trade Names: the Company has two pending trademark
applications, as follows:
. 1STHELP.COM: pending application in Class 42; on-line outsourced help
desk services and remote network management and monitoring services.
. MYHELPDESK: pending application in Class 42; technical support
services, namely, providing access to multi-vendor computer
productivity resources and troubleshooting of computer hardware and
software problems, via a global computer network, e-mail, telephone
and training classes.
Internet Domain Names:
. myhelpdesk.com
. myhelpdesk.net
. myhelpdesk.org
. myhelpdesksucks.com
. firsthelp.com
. firsthelp.org
. 1sthelp.com
. 1sthelp.net
. 1sthelp.org
Schedule 1.1(a)(iv) - Permits and Licenses
------------------------------------------
None.
Schedule 1.1(b)(i) - Assumed Liabilities
----------------------------------------
. See two attached Excel spreadsheets: payables as of September 30, 2000
and accrued liabilities;
. Fees due to Argus (William Ware) in connection with negotiations with
NaviSite and Schwartz.
. Also includes Schedule 1.1 (a) (i) Assumed Contracts
-3-
<PAGE>
Schedule 2.1 - Rights to Acquire Ownership Interest
---------------------------------------------------
See attached capitalization table.
Schedule 2.5 - Required Contract Consents
-----------------------------------------
Contracts requiring consent:
See attached spreadsheet.
Contracts requiring Notice:
--------------------------
McAfee Corp.
Schedule 2.6 - Title to Assets
------------------------------
UCC financing statements filed in connection with equipment lease with Pacific
Atlantic Systems.
Schedule 2.7(d) - Contracts for Use of Intellectual Property
------------------------------------------------------------
See Schedule 1.1(a)(i);
Licenses to use the software identified on schedule 2.7(h).
Schedule 2.7(h) - Software
--------------------------
Software used (under licenses granted to Seller) in connection with development
and maintenance of MyHelpdesk and FirstHelp products:
. Microsoft ITS;
. Microsoft SQL Server;
. Microsoft Visual Source Sale;
. WEBTRENDS;
. Verity search engine;
. Microsoft Windows NT;
. Microsoft Visual Interdev;
. Adobe Photoshop;
. Microsoft Active Server Pages - VB SCRIPT;
. VISUAL BASIC.
Schedule 2.7(i) - Written Software Agreements
---------------------------------------------
The licenses to use the off-the-shelf software listed on Schedule 2.7(h) and the
agreements listed on Schedule 1.1(a)(i).
-4-
<PAGE>
Schedule 2.9 - Tax Matters
--------------------------
None.
Schedule 2.10(a) - Breaches/Defaults under Assumed Contracts
------------------------------------------------------------
None.
Schedule 2.10(d) - Agreements other than Assumed Contracts
----------------------------------------------------------
Bridge financing.
Schedule 2.12 - Customers; Suppliers; Advertisers
-------------------------------------------------
Customers: None; other than the Assumed Contracts listed on Schedule 1.1(a)(i).
Suppliers: See attached supplier list.
Advertisers: None.
Schedule 2.13 - Litigation
--------------------------
None.
Schedule 2.14 - Exceptions to Liabilities on Balance Sheet
----------------------------------------------------------
None.
Schedule 2.15 - Adverse Changes
-------------------------------
None.
Schedule 2.16(c) - Absence of Particular Events
-----------------------------------------------
None.
Schedule 2.18 - Undisclosed Material Liabilities
------------------------------------------------
None.
-5-
<PAGE>
Schedule 1.1b to Asset Purchase Agreement
Accounts Payable as at 30 September 2000 revised
<TABLE>
<CAPTION>
================================================================================================
Vendor Invoice No Date Amount Due
------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Able Copier Services 092700-1 9/27/2000 85.00
-----------
Able Copier Services 85.00
-----------
Ace Locksmith 1048 9/14/2000 621.83
Ace Locksmith 092800-1 9/28/2000 64.50
-----------
Ace Locksmith 686.33
-----------
Advantage Delivery Service 1259 9/13/2000 36.00
-----------
Advantage Delivery Service 36.00
-----------
Advanta Leasing Services 8397366 9/16/2000 759.40
-----------
Advanta Leasing Services 759.40
-----------
American Exhibition Svcs., LLC 26493 8/1/2000 500.00
American Exhibition Svcs., LLC 26883 8/15/2000 800.00
-----------
American Exhibition Svcs., LLC 1,300.00
-----------
Karen Angelini 092900-1 9/29/2000 810.45
-----------
Karen Angelini 810.45
-----------
Karen Angelini 14 9/1/2000 20,000.00
-----------
Karen Angelini 20,000.00
-----------
AT&T Wireless Services 090700-1 9/7/2000 117.87
-----------
AT&T Wireless Services 117.87
-----------
Back Bay Bagels Company 22 9/29/2000 167.50
-----------
Back Bay Bagels Company 167.50
-----------
Hugh M. Beckett Trustee 2000/10 10/1/2000 -5,633.62
-----------
Hugh M. Beckett Trustee -5,633.62
-----------
BostonGas 081700-1 8/17/2000 -10.19
BostonGas 091800-1 9/18/2000 77.13
-----------
BostonGas 66.94
-----------
Cablevision 090900-1 9/9/2000 54.10
-----------
Cablevision 54.10
-----------
Sandra Chamberlain 50034 9/17/2000 2,300.00
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
-----------
Sandra Chamberlain 2,300.00
-----------
Chrysler Financial 7000042329 9/15/00 9/15/2000 345.99
-----------
Chrysler Financial 345.99
-----------
Corporate Furniture Concepts 1016M 7/31/2000 350.00
Corporate Furniture Concepts 1021 9/18/2000 300.00
-----------
Corporate Furniture Concepts 650.00
-----------
Davco Air-Conditioning 4941-4945 9/1/2000 339.93
-----------
Davco Air-Conditioning 339.93
-----------
DoubleClick, Inc. 2034283 7/13/2000 963.91
-----------
DoubleClick, Inc. 963.91
-----------
El Camino Resources, Ltd. 154818 9/1/2000 1,250.77
----------
El Camino Resources, Ltd. 1,250.77
-----------
Helen Feddema 1191 9/6/2000 500.00
Helen Feddema 1194 9/10/2000 250.00
Helen Feddema 1196 9/16/2000 125.00
Helen Feddema 1196A 9/16/2000 125.00
-----------
Helen Feddema 1,000.00
-----------
Fleet Business Services 092800-1 9/28/2000 15,390.74
-----------
Fleet Business Services 15,390.74
-----------
Foley, Hoag & Eliot 203602 7/18/2000 6,767.43
Foley, Hoag & Eliot 205345 8/15/2000 10,591.33
Foley, Hoag & Eliot 207438 9/18/2000 12,804.78
Foley, Hoag & Eliot 209813 8,876.31 $8645 for acquisition
Foley, Hoag & Eliot acquisition costs closing 50,000.00
-----------
Foley, Hoag & Eliot 89,039.85
-----------
Foley Food & Vending Co. 11565 9/27/2000 1,545.30
-----------
Foley Food & Vending Co. 1,545.30
-----------
Brian Frankenfield 203 9/1/2000 693.00
-----------
Brian Frankenfield 693.00
-----------
Lonnie Furnish 092200-1 9/22/2000 500.00
-----------
Lonnie Furnish 500.00
-----------
Michael L. Gershon 091100-1 9/11/2000 662.56
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
Michael L. Gershon 092700-1 9/27/2000 1,408.31
Michael L. Gershon 092700-2 9/27/2000 129.27
-------------
Michael L. Gershon 2,200.14
-------------
G. Fishman & Associates 151-6-9 7/1/2000 2,742.00
G. Fishman & Associates 151-6-10 8/1/2000 21,980.00
-------------
G. Fishman & Associates 24,722.00
-------------
Susan Harkins RT-821-1 8/21/2000 250.00
Susan Harkins RT-821-2 8/21/2000 325.00
Susan Harkins RT-911-1 9/11/2000 325.00
Susan Harkins RT-912-1 9/12/2000 325.00
Susan Harkins RT-916-1 9/16/2000 325.00
Susan Harkins RT-923-1 9/23/2000 325.00
-------------
Susan Harkins 1,875.00
-------------
Harris Media Services 091900-1 9/19/2000 2,250.00
-------------
Harris Media Services 2,250.00
-------------
International Data Corporation PO 1003 6/1/2000 12,550.00
International Data Corporation PO 1004 6/1/2000 12,500.00
-------------
International Data Corporation 25,050.00
-------------
JDA Advertising 3337 3/8/2000 11,428.91
-------------
JDA Advertising 11,428.91
-------------
Leonid Kuznetsov 091500-1 9/15/2000 5,760.00
Leonid Kuznetsov 092200-1 9/22/2000 3,600.00
Leonid Kuznetsov 100500 9/29/2000 3,600.00
-------------
Leonid Kuznetsov 12,960.00
-------------
William B. MacGregor 092200-1 9/22/2000 131.76
William B. MacGregor 092900-1 9/29/2000 887.07
-------------
William B. MacGregor 1,018.83
-------------
Brian McAdams 090100 9/1/2000 171.53
Brian McAdams 092900-1 9/1/2000 1,695.05
-------------
Brian McAdams 1,866.58
-------------
MCI Worldcomm 092800 9/28/2000 1,183.19
-------------
MCI Worldcomm 1,183.19
-------------
NaviSite 3214 9/5/2000 19,147.00
-------------
NaviSite 19,147.00
-------------
Jason Nicols 093000-1 9/30/2000 750.00
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
-----------
Jason Nicols 750.00
-----------
Town of Norwood 092100-1 9/21/2000 39.41
-----------
Town of Norwood 39.41
-----------
Paul Critikos 092200-1 9/22/2000 63.00
-----------
Paul Critikos 63.00
-----------
Carol Blanchard - Petty Cash 092900-1 9/29/2000 291.70
-----------
Carol Blanchard - Petty Cash 291.70
-----------
R. L. French Consulting 090100 9/1/2000 300.00
R. L. French Consulting 091200-1 9/12/2000 500.00
R. L. French Consulting 01 9/12/2000 300.00
R. L. French Consulting 092000-1 9/20/2000 500.00
-----------
R. L. French Consulting 1,600.00
-----------
Schwartz Communications, Inc. settlement 76,000.00
-----------
Schwartz Communications, Inc. 76,000.00
-----------
Sign*A*Rama 3478 9/14/2000 129.23
-----------
Sign*A*Rama 129.23
-----------
Spin Media Network, Inc. 090700-1 9/7/2000 196.00
-----------
Spin Media Network, Inc. 196.00
-----------
The Surrey Group 50676 9/21/2000 341.61
-----------
The Surrey Group 341.61
-----------
UUNET Technologies, Inc. 3771800 8/1/2000 -1.60
UUNET Technologies, Inc. 3982062 9/1/2000 4,919.35
-----------
UUNET Technologies, Inc. 4,917.75
-----------
Verizon 255-9530 9/28/00 9/28/2000 589.80
-----------
Verizon 589.80
-----------
Verizon 091000-1 9/10/2000 89.33
-----------
Verizon 89.33
-----------
Verizon 092500 9/25/2000 49.59
-----------
Verizon 49.59
-----------
Vignette Corporation 070100-3 7/1/2000 11,520.00
</TABLE>
<PAGE>
Vignette Corporation 5001636 7/21/2000 1,944.00
-----------
Vignette Corporation 13,464.00
-----------
Alice Whalen 0020831 8/31/2000 750.00
-----------
Alice Whalen 750.00
-----------
Deborah White 08 9/11/2000 900.00
Deborah White 09 9/12/2000 250.00
Deborah White 10 9/25/2000 187.50
-----------
Deborah White 1,337.50
-----------
Worcester Insurance Company 091800-1 9/18/2000 454.60
Worcester Insurance Company 091800-1A 9/18/2000 1,895.80
-----------
Worcester Insurance Company 2,350.40
-----------
Worldwide Express 219436 9/20/2000 46.39
Worldwide Express 229891 9/27/2000 326.03
-----------
Worldwide Express 372.42
-----------
Janet Wright 125-00 9/1/2000 750.00
-----------
Janet Wright 750.00
-----------
===========
340,252.85
================================================================================
<PAGE>
-------------------------------------------------------------------
MHD
Accounts Payable & Accrued Expenses
9/30/00
-------------------------------------------------------------------
-------------------------------------------------------------------
Accounts Payable 340,252
-------------------------------------------------------------------
-------------------------------------------------------------------
Accrued Expenses
-------------------------------------------------------------------
Vacation Accrual 43,125
-------------------------------------------------------------------
Navisite 20,723
-------------------------------------------------------------------
Foley
-------------------------------------------------------------------
Mass. Corp. Taxes 456
-------------------------------------------------------------------
Microsoft Audit 25,000
-------------------------------------------------------------------
General Accrual (see detail)** 9,300
-------------------------------------------------------------------
-------------------------------------------------------------------
Total Accrued: 98,604
-------------------------------------------------------------------
-------------------------------------------------------------------
Total Liabilities: 438,856
-------------------------------------------------------------------
-----------------------------------------------------
** Detail of General Accrual
-----------------------------------------------------
Randstad 400
-----------------------------------------------------
UUNet 2,288
-----------------------------------------------------
Deborah White 325
-----------------------------------------------------
Hugh Beckett 339
-----------------------------------------------------
Karen Angelini 1,331
-----------------------------------------------------
Michael Gershon 460
-----------------------------------------------------
Databack Systems 109
-----------------------------------------------------
Howard Marson 130
-----------------------------------------------------
Worldwide Express 768
-----------------------------------------------------
Town of Norwood 1,250
-----------------------------------------------------
Google Inc. 1,500
-----------------------------------------------------
AT&T Wireless 400
-----------------------------------------------------
-----------------------------------------------------
Total General Accrual: 9,300
-----------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
Schedule 2.1
MyHelpdesk.com Capitalization
Total Fully Dilluted
Employee Name Shares Warrants Shares Price Investment
Common Stock
<S> <C> <C> <C> <C> <C> <C>
Carrie Simmons 4,285 4,285 $0.15
Eric Bulock 400,000 400,000 $0.01
Kent Summers 400,000 400,000 $0.01
Paul Barron 400,000 400,000 $0.01
Total Common Stock 1,204,285 1,204,285
Stock Options - Employees
Any Wang 5,000 5,000 $0.37
Ari Karp 5,000 5,000 $0.15
Barry MacGregor 10,000 10,000 $0.37
Brian McAdams 397,516 397,516 $0.37
Carol Blanchard 5,000 5,000 $0.15
Chris Carr 3,000 3,000 $0.15
Donovan White 8,571 8,571 $0.15
Donovan White 1,429 1,429 $0.37
Jane Broderick 3,429 3,429 $0.37
Jay Kelley 20,571 20,571 $0.15
Kendall Tessmer 1,715 1,715 $0.37
Kendall Tessmer 1,714 1,714 $0.15
Kendall Tessmer 1,571 1,571 $0.37
Maria Jomides 3,429 3,429 $0.15
Maria Tavares 3,000 3,000 $0.15
Michael Gaitsgory 5,000 5,000 $0.15
Michael Zwarg 3,429 3,429 $0.15
Michael Zwarg 1,571 1,571 $0.37
Mike Blake 3,429 3,429 $0.15
Mike Blake 1,571 1,571 $0.37
Michael Gershon 150,000 150,000 $0.37
Nathan Buczek 3,429 3,429 $0.15
Paul Woodcock 1,000 1,000 $0.15
Robin A. Ambler 3,429 3,429 $0.37
Susannne Carter 8,571 8,571 $0.15
Susannne Carter 7,000 7,000 $0.37
Yelena Shmelev 5,000 5,000 $0.37
Zoreda Lutchman 1,000 1,000 $0.37
<CAPTION>
MyHelpdesk.com Capitalization
Bridge
Employee Name Pre-A Series A Warrants Series B
Common Stock
<S> <C> <C> <C> <C> <C>
Carrie Simmons 0.22% 0.13% 0.10%
Eric Bulock 20.22% 12.32% 9.23%
Kent Summers 20.22% 12.32% 9.23%
Paul Barron 20.22% 12.32% 9.23%
Total Common Stock 60.88% 37.09% 27.79%
Stock Options - Employees
Any Wang 0.25% 0.15% 0.12%
Ari Karp 0.25% 0.15% 0.12%
Barry MacGregor 0.51% 0.31% 0.23%
Brian McAdams 20.09% 12.24% 9.17%
Carol Blanchard 0.25% 0.15% 0.12%
Chris Carr 0.15% 0.09% 0.07%
Donovan White 0.43% 0.26% 0.20%
Donovan White 0.07% 0.04% 0.03%
Jane Broderick 0.17% 0.11% 0.08%
Jay Kelley 1.04% 0.63% 0.47%
Kendall Tessmer 0.09% 0.05% 0.04%
Kendall Tessmer 0.09% 0.05% 0.04%
Kendall Tessmer 0.08% 0.05% 0.04%
Maria Jomides 0.17% 0.11% 0.08%
Maria Tavares 0.15% 0.09% 0.07%
Michael Gaitsgory 0.25% 0.15% 0.12%
Michael Zwarg 0.17% 0.11% 0.08%
Michael Zwarg 0.08% 0.05% 0.04%
Mike Blake 0.17% 0.11% 0.08%
Mike Blake 0.08% 0.05% 0.04%
Michael Gershon 7.58% 4.62% 3.46%
Nathan Buczek 0.17% 0.11% 0.08%
Paul Woodcock 0.05% 0.03% 0.02%
Robin A. Ambler 0.17% 0.11% 0.08%
Susannne Carter 0.43% 0.26% 0.20%
Susannne Carter 0.35% 0.22% 0.16%
Yelena Shmelev 0.25% 0.15% 0.12%
Zoreda Lutchman 0.05% 0.03% 0.02%
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
MyHelpdesk.com Capitalization
Total Fully Dilluted
Employee Name Shares Warrants Shares Price
<S> <C> <C> <C> <C> <C>
Stock Options - Board/Advisors
Andries Van Dam 10,000 10,000 $0.15
Eric Enge 7,000 7,000 $0.15
Eric Enge 2,800 2,800 $0.37
Glenn House 88,766 88,766 $0.37
0
Total Options 773,940 773,940
Total Options and Common Stock 1,978,225 1,978,225
Series A
Sparkventures 497,143 497,143 $1.46
General Investment & Dev't 497,143 497,143 $1.46
RKB Capital, LP 154,286 154,286 $1.46
Corning Capital 34,286 34,286 $1.46
Naren and Vinita Gupta Living Trust dated 12/2/94 68,571 68,571 $1.46
Dave Mahoney 17,143 17,143 $1.46
Total Seed 1,268,572 1,268,572 $1.46
Fully dilluted shares (post Series A) 3,246,797 3,246,797
Bridge
Sparkventures 79,438 15,888 95,326 $3.70
General Investment & Dev't 79,438 15,888 95,326 $3.70
RKB Capital, LP 24,653 4,931 29,584 $3.70
Corning Capital 5,478 1,096 6,574 $3.70
Naren and Vinita Gupta Living Trust dated 12/2/94 10,957 2,191 13,148 $3.70
Dave Mahoney 2,739 548 3,287 $3.70
<CAPTION>
Bridge
Employee Name Investment Pre-A Series A Warrants Series B
Common Stock
<S> <C> <C> <C> <C> <C> <C> <C>
Stock Options - Board/Advisors
Andries Van Dam 0.51% 0.31% 0.23%
Eric Enge 0.35% 0.22% 0.16%
Eric Enge 0.14% 0.09% 0.06%
Glenn House 4.49% 2.73% 2.05%
0.00% 0.00% 0.00%
Total Options 39.12% 23.84% 17.86%
Total Options and Common Stock 100.00% 60.93% 45.64%
Series A
Sparkventures $ 725,000 16.67% 11.47%
General Investment & Dev't $ 725,000 16.67% 11.47%
RKB Capital, LP $ 225,000 5.17% 3.56%
Corning Capital $ 50,000 1.15% 0.79%
Naren and Vinita Gupta Living Trust dated 12/2/94 $ 100,000 2.30% 1.58%
Dave Mahoney $ 25,000 0.57% 0.40%
Total Seed $1,850,000 42.53% 29.27%
Fully dilluted shares (post Series A) 103.46% 74.91%
Bridge
Sparkventures $ 293,919 0.37% 2.20%
General Investment & Dev't $ 293,919 0.37% 2.20%
RKB Capital, LP $ 91,216 0.11% 0.68%
Corning Capital $ 20,270 0.03% 0.15%
Naren and Vinita Gupta Living Trust dated 12/2/94 $ 40,541 0.05% 0.30%
Dave Mahoney $ 10,135 0.01% 0.08%
</TABLE>
<PAGE>
MyHelpdesk.com Capitalization
-----------------------------
<TABLE>
<CAPTION>
Total Fully Dilluted Bridge
Employee Name Shares Warrants Shares Price Investment Pre-A Series A Warrants Series B
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Series B
Sparkventures 75,701 75,701 $3.70 $ 280,092 0.00% 1.75%
General Investment & Dev't 44,436 44,436 $3.70 $ 164,414 0.00% 1.03%
RKB Capital, LP 211,899 211,899 $3.70 $ 784,025 0.00% 4.89%
Corning Capital 35,062 35,062 $3.70 $ 129,730 0.00% 0.81%
Naren and Vinita Gupta Living 70,124 70,124 $3.70 $ 259,459 0.00% 1.62%
Trust dated 12/2/94
Dave Mahoney 1,532 1,532 $3.70 $ 5,670 0.00% 0.04%
Gary Clow 135,135 135,135 $3.70 $ 500,000 0.00% 3.12%
Dan Rubin 54,054 54,054 $3.70 $ 200,000 0.00% 1.25%
Bayview Partners (Randy Mason) 40,541 40,541 $3.70 $ 150,000 0.00% 0.94%
Randy Mason 13,514 13,514 $3.70 $ 50,000 0.00% 0.31%
Kevin Schreck 13,514 13,514 $3.70 $ 50,000 0.00% 0.31%
John Miller 27,027 27,027 $3.70 $ 100,000 0.00% 0.62%
Doug Swanson 5,405 5,405 $3.70 $ 20,000 0.00% 0.12%
Mike Ogborne 27,027 27,027 $3.70 $ 100,000 0.00% 0.62%
Andy Sessions 13,514 13,514 $3.70 $ 50,000 0.00% 0.31%
Andy Axel 6,757 6,757 $3.70 $ 25,000 0.00% 0.16%
Leonard Karp 6,757 6,757 $3.70 $ 25,000 0.00% 0.16%
Chris Walker 27,027 27,027 $3.70 $ 100,000 0.00% 0.62%
Thomas Weisel Partners (Alan Memkes) 13,514 13,514 $3.70 $ 50,000 0.00% 0.31%
Sandy Gadsby 5,405 5,405 $3.70 $ 20,000 0.00% 0.12%
John J. Cullinane 3,378 3,378 $3.70 $ 12,500 0.00% 0.08%
Robert Hower 3,378 3,378 $3.70 $ 12,500 0.00% 0.08%
Benjamin S. Minsk 9,459 9,459 $3.70 $ 35,000 0.00% 0.22%
Total 1,046,863 40,542 1,087,405 $3.70 $3,873,390 0.94% 25.09%
Fully dilluted shares 4,293,660 40,542 4,334,202 100.00%
Investor Ownership
Sparkventures 668,170 $1.94 $1,299,011 15.42%
General Investment & Dev't 636,905 $1.86 $1,183,333 14.69%
RKB Capital, LP 395,769 $2.78 $1,100,241 9.13%
</TABLE>
<PAGE>
Schedule 2.5
Contract Consents
-----------------
<TABLE>
<CAPTION>
A1 B C D E F G H I J K
Standard Custom Service
2 Consents Required Detail NECESSARY REMOVE Co-Br Co-Bra Provider Reseller Development
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
3 1 AllBusiness.com Canceled R 1
4 2 CMP Media, Inc. R 1
5 3 CommonPlaces Canceled R 1
6 4 Computer.com R 1
7 5 COMPUTER4LESS.com R 1
8 6 Concentric Network Corp. R 1
9 7 CPAX Out-of-Business R 1
10 8 Deja.com, Inc. Terminated R 1
11 9 eCode.com R 1
12 10 Excite (At Home Corporation) Expiration R 1
date
12/31/99
13 11 Fatbrain.com Canceled R 1
14 12 Freei Networks R 1
15 13 Help Desk 2000 R 1
16 14 Help Desk Institute R 1
17 15 IntelleSale.com Canceled R 1
18 16 I-village Expiration R 1
date
11/03/00
19 17 LM Ericsson R 1
20 18 Onyx Software R 1
21 19 Spinway.com Sent R 1
termination
notice 11.6.00
22 20 Tioga Systems (support.com) R 1
23 21 U-Geek R 1
24 22 Webforia Canceled R 1
25
26 1 Acer America Corp. R 1
27 2 CompUSA R 1
28 3 everdream.com R 1
29 4 Lycos R 1
30 5 Spire R 1
31 6 Upgradebase.com R 1
32
33 1 Connected Corporation R 1
34 2 Delphia Internet Services Terminated R 1
35 3 KnowledgeBroker Terminated R 1
36 4 McAfee Corporation Signed 1
37 5 Motive Communications, Inc. R 1
38 6 Sutherland Group (The) R 1
39
40 1 Control-F1 1 1
41 2 Freeup 1 1
<CAPTION>
A1 B C L M N O
Office Alliance
2 Consents Required Infrastruc E-Retailer Agree signed
<S> <C> <C> <C> <C> <C> <C>
3 1 AllBusiness.com C
4 2 CMP Media, Inc. Signed
5 3 CommonPlaces C
6 4 Computer.com Signed
7 5 COMPUTER4LESS.com
8 6 Concentric Network Corp.
9 7 CPAX T
10 8 Deja.com, Inc. T
11 9 eCode.com Signed
12 10 Excite (At Home Corporation) EXP
13 11 Fatbrain.com C
14 12 Freei Networks
15 13 Help Desk 2000
16 14 Help Desk Institute Signed
17 15 IntelleSale.com C
18 16 I-village Exp
19 17 LM Ericsson Signed
20 18 Onyx Software Signed
21 19 Spinway.com T
22 20 Tioga Systems (support.com)
23 21 U-Geek Signed
24 22 Webforia C
25
26 1 Acer America Corp.
27 2 CompUSA Signed
28 3 everdream.com
29 4 Lycos
30 5 Spire
31 6 Upgradebase.com
32
33 1 Connected Corporation
34 2 Delphia Internet Services T
35 3 KnowledgeBroker T
36 4 McAfee Corporation Signed
37 5 Motive Communications, Inc.
38 6 Sutherland Group (The)
39
40 1 Control-F1 Signed
41 2 Freeup Signed
</TABLE>
<PAGE>
Schedule 2.5
Contract Consents
-----------------
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
A 1 B C D E F G H I
----------------------------------------------------------------------------------------------------------------------------------
2 Consents Required Detail NECESSARY REMOVE Standard Co-Br Custom Co-Bra Service Provide
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
42 3 HPC Tech 1 1
----------------------------------------------------------------------------------------------------------------------------------
43 4 Sitel R 1
----------------------------------------------------------------------------------------------------------------------------------
44 5 Sterling Information Technologies 1 1
----------------------------------------------------------------------------------------------------------------------------------
45
----------------------------------------------------------------------------------------------------------------------------------
Completed
46 1 Event Zero (formerly Inscribe) Work R
----------------------------------------------------------------------------------------------------------------------------------
47 2 Verity 1
----------------------------------------------------------------------------------------------------------------------------------
48 3 Vignette R
----------------------------------------------------------------------------------------------------------------------------------
49
----------------------------------------------------------------------------------------------------------------------------------
50 1 Advanta (equipment lease) 1
----------------------------------------------------------------------------------------------------------------------------------
51 2 Beckett, Hugh (office lease) Signed 1
----------------------------------------------------------------------------------------------------------------------------------
In Brian
McAdams'
52 3 Chrysler Financial (car) name 0 R
----------------------------------------------------------------------------------------------------------------------------------
53 4 El Camino / Pacific Atlantic 1
----------------------------------------------------------------------------------------------------------------------------------
54 5 IDC 0 R
----------------------------------------------------------------------------------------------------------------------------------
55 6 NaviSite (connectivity) R
----------------------------------------------------------------------------------------------------------------------------------
56 7 UUNET ISP agreement 1
----------------------------------------------------------------------------------------------------------------------------------
57
----------------------------------------------------------------------------------------------------------------------------------
58 1 NECX Direct R
----------------------------------------------------------------------------------------------------------------------------------
59 2 Software BuyLine R
----------------------------------------------------------------------------------------------------------------------------------
60
----------------------------------------------------------------------------------------------------------------------------------
61 1 Support.com R
----------------------------------------------------------------------------------------------------------------------------------
9
----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
A 1 B C J K L M N O
----------------------------------------------------------------------------------------------------------------------------------
2 Consents Required Reseller Development Office Infrastruc E-Retailer Alliance Agree signed
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
42 3 HPC Tech 1 Signed
----------------------------------------------------------------------------------------------------------------------------------
43 4 Sitel 1 Terminated
----------------------------------------------------------------------------------------------------------------------------------
44 5 Sterling Information Technologies 1 Signed
----------------------------------------------------------------------------------------------------------------------------------
45
----------------------------------------------------------------------------------------------------------------------------------
Completed
46 1 Event Zero (formerly Inscribe) 1 Work
----------------------------------------------------------------------------------------------------------------------------------
47 2 Verity 1 Signed
----------------------------------------------------------------------------------------------------------------------------------
48 3 Vignette
----------------------------------------------------------------------------------------------------------------------------------
49
----------------------------------------------------------------------------------------------------------------------------------
50 1 Advanta (equipment lease) 1 Signed
----------------------------------------------------------------------------------------------------------------------------------
51 2 Beckett, Hugh (office lease) 1 Signed
----------------------------------------------------------------------------------------------------------------------------------
52 3 Chrysler Financial (car) 1 Brian's List
----------------------------------------------------------------------------------------------------------------------------------
53 4 El Camino / Pacific Atlantic 1 Signed
----------------------------------------------------------------------------------------------------------------------------------
54 5 IDC 1 see comment
----------------------------------------------------------------------------------------------------------------------------------
55 6 NaviSite (connectivity) 1 see comment
----------------------------------------------------------------------------------------------------------------------------------
56 7 UUNET ISP agreement 1 Signed
----------------------------------------------------------------------------------------------------------------------------------
57
----------------------------------------------------------------------------------------------------------------------------------
58 1 NECX Direct 1
----------------------------------------------------------------------------------------------------------------------------------
59 2 Software BuyLine 1
----------------------------------------------------------------------------------------------------------------------------------
60
----------------------------------------------------------------------------------------------------------------------------------
61 1 Support.com 1
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
A designation of "R" in the fifth column indicates that PCsupport.com waives the requirement for a consent to be obtained.
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Schedule 2.12
MyHelpdesk, Inc.
Vendor Master File List
<TABLE>
<CAPTION>
===================================================================================================================================
Vendor ID Vendor Contact Telephone 1 Tax Id No
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ABLE Able Copier Services Charles Kring
ACE Ace Locksmith
ACEOFFICE Ace Office Furniture
ACER Acer
ADAK Rita Adak
ADJ GROUP ADJ Group Inc. 769-9856
ADVANTAGEDELIVERY Advantage Delivery Service 781-878-2111
ADVANTALEASING Advanta Leasing Services
AEGIS Aegis Associates, Inc. 617-923-2500
AIRBORNE Airborne Express
AMBLER Robin Ambler
AMERICANEXHIBITIONSE American Exhibition Svcs., LLC
ANGELINI Karen Angelini 781-334-7241
ANGELINI 1099 Karen Angelini 781-334-7241 ###-##-####
APENTONMEDIA A Penton Media Company 203-559-2800 36-2875386
AT&TWIRELESS AT&T Wireless Services 1-800-888-7600
ATHENSOFAMERICA Simela Jomides 617-469-2689
ATLANTIS Atlantis Partners 617-267-7300
BACK BAY BAGEL Back Bay Bagels Company 781-255-0050
BARRON Paul Barron
BARRON,R Ron Barron
BCBS Blue Cross Blue Shield of Mass 617-832-5841
BECKETT Hugh M. Beckett Trustee
BELL Bell Atlantic
BELL / MCADAMS Bell Atlantic 1-800-870-9999
BELMONT Belmont Springs Water Co., Inc
BIZVESTORS BizVestors Invest Partnes, Inc Doug Bonestroo 1-800-320-2771
BLAKE Michael Blake
BLANCHARD Carol Blanchard
BORDEN Susan Borden 617-923-0912
BOSTON Community Newsdealers, Inc.
BOSTONGAS BostonGas
BOSTONUNIVERSITY Boston University Martha Brill 617-353-3590
BSG Boston Search Group, Inc. 617-266-4333
BUCZEK Nathan Buczek 781-255-9530 X120
BULOCK Eric Bulock 401-861-5919 - home
CABLEVISION Cablevision
CALLAHAN Michael Callahan
CARTERSUSANNE Susanne Schmermbeck 617-559-0432 - home
CAULFIELD Mary Caulfield
CELLULAR ONE Cellularone, Boston
CENTRALCPJ Central CPJ
CHAMBERLAIN Sandra Chamberlain 502-231-8009 ###-##-####
CHAMBERLAINBRYAN Bryan Chamberland ###-##-####
CHRYSLERFINANCIAL Chrysler Financial Pay Process Center 1-800-777-4317
CICA Combined Insurance Co. of Am. Cashiers Department
CITIBANK Citibank AADVANTAGE
CLEARLY Clearly Internet
COMMERCEINSURANCE Commerce Insurance Company 508-943-9000
COMMISSIONJUNCTION Commission Junction Attn: A/R
COMMSPEOPLE Comms People, Inc. 781-224-1212
COMMUNITY Community Newspaper Company
COMMUNITYBOSTONGLOBE Community Newsdealers Inc. Finance department 781-466-1800
CONCENTRIC Concentric
CONNECTED Connected Corporation 508-270-0000
CORMIER Pete Cormier
CORPFURNITURE Corporate Furniture Concepts 781-235-4581
COTTER Michael Cotter
CREATIVE Creative Group
CREATIVESOLUTIONS Creative Solutions 617-527-4007
CRITIKOS Paul Critikos 781-335-1570
CRM CRM&Support Svcs.Conference
CTLOCALCHAPTER CT Local Chapter HDI Attn: S. Kirkpatrick 860-403-2006
DATABACKSYSTEMS Databack Systems Dryan Lunz
DAVCO Davco Air-Conditioning 781-769-2303
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Schedule 2.12
MyHelpdesk, Inc.
Vendor Master File List
----------------------------------------------------------------------------------------------------------------------------------
Vendor ID Vendor Contact Telephone 1 Tax Id No
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
DCI DCI 978-470-3870 X516
DCIEXHIBITORSVCSDESK DCI/Exhibitor Svcs. Desk 805-654-0171
DELL Dell Marketing L.P. Dept. 0680
DELPHI Delphi Forums
DHL DHL Worldwide Express
DOUBLE DoubleClick, Inc.
DRUCKER David Drucker 617-876-1505
DUFOSSE Richard DuFosse
E-MIT E-MIT Michael Falcon
ECODE Ecode
ELCAMINO El Camino Resources, Ltd. 818-226-6600
ELIASELECTRIC T. ELias Electric 508-698-0283
ESUPPORT2000 eSupport 2000 Registration
ETELESALES e-Telesales
EXCITE At Home Network
EXHIBIT The Exhibit Source, Inc.
FEDDEMAHELEN Helen Feddema
FEDERALEXPRESS Federal Express
FIELDS Alison Fields
FLEET BANK Fleet Business Services
FOLEY Foley, Hoag & Eliot
FOLEYFOOD Foley Food & Vending Co. 781-551-0711
FRANKENFIELD Brian Frankenfield 617-970-9526
FREEI Freei Networks, Inc.
FREEMANDECORATING Freeman Decorating 781-380-7550
FROM HEDY FROM
FRUEI James Fruei
FURNISH Lonnie Furnish
GAITSGORY Michael Gaitsgory
GALLAGHER Bill Gallagher 781-828-2904
GERSHON Michael L. Gershon 503-638-7741
GFISHMAN G. Fishman & Associates
GOOGGLE Google, Inc. 650-316--0200 X1121
GOOGLE Google, Inc. 650-318-0200
GREGORY&COONEY Gregory & Cooney, Inc.
HALO HALO
HARKINS Susan Harkins 502-633-0823 ###-##-####
HARRIS Alison Harris
HARRISMEDIASERVICES Harris Media Services 207-829-4500
HARVARD NET Harvard Net
HOUSE Glenn House
IDC International Data Corporation
IMAGEABILITY Imageability, Inc.
IMARKET I-Market 800-532-3775
INFOTECH InfoTech Contract Services 781-890-7007
INSCRIBE Inscribe Technologies
INTEGRATED Integrated Communication Svcs.
INTERNET Internet.com
INTHENEWS In The News 813-882-8886
INTRAWARE Intraware, Inc. Accounts Receivable 925-253-4561
JACOBS J. C. Jacobs Plumbing Co., Inc 781-762-8381
JDA JDA Advertising
JOMIDES Simela Jomides
KARP Ari Karp 617-323-7365 - home
KELLEY John J. Kelley 781-341-4174
KUZNETSOV Leonid Kuznetsov ###-##-####
KWOODCOCK Kevin Woodcock PC Consultant
LANDRY Mark Landry
LIU Chong Liu
LOVEJOY Paula Lovejoy 617-876-0884 ###-##-####
LUKASZEVICZ Michael Lukaszevicz
LUTCHMAN Zoreda Lutchman 508-584-4168
LUTTENBERGER Matthew J. Luttenberger 781-788-0572 - home ###-##-####
LYNCH Gerard Lynch ###-##-####
LYNOTT Greg Lynott 303-651-2204 - home
</TABLE>
<PAGE>
Schedule 2.12
MyHelpdesk, Inc.
Vendor Master File List
<TABLE>
<CAPTION>
===============================================================================================================
Vendor ID Vendor Contact Telephone 1 Tax Id No
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
MACGREGOR William B. MacGregor 781-893-1844
MALZONE Paula J. Malzone
MARINELLO Mark Marinello 401-272-3725 ###-##-####
MARSON Howard Marson 781-449-2656
MASS Commonwealth of Massachusetts Department of Revenu
MCADAMS Brian McAdams
MCCAHYNESCONVENTIONC MCCA / Hynes Convention Center 617-954-2230
MCCOURT Scott Mccourt Scott McCourt 617-654-6882 ###-##-####
MCI MCI Worldcomm
MCI KENT MCI Worldcom Res. Service
MEDIAEVENT Media Event Concepts, Inc. 512-832-1142
MICROSOFT Microsoft Corporation
MICROWAREHOUSE MicroWarehouse
MINDSPRING MindSpring Enterprises, Inc.
MONSTER Monster.com
NATIONAL National Telecom Systems 781-769-5000
NAVISITE NaviSite
NEC National Electric Contracting
NETDAEMONS Net Daemons Associates
NETWORK Network Solutions, Inc.
NICOLSJASON Jason Nicols
NORTH STAR VENTURES North Star Ventures, Inc.
NORTHEASTCOURIER North East Courier, Inc. 781-769-9160
NORWOOD Town of Norwood 781-762-3203
NORWOOD - BRIAN Town of Norwood
NORWOOD TAXES Town of Norwood 781-762-3203
NPC NPC Computer Corporation 781-449-7897
NUZUM Chris Nuzum 401-286-9099 ###-##-####
NYTIMES New York Times
ODYSSEY Odyssey Printing Inc.
OFFICESPECIALISTS Office Specialists
OREGON Oregon Department of Revenue 503-378-4988
PACIFIC Pacific Atlantic Leasing
PAINE Paine Webber
PASTERNACK Ira Pasternack
PAYCHEX Paychex, Inc.
PAYMENTECH Paymentech 603-896-6000
PBB Peace Bridge Brokerage Limited
PCCONSULTING Paul Critikos 781-335-1570
PENTON Penton Media Inc.
PERKINSON Richard Perkinson 781-383-2788
PERKS Perks Coffee House
PETTY CASH Carol Blanchard - Petty Cash
POMEGRANATE Pomegranate
PORTER Paula P. Porter 508-881-6603
PORTERPAULA Paula Porter 508-881-6603
PRICEWATERHOUSE PriceWaterhouseCoopers LLP
PRINCIPAL Principal Life Insurance
PROFESSIONALSTAFFING Professional Staffing Group 617-250-1000
PROJECTIONPRESENTATI Projection PresentTechnology 301-459-6137
R & R R&R Productions
RANDALL R.D. Randall Associates
RANDSTAD Randstad 617-731-6070
RELIANCE Reliance Standard Life
RENTACRATE Rent A Crate 781-899-4477
RESOURCE Resource Waste Systems 72 Inc.
RICHARDSKATHERINE Katherine Richards 401-247-0461
RICOCHET, L. P. Ricochet, L. P. Robert Cooper 610-935-1795 23-3016731
RISING Rising Tide Studios
RKB CAPITAL RKB Capital, L.P. Pete Schleider 612-404-1471
RLFRENCHCONSULTING R. L. French Consulting Rian French 502-368-9511 ###-##-####
RSW Teradyne, Inc.
SCADUTO Alvaro F. Scaduto ###-##-####
SCHWARTZ Schwartz Communications, Inc.
SHAPIRO Susan M. Shapiro ###-##-####
</TABLE>
<PAGE>
Schedule 2.12
MyHelpdesk, Inc.
Vendor Master File List
<TABLE>
------------------------------------------------------------------------------------------------------------------------------------
Vendor ID Vendor Contact Telephone 1 Tax Id No
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
SHMELEV Yelena Shmelev 617-243-3971
SIGNARAMA Sign*A*Rama
SIMMONS Carrie Simmons
SIZOV Konstantin Sizov 617-558-1812
SMGS SM Global Solutions, Inc.
SPENCER Bruce Spencer 502-222-2416 ###-##-####
SPINMEDIA Spin Media Network, Inc. Darawan Morrison 650-292-1595
SPIRE CBW Spire - CBW
SPIRE SYSTEM X Spire-System X
STADIUMTHEATREFOUND Stadium Theatre Foundation 401-762-4545
STANLEY Joanne I. Stanley 401-727-4884
STC Stone Temple Consulting Eric Enge, President
SUMMERS Kent Summers 508-359-8994
SUMMERS GRANT Grant Summers
SUPPORT.COM Support.com Attn: Renee DeCarlo
SUPPORTINDUSTRY.COM Support Industry. com 805.565.7662
SURREYGROUP The Surrey Group 800-323-5831
SUTHERLANDGROUP The Sutherland Group 716-586-5757
SYNERGY Synergy Internet Marketing
TELIO Steven Telio 617-558-7790
TESSMER Kendall Tessmer
TESTA Testa, Hurwitz & Thibeault, LL 617-248-7000
TOWN OF NORWOOD Town of Norwood
TRELLIX Trellix Corporation
UNITED United Healthcare of NE, Inc.
USABILITY Usability
USREFRESH US Refresh Doug Spitalny 781-376-8347
UUNET UUNET Technologies, Inc. 1-877-709-8901
VERITY Verity, Inc.
VERIZON Verizon
VERIZON / MCADAMS Verizon 800-750-3553 - Paymt
VERIZON ACCESS Verizon
VERTEK Vertek Associates 301-564-4513
VESSELS Stuart Vessels 502-491-4760
VIGNETTE Vignette Corporation 512-306-4300
VILLAGE Village Pizza
VIRTUAL Virtual Media Tech.
VOID VOID
WALLSTREETJOURNAL Wall Street Journal Preference Service 1-800-975-1077
WANG Amy Wang 508-660-0464
WBMASON W. B. Mason Company, Inc. 1-800-242-5892
WEBTRENDS Web Trends Corporation 503-294-7025
WESTWOODLIMO Westwood Limo Service 1-800-339-6155
WHALEN Alice Whalen
WHITE Donovan White
WHITEDEBORAH Deborah White ###-##-####
WINDSORGARDENS Windsor Gardens
WINTER Winter, Wyman & Company, Inc.
WMAL WMAL
WOODCOCK Paul Woodcock 781-828-6521
WOODCOCK, KEVIN Kevin Woodcock 781-828-6521
WORCESTER Worcester Insurance Company
WORLDSOFT WorldSoft Inc.
WORLDWIDE Worldwide Express
WRIGHT Janet Wright ###-##-####
ZWARG Michael Zwarg 401-453-4656
duFOSSE Richard duFosse
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
PCSUPPORT.COM, INC.
SHARE CAPITALIZATION TABLE
Schedule 3.3 PCsupport.com Summary Share Capitalization Table
Shareholder Shares
basic diluted
Management 1,517,440 12.4% 8.6%
Seed Investors 1,404,715 11.5% 8.0%
Reverse Merger 3,333,014 27.3% 19.0%
Investors 5,661,493 46.3% 32.2%
Acquisitions
Tavisco 200,000 1.6% 1.1%
RDIC 100,000 0.8% 0.6%
Acquisitions 300,000 2.5% 1.7%
Issued and Outstanding 12,216,662 100.0% 69.5%
------------ -----
Options 2,150,869 12.2%
Total warrants 3,215,838 18.3%
------------
Fully Diluted 17,583,369 100.0%
--------- ------------ ------
<PAGE>
EXHIBIT A
---------
Management Shares
Name Number of Shares
---- ----------------
McAdams, Brian 45,108
117 Maple Avenue
Bala Cynwyd, PA 19004
SS#: ###-##-####
Malzone, Paula J. 18,432
168 Parkside Avenue
Braintree, MA 02184
SS#: ###-##-####
Barron, Paul 11,122
51 Lincoln Street
Norton, MA 02766
SS#: ###-##-####
Bulock, Eric 11,222
222 Medway Street
Providence, RI 02906
SS#: ###-##-####
Schmermbeck-Carter, Susanne 7,000
8 Beech Street
Newton, MA 02458
SS#: ###-##-####
Angelini, Karen M. 7,000
14 Orchard Lane
Lynnfield, MA 01940-1147
SS#: ###-##-####
Gershon, Michael L. 7,000
8320 Delenka Lane
Lake Oswego, OR 97034
SS#: ###-##-####
Blanchard, Carol 5,716
1485 Pawtucket Avenue
Rumford, RI 02916
SS#: ###-##-####
TOTAL 112,500
<PAGE>
EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT is dated as of November 27, 2000,
by and between PCSupport.com, Inc., a Nevada corporation (the "Buyer"), and
MyHelpDesk, Inc., a Delaware corporation (the "Seller").
WHEREAS, the Seller and the Buyer are parties to that certain Asset
Purchase Agreement dated as of even date herewith (the "Purchase Agreement");
and
WHEREAS, pursuant to the terms of the Purchase Agreement, the Seller has
agreed, among other things, to sell and assign to the Buyer certain contracts to
which Seller is a party, and which are listed on Schedule 1.1(a)(i) to the
Purchase Agreement (the "Assumed Contracts"); and
WHEREAS, Buyer has agreed to accept such sale and assignment and to assume
those Assumed Contracts set forth in Schedule 1.1(b)(i) to the Purchase
Agreement and those liabilities, obligations and commitments set forth on
Schedule 1.1(b)(i) to the Purchase Agreement, all of the loans made by Buyer to
Seller pursuant to Section 4.6 of the Purchase Agreement, together with any
additional liabilities, obligations and commitments incurred by Seller in the
ordinary course of business in compliance with the terms of the Purchase
Agreement subsequent to the date of Schedule 1.1(b)(i) specified therein
(collectively, the "Assumed Liabilities").
NOW, THEREFORE, in consideration of the mutual covenants and premises set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. The Seller hereby sells, assigns, transfers and sets over to the Buyer
the Assumed Contracts, and the Buyer hereby accepts the foregoing assignment and
hereby agrees to assume, perform, fulfill and observe all of the Seller's
obligations and liabilities under each of the Assumed Liabilities. Except as
specifically provided for herein, the Buyer does not assume, and shall have no
liability or responsibility with respect to any obligations of the Seller.
2. Each party agrees to execute and deliver all such further documents as
may reasonably be requested by the other and its counsel in order to effect the
assignment and assumption hereunder.
3. This Agreement shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and assigns.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Assignment and
Assumption Agreement as an instrument under seal as of the date first written
above.
MYHELPDESK, INC.
By: /s/ Brian McAdams
----------------------------
Brian McAdams, President
PCSUPPORT.COM, INC.
By: /s/ Mike McLean
----------------------------
Name: Mike McLean
Title: President
<PAGE>
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated November 27, 2000 (this
"Agreement"), is made by and between PCSupport.com, Inc., a Nevada corporation
(the "Company"), and MyHelpDesk, Inc., a Delaware corporation (the "Purchaser").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, pursuant to the terms of an Asset Purchase Agreement between the
Company and the Purchaser, dated as of November 27, 2000 (the "Asset Purchase
Agreement"), the Purchaser will be issued by the Company the Closing Shares, and
subject to the limitations set forth in the Asset Purchase Agreement, the Post-
Closing Shares, and certain individuals will be issued by the Company the
Management Shares (as those terms are defined in the Asset Purchase Agreement);
and
WHEREAS, the Company and the Purchaser deem it to be in their respective
best interests to set forth the rights of the Purchaser in connection with
public offerings and sales of the Restricted Shares;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereunder set forth, the Company and the Purchaser hereby agree as
follows:
1. Definitions.
-----------
As used in this Agreement, the following terms shall have the following
meanings:
(a) "Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
(b) "Common Stock" means the common stock, $.001 par value per share, of
the Company.
(c) "Exchange Act" means the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
(d) "Other Shares" means at any time those shares of Common Stock held by
any person (or issuable upon exercise or conversion of any security held by any
person) that do not constitute Primary Shares or Restricted Shares.
(e) "Primary Shares" means at any time the authorized but unissued shares
of Common Stock and shares of Common Stock held by the Company in its treasury.
(f) "Restricted Shares" means the Closing Shares, the Post-Closing Shares
that have not been forfeited and cancelled as of the relevant date hereunder
pursuant to the terms of the Asset Purchase Agreement, and the Management
Shares, and any shares issued in respect of any
1
<PAGE>
such shares in connection with any stock splits, stock dividends,
reclassifications, recapitalizations or any other similar event. Restricted
Shares include Closing Shares and Post-Closing Shares transferred or distributed
by the Purchaser to shareholders of the Purchaser. Restricted Shares shall cease
to be Restricted Shares for purposes of this Agreement when (i) they have been
registered under the Securities Act, the registration statement in connection
therewith has been declared effective and they have been disposed of pursuant to
such effective registration statement, or (ii) in the written opinion of counsel
to the Company, which counsel and opinion so rendered shall be reasonably
acceptable to the holder(s) of such Restricted Shares, the holder(s) of such
Restricted Shares may publicly sell such Restricted Shares pursuant to Rule 144
with no limitations as to time and volume.
(g) "Rule 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto, all as the same may be in effect from time to time.
(h) "Securities Act" means the Securities Act of 1933 or any successor
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect from time to time.
2. Registration.
------------
(a) The Company will prepare and file with the Commission a registration
statement (in a form of general applicability) covering the registration under
the Securities Act of all of the Restricted Shares not later than 270 days (the
"Filing Date") following the Closing (as defined in the Asset Purchase
Agreement); provided, however, that in the event that the Company's Common Stock
becomes listed on a major United States market (i.e., New York Stock Exchange,
American Stock Exchange or NASDAQ National Market System or NASDAQ Small Cap
Market) prior to the Filing Date, the Company will file such registration
statement as soon as practicable after such listing (but in any event not later
than the Filing Date), and thereafter the Company will use its commercially
reasonable best efforts to effect the registration of the Restricted Shares not
later than one year following the date of the Closing, or at the earliest
commercially practicable date following such listing, if sooner.
(b) If compliance with Section 2(a) has not resulted in an effective
registration statement within the time periods specified therein for such
effectiveness and the Company at any time within two years from the date of the
Closing proposes for any reason to register Primary Shares or Other Shares under
the Securities Act (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto), it shall promptly give written
notice to the representative for the holders of the Restricted Shares described
in Section 10 of its intention to register such Primary Shares or Other Shares
and, upon the written request delivered to the Company within 15 days after
delivery of any such notice by the Company, of the holder of Restricted Shares
(or the representative described in Section 10 on behalf of such holder) to
include in such registration the Restricted Shares (which request shall specify
the number of Restricted Shares proposed to be included in such registration),
the Company shall use its commercially reasonable best efforts to cause all such
Restricted Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration;
provided, however, that if the managing underwriter advises the Company that the
-------- -------
2
<PAGE>
inclusion of all Restricted Shares requested to be included in such registration
would interfere with the successful marketing (including pricing) of the Primary
Shares or Other Shares proposed to be registered by the Company, then the number
of Primary Shares, Restricted Shares and Other Shares proposed to be included in
such registration shall be included in the following order:
(i) if the Company proposes to register Primary Shares:
(A) first, the Primary Shares; and
-----
(B) second, the Restricted Shares and Other Shares requested to
------
be included in such registration (or, if necessary, pro rata among the holders
--- ----
thereof based upon the number of Restricted Shares and Other Shares requested to
be registered by each such holder).
(ii) if the Company proposes to register Other Shares pursuant to a
request for registration by the holders of such Other Shares:
(A) first, the Other Shares held by the parties demanding such
-----
registration;
(B) second, the Restricted Shares and Other Shares requested to
------
be registered by the holders thereof (or, if necessary, pro rata among the
--- ----
holders thereof based on the number of Restricted Shares and Other Shares
requested to be registered by such holders); and
(C) third, the Primary Shares.
-----
3. Procedure for Registration.
--------------------------
Whenever the Company is required to prepare and file a registration
statement and use its commercially reasonable best efforts to cause such
registration statement to become effective pursuant to Section 2, the Company
will:
(a) use its commercially reasonable best efforts as may be necessary that
the registration statement that registers such Restricted Shares remains
effective for a period of one year after the date it is declared effective or
until all of the Restricted Shares covered thereby have been disposed of, if
earlier (it being understood that the Company may thereafter discontinue any
registration);
(b) furnish, at least five business days before filing a registration
statement that registers Restricted Shares, a prospectus relating thereto or any
amendments or supplements relating to such a registration statement or
prospectus, to one counsel selected by the holder(s) of the Restricted Shares
(the "Holders' Counsel"), copies of all such documents proposed to be filed (it
being understood that such five business-day period need not apply to successive
drafts of the same document proposed to be filed so long as such successive
drafts are supplied to the Holders' Counsel in advance of the proposed filing by
a period of time that is customary and reasonable under the circumstances);
3
<PAGE>
(c) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for at least a
period of one year from the date it is declared effective or until all of such
Restricted Shares have been disposed of (if earlier), and to comply with the
provisions of the Securities Act with respect to the sale or other disposition
of such Restricted Shares in accordance with the method of distribution set
forth in such registration statement (it being understood that the Company
thereafter may discontinue any registration);
(d) notify in writing the Holders' Counsel promptly (i) of the receipt by
the Company of any notification with respect to the issuance by the Commission
of any stop order suspending the effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceeding for that purpose and (ii) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of such Restricted Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purposes;
(e) use its commercially reasonable best efforts to register or qualify
such Restricted Shares under such other securities or blue sky laws of such
jurisdictions as the sellers of Restricted Shares may reasonably request and do
any and all other acts and things which may be reasonably necessary or advisable
to enable such sellers to consummate the disposition in such jurisdictions of
the Restricted Shares owned by them; provided, however, that the Company will
not be required to qualify generally to do business, subject itself to general
taxation or consent to general service of process in any jurisdiction where it
would not otherwise be required to do so but for this paragraph (e) or to
provide any material undertaking or make any changes in its bylaws or Articles
of Incorporation which the Board of Directors of the Company determines to be
contrary to the best interests of the Company;
(f) furnish to each seller of Restricted Shares and to each underwriter
participating in the disposition under such registration statement such number
of copies of a summary prospectus, if any, or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as the sellers of Restricted Shares or such
underwriters may reasonably request in order to facilitate the public sale or
other disposition of such Restricted Shares;
(g) use its commercially reasonable best efforts to cause such Restricted
Shares to be registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and operations of the
Company to enable the sellers of Restricted Shares to consummate the disposition
of such Restricted Shares;
(h) use its commercially reasonable best efforts to list the Registered
Shares covered by such registration statement with any securities exchange on
which the Company's Common Stock is then listed, or if the Company's Common
Stock is then quoted on Nasdaq, to list the Restricted Shares with Nasdaq.
(i) immediately notify each seller of Restricted Shares and each
underwriter under such registration statement at any time when a prospectus
relating to such Restricted Shares is
4
<PAGE>
required to be delivered under the Securities Act within the appropriate period
mentioned in subparagraph (a) of this Section 2, of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing and, at the request of the sellers of Restricted Shares or any
underwriter participating in the disposition under such registration statement,
prepare and furnish to the sellers or such underwriters a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the offerees of such shares, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(j) if the offering is underwritten and at the request of any seller of
Restricted Shares, use its commercially reasonable best efforts to furnish on
the date that Restricted Shares are delivered to the underwriters for sale
pursuant to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters and to such seller, stating that such registration statement has
become effective under the Securities Act and that (A) to the best knowledge of
such counsel, no stop order suspending the effectiveness thereof has been issued
and no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the registration statement, the
related prospectus and each amendment or supplement thereof comply as to form in
all material respects with the requirements of the Securities Act (except that
such counsel need not express any opinion as to financial statements contained
therein) and (C) to such other effects as reasonably may be requested by counsel
for the underwriters or by such seller or its counsel and (ii) a letter dated
such date from the independent public accountants retained by the Company,
addressed to the underwriters and to such seller, stating that they are
independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of such
letter) with respect to such registration as such underwriters reasonably may
request;
(k) subject to the execution of confidentiality agreements in form and
substance reasonably satisfactory to the Company, make available upon reasonable
notice and during normal business hours, for inspection by the sellers of
Restricted Shares, any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent retained
by the sellers of Restricted Shares or such underwriter (collectively, the
"Inspectors"), all pertinent financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records"), as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information (together with the Records, the "Information") reasonably
requested by any such Inspector in connection with such due diligence and
registration statement. Any of the Information which the Company determines in
5
<PAGE>
good faith to be confidential, and of which determination the Inspectors are so
notified, shall not be disclosed by the Inspectors unless (i) the disclosure of
such Information is necessary to avoid or correct a misstatement or omission in
the registration statement, (ii) the release of such Information is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction,
(iii) such Information has been made generally available to the public or (iv)
the disclosure of such Information is not prohibited pursuant to the
confidentiality agreement executed in connection with the receipt thereof; the
Purchaser and each seller of Restricted Shares agrees that it will, upon
learning that disclosure of such Information is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of the
Information deemed confidential;
(l) issue to any underwriter to which the sellers of Restricted Shares may
sell shares in such offering certificates evidencing such Restricted Shares;
(m) otherwise use its commercially reasonable best efforts to comply with
all applicable rules and regulations of the Commission and make available to the
sellers of Restricted Shares, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12 months beginning
within three months after the effective date of the registration statement,
which earnings statements shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(n) use its commercially reasonable best efforts to take all other steps
necessary to effect the registration of such Restricted Shares contemplated
hereby.
Each seller of Restricted Shares, upon receipt of any notice from the
Company of any event of the kind described in Section 3(i) hereof, shall
forthwith discontinue disposition of the Restricted Shares pursuant to the
registration statement covering such Restricted Shares until such holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 3(i) hereof, and, if so directed by the Company, such holder shall
deliver to the Company all copies, other than permanent file copies then in such
holder's possession, of the prospectus covering such Restricted Shares at the
time of receipt of such notice.
4. Expenses.
--------
All expenses (other than underwriting discounts and commissions relating to
the Restricted Shares as provided in the last sentence of this Section 4)
incurred by the Company in complying with Sections 2 and 3, including, without
limitation, all registration and filing fees, fees and expenses of complying
with securities and blue sky laws, printing expenses, fees and expenses of the
Company's counsel and accountants, shall be paid by the Company.
Notwithstanding the foregoing, all underwriting discounts and selling
commissions applicable to the Restricted Shares (but not any other shares which
may be covered by the same registration statement) shall be borne by the holders
selling such Restricted Shares, in proportion to the number of Restricted Shares
sold by each such holder.
6
<PAGE>
5. Information by Sellers.
----------------------
Each seller of Restricted Shares shall promptly furnish to the Company such
written information regarding such seller and the distribution proposed by such
seller as the Company may reasonably request in writing and as shall be
reasonably required in order to assure compliance with applicable Federal and
state securities laws.
6. Indemnification.
---------------
In the event of a registration of Restricted Shares pursuant to Section 2
hereof, the Company will indemnify and hold harmless each seller of Restricted
Shares thereunder, each underwriter participating in the disposition of such
Restricted Shares thereunder and each other person, if any, who controls such
seller or underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Shares were registered under the Securities Act
pursuant to Section 2 hereof, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each such seller, each such underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that the Company will not be liable in
any such case if and only to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by any such seller, any such underwriter or any such controlling
person in writing specifically for use in such registration statement or
prospectus.
(a) In the event of a registration of Restricted Shares pursuant to
Section 2 hereof, each seller of such Restricted Shares thereunder, severally
and not jointly, will indemnify and hold harmless the Company, each person, if
any, who controls the Company within the meaning of the Securities Act, each
officer of the Company who signs the registration statement, each director of
the Company, each underwriter participating in the disposition of such seller's
Restricted Shares and each person who controls any underwriter within the
meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer, director,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration statement
under which such Restricted Shares were registered under the Securities Act
pursuant to Section 2 hereof, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and each such officer, director,
underwriter and
7
<PAGE>
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
registration statement or prospectus, and provided, further, however, that the
liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of the shares sold by such seller under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not in any event to exceed the net proceeds
received by such seller from the sale of Restricted Shares covered by such
registration statement.
(b) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 6 and shall only relieve it
from any liability which it may have to such indemnified party under this
Section 6 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 6 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
7. Rule 144 Reporting.
------------------
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of
Restricted Shares to the public without registration, the Company agrees to use
its commercially reasonable best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
8
<PAGE>
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to each holder of Restricted Shares forthwith upon request a
written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company as such holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Restricted Shares without
registration.
8. Changes in Common Stock.
-----------------------
If there is any change in the Common Stock by way of a stock split, stock
dividend, reclassification or any similar event, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock as
so changed.
9. Third Party Beneficiaries.
-------------------------
Except as expressly provided herein, this Agreement shall not confer any
rights or remedies upon any person other than the parties and their respective
successors and permitted assigns, personal representatives, heirs and estates,
as the case may be. It is hereby agreed that the holders of Management Shares
are intended third party beneficiaries of this Agreement.
10. Representative for Holders of Restricted Shares.
-----------------------------------------------
Matt d'Arbeloff (or another person designated by Purchaser in writing to
the Company) shall, by virtue of resolutions to be adopted by the stockholders
of Purchaser, be irrevocably appointed attorney-in-fact and authorized and
empowered to act, for and on behalf of any or all of the shareholders of
Purchaser (with full power of substitution) in connection with the notice
provisions of this Agreement and such other matters as are reasonably necessary
for the consummation of the transactions contemplated hereby, and to take such
further actions as are authorized in this Agreement. The above-named
representative, as well as any subsequent representative of the shareholders of
Purchaser appointed by such representative (or, after such representative's
death or incapacity, elected by vote of the holders of a majority of capital
stock of Purchaser outstanding immediately prior to the Closing), is referred to
herein as the "Shareholder Representative". The Company and each of its
respective affiliates shall be entitled to rely on such appointment and treat
the Shareholder Representative as the duly appointed attorney-in-fact of each
shareholder of Purchaser. The Shareholder Representative shall not be liable to
any stockholder of Purchaser, the Company or any other person with respect to
any action taken or omitted to be taken by the Shareholder Representative under
or in connection with this Agreement, the Escrow Agreement or the Registration
Rights Agreement, unless such action or omission results from or arises out of
fraud, willful misconduct, bad faith or gross negligence on the part of the
Shareholder Representative. The shareholders of Purchaser shall severally
indemnify and hold the Shareholder Representative harmless against any loss,
liability or expense incurred without fraud, willful misconduct, bad faith or
gross negligence on
9
<PAGE>
the part of the Shareholder Representative and arising out of or in connection
with the acceptance or administration of the duties of the Shareholder
Representative hereunder, including the reasonable fees and expenses of any
legal counsel retained by the Shareholder Representative, and shall reimburse
the Shareholder Representative for all reasonable expenses, including without
limitation reasonable legal fees and expenses, incurred by the Shareholder
Representative in connection with administration of the duties of the
Shareholder Representative hereunder. It is hereby agreed that any such loss,
liability or expense may be paid out of the escrow proceeds to which the
shareholders of the Purchaser are entitled under the Escrow Agreement.
11. Entire Agreement.
----------------
This Agreement constitutes the entire agreement among the parties and
supersedes any prior understandings, agreements or representations by or among
the parties, written or oral, that may have related in any way to the subject
matter of this Agreement.
12. Successors and Assigns.
----------------------
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted assigns, including any
person to whom the Purchaser shall transfer any of the Restricted Shares.
13. Counterparts.
------------
This Agreement may be executed in counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
14. Notices.
-------
All notices, requests, demands, claims, and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered
personally, faxed (with electronic confirmation of receipt and follow up copy by
mail or courier), sent by nationally recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
if to the Company, to:
PCSupport.com, Inc.
Suite 300, 3605 Gilmore Way
Burnaby, British Columbia, Canada V5G 4X5
fax: (604) 419-4494
Attention: David W. Rowat, Vice President and Chief Financial Officer
10
<PAGE>
with a copy to:
Troy & Gould Professional Corporation
1801 Century Park East, 16th Floor
Los Angeles, CA 90067
fax: (310) 201-4746
Attention: Sanford J. Hillsberg, Esq.
if to the Purchaser (prior to Closing):
MyHelpDesk, Inc.
60 Central St.
Norwood, MA 02062
Attention: Matt d'Arbeloff
Facsimile:
if to the Purchaser (after Closing):
Matt d'Arbeloff
c/o Edward N. Gadsby, Esq.
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
facsimile: (617) 832-7000
with a copy (in any case) to:
Edward N. Gadsby, Esq.
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
facsimile: (617) 832-7000
if to any holder of Restricted Shares:
The Shareholder Representative
c/o Edward N. Gadsby, Esq.
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
facsimile: (617) 832-7000
All such notices and other communications shall be deemed to have been
given and received (i) in the case of personal delivery, on the date of such
delivery, (ii) in the case of delivery by facsimile, on the date of such
delivery, (iii) in the case of delivery by nationally recognized overnight
courier, on the first business day following dispatch and (iv) in the case of
mailing, on the seventh business day following such mailing.
11
<PAGE>
15. Governing Law.
-------------
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
DOMESTIC LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEVADA OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF DELAWARE TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL
LAW OF THE STATE OF DELAWARE WILL CONTROL THE INTERPRETATION AND CONSTRUCTION
OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT
OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY
APPLY.
16. Jurisdiction; Service of Process.
--------------------------------
ANY ACTION OR PROCEEDING SEEKING TO ENFORCE ANY PROVISION OF, OR BASED ON
ANY RIGHT ARISING OUT OF, THIS AGREEMENT MUST BE BROUGHT AGAINST ANY OF THE
PARTIES IN THE COURTS OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, OR, IF
IT HAS OR CAN ACQUIRE JURISDICTION, IN THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA, AND EACH OF THE PARTIES CONSENTS TO THE
JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS) IN ANY
SUCH ACTION OR PROCEEDING AND WAIVES ANY OBJECTION TO VENUE LAID THEREIN.
PROCESS IN ANY ACTION OR PROCEEDING REFERRED TO IN THE PRECEDING SENTENCE MAY BE
SERVED ON ANY PARTY ANYWHERE IN THE WORLD.
17. Amendments and Waivers.
----------------------
No amendment of any provision of this Agreement shall be valid unless it
shall be in writing and signed by the Company and the holder(s) of not less than
66-2/3% of the Restricted Shares. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
18. Severability.
------------
If any provision of this Agreement shall be held to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render illegal, invalid
or unenforceable any other provision of this Agreement, and this Agreement shall
be carried out as if any such illegal, invalid or unenforceable provision were
not contained herein.
12
<PAGE>
19. Construction.
------------
Where specific language is used to clarify by example a general statement
contained herein, such specific language shall not be deemed to modify, limit or
restrict in any manner the construction of the general statement to which it
relates. The language used in this Agreement shall be deemed to be the language
chosen by the parties to express their mutual intent, and no rule of strict
construction shall be applied against any party.
IN WITNESS WHEREOF, the undersigned have duly executed this Registration
Rights Agreement as of the date first written above.
PCSUPPORT.COM, INC.
By: /s/ Mike McLean
--------------------------------
Name: Mike McLean
Title: CEO
MYHELPDESK, INC.
By: /s/ Brian McAdams
--------------------------------
Name: Brian McAdams
Title: President
/s/ Matthew d'Arbeloff
----------------------------------
Matthew d'Arbeloff, as Shareholder
Representative and not individually
13
<PAGE>
Exhibit D
---------
November 27, 2000
PCSupport.com, Inc.
3605 Gilmore Way, Suite 300
Columbia, Canada V5G 4X5
Ladies and Gentlemen:
We have acted as counsel to MyHelpDesk, Inc., a Delaware corporation (the
"Company") in connection with the transactions contemplated by the Asset
Purchase Agreement (the "Asset Purchase Agreement"), dated as of November 27,
2000, between the Company and PCSupport.com, Inc. ("PCS"). This opinion is being
delivered to PCS pursuant to Section 6.4 of the Asset Purchase Agreement.
In rendering the opinions expressed herein, we have reviewed such matters
of law as we have deemed necessary and have examined originals, or copies
certified to our satisfaction, of the following:
(1) An executed copy of the Asset Purchase Agreement;
(2) An executed copy of the Registration Rights Agreement;
(3) An executed copy of the Escrow Agreement;
(4) The Certificate of Incorporation and bylaws of the Company, as
amended, as presently in effect; and
(6) Such other agreements, documents and instruments as we deemed
necessary to render this opinion.
(The Asset Purchase Agreement, the Registration Rights Agreement and the
Escrow Agreement collectively, the "Agreements".)
We have also examined and relied upon a certificate, dated November 17,
2000, of the Secretary of State of the State of Delaware regarding the
Company's legal existence and good standing. We express no opinion as to the tax
good standing of the Company.
In rendering this opinion, we have relied as to factual matters on the
representations and warranties made by the Company and PCS contained in the
Asset Purchase Agreement (including the disclosure schedules attached thereto),
and we have assumed the completeness and accuracy of all such representations
and warranties as to factual matters. Although we have made inquiries with
respect to such matters, and relied upon representations of certain principals
of the Company, we have not, except as specifically noted above, made any
independent review or investigation of facts in connection with this opinion.
Without limiting the generality of the foregoing, except as specifically noted
above, we have not made any independent review or investigation in connection
with this opinion of any agreement, document, instrument, order, writ,
injunction or decree or court or agency docket, nor have we made any independent
investigation as to the existence of any actions, suits, investigations or
proceedings, if any, pending or threatened against the Company.
We have assumed the geniuneness of all signatures (other than those of the
Company), the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies. You have not asked us to pass upon your power and
authority to enter into the Agreements or to effect the transactions
contemplated thereby, nor upon the application to your authority to do so of any
federal or state law or regulation, and for the purposes of this opinion we have
assumed that you have all requisite power and authority and have taken all
necessary corporate action to enter into the Agreements and to effect such
transactions. We have assumed further that the Agreements and each related
instrument and other document constitute the legal, valid and binding obligation
of each party thereto other than the Company, and that each such party will
duly and promptly perform each of its respective obligations under the
Agreements and such related instruments and other documents.
The opinions expressed herein are limited to the laws of The Commonwealth
of Massachusetts, the federal law of the United States of America and the
Corporation Laws of the State of Delaware. We offer no opinion regarding the
laws of any other jurisdiction, including, without limitation, any state
securities laws.
The opinions hereinafter expressed are qualified to the extent that (1) the
enforceability or validity of any provision in the Agreements or any rights
granted to you pursuant to any of them may be subject to or affected by any
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar law relating to or affecting the rights of creditors generally which may
be in effect from time to time, (2) the remedy of specific performance or any
other equitable remedy may be unavailable in any jurisdiction or may be withheld
as a matter of judicial discretion, (3) equitable principles may be applied in
construing or enforcing any of the provisions of the Agreements, or any other
instrument or document, and (4) the enforceability, validity or binding effect
of any provision of the Agreements may be limited by applicable law which may
limit particular rights and remedies but not so as to interfere materially with
the practical realization of the benefits intended to be provided to you by the
Agreements. In addition, the opinions set forth below are subject to the
qualification that the enforcement of any of your rights is in all cases subject
to your implied duty of good faith. The opinions set forth below are further
qualified in that we offer no opinion with respect to the enforceability or
validity of any provision in the Agreements relating to the Shareholder
Representative (including, without limitation, his appointment, power to act or
responsibilities), as to any stockholders of the Company who have not approved
in writing the appointment of such Shareholder Representative and agreed to
grant him the powers described in the Agreements.
Based upon and subject to the foregoing and upon such other investigations
as we have deemed necessary, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and has all requisite
corporate power and authority under the laws of such state to own, lease and
operate its properties, to conduct its business and to consummate the
transactions contemplated by the Agreements;
(ii) All necessary corporate proceedings of the Board of Directors and
the stockholders of the Company to approve and adopt the Agreements and to
authorize the execution and delivery of the Agreements and the consummation of
the transactions contemplated thereby have been duly and validly taken;
(iii) The Company has the corporate power and authority to execute and
deliver the Agreements, and the Agreements have been duly authorized, executed
and delivered by the Company and constitute its legal, valid and biding
obligations;
(iv) Except as disclosed by the Company in the Agreements and the
disclosure schedules attached to the Asset Purchase Agreement, we know of no
actions, suits or proceedings pending or threatened against or affecting the
Company. or before or by any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality or arbitrator
that would, if determined adversely to the Company, have a material adverse
effect on the business or assets of the Company;
(v) To the best of our knowledge there is no litigation pending or
threatened against the Company.
(vi) The execution and delivery of the Agreements and the consummation of
the transactions contemplated thereby and the performance thereof will not
result in a violation of, or constitute a default under, (i) the Company's
Certificate of Incorporation or bylaws, (ii) to the best of our knowledge, any
governmental statute, rule or regulation applicable to the Company (other than
federal and state securities laws and regulations), (iii) any order, writ,
judgment, injunction, decree, determination or award know to us that has been
entered against the Company.
This opinion is furnished to you solely for your benefit and may not be
relied upon by any other person or entity, other than your counsel, without our
prior written permission.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By: /s/ Edward N. Gadsby, Jr.
-----------------------------
A Partner
<PAGE>
Exhibit E
---------
November 27, 2000
1225-1
MyHelpDesk, Inc.
60 Central Street
Norwood, MA 02062
Re: PCSupport.com, Inc.
-------------------
Gentlemen:
We have acted as counsel to PCSupport.com, Inc., a Nevada corporation (the
-
"Company"), in connection with the transactions contemplated by the Asset
Purchase Agreement (the "Asset Purchase Agreement"), dated as of November 27,
2000, between the Company and MyHelpDesk, Inc. ("MHD"). This opinion is rendered
to MHD pursuant to Section 5.4 of the Asset Purchase Agreement. Capitalized
terms used and not otherwise defined herein have the meanings given to such
terms in the Asset Purchase Agreement.
In rendering the opinions expressed herein, we have reviewed such matters
of law as we have deemed necessary and have examined originals, or copies
certified to our satisfaction, of the following:
(1) An executed copy of the Asset Purchase Agreement;
(2) An executed copy of the Registration Rights Agreement;
(3) An executed copy of the Escrow Agreement;
(4) A certificate from the Company relating to certain factual matters;
(3) The Articles of Incorporation and bylaws of the Company, as amended,
as presently in effect; and
(4) Such other agreements, documents and instruments as we deemed
necessary to render this opinion.
<PAGE>
MyHelpDesk, Inc.
Page 2
________________________________________________________________________________
We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such records of the Company and such
agreements, certificates of public officials, certificates of officers and
representatives of the Company and others, and such other documents,
certificates and company or other records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein. In our examination, we
have assumed the legal capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as certified,
photostatic or conformed copies, and the authenticity of the originals of all
such latter documents. In making our examination of documents executed by
parties other than the Company, we have assumed that such parties had the power
to enter into and perform all obligations thereunder and have also assumed the
due authorization by all requisite action and execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to any
facts material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and others.
Whenever a statement herein is qualified by "known to us," "to the best of
our knowledge" or similar phrase, it is intended to indicate that, during the
course of our representation of the Company, no information that would give us
current actual knowledge of the inaccuracy of such statement has come to our
attention. However, except as otherwise specified, we have not undertaken any
independent investigation to determine the accuracy of such statement, and any
limited inquiry undertaken by us during the preparation of this opinion letter
should not be regarded as such an investigation; no inference as to our
knowledge of any matters bearing on the accuracy of any such statement should be
drawn from the fact of our representation of the Company.
We are members of the State Bar of California, and the opinions herein
expressed relate solely to the laws of the State of California, the general
corporate law of the State of Nevada and the applicable laws of the United
States of America. We express no opinion concerning any statutes, ordinances,
administrative decisions, rules or regulations of any county, town, municipality
or political subdivision (whether created or enabled through legislative action
at the federal, state or regional level).
Based upon the foregoing and in reliance thereon, and subject to the
limitations and qualifications set forth below, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Nevada, and has all requisite
corporate power and authority under the laws of such state to own, lease and
operate its properties, to carry on its business as described in the Information
Documents, and to consummate the transactions
<PAGE>
MyHelpDesk, Inc.
Page 3
________________________________________________________________________________
contemplated by the Asset Purchase Agreement, the Registration Rights Agreement
and the Escrow Agreement (collectively, the "Agreements");
(ii) All necessary corporate proceedings of the Board of Directors and
the stockholders of the Company to approve and adopt the Agreements and to
authorize the execution and delivery of the Agreements and the consummation of
the transactions contemplated thereby have been duly and validly taken;
(iii) The Company has the corporate power and authority to execute and
deliver the Agreements, and the Agreements have been duly authorized, executed
and delivered by the Company and constitute its legal, valid and binding
obligations, except that as the enforceability thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally; and (ii) general
principles of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law);
(iv) Except as disclosed by the Company in Section 3.9 of the Asset
Purchase Agreement, we know of no actions, suits or proceedings pending or
threatened against or affecting the Company, or before or by any Federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality or arbitrator that would, if determined adversely to the
Company, have a material adverse effect on the business or assets of the
Company;
(v) The shares of the Company's Common Stock to be issued pursuant to
the Asset Purchase Agreement are duly authorized, and will be, upon the issuance
in accordance with the terms of the Asset Purchase Agreement, validly issued,
fully paid and nonassessable.
(vi) The execution and delivery of the Agreements and the consummation of
the transactions contemplated thereby and the performance thereof will not
result in a violation of, or constitute a default under, (i) the Company's
Articles of Incorporation or bylaws, (ii) to the best of our knowledge any
governmental statute, rule or regulation applicable to the Company (other than
federal and state securities law statutes and regulations), or (iii) any order,
writ, judgment, injunction, decree, determination or award known to us that has
been entered against the Company.
(vii) The issuance of shares of the Company's Common Stock to MHD and the
persons listed in Exhibit A to the Asset Purchase Agreement as contemplated by
the Asset Purchase Agreement will not violate the registration requirements of
the Securities Act of 1933 as amended.
<PAGE>
MyHelpDesk, Inc.
Page 4
________________________________________________________________________________
This opinion is rendered to MHD in connection with the Asset Purchase
Agreement and may not be relied on by any person other than MHD in any other
context; except that this opinion may be delivered by you to the persons listed
on Exhibit A to the Asset Purchase Agreement who may rely on the opinion set
forth in paragraph (vii) above. Accordingly, this letter may not be delivered to
or relied upon by any other person, and it may not be relied upon for any other
purpose whatsoever, except that it may be examined and referred to by your
counsel, Foley, Hoag & Eliot LLP.
Very truly yours,
/s/ Troy & Gould Professional Corporation
-----------------------------------------
TROY & GOULD
Professional Corporation
<PAGE>
EXHIBIT F
---------
ESCROW AGREEMENT
THIS AGREEMENT is made as of the 27th day of November, 2000 between
PCSUPPORT.COM, INC., of 3605 Gilmore Way, Suite 300, Burnaby, B.C. V5G 4X5
("Depositor"), OB SERVICES INC., of Suite 2900 - 595 Burrard Street, Vancouver,
B.C. V7X 1J5 ("Escrow Agent"), MYHELPDESK, INC., of 60 Central Street, Norwood,
MA 02062 ("Recipient"), and each of the persons listed in Exhibit A hereto (the
"Management Personnel").
WITNESSES THAT WHEREAS:
A. Depositor and Recipient have entered into an asset purchase agreement (the
"Asset Purchase Agreement") pursuant to which Depositor has agreed, among other
things, to deposit with the Escrow Agent the certificates (the "Certificates")
evidencing 500,000 shares of Depositor's Common Stock to be issued in the
respective names of Recipient and the Management Personnel and to be held and
dealt with by Escrow Agent in accordance with the terms of the Asset Purchase
Agreement and hereof.
B. Escrow Agent has agreed to hold and deal with the Certificates in
accordance herewith.
NOW THEREFORE in consideration of the premises, the mutual covenants and
conditions herein, the parties hereto agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Defined Terms.
--------------
For all purposes of this Agreement, the following terms have the following
meanings, with such meanings to be equally applicable to both the singular and
plural forms of the respective terms:
a) "Anniversary Date" means November 27, 2001.
b) "Business Day" means a day other than Saturday, Sunday or any
statutory holiday in British Columbia.
c) "Certificates" means the share certificates representing the Common
Shares, registered in the names of Recipient and the Management
Personnel.
d) "Common Stock" or "Common Shares" means 500,000 common shares in the
capital stock of Depositor and any other stock into which such shares
may be subdivided, split, consolidated, exchanged, reclassified or
otherwise converted.
e) "Escrow Agent" means OB Services Inc. or its successor in the capacity
as escrow agent under this Agreement from time to time.
<PAGE>
1.2 Entire Agreement.
-----------------
This Agreement including any exhibits or schedules hereto and all documents
delivered in support hereof sets forth the entire agreement and understanding
between the parties as to the subject matter hereof and merges and supersedes
all prior discussions, agreements and understandings of every kind and nature.
1.3 Governing Law.
--------------
This Agreement and its validity, construction and performance shall be
governed in all respects by the laws of the Province of British Columbia and all
parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of
British Columbia.
1.4 Severability.
------------
If any provision of this Agreement or the application of any provision
hereof to any person or circumstance is held invalid, the remainder of this
Agreement and the application of such provision to other persons or
circumstances shall not be affected thereby.
1.5 Successors and Assigns.
----------------------
This Agreement and all action taken hereunder in accordance with the terms
hereof shall be binding upon and enure to the benefit of the parties hereto and
their respective successors and assigns.
1.6 Counterparts/Headings.
----------------------
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument. The headings contained herein are for purposes of
reference only and shall not affect nor shall they be taken into consideration
in determining the meaning or interpretation of the provisions hereof.
1.7 Amendment/Waiver.
----------------
This Agreement shall not be changed, modified or amended except in writing
signed by all the parties hereto. No failure or delay on the part of any party
hereto in the exercise of any right hereunder in enforcing or requiring the
compliance or performance by any of the other parties of any of the terms or
conditions of this agreement shall operate as a waiver of any such right, or
constitute a waiver of a breach of any such terms or conditions, nor shall any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other right, nor shall any of the aforementioned failures or
delays affect or impair such rights generally in any way. The waiver by any
party of a breach of any term or condition of this Agreement by any other party
shall not operate as nor shall it be construed as a waiver of any subsequent
breach thereof.
2
<PAGE>
1.8 Time.
----
Time shall be in all respects of the essence herein.
ARTICLE 2
APPOINTMENT OF ESCROW AGENT AND SUCCESSORS
2.1 Purpose of Agreement.
---------------------
This Agreement and the escrow created herein has been executed, delivered
and established for the purpose of holding and delivering the Common Stock in
accordance with the terms of the Asset Purchase Agreement.
2.2 Appointment of Escrow Agent.
---------------------------
Depositor, Recipient and the Management Personnel hereby appoint Escrow
Agent to act as the escrow agent hereunder and Escrow Agent accepts its
appointment and designation as such pursuant and subject to the terms and
conditions herein.
2.3 Successors.
----------
Escrow Agent may at any time resign by giving not less than 10 Business
Days prior written notice to each of the other parties hereto, and shall be
discharged of its duties hereunder upon the expiration of the said 10 Business
Days or upon the earlier appointment of a successor. In the event of such
resignation, a successor escrow agent will be selected by Depositor and
Recipient jointly in writing and such successor shall thereupon receive the
Certificates herein and shall succeed to all the rights and duties of Escrow
Agent as set forth herein.
ARTICLE 3
ESCROW ARRANGEMENTS
3.1 Delivery of Escrowed Documents.
-------------------------------
Depositor herewith delivers the Certificates to Escrow Agent, to be held
and dealt with in accordance with the terms of this Agreement, and Depositor
covenants to expeditiously deliver to Escrow Agent from time to time as
requested by Escrow Agent such other documents as may be required to permit
Escrow Agent to deal with the Certificates as contemplated herein. Escrow Agent
shall hold and deal with the Certificates for the benefit of the parties hereto
in accordance with the terms herein.
3.2 Notice of Deficiency by Depositor.
----------------------------------
If, at any time before the Anniversary Date, Depositor delivers to Escrow
Agent a statutory declaration of a director or senior officer of Depositor (the
"Deficiency Notice") stating that the aggregate amount of all items for which
the Buyer Indemnified Persons (as defined in the Asset Purchase Agreement) are
seeking indemnification exceeds $50,000 then Escrow Agent will within 10
Business Days deliver a copy of the Deficiency Notice to Recipient and each of
the Management Personnel.
3
<PAGE>
3.3 No Objection by Recipient or Management Personnel.
-------------------------------------------------
If Escrow Agent has not received a statutory declaration of a director or
senior officer of Recipient or any member of the Management Personnel whose
Common Stock is subject to cancellation in whole or in part due to the
Deficiency Notice objecting to the Deficiency Notice (the "Objection to the
Deficiency Notice" within 15 Business Days of receipt of the Deficiency Notice
by the objecting party), then Escrow Agent will return the Certificates to
Depositor for cancellation or reduction in the number of shares in accordance
with the Deficiency Notice, with the Certificates for any remaining shares being
returned for deposit with the Escrow Agent in accordance with the terms of the
Asset Purchase Agreement and this Agreement.
3.4 Objection by Recipient.
----------------------
If Escrow Agent receives an Objection to the Deficiency Notice within 15
Business Days of receipt of the Deficiency Notice by the objecting party, then
Escrow Agent will not deliver the Certificates to Depositor but will continue to
hold the Certificates until directed in writing by the Depositor, the Recipient
and the Management Personnel or ordered by a court of competent jurisdiction.
3.5 No Deficiency Notice.
---------------------
If Depositor does not deliver a Deficiency Notice before the Anniversary
Date, then Escrow Agent will promptly deliver the Certificates to Recipient and
the Management Personnel.
3.6 Dividends.
---------
Any securities in respect of stock splits, recapitalizations, redemptions,
liquidations, mergers, spin-offs, split-ups or exchanges or conversions of the
Common Stock shall form part of the escrow created hereby and will be
distributed accordingly. If any dividends are declared and paid on the Common
Shares while Escrow Agent is holding the Certificates then the amount thereof
will be paid to Escrow Agent, to be distributed accordingly.
3.7 Right to Vote.
-------------
Recipient and the Management Personnel shall have the right to exercise any
voting rights attached to the Common Shares and in respect of which Escrow Agent
has not received a Deficiency Notice.
ARTICLE 4
TERMINATION OF ESCROW
4.1 Termination of Escrow.
----------------------
This Agreement and the rights and obligations of the parties hereto shall
terminate when the Certificates have been delivered to Recipient and the
Management Personnel or returned to Depositor in accordance with the terms of
this Agreement.
4
<PAGE>
ARTICLE 5
RIGHTS, DUTIES AND REMUNERATION OF THE ESCROW AGENT
5.1 Fees.
-----
Recipient and Depositor will each indemnify Escrow Agent for its reasonable
fees and expenses for acting as escrow agent hereunder.
5.2 Rights of Escrow Agent.
-----------------------
Escrow Agent may act upon any instrument or other writing or transmission
reduced to writing believed by it in good faith to be genuine and to be signed
or presented by the proper person. Escrow Agent shall not be liable to any of
the parties hereto for any liability or losses sustained by any of them as a
result of any action taken or omitted to be taken by it in good faith unless a
court of competent jurisdiction determines that Escrow Agent's willful
misconduct or gross negligence was the primary cause of any such loss. Escrow
Agent may consult with qualified outside counsel of its choice at all reasonable
times, and shall have full and complete authorization and protection for any
action taken or omitted by it hereunder in good faith and in accordance with the
opinion of such counsel.
5.3 Indemnity.
---------
The parties hereto agree, jointly and severally, to indemnify and save
harmless Escrow Agent from all costs, expenses (including legal fees and
disbursements on a solicitor and own client basis), liabilities and losses that
may be incurred by it as a result of being named a party to or responding to any
litigation arising from the performance of its duties hereunder, except such
litigation that arises from any act or failure to act by Escrow Agent that is
determined by a court of competent jurisdiction to constitute willful misconduct
or gross negligence of Escrow Agent.
5.4 No Liability.
------------
The duties and responsibilities of Escrow Agent hereunder shall be
determined solely by the express provisions of this Agreement, and no other or
further duties or responsibilities shall be implied. Escrow Agent shall not
have any liability under, and shall have no duty to inquire into the terms and
provisions of, any other Agreement, or instructions, other than as set forth or
contemplated in this Agreement.
5.5 Directions.
----------
If Escrow Agent is uncertain as to its duties or rights hereunder or shall
receive instructions, claims or demands from any party hereto which, in its
opinion, conflict with any of the provisions of this Agreement, Escrow Agent
shall be entitled to refrain from taking any action and its sole obligation
shall be to keep safely the Certificates until it shall be directed otherwise in
a written notice satisfactory to Escrow Agent from the other parties hereto or
by a final order or judgment of a court of competent jurisdiction.
5
<PAGE>
5.6 Interpleader.
------------
In the event of a dispute between any of the parties to this Agreement and
where Escrow Agent deems it necessary for its protection to do so, Escrow Agent
may deposit the Certificates into a court of competent jurisdiction and, subject
to any order of such court, shall thereafter have no further duties in
connection therewith to any of the parties hereto.
5.7 Directions from the Parties.
---------------------------
Escrow Agent shall be entitled to rely upon directions from David Rowat or
such other individual as he may appoint in writing as directions from Depositor
for all purposes hereof. Escrow Agent shall be entitled to rely upon directions
from Matt d'Arbeloff, or such other individual as Recipient may appoint in
writing; as directions from Recipient for all purposes hereof. Matt d'Arbeloff
(or another person designated by Recipient in writing to Depositor) shall, by
virtue of resolutions to be adopted by the Management Personnel, be irrevocably
appointed attorney-in-fact and authorized and empowered to act, for and on
behalf of any or all of the Management Personnel (with full power of
substitution) in connection with the notice provisions of this Agreement, and
such other matters as are reasonably necessary for the consummation of the
transactions contemplated hereby, including to act as the representative of such
Management Personnel to review and authorize all claims and other payments under
the Escrow Agreement and dispute or question the accuracy thereof, to compromise
on their behalf with Depositor any claims asserted thereunder and to authorize
payments to be made with respect thereto, and to take such further actions as
are authorized in this Agreement. The above-named representative, as well as
any subsequent representative of the Management Personnel appointed by such
representative (or, after such representative's death or incapacity, elected by
vote of the holders of a majority of capital stock of Recipient outstanding
immediately prior to the closing of the transactions contemplated by the Asset
Purchase Agreement), is referred to herein as the "Shareholder Representative".
Notwithstanding anything in this Agreement to the contrary, Depositor and each
of its respective affiliates shall be entitled to rely on such appointment and
treat the Shareholder Representative as the duly appointed attorney-in-fact of
each shareholder of Recipient. The Shareholder Representative shall not be
liable to any stockholder of Recipient, Recipient, Depositor or any other person
with respect to any action taken or omitted to be taken by the Shareholder
Representative under or in connection with this Agreement unless such action or
omission results from or arises out of fraud, willful misconduct, bad faith or
gross negligence on the part of the Shareholder Representative. The
shareholders of Recipient shall severally indemnify and hold the Shareholder
Representative harmless against any loss, liability or expense incurred without
fraud, willful misconduct, bad faith or gross negligence on the part of the
Shareholder Representative and arising out of or in connection with the
acceptance or administration of the duties of the Shareholder Representative
hereunder, including the reasonable fees and expenses of any legal counsel
retained by the Shareholder Representative, and shall reimburse the Shareholder
Representative for all reasonable expenses, including without limitation
reasonable legal fees and expenses, incurred by the Shareholder Representative
in connection with administration of the duties of the Shareholder
Representative hereunder. It is hereby agreed that any such loss, liability or
expense may be paid out of the escrow proceeds to which the shareholders of
Recipient are entitled under the Escrow Agreement.
6
<PAGE>
ARTICLE 6
MISCELLANEOUS
6.1 Notices.
--------
All notices, requests, demands and other communications pursuant to this
Agreement shall be in writing, addressed to the respective parties hereto at
their addresses referred to below (or to such other address as any party may
advise the other parties of by notice) and shall be deemed to have been given
and received: (i) the next Business Day, if by hand delivery or overnight
courier sent on a Business Day; (ii) three Business Days following post-paid
registered or certified mailing if mailed in Canada or the United States of
America, or (iii) upon written acknowledgement of facsimile transmission;
provided however, that in all cases, all notices, requests, demands and other
communications to Escrow Agent shall be deemed to have been given and received
on the date actually received by Escrow Agent:
To Depositor: PCSupport.com, Inc.
Suite 300 - 3605 Gilmore Way
Burnaby, B.C. V5G 4X5
Attention: David Rowat
-----------------------
Facsimile: 604.419.4494
To Recipient: Matt d'Arbeloff
c/o Edward N. Gadsby, Esq.
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
Facsimile: (617) 832-7000
To Management Personnel: The Shareholder Representative
c/o Edward N. Gadsby, Esq.
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
Facsimile: (617) 832-7000
To Escrow Agent: OB Services Inc.
Suite 2900 - 595 Burrard Street
Vancouver, B.C. V7X 1J5
Attention: Ian W. Muirhead
---------------------------
Facsimile: 604.688.2827
6.2 Delivery By Fax.
---------------
This Agreement may be effectively delivered by any party hereto by
transmitting by facsimile a copy hereof executed by such party to each of the
other parties as provided for herein.
7
<PAGE>
IN WITNESS WHEREOF the parties have executed and delivered this Agreement as of
the date first above written.
PCSUPPORT.COM INC. MYHELPDESK, INC.
Per: /s/ Mike McLean Per: /s/ Brian McAdams
--------------------------------- -------------------------------
Authorized Signatory Authorized Signatory
OB SERVICES INC. MANAGEMENT PERSONNEL
Per: /s/ Ian Muirhead /s/ Brian McAdams
--------------------------------- -----------------------------------
Authorized Signatory
/s/ Karen Marea Angelini
-----------------------------------
/s/ Paul Barron
-----------------------------------
/s/ Matthew d'Arbeloff /s/ Carol Blanchard
------------------------------------- -----------------------------------
Matthew d'Arbeloff, as Shareholder
Representative and not individually /s/ Eric Bulock
-----------------------------------
/s/ Michael L. Gershon
-----------------------------------
/s/ Paula J. Malzone
-----------------------------------
/s/ Susanne Schmermbeck
-----------------------------------
8
<PAGE>
EXHIBIT G
---------
Form of Investment Letter from
------------------------------
Purchasers of Management Shares
-------------------------------
The Purchaser hereby represents and warrants to and covenants with
PCSupport.com, Inc. (the "Company") as follows:
(i) The Purchaser hereby acknowledges that the Purchaser has been advised
that the offering to Purchaser of the Company's common stock (the "Common
Stock") has not been registered with, or reviewed by, the Securities and
Exchange Commission (the "SEC") because this offering is intended to be a non-
public offering pursuant to Section 4(2) of and Regulation D under the
Securities Act of 1933 and that the Company is relying on the representations
and warranties of Purchaser contained in this letter in order to qualify for
exemptions form registration for this offering under federal and state
securities laws. The Purchaser represents that the shares of the Common Stock
being acquired by the Purchaser is being purchased for the Purchaser's own
account, for investment purposes only and not with a view towards distribution
or resale to others. The Purchaser agrees that the Purchaser will not attempt
to sell, transfer, assign, pledge or otherwise dispose of all or any portion of
the Common Stock unless it is registered under the Securities Act or unless in
the opinion of counsel satisfactory to the Company an exemption from such
registration is available. The Purchaser understands that the Common Stock has
not been registered under the Securities Act by reason of a claimed exemption
under the provisions of the Securities Act which depends, in part, upon the
Purchaser's investment intention.
(ii) The Purchaser is an "accredited investor" as such term is defined in
Rule 501(a) of Regulation D promulgated under the Securities Act or by reason
of his business and financial experience, and the business and financial
experience of those persons unaffiliated with the Company retained by him, if
any, to advise him with respect to his investment in the Common Stock, has such
knowledge, sophistication and experience in business and financial matters as to
be capable of evaluating the merits and risks of an investment in the Common
Stock.
(iii) The Purchaser has examined the Asset Purchase Agreement between
MyHelpDesk, Inc. and the Company and has received and reviewed a copy of the
Pre-Effective Amendment No. 1 to the Company's Registration Statement on Form
SB-2, as filed with the Securities and Exchange Commission on June 19, 2000, the
Company's Form 10-KSB for the fiscal year ended June 30, 2000 and the Company's
Form 10-QSB for the quarter ended September 30, 2000, and is familiar with and
understands the terms of the offering, has relied solely upon the foregoing
documents and investigations made by or on behalf of the Purchaser or his
representative in evaluating the suitability of an investment in the Company and
recognizes that an investment in the Company involves a high degree of risk.
(iv) The Purchaser confirms that the Company has made available to the
Purchaser the opportunity to ask questions of, and receive answers from,
representatives of the Company concerning the offering, the Company and the
activities of the Company, and otherwise to obtain any additional information,
to the extent that the Company possesses such information or could
1
<PAGE>
acquire it without unreasonable effort or expense, necessary to verify the
accuracy of the information contained in the documents referred to in paragraph
(iii) above, and the Purchaser does not require any additional information
concerning the foregoing.
(v) The Purchaser understands that no federal or state securities
administrator or agency has made any finding or determination relating to the
fairness of this investment and that no federal or state securities
administrator or agency has recommended or endorsed, or will recommend or
endorse, the offering of the Common Stock.
(vi) The Purchaser acknowledges that the Common Stock has not been
recommended by any Federal or state securities commission or regulatory
authority. In making an investment decision, the Purchaser must rely on his own
examination of the Company and the terms of the offering, including the merits
and risks involved. Furthermore, the foregoing authorities have not confirmed
the accuracy or determined the adequacy of the documents described in paragraph
(iii) above. Any representation to the contrary is a criminal offense. The
Common Stock is subject to restrictions on transferability and resale and may
not be transferred or resold except as permitted under the Securities Act, and
the applicable state securities laws, pursuant to registration or exemption
therefrom. The Purchaser should be aware that he will be required to bear the
financial risks of this investment for an indefinite period of time.
(vii) The Purchaser understands and agrees that the Common Stock is being
offered pursuant to Section 4(2) of the Securities Act and Rule 506 of
Regulation D thereunder and any interests therein or in the Conversion Stock may
not be offered, sold, transferred, pledged or otherwise disposed of except
pursuant to (i) an effective registration statement under the Securities Act and
any applicable state securities laws or (ii) an exemption from registration
under such act and such laws which, in the opinion of counsel for the holder of
such Common Stock, which counsel and opinion are reasonably satisfactory to
counsel for the Company, is available. The Purchaser also understands and
agrees that the following legend shall appear on all certificates representing
the Common Stock and that the Company may give appropriate instructions to the
transfer agent for the Common Stock to enforce such restrictions:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE
SECURITIES LAWS. THESE SHARES HAVE NOT BEEN ACQUIRED WITH A VIEW
TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE
SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE SECURITIES LAWS,
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933 OR
UNDER APPLICABLE STATE SECURITIES LAWS.
[SIGNATURE PAGE FOLLOWS]
2
<PAGE>
November 16, 2000 /s/ Brian McAdams
-----------------------------------
(Signature of Purchaser)
November 17, 2000 /s/ Karen M. Angelini
-----------------------------------
(Signature of Purchaser)
November 17, 2000 /s/ Paul Barron
-----------------------------------
(Signature of Purchaser)
November 16, 2000 /s/ Carol Blanchard
-----------------------------------
(Signature of Purchaser)
November 16, 2000 /s/ Eric Bulock
-----------------------------------
(Signature of Purchaser)
November 17, 2000 /s/ Michael L. Gershon
-----------------------------------
(Signature of Purchaser)
November 16, 2000 /s/ Paula J. Malzone
-----------------------------------
(Signature of Purchaser)
November 17, 2000 /s/ Susanne Schmermbeck
-----------------------------------
(Signature of Purchaser)
3
<PAGE>
PCSUPPORT.COM, INC.
OFFICERS' CERTIFICATE
---------------------
Michael G. McLean, Chairman, President and Chief Executive Officer, and
David W. Rowat, Vice President and Chief Financial Officer, of PCSupport.com,
Inc., a Nevada corporation (the "Company"), hereby certify pursuant to Section
5.1 of the Asset Purchase Agreement, dated as of November 27th, 2000 between the
Company and MyHelpDesk, Inc. (the "Asset Purchase Agreement"), that all
representations and warranties set forth in the Asset Purchase Agreement are
true, complete and correct in all material respects at and as of the date as if
made at this time, that the Company has performed and complied with all
agreements, covenants and conditions required by the Merger Agreement to be
performed or complied with by the Company on or prior to the closing, and that
the consummation of the transactions contemplated by the Asset Purchase
Agreement have been duly and validly authorized by the Company's Board of
Directors.
IN WITNESSETH WHEREOF, the undersigned have executed this Officers'
Certificate as of this 27th day of November 2000.
/s/ Michaed G. McLean
-------------------------------------------
Michael G. McLean, Chairman, President
and Chief Executive Officer
/s/ David W. Rowat
-------------------------------------------
David W. Rowat, Vice President and
Chief Financial Officer
<PAGE>
MYHELPDESK, INC.
Closing Certificate
I, Brian McAdams, hereby certify that I am the duly elected, qualified and
acting President of MyHelpDesk, Inc., a Delaware corporation (the
"Corporation"), and that as such, I am authorized to execute this Certificate on
behalf of the Corporation. Pursuant to Section 6.1 of the Asset Purchase
Agreement, dated as of November ____, 2000 (the "Purchase Agreement"), among the
Corporation and PCSupport.com, Inc. ("PCS"), I do hereby certify to PCS on
behalf of the Corporation, that (capitalized terms used herein and not otherwise
defined herein, shall have the respective meanings assigned to such terms in the
Purchase Agreement):
1. The Corporation has performed and complied in all material respects
with the covenants and agreements contained in the Purchase Agreement required
to be performed and complied with by it at or prior to the Closing Date;
2. The representations and warranties of the Corporation set forth in the
Purchase Agreement are true and correct in all material respects as of the date
hereof and as of the Closing Date as though made at and as of the Closing Date
(except as otherwise expressly contemplated by the Purchase Agreement);
3. The execution and delivery of the Purchase Agreement by the
Corporation and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action of the
Corporation.
IN WITNESS WHEREOF, I have executed this Certificate this 27th day of
November, 2000.
MYHELPDESK, INC.
By: /s/ Brian McAdams
-----------------------------
Brian McAdams, President
