STOCK ACQUISITION AGREEMENT
BETWEEN
CYBEREXCELLENCE, INC.
AND
XXXXX XXXXXXX, F. XXXXXX XXXXXXXX,
XXXXXXX X. XXX, AND XXXXX XXXXXXXXXX
AND
FUNNEL CLOUD, INC.
STOCK ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (hereinafter "Agreement") dated February 5, 2003, by,
between and among Cyberexcellence, inc., a Nevada Corporation ("Cyber"); Funnel
Cloud, Inc., a Nevada Corporation ("Funnel); and Xxxxx XxXxxxx, F. Xxxxxx
XxXxxxxx, Xxxxxxx X. Xxx, and Xxxxx Xxxxxxxxxx, ("Shareholders").
WHEREAS, Cyber desires to acquire through the issue of its common stock
one hundred percent (100%) of the issued and outstanding shares of Funnel; and
WHEREAS, Shareholders desire to sell to Cyber one hundred percent
(100%) of the issued and outstanding shares of Funnel on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties herein contained, the parties hereby agree as
follows:
I. Purchase and Sale. Shareholders hereby agree to sell, transfer, assign,
and convey to Cyber, and Cyber hereby agrees to purchase and acquire
from Shareholders, one hundred percent (100%) of the issued and
outstanding shares of Funnel, (hereinafter referred to as the "Funnel
Shares"). Cyber hereby agrees to sell, transfer, assign, and convey to
Shareholders, and Shareholders hereby agree to purchase and acquire
from Cyber, eleven million five hundred seventy one thousand three
hundred forty (85%) of the issued and outstanding common shares of
Cyber (hereinafter referred to as the "Cyber Shares").
II Purchase Price of the Funnel and Cyber Shares. The aggregate purchase
price to be paid to Cyber by Shareholders for the delivery to
Shareholders of eleven million five hundred seventy one thousand three
hundred forty (85%) of the issued and outstanding shares of the common
stock of Cyber shall be one hundred percent (100%) of the issued and
outstanding shares of Funnel.
III Warranties and Representations of Funnel and Shareholders. In order to
induce Cyber, to enter into the Agreement and to complete the
transaction contemplated hereby, Funnel and Shareholders individually
and jointly warrant and represent to Cyber that:
A Organization and Standing. Funnel, Inc. is a corporation duly
organized, validly existing, and in good standing under the laws
of the State of
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Nevada, is qualified to do business as a foreign corporation in
every other state or jurisdiction in which it operates to the
extent required by the laws of such states and jurisdictions, and
has full power and authority to carry on its business as now
conducted and to own and operate its assets, properties, and
business No changes to Funnel's Certificate of Incorporation,
amendments thereto and By laws of Funnel will be made before the
Closing.
B Shareholder Approval. Funnel shall have received any and all
necessary and required approval of its shareholders for the
transaction set forth herein as required by statute or regulation
by any state or other jurisdiction that has authority over the
affairs of Funnel. All votes of shareholders are hereby certified
to be in compliance with those statutes and requirements,
including any requirement regarding the number of votes and the
percentage of approval required in such a shareholder vote.
C Taxes. Funnel has filed all federal, state, and local income or
other tax returns and reports that it is required to file with all
governmental agencies, wherever situate, and has paid or accrued
for payment all taxes as shown on such returns, such that a
failure to file, pay, or accrue will not have a material adverse
effect on Funnel.
D Pending Actions. There are no material legal actions, lawsuits,
proceedings or investigations, either administrative or judicial,
pending or to the knowledge of Funnel threatened, against or
affecting Funnel, except as disclosed in writing to Cyber. Funnel
is not in violation of any law, material ordinance, or regulation
of any kind whatever, including, but not limited to laws, rules
and regulations governing the sale of its products, the Securities
Act of 1933 (the '33 Act), the Securities Exchange Act of 1934, as
amended (the "34 Act") the Rules and Regulations of the U.S.
Securities and Exchange Commission ("SEC"), or the Securities Laws
and Regulations of any state.
E Governmental Regulation. Funnel holds no licenses or registrations
from any federal, state or jurisdiction. Which are necessary to
permit the Corporation to conduct its current business. No
approval of any trade or professional association or agency of
government is required for any of the transactions effected by
this Agreement.
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F Ownership of Assets. Shareholders have a good, marketable title,
without any liens or encumbrances of any nature whatever, to the
Funnel Shares to be transferred to Cyber.
G Corporate Records. All of Funnel's books and records, including,
without limitation, its books of account, corporate records,
minute book, stock certificate books and other records of Funnel
are up-to-date, complete and reflect accurately and fairly the
conduct of its business in all material respects since its date of
incorporation.
H No Misleading Statements or Omissions. Neither the Agreement nor
any financial statement, exhibit, schedule or document attached
hereto or presented to Cyber, in connection herewith, contains any
materially misleading statement, or omits any fact or statement
necessary to make the other statements or facts therein set forth
not materially misleading.
I Validity of the Agreement. All corporate and other proceedings
required to be taken by Funnel in order to enter into and to carry
out the Agreement have been duly and properly taken. No corporate
or other action on the part of Funnel is required in connection
with this Agreement, or the transaction contemplated herein. The
Agreement has been duly executed by an officer of Funnel, and
constitutes the valid and binding obligation of Funnel, except to
the extent limited by applicable bankruptcy, reorganization,
insolvency, moratorium, or other laws relating to or affecting
generally the enforcement of creditors rights. The execution and
delivery of the Agreement, and the carrying out of its purposes,
will not result in the breach of any of the terms or conditions
of, or constitute a default under or violate Funnel's Certificate
of Incorporation or document of undertaking, oral or written, to
which Funnel is a party or is bound or may be affected, nor will
such execution, delivery and carrying out violate any order, writ,
injunction, decree, law, rule, or regulation of any court,
regulatory agency or other governmental body; and the business now
conducted by Funnel can continue to be so conducted after
completion of the transaction contemplated hereby.
J Enforceability of the Agreement. When duly executed and delivered,
the Agreement and the Exhibits hereto which are incorporated
herein, and made
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a part hereof, are legal, valid, and enforceable by Cyber and
Funnel according to their terms, except to the extent limited by
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws relating to or affecting generally the enforcement of
creditors rights and that at the time of such execution and
delivery, Cyber will have acquired title in and to the Funnel
Shares free and clear of all claims, liens, and encumbrances.
K Access to Books and Records. Cyber has been granted full and free
access to the books of Funnel during the course of this
transaction prior to Closing.
L Funnel's Financial Statements. Funnel's Balance Sheet and Profit
and Loss statement for the year, attached hereto as Exhibit "A",
accurately describe Funnel's financial position as of the dates
thereof, in accordance with applicable legal and accounting
requirements.
M Duties Subsequent to Closing. Subsequent to the closing of this
Agreement, Shareholders or Funnel shall :
1. Complete and pay for all necessary audits to allow
filing of financial statements required by Form 8-K
within sixty (60) days of the date of the acquisition,
to allow for the required amendment of Form 8-K within
60 days of its original filing to include required
financial statements. The cost of acquiring said
financial statements shall be the sole responsibility of
Cyber, Funnel or Shareholders; and
2. Within sixty days Funnel shall provide audited financial
statements complying with the requirements of GAAP
(U.S.) for filing with the Cyber Form 8-K.
IV Warranties and Representations of Cyber. In order to induce
Shareholders to enter into the Agreement and to complete the
transaction contemplated hereby, Cyber warrants and represents to
Shareholders that:
A Organization and Standing. Cyber is a corporation duly organized,
validly existing and in good standing under the laws of the state
of Nevada, is qualified to do business as a foreign corporation in
every other state in
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which it operates to the extent required by the laws of such
states, and has full power and authority to carry on its business
as now conducted and to own and operate its assets, properties,
and business.
B No Pending Actions. There are no legal actions, lawsuits,
proceedings or investigations, either administrative or judicial,
pending or threatened, against or affecting Cyber, or against any
of Cyber's officers or directors and arising out of their
operation of Cyber, except as set forth in its audited financial
statements as attached hereto. Cyber has been in compliance with,
and has not received notice of violation of any law, ordinance, or
regulation of any kind whatever, including, but not limited to,
the '33 Act, the '34 Act, the Rules and Regulations of the SEC or
the Securities Laws and Regulations of any state.
C Corporate Records. All of Cyber's books and records, including
without limitation, its book of account, corporate records, minute
book, stock certificate books and other records are up-to-date,
complete, and reflect accurately and fairly the conduct of its
business in all respects since its date of incorporation.
D No Misleading Statements or Omissions. Neither the Agreement nor
any financial statement, exhibit, schedule, or document attached
hereto or presented to Shareholders in connection herewith
contains any materially misleading statement, or omits any fact or
statement necessary to make the other statements of facts therein
set forth not materially misleading.
E Validity of the Agreement. All corporate action and proceedings
required to be taken by Cyber in order to enter into and to carry
out the Agreement have been duly and properly taken. The Agreement
has been duly executed by Cyber, and constitutes a valid and
binding obligation of Cyber. The execution and delivery of the
Agreement and the carrying out of its purposes will not result in
the breach of any of the terms or conditions of, or constitute a
default under or violate, Cyber's Certificate of Incorporation or
By-Laws, or any agreement, lease, mortgage, bond, indenture,
license or other document or undertaking, oral or written, to
which Cyber is a party or is bound or may be affected, nor will
such execution, delivery and carrying out violate any order, writ,
injunction, decree, law, rule or regulation of any court
regulatory agency or other governmental body.
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F Enforceability of the Agreement. When duly executed and delivered,
the Agreement and the Exhibits hereto which are incorporated
herein and made a part hereof are legal, valid, and enforceable by
Shareholders according to their terms, and that at the time of
such execution and delivery, Shareholders will have acquired good,
marketable title in and to the Cyber Shares acquired pursuant
hereto, free and clear of all liens and encumbrances.
G Outstanding Shares of Cyber. At closing, Cyber shall have
2,042,000 issued and outstanding common shares, par value $0.001,
par value $0.001.
V Opinion of Counsel. Cyber will provide to Shareholders an opinion of
counsel in a form similar to that set forth in Exhibit "B" relating to
the current corporate status of Cyber , its ability to legally enter
this agreement and the absence of undisclosed claims.
VI Term. All representations, warranties, covenants and agreements made
herein and in the exhibits attached hereto shall survive the execution
and delivery of the Agreement and payment pursuant thereto.
VII The Common Shares. All of the Cyber Common Shares shall be validly
issued, fully-paid and non-assessable shares of Cyber Common Stock,
with full voting rights, dividend rights, and the right to receive the
proceeds of liquidation, if any, as set forth in Cyber's Articles of
Incorporation.
VIII Conditions Precedent to Closing.
The obligations of Shareholders under the Agreement shall be and are
subject to fulfillment, prior to or at the Closing of each of the
following conditions:
o That Cyber and its management's representations and
warranties contained herein shall be true and correct at
the time of closing date as if such representations and
warranties were made at such time;
o That Cyber and its management shall have performed or
complied with all agreements, terms and conditions
required by the Agreement to be performed or complied
with by them prior to or at the time of Closing;
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IX The obligations of Cyber under the Agreement shall be and are subject
to fulfillment, prior to Closing, at the Closing, or subsequent to the
Closing of each of the following conditions:
A That Shareholders's representations and warranties contained
herein shall be true and correct at the time of Closing as if such
representations and warranties were made at such time; and
B That Shareholders shall have performed or complied with all
agreements, terms and conditions required by the Agreement to be
performed or complied with by it prior to or at the time of
Closing.
C That Shareholders and Cyber jointly and severally indemnify and
hold harmless Cyber and its present and former officers,
directors, agents and affiliates against any claims or
liabilities, including reasonable attorney's fees and other
reasonable defense costs incurred in defending such claims or
liabilities, resulting from any claims or liabilities asserted
against them as to any material misrepresentation or omissions in
the Agreement made by any party hereto.
D That Funnels's compliance with state statutory and regulatory
requirements are legally sufficient to authorize and carry out the
terms of this Agreement.
X Termination. The Agreement may be terminated at any time before or; at
Closing, by:
o The mutual agreement of the parties;
o Any party if:
1 Any provision of the Agreement applicable to a party
shall be materially untrue or fail to be accomplished.
2 Any legal proceeding shall have been instituted or shall
be imminently threatening to delay, restrain or prevent
the consummation of the Agreement.
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Upon termination of the Agreement for any reason, in accordance with
the terms and conditions set forth in this paragraph, each said party
shall bear all costs and expenses as each party has incurred and no
party shall be liable to the other.
XI Exhibits. All Exhibits attached hereto are incorporated herein by this
reference as if they were set forth in their entirety.
XII Miscellaneous Provisions. This Agreement is the entire agreement
between the parties in respect of the subject matter hereof, and there
are no other agreements, written or oral, nor may the Agreement be
modified except in writing and executed by all of the parties hereto.
The failure to insist upon strict compliance with any of the terms,
covenants or conditions of the Agreement shall not be deemed a waiver
or relinquishment of such right or power at any other time or times.
XIII Closing. The closing of the transactions contemplated by the Agreement
shall take place on or before 5:00 P.M. on February ___, 2003. The
Closing shall occur at the offices of Xxxxxx X. Xxxxx, Attorney at Law,
located at 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000 or such other
date and place as the parties hereto shall agree upon. At the Closing,
all of the documents and items referred to herein shall be exchanged.
XIV Governing Law. The Agreement has been entered into in and shall be
governed by and construed in accordance with the laws of the State of
Utah.
XV Enforcement of Agreement and Venue. The parties agree that any suit to
enforce the provisions of this Agreement shall be brought in the Third
Judicial District Court of Salt Lake County, State of Utah, and the
parties consent to personal jurisdiction in said court and agree that
venue for any suit to enforce the provisions of this Agreement shall be
in Salt Lake County, State of Utah.
XVI Counterparts. The Agreement may be executed in duplicate facsimile
counterparts, each of which shall be deemed an original and together
shall constitute one and the same binding Agreement, with one
counterpart being delivered to each party hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the date and year above first written.
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Cyberexcellence, Inc. Funnel Cloud, Inc.
By: /s/ F. Xxxxxx XxXxxxxx By: /s/ Xxxxx XxXxxxx
------------------------------------- ----------------------------------
F. Xxxxxx XxXxxxxx, its President Xxxxx XxXxxxx, its President
SHAREHOLDERS
/s/ Xxxxx XxXxxxx /s/ F. Xxxxxx XxXxxxxx
------------------------------------- ----------------------------------
Xxxxx XxXxxxx F. Xxxxxx XxXxxxxx
/s/ Xxxxxxx X. Xxx /s/ Xxxxx Xxxxxxxxxx
-------------------------------------- ----------------------------------
Xxxxxxx X. Xxx Xxxxx Xxxxxxxxxx
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