REORGANIZATION AGREEMENT AND PLAN OF EXCHANGE
AMONG:
XXXXXXXXXXXX.XXX, INC.,
INTERNET VENTURE GROUP, INC.
AND CERTAIN SHAREHOLDERS OF XXXXXXXXXXXX.XXX, INC.
EFFECTIVE AS OF JULY 15, 2000
REORGANIZATION AGREEMENT AND PLAN OF EXCHANGE
This Reorganization Agreement and Plan of Exchange ("Agreement") is
entered into to be effective as of August 15, 2000, by and among Internet
Venture Group, Inc., a Florida corporation ("IVG"), whose address is 0000 X. Xxx
Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, XxxxxXxxxxxx.xxx, Inc. a Texas
corporation ("Cyber"),whose address is 0000 X. Xxx Xxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, XX 00000, and those shareholders of Cyber whose names are set forth on
the signature pages hereof (the "Cyber Stockholders").
RECITALS:
A. This Agreement contemplates a tax-free reorganization pursuant to
Internal Revenue Code ss. 368(a)(1)(A).
B. The Cyber Stockholders will receive capital stock in IVG in exchange
for all or portion of their capital stock in Cyber.
C. The Parties hereinafter defined expect that the reorganization will
further certain of their business objectives including, without limitation, the
expansion of the markets for their products and services, enhancement of the
scope of services available from the reorganized corporation and the reduction
of the aggregate overhead and general and administrative expenses of IVG and
Cyber.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. DEFINITIONS.
"Act" means the Texas Business Corporation Act.
"Closing" has the meaning set forth in Section 2(B) below.
"Closing Date" has the meaning set forth in Section 2(B) below.
"Confidential Information" means any information concerning the
businesses and affairs of Cyber and IVG, respectively, that is not
already generally available to the public.
"Effective Date" has the meaning set forth in Section 2(B)(ii) below.
"Effective Time" has the meaning set forth in Section 2(D)(i) below.
"Exchange" has the meaning set forth in Section 2(A) below.
"IVG" has the meaning set forth in the preface above.
"IVG Share" means any share of the common stock, $0.0001 par value per
share, of IVG.
"IVG Stockholders" means any Person who or which holds any IVG Shares.
"Cyber" has the meaning set forth in the preface above.
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"Cyber Share" means any share of the common stock, no par value, of
Cyber.
"Cyber Stockholder" has the meaning set forth in the introductory
paragraph above.
"IRS" means the Internal Revenue Service.
"Knowledge" means actual knowledge after reasonable investigation.
"Memorandum" means the Confidential Disclosure Memorandum of IVG dated
as of September 30, 2000
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to
quantity and frequency).
"Party" means, respectively, IVG, Cyber, or any Cyber Stockholders.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"Securities Act" means the Securities Act of 1933, as amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's,
materialmen's, and similar liens, (b) liens for taxes not yet due and
payable or for taxes that the taxpayer is contesting in good faith
through appropriate proceedings, (c) purchase money liens and liens
securing rental payments under capital lease arrangements, and (d)
other liens arising in the Ordinary Course of Business and not incurred
in connection with the borrowing of money.
2. BASIC TRANSACTION.
A. THE EXCHANGE.
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(i) Each of the Cyber Stockholders who is not a officer or
director of Cyber shall have the right to exchange up to 100%
of such Cyber Stockholders' Cyber Shares to IVG. The exchange
ratio for such Cyber Stockholders will be 1.25 IVG shares for
each Cyber Share.
(ii) The officers and directors of Cyber, and certain Cyber
Stockholders who received their Cyber Shares as founder's
shares or in consideration for services rendered, (as set
forth on Exhibit B attached hereto) shall have the right to
exchange their Cyber Shares as follows:
(a) The exchange ratio for such Cyber Stockholders will be 1.0 IVG
Share for each Cyber Share.
Xxxxxx Xxxx shall be eligible to exchange up to 1,000,000 Cyber Shares,
Xx Xxxxxx shall be eligible to exchange up to 400,000 Cyber Shares and Xxxxx
Courts shall be eligible to exchange up to 100,000 Cyber Shares.
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(iii) In the event that any Cyber Stockholder fails or refuses to
exchange any portion of his or her eligible Cyber Shares, (a
"Declining Cyber Stockholder"). Xxxxxx Xxxx shall have the
right to increase the total number of Cyber Shares that he is
eligible to exchange by an amount equal to the number of Cyber
Shares withheld by such Cyber Stockholder. The exchange ratio
available to Xx. Xxxx in such event shall be the exchange
ratio applicable to such Declining Cyber Stockholder.
(iv) The total number of IVG Shares that IVG shall be obligated to
exchange for the Cyber Shares shall be 2,372,200.
In no event shall the Cyber Stockholders have the right to exchange
more than 2,221,200 Cyber Shares in the aggregate.
(v) On or before the Closing Date, and subject to the terms and
conditions of this Agreement, a final determination of the
number of IVG shares to be delivered to each Cyber Stockholder
shall be made, each of the Cyber Stockholders shall deliver to
IVG the number of Cyber Shares owned by such Cyber Stockholder
set forth on Exhibit "A" attached hereto and shall receive in
exchange the number of IVG Shares set forth on Exhibit "B"
attached hereto. With regard to the IVG Shares to be issued in
the Exchange, the Parties agree as follows:
(a) The IVG Shares have not been registered under the Securities Act
and so shall be subject to restrictions on their transfer;
(b) The certificates representing the IVG Shares to be issued to the
Cyber Stockholders shall bear a legend setting forth the restrictions
applicable thereto;
(c) IVG has made no representation to the Cyber Stockholders regarding
the current or prospective value of the IVG Shares.
B. THE CLOSING / EFFECTIVE DATE.
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(i) The closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of IVG in
Houston, Texas, commencing at 9:00 a.m. local time on the
first business day following the satisfaction or waiver of all
conditions to the obligations of the Parties to consummate the
transactions contemplated hereby (other than conditions with
respect to actions the respective Parties will take at the
Closing itself) or such other date as the Parties may mutually
determine (the "Closing Date").
(ii) Regardless of the actual date of the Closing, the transactions
contemplated by this Agreement shall be effective as of 12:01
A.M. on July 15, 2000 ("Effective Date").
C. ACTIONS AT THE CLOSING. At the Closing:
--------------------------
(i) IVG shall issue to the Cyber Stockholders a total of 2,372,200
IVG Shares in exchange for the Cyber Shares, to be allocated
among the Cyber Stockholders as set forth on Exhibits "A" and
"B" attached hereto.
(ii) Cyber and the Cyber Stockholders will deliver to IVG the
various certificates, instruments, and documents referred to
in Section 6(A) below;
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(iii) IVG will deliver to the Cyber Stockholders the various
certificates, instruments, and documents referred to in
Section 6(B) below; and
D. EFFECT OF EXCHANGE.
----------------------
(i) The Exchange shall become effective at the time (the
"Effective Time") that IVG and Cyber file the Articles of
Exchange with the Secretary of State of the State of Texas,
and the Exchange shall have such other and additional effects
as are set forth in the Act.
(ii) Each IVG Share issued and outstanding at and as of the
Effective Time will remain issued and outstanding.
3. REPRESENTATIONS AND WARRANTIES OF CYBER AND THE CYBER STOCKHOLDERS
Cyber, and the Cyber Stockholders (with regard to the following
representations and warranties that are applicable to the Cyber Stockholders),
represent and warrant to IVG that the statements contained in this Section 3
are, to the best of each representing Party's actual current knowledge, correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this Section 3). Any
provision of this Agreement to the contrary notwithstanding, (i) Cyber makes no
representation or warranty for or on behalf of any Cyber Stockholder and IVG
hereby disclaims any reliance on any representation or warranty regarding any
particular Cyber Stockholder except as specifically set forth herein as made by
such Cyber Stockholder; and (ii) no Cyber Stockholder makes any representation
or warranty for or on behalf of Cyber, and IVG hereby disclaims any reliance on
any representation or warranty regarding Cyber except as specifically set forth
herein as made by Cyber.
A. ORGANIZATION, QUALIFICATION, AND CORPORATE POWER. Cyber is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Texas. Cyber is duly authorized to conduct business and is
in good standing under the laws of each jurisdiction where such qualification is
required. Cyber has full corporate power and authority to carry on the
businesses in which it is engaged and to own and use the properties owned and
used by it.
B. CAPITALIZATION. The entire authorized capital stock of Cyber
consists of 10,000,000 Cyber Shares, of which 6,826,200 Cyber Shares are issued
and outstanding. All of the issued and outstanding Cyber Shares have been duly
authorized and are validly issued, fully paid, and nonassessable. Except as set
forth on Schedule 3(b) there are no outstanding or authorized options, warrants,
purchase rights, subscription rights, conversion rights, exchange rights, or
other contracts or commitments that could require Cyber to issue, sell, or
otherwise cause to become outstanding any of its capital stock. There are no
outstanding or authorized stock appreciation, phantom stock, profit
participation, or similar rights with respect to Cyber.
C. AUTHORIZATION OF TRANSACTION. The Board of Directors of Cyber have
approved this Agreement and the Exchange through resolutions adopted by
unanimous written consent in accordance with the applicable provisions of the
Act. Cyber has full power and authority (including full corporate power and
authority) to execute and deliver this Agreement and to perform its obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of Cyber, enforceable in accordance with its terms and conditions.
D. NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which any of Cyber and the Cyber Stockholders
are subject or any provision of the charter or bylaws of any of Cyber, or (ii)
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conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument or other arrangement to which Cyber and/or the Cyber Stockholders is
a party or by which it is bound or to which any of its assets is subject (or
result in the imposition of any Security Interest upon any of its assets) and,
other than in connection with the provisions of the Act, none of Cyber and the
Cyber Stockholders needs to give any notice to, make any filing with, or obtain
any authorization, consent, or approval of any government or governmental agency
in order for the Parties to consummate the transactions contemplated by this
Agreement.
E. UNDISCLOSED LIABILITIES. Except as disclosed on Schedule 3(E)
attached hereto and captioned "Cyber Liabilities," Cyber has no liability,
including any liability for taxes, except for (i) liabilities set forth on the
face of the balance sheet dated as of the most recent fiscal quarter end (rather
than in any notes thereto) and (ii) liabilities which have arisen after the most
recent fiscal quarter end in the Ordinary Course of Business (none of which
results from, arises out of, relates to, is in the nature of, or was caused by
any breach of contract, breach of warranty, tort, infringement, or violation of
law).
F. BROKERS' FEES. None of Cyber and the Cyber Stockholders has any
liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement.
G. CONTINUITY OF BUSINESS ENTERPRISE. Cyber operates at least one
significant historic business line, or owns at least a significant portion of
its historic business assets, in each case within the meaning of IRS Regulations
Section 1.368-1(d).
H. DISCLOSURE. Any materials describing (i) the Exchange, (ii) IVG and
its personnel and business operations, and (iii) the IVG Shares to be given in
the Exchange, provided to the Cyber Stockholders by Cyber, do not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made therein, in the light of the circumstances
under which they will be made, not misleading; PROVIDED, HOWEVER, that neither
Cyber nor any Cyber stockholder makes any representation or warranty with
respect to any information that IVG will supply specifically for use in such
materials.
I . CLEAR TITLE/AUTHORITY. The Cyber Stockholders have clear title to
the Cyber Shares conveyed to IVG hereunder, unencumbered by any lien, claim or
interest in favor of any Person. The Cyber Stockholders have made no prior
conveyance, assignment, or other transfer of their respective right, title, or
interest in the Cyber Shares to any Person. Each of the Cyber Stockholders has
all necessary right, title, and authority to convey such Cyber Stockholder's
Cyber Shares to IVG without the necessity of any consent, release, or other
authorization from any Person.
J. CYBER LITIGATION. Except as disclosed on Schedule 3(J) attached
hereto and captioned "Cyber Litigation," Cyber is not a party to any litigation
in any municipal, county, state, or federal court, and no judgment against Cyber
is existing and unsatisfied as of the Closing Date. The Cyber Stockholders,
individually and collectively, are not parties to any litigation in any
municipal, county, state, or federal court in which any creditor of Cyber seeks
to impose individual liability on any Cyber Stockholder based on piercing the
corporate veil or disregarding the corporate identity of Cyber or in which any
Cyber Stockholders' title to or authority to transfer and exchange the Cyber
Shares is contested; and no judgment is existing and unsatisfied that recognizes
any right, title, or interest in and to any of the Cyber Shares on the part of
any Person who is not a Cyber Stockholder, imposes any trust, escrow,
sequestration, or other actual or constructive impoundment upon any of the Cyber
Shares, or that negates, qualifies, or conditions the authority of any Cyber
Stockholder to transfer and exchange the Cyber Shares.
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K. CYBER ASSET DISPOSITIONS. Except as disclosed on Schedule 3(K)
attached hereto and captioned "Cyber Asset Dispositions," there have been no
dispositions by Cyber of any material assets owned by Cyber as of June 30, 2000,
except in the Ordinary Course of Business, and Cyber has made no reduction in
the book value of any of its assets except to reflect depreciation per the
depreciation schedule applied to such assets.
L. CYBER CLIENT CONTRACTS. Except as disclosed on Schedule 3(L)
attached hereto and captioned "Cyber Contract Terminations," none of the
material contracts to which Cyber was a party as of June 30, 2000 have been
canceled or terminated as of the Closing Date.
M. CYBER PERSONNEL. Except as disclosed on Schedule 3(M) attached
hereto and captioned "Cyber Personnel," there has been no change in the
identity, compensation, benefits, or duties and responsibilities of Cyber's
professional and support personnel who were employed by Cyber as of June 30,
2000.
N. CYBER DEFAULTS. Cyber has not received notice from any person
advising Cyber that it is in default under any material contract, agreement,
judgment, administrative order, or other obligation of any nature to which it is
a party or by which it is bound, the default of which would have a material
adverse effect on Cyber.
4. REPRESENTATIONS AND WARRANTIES OF IVG
IVG represents and warrants to Cyber and the Cyber Stockholders that
the statements contained in this Section 4 are correct and complete as of the
date of this Agreement and will be correct and complete as of the Closing Date
(as though made then and as though the Closing Date were substituted for the
date of this Agreement throughout this Section 4).
A. ORGANIZATION. IVG is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Florida. IVG is duly
authorized to conduct business and is in good standing under the laws of each
jurisdiction where such qualification is required. IVG has full corporate power
and authority to carry on the business in which it is engaged and to own and use
the properties owned and used by it.
B. CAPITALIZATION. The entire authorized capital stock of the IVG
consists of 300,000,000 IVG Shares, of which 41,602,819 IVG Shares are issued
and outstanding as of the Effective Date. All of the IVG Shares to be issued in
the Exchange have been duly authorized and, upon consummation of the Exchange,
will be validly issued, fully paid, and nonassessable.
C. AUTHORIZATION OF TRANSACTION . The Board of Directors of IVG and to
the extent required by applicable law, the IVG Stockholders, have approved this
Agreement and the Exchange by unanimous written consents taken in accordance
with the provisions of the Act. IVG has full power and authority (including full
corporate power and authority) to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement constitutes the valid and
legally binding obligation of IVG, enforceable in accordance with its terms and
conditions.
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D. NONCONTRAVENTION. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which IVG is subject or any provision of the
charter or bylaws of IVG or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument or other arrangement
to which IVG is a party or by which it is bound or to which any of its assets is
subject (or result in the imposition of any Security Interest upon any of its
assets) and, other than in connection with the provisions of the Act, IVG does
not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated by this
Agreement.
E. UNDISCLOSED LIABILITIES. Except as disclosed in the Memorandum
and/or IVG's Form 10Q for the period ending September 30, 2000, a copy of which
has been provided to each of the Cyber Stockholders, IVG has no liability except
liabilities which have arisen in the Ordinary Course of Business (none of which
results from, arises out of, relates to, is in the nature of, or was caused by
any breach of contract, breach of warranty, tort, infringement, or violation of
law).
F. BROKERS' FEES. IVG does not have any liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which Cyber and the Cyber
Stockholders could become liable or obligated.
G. CONTINUITY OF BUSINESS ENTERPRISE. It is the present intention of
IVG to continue at least one significant historic business line of Cyber, or to
use at least a significant portion of Cyber's historic business assets in a
business, in each case within the meaning of IRS Regulation Section 1.368-1(d).
H. DISCLOSURE. Any materials concerning (i) the Exchange, (ii) Cyber
and its business operations, and (iii) the Cyber Shares, provided to the IVG
Stockholders by IVG, do not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they will be made, not
misleading; PROVIDED, HOWEVER, that IVG makes no representation or warranty with
respect to any information that Cyber and the Cyber Stockholders will supply
specifically for use in such materials.
I. CLEAR TITLE. IVG has clear title to the IVG Shares that will be
delivered to the Cyber Stockholders hereunder, and such IVG Shares shall be
delivered free and clear of any lien, claim or interest in favor of any Person.
IVG has made no prior conveyance, assignment, or other transfer of any right,
title or interest in the IVG Shares to any Person.
J. IVG LITIGATION. Except as disclosed in the Memorandum and/or IVG's
Form 10Q for the period ending September 30, 2000, a copy of which has been
provided to each of the Cyber Shareholders, IVG is not a party to any litigation
in any municipal, county, state, or federal court, and no judgment against IVG
is existing and unsatisfied as of the Closing Date. There is no pending
litigation or existing, unsatisfied judgment in which any creditor of IVG seeks
to impose individual liability on any IVG Stockholder based on piercing the
corporate veil or disregarding the corporate identity of IVG or in which IVG's
title to or authority to transfer the IVG Shares is contested or that recognizes
any right, title or interest in and to any of the IVG Shares on the part of any
Person who is not a IVG Stockholder, imposes any trust, escrow, sequestration,
or other actual or constructive impoundment upon any of the IVG Shares, or that
negates, qualifies, or conditions the authority of IVG to transfer and exchange
the IVG Shares.
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K. IVG ASSET DISPOSITIONS. Except as disclosed in the Memorandum and/or
IVG's Form 10Q for the period ending September 30, 2000, a copy of which has
been provided to each of the Cyber Shareholders, there have been no dispositions
by IVG of any assets owned by IVG as of June 30, 2000 except in the Ordinary
Course of Business, and IVG has made no reduction in the book value of any of
its assets except to reflect depreciation per the depreciation schedule applied
to such assets.
L. IVG CLIENT CONTRACTS. Except as disclosed in the Memorandum and/or
IVG's Form 10Q for the period ending September 30, 2000, a copy of which has
been provided to each of the Cyber Shareholders, none of the material contracts
to which IVG was a party as of June 30, 2000 have been canceled or terminated as
of the Closing Date.
M. IVG PERSONNEL. Except as disclosed in the Memorandum and/or IVG's
Form 10Q for the period ending September 30, 2000, a copy of has been provided
to each of the Cyber Shareholders, there has been no change in the identity,
compensation, benefits, or duties and responsibilities of IVG's professional and
support personnel who were employed by IVG as of June 30, 2000.
N. IVG DEFAULTS. IVG has not received notice from any person advising
it that it is in default under any material contract, agreement, judgment,
administrative order or other obligation of any nature to which IVG is a party
or by which IVG is bound, the default of which would have a material adverse
effect on IVG.
5. COVENANTS
The Parties agree as follows with respect to the period from and after
the execution of this Agreement:
A. GENERAL. Each of the Parties will use its best efforts to take all
action and to do all things necessary in order to consummate and make effective
the transactions contemplated by this Agreement (including satisfaction, but not
waiver, of the closing conditions set forth in Section 6 below).
B. OPERATION OF BUSINESS. IVG and Cyber will not engage in any
practice, take any action, or enter into any transaction outside the Ordinary
Course of Business as conducted by them respectively.
C. FULL ACCESS. IVG and Cyber will permit representatives of any Party
to have full access to all of their respective premises, properties, personnel,
books, records (including tax records), contracts, and documents of or
pertaining to each of IVG and Cyber. Each Party will treat and hold any
information it receives from the IVG or Cyber in the course of the reviews
contemplated by this Section 5(C) as Confidential Information, will not use any
of the Confidential Information except in connection with this Agreement, and,
if this Agreement is terminated for any reason whatsoever, such party hereby
agrees to return to IVG or Cyber, as applicable, all tangible embodiments (and
all copies) thereof which are in its possession.
D. NOTICE OF DEVELOPMENTS. Each Party will give prompt written notice to
the other of any material adverse development causing a breach of any of its own
representations and warranties above. No disclosure by any Party pursuant to
this Section 5(D), however, shall be deemed to prevent or cure any
misrepresentation, breach of warranty, or breach of covenant.
E. CONTINUITY OF BUSINESS ENTERPRISE. IVG will continue at least one
significant historic business line of Cyber, or use at least a significant
portion of Cyber's historic business assets in a business, in each case within
the meaning of IRS Regulation Section 1.368-1(d).
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6. CONDITIONS ON THE PARTIES' OBLIGATIONS TO CLOSE
A. CONDITIONS TO OBLIGATION OF IVG. The obligation of IVG to consummate
the transactions to be performed by it in connection with the Closing is subject
to satisfaction of the following conditions:
(i) If applicable, this Agreement and the Exchange shall have
received the approval of the the number of Cyber Stockholders
whose consent is required to approve the transactions
contemplated hereunder under the terms of the Act;
(ii) the representations and warranties set forth in Section 3
above shall be true and correct in all material respects at
and as of the Closing Date;
(iii) Cyber and the Cyber Stockholders shall have performed
and complied with all of their covenants hereunder in all
material respects through the Closing;
(iv) No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would
(A) prevent consummation of any of the transactions
contemplated by this Agreement, or (B) cause any of the
transactions contemplated by this Agreement to be rescinded
following consummation;
(v) Cyber shall have delivered to IVG a certificate to the
effect that each of the conditions imposed upon Cyber as
specified above in Section 6(A)(i)-(iv) is satisfied in all
respects;
(vi) all actions to be taken by Cyber and the Cyber
Stockholders in connection with the consummation of the
transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect
the transactions contemplated hereby will be satisfactory in
form and substance to IVG; and
IVG may waive any condition specified in this Section 6(A) if it
executes a writing so stating at or prior to the Closing.
B. CONDITIONS TO OBLIGATION OF CYBER. The obligation of Cyber and the
Cyber Stockholders to consummate the transactions to be performed by it in
connection with the Closing is subject to satisfaction of the following
conditions:
(i) this Agreement and the Exchange shall have received the
approval of the IVG Stockholders to the extent, and only to
the extent, that such approval is required under the terms of
the Florida business Corporations Act;
(ii) the representations and warranties set forth in Section 4
above shall be true and correct in all material respects at
and as of the Closing Date;
(iii) IVG shall have performed and complied with all of its
covenants hereunder in all material respects through the
Closing;
(iv) No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would
(A) prevent consummation of any of the transactions
contemplated by the Agreement, or (B) cause any of the
transactions contemplated by this Agreement to be rescinded
following consummation;
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(v) IVG shall have delivered to Cyber a certificate to the
effect that each of the conditions specified above in Section
6(B)(i)-(iv) is satisfied in all respects;
(vi) all actions to be taken by IVG in connection with the
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will
be satisfactory in form and substance to Cyber; and
Cyber may waive any condition specified in this Section 6(B) if it
executes a writing so stating at or prior to the Closing.
7. TERMINATION
A. TERMINATION OF AGREEMENT. Either of Cyber and IVG may terminate this
Agreement with the prior authorization of its respective Board of Directors
(whether before or after stockholder approval) as provided below:
(i) the Parties may terminate this Agreement by mutual written
consent at any time prior to the Effective Time;
(ii) IVG may terminate this Agreement by giving written notice
to Cyber at any time prior to the Effective Time in the event
that Cyber or the Cyber Stockholders have breached any
material representation, warranty, or covenant contained in
this Agreement in any material respect, IVG has notified the
breaching Party of the breach, and the breach has continued
without cure for a period of 7 days after the notice of
breach;
(iii) Cyber may terminate this Agreement by giving written
notice to IVG at any time prior to the Effective Time in the
event that IVG has breached any material representation,
warranty, or covenant contained in this Agreement in any
material respect, Cyber has notified IVG of the breach, and
the breach has continued without cure for a period of 7 days
after the notice of breach; or
(iv) Any Party may terminate this Agreement in the event that
this Agreement and the Exchange are not approved by its
respective Stockholders in accordance with applicable law.
B. EFFECT OF TERMINATION. If any Party terminates this Agreement
pursuant to Section 7(A) above, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to any other Party
(except for any liability of any Party then in breach); PROVIDED, HOWEVER, that
the confidentiality provisions contained in Section 5(C) above shall survive any
such termination.
8. MISCELLANEOUS.
A. SURVIVAL. None of the representations, warranties, and covenants of
the Parties (other than the provisions in Section 2 above concerning issuance of
the IVG Shares) will survive the Effective Time.
B. NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns; PROVIDED, HOWEVER, that the provisions in
Section 2 above concerning issuance of the IVG Shares are intended for the
benefit of the Cyber Stockholders.
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C. ENTIRE AGREEMENT. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, or representations by or between the
Parties, written or oral, to the extent they relate in any way to the subject
matter hereof.
D. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party.
E. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
F. HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
H. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if it is sent by
registered or certified mail, return receipt requested, postage prepaid, or by
messenger delivery, and addressed to the intended recipient as set forth below,
and such notice shall be effective as of the second day following the date of
mailing (with regard to notice transmitted by certified mail) or as of the date
actually received by the Party to whom it is addressed (with regard to notice
transmitted by messenger delivery):
IF TO CYBER:
Cyber's address as set forth in the first paragraph above.
IF TO IVG:
IVG's address as set forth in the first paragraph above.
IF TO THE CYBER STOCKHOLDERS:
The addresses of the Cyber Stockholders as set forth opposite their
signature lines in attached Exhibit A.
Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
I. GOVERNING LAW. THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
J. AMENDMENTS AND WAIVERS. The Parties may mutually amend any provision
of this Agreement at any time prior to the Effective Time with the prior
authorization of their respective Boards of Directors; PROVIDED, HOWEVER, that
any amendment effected subsequent to stockholder approval will be subject to the
restrictions contained in the Act. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by all
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of the Parties. 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.
K. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
L. EXPENSES. Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby.
M. INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
*****
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
IVG, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------------------
Xxxxxxx Xxxxxxx
Title: President
--------------------------------------------------
XXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxx
-----------------------------------------------------
Title: President
---------------------------------------------------
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