EXHIBIT 10.9
PLAN OF MERGER
THIS PLAN OF MERGER (the "Agreement"), entered into this 22th day of August
2004, by and among Cyber Defense Systems, Inc., a corporation organized pursuant
to the laws of the State of Florida ("Cyber/Fla") and On Alert Systems, Inc., a
corporation organized pursuant to the laws of the State of Nevada ("OASI").
W I T N E S S E T H :
WHEREAS, the Parties agree that it would be in their respective best
interests to merge.
N O W T H E R E F O R E ,
In consideration of the representations, warranties, covenants, and
agreements herein contained, which are given by each Party to the other Parties
in order to induce them to enter into this Agreement, and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties hereto, each intending to be legally bound hereby,
agree as follows:
ARTICLE I
MERGER OF OASI INTO CYBER/FLA
Section 1.1 Effective Date.
This merger shall become effective (the "Effective Date") on the day set
forth in the Certificates of Merger to be filed with the Secretaries of the
State of Florida and Nevada by the Parties as soon as practicable after this
Agreement is signed.
Section 1.1 Merger; Terms and Conditions Thereof.
(a) On or before or as of or as at the Effective Date, the following shall have
been done:
(i) Cyber/Fla and OASI shall have obtained approval for this Agreement and
thetransactions described herein by their respective Boards of Directors and
Shareholders, if necessary, pursuant to the applicable provisions of the Laws of
the States of Florida andNevada;
(ii) OASI shall merge into Cyber/Fla, and OASI shall cease to exist;
(iii) Cyber/Fla shall thereupon and thereafter possess, and be the owner
of, all the rights, privileges, powers, franchises, patents, trademarks,
licenses, and other assets and accounts receivable of every kind and description
of OASI, and Cyber/Fla shall be subject to all the restrictions, disabilities,
and duties of OASI with respect thereto; all debts, liabilities, duties, and
1
obligations of OASI, including obligations of OASI with respect to holders of
securities of OASI shall be vested in Cyber/Fla; all property, real, personal or
mixed, and all debts and obligation due to OASI on whatever account shall be
vested in Cyber/Fla; and all rights of creditors and all liens upon any property
of OASI shall be preserved unimpaired;
(iv) If, at any time after the Effective Date, Cyber/Fla shall consider or
be advised that any further assignments or assurances and law or any other acts
are necessary or desirable (x) to vest, perfect or confirm, of record or
otherwise, in Cyber/Fla, title to and possession of any property or right of
OASI acquired or to be acquired by reason of, or in connection with, this
Merger, or (y) otherwise to carry out the purposes of this Merger, then (z) OASI
and its officers and directors shall be deemed to have granted to Cyber/Fla an
irrevocable power of attorney to execute and deliver all such proper deeds,
assignments, and assurances in law, and to do all acts necessary or proper to
vest, perfect or confirm title to and possession of such property or rights in
Cyber/Fla addition and otherwise to carry out the purposes of this Merger; and
the proper officers and directors of Cyber/Fla are fully authorized in the name
of OASI otherwise to take any and all such action(s);
(v) For each one share of each Class of Common Stock of OASI held by the
Beneficial Owner thereof as at a Record Date to be established by Cyber/Fla as
soon as practicable before the Effective Date of the Merger, the Beneficial
Owner thereof shall be entitled to receive one share of each corresponding Class
of the Common Stock of Cyber/Fla;
(vi) With respect to all other Issued and Outstanding securities of OASI
(as the term "security" is defined in the Securities Act of 1933, as amended),
each Holder thereof (as at a Record Date to be established by Cyber/Fla as soon
as practicable before the Effective Date of the Merger) shall be entitled to
receive an identical security of Cyber/Fla equal in dignity and rank;
(vii) Until surrendered and exchanged as herein provided, each outstanding
certificate which, prior to the Effective Date, represented shares of OASI
securities, shall be deemed for all purposes to evidence ownership of the
appropriate number of shares of securities of Cyber/Fla into which OASI
securities shall have been so converted;
(viii) Subject to sub-section (vii), above, each Holder of a certificate
representing issued and outstanding shares of securities of OASI immediately
prior to the Effective Date of the Merger, shall, upon surrender of such
certificate to Cyber/Fla after the Effective Date, be entitled to receive a
certificate representing the appropriate number of shares of securities of
Cyber/Fla as described above; and
(ix) If any certificate representing a Cyber/Fla security is to be issued
in a name other than that in which the certificate surrendered is registered, it
shall be a condition of such issuance that the certificate so surrendered shall
be properly endorsed or otherwise in proper form for transfer and that the
person requesting such issuance shall either pay to Cyber/Fla or its transfer
agent any transfer or other taxes required by reason of the issuance of
certificates representing a Cyber/Fla security in a name other than that of the
registered holder of the certificate surrendered, or establish to the
satisfaction of Cyber/Fla or its transfer agent that such tax has been paid or
is not applicable.
ARTICLE II
JOINT & COLLECTIVE REPRESENTATIONS AND WARRANTIES
OF THE PARTIES
In order to induce the other Party to enter into this Agreement, each Party
makes the following representations and warranties to the other Party.
2
Section 2.1. Authority.
(a) Each Party
(i) has full power and authority to enter into, deliver and perform this
Agreement; and
(ii) neither the execution, delivery, consummation or performance of this
Agreement
(A) requires the approval or consent of, or notice to, any third
party;
(B) violates any law, regulation or agreement to which it is subject;
or
(C) violates, conflicts with or would result in the breach or
termination of, or otherwise give any other contracting party the right to
terminate, or constitute a default (by way of substitution, novation or
otherwise) under the terms of, any mortgage, lease, bond, indenture,
agreement, franchise or other instrument or obligation to which it is a
party or by which either of it may be bound.
Section 2.2. Due Organization and Capital Stock.
(a) Each Party is
(i) duly organized, validly existing and in good standing under the laws of
its state of incorporation;
(ii) duly qualified or otherwise authorized as a foreign corporation to
transact business and is in good standing under the laws of each other
jurisdiction in which such qualification is required; and
(iii) has full power and authority to carry on its business as now
conducted, and it is entitled to own, lease or operate all of its properties and
assets wherever located.
(b) All of the outstanding securities of each Party have been duly authorized,
validly issued, and are fully paid and nonassessable.
Section 2.3. Truth of Statements; Completeness of Documents.
(a) All documents, Schedules, Exhibits and other materials delivered or to be
delivered by or on behalf of each Party to the others in connection with this
Agreement and the transactions contemplated hereby are to the best of its
knowledge true and complete.
(b) The financial statements of each of the Parties present fairly the financial
position, assets, liabilities and retained earnings of OASI as at the dates
thereof and the revenues, expenses, results of operations, changes in financial
position and cash flows of OASI for the periods covered thereby.
(b) The information furnished by or on behalf of each Party to the others in
connection with this Agreement and the transactions contemplated hereby does
not, to the best of its knowledge, contain any untrue statement of a material
fact and does not omit to state any material fact required to be stated therein
or necessary to make the statements therein not false or misleading.
3
(c) There is no fact known to any of the Parties which has not been disclosed to
the other Parties in writing which has, or insofar as any such Party can
foresee, which will have a Material Adverse Effect on any of the other Parties (
The term "Material Adverse Effect" means a fact, event or circumstance which,
taken as a whole, has had or could reasonably be expected to have a material
adverse effect on the assets (including intangible assets), business,
liabilities, operations or conditions, financial or otherwise, of a Party.)
ARTICLE III
ADDITIONAL COVENANTS
In order to induce the other to enter into this Agreement, the Parties
covenant with each other as follows:
Section 3.1 Conduct of Business.
From the date of this Agreement through the Effective Date, the Parties
shall conduct their business in the ordinary course.
Section 3.2 Waiver of Dissenters' Rights.
The Parties represent to each other that, to the extent they had any, their
respective shareholders have waived Dissenter's Rights under Florida and Nevada
law.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PARTIES; TERMINATION
Section 4.1 Conditions Precedent to Obligations of Cyber/Fla.
The obligations of Cyber/Fla under this Agreement are, at its option,
subject to the satisfaction at the Effective Date of the following conditions
precedent:
(a) The representations and warranties of OASI contained in this Agreement shall
have been true when made and shall continue to be true at all times after the
date hereof and as of the Effective Date with the same force and effect as
though such representations and warranties had been made at and as of the
Effective Date, subject only to changes permitted by the provisions of this
Agreement, and, further provided, that such changes will not, together with all
other events prior to the Closing, result in there being a Material Adverse
Effect in or to the condition, financial or otherwise, and in the results of
operations of OASI; and
(b) No litigation, proceeding, investigation or inquiry shall be pending or
threatened to set aside the authorization of this Agreement, or to enjoin or
prevent the consummation of the transactions contemplated hereby, or to enjoin
or prevent the consummation of the transactions contemplated hereby, or
involving any of the assets of OASI, which might materially and adversely affect
the business or prospects of OASI.
Section 4.2 Conditions Precedent to Obligations of OASI.
The obligations of OASI under this Agreement are, at its option, subject to
the satisfaction at the Effective Date of the following conditions precedent:
4
(a) The representations and warranties of Cyber/Fla contained in this Agreement
shall have been true when made and shall continue to be true at all times after
the date hereof and as of the Effective Date with the same force and effect as
though such representations and warranties had been made at and as of the
Effective Date, subject only to changes permitted by the provisions of this
Agreement, and, further provided, that such changes will not, together with all
other events prior to the Closing, result in there being a Material Adverse
Effect in or to the condition, financial or otherwise, and in the results of
operations of Cyber/Fla; and
(b) No litigation, proceeding, investigation or inquiry shall be pending or
threatened to set aside the authorization of this Agreement, or to enjoin or
prevent the consummation of the transactions contemplated hereby, or to enjoin
or prevent the consummation of the transactions contemplated hereby, or
involving any of the assets of Industries, which might materially and adversely
affect the business or prospects of Cyber/Fla.
ARTICLE V
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
In order to induce the other to enter into this Agreement, each Party
states and undertakes as follows:
Section 5.1 Continuous Truth of Representations and Warranties.
The representations and warranties of the Parties contained in this
Agreement were true when made and, in addition, they shall also be true as of
the Effective Date with the same force and effect as though they had been made
at and as of the Effective Date.
Section 5.2 Survival of Representations and Warranties.
The representations and warranties contained in this Agreement and in any
Schedules, certificates or other documents delivered pursuant hereto shall
survive the execution and delivery hereof and the Effective Date for a period of
three (3) years.
ARTICLE VI
TERMINATION
Section 6.1 Events of Termination.
This Agreement may be terminated at any time prior to Effective Dates of
Articles of Merger in the office of the Secretaries of the States of Florida and
Nevada:
(a) by mutual consent of Cyber/Fla and OASI;
(b) by Cyber/Fla, if OASI has breached any material representation warranty,
covenant or agreement contained in this Agreement;
(c) by OASI, if Cyber/Fla has breached any material representation, warranty,
covenant or agreement contained in this Agreement;
(d) by Cyber/Fla, if any legal proceeding is commenced or threatened by any
governmental or regulatory agency or other person directed against the
consummation of the transaction or any other transaction under this Agreement;
and
5
(e) by OASI, if any legal proceeding is commenced or threatened by any
governmental or regulatory agency or other person directed against the
consummation of the transaction or any other transaction under this Agreement.
Section 6.2 Effect of Termination.
If this Agreement shall be terminated as provided in this Article, the
Articles of Merger shall be deemed to have been abandoned and shall be void and
of no further effect, without any liability on the part of any of the parties
thereto or the stockholders, directors, officers, employees or agents of any of
them.
ARTICLE VII
INDEMNIFICATION
In order to induce the other to enter into this Agreement, each Party
agrees to indemnify the other as follows. follows:
Section 7.1 Obligation of OASI to Indemnify.
Subject to the limitations on the survival of representations and
warranties contained herein, OASI, its respective officers, directors and
employees shall indemnify, defend and hold Cyber/Fla harmless from and against
any losses, liabilities, damages, deficiencies, costs or expenses (including
interest, penalties and reasonable attorney's fees and disbursements) based
upon, arising out of or otherwise due to any material inaccuracy in or any
breach of any representation, warranty, covenant or agreement of OASI contained
in this Agreement or in any document or other writing delivered pursuant to this
Agreement.
Section 7.2 Obligation of Cyber/Fla to Indemnify.
Subject to the limitations on the survival of representations and
warranties contained in herein, Cyber/Fla, its respective officers, directors
and employees, shall indemnify, defend and hold OASI harmless from and against
any losses, liabilities, damages, deficiencies, costs or expenses (including
interest, penalties and reasonable attorneys fees and disbursements) based upon,
arising out of or otherwise due to any material inaccuracy in or any breach of
any representation, warranty, covenant or agreement of Cyber/Fla contained in
this Agreement or in any document or other writing delivered pursuant to this
Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Notices.
(a) Any notice, request, instruction or other document required by the terms of
this Agreement to be given to any other Party hereto shall be in writing and
shall be given either
(i) by telephonic facsimile, in which case notice shall be presumptively
deemed to have been given at the date and time displayed on the sender's
transmission confirmation receipt showing the successful receipt thereof by the
recipient;
(ii) by nationally recognized courier or overnight delivery service in
which the date of delivery is recorded by the delivery service, in which case
notice shall bpresumptively deemed to have been given at the time that records
of the delivery service indicate the writing was delivered to the addressee;
6
(iii) by United States Mail sent by registered or certified mail, postage
prepaid, with return receipt requested, in which case notice shall be
presumptively deemed to have been given at the time that records of the United
States Postal Service indicate the writing was delivered to the addressee.
(b) Notice shall be sent:
(i) If to Cyber/Fla, to:
Cyber Defense Systems, Inc.
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, CEO
Telephone Number: (000) 000-0000
Facsimile Telephone Number: (000) 000-0000
(ii) If to OASI, to:
On Alert Systems, Inc.
0000 Xxxxx Xxxxxxx Xxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, CEO
Telephone Number: (000) 000-0000
Facsimile Telephone Number: (000) 000-0000
(iii) or to such other address as a Party may have specified in writing to
the other Parties using the procedures specified above in this Section.
Section 8.2 Assignment and Amendment.
This Agreement shall not be assignable by any Party, and shall not be
altered or otherwise amended except pursuant to a writing executed by all of the
Parties hereto.
Section 8.3 Severability.
If any provision of this Agreement, or the application of any such
provision to any person or circumstance, shall be held invalid by a court or
tribunal of competent jurisdiction, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby.
Section 8.4 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute a single
instrument. It shall not be necessary that any counterpart be signed by all of
the Parties hereto.
Section 8.5 Variation in Pronouns.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person
or persons or entity or entities may require.
Section 8.6 Indulgences, Etc.
Neither the failure nor any delay on the part of any Party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege preclude any other or further exercise of the same or of any other
right, remedy, power or privilege with respect to any occurrence be construed as
a waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the Party asserted to have granted such waiver.
7
Section 8.7 Headings.
The Article and Section headings are for convenience only; they form in
part of this Agreement and shall not affect its interpretation.
Section 8.8 Choice of Law, Venue, Arbitration, Waiver of Jury Trial.
(a) This Agreement and all questions relating to its validity, interpretation,
performance and enforcement (including, without limitation, provisions
concerning limitations of actions), shall be governed by and construed in
accordance with the laws of the State of Florida, notwithstanding any
conflict-of-laws doctrines of such state or other jurisdiction to the contrary,
and without the aid of any canon, custom or rule of law requiring construction
against the draftsman.
(b) The Parties hereby mutually waive trial by jury:
IN THAT CONNECTION, EACH OF THE PARTIES WAIVES THE RIGHT TO
A TRIAL BY JURY IN ANY DISPUTE IN CONNECTION WITH OR
RELATING TO THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY
MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, AND
AGREES TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE
TO EFFECT SUCH WAIVER.
(c) The Parties hereto irrevocably agree and consent that all disputes
concerning this Agreement or any claim or issue of any nature whatsoever
(whether brought by the Parties hereto) arising from or relating to this
Agreement or to the corporate steps taken to enter into it (including, without
limitation, claims for alleged fraud, breach of fiduciary duty, breach of
contract, tort, etc.) which cannot be resolved within reasonable time through
discussions between the opposing entities, shall be resolved solely and
exclusively by means of arbitration to be conducted in West Palm Beach, Florida,
which arbitration will proceed in accordance with the rules of the Arbitration
then in force in West Palm Beach, Florida, for resolution of commercial
disputes.
In addition, the Parties waive, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such forum.
(d) The Arbitrators themselves shall have the right to determine and to
arbitrate the threshold issue of arbitrability itself, the decision of the
Arbitrators shall be final, conclusive, and binding upon the opposing entities,
and a judgment upon the award may be obtained and entered in any federal or
state court of competent jurisdiction; and
(e) Attorney's Fees. Each Party involved in litigation or arbitration shall be
responsible for its own costs and expenses of any litigation or arbitration
proceeding, including its own attorney's fees (for any litigation, arbitration,
and any appeals).
IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement as
of the date first set forth above.
Cyber/Fla:
Cyber Defense Systems, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx, CEO
OASI:
On Alert Systems, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx, CEO
8
