EXHIBIT 2
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization is entered into on this
day of October, 1998, by and between SMART FIT FOUNDATIONS, INC., a Florida
corporation, (hereinafter "Smart"); CYBERFAST NETWORK SYSTEMS CORP., a Florida
corporation, located at 0000 Xxxxx Xxxxx, Xxxxxxxx Xxxxx, Xxxxxxx, 00000
(hereinafter "Cyberfast" or the "Company"); and the undersigned stockholders of
Cyberfast, (hereinafter "Stockholders").
RECITALS:
WHEREAS, the Stockholders own beneficially and of record all of the
shares of voting Common Stock of Cyberfast.
WHEREAS, Smart desires to acquire one hundred (100%) percent of the
issued and outstanding Common Stock of Cyberfast making Cyberfast a subsidiary
of Smart, and Stockholders desire to make a tax-free exchange of their shares in
Cyberfast solely for shares of Smart.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
SECTION 1
AGREEMENT
1.1 PLAN OF REORGANIZATION AND TAX OPINION. Smart, the Stockholders,
and Cyberfast hereby agree that 100 percent of the issued and outstanding
capital stock of Cyberfast shall be acquired by Smart in exchange solely for
Smart voting stock in a transaction qualifying as a tax-free stock-for-stock
exchange pursuant to Section 368 (a) (1) (B) of the Internal Revenue Code of
1986, as amended. Special tax counsel for Smart shall provide to Cyberfast a
legal opinion confirming the tax-free status of this transaction, and that the
issuance of 'Rule 504' unrestricted common shares to consultants and to the
management of Cyberfast as compensation for services on this transaction, will
not destroy the tax free status of this transaction.
1.2 EXCHANGE OF STOCK. Smart and Stockholders agree that all (5,000)
issued and outstanding shares of common stock of Cyberfast, equal to one hundred
(100%) percent, shall be exchanged with Smart for (4,750,000) shares of
restricted CLASS B common voting stock of Smart. A list of the shares of
Cyberfast, the owner thereof; and shares of Smart to be received by said
Stockholders is attached hereto as EXHIBIT "A" and by this reference is
incorporated herein. The Smart shares will, on the Closing Date, as hereinafter
defined, be delivered to the Stockholders in exchange for their shares in
Cyberfast. Stockholders represent and warrant that they will hold such shares of
common stock of Smart for investment purposes and not for further public
distribution and agree that the shares shall be appropriately restricted.
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1.3 DELIVERY OF SHARES. On or before the Closing Date, certificates
representing all of the shares of Cyberfast will be delivered duly endorsed so
as to make Smart the sole holder thereof, free and clear of all claims and
encumbrances; and on such Closing Date, delivery of the Smart shares, which will
be appropriately restricted as to transfer, will be made to Stockholders as set
forth herein. All Stockholders of Cyberfast owning such shares shall also
execute a investment letter.
1.4 CAPITAL STRUCTURE AND STATUS OF SMART AT TIME OF CLOSING. Smart
shall have (128,265) shares issued and outstanding at time of Closing, and no
options or other securities outstanding convertible into its common stock. All
of the liabilities of Smart shall be satisfied in full prior to Closing.
1.5 BOARD OF DIRECTORS RESOLUTIONS AND SHAREHOLDERS CONSENTS BY SMART.
Prior to Closing, corporate resolutions shall be adopted by the unanimous
written consent of Smart's directors and the written consent of the holders of
a majority of Smart's shares of common stock issued and outstanding, to ratify
and approve the following actions and amendments to the certificate of
incorporation:
(A) Approve the issuance of (24,315) shares of restricted
CLASS A common stock to Xxxx X. Xxxx, as a finders fee on the present
transaction, which shall increase the Smart outstanding to (128,265) shares.
(B) Adopt an Amendment of the Certificate of Incorporation
whereby the aggregate number of shares which the Corporation shall have
authority to issue is 50,000,000, divided into three classes (i) 5,000,000
shares of preferred stock, $100.00 par value per share (the "Preferred Stock"),
(ii) (40,250,000) shares of CLASS A Common Stock $.01 par value per share (the
"CLASS A Common Stock") and (iii) (4,750,000) shares of CLASS B Common Stock,
$.01 par value per share (the "CLASS B Common Stock"), (collectively the "Common
Stock)".
(a) COMMON STOCK. Except as otherwise provided in this
Section the rights of CLASS A Common Stock and CLASS
B Common Stock shall be identical in all respects:
(1) GENERAL. The voting, dividend and
liquidation rights of the holders of the Common Stock
are subject to and qualified by the rights of the
holders of the Preferred Stock as may be designated
by the Board of Directors upon any issuance of the
Preferred Stock of any series.
(2) VOTING. Each holder of CLASS A Common
Stock shall have one vote in respect of each share of
CLASS A Common Stock held by him and each holder of
CLASS B Common Stock shall have ten (10) votes in
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respect of each share of CLASS B Common Stock held by
him on all matters voted upon by the stockholders.
(3) DIVIDENDS. Dividends may be declared and
paid on the Common Stock from Funds lawfully
available therefore as and when determined by the
Board of Directors and subject to any preferential
dividend rights of any then outstanding Preferred
Stock.
(4) LIQUIDATION. Upon the dissolution or
liquidation of the Corporation, whether voluntary or
involuntary, holders of Common Stock will be entitled
to receive all assets of the Corporation available
for distribution to its stockholders, subject to any
preferential rights of any then outstanding Preferred
Stock.
(5) TRANSFER OF CLASS B COMMON STOCK. Upon
the sale, assignment, transfer, conveyance, or other
disposition, whether voluntary, by operation of law
or otherwise (a "Transfer," which, for the purpose
hereof, shall not include a pledge) of shares of
CLASS B Common Stock, the shares so transferred
shall, by virtue of such Transfer, automatically be
converted into an equal number of fully paid and non
assessable shares of CLASS A Common Stock.
Thereafter, the shares of CLASS B Common Stock so
converted shall be authorized and unissued shares of
CLASS B Common Stock of the Corporation.
(6) DEATH OF HOLDER OF CLASS B COMMON STOCK.
Upon the death of the holder of CLASS B Common Stock,
the shares of CLASS B Common Stock so held as of the
date of death of the deceased stockholder shall be
automatically converted into an equal number of fully
paid and non assessable shares of CLASS A Common
Stock. Thereafter, the shares of CLASS B Common Stock
so converted shall be authorized and unissued shares
of CLASS B Common Stock of the Corporation.
(7) CONVERSION OF CLASS B COMMON STOCK. All
outstanding shares of CLASS B Common Stock shall be
convertible at all times, at the election of the
holder thereof, into an equal number of fully paid
and non assessable shares of CLASS A Common Stock by
delivery of written notice by the holder of such
shares of CLASS B Common Stock to the Corporation, or
its transfer agent, together with the certificate (s)
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representing the shares to be converted. Thereupon,
the Corporation, or its transfer agent, as the case
may be, shall exchange such certificate(s) for a
certificate or certificate(s) representing an equal
number of shares of CLASS A Common Stock. Shares of
CLASS B Common Stock shall be deemed to have been
converted immediately prior to the close of business
on the day upon which the Corporation, or its
transfer agent, received such shares for conversion.
The person entitled to receive the CLASS A Common
Stock issuable upon such conversion shall be treated
for all purposes as the record holder of such CLASS A
Common Stock at such time. Thereafter, the shares of
CLASS B Common Stock so conveyed shall be authorized
and unissued shares of CLASS B Common Stock of the
Corporation.
With respect to any shares of CLASS B Common
Stock converted into CLASS A Common Stock, until
surrender as provided herein, each outstanding
certificate, which prior to such conversion
represented shares of CLASS B Common Stock, shall be
deemed for all purposes to evidence ownership of the
number of shares of CLASS B Common Stock
notwithstanding the conversion election. Upon
surrender to the Corporation, or its transfer agent,
for cancellation of the certificate or certificates
representing such shares of CLASS B Common Stock, the
holder thereof shall be entitled to receive a
certificate or certificates representing the number
of shares of CLASS A Common Stock to which such
holder is entitled.
(b) PREFERRED STOCK. The Preferred Stock shall be issued
in series containing such rights, preferences,
designations, restrictions and limitations as may be
designated by the board of directors.
(C) Approve this Agreement and Plan of Reorganization between
Smart and Cyberfast, whereby Smart shall acquire 100% ownership of Cyberfast
from the Shareholders of Cyberfast, (as listed in the attached EXHIBIT "A"), for
the issuance of at total of (4,750,000) shares of restricted CLASS B common
stock.
(D) Approve the issuance of (550,000) shares of unrestricted
CLASS common stock under Rule '504' to management personnel of Cyberfast, (as
listed in the attached EXHIBIT "A-1"), for services rendered on this
transaction.
(E) Approve the issuance of (391,735) shares of unrestricted
CLASS A common stock under Rule '504' to the advisors and consultants, (as
listed in the attached EXHIBIT "B"), for services rendered on this transaction.
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(F) Approve Smart changing its name to "Cyberfast Systems,
Inc.".
1.6 CHANGES IN CAPITALIZATION OF SMART. Smart, between the date of this
Agreement and the Closing, shall not make any changes to its capital structure
except as called for in section 1.5 hereto.
1.7 CAPITAL STRUCTURE AFTER CLOSING. After issuance of the restricted
CLASS B common stock, and the issuance of CLASS A unrestricted common shares to
management and consultants, (pursuant to paragraph 1.5 hereto), the capital
structure of the merged company will be as follows:
SHAREHOLDERS: SMART SHARES: PERCENTAGES:
Shareholders of Cyberfast -
CLASS B Common 4,750,000 (144) 81.6%
Management of Cyberfast -
CLASS A Common 550,000 ('504") 9.5%
--------- ----
Sub-total 5,300,000 91.1%
(15) Consultants -
CLASS A Common 391,735 ('504") 6.7%
Present shareholders
of Smart - CLASS A 128,265 2.2%
--------- ----
Totals 5,820,000 100.0%
--------- ----
SECTION 2
CLOSING, EFFECTIVE DATE, DUE DILIGENCE PERIOD, AND PRE-CLOSING ACTIONS
2.1 LOCATION OF CLOSING. The Closing contemplated by Section 1.1 shall
be held at the office of Cyberfast, not later than 30 days following the date of
this Agreement, unless another place or time is agreed upon in writing by the
parties. In the event the parties shall agree to close the transaction by
recognized courier and in escrow, then in such event, Xxxxxxx Xxxxxx, Attorney
at law, shall serve as the 'Temporary Agent" for all parties to this transaction
in holding and redistributing the various original documents and copies among
the various parties following the Closing.
2.2 EFFECTIVE DATE. The effective date of this reorganization, for
accounting purposes, shell be October 1, 1998. Cyberfast prior to Closing shall
distribute to its present Shareholders all Subchapter S earnings accumulated by
Cyberfast through September 30, 1998. In the event the Closing of this
transaction is delayed, and the effective date for the termination of the
Subchapter S election falls on a date later than September 30, 1998, then in
such event, the Shareholders
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of Cyberfast shall be entitled to receive such additional distributions of
Subchapter S earnings as may have accumulated during the period prior to the
revised effective date for the Closing.
2.3 PRE-CLOSING ACTIONS BY SMART. Smart, prior to Closing, and pursuant
to section 1.5 hereto, shall have provided to Cyberfast: a signed tax opinion
letter satisfactory to Cyberfast which substantiates the tax free treatment of
the proposed stock for stock exchange; opinion letter from securities counsel
for Smart satisfactory to Cyberfast for the issuance of '504' unrestricted
common shares; a filed copy of the amended articles of incorporation; a
certified shareholders list; a letter to the shareholders; a stock transmittal
form; and a draft of a proposed press release.
2.4 DUE DILIGENCE. Cyberfast and its securities counsel, Xxxxxxx
Xxxxxx, shall devote the period of time between the date of this Plan and the
date of the Closing to complete "due diligence" on Smart. Cyberfast, pursuant to
Section (5) herein, shall have the right at any time prior to Closing to
unilaterally rescind and terminate this Plan if, in their sole opinion, there
exists any material misrepresentation concerning the financial statements of
Smart, its shareholder base, or its qualification and standing as a publicly
traded entity.
2.5 CONDITION OF CLOSING. In addition to the right provided in Section
2.4 hereof, Cyberfast may terminate this agreement without any liability if by
October 27, 1998:
(i) Xxxx Xxxx and Xxxxx Xxxxxx have not either completed
sufficient gifts of common shares so that Smart has at least (150) stockholders
with round lots of (100) shares or more, (which will count toward the current
minimum eligibility requirement of (300) shareholders for listing on NASDAQ
SmallCap Market), or entered into a written agreement to do so following closing
and surrendered their common stock so that legends may be placed on their
certificates restricting sales until compliance with such redistribution;
(ii) all of the "Leakout Agreements" have not been executed by
the holders in the amounts reflected on Exhibit "B-1" attached hereto.
(iii) all conditions required by Section 2.3 hereof have not
been fully complied with to the satisfaction of Cyberfast.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF SMART
Smart represents and warrants to, and covenants with, the Stockholders
as follows:
3.1 CORPORATE STATUS. Smart is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida and is
licensed or qualified as a foreign corporation in all states in which the nature
of
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its business or the character or ownership of its properties makes such
licensing or qualification necessary.
3.2 CAPITAL STRUCTURE OF SMART. The authorized capital stock of Smart
consists of (1,000,000) shares of common stock, $.01 par value per share, with
(104,050) common shares presently outstanding. A separate written representation
and warranty letter shall be delivered to Cyberfast prior to Closing from two
(2) of the consultants on this transaction, (Xxxxxx Companies, S.A. and Olympic
Capital Group, Inc.) confirming the promise and obligation of these consultants
to make a redistribution of a portion of their restricted and unrestricted CLASS
A common stock, sufficient that Smart shall have not less than (150)
shareholders each with ownership of (100) or more common shares prior to the
effective date on which active trading begins on the OTC Bulletin Board (as
Cyberfast Systems, Inc. with a new symbol). Smart, at time of Closing, shall
have no issued and outstanding options, rights or warrants to acquire it's
common shares and no other securities outstanding convertible or exchangeable
into its common stock.
3.3 FINANCIAL STATEMENTS. The financial statements Smart has furnished
to Cyberfast and the Stockholders, consisting of audited financial statements
dated April 30, 1997 and 1998, for the one year periods then ended, and
unaudited financial statements dated July 31, 1998, for the four month period
then ended, attached hereto as Exhibit "C", are true, correct and fairly present
the financial condition of Smart at such date and for the periods involved; such
statements were prepared in accordance with S.E.C. practice standards and in
accordance with generally accepted accounting principles consistently applied;
and no material change has occurred in the financial condition, assets,
liabilities or business of Smart since the date of the most recent financial
statements dated July 31, 1998.
3.4 NO CURRENT BUSINESS OPERATIONS. Smart has no present business
operations and no liabilities of any nature except to the extent reflected or
reserved against the July 31, 1998 Balance Sheet of Smart, whether accrued,
absolute, contingent or otherwise, including, without limitation, tax
liabilities and interest due or to become due.
3.5 S.E.C. COMPLIANCE AND LISTINGS. Smart is a non-reporting Florida
corporation currently traded on the OTC Electronic Bulletin Board (under the
symbol: "SXFT"). Smart is in full compliance with, and not in violation of, any
state or federal securities laws. All outstanding shares of common stock of
Smart have been duly authorized and are validly issued, fully paid, and
non-assessable and free of preemptive rights, and there are no registration
rights existing or granted to any holders of restricted common stock of Smart.
3.6 TITLE TO PROPERTY. Smart has good and marketable title to all
properties and assets, real and personal, reflected in the Balance Sheet of
Smart, and the properties and assets of Smart are subject to no mortgage,
pledge, lien or encumbrances, except for liens shown therein, with respect
to which no default
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exists.
3.7 LITIGATION. There is no litigation or proceeding pending, or to the
knowledge of Smart, threatened, against or relating to Smart, its properties or
business, except as set forth in a list certified by the President of Smart and
delivered to the Stockholders, or their representative.
3.8 BOOKS AND RECORDS. From the date of this Agreement to the Closing,
Smart will (1) provide to the Stockholders or their representative any and all
relevant documents regarding securities filings, broker dealer due diligence
packages, offering memorandums, and copies of Form D; and (2) give to the
Stockholders full access during normal business hours to all of its offices,
books, records, contracts and other corporate documents and properties so that
Stockholders may inspect and audit them; and (3) furnish such information
concerning the properties and affairs of Smart as the Stockholders may
reasonably request.
3.9 TAX RETURNS. Smart has filed all federal and state income or
franchise tax returns required to be filed for the tax year ended December 31,
1997.
3.10 CONFIDENTIALITY. Until the Closing (and thereafter if there is no
Closing), Smart and its representatives will keep confidential any information
which they obtain from the Stockholders or from Cyberfast concerning the
properties, assets and business of Cyberfast. If the transactions contemplated
by this Agreement are not consummated by October 31, 1998 Smart will return to
Cyberfast all written matter with respect to Cyberfast obtained by Smart in
connection with the negotiation or consummation of this Agreement.
3.11 INVESTMENT INTENT. Smart is acquiring the Cyberfast shares to be
transferred to it under this Agreement for investment and not with a view to the
sale or distribution thereof, and Smart has no commitment or present intention
to liquidate Cyberfast or to sell or otherwise dispose of shares of its stock.
3.12 CORPORATE AUTHORITY. Smart has full corporate power and
authority to enter into this Agreement, to carry out its obligations hereunder
and will deliver to the Stockholders at the closing a certified copy of
resolutions of its Board of Directors authorizing execution of this Agreement by
its officers and performance thereunder and which also contains approvals of all
of the conditions contained in Section 1.5 above.
3.13 DUE AUTHORIZATION. Execution of this Agreement and performance by
Smart hereunder has been duly authorized by all requisite corporate action on
the part of Smart, and this Agreement constitutes a valid and binding obligation
of Smart and performance hereunder will not violate any provision of the
Articles of Incorporation, Bylaws, agreements, mortgages or other commitments of
Smart. All matters described in Section 1.5 will have been duly and properly
approved by Consent of the Majority Shareholders of Smart before the Closing.
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SECTION 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF CYBERFAST AND STOCKHOLDERS
Cyberfast and Stockholders represent and warrant to, and covenant with,
Smart as follows:
4.1 CORPORATE STATUS. Cyberfast is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida.
4.2 CYBERFAST SHARES. The Stockholders executing this agreement shall
hold full right, title and interest in 1OO% of the Cyberfast shares, free and
clear of adverse claims of third parties.
4.3 CAPITALIZATION. The authorized capital stock of Cyberfast consists
of (7,500) shares of common voting stock, having a par value of $1.00 per share,
of which (5,000) shares shall be issued and outstanding at time of closing. At
time of closing, there shall be no other securities, outstanding options,
warrants or other rights to purchase any of the authorized, but unissued shares
of common voting stock of Cyberfast.
4.4 FINANCIAL STATEMENTS OF CYBERFAST. The financial statements
furnished to Smart, consisting of unaudited financial statements dated December
31, 1997, covering the year then ended, and financial statements dated June 30,
1998, for the six month period then ended, attached hereto as Exhibit "D", are
correct and fairly present the financial condition of Cyberfast and its
subsidiaries at such dates and for the periods involved; such statements were
prepared in accordance with generally accepted accounting principles
consistently applied, and no material change has occurred in the matters
disclosed therein.
4.5 UNDISCLOSED LIABILITIES. Cyberfast has no liabilities of any nature
except to the extent reflected or reserved against the Balance Sheets of
Cyberfast attached hereto as Exhibit D, whether accrued, absolute, contingent or
otherwise, including, without limitation, tax liabilities and interest due or to
become due, except for additional liabilities which may have been incurred in
the ordinary course of business by Cyberfast since the date of the financial
statements.
4.6 INTERIM CHANGES. Since the date of the financial statements
described in paragraph 4.5, except for the normal continuing distributions made
to the shareholders of Cyberfast under Subchapter S of the Internal Revenue
Code, there have been no (1) changes in financial condition, assets, liabilities
or business of Cyberfast, or other distribution in respect of capital stock of
Cyberfast, or any direct or indirect redemption, purchase or other acquisition
of any such stock; nor (2) increase paid, or agreed to, in the compensation
retirement benefits or other commitments to employees.
4.7 TITLE TO PROPERTY. Cyberfast has good and marketable title to all
properties and assets, real and personal, reflected in the Balance Sheet of
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Cyberfast, and the properties and assets of Cyberfast are subject to no
mortgage, pledge, lien or encumbrances, except for liens shown therein, with
respect to which no default exists.
4.8 LITIGATION. There is no litigation or proceeding pending, or to the
knowledge of Cyberfast, threatened, against or relating to the property or
business of Cyberfast, except as set forth in a list certified by the President
of Cyberfast and delivered to Smart or its representative.
4.9 BOOKS AND RECORDS. From the date of this Agreement to the Closing,
Cyberfast shall (1) give to Smart or its representative full access during
normal business hours to all of its offices, books, records, contracts and
other corporate documents and properties so that Smart may inspect and audit
them; and (2) furnish such information concerning the properties and affairs of
Cyberfast as Smart may reasonably request.
4.10 TAX RETURNS. Cyberfast has filed all federal and state income or
franchise tax returns required to be filed or has received currently effective
extensions of the required filing dates
4.11 CONFIDENTIALITY. Until the Closing (and thereafter if there is no
Closing), Cyberfast and its representatives will keep confidential any
information which they obtain from Smart concerning the properties, assets and
business of Smart. If the transactions contemplated by this Agreement are not
consummated by October 31, 1998 Cyberfast will return to Smart all written
matter with respect to Smart obtained by Cyberfast in connection with the
negotiation or consummation of this Agreement.
4.12 INVESTMENT INTENT. Stockholders are acquiring the shares to be
delivered to them under this Agreement for investment and not with a view to the
sale or distribution thereof, and Stockholders have no commitment or present
intention to liquidate the Company or to sell or otherwise dispose of the Smart
stock. Stockholders shall execute and deliver to Smart on the Closing an
Investment Letter attached hereto as Exhibit "E".
4.13 CORPORATE AUTHORITY. Cyberfast has full corporate power and
authority to enter into this Agreement, to carry out its obligations hereunder
and will deliver to the Stockholders at the closing a certified copy of
resolutions of its Board of Directors authorizing execution of this Agreement by
its officers and performance thereunder.
4.14 DUE AUTHORIZATION. Execution of this Agreement and performance by
Cyberfast hereunder has been duly authorized by all requisite corporate action
on the part of Cyberfast, and this Agreement constitutes a valid and binding
obligation of Cyberfast and performance hereunder will not violate any provision
of the Articles of Incorporation, Bylaws, agreements, mortgages or other
commitments of Cyberfast.
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SECTION 5
TERMINATION
This Agreement may be terminated (1) by mutual consent in writing; (2)
by either the Board of Directors of Smart or by the Board of Directors of
Cyberfast if there has been a material misrepresentation or material breach of
any warranty or covenant by the other party; (3) by either party if the
transaction is not closed by October 31, 1998, unless the primary reason for
delay in closing are due to unreasonable actions or inaction by the party
seeking to terminate this agreement.
SECTION 6
GENERAL PROVISIONS
6.1 FURTHER ASSURANCES. At any time, and from time to time, after the
Closing, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the intent
and purposes of this Agreement. Any failure on the part of any party hereto to
comply with any of its obligations, agreements or conditions hereunder may be
waived in writing by the party to whom such compliance is owed.
6.2 EXPENSES. Each party shall bear its own expenses in regard to this
transaction. Cyberfast shall pay the legal fees of its own securities counsel;
its auditing firm; the costs of the actual release of the initial press release;
cost of printing new stock certificates; and the post-closing stock transfer
fees for the reissuance of replacement certificates in the new name of the
corporation (except regarding any redistribution of shares made by Xxxxx Xxxxxx
or Xxxxxx Companies S.A.). The present controlling shareholders of Smart shall
pay the following costs: the legal fees of its securities counsel; its auditors;
special tax counsel for the tax opinion; legal opinion on all issuances of Rule
'504' unrestricted CLASS A Common Stock pursuant to this transaction; Florida
franchise fees and filing fees (to complete capital structure changes called for
in section 1.5 hereto); the cost of preparation of: board minutes and
resolutions of Smart; shareholder consent resolutions; articles of amendment to
the articles of incorporation of Smart; indemnification agreement; a letter
agreement between Smart and Xxxx Xxxx and Xxxxx Xxxxxx, concerning the timely
redistribution of a portion of their shares; leakout agreements; cover letter to
transfer agent and post-closing board resolution of Cyberfast on the issuance of
'504' CLASS A Common Stock; various letters to NASD, and other regulatory
agencies, (concerning the required advance notices of the impending
transaction); a letter to apply for a new CUSIP number; assistance to Cyberfast
on choice and printing of new stock certificate; draft of a letter to
shareholders describing the transaction, the changes to the capital structure,
and profiling the management, business and presentation of summary financial
data regarding Cyberfast; a transmittal form for the new name replacement stock
certificate; duplication and mailing costs of the shareholders letter; and
preparing a draft of the initial press
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release announcing the transaction. Cyberfast shall pre-approve all documents
contained in the shareholder mailing, make a determine as to the territorial
coverage and the depth of coverage for the press release.
6.3 INDEMNIFICATION AGREEMENT. At time of Closing, Smart shall have no
liabilities of any kind or nature whatsoever, and at time of Closing the two (2)
principal shareholders of Smart, Xxxx X. Xxxx, and Xxxxx X. Xxxxxxxx, shall
execute the indemnification agreements attached hereto as EXHIBIT "F" to
indemnify and hold harmless Cyberfast and the persons relying upon the
representations in this Agreement against any and all losses, claims, damages,
liabilities, and expenses, joint or several to which such persons may become
subject under the Act or otherwise, including attorneys' fees reasonably
incurred in defending any actions, whether or not resulting in any liability,
insofar as such are based upon any untrue statement of a material fact contained
in this Agreement or any omission to state therein a material fact necessary to
make the statement made therein not misleading.
6.4 BROKERS. Except as otherwise shown in the above Exhibit "B", each
party represents to the other party hereunder that no consultants, advisors,
brokers or finders have acted for it in connection with this Agreement, and
agrees to indemnify and hold harmless the other party against any fee, loss or
expense arising out of claims by consultants, advisors, brokers or finders
employed or alleged to have been employed by it.
6.5 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent
by prepaid first-class registered or certified mail, return receipt requested,
as follows:
CYBERFAST:
Mr. Xxxxxxx Xxxxxx, Attorney at law
0000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxx 000
X. Xxxx Xxxxx, Xxxxxxx 00000
SMART:
Xx. Xxxx X. Xxxx, President
Olympic Capital Group, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, X.X. 00000
6.6 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
6.7 HEADINGS. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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6.8 GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Florida.
6.9 ASSIGNMENT. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this Agreement
without the written consent of the other party shall be void.
6.10 COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement and Plan
of Reorganization as of the date first above written.
ATTEST: SMART FIT FOUNDATIONS, INC.
/s/ XXXXX X. XXXXXXX By: /s/ XXXXX XXXXXXXX
------------------------------------ ---------------------------------
Its: President
ATTEST: CYBERFAST NETWORK SYSTEMS CORP.
/s/ XXX XXXXXX XXXXX By: /s/ XXXXXX X. XXXXXXXXX
------------------------------------ ---------------------------------
Its: Pres. & CEO
WITNESS: STOCKHOLDERS OF CYBERFAST
NETWORK SYSTEMS CORP:
/s/ XXX XXXXXX XXXXX /s/ XXXXXX X. XXXXXXXXX
------------------------------------ -------------------------------------
Xxxxxx X. Xxxxxxxxx, Shareholder
/s/ XXX XXXXXX XXXXX /s/ XXXX XXXXXXXXX
------------------------------------ -------------------------------------
Xxxx Xxxxxxxxx, Shareholder
/s/ XXX XXXXXX XXXXX /s/ XXXX XXXXXXXXX
------------------------------------ -------------------------------------
Xxxx Xxxxxxxxx, Shareholder
/s/ XXX XXXXXX XXXXX /s/ XXX XXXXXX
------------------------------------ -------------------------------------
Xxx Xxxxxx, Shareholder
ATTEST: Greengold International, Corp.
/s/ XXX XXXXXX XXXXX By: /s/ ILLEGIBLE President
------------------------------------ ---------------------------------
13
It is requested that a copy of any notice, process or pleading served
hereunder be mailed to:
Xxxxxx X. Xxxxxxx, Esq.
000 Xxxxx Xxxxxx, 0xx Xx
Xxx Xxxx, XX 00000
Dated: October 15, 1998
SMARTFIT FOUNDATIONS, INC.
By: /s/ XXXXX XXXXXXXX
-----------------------------------------
Xxxxx Xxxxxxxx, President
STATE OF TEXAS }
COUNTY OF XXXXXX } ss:
On the 15 day of Oct., 1998, before me personally came XXXXX XXXXXXXX,
to me known, who, being by me duly sworn, did depose and say that he resides at
_______________________ and that he is the President of SMARTFIT FOUNDATIONS,
INC., the corporation described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the board
of directors of said corporation and that he signed his named thereto by like
order.
/s/ XXXXXXX XXXX
-----------------------------------------
Notary Public
XXXXXXX XXXX
NOTARY PUBLIC
State of Texas
Comm. Exp. 12-21-98
