PLAN OF MERGER
THIS AGREEMENT made and entered into as of this 7th day of
December 2000, by and between The Cyber Group Network Corp., a
Nevada corporation, with offices at 000 Xxxx Xxxxxxxx Xxxxx,
Xxxxx 000, Xxx Xxxxxxxxxx, Xxxxxxxxxx 00000 (the "Cyber Group"),
and CGN Acquisitions Corporations, a Nevada corporation, with
offices at 000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxxxxx,
Xxxxxxxxxx 00000 ("Cyber Acquisition").
W I T N E S S E T H:
WHEREAS, all the of the issued and outstanding capital stock
of Cyber Acquisition is owned by the Cyber Group; and
WHEREAS, the Parties agree that it would be in their
respective best interests to merge.
NOW, THEREFORE, in consideration of the provisions and the
representations, warranties and agreements herein and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as
follows:
Section 1.
Terms And Conditions of Stock Exchange and Merger.
(a) On the "Effective Date", as hereinafter defined, the
following shall be or shall have been done:
(i) Cyber Group and Cyber Acquisition shall have
obtained approval for this Agreement and the transactions
described herein by their respective Boards of Directors and
Shareholders, if necessary, pursuant to the applicable
provisions of Nevada law;
(ii) Cyber Acquisition shall merge into Cyber Group
and cease to exist;
(iii) Cyber Group 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 Cyber Acquisition, and Cyber Group shall be subject to
all the restrictions, disabilities, and duties of Cyber
Acquisition with respect thereto; and all property, real,
personal or mixed, and all debts and obligation due to Cyber
Acquisition on whatever account shall be vested in Cyber
Group; and all rights of creditors and all liens upon any
property of Cyber Acquisition shall be preserved unimpaired;
and all debts, liabilities, duties, and obligations of Cyber
Acquisition [including obligations of Cyber Acquisition on
account of (A) Stock
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Subscriptions to which Cyber
Acquisition is a Party; (B) Debentures of Cyber Acquisition;
and (C) Stock Conversion obligations with respect to
Debentures of Cyber Acquisition], shall henceforth attach to
Cyber Group, and may enforced against Cyber Group to the
same extent as if said debts, liabilities, duties, and
obligations had been incurred or contracted by Cyber Group;
(iv) If, at any time after the Effective Date, Cyber
Group shall consider or be advised that any further
assignments or assurances and law or any other acts are
necessary or desirable (A) to vest, perfect or confirm, of
record or otherwise, in Cyber Group, title to and possession
of any property or right of Cyber Acquisition acquired or to
be acquired by reason of, or in connection with, this
Merger, or (B) otherwise to carry out the purposes of this
Merger, Cyber Acquisition and its officers and directors
shall be deemed to have granted to Cyber Group 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 Group addition and otherwise to carry out the
purposes of this Merger; and the proper officers and
directors of Cyber Group are fully authorized in the name of
Cyber Acquisition otherwise to take any and all such
action(s);
(v) Cyber Acquisition's 8% Series A $1,000,000.00
Senior Subordinated Convertible Redeemable Debenture due
December 5, 2002 (the "Cyber Acquisition Debenture"),
together with the authorized but unissued underlying shares
of Cyber Acquisition's Common Stock, Par Value $0.001 per
share (the "Cyber Acquisition Common Stock"), into which the
Cyber Acquisition Debenture is convertible from time to
time, shall be converted into an identical Cyber Group
debenture (the "Cyber Group Debenture"), together with
authorized but unissued underlying shares of Common Stock,
Par Value $0.001 per share, of Cyber Group into which the
new Cyber Group Debenture may be converted (the "Cyber Group
Common Stock");
(vi) All of the issued and outstanding shares of the
Common Stock, Par Value $0.001 per share, of Cyber
Acquisition held by Cyber Group prior to this Merger may, by
virtue of this Merger, and without any further action of
Cyber Group, be canceled simultaneously with the
effectiveness of this Merger
(vii) Until surrendered and exchanged as herein
provided, each outstanding certificate which, prior to the
Effective Date, represented a Cyber Acquisition security,
shall be deemed for all corporate purposes to evidence
ownership of the appropriate number of securities of Cyber
Group into which the Cyber Acquisition security shall have
been so converted;
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(viii) Subject to Sub-section (vi), above, each holder
of a certificate representing issued and outstanding
securities of Cyber Acquisition immediately prior to the
Effective Date of the Merger, shall, upon surrender of such
certificate to Cyber Group after the Effective Date, be
entitled to receive a certificate representing the
appropriate number of shares of securities of Cyber Group as
described above;
(ix) If any certificate representing a Cyber Group
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 Group or its transfer
agent any transfer or other taxes required by reason of the
issuance of certificates representing a Cyber Group security
in a name other than that of the registered holder of the
certificate surrendered, or establish to the satisfaction of
Cyber Group or its transfer agent that such tax has been
paid or is not applicable; and
(x) The officers and directors of Cyber Acquisition
shall resign their positions.
(b) The right to transfer restricted securities may be
permitted if, in the opinion of counsel satisfactory to Cyber
Group, the securities may be transferred pursuant to an exemption
from registration under the Act.
(c) This merger shall become effective ("Effective Date")
on the day set forth in the Articles of Merger to be filed with
the Secretary of State of Nevada by the Parties as soon as
practicable after the date this Agreement is signed.
Section 2.
Representations and Warranties of Cyber Acquisition.
(a) Organization and Authority. Cyber Acquisition is duly
organized, validly existing, and in good standing under the laws
of the jurisdiction of its incorporation, with full corporate
power and authority to own its property and assets and to conduct
its business in the manner and in the places in which it is now
conducted. Cyber Acquisition is qualified to do business as a
domestic corporation in the State of Nevada, and the character of
the properties owned or leased by Cyber Acquisition and the
nature of the business conducted by it does not require such
qualification in any other jurisdiction, except where the failure
to so qualify would not have a material adverse affect on Cyber
Acquisition or its business.
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(b) Corporate Action. All corporate action necessary on
the part of Cyber Acquisition to authorize the execution and
delivery of this Agreement and the Articles of Merger and the
performance or satisfaction of Cyber Acquisition's obligations
hereunder and thereunder has been or will have been duly taken
prior to the Effective Date. This Agreement and the Articles of
Merger constitute the valid and binding obligations of Cyber
Acquisition enforceable in accordance with their respective
terms.
(c) Capitalization. As at the Effective Date, Cyber
Acquisition's entire capitalization shall consist of:
(i) 10,000,000 shares of Common Stock, Par Value $.001
per share, of which 10 shares shall be issued and
outstanding; and
(ii) one 8% Series A $1,000,000.00 Senior Subordinated
Convertible Redeemable Debenture due December 5, 2002,
convertible, from time to time, into authorized but unissued
shares of Common Stock, Par Value $.001, per share, upon
conversion into which no shares of said authorized but
unissued underlying Common Stock shall have been issued.
As of the date of this Agreement and as at Effective Date,
all of the outstanding capital stock of Cyber Acquisition is and
will be duly issued in accordance with all applicable laws, rules
and regulations, is and will be fully paid and non- assessable.
As of the date of this Agreement and as at Effective Date, there
are and will be no outstanding subscriptions, rights, options,
warrants or other agreements obligating Cyber Acquisition to
issue, sell or transfer any stock or other securities of Cyber
Acquisition, except as otherwise described in this Agreement.
(d) Articles of Incorporation and Bylaws. The Articles of
Incorporation and bylaws of Cyber Acquisition are true, correct
and complete. The minute books of Cyber Acquisition contain true
and complete records of all meetings and consents in lieu of
meetings of its Board of Directors and shareholders since the
date of incorporation and accurately reflect all transactions
referred to therein.
(e) No Material Adverse Changes. As of the date of this
Agreement, there shall be no material adverse change in the
assets, operations, conditions (financial of otherwise) or
prospective business of Cyber Acquisition; there shall be no
damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or
otherwise) of Cyber Acquisition, whether or not covered by
insurance; there shall be no declaration, setting aside or
payment of any dividend or distribution with respect to any
redemption or repurchase of Cyber Acquisition's capital stock;
there shall no sale of an asset (other than in the ordinary
course of business or otherwise approved by Cyber Group) or
mortgage or pledge by Cyber Acquisition of any properties or
assets.
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(f) Taxes. Cyber Acquisition has prepared and filed all
appropriate federal, state and local tax returns of every kind
and category (including, without limitation, income taxes,
estimated taxes, excise taxes, sales taxes, inventory taxes, use
taxes, gross receipt taxes, franchise taxes and property taxes)
for all periods prior to and through the date hereof for which
any such returns have been required to be filed by it and has
paid all taxes shown to be due by said returns or on any
assessments received by it, or has made adequate provisions for
the payment thereof.
(g) Compliance with Laws. Cyber Acquisition and all
business conducted by it has complied with all federal, state,
county and local laws, ordinances, regulation, inspections,
orders, judgments, injunctions, awards or decrees applicable to
it or its business which, if not complied with, would materially
and adversely affect its business.
(h) Compliance with Other Instruments. Neither the
execution nor delivery of this Agreement nor the consummation of
the transactions contemplated hereby will result in any violation
of or be in conflict with any term of any contract or other
instrument to which Cyber Acquisition is a party or of any
judgment, statute, rule or regulation applicable to Cyber
Acquisition, or result in the creation of any lien, charge or
encumbrance on any of its properties or assets, or result in the
acceleration of any obligation of Cyber Acquisition under any
deed of trust, mortgage, lease, or similar instrument to which it
is a party.
(i) No Breach. The execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated hereby will not:
(i) violate any provisions of the Articles of
Incorporation or Bylaws of Cyber Acquisition;
(ii) violate, conflict with or result in the breach of
any of the terms of, result in a material modification of,
or otherwise give any other contracting party the right to
terminate, or which constitute a default under, any contract
or other agreement to which Cyber Acquisition is a party or
by or to which it or any of its assets or properties may be
bound or subject;
(iii) violate any order, judgment, injunction, award
or decree of any court, arbitrator or governmental or
regulatory body against, or binding upon, Cyber Acquisition
or upon the properties or business of Cyber Acquisition; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated
herein.
(j) Litigation. There is no outstanding order, judgment,
injunction, award or decree of
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any court, government or
regulatory body or arbitration tribunal against or involving
Cyber Acquisition. There is no action, suit or claim or legal,
administrative or arbitral proceeding or any investigation
(whether or not the defense thereof or liabilities in respect
thereof are covered by insurance) pending or threatened against
or involving Cyber Acquisition or any of its respective
properties or assets. There is no fact, event or circumstances
that may give rise to any suit, action, claim, investigation or
proceeding except as disclosed in the letter described above.
There is no action, suit or claim or legal, administrative or
arbitral proceeding pending or threatened that would give rise to
any right of indemnification on the part of any director of Cyber
Acquisition or its respective heirs, executors or administrators
of such directors or officers.
(k) Labor Relations. Cyber Acquisition is not a party to
any collective bargaining agreement governing its employees.
There is no pending or threatened election for union
representation of Cyber Acquisition's employees.
(l) Leases. All of the leases to which Cyber Acquisition is
a party are in full force and effect and constitutes a legal,
valid, and binding obligation of the respective parties thereto
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws
relating to the enforcement of creditors' rights generally and to
the availability of equitable remedies which are subject to the
discretion of the Court before which any proceeding therefor may
be brought.
(m) Assets. The document titled "Cyber Acquisition's
ASSETS" which shall be incorporated by reference and made part of
this Agreement contains a correct and complete list and brief
description of all machinery, equipment, furniture, leasehold
improvements fixtures, vehicles, structures, owned or leased by
Cyber Acquisition, any related capitalized items or other
tangible property material to the business of Cyber Acquisition
(the "Tangible Assets"). Except as set forth in this document,
Cyber Acquisition holds all rights, title and interest in all the
properties, interests and assets, real, personal and mixed, free
and clear of all liens, pledges, mortgage, security interests,
conditional sales contracts or any other encumbrances or liens
for current taxes not yet delinquent.
(n) Accounts Receivable. All of Cyber Acquisition's
accounts and other receivables or thereafter acquired are
collectible in full, less any reserves set up for doubtful
receivables on its books.
(o) Inventories. Cyber Acquisition's inventories, as
applicable, or thereafter acquired are valued at cost or market
and consist of items which are of a quality and quantity usable
and/or saleable in the ordinary course of Cyber Acquisition's
business.
(p) Liabilities. Cyber Acquisition's Liabilities as of the
date of this Agreement are as set forth in the Financial
Statements of Cyber Acquisition attached hereto and made a part
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hereof,
(q) Conduct of Business. Cyber Acquisition shall conduct
its business only in the ordinary course thereof consistent with
prudent business judgment and past practice and in such a manner
that the representations and warranties contained in this Section
2 shall be true and correct at and as of the Effective Date
(except for changes contemplated, permitted or required by this
Agreement) and so that the conditions to be satisfied by Cyber
Acquisition at the Effective Date shall have been satisfied.
Cyber Acquisition shall not incur expenses or liabilities between
the date this Agreement is signed and the Effective Date other
than in the normal course of business.
(r) Unusual Events. Until the Effective Date, Cyber
Acquisition shall supplement or amend all relevant documents
incorporated by reference and made part of this Agreement with
respect to any matter thereafter arising or discovered which, if
existing or known at the date of this Agreement, would have been
set forth or described in such documents; provided, however, that
for the purpose of the rights and obligations of the parties
hereunder, any such material supplemental disclosure shall not be
deemed to have been disclosed to Cyber Group until the date Cyber
Acquisition delivers it to Cyber Group, unless agreed to in
writing by Cyber Group.
(s) Changes in Business Relationship. Cyber Acquisition is
not aware of any material changes or threatened changes in its
business or client relationships, including any discontinuance of
contractual relationships.
(t) Full Disclosure. No representation or warranty of
Cyber Acquisition and no statement contained in any document
incorporated by reference and made part of this Agreement
furnished by Cyber Acquisition to Cyber Group pursuant hereto or
in connection with the transactions contemplated hereby contain
or at the Effective Date will contain any untrue statement of a
material fact or omit or will omit to state a material fact
necessary to make such fact not misleading or necessary to
provide Cyber Group with full information as to Cyber Acquisition
and its affairs.
(u) Status of Representations and Warranties as at
Effective Date. The representations and warranties contained in
this Section 2 shall be true and complete on the Effective Date
with the same force and effect as though such representations and
warranties had been made on and as at the Effective Date.
Section 3.
Representations and Warranties Of Cyber Group.
(a) Reporting Company. Cyber Group is required to and does
file reports with the
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Securities and Exchange Commission ("SEC")
pursuant to Section 13 (a) or 15 (d) of The Securities Exchange
Act of 1934, and Cyber Group is current with respect to all
reports required to be filed with the SEC.
(b) Capitalization. As at the Effective Date, Cyber
Group's entire capitalization shall consist of:
(i) 50,000,000 shares of Common Stock, Par Value $.001
per share, of which 38,600,000 shares are issued and
outstanding; and
(ii) 5,000,000 shares of Preferred Stock, Par Value
$0.001 per share, no shares of which are issued or
outstanding.
As of the date of this Agreement and as at Effective Date,
all of the outstanding capital stock of Cyber Group is and will
be duly issued in accordance with all applicable laws, rules and
regulations, is and will be fully paid and non- assessable. As of
the date of this Agreement and as at Effective Date, all
outstanding subscriptions, rights, options, warrants or other
agreements obligating Cyber Group to issue, sell or transfer any
stock or other securities of Cyber Group, are as is set forth in
the Financial Statements of Cyber Group attached hereto.
(c) Organization and Authority. Cyber Group is a
corporation duly organized, validly existing, and in good
standing under the laws of the State of Nevada, with full
corporate power and authority to own its property and assets and
to conduct its business in the manner and the places in which it
is now conducted.
(d) Corporate Action. All corporate action necessary on
the part of Cyber Group to authorize the execution and delivery
to Cyber Group of this Agreement and the Articles of Merger and
the performance of its obligations thereunder has been or will
have been duly taken prior to the Effective Date. This Agreement
and the Articles of Merger constitute the valid and binding
obligations of Cyber Group enforceable in accordance with their
respective terms. The execution and delivery of and the
consummation of the transactions provided for in this Agreement
and the Articles of Merger will not violate any provision of the
Certificate of Incorporation, Articles of Incorporation or Bylaws
of Cyber Group, as applicable, any provision of law, or any
judgment, order or decree of any court or agency or government,
applicable to Cyber Group, or result in a breach of, default
under, or acceleration of any obligation under any indenture or
agreement to which Cyber Group is a party.
(e) Compliance with Other Instruments. Neither the
execution nor delivery of this Agreement nor the consummation of
the transactions contemplated hereby will result in any violation
of or be in conflict with any term or any contract or other
instrument to which Cyber
/8/
Group is a party or of any judgment,
decree, order, statute, rule or regulation applicable to Cyber
Group, or result in the creation of any lien, charge or
encumbrance on any of its properties or assets, or result in the
acceleration of any obligation of Cyber Group under any deed of
trust, mortgage, lease, or similar instrument to which it is a
party.
(f) Compliance with Laws. Cyber Group has complied with
all federal, state, county, local laws, ordinances, regulations,
inspections, orders, judgments, injunctions, awards or decrees
applicable to it or its business which, if not complied with,
would materially and adversely affect its status as a public
company.
(g) Articles of Incorporation and Bylaws. Cyber Group's
Articles of Incorporate and Bylaws and any amendments to each,
are true, correct and complete. The minute books of Cyber Group
contain true and complete records of all meetings and consents in
lieu of meetings of their respective Board of Directors and
shareholders since the date of incorporation and accurately
reflect all transactions; referred to therein.
(h) Financial Statements and Liabilities. Cyber Group's
Financial Statements set forth in its reports filed with the SEC
are true and correct, and, together with the disclosure made in
said Reports, fully disclose all of Cyber Group's assets and
liabilities.
(i) Disclosures. No representation or warranty of Cyber
Group in this Agreement, and no statement contained in any
document incorporated by reference and made a part of this
Agreement or other document furnished or to be furnished by Cyber
Group to Cyber Acquisition pursuant hereto or in connection with
the transactions contemplated hereby contains or at the Effective
Date will contain any untrue statement of a material fact or omit
or will omit to state a material fact necessary to make it not
misleading or necessary to provide Cyber Acquisition with full
information as to Cyber Group and its affairs.
(j) No Material Adverse Changes. As of the date of this
Agreement, there shall be no material adverse change in the
assets, operations, conditions (financial of otherwise) or
prospective business of Cyber Group; there shall be no damage,
destruction or loss materially affecting the assets, prospective
business, operations or condition (financial or otherwise) of
Cyber Group, whether or not covered by insurance; there shall be
no declaration, setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of
Cyber Group's capital stock; there shall no sale of an asset
(other than in the ordinary course of business or otherwise
approved by Cyber Acquisition) or mortgage or pledge by Cyber
Group of any properties or assets.
(k) Taxes. Cyber Group has prepared and filed all
appropriate federal, state and local tax returns of every kind
and category (including, without limitation, income taxes,
estimated taxes, excise taxes, sales taxes, inventory taxes, use
taxes, gross receipt taxes, franchise taxes and
/9/
property taxes)
for all periods prior to and through the date hereof for which
any such returns have been required to be filed by it and has
paid all taxes shown to be due by said returns or on any
assessments received by it, or has made adequate provisions for
the payment thereof.
(l) Agreements. The document titled "Cyber Group's
MATERIAL CONTRACTS" which shall be incorporated by reference into
this Agreement sets forth any material contract or arrangement to
which Cyber Group is a party or by or to which it or its assets,
properties or business are bound or subject whether oral or
written. All of the agreements set forth in said document are
valid, binding enforceable, subsisting agreements, in full force
and effect. Cyber Group is not in default under any of them (nor
is any other party to any of such agreements, nor does any
condition exist which with notice or lapse of time or both would
constitute default thereunder).
(m) Insurance Policies. The document titled "Cyber Group's
INSURANCE POLICIES" which shall be incorporated by reference and
made part of this Agreement contains a complete and correct list
and summary description of all insurance policies held by Cyber
Group and in force and effect at the date hereof, including but
not limited to key-man insurance, workers' compensation and
employer liability, automobile insurance, malpractice insurance,
product liability and title insurance.
(n) Labor Relations. Cyber Group is not a party to any
collective bargaining agreement governing its employees. There is
no pending or threatened election for union representation of
Cyber Group's employees.
(o) Conduct of Business. Between the date of this
Agreement and the Effective Date, Cyber Group shall conduct its
business only in the ordinary course thereof consistent with
prudent business judgment and past practice and in such a manner
that the representations and warranties contained in this Section
3 shall be true and correct at and as of the Effective Date
(except for changes contemplated, permitted or required by this
Agreement) and so that the conditions to be satisfied by Cyber
Group at the Effective Date shall have been satisfied. Cyber
Group shall not incur expenses or liabilities between the date
this Agreement is signed and the Effective Date other than in the
normal course of business.
(p) Unusual Events. Until the Effective Date, Cyber Group
shall supplement or amend all relevant documents incorporated by
reference and made part of this Agreement with respect to any
matter thereafter arising or discovered which, if existing or
known at the date of this Agreement, would have been set forth or
described in such documents; provided, however, that for the
purpose of the rights and obligations of the parties hereunder,
any such material supplemental disclosure shall not be deemed to
have been disclosed to Cyber Acquisition until the date Cyber
Group delivers it to Cyber Group, unless agreed to in writing by
Cyber Acquisition.
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(q) Changes in Business Relationship. Cyber Group is not
aware of any material changes or threatened changes in its
business or client relationships, including any discontinuance of
contractual relationships.
(r) Full Disclosure. No representation or warranty of
Cyber Group and no statement contained in any document
incorporated by reference and made part of this Agreement
furnished by Cyber Group to Cyber Acquisition pursuant hereto or
in connection with the transactions contemplated hereby contain
or at the Effective Date will contain any untrue statement of a
material fact or omit or will omit to state a material fact
necessary to make such fact not misleading or necessary to
provide Cyber Acquisition with full information as to Cyber Group
and its affairs.
(s) Representations and Warranties as at Effective Date.
The representations and warranties contained in this Section 3
shall be true and complete on the Effective Date with the same
force and effect as though such representations and warranties
had been made on and as at the Effective Date.
Section 4.
Covenants of Cyber Acquisition.
(a) Conduct of Business. From the date of this Agreement
through the Effective Date, Cyber Acquisition shall conduct its
business in the ordinary course.
(b) Preservation of Business. From the date hereof through
the Effective Date, Cyber Acquisition shall use its best efforts
to preserve its business organization intact, keep available the
services of its present officers, employees, consultants and
agents, maintain its present suppliers and customers and preserve
its goodwill.
(c) Insurance. Cyber Acquisition at all times will have in
effect and maintain insurance now in force on or with respect to
its properties and assets and its business and will at all times
have in effect and maintain insurance coverage against all
hazards, casualties, liabilities, and losses in the amount and of
the character and kind normally carried by corporations engaged
in a business similar to that conducted by it.
(d) Litigation. Cyber Acquisition shall promptly notify
Cyber Group of any lawsuits, claims, proceedings or
investigations which after the date hereof are threatened or
commenced against it or any of their respective officers,
directors, employees, consultants, agents, shareholders or other
representatives with respect to the affairs of Cyber Group.
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(e) Compliance with Laws. Cyber Acquisition will comply in
all material respects with federal and state regulations
necessary to effectuate the exchange of all outstanding capital
stock of Cyber Acquisition for shares of capital stock of Cyber
Acquisition, as contemplated by this Agreement
(f) Continued Effectiveness of Representations and
Warranties. From the date hereof through the Effective Date,
Cyber Acquisition shall conduct its business in such a manner so
that the representations and warranties contained in Section 2
shall continue to be true and correct on and as of the Effective
Date and as if made on the date of this Agreement, and shall:
(i) promptly give notice to Cyber Group of any event,
condition or circumstances occurring from the date hereof
through the Effective Date which would render any of the
representations or warranties untrue, incomplete,
insufficient or constitute a violation or breach of this
Agreement; and
(ii) supplement the information contained herein in
order that such information is kept current, complete and
accurate.
Section 5.
Covenants of Cyber Group.
(a) Conduct of Business. From the date of this Agreement
through the Effective Date, Cyber Acquisition shall conduct its
business in the ordinary course.
(b) Preservation of Business. From the date hereof through
the Effective Date, Cyber Acquisition shall use its best efforts
to preserve its business organization intact, keep available the
services of its present officers, employees, consultants and
agents, maintain its present suppliers and customers and preserve
its goodwill.
(c) Insurance. Cyber Acquisition at all times will have in
effect and maintain insurance now in force on or with respect to
its properties and assets and its business and will at all times
have in effect and maintain insurance coverage against all
hazards, casualties, liabilities, and losses in the amount and of
the character and kind normally carried by corporations engaged
in a business similar to that conducted by it.
(d) Compliance with Laws. Cyber Group will comply in all
material respects with federal and state regulations necessary to
effectuate the exchange of all outstanding capital stock of Cyber
Acquisition for shares of capital stock of Cyber Group, as
contemplated by this Agreement
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(e) Litigation. Cyber Group shall promptly notify Cyber
Acquisition of any lawsuits, claims, proceedings or
investigations which after the date hereof are threatened or
commenced against it or against any of their respective officers,
directors, employees, consultants, agents, shareholders or other
representatives with respect to the affairs of Cyber Group.
(f) Continued Effectiveness of Representations and
Warranties. From the date hereof to the Effective Date, Cyber
Group shall conduct its business in such a manner so that the
representations and warranties contained in Section 3 shall
continue to be true and correct on and as of the Effective Date
and as if made on the date of this Agreement, and shall:
(i) promptly give notice to Cyber Acquisition of any
event, condition or circumstances occurring from the date
hereof through the Effective Date which would render any of
the representations or warranties untrue, incomplete,
insufficient or constitute a violation or breach of this
Agreement; and
(ii) supplement the information contained herein in
order that such information is kept current, complete and
accurate.
(g) Dissenter's Rights. Cyber Group understands that, as
the owner/shareholder of Cyber Acquisition, it may have
Dissenter's Rights under Nevada law. However, as the sole
owner/shareholder of Cyber Acquisition, Cyber Group declares that
Dissenter's Rights shall not be demanded prior to or after the
Effective Date pursuant to the provisions of Nevada Law, if any,
as to dissenters' rights, and by signing this Agreement, Cyber
Group waives dissenters' rights, if any, under Nevada law.
Section 6.
Conditions to the Obligations of Cyber Group.
The obligations of Cyber Group to consummate this Agreement
and the transactions contemplated hereby are subject to the
satisfaction at or before the Effective Date of every one of the
following conditions, any of which Cyber Group may in its sole
discretion waive:
(a) Representations and Warranties. The representations
and warranties of Cyber Acquisition set forth in Section 2 hereof
shall be true and correct at and as of the Effective Date with
the same effect as though such representations and warranties had
been made on and as of the date of this Agreement, and any
letter, statement, list, certificate or other written information
furnished by Cyber Acquisition pursuant hereto or in connection
on with the transactions contemplated hereby shall be true and
correct in all material respects at and as of the date or dates
stated therein.
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(b) Performance of Cyber Acquisition. Cyber Acquisition
shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied
with by it either prior to or at the Effective Date.
(c) Governmental Permits and Approvals. Any and all permits and
approvals from any governmental or regulatory body required for
the lawful consummation of the transaction contemplated shall
have been obtained.
(d) Third Party Consents. All consents, permits and
approvals from parties to any contracts or other agreements which
may be required in connection with the performance by the Parties
hereto of their obligations under such contacts or other
agreements shall have been obtained.
(e) Litigation. No action, suit or proceeding shall have
been instituted before any court or governmental or regulatory
body or instituted or threatened by a governmental or regulatory
body to restrain, modify or prevent the carrying out of the
transactions contemplated hereby or to seek damages or a
discovery order in connection with such transactions, or which
has or may have, in the opinion of Cyber Group, a materially
adverse effect on the assets, properties, business, operations or
condition (financial or otherwise) of Cyber Acquisition.
(f) Absence of Adverse Changes. Since the date of this
Agreement, there shall have been no change in the financial
condition, business, or properties of Cyber Acquisition which
materially and adversely affects the conduct of its business or
its condition, financial or otherwise.
(g) No Restraining Order. There shall not have been any
action or proceeding instituted or threatened before any court or
governmental agency to restrain or prohibit, or obtain
substantial damages in respect of, this Agreement or the
consummation of the transactions contemplated hereby, which in
the opinion of Cyber Group make it inadvisable to consummate such
transaction.
(h) Compliance Certificate. Cyber Group shall have
received a Certificate signed by the President of Cyber
Acquisition dated as of the Effective Date and satisfactory in
form and substance to Cyber Group certifying to the fulfillment
of the conditions specified in Section 6.
Section 7.
Conditions to the Obligations of Cyber Acquisition.
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The obligations of Cyber Acquisition to consummate this
Agreement and the transactions contemplated hereby are subject to
the satisfaction at or before the Effective Date of each and
every one of the following conditions, any of which Cyber
Acquisition may in its sole discretion waive:
(a) Representations and Warranties. The representations
and warranties of Cyber Group set forth in Section 3 hereof shall
be true and correct at and as of the Effective Date with the same
effect as though such representations and warranties had been
made on and as of the date of this Agreement, and any letter,
statement, list, certificate or other written information
furnished by Cyber Group pursuant hereto or in connection on with
the transactions contemplated hereby shall be true and correct in
all material respects at and as of the date or dates stated
therein.
(b) Performance of Cyber Group. Cyber Group shall have
performed and complied with all agreements and conditions
required by this Agreement to be performed or complied with by it
either prior to or at the Effective Date.
(c) Governmental Permits and Approvals. Any and all
permits and approvals from any governmental or regulatory body
required for the lawful consummation of the transaction
contemplated shall have been obtained.
(d) Third Party Consents. All consents, permits and
approvals from parties to any contracts or other agreements which
may be required in connection with the performance by the Parties
hereto of their obligations under such contacts or other
agreements shall have been obtained.
(e) Litigation. No action, Suit or proceeding shall have
been instituted before any court or governmental or regulatory
body or instituted or threatened by a governmental or regulatory
body to restrain, modify or prevent the carrying out of the
transactions contemplated hereby or to seek damages or a
discovery order in connection with such transactions, or which
has or may have, in the opinion of Cyber Acquisition, a
materially adverse effect on the assets, properties, business,
operations or condition (financial or otherwise) of Cyber Group.
(f) Absence of Adverse Changes. Since the date of this
Agreement, there shall have been no change in the financial
condition, business, or properties of Cyber Acquisition which
materially and adversely affects the conduct of its business or
its condition, financial or otherwise.
(g) No Restraining Order. There shall not have been any
action or proceeding instituted or threatened before any court or
governmental agency to restrain or prohibit, or obtain
substantial damages in respect of, this Agreement or the
consummation of the transactions
/15/
contemplated hereby, which in
the opinion of Cyber Acquisition make it inadvisable to
consummate such transaction.
(h) Securities Certificates. At the Effective Date, each
Shareholder and Debenture Holder of Cyber Acquisition shall
receive a certificate or certificates representing the number of
shares of common stock and/or Debentures of Cyber Group to which
they are entitled.
(i) Compliance Certificate. Cyber Acquisition shall have
received a certificate signed by the President of Cyber Group
dated as of the Effective Date and satisfactory in form and
substance to Cyber Group certifying to the fulfillment of the
conditions specified in Section 7.
Section 8.
Survival of Representations and Warranties.
All representations, warranties, agreements, covenants, and
obligations herein made by or in any of the documents
incorporated by reference and made a part of this Agreement shall
be deemed to have been relied upon by each of the other parties,
shall survive the Effective Date for a period of two years
thereafter, and shall not merge in the performance of any
obligation by any party hereto.
Section 9.
Termination.
(a) This Agreement may be terminated at any time prior to
the filing of the Articles of Merger in the office of the
Secretary of the State of Nevada by:
(i) Mutual consent of Cyber Acquisition and Cyber
Group;
(ii) Cyber Group if, at the Effective Date, any of the
conditions set forth in Section 6 shall not have been
satisfied;
(iii) Cyber Acquisition if, at the Effective Date, any
of the conditions set forth in Section 7 shall not have been
satisfied;
(iv) Cyber Group, if Cyber Acquisition has breached
any material representation warranty, covenant or agreement
contained in this Agreement;
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(v) Cyber Acquisition, if Cyber Group has breached any
material representation, warranty, covenant or agreement
contained in this Agreement;
(vi) Cyber Group, 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
(vi) Cyber Acquisition, 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;
(b) If this Agreement shall be terminated as provided in
Section 9 (a), 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.
Section 10.
Indemnification.
(a) Obligation of Cyber Acquisition to Indemnify. Subject
to the limitations on the survival of representations and
warranties contained in Section 8, Cyber Acquisition, its
respective officers, directors and employees hereby agree to
indemnify, defend and hold Cyber Group 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 Cyber Acquisition contained in
this Agreement or in any document or other writing delivered
pursuant to this Agreement.
(b) Obligation of Cyber Group to Indemnify. Subject to the
limitations on the survival of representations and warranties
contained in Section 8, Cyber Group, its respective officers,
directors and employees, hereby agree to indemnify, defend and
hold Cyber Acquisition 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 Group contained in this
Agreement or in any document or other writing delivered pursuant
to this Agreement.
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Section 11.
Miscellaneous.
(a) Notices. Any notice, request, demand or other
communication which is
required to or may be given under this Agreement shall be in
writing, and shall be sufficiently given if delivered in person,
by Federal Express or similar receipted delivery, by facsimile
delivery or, if mailed, postage prepaid, by certified mail,
return receipt requested, as follows:
If to Cyber Group:
Xxxxxx Xxxxxx, President
The Cyber Group Network Corp.
000 Xxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxxxxx, XX 00000
Facsimile Telephone Number (909) 890 - 5849
with a copy (which shall not constitute notice) to:
Xxxx Xxxxxxxxxx, Secretary
The Cyber Group Network Corp.
000 Xxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxxxxx, XX 00000
Facsimile Telephone Number (909) 890 - 5849
If to Cyber Acquisition:
Xxxxxx Xxxxxx, President
CGN Acquisitions Corporation
000 Xxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxxxxx, XX 00000
Facsimile Telephone Number (909) 890 - 5849
with a copy (which shall not constitute notice) to:
Xxxx Xxxxxxxxxx, Secretary
CGN Acquisitions Corporation
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000 Xxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxxxxx, XX 00000
Facsimile Telephone Number (909) 890 - 5849
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 7.2.
Notice shall be deemed to have been given when actually
received by the addressee or recipient of the writing in
question. When giving notice under this Agreement, time shall be
calculated to, or from, as the case may be, the date of: (a)
personal delivery, (b) delivery by certified mail, Federal
Express or other method by which the delivery date can be
verified successfully, or (c) facsimile transmission, in which
case the successful transmission confirmation receipt from the
sender's facsimile machine shall be presumptive evidence of
successful facsimile delivery.
(b) Fees and Expenses. Each of the Parties will bear its
own costs and expenses in connection with the negotiation and the
consummation of this Agreement.
(c) Amendment. This Agreement may be amended by mutual
agreement of the Parties at any time prior to the Effective Date.
All amendments must be in writing equal in dignity to this
Agreement.
(d) Further Assurances. The Parties shall execute such
documents and other papers and take such further actions as may
be reasonably required or desirable to carry out the provisions
hereof and the transactions contemplated hereby. Each such Party
shall use it best efforts to fulfill or obtain the fulfillment of
the conditions.
(e) Law Governing. This Agreement shall be deemed to have
been entered into under the Laws of the State of California and
the rights and obligations of the parties hereunder shall be
governed and determined according to the Laws of California
without regard to applicable conflicts of laws.
(f) Resolution of Disputes - Arbitration. All disputes
concerning this Agreement or any claim or issue of any nature
(whether brought by the Parties hereto or by any other person
whatsoever) 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 San Bernardino County, California,
which arbitration will proceed in accordance with the rules of
the American Arbitration Association (or any successor
organization thereto) then in
/19/
force for resolution of commercial
disputes.
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.
Each entity or 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).
(g) Entire Agreement and Counterparts. This Agreement and
the documents incorporated by reference and made a part of it and
any other instruments and agreements to be delivered in
conjunction herewith constitute the entire agreement between the
parties with respect to the transactions contemplated herein and
supersede all prior agreements and understandings, whether
written or oral, of the Parties with respect thereto. This
Agreement may be executed in one or more counterparts, all of
which taken together shall constitute one instrument.
(h) Construction. This Agreement shall be construed within
the fair meaning of each of its terms and not against the party
drafting the document.
(i) Waiver of Notice and Mailing. Pursuant to Section
92A.180.3. NRS, Cyber Group as the sole shareholder of its
subsidiary, Cyber Acquisition, has, and does hereby waive, the
Plan Summary notice and mailing requirements set forth in Section
92A.180. NRS.
IN WITNESS WHEREOF, this Agreement has been executed by the
Parties hereto under their respective seals, as of the day and
year first above written.
CYBER GROUP:
THE CYBER GROUP NETWORK CORP.
By: /s/ Xxxxxx Hobson_____________
Xxxxxx Xxxxxx, President
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By: /s/ Xxxx Cunningham____________
Xxxx Xxxxxxxxxx, Secretary
CYBER ACQUISITION:
CGN ACQUISITIONS CORPORATION
By: /s/ Xxxxxx Hobson_____________
Xxxxxx Xxxxxx, President
By: /s/ Xxxx Cunningham____________
Xxxx Xxxxxxxxxx, Secretary
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