EXHIBIT 10.10
PLAN OF MERGER
THIS PLAN OF MERGER (the "Agreement"), entered into this 24 th 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 E-City Software,
Inc., a corporation organized pursuant to the laws of the State of Nevada
("ECTY").
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 ECTY 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 ECTY 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 the Laws of the States of Florida and Nevada;
(ii) ECTY shall merge into Cyber/Fla, and ECTY 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 ECTY, and Cyber/Fla shall be subject to all the
restrictions, disabilities, and duties of ECTY with respect thereto; all
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debts, liabilities, duties, and obligations of ECTY, including obligations
of ECTY with respect to holders of securities of ECTY shall be vested in
Cyber/Fla; all property, real, personal or mixed, and all debts and
obligation due to ECTY on whatever account shall be vested in Cyber/Fla;
and all rights of creditors and all liens upon any property of ECTY 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 30 (thirty) shares of Common Stock of ECTY 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 1 (one) share of the
Class A Common Stock of Cyber/Fla;
(vi) With respect to all other Issued and Outstanding securities of
ECTY (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 ECTY securities, shall be deemed for all corporate purposes to
evidence ownership of the appropriate number of shares of securities of
Cyber/Fla into which ECTY 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
ECTY 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.
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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.
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.
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(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.
(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 ECTY 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
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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 ECTY; 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 ECTY, which might materially and adversely affect
the business or prospects of ECTY.
Section 4.2 Conditions Precedent to Obligations of ECTY.
The obligations of ECTY 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 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.
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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 ECTY;
(b) by Cyber/Fla, if ECTY has breached any material representation
warranty, covenant or agreement contained in this Agreement;
(c) by ECTY, 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
(e) by ECTY, 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 ECTY to Indemnify.
Subject to the limitations on the survival of representations and
warranties contained herein, ECTY, 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 ECTY 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 herein, Cyber/Fla, its respective officers, directors and
employees, shall indemnify, defend and hold ECTY harmless from and against any
losses, liabilities, damages, deficiencies, costs or expenses (including
interest, penalties and reasonable attorneys fees and disbursements) based upon,
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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 be presumptively deemed to have been given at the time
that records of the delivery service indicate the writing was delivered to
the addressee;
(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.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, CEO
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to ECTY, to:
E-City Software, Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, CEO
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
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(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.
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
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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/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, CEO
ECTY:
E-City Software, Inc.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, CEO
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