UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment No. )
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Filed by the Registrant [_]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[x] Preliminary Proxy Statement
[_] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[_] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to Sec.240.14a-12
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
(Name of Registrant as Specified in its Charter)
MFC BANCORP LTD. AND VENTEGIS CAPITAL AG
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check appropriate box):
[x] No fee required.
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and
0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on
which the filing fee is calculated and state how it was
determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[_] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
November , 2001
Dear Fellow Stockholders:
RE: STOCKHOLDERS MEETING OF CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
("CYBERNET") CURRENTLY SCHEDULED TO BE HELD ON DECEMBER 4, 2001
Cybernet has not held an election of directors since May 17, 1999 and
stockholders of Cybernet have not voted to elect directors of Cybernet for more
than two and a half years.
WE BELIEVE THAT CYBERNET IS IN A FINANCIAL CRISIS. CYBERNET HAS RECENTLY
ANNOUNCED THAT THERE CAN BE NO ASSURANCE THAT IT WILL BE ABLE TO CONTINUE AS A
GOING CONCERN.
THE RIGHT LEADERSHIP FOR CYBERNET
We represent the right to vote approximately 26% of the issued and outstanding
shares of common stock of Cybernet, more than three times as many shares as are
collectively held by the present directors and executive officers of
Cybernet. In October 2001, we formally requested that the board of directors of
Cybernet appoint certain of our representatives and that certain existing
directors resign. The board of directors of Cybernet refused to make such
changes.
We intend to elect such number of director nominees to comprise one-half of the
board of directors of Cybernet. To provide what we believe is the right
leadership for the future of Cybernet, we have assembled a slate of director
nominees to fill certain positions on the board of directors of Cybernet
comprised of people who have in-depth experience and proven records of
performance in the financing, restructuring, management and governance of public
companies. Our nominees are: Michael J. Smith, Roy Zanatta and Eduard Seligman.
A TIME FOR CHANGE AT CYBERNET
We believe the time for change at Cybernet is now. That is why we are asking
you to elect our nominees to the board of directors of Cybernet.
OUR PLAN FOR CYBERNET
We intend to elect a slate of directors with the experience necessary to lead a
restructuring of Cybernet. The newly elected board members intend to work with
continuing board members and management to develop and formulate the appropriate
plans and strategies to carry out such a restructuring and preserve and enhance
shareholder value.
On November 13, 2001, Cybernet's Chief Executive Officer applied for and
received an order from the Court of Chancery (the "Court") of the State of
Delaware in the United States scheduling a stockholders meeting for the election
of directors of Cybernet for December 4, 2001 and waiving all quorum
requirements (the "Delaware Action"). We were not provided notice of such
application despite Cybernet's awareness of our interest in board representation
and our demands for a stockholders meeting. On November 16, 2001, we moved to
intervene in the Delaware Action and have asked the Court, inter alia, to vacate
its order dated November 15, 2001 that set December 4, 2001 as the date for
the stockholders meeting to elect directors of Cybernet and to set November 13,
2001 as the record date for such meeting. The current date of the stockholders
meeting and the current record date are subject to the results of our requests
for relief in the Delaware Action.
YOUR VOTE IS EXTREMELY IMPORTANT. WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING
OF STOCKHOLDERS FOR THE ELECTION OF DIRECTORS OF CYBERNET CURRENTLY SCHEDULED
FOR DECEMBER 4, 2001 (SUBJECT TO THE OUTCOME OF THE DELAWARE ACTION), WE URGE
YOU TO VOTE FOR THE ELECTION OF OUR NOMINEES BY SIGNING, DATING AND RETURNING
THE ENCLOSED YELLOW PROXY CARD. A postage-paid envelope is enclosed for your
convenience.
If you have any questions or require any assistance in executing or delivering
your proxy, please call Marlene Bryl, of MFC Capital Partners AG, at (49 30) 20
94 58 00.
Sincerely,
Shareholders Group
MFC BANCORP LTD. VENTEGIS CAPITAL AG
PER: /S/ MICHAEL J. SMITH PER: /S/ KARSTEN HAESEN
-------------------- ------------------
MICHAEL J. SMITH KARSTEN HAESEN
PRESIDENT AND CHIEF BOARD MEMBER
EXECUTIVE OFFICER
C/O MFC CAPITAL PARTNERS AG
CHARLOTTENSTRASSE 59 CICEROSTRASSE 21
D-10117 BERLIN, GERMANY 10709 BERLIN, GERMANY
ANNUAL MEETING OF STOCKHOLDERS OF
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
FOR THE ELECTION OF DIRECTORS
CURRENTLY SCHEDULED TO BE HELD ON DECEMBER 4, 2001
PROXY STATEMENT OF
MFC BANCORP LTD. AND VENTEGIS CAPITAL AG
IN OPPOSITION TO THE BOARD OF DIRECTORS OF
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
This proxy statement and the enclosed YELLOW proxy card are being furnished to
you, the stockholders of Cybernet Internet Services International, Inc.
("Cybernet" or the "Company"), in connection with the solicitation of proxies by
MFC Bancorp Ltd. ("MFC") and Ventegis Capital AG ("Ventegis", and collectively
with MFC, the "Shareholders Group") for use at the meeting of stockholders to
elect directors of Cybernet, and at any adjournments, postponements or
reschedulings thereof (the "Stockholders Meeting").
We intend to elect such number of director nominees to comprise one-half of the
board of directors of Cybernet. Depending on the number of directors comprising
the board of Cybernet, we anticipate nominating either two or three directors
for election at the Stockholders Meeting. If only two directors are nominated
for election, it is anticipated that Roy Zanatta will not stand for election as
a Class B director of Cybernet. The Shareholders Group is soliciting proxies to
take the following actions at the Stockholders Meeting:
(1) to elect Roy Zanatta as a Class B director of Cybernet to serve
until the 2003 annual meeting of stockholders of Cybernet, if
appropriate;
(2) to elect Michael J. Smith and Eduard Seligman as Class C directors
of Cybernet to serve until the 2004 annual meeting of stockholders
of Cybernet;
(3) to reject the approval of the Cybernet 1998 Stock Incentive Plan;
(4) to ratify the appointment of Ernst & Young Deutsche Allgemeine
Treuhand AG as corporate auditors of Cybernet for the 2000 and
2001 calendar years; and
(5) to transact such other business as may properly come before the
Stockholders Meeting.
The Stockholders Meeting is currently scheduled to be held on Tuesday, December
4, 2001 at 11:00 a.m. local time at Cybernet's office at Stefan-George-Ring
19-23, 81929 Munich, Germany. Cybernet has currently set August 7, 2001 as the
record date for determining stockholders entitled to receive notice of and to
vote at the Stockholders Meeting.
On November 13, 2001, Cybernet's Chief Executive Officer applied for and
received an order from the Court of Chancery (the "Court") of the State of
Delaware in the United States scheduling the Stockholders Meeting for December
4, 2001 and waiving all quorum requirements (the "Delaware Action"). We were
not provided notice of such application despite Cybernet's awareness of our
interest in board representation and our demands for a stockholders meeting. On
November 16, 2001, we moved to intervene in the Delaware Action and have asked
the Court, inter alia, to vacate its order dated
November 15, 2001 that set December 4, 2001 as the date for the Stockholders
Meeting and to set November 13, 2001 as the record date for the Stockholders
Meeting. The current date of the Stockholders Meeting and the current record
date are subject to the results of our requests for relief in the
Delaware Action.
Information concerning the Shareholders Group, its nominees and other persons
who are participants in its solicitation of proxies is provided in this proxy
statement under the headings "Election of Directors" and "Information About the
Participants" and in Annex A.
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A PROXY MAY BE GIVEN BY ANY PERSON WHO HELD SHARES OF COMMON STOCK OR SHARES OF
SERIES B PREFERRED STOCK OF CYBERNET ON AUGUST 7, 2001, THE CURRENT RECORD DATE
FOR THE STOCKHOLDERS MEETING (SUBJECT TO THE OUTCOME OF THE DELAWARE ACTION).
WHETHER OR NOT YOU PLAN TO ATTEND THE STOCKHOLDERS MEETING, YOU ARE URGED TO
SIGN AND DATE THE ENCLOSED YELLOW PROXY CARD AND RETURN IT IN THE POSTAGE-PAID
ENVELOPE PROVIDED. YOUR LATEST-DATED PROXY IS THE ONLY ONE THAT COUNTS, SO YOU
MAY RETURN THE YELLOW PROXY CARD EVEN IF YOU HAVE ALREADY DELIVERED A PROXY. WE
URGE YOU NOT TO RETURN ANY PROXY SENT TO YOU BY CYBERNET.
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The date of this proxy statement is November , 2001. This proxy statement and
the enclosed YELLOW proxy card are first being sent or given to stockholders of
Cybernet on or about November , 2001.
INTRODUCTION
At the Stockholders Meeting, one person may be elected as a Class B director of
Cybernet to serve until the 2003 annual meeting of stockholders of Cybernet and
two persons may be elected as Class C directors of Cybernet to serve until the
2004 annual meeting of stockholders of Cybernet. We intend to elect such number
of director nominees to comprise one-half of the board of directors of Cybernet.
The Shareholders Group has provided written notice to Cybernet of its intent to
nominate its nominees for election to Cybernet's board of directors at the
Stockholders Meeting and has requested that Cybernet waive the 30 day notice
requirement for director nominations, if applicable, and notified Cybernet that
the Court of Chancery of the State of Delaware has scheduled a hearing on
December 3, 2001 to consider the Shareholders Group's requests for relief in the
Delaware Action. The Shareholders Group is soliciting your proxy in support of
the election of Roy Zanatta as a Class B director, if appropriate, and/or
Michael J. Smith and Eduard Seligman as Class C directors of Cybernet. We
believe the nominees of the Shareholders Group are highly qualified individuals
based on their extensive business and professional experience, particularly in
the financing, restructuring, management and governance of public companies. For
more information regarding the nominees of the Shareholders Group, see "Election
of Directors - Information About Our Nominees".
YOUR VOTE IS IMPORTANT SO PLEASE SIGN, DATE AND MAIL YOUR YELLOW PROXY CARD AT
YOUR EARLIEST CONVENIENCE.
If you have any questions concerning this proxy statement or need help voting
your shares, please call Marlene Bryl, of MFC Capital Partners AG, at (49 30) 20
94 58 00.
WHY WE BELIEVE THE CURRENT BOARD OF DIRECTORS
OF CYBERNET MUST BE CHANGED
Cybernet has not held an election of directors since May 17, 1999 and
stockholders of Cybernet have not voted to elect directors of Cybernet for more
than two and a half years.
WE BELIEVE THAT IT IS TIME TO CHANGE THE BOARD OF DIRECTORS OF CYBERNET. WE
BELIEVE THAT CYBERNET IS CURRENTLY IN A FINANCIAL CRISIS.
* Ernst & Young Deutsche Allgemeine Treuhand AG, Cybernet's independent
auditors, have recognized the state of Cybernet's financial crisis
and have reported on Cybernet's consolidated financial statements
for the year ended December 31, 2000 the following:
"[T]he Company has incurred recurring operating losses and
used significant amounts of cash to operate the Company.
These conditions raise substantial doubt about the Company's
---------------------------------------------------------------
ability to continue as a going concern." (Emphasis added)
---------------------------------------
Cybernet has confirmed and reiterated such concerns in its most recent quarterly
report on Form 10-Q for the period ended September 30, 2001 stating the
following:
"Investors in the Company should review carefully the report of
Ernst & Young. There can be no assurance that we will be able
-----------------------------------------------
to continue as a going concern." (Emphasis added)
-------------------------------
. . .
"We believe that our cash and cash equivalents will provide
adequate liquidity to fund our normal operating activities
over the next four months." (Emphasis added)
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* Since December 31, 1998, Cybernet's total debt has risen from euro
10.4 million to euro 180.1 million as at September 30, 2001, an
increase of approximately 1,632%.(1)
[GRAPH]
DEBT(1)
(EUROS, IN THOUSANDS)
December 31, 1998 10,357
December 31, 1999 218,041
December 31, 2000 182,618
September 30, 2001 180,121
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(1) Source: Cybernet's annual reports on Form 10-K for the periods ended
December 31, 1998, 1999 and 2000, respectively, and Cybernet's quarterly
report on Form 10-Q for the period ended September 30, 2001.
* Since December 31, 1998, Cybernet's shareholders' equity has eroded
dramatically. As at September 30, 2001, Cybernet's liabilities
exceeded its assets by euro 27.8 million.(1)
[GRAPH]
SHAREHOLDERS' EQUITY (DEFICIT)(1)
(EUROS, IN THOUSANDS)
December 31, 1998 57,724
December 31, 1999 68,448
December 31, 2000 13,203
September 30, 2001 (27,751)
- ------------------
(1) Source: Cybernet's annual reports on Form 10-K for the periods ended
December 31, 1998, 1999 and 2000, respectively, and Cybernet's quarterly
report on Form 10-Q for the period ended September 30, 2001.
* Cybernet's share price as quoted on the OTC Bulletin Board in the
United States has fallen from a high of $47.00 on January 20, 1999
to $0.68 on November 15, 2001.(2) The following chart
demonstrates Cybernet's declining monthly closing share price from
December 30, 1998 to October 31, 2001.(2)
[GRAPH]
COMMON STOCK PRICE(2)
(U.S.$)
December 30, 1998 $ 36.875
January 29, 1999 $ 40.50
February 26, 1999 $ 33.50
March 31, 1999 $ 28.00
April 30, 1999 $ 24.75
May 28, 1999 $ 20.00
June 30, 1999 $ 19.00
July 29, 1999 $ 15.75
August 31, 1999 $ 15.00
September 30, 1999 $ 15.25
October 29, 1999 $ 15.375
November 30, 1999 $ 11.00
December 31, 1999 $ 8.75
January 31, 2000 $ 11.00
February 29, 2000 $ 15.50
March 31, 2000 $ 11.50
April 28, 2000 $ 9.00
May 31, 2000 $ 6.50
June 29, 2000 $ 5.5625
July 28, 2000 $ 4.75
August 31, 2000 $ 4.00
September 28, 2000 $ 4.4375
October 31, 2000 $ 4.50
November 30, 2000 $ 3.25
December 28, 2000 $ 1.8125
January 31, 2001 $ 2.625
February 23, 2001 $ 2.00
March 30, 2001 $ 1.0938
April 30, 2001 $ 0.90
May 31, 2001 $ 0.95
June 29, 2001 $ 0.72
July 30, 2001 $ 0.60
August 30, 2001 $ 0.55
September 26, 2001 $ 0.40
October 31, 2001 $ 0.49
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(2) Source: Blomberg.
OBJECTIVES OF THE SHAREHOLDERS GROUP
On November 2, 2001, MFC, Holger Timm, Ventegis, and Consors Bank AG (the
"Depositary") entered into an agreement (the "Agreement") dated for reference
October 29, 2001 pursuant to which MFC was granted voting rights for the term of
the Agreement with respect to in aggregate 6,872,796 shares of common stock of
Cybernet deposited by Holger Timm and Ventegis with the Depositary. MFC will
retain such voting rights until the shares deposited with the Depositary are
delivered to the holders of voting trust certificates representing such shares
upon the termination of the Agreement. A copy of the Agreement is incorporated
herein by reference to MFC's Schedule 13D dated November 7, 2001.
THE RIGHT LEADERSHIP FOR CYBERNET
We represent the right to vote approximately 26% of the issued and outstanding
shares of common stock of Cybernet, more than three times as many shares as are
collectively held by the present directors and executive officers of Cybernet.
In October 2001, we formally requested that the board of directors of Cybernet
appoint certain of our representatives and that certain existing directors
resign. The board of directors of Cybernet refused to make such changes.
To provide what we believe is the right leadership for the future of Cybernet,
we have assembled a slate of director nominees comprised of people who have
in-depth experience and proven records of performance in the financing,
restructuring, management and governance of public companies. Our nominees are:
Michael J. Smith, Roy Zanatta and Eduard Seligman.
INTENT OF THE SHAREHOLDERS GROUP
We intend to elect a slate of directors with the experience necessary to lead a
restructuring of Cybernet. We intend to elect such number of director nominees
to comprise one-half of the board of directors of Cybernet. The newly elected
board members intend to work with continuing board members and management to
develop and formulate the appropriate plans and strategies to carry out such a
restructuring and preserve and enhance shareholder value. There is no assurance
that the Shareholders Group will be successful in the implementation of these
objectives.
Pursuant to the Agreement, Ventegis has agreed to pay MFC an earn-out fee equal
to 30% of the difference between the average closing bid price of the common
stock of Cybernet during the last ten trading days prior to the one year
anniversary of October 29, 2001 on the Frankfurt Stock Exchange, and euro 0.42,
multiplied by the number of shares of common stock of Cybernet deposited under
the Agreement, subject to certain qualifications. In addition, if MFC acquires
all of the issued and outstanding 14% senior notes, due 2009 of Cybernet (the
"Notes"), MFC will offer to sell the Notes to Cybernet at its cost, and if MFC
acquires less than 100% of the Notes and subsequently disposes of any Notes, MFC
will pay to each member of the Shareholders Group and Holger Timm the net
proceeds multiplied by their proportionate percentage interests in the
outstanding common stock of Cybernet. This summary of the Agreement is qualified
in its entirety by the Agreement which is incorporated herein by reference.
On October 31, 2001, MFC and Ventegis entered into an agreement dated for
reference October 29, 2001 pursuant to which MFC engaged Ventegis to provide
consulting and informational services to MFC with relation to Cybernet in
consideration of euro 10,500. In addition, MFC engaged Ventegis to introduce
MFC to Cybernet and its board of directors and support the engagement of MFC as
a financial advisor to Cybernet in the restructuring of its debt in
consideration for an agency fee of 15% of the fees actually received by MFC for
such services rendered.
Cybernet may engage MFC or its affiliates to provide financial and other
advisory services to Cybernet in connection with any restructuring on an
as-and-when needed basis in the future. The fees for such services will be
based upon fees customarily charged by MFC or its affiliates to third parties
and as approved by the directors of Cybernet who are not affiliated with MFC.
MFC may, from time to time, engage Ventegis to provide consulting services and
other advisory services on an as-and-when needed basis in the future.
MFC has previously submitted draft proposals to Cybernet regarding the
engagement of MFC by Cybernet for the purpose of assisting Cybernet in
restructuring its debt. These draft proposals have not been pursued by the
board of directors of Cybernet.
COMMITMENT OF THE SHAREHOLDERS GROUP
The Shareholders Group is dissatisfied with the performance of the current board
of directors of Cybernet. The nominees of the Shareholders Group have
substantial experience in the financing, restructuring, management and
governance of public companies. They are wholly independent of Cybernet's
current management and are committed to salvaging Cybernet and preserving
stockholder value. No assurance can be given that electing the nominees of the
Shareholders Group will enhance stockholder value. The nominees of the
Shareholders Group, if elected, are committed to acting in the best interest of
Cybernet's stockholders and, subject to their fiduciary duties as directors of
Cybernet, will pursue any restructuring of Cybernet diligently and promptly. No
stockholder vote may be required for implementation of the objectives of the
Shareholders Group and none is specifically contemplated.
WE URGE YOU TO SIGN, DATE AND RETURN THE ENCLOSED YELLOW PROXY CARD (AND NOT TO
RETURN ANY PROXY CARD SENT TO YOU BY CYBERNET).
ELECTION OF DIRECTORS
In accordance with the terms of Cybernet's Certificate of Incorporation and
Bylaws, the terms of office of the board of directors are divided into three
classes: Class A, whose term will expire at the annual meeting of stockholders
to be held in 2002; Class B, whose term will expire at the annual meeting of
stockholders held in 2003; and Class C, whose term will expire at the
Stockholders Meeting. At each annual meeting of stockholders, the
successors to directors whose terms expire at the annual meeting will be
elected to serve from the time of the annual meeting until the third annual
meeting following their election and until their successors are duly elected
and qualified. Any additional directorships resulting from an increase in
the number of directors will be distributed among the three classes so that,
as nearly as possible, each class will consist of one-third of the directors.
There are currently two Class A directors, no Class B directors and two Class C
directors of Cybernet. We intend to elect such director nominees to comprise
one-half of the board of directors of Cybernet. Depending on the number of
directors comprising the board, we anticipate nominating either two or three
directors for election at the Stockholders Meeting: one Class B director to
serve until the 2003 annual meeting of stockholders of Cybernet, if appropriate,
and/or two Class C directors to serve until the 2004 annual meeting of
stockholders of Cybernet. If only two directors are nominated for election, it
is anticipated that Roy Zanatta will not stand for election as a Class B
director.
Our nominee(s) as a Class B director is Roy Zanatta and as Class C directors are
Michael J. Smith and Eduard Seligman. Based on their extensive business and
professional experience, we believe that our nominees are highly qualified to
serve as directors of Cybernet. We have provided written notice to Cybernet of
our intent to nominate our nominees for election to Cybernet's board of
directors at the Stockholders Meeting and have requested that Cybernet waive the
30 day notice requirement for director nominations, if applicable, and notified
Cybernet that the Court of Chancery of the State of Delaware has scheduled a
hearing on December 3, 2001 to consider the Shareholders Group's requests for
relief in the Delaware Action. Each nominee of the Shareholders Group has
consented to serve as a director of Cybernet if elected and to be named in this
proxy statement and in any other soliciting materials of the Shareholders Group
as a nominee of the Shareholders Group.
INFORMATION ABOUT OUR NOMINEES
Each nominee of the Shareholders Group has furnished the information about him
that is provided in this proxy statement.
NAME AND
BUSINESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS AGE FIVE YEAR BUSINESS EXPERIENCE
- -------- --- --------------------------------
Michael J. Smith 53 Mr. Smith is the President, Chief Executive
17 Dame Street Officer and a director of MFC. Mr.
Dublin 2, Ireland Smith has been the President and Chief
Executive Officer of MFC since 1996 and a
director since 1986. Mr. Smith is also a
director of TriMaine Holdings, Inc.,
Drummond Financial Corporation and Euro Trade
& Forfaiting, Inc. and a member of the
management board of Digitale Telekabel AG.
Formerly, Mr. Smith was the Executive Vice-
President, Chief Financial Officer, Secretary
and a trustee of Mercer International Inc.
from 1985 to 1996. Mr. Smith was one of the
founding members of the Prentiss Howard Group,
a company organized in 1979 which assists
domestic and international companies with
investments, mergers and acquisitions.
NAME AND
BUSINESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS AGE FIVE YEAR BUSINESS EXPERIENCE
- -------- --- --------------------------------
Roy Zanatta 37 Mr. Zanatta is the Secretary, Vice-President
1620 - 400 and a director of MFC. Mr. Zanatta has been an
Burrard Street employee of MFC since 1993 and has been the
Vancouver, Secretary, Vice-President and a director of MFC
British Columbia since 1996. Mr. Zanatta is also a director of
Canada V6C 3A6 TriMaine Holdings, Inc. Formerly, Mr. Zanatta
consulted for and held positions with the British
Columbia Hydro and Power Authority, the Canadian
Standards Association and Atomic Energy of
Canada Ltd. Mr. Zanatta earned a B.A.Sc. degree
in 1987 from the University of British Columbia
(Canada) and an MBA in 1991 from McGill
University (Canada).
Eduard Seligman 36 Mr. Seligman is a Vice-President of MFC
Cours de rive 6 Merchant Bank S.A., a fully licensed Swiss bank.
1211 Geneva, Mr. Seligman has been an employee of MFC
Switzerland Merchant Bank S.A. since 1998. Mr. Seligman is
also a member of the management board of
Digitale Telekabel AG. Formerly, Mr. Seligman
held positions with Performance Plus S.A.
(Switzerland) and Credit Suisse. Mr. Seligman
is a Certified Financial Analyst and earned a
lic. Oec. HSG. degree in 1992 from the St.
Gallen University for Business Administration,
Law and Social Studies (Switzerland).
No corporation or organization identified in the preceding table is an affiliate
of Cybernet. The present principal occupation of each director nominee is the
first occupation described in his biography.
MFC has agreed to pay each nominee of the Shareholders Group any out-of-pocket
expenses and/or losses incurred by such nominee that arise from investigating or
defending any claim brought against him with respect to actions taken in
connection with the solicitation of proxies to which this proxy statement
relates, other than claims resulting from the nominee's bad faith, willful
misconduct or gross negligence.
Each of the nominees of the Shareholders Group, if elected, will be entitled to
receive compensation customarily paid by Cybernet to its independent directors,
which is described in the Schedule 14A filed by Cybernet on August 17, 2001.
We have no reason to believe that any of the nominees of the Shareholders Group
will be disqualified or unwilling or unable to serve if elected. The
Shareholders Group reserves the right to nominate substitute persons if Cybernet
makes or announces any changes to its Bylaws or takes or announces any other
action that has, or if consummated would have, the effect of disqualifying any
of the nominees of the Shareholders Group. In addition, if any additional
directorships are to be voted upon at the Stockholders Meeting, the Shareholders
Group reserves the right to nominate additional persons to fill the added
positions. Shares represented by proxies given to us will be voted for any
substitute or additional nominees of the Shareholders Group.
THE SHAREHOLDERS GROUP BELIEVES THAT IT IS IN THE BEST INTEREST OF STOCKHOLDERS
OF CYBERNET TO ELECT THE NOMINEES OF THE SHAREHOLDERS GROUP AT THE STOCKHOLDERS
MEETING. WE STRONGLY RECOMMEND THAT YOU VOTE "FOR" THE ELECTION OF THE NOMINEES
OF THE SHAREHOLDERS GROUP.
APPROVAL OF CYBERNET 1998 STOCK INCENTIVE PLAN
At the Stockholders Meeting, the management of Cybernet is asking stockholders
to approve the Cybernet 1998 Stock Incentive Plan. A copy of the Cybernet 1998
Stock Incentive Plan is attached to the registration statement on Form S-1/A
filed by Cybernet on November 5, 1998 and a description of the Cybernet 1998
Stock Incentive Plan is included in the Schedule 14A filed by Cybernet on August
17, 2001. Reference is hereby made to such information pursuant to Rule 14a-5(c)
under the Securities Exchange Act of 1934.
The mandate of the 1998 Stock Incentive Plan should be assessed and reviewed in
the context of the compensation arrangements of Cybernet in its entirety by
directors independent of management.
THE SHAREHOLDERS GROUP RECOMMENDS THAT STOCKHOLDERS VOTE "AGAINST" THE APPROVAL
OF THE CYBERNET 1998 STOCK INCENTIVE PLAN.
RATIFICATION OF APPOINTMENT OF CORPORATE AUDITORS
At the Stockholders Meeting, the management of Cybernet is asking stockholders
to ratify the appointment of Ernst & Young Deutsche Allgemeine Treuhand AG as
corporate auditors of Cybernet for the 2000 and 2001 calendar years. Ernst &
Young Deutsche Allgemeine Treuhand AG served as Cybernet's independent auditors
for the fiscal years ended December 31, 1999 and December 31, 2000. Cybernet has
approved and engaged Ernst & Young Deutsche Allegemeine Treuhand AG to serve as
Cybernet's auditors for the fiscal year ending December 31, 2001.
THE SHAREHOLDERS GROUP RECOMMENDS THAT STOCKHOLDERS VOTE "FOR" THE RATIFICATION
OF THE APPOINTMENT OF ERNST & YOUNG DEUTSCHE ALLGEMEINE TREUHAND AG AS CORPORATE
AUDITORS OF CYBERNET FOR THE 2000 AND 2001 CALENDAR YEARS.
* * * * * *
WHEN YOU RETURN THE YELLOW PROXY CARD, YOU WILL BE VOTING "FOR" THE NOMINEES OF
THE SHAREHOLDERS GROUP TO SERVE AS DIRECTORS OF CYBERNET, "AGAINST" THE APPROVAL
OF THE CYBERNET 1998 STOCK INCENTIVE PLAN AND "FOR" THE RATIFICATION OF ERNST &
YOUNG DEUTSCHE ALLGEMEINE TREUHAND AG AS CORPORATE AUDITORS OF CYBERNET FOR THE
2000 AND 2001 CALENDAR YEARS, UNLESS YOU APPROPRIATELY INDICATE OTHERWISE.
YOUR VOTE IS IMPORTANT REGARDLESS OF THE NUMBER OF SHARES YOU OWN. WHETHER OR
NOT YOU PLAN TO ATTEND THE STOCKHOLDERS MEETING, PLEASE SIGN AND DATE THE
ENCLOSED YELLOW PROXY CARD AND RETURN IT IN THE ENVELOPE PROVIDED.
VOTING PROCEDURES
To support the nominees of the Shareholders Group at the Stockholders Meeting,
please sign and date the enclosed YELLOW proxy card and return it to Marlene
Bryl, of MFC Capital Partners AG, Charlottenstrasse 59, D-10117 Berlin, Germany
in the enclosed postage-paid envelope. Submitting a proxy will not affect your
right to attend the Stockholders Meeting and vote in person.
HOW DO I VOTE IF I HOLD SHARES AT MY BANK OR BROKERAGE FIRM?
If you held shares on August 7, 2001, the current date (subject to the outcome
of the Delaware Action), in the name of a brokerage firm, bank nominee or other
institution, only it can give a proxy with respect to your shares. You may have
received either a blank, executed proxy card from the record holder (which you
can complete and send directly to Marlene Bryl, of MFC Capital Partners AG) or
an instruction card (which you can complete and return to the record holder to
direct its voting of your shares). If the record holder has not sent you either
a blank, executed proxy card or an instruction card, you may contact the record
holder directly to provide it with instructions. If you need assistance, please
contact Marlene Bryl, of MFC Capital Partners AG, at (49 30) 20 94 58 00.
If you do not have record ownership of your shares and want to vote in person at
the Stockholders Meeting, you may obtain a document called a "legal proxy" from
the record holder of your shares and bring it to the Stockholders Meeting. If
you need assistance, please contact Marlene Bryl, of MFC Capital Partners AG, at
(49 30) 20 94 58 00.
HOW DO I VOTE IF I HOLD SHARES IN MY OWN NAME?
If you owned shares in your own name on August 7, 2001, the current record date
(subject to the outcome of the Delaware Action), you may attend the Stockholders
Meeting and vote in person. If you are not the record holder of your shares,
please refer to the discussion following the question "How do I vote if I hold
shares at my bank or brokerage firm?"
To vote by proxy, you should complete, sign and date the enclosed YELLOW proxy
card and return it promptly in the enclosed postage-paid envelope.
To be able to vote your shares in accordance with your instructions at the
Stockholders Meeting, we must receive your proxy as soon as possible but in any
event prior to their being voted at the Stockholders Meeting. You may vote your
shares without submitting a proxy to us if you vote in person, submit a proxy to
the Secretary of Cybernet or, in some cases, if you provide appropriate
instructions to the record holder of your shares.
If you need assistance, please contact Marlene Bryl, of MFC Capital Partners AG,
at (49 30) 20 94 58 00.
WHAT SHOULD I DO IF I RECEIVE A WHITE PROXY CARD?
Proxies on the white proxy card are being solicited by the incumbent board of
directors of Cybernet. If you submit a proxy to us by signing and returning the
enclosed YELLOW proxy card, do not sign or return the white proxy card or follow
any voting instructions provided by Cybernet unless you intend to change your
vote, because only your latest-dated proxy will be counted.
If you have already sent a white proxy card to Cybernet, you may revoke it and
provide your support to the nominees of the Shareholders Group by signing,
dating and returning the enclosed YELLOW proxy card.
WHAT IF I WANT TO REVOKE MY PROXY?
If you give a proxy, you may revoke it at any time before it is voted on your
behalf. You may do so in three ways:
* By delivering a later-dated proxy to either Marlene Bryl, of MFC
Capital Partners AG, or the Secretary of Cybernet; or
* By delivering a written notice of revocation to either Marlene Bryl,
of MFC Capital Partners AG, or the Secretary of Cybernet; or
* By voting in person at the Stockholders Meeting.
If you choose to revoke a proxy by giving written notice or a later-dated proxy
to the Secretary of Cybernet, we would appreciate if you would assist us in
representing the interests of stockholders on an informed basis by sending us a
copy of your revocation or proxy or by calling Marlene Bryl, of MFC Capital
Partners AG, at (49 30) 20 94 58 00. REMEMBER, YOUR LATEST-DATED PROXY IS THE
ONLY ONE THAT COUNTS.
IF I PLAN TO ATTEND THE STOCKHOLDERS MEETING, SHOULD I STILL SUBMIT A PROXY?
Whether you plan to attend the Stockholders Meeting or not, we urge you to
submit a proxy. Returning the enclosed YELLOW proxy card will not affect your
right to attend the Stockholders Meeting and vote.
WHO CAN VOTE?
You are eligible to vote or to execute a proxy only if you owned Cybernet common
stock or Series B preferred stock on August 7, 2001, the current record date for
the Stockholders Meeting (subject to the outcome of the Delaware Action). Even
if you sell your shares after the record date, you will retain the right to
execute a proxy in connection with the Stockholders Meeting. It is important
that you grant a proxy regarding shares you held on the record date, or vote
those shares in person, even if you no longer own those shares. Based upon the
Schedule 14A filed by Cybernet on August 17, 2001, 26,495,448 shares of Cybernet
common stock and no shares of Cybernet Series B preferred stock were outstanding
on the record date for the Stockholders Meeting. With respect to each matter to
be considered at the Stockholders Meeting, each stockholder will have one vote
for each share of Cybernet common stock held by it on the record date.
HOW WILL MY SHARES BE VOTED?
If you give a proxy on the accompanying YELLOW proxy card, your shares will be
voted as you direct. If you submit a proxy to us without instructions, our
representatives will vote your shares in favor of our nominees as directors of
Cybernet, against the approval of the 1998 Stock Incentive Plan of Cybernet and
in favor of the ratification of the appointment of Ernst & Young Deutsche
Allegemeine Treuhand AG as corporate auditors of Cybernet for the 2000 and 2001
calendar years. Submitting a YELLOW
proxy card will entitle our representatives to vote your shares in accordance
with their discretion on matters not described in this proxy statement that may
arise at the Stockholders Meeting.
Unless a proxy specifies otherwise, it will be presumed to relate to all shares
held of record on the record date by the person who submitted it.
WHAT VOTE IS REQUIRED TO APPROVE EACH PROPOSAL AND HOW WILL VOTES BE COUNTED?
Directors will be elected by a plurality of the votes cast by the holders of
Cybernet common stock present in person or by proxy and actually voting at the
Stockholders Meeting. This means that the one nominee as a Class B director of
Cybernet and/or the two nominees as Class C directors of Cybernet receiving the
highest number of votes will be elected as directors. Accordingly, abstentions
and broker non-votes do not have the effect of a vote against the election of
any nominees.
Each proposal other than the election of directors will be adopted if a majority
of the shares represented at the meeting and entitled to vote on the proposal
are voted in its favor. Accordingly, abstentions on each such proposal will have
the same effect as a vote against the proposal. Broker non-votes will not have
the effect of a vote for or against any such proposal.
HOW CAN I RECEIVE MORE INFORMATION?
If you have any questions about giving your proxy or about our solicitation, or
if you require assistance, please call Marlene Bryl, of MFC Capital Partners AG,
at (49 30) 20 94 58 00.
PROXY SOLICITATION AND EXPENSES
The following persons are or may be deemed to be participants (the
"Participants" and, each, a "Participant") in the solicitation of proxies in
support of electing the nominees of the Shareholders Group to the board of
directors of Cybernet: (i) MFC; (ii) Ventegis; (iii) Holger Timm; and (iv) the
nominees of the Shareholders Group: Michael J. Smith, Roy Zanatta and Eduard
Seligman. The Participants may solicit proxies in person and by mail, press
release, advertisements in newspapers, magazines and/or trade publications,
telephone, telecopier, telegraph, electronic mail, Internet (World Wide Web)
publication, television, radio and newspapers. No person identified above has or
will receive compensation for soliciting proxies.
The Participants will ask banks, brokers, custodians, nominees, other
institutional holders and other fiduciaries to forward all soliciting materials
to the beneficial owners of the shares that those institutions hold of record.
The Shareholders Group will reimburse those institutions for reasonable expenses
that they incur in connection with forwarding our materials.
The entire expense of our proxy solicitation is being borne by the Shareholders
Group. The Shareholders Group may, particularly if the nominees of the
Shareholders Group are elected to Cybernet's board of directors, seek
reimbursement of expenses from Cybernet. The Shareholders Group does not intend
to seek stockholder approval of any such reimbursement.
Costs related to the solicitation of proxies include expenditures for printing,
postage, legal services and other related items. Total expenditures are expected
to be approximately $400,000. Total payment of costs to date in furtherance of
our proxy solicitation is approximately $100,000.
INFORMATION ABOUT THE PARTICIPANTS
The Participants are or may be deemed to be participants in the solicitation of
proxies by the Shareholders Group for the Stockholders Meeting within the
meaning of the federal securities laws. Information related to the Participants,
including their beneficial ownership of Cybernet common stock, is set forth in
Annex A to this proxy statement and is incorporated into this proxy
- --------
statement by reference. Except as set forth in Annex A, none of the
-------
Participants is party to any commercial dealing with Cybernet or its
subsidiaries that is required to be discussed in this proxy statement by the
federal securities laws. Information in this proxy statement about each
Participant was provided by that Participant.
INFORMATION ABOUT CYBERNET
Based upon Cybernet's quarterly report on Form 10-Q for the period ended
September 30, 2001, the mailing address of the principal executive offices of
Cybernet is Stefan-George-Ring 19-23, 81929 Munich, Germany.
The Schedule 14A filed by Cybernet on August 17, 2001 was required to set forth
information regarding (i) the beneficial ownership of securities of Cybernet by
(A) any person known to Cybernet to beneficially own 5% or more of any class of
voting securities of Cybernet; (B) each director and executive officer of
Cybernet; and (C) all directors and executive officers of Cybernet as a group;
(ii) information concerning Cybernet's directors and management, including
information relating to management compensation; and (iii) information
concerning the procedures for submitting stockholder proposals for consideration
at the 2002 annual meeting of stockholders of Cybernet. Except as otherwise
disclosed herein, reference is hereby made to such afore-mentioned information
which, to the extent it may be deemed required, is incorporated herein pursuant
to Rule 14a-5(c) under the Securities Exchange Act of 1934.
Except as otherwise noted herein, the information in this proxy statement
concerning Cybernet has been taken from or is based upon documents and records
on file with the Securities and Exchange Commission and other publicly available
information. Although the Shareholders Group does not have any knowledge
indicating that any statement contained herein is untrue, we do not take any
responsibility for the accuracy or completeness of statements taken from public
documents and records that were not prepared by or on behalf of the Shareholders
Group, or for any failure by Cybernet to disclose events that may affect the
significance or accuracy of such information.
OTHER MATTERS TO BE VOTED UPON
Subject to the outcome of the Delaware Action, except for the election of
directors of Cybernet, the approval of the Cybernet 1998 Incentive Option Plan
and the ratification of the appointment of Ernst & Young Deutsche Allgemeine
Treuhand AG as the corporate auditors of Cybernet for the 2000 and 2001 calendar
years, the Shareholders Group is not aware of any other matter to be presented
for consideration at the Stockholders Meeting. However, if any other matter
properly comes before the Stockholders Meeting, the persons named as proxies by
the Shareholders Group will exercise their discretionary authority to vote on
such matters in accordance with their best judgement. If the Shareholders Group
becomes aware a sufficient time in advance of the Stockholders Meeting that
Cybernet's management intends to present for stockholder vote at the
Stockholders Meeting any matter not included on the enclosed YELLOW proxy card,
the Shareholders Group intends to either (i) refrain from voting on any such
matter (in which case stockholders will only be able to vote on such matter on
the proxy card furnished by Cybernet's management); or (ii) revise the YELLOW
proxy card in order to
include any such additional matter thereon. The Shareholders Group may
also furnish stockholders with additional proxy materials describing any
such additional matter. If stockholders voted or vote on the original YELLOW
proxy card which does not include such additional matter, the persons named as
proxyholders on the enclosed YELLOW proxy card will exercise their discretionary
authority with respect to such additional matter and the Shareholders Group will
advise stockholders as to how the proxyholders will use such discretionary
authority. If a stockholder wishes to specify the manner in which his or her
shares are to be voted on any such additional matter, the stockholder will have
the opportunity to vote on a revised YELLOW proxy card. Submission of any
properly executed proxy card will revoke all prior proxy cards.
* * * * * *
Questions or requests for additional copies of this proxy statement should be
directed to:
MARLENE BRYL
MFC CAPITAL PARTNERS AG
CHARLOTTENSTRASSE 59
D-10117 BERLIN, GERMANY
TEL: (49 30) 20 94 58 00
FAX: (49 30) 20 94 58 11
WE URGE YOU TO VOTE YOUR SHARES IN FAVOR OF THE NOMINEES OF THE SHAREHOLDERS
GROUP, AGAINST THE APPROVAL OF THE CYBERNET 1998 STOCK INCENTIVE PLAN AND IN
FAVOR OF THE RATIFICATION OF THE APPOINTMENT OF ERNST & YOUNG DEUTSCHE
ALLGEMEINE TREUHAND AG AS CORPORATION AUDITORS OF CYBERNET FOR THE 2000 AND 2001
CALENDAR YEARS BY SIGNING, DATING AND RETURNING THE ENCLOSED YELLOW PROXY CARD
IN THE POSTAGE-PAID ENVELOPE PROVIDED.
Sincerely,
MFC BANCORP LTD. VENTEGIS CAPITAL AG
PER: /S/ MICHAEL J. SMITH PER: /S/ KARSTEN HAESEN
----------------------- --------------------
MICHAEL J. SMITH KARSTEN HAESEN
PRESIDENT AND CHIEF BOARD MEMBER
EXECUTIVE OFFICER
November , 2001
ANNEX A
-------
INFORMATION CONCERNING THE SHAREHOLDERS GROUP
AND OTHER PARTICIPANTS
The following persons are or may be deemed to be participants (the
"Participants" and, each, a "Participant") in the solicitation of proxies in
support of electing the nominees of the Shareholders Group to the board of
directors of Cybernet: (i) MFC; (ii) Ventegis; (iii) Holger Timm; and (iv) the
nominees of the Shareholders Group: Michael J. Smith, Roy Zanatta and Eduard
Seligman. Information set forth herein about each Participant was provided by
that Participant.
MFC is a corporation organized under the laws of the Yukon Territory, Canada
that operates in the financial services industry, specializing in merchant
banking internationally, and has an address at 17 Dame Street, Dublin 2,
Ireland.
Ventegis is venture capital company, focusing on the biotechnology and
information and communication fields. Ventegis is a German corporation with
principal executive offices at Cicerostrasse 21, 10709 Berlin, Germany.
Holger Timm is a member of the board of Berliner Effektengesellschaft AG. Mr.
Timm has a business address at Kurfurstendamm 119, 10711 Berlin, Germany.
A description of each nominee of the Shareholders Group, including name,
business address, age, present principal occupation and five year business
experience, is described in the proxy statement of the Shareholders Group under
the heading "Election of Directors".
SECURITY OWNERSHIP
The beneficial ownership of securities of Cybernet by the Participants is
described in the following table. No Participant and no associate of any
Participant (within the meaning of the federal proxy rules) beneficially owns
any securities of Cybernet other than common stock as described in the following
table. No Participant beneficially owns any securities of any parent or
subsidiary of Cybernet. No Participant has record but not beneficial ownership
with respect to any securities of Cybernet.
APPROXIMATE
SHARES BENEFICIALLY OWNED PERCENTAGE OF CLASS
NAME COMMON STOCK COMMON STOCK
- ---- ------------------------- -------------------
MFC Bancorp Ltd. 6,872,796(1) 25.9%
17 Dame Street
Dublin 2, Ireland
Ventegis Capital 5,577,396(1) 21.0%
AG (formerly
Cybermind Interactive
Europe, AG)
Kurfurstendamm 119
10711 Berlin, Germany
- ------------------
(2) On November 2, 2001, MFC was granted voting rights over 1,295,400
and 5,577,396 shares of common stock of Cybernet beneficially owned
by Holger Timm and Ventegis, respectively, pursuant to an agreement
among MFC, Holger Timm, Ventegis, and Consors Capital Bank AG dated
for reference October 29, 2001.
APPROXIMATE
SHARES BENEFICIALLY OWNED PERCENTAGE OF CLASS
NAME COMMON STOCK COMMON STOCK
- ---- ------------------------- -------------------
Holger Timm 1,295,400(1) 4.9%
Cicerostrasse 21
10709 Berlin, Germany
TRANSACTIONS IN CYBERNET SECURITIES
Other than the transactions described below, no Participant has purchased or
sold any securities of Cybernet in the past two years.
TRANSACTIONS IN CYBERNET
SECURITIES BY MFC
------------------------
NUMBER AND TYPE OF
DATE OF TRANSACTION NATURE OF TRANSACTION SECURITIES OF CYBERNET
- ------------------- --------------------- ----------------------
November 2, 2001 Was granted voting rights 6,872,796
over shares beneficially
owned by Holger Timm and
Ventegis pursuant to an
agreement dated for
reference October 29, 2001
TRANSACTIONS IN CYBERNET
SECURITIES BY VENTEGIS
------------------------
NUMBER AND TYPE OF
DATE OF TRANSACTION NATURE OF TRANSACTION SECURITIES OF CYBERNET
- ------------------- --------------------- ----------------------
January 10, 2000 Converted preferred stock, 1,440,000 shares of
series A and preferred stock, common stock
series B into common stock
on a one-for-one basis
January 2, 2001 Converted preferred stock, 2,880,000 shares of
series A and preferred stock, common stock
series B into common stock
on a one-for-one basis
November 2, 2001 Granted voting rights over 5,577,396 shares of
common stock to MFC common stock
pursuant to an agreement
dated for reference
October 29, 2001
TRANSACTIONS IN CYBERNET
SECURITIES BY HOLGER TIMM
-------------------------
NUMBER AND TYPE OF
DATE OF TRANSACTION NATURE OF TRANSACTION SECURITIES OF CYBERNET
- ------------------- --------------------- ----------------------
December 31, 1999 Sold common stock in 43,000 shares of
a private transaction common stock
January 10, 2000 Converted preferred stock, 30,375 shares of
series A into common common stock
stock on a one-for-one
basis
November 9, 2000 Acquired common stock 172,000 shares of
at a price of DM 0.28 common stock
per share pursuant to a
stock purchase agreement
dated April 28, 1997 in
which such shares were sold
to an employee of Cybernet
and were to revert back to
Holger Timm upon termination
of the employee's employment
contract
January 2, 2001 Converted preferred stock, 60,750 shares of
series A into common stock common stock
on a one-for-one basis
November 2, 2001 Granting voting rights 1,295,400 shares of
over common stock to common stock
MFC pursuant to an
agreement dated for
reference October 29, 2001
ARRANGEMENTS, INTERESTS AND TRANSACTIONS
Except as otherwise disclosed herein, no Participant is, or was within the past
year, a party to any contract, arrangement or understanding with any person with
respect to any securities of Cybernet, including, but not limited to, joint
ventures, loan or option arrangements, puts or calls, guarantees against loss or
guarantees of profit, division of losses or profits, or the giving or
withholding of proxies.
Except as otherwise disclosed herein, no Participant, no associate of any
Participant and no person who is a party to any arrangement or understanding
pursuant to which a nominee of the Shareholders Group is proposed to be elected
has any arrangement or understanding with any person with respect to any future
employment by Cybernet or its affiliates or with respect to any future
transactions to which Cybernet or any of its affiliates will or may be a party.
MFC, Ventegis and Holger Timm have or may be deemed to have interests in the
solicitation of proxies in support of the nominees of the Shareholders Group
from beneficial ownership of the common stock of Cybernet. Participants who are
nominees of the Shareholders Group are expected to receive customary
compensation from Cybernet in exchange for their services as directors, if
elected.
The nominees of the Shareholders Group also have an interest in the
solicitation through the forms of compensation described in the proxy
statement of the Shareholders Group under the heading "Election of
Directors".
There has been no transaction or series of similar transactions since the
beginning of Cybernet's last completed fiscal year, and there is no currently
proposed transaction or series of similar proposed transactions, to which
Cybernet or any of its subsidiaries was or is to be a party, in which the amount
involved exceeds $60,000 and in which any Participant or any associate of any
Participant had, or will have, a direct or indirect material interest.
ADDITIONAL INFORMATION ABOUT THE NOMINEES OF THE SHAREHOLDERS GROUP
No nominee of the Shareholders Group presently holds any position with Cybernet.
Other than the arrangements described in the preceding paragraph and the
agreements described in the proxy statement of the Shareholders Group under the
heading "Election of Directors", there is no arrangement or understanding
between any nominee of the Shareholders Group and any other person pursuant to
which the nominee of the Shareholders Group was selected as a nominee.
There is no family relationship (within the meaning of the federal securities
laws) between any nominee of the Shareholders Group and (i) any other nominee of
the Shareholders Group; or (ii) any director of Cybernet, executive officer of
Cybernet or person nominated by Cybernet to become a director or executive
officer. There is, and has been, no legal or other proceeding involving any
nominee of the Shareholders Group that is required to be disclosed under the
federal proxy rules.
No nominee of the Shareholders Group (i) has any business relationship that is
required to be disclosed by the federal proxy rules; (ii) has had any such
relationship since the beginning of Cybernet's most recently completed fiscal
year; or (iii) has, since the beginning of Cybernet's last completed fiscal
year, been indebted to Cybernet or any of its subsidiaries in an amount that
exceeds $60,000.
No nominee of the Shareholders Group and no associate of any nominee of the
Shareholders Group has received any compensation from Cybernet as a director or
executive officer of Cybernet. Had the nominees of the Shareholders Group been
directors of Cybernet and members of the compensation committee of Cybernet's
board of directors during Cybernet's last completed fiscal year, there would
have been no compensation committee interlocks within the meaning of the federal
proxy rules.
No nominee of the Shareholders Group has failed to file reports related to
Cybernet that are required by Section 16(a) of the Securities Exchange Act of
1934, as amended.
APPENDIX
--------
YELLOW PROXY CARD
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
PROXY FOR THE MEETING OF STOCKHOLDERS
TO ELECT DIRECTORS
CURRENTLY SCHEDULED TO BE HELD ON DECEMBER 4, 2001
THIS PROXY IS SOLICITED BY MFC BANCORP LTD. AND VENTEGIS CAPITAL AG
(NOT BY THE BOARD OF DIRECTORS OF
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.)
The undersigned stockholder of Cybernet Internet Services International, Inc.
("Cybernet") hereby appoints Michael J. Smith and Roy Zanatta, and each of them,
as attorneys and proxies, each with full power of substitution and revocation,
acting unanimously or by either of them if only one be present and acting, to
represent the undersigned at the meeting (the "Meeting") of Stockholders to
elect directors of Cybernet currently scheduled to be held on December 4, 2001,
and at any adjournment, postponement or rescheduling thereof, with authority to
vote all shares held or owned by the undersigned in accordance with the
directions indicated herein.
Receipt of the Proxy Statement relating to the Meeting is hereby acknowledged.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL CAUSE YOUR SHARES OF CYBERNET WHICH YOU
WOULD BE ENTITLED TO VOTE IF PERSONALLY PRESENT AT THE MEETING TO BE VOTED AS
YOU DIRECT. IF YOU RETURN THIS PROXY, PROPERLY EXECUTED, WITHOUT SPECIFYING A
CHOICE, YOUR SHARES OF CYBERNET WILL BE VOTED IN FAVOR OF THE NOMINEES LISTED ON
THE REVERSE SIDE IN PROPOSAL 1, AGAINST THE APPROVAL OF THE CYBERNET 1998 STOCK
INCENTIVE PLAN IN PROPOSAL 2 AND IN FAVOR OF THE RATIFICATION OF THE APPOINTMENT
OF ERNST & YOUNG DEUTSCHE ALLGEMEINE TREUHAND AG IN PROPOSAL 3.
(Continued and to be signed on the reverse side) See reverse side
PROPOSAL 1. To elect the director nominees listed below:
Class B nominee: Mr. Roy Zanatta
FOR WITHHOLD AUTHORITY
--- ---
Class C nominee: Mr. Michael J. Smith
FOR WITHHOLD AUTHORITY
--- ---
Class C nominee: Mr. Eduard Seligman
FOR WITHHOLD AUTHORITY
--- ---
PROPOSAL 2. To approve the Cybernet 1998 Stock Incentive Plan:
FOR AGAINST ABSTAIN
--- --- ---
PROPOSAL 3. To ratify the appointment of Ernst & Young Deutsche Allgemeine
Treuhand AG as corporate auditors for the 2000 and 2001 calendar years:
FOR AGAINST ABSTAIN
--- --- ---
MFC BANCORP LTD. AND VENTEGIS CAPITAL AG RECOMMEND A VOTE "FOR" THE NOMINEES
LISTED IN PROPOSAL 1 ABOVE, "AGAINST" THE APPROVAL OF THE CYBERNET 1998 STOCK
INCENTIVE PLAN IN PROPOSAL 2 ABOVE AND "FOR" THE RATIFICATION OF THE APPOINTMENT
OF ERNST & YOUNG DEUTSCHE ALLGEMEINE TREUHAND AG IN PROPOSAL 3 ABOVE.
IN THEIR DISCRETION, THE PROXIES ARE AUTHORIZED TO VOTE UPON SUCH OTHER BUSINESS
AS MAY PROPERLY BE PRESENTED TO THE MEETING OR ANY ADJOURNMENT, POSTPONEMENT OR
RESCHEDULING THEREOF AND IS UNKNOWN TO MFC BANCORP LTD. OR VENTEGIS CAPITAL AG
AND THEIR REPRESENTATIVES A REASONABLE TIME BEFORE THE COMMENCEMENT OF THE
SOLICITATION OF PROXIES BY MFC BANCORP LTD. AND VENTEGIS CAPITAL AG.
Please mark, date and sign this Proxy, and return it in the enclosed
return-addressed envelope. No postage is necessary.
PLEASE RETURN PROXY AS SOON AS POSSIBLE
Dated: , 2001
---------------------------------
(Be sure to date your Proxy)
- ----------------------------------------------
Name(s) of Stockholder(s)
- ----------------------------------------------
Signature(s) of Stockholder(s)
NOTE: Signatures must correspond exactly with the name or names appearing on the
stock certificate(s). If stock is held in the name of more than one person, all
holders should sign. When stock is held by joint tenants, both should sign.
When signing as attorney, executor, administrator, trustee or guardian, please
give full title as such. If a corporation, please sign in full corporate name by
president or other authorized officer. If a partnership, please sign in
partnership name by authorized person. The signer hereby revokes all proxies
previously given by the signer to vote at the Meeting of Cybernet, and any
adjournment, postponement or rescheduling thereof.