UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
of the
SECURITIES EXCHANGE ACT OF 1934
Date of Report: June 27, 2001
CYBERENERGY, INC.
-----------------
(Exact name of registrant as specified in its charter)
NEVADA
(State or other jurisdiction of incorporation or organization)
0-31413 88-0356064
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(Commission File Number) (IRS Employer Identification Number)
c/o Buster Williams, Jr., CEO
200 South Los Robles Avenue, Suite 230
Pasadena, California 91101
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(Address of principal executive offices)
(800) 520-5626
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(Registrant's telephone number, including area code)
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ITEM 2. Acquisition or Disposition of Assets
On June 26 , 2001 the Corporation signed a Stock Acquisition Agreement with
Buster Williams, Jr., David Williams, Mei Chen, Caitlin Rabanera, Matt Morris,
Sandra Jorgensen and Athena V. Killeen, for the purchase of 4,085,000 shares of
Bottomline Mortgage, Inc. a California corporation. In exchange for the transfer
of these shares and a controlling interest in this business and its operations
the Corporation has agreed to issue to the selling shareholders 10,000,000
shares of its common stock. It is estimated that this will represent in excess
of 70% of the issued and outstanding shares of the common stock of the
Corporation as of the closing of this transaction.
Bottomline Mortgage, Inc. will operate as a subsidiary of the Corporation.
Bottomline Mortgage, Inc. was incorporated in California on August 31, 1989. It
is in the business of providing low-cost home mortgages in twenty plus states.
Its mortgage products, in addition to the traditional first mortgages for
purchase and refinance, include home equity and no equity mortgages used for
home improvement and debt consolidation mortgages. Bottomline offers this
diverse line of mortgage products through three distinct types of services:
1. Traditional Wholesale Broker Service where a network of Brokers and
Correspondents originate Bottomline's line of mortgage products direct with
their customers and forward their fully processed mortgage packages to
Bottomline to underwrite and close their loans.
2. Traditional Retail Service, where Bottomline's loan officers and
originators, contact customers directly through leads generated by a network of
Relator referrals, direct mail marketing and telephone marketing.
3. Internet Service, where consumers can originate mortgages on line,
as more customers become accustomed to originating their real estate mortgages
over their Internet.
for the purpose of retail origination and funding of residential mortgages. The
Company can be characterized as an independent mortgage company engaged in
originating, processing, and funding mortgage loans on single and multiple
family residences.
Bottomline Mortgage Inc. uses the most advanced technology available to close
loans quickly, at a low cost. By combining the use of the Internet along with
advanced processing software and automated underwriting systems Bottomline
Mortgage has taken the mystery out of approving and closing a homeloan. The
Bottomline Mortgage philosophy is "Customers for Life" A strong and genuine
belief in the "customer for life" principal of doing business is what fuels
Bottomline Mortgage. Referrals from previous customers and local real estate
professionals have always delivered the majority of the Company's production.
Its' website can be found at www.bottomlinemortgage.com .
ITEM 4. Changes in Registrant's Certifying Accountant
On June 19, 2000, Cyberenergy, Inc. ("the Company") terminated its relationship
with Jones, Wright, Simkins and Associates ("Jones"), the principal accountant
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previously engaged to audit the Company's financial statements. Effective June
14, 2001, the Company retained Mantyla McReynolds as the principal accountants
to replace Jones. The Company's audit committee and board of directors approved
the change of accountants from Jones to Mantyla McReynolds.
The audit reports of Jones on the Company's financial statements for the fiscal
year ending December 31, 2000 did not contain any adverse opinion or disclaimer
of opinion, nor were they qualified or modified as to uncertainty, audit scope,
or accounting principles, except such reports were modified to include an
explanatory paragraph for a going concern uncertainty.
In connection with the audit of the fiscal year ending December 31, 2000 and the
subsequent interim periods through June 19, 2001, the date of termination, the
Company had no disagreements with Jones on any matter of accounting principles
or practices, financial statement disclosure, or auditing scope or procedures.
Had there been any disagreements that were not resolved to their satisfaction,
such disagreements would have caused Jones to make reference in connection with
their opinion to the subject matter of the disagreement. In addition, during
that time there were no reportable events (as defined in Item 304(a)(1)(iv) of
Regulation S-B).
During the fiscal year ending December 31, 2000, and the subsequent interim
period through June 19, 2001, the date of termination, and prior to such
appointment, the Company did not consult with Mantyla McReynolds regarding the
application of generally accepted accounting principles to a specific
transaction, either proposed or completed, or the type of audit opinion that
might be rendered on the Company's financial statements. Since there were no
disagreements or reportable events (as defined in Item 304(a)(2) of Regulation
S-B), the Company did not consult Jones in respect to these matters during that
time.
The Company provided Jones with a copy of this report prior to filing it with
the SEC. The Company requested that Jones furnish the Company with a letter to
the SEC stating whether Jones agrees with the above statements. A copy of that
letter dated June 26, 2001 is filed as Exhibit 1 to this Form 8-K.
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ITEM 7. Financial Statements and Exhibits
The following exhibit(s) are included as part of this report:
a) Letter from Jones. dated June 27, 2001, relating the termination
of its services as the Registrant's independent auditors (SEC
Reference Number 16).
b) Stock Acquisition Agreement, dated May 26, 2001 between
Cyberenergy, Inc. and Buster Williams, Jr., David Williams, Mei
Chen, Caitlin Rabanera, Matt Morris, Sandra Jorgensen and Athena
V. Killeen.
Pursuant to the requirement of the Securities Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Cyberenergy, Inc.
Signature Date
By: /s/ Buster Williams, Jr. June 27, 2001
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Name: Buster Williams, Jr.
Title: CEO
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Jones, Wright, Simkins and Associates LLP
95 West 100 South, Suite #200
LOGAN, UTAH
PHONE: (435) 752-1510
FAX: (435) 752-4878
June 26, 2001
Office of The Chief Accountant
450 Fifth Street, NW
Washington, D.C. 20549
Re: Cyberenergy, Inc.
Ladies and Gentlemen:
We have read the statements that we understand Cyberenergy, Inc. will include
under Item 4 of the form 8-K report it will file regarding the recent change of
auditors. We agree with such statements made regarding our firm. We have no
basis to agree or disagree with other statements made under Item 4.
Yours truly,
/s/ Jones, Wright, Simkins and Associates LLP
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Jones, Wright, Simkins and Associates LLP
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STOCK ACQUISITION AGREEMENT
BETWEEN
Cyberenergy, Inc.
AND
Buster Williams, Jr., David Williams, Mei Chen
Caitlin Rabanera, Matt Morris, Sandra Jorgensen
and Athena V. Killeen
ACQUISITION AGREEMENT
TABLE OF CONTENTS
Purchase and Sale............................................................2
Purchase Price...............................................................2
Warranties and Representations of Shareholders...............................2
Warranties and Representations of Cyberenergy................................4
Term.........................................................................5
The Common Shares............................................................5
Conditions Precedent to Closing..............................................6
Termination..................................................................6
Exhibits.....................................................................7
Miscellaneous Provisions.....................................................7
Closing......................................................................7
Governing Law................................................................7
Counterparts.................................................................7
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STOCK ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT dated May 26, 2001, by, between and among
Cyberenergy, Inc., a Nevada Corporation ("Cyberenergy"), and Buster Williams,
Jr., David Williams, Mei Chen Caitlin Rabanera, Matt Morris, Sandra Jorgensen
and Athena V. Killeen, all individual shareholders of Bottomline Mortgage, Inc.,
("Shareholders").
WHEREAS, Cyberenergy desires to acquire through the issue of its common
stock the common stock in Bottomline Mortgages, Inc. held by Shareholders; and
WHEREAS, Shareholders desires to sell and Cyberenergy desires to
purchase all of the common stock of Bottomline Mortgage, Inc. owned or held by
Shareholders on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties herein contained, the parties hereby agree as
follows:
I. Purchase and Sale. Shareholders hereby agree to sell, transfer, assign, and
convey to Cyberenergy, and Cyberenergy hereby agrees to purchase and
acquire from Shareholders, one hundred percent of the ownership interest in
the common stock of Bottomline Mortgage, Inc. held or owned by Shareholders
as set forth in Exhibit "A" hereto labeled as Transfer Shares and these
items and interests shall hereinafter be referred to as "The Transfer
Shares".
II. Purchase Price. The aggregate purchase price to be paid to Shareholders for
The Transfer Shares shall be Ten Million (10,000,000) shares of the common
stock of Cyberenergy, which shall be transferred to Shareholders on a
pro-rata basis at the time of closing.
III. Warranties and Representations of Shareholders. In order to induce
Cyberenergy to enter into the Agreement and to complete the transaction
contemplated hereby, Shareholders warrants and represents to Cyberenergy
that:
A. Organization and Standing. Bottomline Mortgage, Inc.
("Bottomline") is a corporation duly organized, validly existing,
and in good standing under the laws of the State of California,
is qualified to do business as a foreign corporation in every
other state or jurisdiction in which it operates to the extent
required by the laws of such states and jurisdictions, and have
full power and authority to carry on its business as now
conducted and to own and operate its assets, properties, and
business No changes to Bottomline's Certificate of Incorporation,
amendments thereto and By laws of Bottomline will be made before
the Closing.
B. Taxes. Bottomline has filed all federal, state, and local income
or other tax returns and reports that it is required to file with
all governmental agencies, wherever situate, and has paid or
accrued for payment all taxes as shown on such returns, such that
a
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failure to file, pay, or accrue will not have a material adverse
effect on Bottomline.
C. Pending Actions. There are no material legal actions, lawsuits,
proceedings or investigations, either administrative or judicial,
pending or to the knowledge of Shareholders threatened, against
or affecting Bottomline, except as disclosed in writing to
Cyberenergy. Bottomline is not in violation of any law, material
ordinance, or regulation of any kind whatever, including, but not
limited to laws, rules and regulations governing the sale of its
products, the '33 Act, the Securities Exchange Act of 1934, as
amended (the "34 Act") the Rules and Regulations of the U.S.
Securities and Exchange Commission ("SEC"), or the Securities
Laws and Regulations of any state.
D. Governmental Regulation. Bottomline holds the licenses and
registrations set forth on Exhibit "E" hereto from the
jurisdictions set forth therein, which licenses and registrations
are all of the licenses and registrations necessary to permit the
Corporation to conduct its current business. All of such licenses
and registrations are in full force and effect, and there are no
proceedings, hearings, or other actions pending that may affect
the validity or continuation of any of them. No approval of any
other trade or professional association or agency of government
other than as set forth on Exhibit "E" is required for any of the
transactions effected by this Agreement, and the completion of
the transactions contemplated by the Agreement will not, in and
of themselves, affect or jeopardize the validity or continuation
of any of them.
E. Ownership of Assets. Shareholders have a good, marketable title,
without any liens or encumbrances of any nature whatever, to The
Transfer Shares to be transferred to Cyberenergy.
F. Corporate Records. All of Bottomline's books and records,
including, without limitation, its books of account, corporate
records, minute book, stock certificate books and other records
of Bottomline are up-to-date, complete and reflect accurately and
fairly the conduct of its business in all material respects since
its date of incorporation.
G. No Misleading Statements or Omissions. Neither the Agreement nor
any financial statement, exhibit, schedule or document attached
hereto or presented to Cyberenergy in connection herewith,
contains any materially misleading statement, or omits any fact
or statement necessary to make the other statements or facts
therein set forth not materially misleading.
H. Validity of the Agreement. All corporate and other proceedings
required to be taken by Bottomline and Shareholders in order to
enter into and to carry out the Agreement have been duly and
properly taken. No corporate or other action on the part of
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Bottomline is required in connection with this Agreement, or the
transaction contemplated herein. The execution and delivery of
the Agreement, and the carrying out of its purposes, will not
result in the breach of any of the terms or conditions of, or
constitute a default under or violate Bottomline's Certificate of
Incorporation or document of undertaking, oral or written, to
which Bottomline or Shareholders is a party or is bound or may be
affected, nor will such execution, delivery and carrying out
violate any order, writ, injunction, decree, law, rule, or
regulation of any court, regulatory agency or other governmental
body; and the business now conducted by Bottomline can continue
to be so conducted after completion of the transaction
contemplated hereby.
I. Enforceability of the Agreement. When duly executed and
delivered, the Agreement and the Exhibits hereto which are
incorporated herein, and made a part hereof, are legal, valid,
and enforceable by Cyberenergy and Shareholders according to
their terms, except to the extent limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
relating to or affecting generally the enforcement of creditors
rights and that at the time of such execution and delivery,
Cyberenergy will have acquired title in and to The Transfer
Shares free and clear of all claims, liens, and encumbrances.
J. Access to Books and Records. Cyberenergy has been granted full
and free access to the books of Bottomline during the course of
this transaction prior to Closing.
O. Bottomline's Financial Statements. Bottomline's Balance Sheet and
Profit and Loss statement for the year, attached hereto as
Exhibit "H", accurately describe Bottomline's financial position
as of the dates thereof, in accordance with applicable legal and
accounting requirements.
IV. Warranties and Representations of Cyberenergy. In order to induce
Shareholders to enter into the Agreement and to complete the transaction
contemplated hereby, Cyberenergy warrants and represents to Shareholders
that:
A. Organization and Standing. Cyberenergy is a corporation duly
organized, validly existing and in good standing under the laws
of the state of Nevada, is qualified to do business as a foreign
corporation in every other state in which it operates to the
extent required by the laws of such states, and has full power
and authority to carry on its business as now conducted and to
own and operate its assets, properties, and business.
B. No Pending Actions. There are no legal actions, lawsuits,
proceedings or investigations, either administrative or judicial,
pending or threatened, against or affecting Cyberenergy, or
against any of Cyberenergy's officers or directors and arising
out of their operation of Cyberenergy, except as set forth in its
audited
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financial statements as attached hereto. Cyberenergy has been in
compliance with, and has not received notice of violation of any
law, ordinance, or regulation of any kind whatever, including,
but not limited to, the '33 Act, the '34 Act, the Rules and
Regulations of the SEC or the Securities Laws and Regulations of
any state.
C. Corporate Records. All of Cyberenergy's books and records,
including without limitation, its book of account, corporate
records, minute book, stock certificate books and other records
are up-to-date, complete, and reflect accurately and fairly the
conduct of its business in all respects since its date of
incorporation.
D. No Misleading Statements or Omissions. Neither the Agreement nor
any financial statement, exhibit, schedule, or document attached
hereto or presented to Shareholders in connection herewith
contains any materially misleading statement, or omits any fact
or statement necessary to make the other statements of facts
therein set forth not materially misleading.
E. Validity of the Agreement. All corporate action and proceedings
required to be taken by Cyberenergy in order to enter into and to
carry out the Agreement have been duly and properly taken. The
Agreement has been duly executed by Cyberenergy, and constitutes
a valid and binding obligation of Cyberenergy. The execution and
delivery of the Agreement and the carrying out of its purposes
will not result in the breach of any of the terms or conditions
of, or constitute a default under or violate, Cyberenergy's
Certificate of Incorporation or By-Laws, or any agreement, lease,
mortgage, bond, indenture, license or other document or
undertaking, oral or written, to which Cyberenergy is a party or
is bound or may be affected, nor will such execution, delivery
and carrying out violate any order, writ, injunction, decree,
law, rule or regulation of any court regulatory agency or other
governmental body.
F. Enforceability of the Agreement. When duly executed and
delivered, the Agreement and the Exhibits hereto which are
incorporated herein and made a part hereof are legal, valid, and
enforceable by Shareholders according to their terms, and that at
the time of such execution and delivery, Cyberenergy will have
acquired good, marketable title in and to The Transfer Shares
acquired pursuant hereto, free and clear of all liens and
encumbrances
V. Term. All representations, warranties, covenants and agreements made herein
and in the exhibits attached hereto shall survive the execution and
delivery of the Agreement and payment pursuant thereto.
VI. The Common Shares. All of the Cyberenergy Common Shares shall be validly
issued, fully- paid and non-assessable shares of Cyberenergy Common Stock,
with full voting rights, dividend rights, and the right to receive the
proceeds of liquidation, if any, as set forth in Cyberenergy's Articles of
Incorporation.
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VII. Conditions Precedent to Closing.
A. The obligations of Shareholders under the Agreement shall be and
are subject to fulfillment, prior to or at the Closing of each of
the following conditions:
1. That Cyberenergy and it's management's representations and
warranties contained herein shall be true and correct at the
time of closing date as if such representations and
warranties were made at such time;
2. That Cyberenergy and its management shall have performed or
complied with all agreements, terms and conditions required
by the Agreement to be performed or complied with by them
prior to or at the time of Closing;
B. The obligations of Cyberenergy under the Agreement shall be and
are subject to fulfillment, prior to, at the Closing or
subsequent to the Closing of each of the following conditions:
1. That Shareholders' representations and warranties contained
herein shall be true and correct at the time of Closing as
if such representations and warranties were made at such
time; and
2. That Shareholders shall have performed or complied with all
agreements, terms and conditions required by the Agreement
to be performed or complied with by it prior to or at the
time of Closing.
3. That the parties jointly and severally indemnify and hold
harmless Cyberenergy's former officers, directors, agents
and affiliates against any claims or liabilities, including
reasonable attorney's fees and other reasonable defense
costs incurred in defending such claims or liabilities,
resulting from any claims or liabilities asserted against
them as to any material misrepresentation or omissions in
the Agreement made by any party hereto.
4. That Shareholders' compliance with state statutory and
regulatory requirements to authorize and carry out the terms
of this Agreement.
VIII. Termination. The Agreement may be terminated at any time before or; at
Closing, by:
A. The mutual agreement of the parties;
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B. Any party if:
1. Any provision of the Agreement applicable to a party shall
be materially untrue or fail to be accomplished.
2. Any legal proceeding shall have been instituted or shall be
imminently threatening to delay, restrain or prevent the
consummation of the Agreement.
Upon termination of the Agreement for any reason, in accordance with the terms
and conditions set forth in this paragraph, each said party shall bear all costs
and expenses as each party has incurred and no party shall be liable to the
other.
IX Exhibits. All Exhibits attached hereto are incorporated herein by this
reference as if they were set forth in their entirety.
X Miscellaneous Provisions. This Agreement is the entire agreement between
the parties in respect of the subject matter hereof, and there are no other
agreements, written or oral, nor may the Agreement be modified except in
writing and executed by all of the parties hereto. The failure to insist
upon strict compliance with any of the terms, covenants or conditions of
the Agreement shall not be deemed a waiver or relinquishment of such right
or power at any other time or times.
XI Closing. The closing of the transactions contemplated by the Agreement
shall take place on or before 5:00 P.M. on May 24, 2001. The Closing shall
occur at the offices of Hudson Consulting Group, Inc. located at 268 West
400 South, Salt Lake City, Utah 84101 or such other date and place as the
parties hereto shall agree upon. At the Closing, all of the documents and
items referred to herein shall be exchanged.
XII Governing Law. The Agreement shall be governed by and construed in
accordance with the internal laws of the State of Utah.
XIII Counterparts. The Agreement may be executed in duplicate facsimile
counterparts, each of which shall be deemed an original and together shall
constitute one and the same binding Agreement, with one counterpart being
delivered to each party hereto.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the date and year above first written.
Cyberenergy, Inc. Bottomline Mortgage Shareholders:
Richard Surber /s/ Buster Williams, Jr.
------------------------- ---------------------------------
By: Richard Surber, its President Buster Williams, Jr.
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/s/ David Williams
-----------------------------
David Williams
/s/ Mei Chen
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Mei Chen
/s/ Caitlin Rabanera
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Caitlin Rabanera
/s/ Matt Morris
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Matt Morris
/s/ Sandra Jorgensen
-----------------------------
Sandra Jorgensen
/s/ Athena V. Killeen
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Athena V. Killeen
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EXHIBIT "A"
TRANSFER SHARES
Name Number of Bottomline Shares
Buster Williams, Jr. 2,387,000
David Williams 1,023,000
Mei Chen 120,000
Caitlin Rabanera 105,000
Matt Morris 150,000
Sandra Jorgensen 150,000
Athena V. Killeen 150,000
Total 4,085,000
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