AGREEMENT AND PLAN OF MERGER
OF
GO ONLINE NETWORKS CORPORATION, A DELAWARE CORPORATION,
AND
XXXXX XXXXXXXX ENTERTAINMENT, INC., A COLORADO CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, dated as of September 8,
1999 ("Merger Agreement") is entered into by and between Xxxxx
Xxxxxxxx Entertainment, Inc., a Colorado corporation ("JNNE"), and
Go Online Networks Corporation, a Delaware corporation ("Go
Online"), which corporations are sometimes referred to herein as the
"Constituent Corporations."
R E C I T A L S
A. JNNE is a corporation duly organized and existing under
the laws of the State of Colorado and has authorized capital of
100,000,000 shares of Common Stock, no par value (the "JNNE Common
Stock"), and 20,000,000 shares of Preferred Stock, no par value. As
of August 12, 1999, 71,302,677 shares of JNNE Common Stock were
issued and outstanding and 499,333 shares of Series A Preferred
Stock (the "JNNE Preferred Stock") were issued and outstanding.
B. Go Online is a corporation duly organized and existing
under the laws of the State of Delaware and has authorized capital
of 100,000,000 shares of Common Stock, par value $0.001 per share
(the "Go Online Common Stock"), and 20,000,000 shares of Preferred
Stock, par value $0.001 per share. As of August 13, 1999, 100
shares of Go Online Common Stock were issued and outstanding, all of
which were held by JNNE. On August 13, 1999, the Board of Directors
authorized a series of preferred stock designated Series A Preferred
Stock (the "Go Online Preferred Stock"), having rights, preferences,
and privileges identical to that of the JNNE Preferred Stock. No
shares of Go Online Preferred Stock were issued and outstanding.
C. The Board of Directors of JNNE has determined that it is
advisable and in the best interests of JNNE and its shareholders
that JNNE merge with and into Go Online upon the terms and subject
to the conditions of this Merger Agreement for the purpose of
effecting the reincorporation of JNNE in the State of Delaware.
D. The respective Boards of Directors of JNNE and Go Online
have adopted and approved the terms and conditions of this Merger
Agreement.
E. The parties intend by this Merger Agreement to effect a
reorganization under Section 368 of the Internal Revenue Code of
1986, as amended.
NOW, THEREFORE, in consideration of the promises and the
mutual covenants and agreements contained herein, the parties hereto
agree, subject to the terms and conditions set forth herein, as
follows:
I.
MERGER
1.1 Merger. In accordance with the provisions of this
Merger Agreement, the Colorado Business Corporation Act and the
Delaware General Corporation Law, JNNE shall be merged with and into
Go Online (the "Merger"), the separate existence of JNNE shall cease
and Go Online shall be, and is herein sometimes referred to as, the
"Surviving Corporation," and the name of the Surviving Corporation
shall be "Go Online Networks Corporation".
1.2 Filing and Effectiveness. The Merger shall become
effective when the following actions have been completed:
(a) All of the conditions precedent to the
consummation of the Merger specified in this Merger Agreement and
required under the Colorado Business Corporation Act and the
Delaware General Corporation Law have been satisfied or duly waived
by the party entitled to satisfaction thereof;
(b) An executed Articles of Merger or an executed
counterpart of this Merger Agreement meeting the requirements of the
Colorado Business Corporation Act has been filed with the Secretary
of State of the State of Colorado; and
(c) An executed Certificate of Merger or an executed
counterpart of this Merger Agreement meeting the requirements of the
Delaware General Corporation Law has been filed with the Secretary
of State of the State of Delaware.
The date and time when the Merger shall become effective is
herein called the "Effective Time of the Merger."
1.3 Effect of the Merger. At the Effective Time of the
Merger, the separate existence and corporate organization of JNNE
shall cease and Go Online, as the Surviving Corporation, (i) shall
continue to possess all of its assets, rights, powers and property
as constituted immediately before the Effective Time of the Merger,
(ii) shall be subject to all actions previously taken by its and
JNNE's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of JNNE
in the manner more fully set forth in Section 259(a) of the Delaware
General Corporation Law, (iv) shall continue to be subject to all of
its debts, liabilities and obligations as constituted immediately
before the Effective Time of the Merger and (v) shall succeed,
without other transfer, to all of the debts, liabilities and
obligations of JNNE in the same manner as if Go Online had itself
incurred them, all as more fully provided under the applicable
provisions of the Delaware General Corporation Law and the Colorado
Business Corporation Act.
II.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of
Incorporation of Go Online as in effect immediately before the
Effective Time of the Merger shall continue in full force and effect
as the Certificate of Incorporation of the Surviving Corporation
until duly amended or repealed in accordance with the provisions
thereof and applicable law.
2.2 Bylaws. The Bylaws of Go Online as in effect
immediately before the Effective Time of the Merger shall continue
in full force and effect as the Bylaws of the Surviving Corporation
until duly amended or repealed in accordance with the provisions
thereof and applicable law.
2.3 Officers and Directors. The persons who are officers
and directors of Go Online immediately prior to the Effective Time
of the Merger shall, after the Effective Time of the Merger, be the
officers and directors of the Surviving Corporation, without change
until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Certificate of
Incorporation, Bylaws and applicable law.
III.
MANNER OF CONVERSION OF STOCK
3.1 JNNE Shares.
(a) Upon the Effective Time of the Merger, each share of
JNNE Common Stock, no par value, issued and outstanding immediately
before the Effective Time of the Merger shall by virtue of the
Merger and without any action by the Constituent Corporations, by
the holder of such shares or by any other person, be converted into
and become one fully paid and nonassessable share of Common Stock,
$.001 par value per share, of the Surviving Corporation.
(b) Upon the Effective Time of the Merger, each share of
JNNE Series A Preferred Stock, no par value, issued and outstanding
immediately before the Effective Time of the Merger shall by virtue
of the Merger and without any action by the Constituent
Corporations, by the holder of such shares or by any other person,
be converted into and become one fully paid and nonassessable share
of Series A Preferred Stock, $0.001 par value per share, of the
Surviving Corporation.
3.2 JNNE Options, Warrants and Convertible Securities. At
the Effective Time of the Merger, the Surviving Corporation shall
assume and continue the stock option plans of JNNE, if any, and all
options, warrants and rights to purchase or acquire shares of JNNE
Common Stock. At the Effective Time of the Merger, each outstanding
and unexercised option, warrant and right to purchase or acquire
shares of JNNE Common Stock shall, by virtue of the Merger and
without any
action on the part of the holder thereof, be converted
into and become an option, warrant or right to purchase or acquire
shares of the Surviving Corporation's Common Stock on the basis of
one share of the Surviving Corporation's Common Stock for each share
of JNNE Common Stock issuable pursuant to any such option, warrant
or right, and under the same terms and conditions and at an exercise
price per share equal to the exercise price per share applicable to
any such JNNE option, warrant or right. No options, warrants or
rights to purchase or acquire Preferred Stock of JNNE currently exist.
A number of shares of the Surviving Corporation's Common
Stock shall be reserved for issuance upon the exercise of options,
warrants and other securities equal to the number of shares of JNNE
Common Stock so reserved immediately before the Effective Time of
the Merger.
3.3 Go Online Common Stock. Upon the Effective Time of
the Merger, each share of Go Online Common Stock, $.001 par value
per share, issued and outstanding immediately before the Effective
Time of the Merger shall, by virtue of the Merger and without any
action by Go Online, by the holder of such shares or by any other
person, be canceled and returned to the status of authorized but
unissued shares.
3.4 Exchange of Certificates. After the Effective Time
of the Merger, each holder of an outstanding certificate
representing shares of JNNE Common Stock or JNNE Preferred Stock
may, at such shareholder's option, surrender the same for
cancellation to American Securities Transfer & Trust, Inc., as
transfer agent (the "Transfer Agent"), and each such holder shall be
entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of the Surviving
Corporation's Common Stock or Preferred Stock, as the case may be,
into which the surrendered shares were converted as herein provided.
Until so surrendered, each outstanding certificate theretofore
representing shares of JNNE Common Stock or JNNE Preferred Stock
shall be deemed for all purposes to represent the number of whole
shares of the Surviving Corporation's Common Stock or Preferred
Stock into which the shares of JNNE Common Stock or Preferred Stock
were converted in the Merger.
The registered owner on the books and records of the
Surviving Corporation or the Transfer Agent of any such outstanding
certificate shall, until such certificate has been surrendered for
transfer or conversion or otherwise accounted for to the Surviving
Corporation or the Transfer Agent, have and be entitled to exercise
any voting or other rights with respect to and to receive dividends
and other distributions upon the shares of Common Stock or Preferred
Stock, as the case may be, of the Surviving Corporation represented
by such outstanding certificate as provided above.
Each certificate representing Common Stock or Preferred Stock
of the Surviving Corporation so issued in the Merger shall bear the
same legends, if any, with respect to restrictions on
transferability as the certificates of JNNE so converted and given
in exchange therefor, unless otherwise determined by the Board of
Directors of the Surviving Corporation in compliance with applicable
laws.
IV.
GENERAL
4.1 Covenants of Go Online. Go Online covenants and
agrees that it will, on or before the Effective Time of the Merger,
take such actions as may be required by the Colorado Business
Corporation Act in order to effectuate the Merger.
4.2 Further Assurances. From time to time, as and when
required by Go Online or by its successors or assigns, there shall
be executed and delivered on behalf of JNNE such deeds and other
instruments, and there shall be taken or caused to be taken by it
such further and other actions as shall be appropriate or necessary
in order to vest or perfect in or conform of record or otherwise by
Go Online the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers,
franchises and authority of JNNE and otherwise to carry out the
purposes of this Merger Agreement, and the officers and directors of
Go Online are fully authorized in the name and on behalf of JNNE or
otherwise to take all such actions and to execute and deliver all
such deeds and other instruments.
4.3 Deferral. Consummation of the Merger may be deferred
by the Board of Directors of JNNE for a reasonable period of time if
the Board of Directors determines that deferral would be in the best
interests of JNNE and its shareholders.
4.4 Amendment. The parties hereto, by mutual consent of
their respective Boards of Directors, may amend, modify or
supplement this Merger Agreement in such manner as may be agreed
upon by them in writing at any time before or after approval of this
Merger Agreement by the shareholders of JNNE and Go Online, but not
later than the Effective Time of the Merger; provided, however, that
no such amendment, modification or supplement not approved by the
shareholders of JNNE and Go Online shall adversely affect the rights
of such shareholders or change any of the principal terms of this
Merger Agreement.
4.5 Dissenters. In the event that the shareholders of
JNNE exercise their dissenters rights in accordance with the
Colorado Business Corporations Act such that the aggregate amount of
monies to be paid by JNNE to such dissenting shareholders exceeds
$2,500.00, then JNNE's Board of Directors may terminate this
Agreement and the Merger without further cause.
4.6 Abandonment. At any time before the Effective Time
of the Merger, this Merger Agreement may be terminated and the
Merger may be abandoned for any reason whatsoever by the Board of
Directors of either JNNE or of Go Online, or of both,
notwithstanding the approval of this Merger Agreement by the
shareholders of JNNE or Go Online, or by both, if circumstances
arise which make the Merger inadvisable. In the event of
abandonment of this Merger Agreement, as above provided, this Merger
Agreement shall become wholly void and of no effect, and no
liability on the part of the Board of Directors or shareholders of
JNNE or Go Online shall arise by virtue of such termination.
4.7 Expenses. If the Merger becomes effective, the
Surviving Corporation shall assume and pay all expenses in
connection therewith not theretofore paid by the respective parties.
If for any reason the Merger shall not become effective, JNNE shall
pay all expenses incurred in connection with all the proceedings
taken in respect of this Merger Agreement or relating thereto.
4.8 Registered Office. The registered office of the
Surviving Corporation in the State of Delaware is located at 00 X.
Xxxxx Xxxxxx, Xxxx xx Xxxxx, Xxxxxx of Xxxx, Xxxxxxxx 00000, and
Paracorp, Inc. is the registered agent of the Surviving Corporation
at such address.
4.9 Agreement. An executed copy of this Merger Agreement
will be on file at the principal place of business of the Surviving
Corporation and, upon request and without cost, a copy thereof will
be furnished to any shareholder.
4.10 Governing Law. This Merger Agreement shall in all
respects be construed, interpreted and enforced in accordance with
and governed by the laws of the State of Delaware and, so far as
applicable, the Merger provisions of the Colorado Business
Corporation Act.
4.11 Counterparts. This Merger Agreement may be executed
in any number of counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, JNNE and Go Online have caused this
Merger Agreement to be signed by their respective duly authorized
officers.
XXXXX XXXXXXXX ENTERTIANMENT, INC.
a Colorado corporation
By: /s/Xxxxxx X. Xxxxxxxx
Its: Chief Executive Officer
ATTESTED:
By: /s/Xxxxxx X. Xxxxxxxx
Its: Secretary
GO ONLINE NETWORKS CORPORATION
a Delaware corporation
By: /s/Xxxxxx X. Xxxxxxxx
Its: Chief Executive Officer
ATTESTED:
By: /s/Xxxxx Xxxxxx
Its: Secretary
