AGREEMENT AND PLAN OF REORGANIZATION among
JUBILEE ACQUISITION CORPORATION, a Delaware corporation
("Jubilee"), THE NEW YORK NETWORK, INC., a Nevada corporation
("Network") and the persons listed in Exhibit A hereof (collectively
the "Shareholders"), being the owners of record of all the issued and
outstanding stock of Network.
Whereas, Jubilee wishes to acquire and Shareholders wish to
transfer all of the issued and outstanding securities of Network in a
transaction intended to qualify as a reorganization within the meaning
of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended
(the "Exchange").
Now, therefore, Jubilee, Network, and the Shareholders adopt
this plan of reorganization and agree as follows:
1. Exchange of Stock
1.1. Number of Shares. The Shareholders agree to transfer
to Jubilee at the Closing (defined below) the number of shares of
common stock of Network shown opposite their names in Exhibit A, in
exchange for an aggregate of 42,795,000 shares of voting common stock
of Jubilee.
1.2. Exchange of Certificates. Each holder of an outstanding
certificate or certificates theretofore representing shares of Network
common stock shall surrender such certificate(s) for cancellation to
Jubilee, and shall receive in exchange a certificate or certificates
representing the number of full shares of Jubilee common stock into
which the shares of Network common stock represented by the
certificate or certificates so surrendered shall have been converted.
The transfer of Network shares by the Shareholders shall be effected by
the delivery to the Exchange Agent (defined below) at the Closing of
certificates representing the transferred shares endorsed in blank or
accompanied by stock powers executed in blank.
1.3. Fractional Shares. Fractional shares of Jubilee common
stock shall not be issued, but in lieu thereof Jubilee shall round up
fractional shares to the next highest whole number.
1.4. Further Assurances. At the Closing and from time to
time thereafter, the Shareholders shall execute such additional
instruments and take such other action as Jubilee may request in order
more effectively to sell, transfer, and assign the transferred stock to
Jubilee and to confirm Jubilee's title thereto.
2. Closing
2.1. Manner. The Closing contemplated herein shall be held
at the offices of the Exchange Agent provided for herein without
requiring the meeting of the parties hereof. All proceedings to be taken
and all documents to be executed at the Closing shall be deemed to have
been taken, delivered and executed simultaneously, and no proceeding
shall be deemed taken nor documents deemed executed or delivered until
all have been taken, delivered and executed. The date of Closing may be
accelerated or extended by agreement of the parties.
2.2. Execution of Documents. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or
transmission required by this agreement or any signature required thereon
may be used in lieu of an original writing or transmission or signature for
any and all purposes for which the original could be used, provided that
such copy, facsimile telecommunication or other reproduction shall be a
complete reproduction of the entire original writing or transmission or
original signature.
3. Unexchanged Certificates. Until surrendered, each
outstanding certificate that prior to the Closing represented Network
common stock shall be deemed for all purposes, other than the payment
of dividends or other distributions, to evidence ownership of the number
of shares of Jubilee common stock into which it was converted. No
dividend or other distribution shall be paid to the holders of certificates
of Network common stock until presented for exchange at which time any
outstanding dividends or other distributions shall be paid.
4. Representations and Warranties of Jubilee
Jubilee represents and warrants as follows:
4.1. Corporate Organization and Good Standing. Jubilee
is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware, and is qualified to do business as
a foreign corporation in each jurisdiction, if any, in which its property or
business requires such qualification.
4.2. Reporting Company Status. Jubilee has filed with the
Securities and Exchange Commission a registration statement on Form
10-SB which became effective pursuant to the Securities Exchange Act
of 1934 and is a reporting company pursuant to Section 12(g) thereunder.
4.3. Reporting Company Filings. Jubilee has timely filed
and is current on all reports required to be filed by it pursuant to Section
13 of the Securities Exchange Act of 1934.
4.4. Capitalization. Jubilee's authorized capital stock
consists of 100,000,000 shares of common stock, $.0001 par value, of
which 5,000,000 shares are issued and outstanding, and 20,000,000
shares of non-designated preferred stock of which no shares are
designated or issued.
4.5. Issued Stock. All the outstanding shares of its common
stock are duly authorized and validly issued, fully paid and non-
assessable.
4.6. Stock Rights. There are no stock grants, options, rights,
warrants or other rights to purchase or obtain Jubilee common or
preferred stock issued or committed to be issued.
4.7. Corporate Authority. Jubilee has all requisite corporate
power and authority to own, operate and lease its properties, to carry on
its business as it is now being conducted and to execute, deliver, perform
and conclude the transactions contemplated by this agreement and all
other agreements and instruments related to this agreement.
4.8. Authorization. Execution of this agreement has been
duly authorized and approved by Jubilee's board of directors.
4.9. Subsidiaries. Jubilee has no subsidiaries.
4.10. Financial Statements. Jubilee's financial statements
attached to its most recent filing with the Securities and Exchange
Commission (the "Jubilee Financial Statements"), fairly present the
financial condition of Jubilee as of the date therein and the results of
its operations for the periods then ended in conformity with generally
accepted accounting principles consistently applied.
4.11. Absence of Undisclosed Liabilities. Except to the
extent reflected or reserved against in the Jubilee Financial Statements,
Jubilee did not have at that date any liabilities or obligations (secured,
unsecured, contingent, or otherwise) of a nature customarily reflected in
a corporate balance sheet prepared in accordance with generally accepted
accounting principles.
4.12. No Material Changes. There has been no material
adverse change in the business, properties, or financial condition of
Jubilee since the date of the Jubilee Financial Statements.
4.13. Litigation. There is not, to the knowledge of Jubilee, any
pending, threatened, or existing litigation against it.
4.14. Contracts. Jubilee is not a party to any material contract
not in the ordinary course of business that is to be performed in whole or
in part at or after the date of this agreement.
4.15. Title. Jubilee has good and marketable title to all the real
property and good and valid title to all other property included in the
Jubilee Financial Statements. Except as set out in the balance sheet
thereof, the properties of Jubilee are not subject to any mortgage,
encumbrance, or lien of any kind except minor encumbrances that do not
materially interfere with the use of the property in the conduct of the
business of Jubilee.
4.16. No Violation. Consummation of the Exchange will not
constitute or result in a breach or default under any provision of any
charter, bylaw, indenture, mortgage, lease, or agreement, or any order,
judgment, decree, law, or regulation to which any property of Jubilee is
subject or by which Jubilee is bound.
5. Representations and Warranties of the Shareholders
The Shareholders, individually and separately, represent and
warrant as follows:
5.1. Title to Shares. The Shareholders, and each of them, are
the owners, free and clear of any liens and encumbrances, of the number
of Network shares which are listed in the attached Exhibit A and which
they have contracted to exchange.
5.2. Stock Rights. No Shareholder owns or claims any stock
grants, options, rights, warrants or other rights to purchase or obtain
Network's common or preferred stock.
5.3. All Stock. Each Shareholder shall transfer herewith all
common stock of Network owned legally or beneficially by such
Shareholder.
5.4. Litigation. To no Shareholder's knowledge is there any
pending, threatened, or existing litigation against or relating to shares
of Network held by any Shareholder.
6. Representations and Warranties of Network
Network represents and warrants as follows:
6.1. Corporate Organization and Good Standing. Network
is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Nevada and is qualified to do business as a
foreign corporation in each jurisdiction, if any, in which its property or
business requires such qualification.
6.2. Capitalization. Network's authorized capital stock
consists of 50,000,000 shares of common stock, $ .001 par value per
share, of which 42,795,000 shares are issued and outstanding, and no
shares of preferred stock.
6.3. Issued Stock. All the outstanding shares of its common
stock are duly authorized and validly issued, fully paid and non-
assessable.
6.4. Stock Rights. Except as may be set out by attached
schedule, there are no stock grants, options, rights, warrants or other
rights to purchase or obtain Network common or preferred stock issued
or committed to be issued.
6.5. Corporate Authority. Network has all requisite
corporate power and authority to own, operate and lease its properties,
to carry on its business as it is now being conducted and to execute,
deliver, perform and conclude the transactions contemplated by this
agreement and all other agreements and instruments related to this
agreement.
6.6. Authorization. Execution of this agreement has been
duly authorized and approved by Network's board of directors.
6.7. Subsidiaries. Except as may be set out by attached
schedule, Network has no subsidiaries.
6.8. Financial Statements. Network's financial statements
contained in its private placement memorandum of July 1, 2002 (the
"Network Financial Statements"), fairly present the financial condition of
Network as of the date therein and the results of its operations for the
periods then ended in conformity with generally accepted accounting
principles consistently applied.
6.9. Absence of Undisclosed Liabilities. Except to the
extent reflected or reserved against in the Network Financial Statements,
Network did not have at that date any liabilities or obligations (secured,
unsecured, contingent, or otherwise) of a nature customarily reflected in
a corporate balance sheet prepared in accordance with generally accepted
accounting principles.
6.10. No Material Changes. Except as may be set out by
attached schedule, there has been no material adverse change in the
business, properties, or financial condition of Network since the date of
the Network Financial Statements.
6.11. Litigation. Except as may be set out by attached
schedule, there is not, to the knowledge of Network, any pending,
threatened, or existing litigation against it.
6.12. Contracts. Except as may be set out by attached
schedule, Network is not a party to any material contract not in the
ordinary course of business that is to be performed in whole or in part at
or after the date of this agreement.
6.13. Title. Except as may be set out by attached schedule,
Network has good and marketable title to all the real property and good
and valid title to all other property included in the Network Financial
Statements. Except as set out in the balance sheet thereof, the properties
of Network are not subject to any mortgage, encumbrance, or lien of any
kind except minor encumbrances that do not materially interfere with the
use of the property in the conduct of the business of Network.
6.14. No Violation. Consummation of the Exchange will not
constitute or result in a breach or default under any provision of any
charter, bylaw, indenture, mortgage, lease, or agreement, or any order,
judgment, decree, law, or regulation to which any property of Network is
subject or by which Network is bound.
7. Conduct Pending the Closing
Jubilee, Network and the Shareholders covenant that between the
date of this agreement and the Closing as to each of them:
7.1. No change will be made in the charter documents, by-
laws, or other corporate documents of Jubilee or Network.
7.2. Network and Jubilee will use their best efforts to maintain
and preserve their business organization, employee relationships, and
goodwill intact, and will not enter into any material commitment except
in the ordinary course of business.
7.3. None of the Shareholders will sell, transfer, assign,
hypothecate, lien, or otherwise dispose or encumber the Network shares
of common stock owned by them.
8. Conditions Precedent to Obligation of Network and
the Shareholders
Network's and the Shareholders' obligation to consummate the
Exchange shall be subject to the accuracy of representations and
warranties of Jubilee set forth herein at the Closing as though made at
and as of that date, except as affected by transactions contemplated
hereby.
9. Conditions Precedent to Obligation of Jubilee
Jubilee's obligation to consummate the Exchange shall be subject
to the accuracy of representations and warranties of Network and the
Shareholders set forth herein at the Closing as though made at and as of
that date, except as affected by transactions contemplated hereby.
10. Survival of Representations and Warranties. The
representations and warranties
of Network, the Shareholders and Jubilee set out herein shall survive the
Closing.
11. General Provisions.
11.1. Further Assurances. From time to time, each party will
execute such additional instruments and take such actions as may be
reasonably required to carry out the intent and purposes of this
agreement.
11.2. Waiver. Any failure on the part of either party hereto to
comply with any of its obligations, agreements, or conditions hereunder
may be waived in writing by the party to whom such compliance is owed.
11.3. Brokers. Each party agrees to indemnify and hold
harmless the other party against any fee, loss, or expense arising out of
claims by brokers or finders employed or alleged to have been employed
by the indemnifying party.
11.4. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if delivered in
person or sent by prepaid first-class certified mail, return receipt
requested, or recognized commercial courier service, as follows:
If to Jubilee, to:
Jubilee Acquisition Corporation
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to Network, to:
The New York Network, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
If to the Shareholders, to their addresses of record as such appear on
Exhibit A attached hereto, or as may be changed by the Shareholders
from time to time as provided to the parties in accordance with the
notices section of this agreement.
If to the Exchange Agent, to:
Xxxxxxx and Associates
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
11.5. Governing Law. This agreement shall be governed by
and construed and enforced in accordance with the laws of the State of
Delaware.
11.6. Assignment. This agreement shall inure to the benefit of,
and be binding upon, the parties hereto and their successors and assigns;
provided, however, that any assignment by any party of its rights under
this agreement without the written consent of each other party shall be
void.
11.7. Counterparts. This agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same instrument. Signatures sent by facsimile transmission shall be
deemed to be evidence of the original execution thereof.
11.8. Exchange Agent and Closing Date. The Exchange
Agent shall be Xxxxxxx and Associates, Washington, D.C. The Closing
shall take place upon the fulfillment by each party of all the conditions of
the Closing required herein, but not later than 15 days following
execution of this agreement unless extended by mutual consent of the
parties.
11.9. Review of Agreement. Each party acknowledges that it
has had time to review this agreement and, as desired, consult with
counsel. In the interpretation of this agreement, no adverse presumption
shall be made against any party on the basis that it has prepared, or
participated in the preparation of, this agreement.
11.10. Effective Date. This effective date of this agreement shall
be August 26, 2002.
Signature Page to Agreement and Plan of Reorganization
among Jubilee, Network and the Shareholders of Network
IN WITNESS WHEREOF, the parties have executed this
agreement.
JUBILEE ACQUISITION CORPORATION
By /s/ Xxxxx X. Xxxxxxx
THE NEW YORK NETWORK, INC.
By /s/ Xxxxx X. Xxxxx
SHAREHOLDERS:
/s/ Xxxxx X. Xxxxx
Exhibit A
Number of Number of
Network Shares Jubilee Name and
to Be Shares to Address of
Transferred Be Received Shareholder
42,795,000 42,795,000 Xxxxx X. Xxxxx
c/o The New York Network, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
