AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (herein referred to as the
"Agreement") is made and entered into this 24th day of February, 2000 by and
among New York Regional Rail Corporation, a Delaware corporation ("NYRR"), OSK
Capital 1 Corporation, a Delaware corporation ("OSK") and the persons listed in
Exhibit A hereof (collectively the "Shareholders"), being the owners of record
of all of the issued and outstanding stock of OSK.
WITNESSETH:
Whereas, NYRR wishes to acquire and the Shareholders wish to transfer all
of the issued and outstanding securities of OSK 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.
Now, Therefore, NYRR, OSK, 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 NYRR at the
Closing (defined below) the number of shares of common stock of OSK,
$0.001 par value per share, shown opposite their names in Exhibit A which
shall total 3,204,000 collectively, in exchange for an aggregate of
480,600 shares of voting common stock of NYRR, $.001 par value per share
and the monetary sum of $18,000 .
1.2. EXCHANGE OF CERTIFICATES. Each holder of an outstanding certificate
or certificates theretofore representing shares of OSK common stock shall
surrender such certificate(s) for cancellation to NYRR, and shall receive
in exchange a certificate or certificates representing the number of full
shares of NYRR common stock into which the shares of OSK common stock
represented by the certificate or certificates so surrendered shall have
been converted. The transfer of OSK shares by the Shareholders shall be
effected by the delivery to NYRR 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 NYRR common stock shall not
be issued, but in lieu thereof NYRR shall roundup 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 NYRR may request in order more effectively to sell,
transfer, and assign the transferred stock to NYRR and to confirm NYRR's
title thereto.
2. CLOSING.
2.1. PLACE. The Closing contemplated herein shall take place on or before
February 24, 2000 and shall be held at the offices of the Exchange Agent
provided for herein unless another place or time is agreed upon in writing
by the parties 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 only by written agreement executed
by all of the parties or their agent.
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 OSK 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 NYRR
common stock into which it was converted. No dividend or other
distribution shall be paid to the holders of certificates of OSK common
stock until presented for exchange at which time any outstanding dividends
or other distributions shall be paid.
4. REPRESENTATIONS AND WARRANTIES OF OSK. OSK represents and warrants as
follows:
4.1. CORPORATE ORGANIZATION AND GOOD STANDING. OSK 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. OSK has filed with the Securities and
Exchange Commission a registration statement on Form10-SB, which became
effective pursuant to the Securities Exchange Act of 1934 and is a
reporting company pursuant to Section 12(g) thereunder and that this
Registration Statement is sufficient to render NYRR a fully reporting
company pursuant to the Securities and Exchange Act of 1934.
4.3. REPORTING COMPANY FILINGS. OSK has timely filed and is current on all
reports required to be filed by it pursuant to Section 13of the Securities
Exchange Act of 1934.
4.4. CAPITALIZATION. OSK's authorized capital stock consists of 25,000,000
shares of Common Stock, $.001 par value, of which 3,200,000 shares are
issued and outstanding, and there are no preferred shares authorized
issued or outstanding.
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 OSK Common or Preferred Stock issued or
committed to be issued.
4.7. CORPORATE AUTHORITY. OSK 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 OSK's board of directors. A copy of the Board of
Director's Resolution authorizing this transaction shall be provided to
NYRR at the Closing.
4.9. SUBSIDIARIES. OSK has no subsidiaries.
4.10. FINANCIAL STATEMENTS. OSK's financial statements dated ______, 1999,
copies of which will have been delivered by OSK to NYRR prior to the
Merger Date (the "OSK Financial Statements"), fairly present the financial
condition of OSK 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 LIABILITIES. OSK does not have any liabilities or
obligations (secured, unsecured, contingent, or otherwise).
4.12. NO MATERIAL CHANGES. There has been no material adverse change in
the business, properties, or financial condition of OSK since the date of
the OSK Financial Statements.
4.13. LITIGATION. There is not any pending, threatened, or existing
litigation, bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against OSK or against any of
its officers.
4.14. CONTRACTS. OSK is not a party to any contract that is to be
performed in whole or in part at or after the Closing date of this
Agreement.
4.15. TITLE. OSK has good and marketable title to all the real property
and good and valid title to all other property included in the OSK
Financial Statements. The properties of OSK are not subject to any
mortgage, encumbrance, or lien of any kind.
4.16. TAX RETURNS. All required tax returns for federal, state, county,
municipal, local, foreign and other taxes and assessments have been
properly prepared and filed by OSK for all years for which such returns
are due. Any and all federal, state, county, municipal, local, foreign and
other taxes and assessments, including any and all interest, penalties and
additions imposed with respect to such amounts have been paid or provided
for. The provisions for federal and state taxes reflected in the OSK
Financial Statements are adequate to cover any such taxes that may be
assessed against OSK in respect of its business and its operations during
the periods covered by the OSK Financial Statements and all prior periods.
4.17. NO VIOLATION. Consummation of the Merger 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 OSK is subject or by which OSK
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 OSK shares
which are listed in the attached Exhibit A and which they have contracted
to exchange.
5.2. LITIGATION. There is no litigation or proceeding pending, or to each
Shareholder's knowledge threatened, against or relating to the shares of
OSK held by the Shareholders.
6. REPRESENTATIONS AND WARRANTIES OF NYRR NYRR represents and warrants as
follows:
6.1. CORPORATE ORGANIZATION AND GOOD STANDING. NYRR 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, in which its property or business requires such
qualification.
6.2. CORPORATE AUTHORITY. NYRR 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.
6.3. AUTHORIZATION. Execution of this Agreement has been duly authorized
and approved by NYRR's board of directors.
6.4. NO VIOLATION. Consummation of the Merger 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 NYRR is subject or by which
NYRR is bound.
7. CONDUCT OF OSK PENDING THE MERGER DATE. OSK covenants that between the
date of this Agreement and the Merger Date: 7.1. No change will be made in
OSK's articles of incorporation or bylaws.
7.2. OSK will not make any change in its authorized or issued capital
stock, declare or pay any dividend or other distribution or issue,
encumber, purchase, or otherwise acquire any of its capital stock other
than as provided herein.
7.3. OSK will use its best efforts to maintain and preserve its business
organization and will not enter into any commitments.
8. CONDUCT PENDING THE CLOSING NYRR, OSK and the Shareholders covenant
that between the date of this Agreement and the Closing as to each of
them:
8.1. No change will be made in the charter documents, by-laws, or other
corporate documents of NYRR or OSK.
8.2. OSK and NYRR will use their best efforts to maintain and preserve its
business organization, employee relationships, and goodwill intact, and
will not enter into any material commitment except in the ordinary course
of business.
8.3. None of the Shareholders will sell, transfer, assign, hypothecate,
lien, or otherwise dispose or encumber the OSK shares of common stock
owned by them.
9. CONDITIONS PRECEDENT TO OBLIGATION OF OSK AND THE SHAREHOLDERS OSK's
and the Shareholder's obligation to consummate this exchange shall be
Subject to fulfillment on or before the Closing of each of the following
conditions, unless waived in writing by OSK or the Shareholders as
appropriate:
9.1. NYRR'S REPRESENTATIONS AND WARRANTIES. The representations and
warranties of NYRR set forth herein shall be true and correct at the
Closing as though made at and as of that date, except as affected by
transactions contemplated hereby.
9.2. NYRR'S COVENANTS. NYRR shall have performed all covenants
required by this Agreement to be performed by it on or before the Closing.
9.3. BOARD OF DIRECTOR APPROVAL. This Agreement shall have been approved
by the Board of Directors of NYRR.
10. CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT TO OBLIGATION OF NYRR
NYRR's obligation to consummate and/or waive revocation of this merger
shall be subject to fulfillment to the reasonable satisfaction of NYRR on
or before March 3, 2000 of each of the following conditions, unless waived
in writing by NYRR:
10.1. OSK'S AND THE SHAREHOLDER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of OSK and the Shareholders set forth
herein shall be true and correct at the Closing as though made at and as
of that date, except as affected by transactions contemplated hereby.
10.2. OSK'S AND THE SHAREHOLDERS' COVENANTS. OSK and the Shareholders
shall have performed all covenants required by this Agreement to be
performed by them on or before the Closing.
10.3. BOARD OF DIRECTOR APPROVAL. This Agreement shall have been
approved by the Board of Directors of OSK.
10.4. SHAREHOLDER EXECUTION. This Agreement shall have been executed by
the required number of shareholders of OSK.
10.5. SUPPORTING DOCUMENTS OF OSK. OSK shall have delivered to NYRR
supporting documents in form and substance reasonably satisfactory to NYRR
to the effect that: (a) OSK is a corporation duly organized, validly
existing, and in good standing; (b) OSK's capital stock is as set forth
herein; (c) Certified copies of the resolutions of the board of directors
of OSK authorizing the execution of this Agreement and the consummation
hereof; (d) Secretary's certificate of incumbency of the officers and
directors of OSK; (e) OSK's Financial Statements and unaudited financial
statements for the period from the date of the OSK's Financial Statements
to the close of the most recent fiscal quarter; and (f) Any document as
may be specified herein or required to satisfy the conditions,
representations and warranties enumerated elsewhere herein.
11. NYRR's RIGHT OF REVOCATION In the event that NYRR is not reasonably
satisfied with OSK's fulfillment of its conditions, representations or
warranties contained in this Agreement NYRR shall have the right to revoke
and or rescind this transaction, upon written notice to OSK, up to and
including 5:00 PM on March 3, 2000. In the event that NYRR exercises its
right to rescind or revoke all parties hereto shall be restored to their
pre-Agreement status with no further rights or claims against the others.
12. SHAREHOLDERS' REPRESENTATIVE. The Shareholders hereby irrevocably
designate and appoint Xxxx X'Xxxx, Westminster Securities as their agent
and attorney in fact ("Shareholders' Representative") with full power and
authority until the Closing to execute, deliver, and receive on their
behalf all notices, requests, and other communications hereunder; to fix
and alter on their behalf the date, time, and place of the Closing; to
waive, amend, or modify any provisions of this Agreement, and to take such
other action on their behalf in connection with this Agreement, the
Closing, and the transactions contemplated hereby as such agent or agents
deem appropriate; provided, however, that no such waiver, amendment, or
modification may be made if it would decrease the number of shares to be
issued to the Shareholders hereunder or increase the extent of their
obligation to indemnify NYRR hereunder.
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of OSK, the Shareholders and NYRR set out herein shall survive
the Closing.
14. ARBITRATION
14.1. SCOPE. The parties hereby agree that any and all claims (except only
for requests for injunctive or other equitable relief) whether existing
now, in the past or in the future as to which the parties or any
affiliates may be adverse parties, and whether arising out of this
Agreement or from any other cause, will be resolved by arbitration before
the American Arbitration Association within the State of New York.
14.2. CONSENT TO JURISDICTION, SITUS AND JUDGEMENT. The parties hereby
irrevocably consent to the jurisdiction of the American Arbitration
Association and the situs of the arbitration (and any requests for
injunctive or other equitable relief) within the State of New York. Any
award in arbitration may be entered in any domestic or foreign court
having jurisdiction over the enforcement of such awards.
14.3. APPLICABLE LAW. The law applicable to the arbitration and this
Agreement shall be that of the State of Delaware, determined without
regard to its provisions which would otherwise apply to a question of
conflict of laws.
14.4. DISCLOSURE AND DISCOVERY. The arbitrator may, in its discretion,
allow the parties to make reasonable disclosure and discovery in regard to
any matters which are the subject of the arbitration and to compel
compliance with such disclosure and discovery order. The arbitrator may
order the parties to comply with all or any of the disclosure and
discovery provisions of the Federal Rules of Civil Procedure, as they then
exist, as may be modified by the arbitrator consistent with the desire to
simplify the conduct and minimize the expense of the arbitration.
14.5. RULES OF LAW. Regardless of any practices of arbitration to the
contrary, the arbitrator will apply the rules of contract and other law of
the jurisdiction whose law applies to the arbitration so that the decision
of the arbitrator will be, as much as possible, the same as if the dispute
had been determined by a court of competent jurisdiction.
14.6. FINALITY AND FEES. Any award or decision by the American Arbitration
Association shall be final, binding and non-appealable except as to errors
of law or the failure of the arbitrator to adhere to the arbitration
provisions contained in this Agreement. Each party to the arbitration
shall pay its own costs and counsel fees except as specifically provided
otherwise in this Agreement.
14.7. MEASURE OF DAMAGES. In any adverse action, the parties shall
restrict themselves to claims for compensatory damages and/or securities
issued or to be issued and no claims shall be made by any party or
affiliate for lost profits, punitive or multiple damages.
14.8. COVENANT NOT TO XXX. The parties covenant that under no conditions
will any party or any affiliate file any action against the other (except
only requests for injunctive or other equitable relief) in any forum other
than before the American Arbitration Association, and the parties agree
that any such action, if filed, shall be dismissed upon application and
shall be referred for arbitration hereunder with costs and attorney's fees
to the prevailing party.
14.9. INTENTION. It is the intention of the parties and their affiliates
that all disputes of any nature between them, whenever arising, whether in
regard to this Agreement or any other matter, from whatever cause, based
on whatever law, rule or regulation, whether statutory or common law, and
however characterized, be decided by arbitration as provided herein and
that no party or affiliate be required to litigate in any other forum any
disputes or other matters except for requests for injunctive or equitable
relief. This agreement shall be interpreted in conformance with this
stated intent of the parties and their affiliates.
14.10. SURVIVAL. The provisions for arbitration contained herein shall
survive the termination of this Agreement for any reason.
15. GENERAL PROVISIONS.
15.1. 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.
15.2. 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.
15.3. 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.
15.4. 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 NYRR, to: New
York Regional Rail Corporation, 0000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx
00000 with a copy to Xxxxxx X. Xxxxxx, Esq., Xxxxxxx Xxxxxx & Xxxxx, P.C.
0000 Xxxxxxxxx Xx., Xxxxx 000, Xx. Xxxxxx, Xxx Xxxxxx 00000 If to OSK, to:
OSK Capital 1Corp. c/o Xxxxx Xxxxxx, 0000 Xxxx 00xx Xxxxxx, Xxxxxx,
Xxxxxxxx 00000 If to the Shareholders, to _____________________.
15.5. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware.
15.6. 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 either party of its rights under
this agreement without the written consent of the other party shall be
void.
15.7. 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.
15.8. EXCHANGE AGENT.The Exchange Agent shall be Westminster Securities,
New York, NY.
15.9. 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.
15.10. SCHEDULES. All schedules attached hereto, if any, shall be
acknowledged by each party by signature or initials thereon.
15.11. EFFECTIVE DATE. This effective date of this Agreement shall be
February 24, 2000.
15.12 TIME OF THE ESSENCE The date and time of Closing and all dates and
times specified for performance by the parties under this Agreement are
hereby agreed to be of the essence of this Agreement.
15.13 ENTIRE AGREEMENT This Agreement (including the Exhibits attached
hereto which are by this reference made a part hereof) contains the entire
agreement between the parties and all understandings and agreements
heretofore had between the parties hereto are merged into this Agreement.
15.14 MODIFICATION This Agreement may not be modified orally, but only by
writing duly executed by each party or their representative hereto.
WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
Witness: New York Regional Rail Corporation
Xxx Xxxx, Secretary By: W. Xxxxxx Xxxxxxx, President
Witness: OSK Capital 1 Corporation
Xxxxx Xxxxx Xxxxxx, Secretary By: Xxxxxxx X. Xxxxxxx, President
Witness: Shareholders:
Xxxxx X. Xxxxxx
Xxxx X. X'Xxxx
Xxxxxxx X. Xxxxxxx
Xxxx Xxxxx
Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxxx X. XxXxxxxxx
Xxxx Xxxxx XxXxxxxxx
Xxxxxxx X. Xxxx
Xxxxx Slow
Xxxxxx Xxxxxxx
Xxxxxx Slow
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxx Xxxxxxxx
Xxxxx X. Xxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx
Xxxxxx Xxxxx Xxxxxxxxxxx
Xxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxx Xxxxxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Lincoln X. Xxxxxxxx
Xxxxxxxx X. Xxxx
Xxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxxxx
EXHIBIT A
Shareholders Stock Held
Xxxxx X. Xxxxxx 1,000,000
Xxxx X. X'Xxxx 1,000,000
Xxxxxxx X. Xxxxxxx 1,000,000
Xxxx Xxxxx 150,000
Xxxxxxx Xxxxxxx 25,000
Xxxxxxx X. Xxxxxxxx 1,000
Xxxxxxxxx Xxxxxx 1,000
Xxxxx Xxxxxxx 1,000
Xxxxxx Xxxxxx 1,000
Xxxxxxx X. XxXxxxxxx 1,000
Xxxx Xxxxx XxXxxxxxx 1,000
Xxxxxxx X. Xxxx 1,000
Xxxxx Slow 1,000
Xxxxxx Xxxxxxx 1,000
Xxxxxx Slow 1,000
Xxxxxx X. Xxxxxx 1,000
Xxxxx X. Xxxxx 1,000
Xxx Xxxxxxxx 1,000
Xxxxx X. Xxxx 1,000
Xxxxxxxx X. Xxxxxxxx 1,000
Xxxxxxxxx X. Xxxxx, Xx. 1,000
Xxxxxxx X. Xxxxx 1,000
Xxxxxx Xxxxx Xxxxxxxxxxx 1,000
Xxxxx Xxxxxxxx 1,000
Xxxxxx X. Xxxxxxx 1,000
Xxxxxx X. Xxxxxx 1,000
Xxxxx X. Xxxxxxxx 1,000
Xxxxxxx Xxxxx 1,000
Xxxxxxx Xxxx 1,000
Xxxx Xxxxxxxxx 1,000
Xxxx X. Xxxxxx 1,000
Xxxxx X. Xxxxxxx 1,000
Lincoln X. Xxxxxxxx 1,000
Xxxxxxxx X. Xxxx 1,000
Xxxxxx Xxxxxxxxxx 1,000
Xxxxxxx Xxxxxxxxxx 1,000
