AGREEMENT AND PLAN OF REORGANIZATION made as of this 27th day of July,
1999, by and between Playorena, Inc., a New York corporation having its
principal place of business at 000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxx Xxxx 00000 (APlayorena@), Playorena Acquisition Corp., a Delaware
corporation having its principal place of business at 000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 ("PAC"), Global Travel Network,
LLC, a Delaware limited liability company having its principal place of business
at 000 Xxxxxx Xxxxxx, Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000 (AGlobal@) and Xxxxxxx
Xxxxx, Liberty Travel, Inc., Xxxxx Xxxxxx, Townmoor Investments, Xxxxxxx Xxxxx,
Xxxxx Xxxxxx, Cobra Capital Management, Xxxxxx X. Fine, Xxxxx Xxxxxx, Xxxxxx X.
Xxxxx, Descap Publishing, Xxxx Xxxxxxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxxxxx,
Xxxx Xxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxx Xxxxx and Xxxx Xxxxx (collectively referred to herein as the "Global
Members").
WHEREAS, Playorena, which presently has 9,988,018 shares of Common Stock,
par value $.001 per share ("Playorena Common Stock") outstanding, shall use its
best efforts to cause its shareholders to approve a .027533 for 1 reverse stock
split (the AReverse Split@), resulting in approximately 275,000 shares of
Playorena Common Stock outstanding (the APlayorena Common Shares@) in
furtherance of which certain major shareholders of Playorena have,
contemporaneously herewith, executed and delivered that certain Voting Agreement
among them and Global.
WHEREAS, PAC is a wholly owned subsidiary of Playorena and is authorized to
issue 200 shares of common stock, par value $.001 (the "PAC Shares") all of
which PAC Shares are issued and outstanding and owned by Playorena.
WHEREAS, the respective Boards of Directors or Board of Managers of
Playorena, PAC and Global (collectively the "Companies") deem it advisable and
generally to the advantage and welfare of the Companies, and their respective
shareholders and members, that PAC be merged with and into Global under the
terms and conditions hereinafter set forth (the AMerger@), the Merger to be
effected pursuant to the Delaware Limited Liability Company Act and the Delaware
General Corporation Law and to be a tax free reorganization under Section
368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the ACode@).
NOW, THEREFORE, in consideration of the premises, covenants and conditions
hereof, the parties hereto do mutually agree as follows:
1. Vote on Merger and Related Matters. (a) PAC and Global (the "Constituent
Corporations") shall each, as soon as practicable but prior to closing, and in
no event later than 30 days after the execution and delivery hereof, (i) cause a
special meeting of its shareholders and/or members to be called to consider and
vote upon the Merger on the terms and conditions hereinafter set forth, or (ii)
obtain written consent of such shareholders and/or members as is necessary to
approve the Merger. If the Merger is approved in accordance with the laws of the
States of New York and Delaware, subject to the further conditions and
provisions of this Agreement, a closing of this Agreement shall be held (the
"Closing"), and a Certificate of Merger and all other documents or instruments
deemed necessary or appropriate by the parties hereto to effect the Merger shall
be executed and filed with the Secretary of State of the States of New York and
Delaware as promptly as possible thereafter. The Certificate of Merger (the
"Certificate of Merger") so filed shall be substantially in the form of Exhibit
A annexed hereto, with such changes therein as the Boards of Directors of the
Constituent Corporations shall mutually approve.
(b) As soon as practicable, but in no event more than 45 days after the
date hereof, Playorena shall cause a special meeting of its shareholders to be
called to consider and vote upon a Certificate of Amendment to Playorena's
Certificate of Incorporation to approve (i) the Reverse Split, (ii) the change
of name of the Company to XXXXXXXXX.XXX, Inc.@, (iii) to recapitulate the
purposes for which Playorena was formed, (iv) to increase the authorized number
of shares of Common Stock from 15,000,000 to 20,000,000, (v) to authorize the
issuance, in one or more series, of an aggregate of 5,000,000 shares of
Preferred Stock, $.001 par value per share, each such series having the
designation, relative rights, preferences and limitations as shall be determined
by the Board of Directors, and (vi) the transacting of such other business as
may properly come before the meeting or any adjournment thereof.
2. Representations, Warranties and Covenants of Global and the Global
Members. Global and the Global Members represent and warrant, jointly and
severally, as follows, except to the extent set forth on the Schedule of
Exceptions annexed hereto and made a part hereof ("Schedule of Exceptions"):
(a) Global is, and on the effective date of the Merger (the AEffective
Date@) will be, a duly organized and validly existing limited liability company
in the State of Delaware and in good standing under the laws of the States of
Delaware and New Jersey. There are issued and outstanding, and on the Effective
Date there will be issued and outstanding, only the membership interests in
Global as set forth on Exhibit B attached hereto and incorporated herein, all of
which such membership interests are, and on the Effective Date will be, duly
authorized, validly issued, fully paid and nonassessable (the "Global Membership
Interests"). There are no, and on the Effective Date there will be no, issued or
outstanding rights, options or warrants to purchase Global Membership Interests
or any other issued or outstanding securities of any nature convertible into or
exercisable or exchangeable for Global Membership Interests. The outstanding
Global Membership Interests have all been issued pursuant to an appropriate
exemption from the registration requirements of the Securities Act of 1933 (the
"Securities Act") and from any applicable registration requirements of the
various states.
(b) Global has, and on the Effective Date will have, no subsidiaries, nor
does it own any direct or indirect interest in any other business entity.
(c) Global has, and on the Effective Date will have, full power and
authority to enter into this Agreement and, subject to any required member
approval in accordance with the laws of the State of Delaware, to consummate the
transactions contemplated hereby. This Agreement and the transactions
contemplated hereby have been duly approved by the Board of Managers of Global
and, prior to the Closing Date, by the members of Global. This Agreement has
been duly executed and delivered by Global and constitutes a valid and binding
obligation of Global, enforceable against it in accordance with its terms,
except as such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws hereafter in effect relating to
creditors' rights.
(d) Global is qualified or licensed as a foreign limited liability company
in all jurisdictions where its business or ownership of assets so requires,
except where the failure to be qualified or licensed would not have a material
adverse effect on the business of Global. The business of Global does not
require it to be registered as an investment company or investment adviser, as
such terms are defined under the Investment Company Act of 1940 and the
Investment Advisers Act of 1940, each as amended.
(e) The financial statements of Global, consisting of its Balance Sheets as
at December 31, 1998 and 1997, its Statements of Income (Loss) for the fiscal
years ended December 31, 1998 and 1997, its Statement of Stockholders' Equity
for the two years ended December 31, 1998 and 1997, and its Statements of Cash
Flows for the years ended December 31, 1998 and 1997, have been audited by
independent public accountants and fairly present the financial position,
results of operations and other information purported to be shown therein, at
the date and for the respective periods to which they apply. The interim
financial statements of Global, consisting of its Balance Sheet as at April 30,
1999, and its Statement of Income (Loss) for the four months ended April 30,
1999, fairly present the financial position, results of operations and other
information purported to be shown therein of Global, at the date and for the
respective periods to which they apply. All such financial statements have been
prepared in conformity with generally accepted accounting principles
consistently applied throughout the periods involved, and have been adjusted for
all normal and recurring accruals. All such financial statements (together, the
"Global Financial Statements") are incorporated herein and made a part hereof.
(f) There has not been, and on the Effective Date there will not have been
in the aggregate, any material adverse change in the condition, financial or
otherwise, of Global from that set forth in the Global Financial Statements.
(g) Except for transactions occurring in the ordinary course of business,
there has not been, and on the Effective Date there will not have been, any
transactions involving Global since April 30, 1999 in an amount in excess of
$50,000.
(h) There are, and on the Effective Date will be, no liabilities
(including, but not limited to, tax liabilities) or claims against Global
(whether such liabilities or claims are contingent or absolute, direct or
indirect, matured or unmatured) not appearing on the Global Financial
Statements, other than liabilities incurred in the ordinary course of business
or taxes incurred on earnings since April 30, 1999.
(i) All federal, state, county and local income, excise, property and other
tax returns required to be filed by Global have been filed, and all required
taxes, fees or assessments have been paid or an adequate reserve therefor has
been established in the Global Financial Statements. The federal income tax
returns and state and foreign income tax returns of Global have not been audited
by the Internal Revenue Service ("IRS") or any other taxing authority within the
past five (5) years. Neither the IRS nor any state, local or other taxing
authority has proposed any additional taxes, interest or penalties with respect
to Global or any of its operations or business, there are no pending, or to the
knowledge of Global threatened, tax claims or assessments, and there are no
pending, or to the knowledge of Global threatened, tax examinations by any
taxing authorities. Global has not given any waivers of rights (which are
currently in effect) under applicable statutes of limitations with respect to
the federal income tax returns of Global for any year.
(j) Except as provided for in the Global Financial Statements, Global has,
and on the Effective Date will have, good and marketable title to all of its
furniture, fixtures, equipment and other assets as set forth in the Global
Financial Statements, and such assets are owned free and clear of all security
interests, pledges, liens, restrictions and encumbrances of every kind and
nature, except as set forth in the Global Financial Statements.
(k) Global is the owner of the inventory as set forth in the Global
Financial Statements and has good and marketable title thereto. Such inventory
is clean, current and saleable in the ordinary course of business.
(l) The accounts receivable as set forth in the Global Financial Statements
represent amounts due for goods sold or services rendered by Global in the
ordinary course of business and, except as reserved for in the Global Financial
Statements, are collectable in the ordinary course of business.
(m) A copy of all agreements, contracts, arrangements, understandings and
commitments, whether written or oral, to which Global is, or on the Effective
Date will be, a party, or from which Global will receive substantial benefits
and which are material to Global (collectively, "Contracts"), has been delivered
to Playorena and PAC. A list of such Contracts is attached hereto as Exhibit C,
which such Exhibit shall be amended at the Effective Date to reflect any
Contracts entered into between the date hereof and the Effective Date. Global is
not now, nor will be on the Effective Date, in material default under any
Contract. The validity and enforceability of, and rights of Global contained in,
each such Contract shall not be adversely effected by the Merger or the
transactions contemplated hereby or any actions taken in furtherance hereof.
(n) Except for the matter of JCB Enterprises, Inc. and Xxxxxx Xxxxxxxx v.
Travel Network, Ltd. and Xxxxxxx X. Xxxxx, filed in the State of Indiana,
Xxxxxxxx County Superior Court, Civil Division, there are, and on the Effective
Date there will be, no legal, administrative, arbitral or other proceedings,
claims, actions or governmental investigations of any nature pending, or to
Global's knowledge threatened, involving Global, individually or in the
aggregate in which an unfavorable determination could result in suspension or
termination of Global's business or authority to conduct such business in any
jurisdiction in any material manner or could result in the payment by Global of
more than $50,000, or challenging the validity or propriety of the transactions
contemplated by this Agreement and, to Global=s best knowledge, there is no
reasonable basis for any such proceeding, claim, action or governmental
investigation against Global. Global is not a party to any order, judgment or
decree which will, or might reasonably be expected to, materially adversely
affect the business, operations, properties, assets or financial condition of
Global.
(o) Since April 30, 1999 there have been, and through the Effective Date
there will be (i) no bonuses or extraordinary compensation to any of the
members, officers or managers of Global, (ii) no loans made to or any other
transactions with any of the members, officers or managers of Global or their
families, and (iii) no dividends or other distributions declared or paid by
Global.
(p) Global has, and on the Effective Date will have, maintained casualty
and liability policies and other insurance policies with respect to its business
which are appropriate and customary for businesses similar to Global in size,
industry and risk profile. Copies of all of the policies of insurance and bonds
presently in force with respect to Global, including without limitation those
covering properties, buildings, machinery, equipment, worker's compensation,
officers and directors and public liability, have been delivered to Playorena
and PAC. All such insurance is outstanding and in full force and effect, with
all premiums thereon duly paid, and Global has not received any notice of
cancellation of any such policies.
(q) Global has, and on the Effective Date will have, no patents, patent
applications, trademarks, trademark registrations or applications, trade names,
copyrights, copyright registrations or applications, or other intellectual
property, except as set forth on the Schedule of Exceptions. Global has no
knowledge of any infringements by it of any third party's intellectual property.
(r) Since its inception, Global has, and on the Effective Date will have,
in all material respects operated its business and conducted its affairs in
compliance with all applicable laws, rules and regulations, except where the
failure to so comply did not have and would not be expected to have a material
adverse effect on Global's business or property.
(s) Except as set forth on the Schedule of Exceptions, there are, and on
the Effective Date there will be, no loans, leases or other Contracts
outstanding between Global and any officer or manager of Global, or any person
related to or affiliated with any officer or manager of Global.
(t) Except as set forth on the Schedule of Exceptions, during the past five
year period neither Global, any officer or manager of Global, nor any person
intended upon consummation of the Merger to become an officer, director or
manager of Global, Playorena or any successor entity or subsidiary, has been the
subject of:
(1) a petition under the Federal bankruptcy laws or any other
insolvency or moratorium law or has a receiver, fiscal agent or similar
officer been appointed by a court for the business or property of Global or
such person, or any partnership in which Global or any such person was a
general partner at or within two years before the time of such filing, or
any corporation or business association of which Global or any such person
was an executive officer at or within two years before the time of such
filing;
(2) a conviction in a criminal proceeding or a named subject of a
pending criminal proceeding (excluding traffic violations which do not
relate to driving while intoxicated or driving under the influence);
(3) any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction, permanently
or temporarily enjoining Global or any such person from, or otherwise
limiting, the following activities:
(i) Acting as a futures commission merchant, introducing broker,
commodity trading advisor, commodity pool operator, floor broker,
leverage transaction merchant, any other person regulated by the
United States Commodity Futures Trading Commission or an associated
person of any of the foregoing, or as an investment adviser,
underwriter, broker or dealer in securities, or as an affiliated
person, director or employee of any investment company, bank, savings
and loan association or insurance company, or engaging in or
continuing any conduct or practice in connection with such activity;
(ii) Engaging in any type of business practice; or
(iii) Engaging in any activity in connection with the purchase or
sale of any security or commodity or in connection with any violation
of Federal, state or other securities laws or commodities laws;
(4) any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any Federal, state or local authority barring,
suspending or otherwise limiting for more than 60 days the right of Global
or any such person to engage in any activity described in the preceding
sub-paragraph, or to be associated with persons engaged in any such
activity;
(5) a finding by a court of competent jurisdiction in a civil action
or by the Securities and Exchange Commission (the "Commission") to have
violated any securities law, regulation or decree and the judgment in such
civil action or finding by the Commission has not been subsequently
reversed, suspended or vacated; or
(6) a finding by a court of competent jurisdiction in a civil action
or by the Commodity Futures Trading Commission to have violated any federal
commodities law, and the judgment in such civil action or finding by the
Commodity Futures Trading Commission has not been subsequently reversed,
suspended or vacated. All items described in clauses (1) through (6) above
are collectively referred to herein as "Bad Events."
(u) Global does not have any pension plan, profit sharing or similar
employee benefit plan, except as set forth on the Schedule of Exceptions.
(v) Except for the consent and approval of the members of Global and the
shareholder of PAC and the filing of the Certificate of Merger, no consents or
approvals of, or filings or registrations with, any third party or any public
body or authority are necessary in connection with (i) the execution and
delivery by Global of this Agreement and (ii) the consummation by Global of the
Merger and by Global of all other transactions contemplated hereby. This
Agreement has been duly executed and delivered by Global and constitutes the
legal, valid and binding obligation of Global enforceable against it in
accordance with the terms hereof, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
relating to or affecting the enforcement of rights hereunder or (b) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(w) Global knows of no person who rendered any service in connection with
the introduction of Playorena, PAC or Global to any of the other Companies other
than Tower Hill Capital Group ("Tower Hill"), and they know of no claim by
anyone other than Tower Hill for a "finder's fee" or similar type of fee in
connection with the Merger and the other transactions contemplated hereby.
(x) No employees of Global are on strike or to the best of its knowledge
threatening any strike or work stoppage. Global does not have any obligations
under any collective bargaining or labor union agreements nor is Global involved
in any material controversy with any of its employees or any organization
representing any of its employees.
(y) None of the information supplied or to be supplied by or about Global
for inclusion or incorporation by reference in any information supplied to
Global members concerning the Merger contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading.
(z) The execution and delivery by Global of this Agreement, the
consummation and performance of the transactions herein contemplated, and
compliance with the terms of this Agreement by Global will not conflict with,
result in a breach of or constitute or give rise to a default under (i) any
indenture, mortgage, deed of trust or other agreement, instrument or Contract to
which Global is now a party or by which it or any of its assets or properties is
bound; (ii) the Articles of Organization, as amended, or the membership,
operating or similar agreement of Global, in each case as amended; or (iii) any
law, order, rule, regulation, writ, injunction, judgment or decree of any
government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over Global or any of its business or properties wherein such
breach could have a material adverse effect on Global or any of its businesses
or properties.
(aa) Global's members are acquiring the shares of Playorena Common Stock to
be issued to them as a result of the Merger for investment purposes only and not
with a view to, or sale in connection with, any distribution within the meaning
of the Securities Act of 1933, as amended.
(bb) To the best of its knowledge, Global is not in violation of any
federal, state or local environmental law or regulation.
3. Representations and Warranties of PAC. PAC represents and warrants as
follows:
(a) PAC is, and on the Effective Date will be, a duly organized and validly
existing corporation in good standing under the laws of the State of Delaware,
authorized to issue only the PAC Shares. On the Effective Date there will be
issued and outstanding all of the PAC Shares which shall be fully paid and
nonassessable and which shall be owned by Playorena. There are no, and on the
Effective Date there will be no issued or outstanding options or warrants to
purchase PAC Shares or any issued or outstanding securities of any nature
convertible into PAC Shares, or any agreements or understandings to issue any
PAC shares, options or warrants.
(b) PAC has been organized solely for the purpose of consummating the
Merger and, since its inception, PAC has had no business activity of any nature
other than those related to its organization or as contemplated by this
Agreement.
(c) PAC has, and on the Effective Date will have full power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement and the transactions contemplated hereby have been duly
approved by the Board of Directors of PAC.
(d) Since its inception, PAC has not issued or committed itself to issue,
and to the Effective Date will not issue or commit itself to issue any PAC
shares or any options, rights, warrants, or other securities convertible into
PAC Shares except for the issuance of the PAC Shares to Playorena.
(e) Except for the consent and approval of the stockholders of PAC and the
Global Members, the filing of the Certificate of Merger, no consents or
approvals of, or filings or registrations with, any third party or any public
body or authority are necessary in connection with (i) the execution and
delivery by PAC of this Agreement and (ii) the consummation by PAC of the Merger
and the other transactions contemplated hereby.
(f) The execution and delivery by PAC of this Agreement, the consummation
and performance of the transactions herein contemplated, and compliance with the
terms of this Agreement by PAC will not conflict with, result in a breach of or
constitute or give rise to a default under any indenture, mortgage, deed of
trust or other agreement, instrument or contract to which PAC is now a party or
by which it or any of its assets or properties is bound or the Certificate of
Incorporation, as amended, or the bylaws of PAC, in each case as amended, or any
law, order, rule or regulation, writ, injunction, judgment or decree of any
government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over PAC or any of its business or properties.
4. Representations and Warranties of Playorena. Playorena represents and
warrants as follows:
(a) Playorena is a duly organized and validly existing corporation in good
standing under the laws of the State of New York, authorized to issue an
aggregate of 15,000,000 shares of Playorena Common Stock. On the Effective Date,
giving effect to the Reverse Split, there will be issued and outstanding
approximately 275,000 shares of Playorena Common Stock, all of which such issued
and outstanding shares will be validly issued, fully paid and nonassessable.
Except as contemplated by this Agreement, on the Effective Date there will be no
issued or outstanding options, warrants or other rights, or commitments or
agreements of any kind, contingent or otherwise, to purchase or otherwise
acquire shares of Playorena Common Stock or any issued or outstanding securities
of any nature convertible into shares of Playorena Common Stock. There is no
proxy or any other agreement, arrangement or understanding of any kind
authorized or outstanding which restricts, limits or otherwise affects the right
to vote any shares of Playorena Common Stock.
(b) The business of Playorena since July, 1998 has been limited to the
search for an acquisition or merger partner and certain transactions described
in its filings with the Commission (the "SEC Filings"), and except for
transactions related to conversion of debt or other obligations and an aborted
acquisition described in the SEC Filings, it has not engaged in any other
business or activity since July, 1998.
(c) Playorena is, and on the Effective Date will be, duly authorized,
qualified and licensed under any and all applicable laws, regulations,
ordinances or orders of public authorities to carry on its business in the
places and in the manner as presently conducted. The business of Playorena does
not require it to be registered as an investment company or investment advisor,
as such terms are defined under the Investment Company Act and the Investment
Advisors Act of 1940.
(d) Playorena has, and on the Effective Date will have no subsidiaries
except for PAC.
(e) The financial statements of Playorena, consisting of its Balance Sheets
as at November 30, 1998 and 1997, and its Statement of Operations for the fiscal
years ended November 30, 1998 and 1997, its Statement of Stockholders' Equity as
of November 30, 1998 and 1997, and its Statement of Cash Flows for the fiscal
years ended November 30, 1998 and 1997, all together with accompanying notes,
have been audited by independent public accountants, are complete and correct in
all material respects, present fairly the financial position of Playorena and
the results of operations and changes in financial position for the respective
periods ended on such dates, and were prepared in accordance with generally
accepted accounting principles consistently applied during the periods and are
in accordance with the books and records maintained by Playorena in all material
respects. The interim financial statements of Playorena, consisting of its
Balance Sheet as at May 31, 1999, and its Statement of Income, Statement of
Stockholders' Equity and Statement of Cash Flows for the three-month period
ending May 31, 1999, have been prepared in accordance with generally accepted
accounting principles and have been adjusted for all normal and recurring
accruals and present fairly the financial position of Playorena and the results
of operations and changes in financial position for the respective periods ended
on such dates, and were prepared in accordance with generally accepted
accounting principles consistently applied during the periods. All the financial
statements referenced herein are collectively referred to as the "Playorena
Financial Statements", all of which have been delivered to Global and are true
and complete in all respects and are in accordance with the books and records
maintained by Playorena in all material respects.
(f) There has not been, and on the Effective Date there will not have been,
any material change in the financial condition of Playorena from that set forth
in the Playorena Financial Statements except for (i) transactions in the
ordinary course of business not in excess of $50,000 in the aggregate, (ii)
transactions relating to this Agreement, and the incurring of expenses and
liabilities relating to this Agreement not in excess of $50,000 in the aggregate
and (iii) conversions of debt and other obligations into Playorena Common Stock.
(g) There are, and on the Effective Date will be, no liabilities
(including, but not limited to, tax liabilities) or claims against Playorena
(whether such liabilities or claims are contingent or absolute, direct or
indirect, accrued or unaccrued) not appearing on the Playorena Financial
Statements, except for (i) liabilities not in excess of $50,000 in the aggregate
for expenses incurred relating to this Agreement and the consummation of the
transactions contemplated hereby and (ii) liabilities and commitments incurred
or made in the ordinary course of Playorena=s business or taxes incurred on
earnings since May 31, 1999 not in excess of $25,000 in the aggregate.
(h) All federal, state, county and local income, excise, property or other
tax returns required to be filed by Playorena have been filed and all required
taxes, fees or assessments have been paid. The federal income tax returns and
state and foreign income tax returns of Playorena have not been audited by the
IRS or any other taxing authority within the past five (5) years. Neither the
IRS nor any state, local or other taxing authority has proposed any additional
taxes, interest or penalties with respect to Playorena or any of its operations
or business, there are no pending, or to the knowledge of Playorena threatened,
tax claims or assessments, and there are no pending, or to the knowledge of
Playorena threatened, tax examinations by any taxing authorities. Playorena has
not given any waivers of rights (which are currently in effect) under applicable
statutes of limitations with respect to the federal income tax returns of
Playorena for any year.
(i) Playorena has, and on the Effective Date will have, no fixtures,
furniture, equipment, inventory or accounts receivable.
(j) Playorena has, and on the Effective Date will have, no material
contracts to which it is, or on the Effective Date will be, a party, except as
described in the Playorena Financial Statements.
(k) There are, and on the Effective Date there will be, no legal,
administrative, arbitral or other proceedings, claims, actions or governmental
investigations of any nature pending or to Playorena's knowledge threatened in
writing, against Playorena, including, but not limited to any shareholder claims
or derivative actions, or challenging the validity or propriety of the
transactions contemplated by this Agreement other than a threat by one creditor
in the amount of $35,000, and, to Playorena's best knowledge, there is no
reasonable basis for any proceeding, claim, action or governmental investigation
against Playorena. Playorena is not a party to any order, judgment or decree
which will, or might reasonably be expected to, materially adversely affect the
business, operations, properties, assets or financial condition of Playorena.
(l) Since May 31, 1999, there have been, and to the Effective Date there
will be (i) no salaried or otherwise compensated employees and no bonuses paid
to any officer or director of Playorena; (ii) no loans made to or transactions
with any officer or director of Playorena other than the issuance of Playorena
Common Stock to those officers and directors of Playorena who have contributed
money to Playorena over the past nine (9) months; (iii) no dividends or other
distributions declared or paid by Playorena; and (iv) no purchase by Playorena
of any of its common shares.
(m) Since May 31, 1999, other than the issuance of Playorena Common Stock
to those officers and directors of Playorena who have contributed money to
Playorena over the past nine (9) months, and to certain other creditors of
Playorena, Playorena has not issued or committed itself to issue, and to the
Effective Date will not issue or commit itself to issue, any additional common
shares or any options, rights, warrants, or other securities convertible into
common shares, except as contemplated by this Agreement or in connection with
conversion of debt or other payables into Playorena Common Stock.
(n) Playorena has no patents, patent applications, trademarks, trademark
registrations, trade names, copyrights, copyright registrations or applications
therefor. Playorena has no knowledge of any infringements by it of any third
party's intellectual property.
(o) Playorena has, and on the Effective Date will have, in all material
respects operated its business and conducted its affairs in compliance with all
applicable laws, rules and regulations.
(p) On the Effective Date there will be, no loans, leases commitments,
arrangements or other contracts of any kind or nature outstanding between (i)
Playorena and (ii) any officer or director of Playorena or any person related to
or affiliated with any officer or director of Playorena.
(q) During the past five year period, no officer or director of Playorena
has been the subject of any Bad Event.
(r) Playorena has had no pension plan, profit sharing or similar employee
benefit plan since January 1, 1997 and none is currently in effect.
(s) Except for the consent and approval of the shareholders of Playorena
and PAC and the Global Members to both the Merger and the Reverse Split, and the
filing of a Certificate of Merger, no consents or approvals of, or filings or
registrations with, any third party or any public body or authority are
necessary in connection with (i) the execution and delivery by Playorena of this
Agreement and (ii) the consummation of the Merger and the other transactions
contemplated hereby. Playorena has, and on the Effective Date will have, full
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement and the transactions
contemplated hereby have been, or will be prior to the effective date, duly
approved by the Board of Directors of Playorena. This Agreement has been duly
executed and delivered by Playorena and constitutes the legal, valid and binding
obligation of Playorena enforceable against it in accordance with the terms
hereof except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws of general application relating to or affecting the
enforcement of rights hereunder or general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(t) Playorena knows of no person who rendered any service in connection
with the introduction of Playorena, PAC or Global to each other except for Tower
Hill, and that it knows of no claim by anyone other than Tower Hill for a
"finder's fee" or similar type of fee in connection with the Merger and the
other transactions contemplated hereby.
(u) Playorena has no employees.
(v) None of the information supplied or to be supplied by or about
Playorena to Global concerning the Merger contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(w) The execution and delivery by Playorena of this Agreement, the
consummation and performance of the transactions herein contemplated, and
compliance with the terms of this Agreement by Playorena will not conflict with,
result in a breach of or constitute or give rise to a default under (i) any
indenture, mortgage, deed of trust or other agreement, instrument or contract to
which Playorena is now a party or by which it or any of its assets or properties
is bound; (ii) the Certificate of Incorporation, as amended, or the bylaws of
Playorena, in each case as amended; or (iii) any law, order, rule or regulation,
writ, injunction, judgment or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
Playorena or any of its business or properties.
(x) To the best of its knowledge, Playorena is not in violation of any
federal, state or local environmental law or regulation.
(y) Playorena has been a reporting company under the Securities Exchange
Act of 1934 since 1989, has been current in its filings since January 1, 1999
and will be current in its filings as of the Effective Date.
(z) There are no claims pending, or the knowledge of the Company
threatened, against the Company by any shareholder of the Company.
5. Representations to Survive Closing. All of the representations,
covenants and warranties contained in this Agreement (including all statements
contained in any certificate or other instrument delivered by or on behalf of
Playorena, PAC, Global or the Global Members pursuant hereto or in connection
with the transactions contemplated hereby) shall survive the Closing for a
period of two (2) years from the Effective Date, regardless of any investigation
made by or on behalf of any other party hereto.
6. Surviving Corporation. The surviving corporation shall be Global. Its
name, identity, certificate of incorporation, by-laws, existence, purposes,
powers, objects, franchises, rights and immunities shall be unaffected and
unimpaired by the Merger, except as described in the Certificate of Merger.
7. Treatment of Shares of Constituent Corporations. The terms and
conditions of the Merger, the mode of carrying the same into effect, and the
manner and basis of converting the securities of each of the Constituent
Corporations are as follows:
(a) The Global Membership Interests shall be converted by virtue of the
Merger, and at the Effective Date into a total of 4,725,000 Playorena Common
Shares, on the basis of 47,250 Playorena Common Shares for each one percent (1%)
Global Membership Interest without any action on the part of the holders
thereof. After the Effective Date, each holder of a Global Membership Interest
prior to the Merger shall be entitled upon surrender to receive from PAC a
certificate representing the number of Playorena Common Shares to which such
holder shall be entitled, which certificate shall contain any appropriate
restrictive legend concerning the resale of such Playorena Common Shares. Until
so surrendered, any outstanding certificates or other documentation which, prior
to the Effective Date, represented a Global Membership Interest shall be deemed
for all corporate purposes to evidence ownership of Playorena Common Shares into
which such Global Membership Interest shall have been converted. Upon such
surrender, the Global Membership Interests so surrendered shall no longer be
outstanding and shall automatically be canceled and retired, and shall cease to
exist.
(b) Following the effectiveness of the Reverse Split, there shall be no
change in the ownership of the Outstanding Playorena Common Shares from that in
existence immediately prior to the Merger.
(c) The separate existence and corporate organization of PAC, except
insofar as it may be continued by statute, shall cease on Effective Date and
Global shall become a wholly owned subsidiary of Playorena.
8. Rights and Liabilities of Surviving Corporation. On and after the
Effective Date, Global, as the surviving corporation, shall succeed to and
possess, without further act or deed, all of the estate, rights, privileges,
powers and franchises, both public and private, and all of the property, real,
personal, and mixed, of each of the Constituent Corporations; all debts due to
either of the Constituent Corporations on whatever account shall be vested in
Global; all claims, demands, property, rights, privileges, powers, franchises
and every other interest of either of the Constituent Corporations shall be as
effectively the property of Global as they were of the respective Constituent
Corporations; the title to any real estate by deed or otherwise in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the Merger, but shall be vested in Global; all rights of creditors and all liens
upon any property of either of the Constituent Corporations shall be preserved
unimpaired, limited in lien to the property affected by such lien at the
Effective Date; all debts, liabilities, and duties of the respective Constituent
Corporations shall thenceforth attach to Global and may be enforced against it
to the same extent as if such debts, liabilities, and duties had been incurred
or contracted by it; and Global shall indemnify and hold harmless Playorena and
the officers and directors of each of the Constituent Corporations against all
such debts, liabilities, and duties, and against all claims and demands arising
out of the Merger.
9. Further Assurances of Title. As and when requested by Global or by its
successors or assigns, PAC shall execute and deliver, or cause to be executed
and delivered, all such deeds and instruments and will take or cause to be taken
all such further action as Global may deem necessary or desirable in order to
vest in and confirm to Global title to and possession of its property acquired
by Global by reason or as a result of the Merger, and otherwise to carry out the
intent and purposes hereof, and the officers and directors of PAC and Playorena
are fully authorized in the name of PAC or Playorena or otherwise to take any
and all such action.
10. Conditions of Obligations of PAC and Playorena. The obligation of PAC
and Playorena to consummate the Merger is subject to the following conditions
prior to the Effective Date:
(a) That Global is in compliance with its representations, warranties and
covenants contained herein, and that both PAC and Playorena shall each receive
from Global a certificate to such effect from the President of Global as of the
Effective Date.
(b) Global has not suffered an uninsured loss on account of fire, flood,
accident, or other calamity of such a character as to interfere materially with
the continuous operation of its business or materially affect adversely its
condition, financial or otherwise, regardless of whether or not such loss shall
have been insured.
(c) That no material transactions shall have been entered into by Global
other than transactions in the ordinary course of business between April 30,
1998 and the Effective Date, other than as referred to in this Agreement or in
the schedules annexed, except with the prior written consent of Playorena.
(d) Except as disclosed in this Agreement or in the schedules annexed
hereto, that no material adverse change in the aggregate shall have occurred in
the financial condition of Global since April 30, 1999.
(e) That none of the properties or assets of Global shall have been sold or
otherwise disposed of other than in the ordinary course of business during such
period, except with the written consent of Playorena.
(f) That Global shall have performed and complied with the provisions and
conditions of this Agreement on its part to be performed and complied with, and
that the representations and warranties made by Global and the Global Members in
this Agreement are true and correct, both when made and as of the Effective
Date.
(g) That all applicable filings and regulatory approvals required to be
made or obtained by Global have been made or obtained.
(h) That this Agreement and the transactions contemplated hereby shall have
been approved by appropriate company action of Global and that company votes and
resolutions to that effect in form and substance reasonably satisfactory to
Playorena and its counsel have been delivered to Playorena.
(i) That there shall have been full compliance with the applicable
securities or Ablue sky@ laws and regulations of any state or other governmental
body having jurisdiction over the Merger.
(j) That Playorena shall have received an opinion from counsel to Global in
form satisfactory to Playorena's counsel, that
(1) Global has been duly organized and is a validly existing limited
liability company in the State of Delaware and is in good standing under
the laws of the States of Delaware and New Jersey with full power and
authority to own and operate its properties and to carry on its current and
proposed business. Global is qualified as a foreign limited liability
company in all jurisdictions where the business or ownership of assets so
requires, except where the failure to so qualify does not have a material
adverse effect on the business or limited liability status of Global.
(2) Global has an authorized and outstanding capitalization as
described in this Agreement.
(3) This Agreement has been duly authorized, executed and delivered by
Global and is a valid and binding obligation of Global legally enforceable
against Global in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights now or
hereafter in effect, and to general equitable principles.
(4) Neither the execution, delivery or performance of this Agreement
nor the consummation of the transactions therein contemplated, nor
compliance with the terms of each thereof by Global do or will conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, the articles of organization, as amended, or
the bylaws, as amended, of Global, any indenture, mortgage, deed of trust
or other contract, agreement or instrument to which such counsel knows
Global is a party or by which, to the knowledge of such counsel, Global or
any of its assets or properties is bound, or to the knowledge of such
counsel, any law, order, rule or regulation, judgment, writ, injunction or
decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over Global or its business or any of its
properties; and no consent, approvals, authorizations or orders of
agencies, officers or other regulatory authorities are necessary for the
consummation of the Merger, except under state securities or "blue sky"
laws, as to which no opinion need be expressed.
(5) This Agreement and the transactions contemplated hereby have been
duly authorized by appropriate company action of Global and that upon
consummation of the Merger, Playorena will be the sole owner of all of the
Global Membership Interests and any and all other ownership or equity
interests in Global.
(6) The business of Global does not require it to be registered as an
investment company or an investment adviser under the Investment Company
Act of 1940 or the Investment Advisers Act of 1940.
Compliance with the provisions of this paragraph shall be evidenced by the
certificate of the President and Secretary of Global.
11. Conditions of Obligations of Global. The obligations of Global to
consummate the Merger are subject to the following conditions prior to the
Effective Date:
(a) That PAC and Playorena are in compliance with their respective
representations, warranties and covenants contained herein, and that Global
shall receive from each of PAC and Playorena a certificate to such effect from
the President of PAC and Playorena as of the Effective Date.
(b) That neither PAC nor Playorena shall have suffered any loss on account
of fire, flood, accident, or other calamity of such a character as to interfere
materially with the continuous operation of its business or materially affect
adversely its condition, financial or otherwise, regardless of whether or not
such loss shall have been insured.
(c) That no material transactions shall have been entered into by PAC or
Playorena other than transactions in the ordinary course of business since May
31, 1999, other than as referred to in this Agreement, except with the prior
written consent of Global.
(d) That no material adverse change shall have occurred in the financial
condition of PAC or Playorena since May 31, 1999, other than as referred to in
this Agreement.
(e) That none of the properties or assets of PAC or Playorena shall have
been sold or otherwise disposed of other than in the ordinary course of business
since May 31, 1999, except with the written consent of Global.
(f) That PAC and Playorena shall each have performed and complied with the
provisions and conditions of this Agreement on its part to be performed and
complied with, and that the representations and warranties made by Playorena
herein are true and correct.
(g) That all applicable filings and regulatory approvals required to be
made or obtained by Playorena have been made or obtained.
(h) That Playorena shall have held a meeting of its Board of Directors at
which meeting all of its directors shall have resigned seriatim and the persons
designated by Global shall have been elected as directors of Playorena, all
subject to the consummation of the Merger.
(i) That Xxxxxxxx Xxxxxx and Xxxxxx Xxxxx shall have each executed that
certain Indemnification Agreement in favor of XXXXXXXX.XXX, Inc.
(j) That Global shall have received an opinion from counsel to PAC and
Playorena in form satisfactory to Global's counsel, that:
(1) Playorena has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of New York with
full corporate power and authority to own and operate its properties and to
carry on its current and proposed business. Playorena is not qualified as a
foreign corporation in any other jurisdiction and the failure to so qualify
does not have a material adverse effect on the business, properties or
operations of Playorena.
(2) PAC has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware with
full corporate power and authority to own and operate its properties and to
carry on its current and proposed business. PAC is not qualified as a
foreign corporation in any other jurisdiction and the failure to so qualify
does not have a material adverse effect on the business, properties or
operations of PAC. Upon issuance, all PAC Shares shall be duly and validly
issued, fully paid and non-assessable and do not have any pre-emptive
rights, subscription rights, rights of first refusal or similar rights
applicable thereto.
(3) This Agreement has been duly authorized, executed and delivered by
Playorena and PAC, and is a valid and binding obligation of both PAC and
Playorena, legally enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights now or hereafter in effect, and to general equitable principles.
(4) This Agreement and the transactions contemplated hereby have been
duly authorized by appropriate corporate action of both PAC and Playorena
and no shareholder of either PAC or Playorena is entitled to appraisal
rights with respect to the Merger contemplated by this Agreement.
(5) Neither the execution, delivery or performance of this Agreement
nor the consummation of the transactions therein contemplated, nor
compliance with the terms of each thereof by PAC and Playorena do or will
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, their respective certificates of
incorporation, as amended, or the bylaws, as amended, of either PAC or
Playorena, any indenture, mortgage, deed of trust or other contract,
agreement or instrument to which such counsel knows PAC or Playorena is a
party or by which, to the knowledge of such counsel, PAC or Playorena or
any of their respective assets or properties are bound, or to the knowledge
of such counsel, any law, order, rule or regulation, judgment, writ,
injunction or decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over PAC or Playorena or
its respective business or any of its properties; and no consent,
approvals, authorizations or orders of agencies, officers or other
regulatory authorities are necessary for the consummation of the Merger,
except under state securities or "blue sky" laws, as to which no opinion
need be expressed.
(6) No consent or approval by any governmental authority which has not
been obtained is required to be obtained in connection with the
consummation of this Agreement by PAC or Playorena.
Compliance with the provisions of this paragraph shall be evidenced by the
certificate of the President and Secretary of each of PAC and Playorena to be
delivered at Closing.
12. Abandonment. This Agreement and the Merger may be abandoned (a) by any
of the Companies, acting by its Board of Directors or Board of Managers, at any
time prior to its adoption by the members or shareholders of such Company, as
provided by law, (b) by any of the Companies, acting by its Board of Directors
or Board of Managers by written notice to the other parties hereto, at any time
in the event of the failure of any condition in favor of such entity as to which
the consummation of the Merger is subject, or (c) by the consent of all the
Companies, acting each by its Board of Directors or Board of Managers, at any
time after such adoption by such members and shareholders and prior to the
Effective Date. In the event of abandonment of this Agreement, the same shall
become wholly void and of no effect, and there shall be no further liability or
obligation hereunder on the part of any of the Companies, their respective Board
of Directors or Board of Managers or any other party to this Agreement.
13. Closing or Termination. In the event the Closing of this Agreement
shall not take place by October 15, 1999, due to the non-satisfaction as of such
date of any condition of closing required herein, then any party shall have the
right to terminate this Agreement, in which event no party shall have any
further right or obligation as against any other. If Global shall fail to close
for any reason other than the non-satisfaction as of such date of any condition
of closing required herein to be performed on the part of PAC or Playorena, then
Global shall pay to Playorena the sum of $20,000 as a breakup fee. If Playorena
shall fail to close for any reason other than the non-satisfaction as of such
date of any condition of closing required herein to be performed on the part of
Global, then Playorena shall pay to Global the sum of $20,000 as a breakup fee.
14. Delivery of Corporate Proceedings of Playorena. At the Closing,
Playorena shall deliver to Global=s counsel the originals of all of the
corporate proceedings of Playorena, duly certified by its Secretary, relating to
this Agreement.
15. Delivery of Corporate Proceedings of PAC. At the Closing, PAC shall
deliver to Global's counsel the originals of all of the corporate proceedings of
PAC, duly certified by its Secretary, relating to this Agreement.
16. Payment of Legal Fees. Global shall reimburse Playorena for all legal
fees and expenses of Playorena's counsel in connection with this Agreement and
the transactions contemplated hereby through and including the Effective Date,
up to a maximum amount of $25,000.
17. Delivery of Company Proceedings of Global . At the Closing, Global
shall deliver to Playorena=s counsel a copy of its company proceedings relating
to this Agreement or taken pursuant to the provisions of this Agreement duly
certified by its Secretary.
18. Limitation of Liability. The representations and warranties made by any
party to this Agreement are intended to be relied upon only by the other parties
to this Agreement and by no other person. Nothing contained in this Agreement
shall be deemed to confer upon any person not a party to this Agreement any
third party beneficiary rights or any other rights of any nature whatsoever.
19. Further Instruments and Actions. Each party shall deliver such further
instruments and take such further action as may be reasonably requested by any
other in order to carry out the intent and purposes of this Agreement.
20. Governing Law. This Agreement is being delivered and is intended to be
performed in the State of New York, and shall be construed and enforced in
accordance with the laws of such State without regard to conflicts of laws
thereof.
21. Notices. All notices or other communications to be sent by any party to
this Agreement to any other party to this Agreement shall be sent by certified
mail, nationwide overnight delivery service or by personal delivery or
nationwide overnight courier to the addresses hereinbefore designated, or such
other addresses as may hereafter be designated in writing by a party.
22. Binding Agreement. This Agreement represents the entire agreement among
the parties hereto with respect to the matters described herein and is binding
upon and shall inure to the benefit of the parties hereto and their legal
representatives, successors and permitted assigns. This Agreement may not be
assigned and, except as stated herein, may not be altered or amended except in
writing executed by the party to be charged.
23. Counterparts. This Agreement may be executed in counterparts, all of
which, when taken together, shall constitute the entire Agreement.
24. Severability. The provisions of this Agreement shall be severable, so
that the unenforceability, validity or legality of any one provision shall not
affect the enforceability, validity or legality of the remaining provisions
hereof.
25. Joint Drafting. This Agreement shall be deemed to have been drafted
jointly by the parties hereto, and no inference or interpretation against any
party shall be made solely by virtue of such party allegedly having been the
draftsperson of this Agreement.
26. Reliance on Certificates. In rendering any opinion referred to herein,
counsel for the parties hereto may rely, as to any factual matters involved in
their respective opinions, on certificates of public officials and of corporate
and company officers, and on such other evidence as such counsel may reasonably
deem appropriate and, as to the matters governed by the laws of jurisdictions
other than the United States or the State of New York, an opinion of local
counsel in such other jurisdiction(s), which counsel shall be satisfactory to
the other parties in the exercise of their reasonable discretion.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as
of the day and year first above written.
GLOBAL TRAVEL NETWORK, LLC
By:
Xxxxxxx X. Xxxxx, President and
CEO
PLAYORENA, INC.
By: Xxxxxxxx Xxxxxx, President
PLAYORENA ACQUISITION CORP.
By: Xxxxxxxx Xxxxxx, President
-----------------------------
Xxxxxxx Xxxxx
LIBERTY TRAVEL, INC.
By:_____________________________
-----------------------------
Xxxxx Xxxxxx
-----------------------------
Townmoor Investments
-----------------------------
Xxxxxxx Xxxxx
-----------------------------
Xxxxx Xxxxxx
-----------------------------
Cobra Capital Management
-----------------------------
Xxxxxx X. Fine
-----------------------------
Xxxxx Xxxxxx
-----------------------------
Xxxxxx X. Xxxxx
-----------------------------
Descap Publishing
-----------------------------
Xxxx Xxxxxxxxxxx
-----------------------------
Xxxxxxx Xxxxxxx
-----------------------------
Xxxxxx Xxxxxxxxxx
-----------------------------
Xxxx Xxxxx
-----------------------------
Xxxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxx
-----------------------------
Xxxxxx Xxxxxx
-----------------------------
Xxx Xxxxx
-----------------------------
Xxxxx Xxxxx
-----------------------------
Xxxx Xxxxx
Schedule of Exceptions
Exhibit A Certificate of Merger
Exhibit B Global Membership Interests
Exhibit C Material Contracts of Global
AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION
AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION, dated as of September
17, 1999, by and between Playorena, Inc., a New York corporation having its
principal place at 000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
("Playorena"), Playorena Acquisition Corp., a Delaware corporation having its
principal place of business at 000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000 ("PAC"), Global Travel Network, LLC, a Delaware limited
liability company having its principal place of business at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx Xxxxxx, XX 00000 ("Global") and those individual members of Global
listed on the signature page hereto other than the parties listed above ("Global
Members").
WHEREAS, the parties entered into that certain Agreement and Plan of
Reorganization dated July 27, 1999 (the "Agreement"), all capitalized terms not
otherwise defined herein having their respective meanings as set forth in the
Agreement; and
WHEREAS, the parties desire to amend the Agreement as herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants, representations
and premises hereof, the parties hereto agree as follows:
1. Notwithstanding anything to the contrary in the Agreement, the
number of Playorena Common Shares resulting following the Reverse Split
shall be two hundred ninety-four thousand six hundred ninety-four
(294,694).
2. Section 7(a) of the Agreement is hereby amended so that the Global
Membership Interests shall be converted by virtue of the Merger and on the
later to occur of the Effective Date and the effective date of the Reverse
Split ("Issuance Date") into a total of five million sixty-three thousand
three hundred seventy-nine (5,063,379) Playorena Common Shares.
Notwithstanding the foregoing, the parties acknowledge that 131,433 of such
Playorena Common Shares will not be issued upon the effectiveness of the
Merger but are reserved for issuance upon exercise of stock purchase
warrants of Global to be assumed by Playorena (the "Reserved Warrants"),
and that 4,931,946 of such Playorena Common Shares will be issued upon the
Issuance Date on the basis of 49,319 shares for each one percent (1%)
Global Membership Interest.
3. Playorena and PAC acknowledge that there are 149,800 common stock
purchase warrants of Global which will be converted into 131,433 Reserved
Warrants of Playorena upon the Issuance Date, exercisable at $.01 per
share. Playorena and PAC further acknowledge that there are 200,000 common
stock purchase warrants of Global which will be convertible into 176,380
common stock purchase warrants of Playorena upon the Issuance Date,
exercisable at either $4.00 or $5.00 per share.
4. The parties agree that the Reverse Split shall be effective, and
the transactions contemplated hereby consummated, on September 29, 1999 or,
if earlier, ten days following notification to Nasdaq thereof. Global
agrees to ensure that the Certificate of Amendment reflecting the Reverse
Split and other matters will be properly filed with the Secretary of State
of New York on or prior to September 29, 1999.
5. The parties acknowledge that Global is not qualified to do business
in New Jersey. Global agrees to obtain such qualification, and send
evidence thereof to Playorena's counsel within seven business days after
the date hereof.
6. Except to the extent set forth herein, the Agreement shall remain
unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment to Agreement
and Plan of Reorganization as of the date first set forth above.
GLOBAL TRAVEL NETWORK, LLC
By:_______________________________
Xxxxxxx X. Xxxxx, President and CEO
PLAYORENA, INC.
By:_______________________________
Xxxxxxxx Xxxxxx, President
PLAYORENA ACQUISITION CORP.
By:_______________________________
Xxxxxxxx Xxxxxx, President
-----------------------------------
Xxxxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxxx
-----------------------------------
Xxxxxx X. Fine
-----------------------------------
Xxxxx Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxx
-----------------------------------
Xxxx Xxxxxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxxxx
-----------------------------------
Xxxx Xxxxx
-----------------------------------
Xxxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx
-----------------------------------
Xxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
-----------------------------------
Xxxx Xxxxx
TOWNMOOR INVESTMENTS
By:__________________________________
Name and Title:
COBRA CAPITAL MANAGEMENT
By:__________________________________
Name and Title:
DESCAP PUBLISHING
By:__________________________________
Name and Title:
LIBERTY TRAVEL LTD.
By:__________________________________
Name and Title:
