Exhibit 2.14
AMENDED AND RESTATED AGREEMENT AND PLAN OF DISTRIBUTION
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF DISTRIBUTION (the
"Agreement") dated as of March 13, 2001 by and between Internet Law Library,
Inc., a Delaware corporation formerly known as Planet Resources, Inc. ("ILL")
and Planet Resources, Inc., a Delaware corporation formerly known as New Planet
Resources, Inc. ("Planet").
WITNESSETH:
WHEREAS, ILL, National Law Library, Inc., a Texas corporation ("National")
and the shareholders of National have previously entered into an Agreement and
Plan of Reorganization dated March 25, 1999 (the "Reorganization Agreement"),
providing for the acquisition of all of the outstanding shares of capital stock
of National by ILL (the "Acquisition");
WHEREAS, effective as of March 25, 1999, ILL and Planet entered into that
certain Agreement and Plan of Distribution (the "Original Distribution
Agreement") pursuant to the terms of which, upon the consummation of the
transactions contemplated by the Reorganization Agreement and in furtherance
thereof, ILL agreed to transfer to Planet all of its right, title and interest
in and to the Mineral Properties (as hereinafter defined) in exchange for the
issuance and distribution by Planet of the Distribution Shares (as hereinafter
defined);
WHEREAS, the transactions contemplated by the Original Distribution
Agreement have never been consummated; and
WHEREAS, in order more fully to define their rights and responsibilities
pursuant to the Original Distribution Agreement, and to consummate the
transactions contemplated thereby on an accelerated basis in view of the passage
of time since the date of execution thereof, ILL and Planet desire to enter into
this Agreement, which shall supplant the Original Distribution Agreement in its
entirety, for the express purposes of providing for the conveyance of the
Mineral Properties and the Distribution of the Distribution Shares, as such
terms are hereinafter defined, on an expedited basis following the date of
execution of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and of other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, ILL and Planet hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 General. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
Action: shall mean any action, suit, claim, arbitration, inquiry,
proceeding or investigation by or before any court, any governmental or
other regulatory or administrative agency, body or commission or any
arbitration tribunal.
Agreement: This Amended and Restated Agreement and Plan of
Distribution, as amended or supplemented from time to time.
Affiliate: an Affiliate of any Person shall mean any Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For purposes of this definition,
"control" when used with respect to any Person means the power to direct
the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
CERCLA: shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq.,
as the same may be amended from time to time.
Commission: shall mean the Securities and Exchange Commission.
Distribution: shall mean the distribution by Planet of the
Distribution Shares, as contemplated by Article IV of this Agreement.
Distribution Date: The date or dates selected by Planet to
distribute the Distribution Shares, which shall occur not later than the
first business day after the Effective Date, as the date on which the
Distribution shall be effected.
Distribution Record Date: shall mean such date as may hereafter be
determined by ILL's Board of Directors as the record date for determining
the stockholders of ILL entitled to receive the Distribution Shares.
Distribution Shares: shall mean the shares of Common Stock, par
value $.001 per share, of Planet, together with certain options to
purchase such shares of Planet Common Stock, to be issued and distributed
by Planet as contemplated by this Agreement.
Environmental Laws and Orders: shall mean, collectively, all laws
and orders relating to industrial hygiene, occupational safety conditions
or environmental conditions on, under or about the real estate associated
with the Mineral Properties, including, without limitation, RCRA, CERCLA
and all other laws and orders relating to emissions, discharges, releases
or threatened releases of pollutants, contaminants, chemicals or
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industrial, hazardous or toxic materials or wastes into the environment
(including ambient air, surface water, ground water, land surface or
sub-surface strata) or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or industrial hazardous, toxic
materials or wastes.
Exchange Act: The Securities Exchange Act of 1934, as amended from
time to time.
Effective Date: The date on which the Distribution contemplated by
this Agreement is authorized to commence pursuant to the Securities Act.
Effective Time: The time on the Effective Date when the Distribution
of the Distribution Shares contemplated by this Agreement is authorized to
commence pursuant to the Securities Act.
Indemnifiable Losses: shall mean any and all losses, liabilities,
claims, damages, penalties, fines, demands, awards and judgments,
including reasonable costs and expenses (including, without limitation,
attorneys' fees and any and all out-of-pocket expenses) whatsoever
reasonably incurred in investigating, preparing for or defending against
any Actions or potential Actions and which are incurred by any Indemnitee
(as hereinafter defined).
Mineral Properties: shall mean the mineral estate described on
Schedule I to this Agreement.
NASD: shall mean the National Association of Securities Dealers,
Inc.
Person: shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust, an association, a company, an
unincorporated organization, a government or any department, political
subdivision or agency thereof.
Prospectus: The prospectus included in any Registration Statement,
as amended or supplemented by any prospectus supplement with respect to
the terms of the distribution of any portion of the Distribution Shares
covered by such Registration Statement and by all other amendments and
supplements to the Prospectus, including post-effective amendments and all
documents incorporated by reference in such prospectus. If the prospectus
filed pursuant to Rule 424(b) or Rule 424(c) of the Securities Act shall
differ from the Prospectus, the term "Prospectus" shall also include the
prospectus filed pursuant to such Rule.
RCRA shall mean the Resource Conservation and Recovery Act of 1976,
42 U.S.C. Section 6901, et seq., as the same may be amended from time to
time.
Registration Statement: Any registration statement of Planet which
covers any of the Distribution Shares pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-
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effective amendments, all exhibits and all documents incorporated by
reference in such Registration Statement.
Rules and Regulations: The rules and regulations of the Commission.
Securities Act: shall mean the Securities Act of 1933, as amended
from time to time.
Transfer Agent: shall mean Atlas Stock Transfer Corporation, and its
successors and assigns.
Section 1.2 References; Interpretation. References to a "Schedule"
or an "Exhibit" are, unless otherwise specified, to one of the Schedules
or Exhibits attached to this Agreement, and references to a "Section" are,
unless otherwise specified, to one of the Sections of this Agreement.
ARTICLE II
CERTAIN COVENANTS
Section 2.1 Directors and Officers of Planet. On the Distribution Date,
the parties hereto shall use their best efforts to cause: (i) the election to
the Board of Directors of Planet of the individuals to be identified in the
Prospectus as directors of Planet, effective upon the Effective Date, and (ii)
the directors of Planet to elect as officers of Planet the individuals to be
identified in the Prospectus as the officers of Planet, effective upon the
Effective Date.
Section 2.2 Conveyance of Mineral Properties; Assumption of Liabilities.
In consideration of the Distribution by Planet of the Distribution Shares, ILL
hereby agrees to transfer, convey, assign and deliver to Planet and to the
successors and assigns of Planet, effective as of the Distribution Date, all of
the right, title and interest of ILL in and to the Mineral Properties. Planet
hereby unconditionally agrees, effective as of the Distribution Date, to assume,
pay, perform and discharge any and all liabilities associated with the Mineral
Properties, including, without limitation, all liabilities arising under the
Environmental Laws and Orders.
Section 2.3 NASD Qualification. Planet shall use its best efforts to
qualify the Distribution Shares for quotation on the Electronic Bulletin Board
operated by the NASD.
Section 2.4 Best Efforts Undertaking of Planet. Planet hereby expressly
covenants and agrees to use its best efforts to effect the Distribution of the
Distribution Shares on an expedited basis following the execution of this
Agreement.
ARTICLE III
INDEMNIFICATION
Section 3.1 Indemnification by Planet. From and after the
Distribution Date, except as otherwise specifically set forth in any
provision of this Agreement, Planet shall indemnify, defend and hold
harmless ILL, its successors and permitted assigns and its directors,
officers, stockholders, employees, representatives, Affiliates, agents and
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associates (collectively hereinafter, the "Indemnitees") from and against
any and all Indemnifiable Losses of any of the Indemnitees related in any
way to or otherwise arising in connection with: (a) the ownership or
operation of the Mineral Properties by Planet; (b) the violation of any
Environmental Laws and Orders in connection with the ownership or
operation of the Mineral Properties by Planet; (c) the breach by Planet at
any time of any representation, warranty, covenant or agreement of Planet
provided in this Agreement; and (d) any claims relating to the Prospectus
or the Registration Statement.
Section 3.2 Procedures for Indemnification.
(a) If a claim or demand is made against an Indemnitee by any person
who is not a party to this Agreement (a "Third Party Claim") as to which
such Indemnitee is entitled to indemnification pursuant to this Agreement,
such Indemnitee shall notify Planet in writing, and in reasonable detail,
of the Third Party Claim promptly (and in any event within 20 business
days) after receipt by such Indemnitee of written notice of the Third
Party Claim; provided, however, that failure to give such notification
within such 20 business day period shall not affect the indemnification
provided hereunder except to the extent to which Planet shall have been
actually prejudiced as a result of such failure (except that Planet shall
not be liable for any expenses incurred during the period in which the
Indemnitee failed to give such notice). Thereafter, the Indemnitee shall
deliver to Planet promptly (and in any event within 20 business days)
after the Indemnitee's receipt thereof, copies of all notices and
documents (including court papers) received by the Indemnitee relating to
the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee, Planet
shall be entitled to participate in the defense thereof and, if it so
chooses and acknowledges in writing its obligation to indemnify the
Indemnitee therefor, to assume the defense thereof with counsel selected
by Planet; provided that such counsel is not reasonably objected to by the
Indemnitee. Should Planet so elect to assume the defense of a Third Party
Claim, Planet shall not be liable to the Indemnitee for legal or other
expenses subsequently incurred by the Indemnitee in connection with the
defense thereof. If Planet assumes such defense, the Indemnitee shall have
the right to participate in the defense thereof and to employ counsel, at
its own expense, separate from the counsel employed by Planet, it being
understood that Planet shall control such defense. Planet shall be liable
for the fees and expenses of counsel employed by the Indemnitee (i) for
any period during which Planet has failed to assume the defense thereof
(other than during the 20 business day period prior to the time the
Indemnitee shall have given notice of the Third Party Claim as provided
above) or (ii) in the event the Indemnitee reasonably determines, based on
the advice of its counsel that there shall exist a conflict of interest
between the Indemnitee and Planet or that there are defenses available to
the Indemnitee that are not available to Planet, the effect of which shall
be to make it impractical for the Indemnitee and Planet to be jointly
represented by the same counsel, in which case Planet shall be liable for
the fees and expenses of one counsel for all Indemnitees in any single or
series of related Actions. If Planet so elects to assume the defense of
any Third Party Claim, the Indemnitee shall cooperate with Planet in the
defense or prosecution thereof.
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(c) If Planet acknowledges in writing liability for indemnification
of a Third Party Claim, then in no event will the Indemnitee admit any
liability with respect to, or settle, compromise or discharge, any Third
Party Claim without Planet's prior written consent; provided, however,
that the Indemnitee shall have the right to settle, compromise or
discharge such Third Party Claim without the consent of Planet if the
Indemnitee releases Planet from its indemnification obligations hereunder
with respect to such Third Party Claim and such settlement, compromise or
discharge would not otherwise adversely affect Planet. If Planet
acknowledges in writing liability for indemnification of a Third Party
Claim, the Indemnitee will agree to any settlement, compromise or
discharge of a Third Party Claim that Planet may recommend that by its
terms (i) obligates Planet to pay the full amount of the liability in
connection with such Third Party Claim, (ii) releases the Indemnitee
completely in connection with such Third Party Claim and (iii) would not
otherwise adversely affect the Indemnitee; provided, however, that the
Indemnitee may refuse to agree to any such settlement, compromise or
discharge and may assume the defense of such Third Party Claim if the
Indemnitee agrees (A) that Planet's indemnification obligation with
respect to such Third Party Claim shall not exceed the amount that would
have been required to be paid by or on behalf of Planet in connection with
such settlement, compromise or discharge and (B) to assume all costs and
expenses thereafter incurred in connection with the defense of such Third
Party Claim (other than those contemplated by subclause (A) herein above).
(d) Notwithstanding the foregoing, Planet shall not be entitled to
assume the defense of any Third Party Claim (and shall be liable for the
fees and expenses of counsel incurred by the Indemnitee in defending such
Third Party Claim) if the Third Party Claim seeks an order, injunction or
other equitable relief or relief other than money damages against the
Indemnitee which the Indemnitee reasonably determines, based on the advice
of its counsel, cannot be separated from any related claim for money
damages. If such equitable or other relief portion of the Third Party
Claim can be so separated from the claim for money damages, Planet shall
be entitled to assume the defense of the portion relating to money
damages.
Section 3.3 Indemnification Payments. Any indemnification required by this
Article III shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or the
Indemnifiable Losses are incurred.
Section 3.4 Survival of Indemnification Obligations. The obligations of
Planet under this Article III shall survive indefinitely the execution and
delivery of this Agreement.
ARTICLE IV
THE DISTRIBUTION
Section 4.1 Issuance And Distribution of the Distribution Shares.
(a) In exchange for the conveyance and transfer by ILL to Planet of
the Mineral Properties, Planet shall, on or prior to the Distribution
Date, issue the Distribution Shares in such number as shall be required to
effect the Distribution contemplated by this Agreement. In connection
therewith, ILL shall deliver to Planet for
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cancellation any share certificates currently held by ILL representing
shares of Planet Common Stock.
(b) Planet shall deliver to the Transfer Agent on or prior to the
Distribution Date the share certificates representing the Distribution
Shares and shall instruct the Transfer Agent to distribute, on or as soon
as practicable following the Distribution Date, such Distribution Shares
to holders of record of shares of capital stock of ILL on the Distribution
Record Date as further contemplated by the Prospectus and this Agreement.
Planet shall provide all share certificates that the Transfer Agent shall
require in order to effect the Distribution.
(c) Planet hereby represents and warrants that at the Distribution
Date, the representations and warranties of Planet herein contained and
the statements contained in all certificates theretofore or simultaneously
delivered by Planet to ILL pursuant to this Agreement, shall in all
respects be true and correct.
(d) Planet shall give irrevocable instructions to the Transfer Agent
to deliver to ILL (at Planet's expense) for a period of three years from
the Distribution Date, daily advice sheets showing any transfers of
Distribution Shares and from time to time during such period a complete
stockholders' list will be furnished by Planet when requested by ILL.
Section 4.2 Conditions to the Distribution. Planet's obligation to effect
the Distribution hereunder shall be subject to the accuracy as of the date
hereof and as of the Distribution Date, of the representations and warranties on
the part of Planet herein contained, to the performance by Planet of all its
agreements herein contained, to the fulfillment of or compliance by Planet with
all covenants and conditions hereof, and to the following additional conditions:
(a) On or prior to each Distribution Date, no order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission or be pending; any request for additional information on the
part of the Commission (to be included in the Registration Statement or
the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Commission; and neither the Registration Statement nor
any amendment thereto shall have been filed to which counsel to ILL shall
have reasonably objected, in writing.
(b) On or prior to the first Distribution Date, the Distribution
Shares shall have (i) been authorized for quotation on the NASD Automated
Quotation System (NASDAQ) or the Electronic Bulletin Board and at least
one NASD member firm shall have agreed to make a market in the
Distribution Shares, or (ii) been approved for listing on a regional,
national or international exchange.
(c) Between the date hereof and each Distribution Date, Planet shall
not have sustained any loss on account of fire, explosion, flood,
accident, calamity or other cause,
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of such character as materially adversely affects its business or
property, whether or not such loss is covered by insurance.
(d) Between the date hereof and each Distribution Date there shall
be no material litigation instituted or to the knowledge of Planet
threatened against Planet and there shall be no proceeding instituted or
to the knowledge of Planet threatened against Planet before or by any
federal or state commission, regulatory body or administrative agency or
other governmental body, domestic or foreign, wherein an unfavorable
ruling, decision or finding would materially adversely affect the
business, franchises, licenses, permits, operations or financial condition
or income of Planet.
(e) Except as contemplated herein or as set forth in the
Registration Statement and Prospectus, during the period subsequent to the
Effective Date and prior to each Distribution Date, (i) Planet shall have
conducted its business in the usual and ordinary manner as the same was
being conducted on the date of the initial filing of the Registration
Statement and (ii) except in the ordinary course of its business, Planet
shall not have incurred any liabilities or obligations (direct or
contingent), or disposed of any of its assets, or entered into any
material transaction or suffered or experienced any substantially adverse
change in its condition, financial or otherwise. On each Distribution
Date, the capital stock and surplus accounts of Planet shall be
substantially as great as at its last financial report without considering
the proceeds from the Distribution of the Distribution Shares.
(f) The authorization of the Distribution Shares, the Registration
Statement, the Prospectus and all corporate proceedings and other legal
matters incident thereto and to this Agreement, shall be reasonably
satisfactory in all material respects to counsel to ILL.
(g) Counsel to Planet shall have furnished to ILL its opinion, dated
the first Distribution Date, addressed to ILL, or its counsel to the
effect that:
(i) Planet has been duly incorporated and is a validly
existing corporation in good standing under the laws of the state of
its incorporation with full corporate power and authority to own and
operate its properties and to carry on its business as set forth in
the Registration Statement and Prospectus, and has an authorized and
outstanding capitalization as set forth in the Registration
Statement and Prospectus; Planet is duly licensed or qualified as a
foreign corporation in all jurisdictions in which by reason of
maintaining an office in such jurisdiction or by owning or leasing
real property in such jurisdiction it is required to be so licensed
or qualified, except where the failure to do so would not have a
material adverse effect on the business, properties or operations of
Planet.
(ii) The Distribution Shares and the outstanding capital stock
of Planet conform to the statements concerning them in the
Registration Statement and Prospectus; the outstanding capital stock
of Planet has been duly and validly issued and is fully-paid and
non-assessable and is not subject to any pre-emptive rights or any
other rights of third Persons; the Distribution Shares have been
duly
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and validly authorized are duly and validly issued, fully paid and
non-assessable and are not subject to any pre-emptive rights or any
other rights of third Persons.
(iii) No consents, approvals, authorizations or orders of any
governmental authorities are necessary for the valid Distribution of
the Distribution Shares hereunder, except such as may be required
under the Securities Act or state securities laws.
(iv) The Registration Statement has become effective under the
Securities Act and, to the best knowledge of such counsel, no order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
are pending or contemplated under the Securities Act, and the
Registration Statement and Prospectus, and each amendment thereof
and supplement thereto, comply as to form in all material respects
with the requirements of the Securities Act and the Rules and
Regulations (except that no opinion need be expressed as to
financial statements and financial data contained in the
Registration Statement or Prospectus), and nothing has come to the
attention of such counsel which would lead such counsel to believe
that either the Registration Statement or the Prospectus or any such
amendment or supplement contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and such
counsel is familiar with all contracts referred to in the
Registration Statement or in the Prospectus and such contracts are
sufficiently summarized or disclosed therein, or filed as exhibits
thereto, as required, and such counsel does not know of any other
contracts required to be summarized or disclosed or filed, and such
counsel does not know of any legal or governmental proceedings
pending or threatened to which Planet is a party, or in which
property of Planet is the subject, of a character required to be
disclosed in the Registration Statement or the Prospectus which are
not disclosed and properly described therein.
(v) Based upon Planet's representations, Planet (a) owns the
real and personal properties shown in the Prospectus as being owned
by it by good and marketable title, free and clear of all liens,
encumbrances and equities of record, except for those expressly
referred to in the Prospectus, and except for those which do not in
the reasonable opinion of such counsel materially affect the use or
value of such assets, and except for the lien of current taxes not
due, or (b) holds by valid lease its properties as shown in the
Prospectus, and to the best knowledge of such counsel is not in
violation of any applicable laws, ordinances and regulations
applicable thereto.
(vi) The Agreement has been duly authorized and executed by
Planet and is a valid and binding agreement of Planet, enforceable
against Planet in accordance with its terms, except that no opinion
need be given regarding rights of indemnification under the
Agreement and enforceability under laws affecting creditors' rights.
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(vii) To the best knowledge of such counsel, the
representations and warranties of Planet contained in the Agreement
are true and correct.
Such opinion shall also cover such other matters incident to the transactions
contemplated by this Agreement as ILL shall reasonably request.
At any Distribution Date, subsequent to the first Distribution Date,
Planet shall have furnished to ILL the opinion of such counsel, dated such
Distribution Date and confirming in all respects, as of such Distribution Date,
the opinion given by such counsel on the first Distribution Date pursuant to
this Section 4.2 (h).
(h) Planet shall have furnished to ILL a certificate of the
President and the Treasurer of Planet, dated as of the first Distribution
Date, to the effect that:
(i) The representations and warranties of Planet in this
Agreement are true and correct at and as of such Distribution Date,
and Planet has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior
to the first Distribution Date;
(ii) The Registration Statement has become effective and no
order suspending the effectiveness of the Registration Statement has
been issued, and, to the best knowledge of the respective signers,
no proceeding for that purpose has been initiated or is threatened
by the Commission;
(iii) The respective signers have each carefully examined the
Registration Statement and the Prospectus and any amendments and
supplements thereto, and to the best of their knowledge, the
Registration Statement and the Prospectus and any amendments and
supplements thereto and all statements contained therein are true
and correct, and neither the Registration Statement nor the
Prospectus nor any amendment or supplement thereto includes any
untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading and, since the Effective Date,
there has occurred no event required to be set forth in an amended
or supplemented Prospectus which has not been so set forth; and
(iv) Except as set forth in the Registration Statement and
Prospectus since the respective dates as of which or periods for
which information is given in the Registration Statement and
Prospectus and prior to the date of such certificate (A) there has
not been any materially adverse change, financial or otherwise, in
the affairs or condition of Planet and (B) Planet has not incurred
any material liabilities, direct or contingent, or entered into any
material transactions, otherwise than in the ordinary course of
business.
At any Distribution Date, subsequent to the first Distribution Date, Planet
shall have furnished to ILL a letter from the President and Treasurer of Planet,
confirming in all respects, as of such Distribution Date, the opinions given by
such President and Treasurer on the first Distribution Date pursuant to this
Section 4.2(i).
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(i) Planet shall have furnished to ILL at or prior to the
Distribution Date, such other certificates, additional to those
specifically mentioned herein, as ILL may have reasonably requested as to:
(i) the accuracy and completeness of any statement in the Registration
Statement or the Prospectus, or in any amendment or supplement thereto;
(ii) the accuracy of the representations and warranties of Planet herein;
(iii) the performance by Planet of its obligations hereunder; or (iv) the
fulfillment of the conditions concurrent and precedent to its obligations
hereunder, which are required to be performed or fulfilled on or prior to
the Distribution Date.
All the opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
to ILL, whose approval shall not be unreasonably withheld. ILL reserves the
right to waive any of the conditions herein set forth.
ARTICLE V
REGISTRATION OF PLANET SHARES
Section 5.1 Registration Procedures. Planet shall use its best efforts to
effect such registrations to permit the Distribution of the Distribution Shares
in accordance with the terms of this Agreement, and pursuant thereto Planet will
as expeditiously as possible:
(a) Prepare and file with the Commission, as soon as practicable, a
Registration Statement or Registration Statements relating to the
applicable registration on any appropriate form under the Securities Act,
which form shall be available for the Distribution of the Distribution
Shares in accordance with the terms of this Agreement, and shall include
all financial statements required by the Commission to be filed therewith,
and use its best efforts to cause such Registration Statement to become
effective; provided, however, that before filing a Registration Statement
or Prospectus or any amendments or supplements thereto, including
documents incorporated by reference after the initial filing of the
Registration Statement, Planet will furnish to ILL copies of all such
documents proposed to be filed, and Planet will not file any registration
Statement or amendment thereto or any Prospectus or any supplement thereto
(including such documents incorporated by reference) to which ILL shall
reasonably object;
(b) Prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period, or such shorter period which will terminate when all Distribution
Shares covered by such Registration Statement have been distributed; and
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed with the Commission
pursuant to Rule 424 under the Securities Act;
(c) Notify ILL promptly, and (if requested by ILL) confirm such
advice in writing (i) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the
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Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose, (iv) of the receipt by Planet of any notification with respect to
the suspension of the qualification of the Distribution Shares for
distribution in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and (v) of the happening of any event which
makes any statement made in the Registration Statement, the Prospectus or
any document incorporated therein by reference untrue or which requires
the making of any changes in the Registration Statement, the Prospectus or
any document incorporated therein by reference in order to make the
statements therein not misleading;
(d) Make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(e) If requested by ILL, promptly incorporate in a Prospectus
supplement or post-effective amendment such information as ILL requests to
be included therein relating to the Distribution of the Distribution
Shares and make all required filings of such Prospectus supplement or
post-effective amendment;
(f) Furnish to ILL, without charge, at least one copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(g) Deliver to ILL without charge as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as ILL may reasonably request;
(h) Prior to any public offering of Distribution Shares, register or
qualify or cooperate with ILL and its counsel in connection with the
registration or qualification of such Distribution Shares covered by the
Registration Statement; provided, however, that Planet will not be
required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action which would subject it to
general service of process in any such jurisdiction where it is not then
so subject;
(i) Effect the timely preparation and delivery of certificates
representing Distribution Shares to be distributed, which certificates
shall not bear any restrictive legends; and enable such Distribution
Shares to be in such denominations and registered in such names as ILL may
request at least two business days prior to any distribution of
Distribution Shares to the stockholders of ILL;
(j) Use its best efforts to cause the Distribution Shares covered by
the applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the consummation of the Distribution of such Distribution Shares;
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(k) Upon the occurrence of any event contemplated by subparagraph
5.1(c)(v) above, prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the stockholders of ILL, the Prospectus
will not contain an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not misleading;
(l) Use its best efforts to cause all Distribution Shares covered by
the Registration Statement to be listed on each securities exchange on
which similar securities issued by Planet are then listed if requested by
ILL or, if not listed, to become listed or qualified for quotation on the
NASDAQ Stock Market or the Electronic Bulletin Board;
(m) Provide a CUSIP number for all Distribution Shares, not later
than the effective date of the applicable Registration Statement;
(n) Make generally available to its security holders earnings
statements satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of any 12-month period (or 90
days, if such period is a fiscal year) commencing at the end of any fiscal
quarter in which Distribution Shares are distributed.
ILL may require Planet to furnish to ILL such information regarding the
Distribution of the Distribution Shares as ILL may from time to time reasonably
request in writing.
Section 5.2 Registration Expenses; Certain Related Expenses. All expenses
incident to Planet's performance of or compliance with this Agreement, including
without limitation all registration and filing fees, fees with respect to
filings require to made with the NASD, fees and expenses of compliance with
state securities or blue sky laws (including reasonable fees and disbursements
of counsel in connection with blue sky registrations or qualifications of the
Distribution Shares and determination of their eligibility for investment under
the laws of such jurisdictions as ILL may reasonably designate), printing
expenses, messenger, telephone and delivery expenses, and fees and disbursements
of counsel for Planet and of all independent certified public accountants of
Planet, securities acts liability insurance if Planet so desires and fees and
expenses of other Persons retained by Planet (all such expenses being herein
called "Registration Expenses") will be borne by Planet, regardless of whether
the Registration Statement becomes effective, except as otherwise required by
applicable laws. Planet will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting expenses incurred in connection with
the listing of the securities to be registered on any securities exchange or
qualified for quotation by the NASDAQ Stock Market on the Electronic Bulletin
Board and the fees and expenses of any Person, including special experts,
retained by Planet.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PLANET
Section 6.1 Organization and Qualification. Planet is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all
Page 13
requisite authority and power (corporate and other), licenses, authorizations,
consents and approvals to carry on its business, to own, hold and operate its
properties and assets and to enter into this Agreement. Planet is duly qualified
to do business and is in good standing as a foreign corporation in all
jurisdictions where the nature of the property owned or leased by it, or the
nature of the business conducted by it, make such qualification necessary and
the absence of such qualification would, individually or in the aggregate, have
a material adverse effect on the business or financial condition of Planet. True
and complete copies of the Certificate of Incorporation, the Bylaws and the
minute books of Planet have previously been delivered or made available to ILL.
Section 6.2 Authorization and Validity of this Agreement. The execution,
delivery and performance by Planet of this Agreement are within Planet's
corporate powers, have been duly authorized by all necessary corporate action,
do not require from the Board of Directors or stockholders of Planet any consent
or approval that has not been validly and lawfully obtained, require no
authorization, consent, approval, license, exemption of or filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality of government, do not and will not violate or
contravene (i) any provision of law; (ii) any rule or regulation of any agency
or government, domestic or foreign; (iii) any order, writ, judgment, injunction,
decree, determination or award; or (iv) any provision of the Certificate of
Incorporation or the Bylaws of Planet, do not and will not violate or be in
conflict with, result in a breach of or constitute (with or without notice or
lapse of time or both) a default under, or result in the termination of, or
accelerate the performance required by (or give any party any right to terminate
or accelerate upon notice or lapse of time or both), any indenture, license,
franchise, loan or credit agreement, note, deed of trust, mortgage, security
agreement or other agreement, lease or instrument, commitment or arrangement to
which Planet is a party, or by which Planet or any of its properties, assets or
rights is bound or affected, do not and will not result in the creation or
imposition of any lien or other security interest and do not and will not
require the consent, approval or authorization of any other party to any
agreements, licenses, leases, permits, franchises, rights and other obligations
of Planet.
Section 6.3 Binding Obligation. This Agreement constitutes the legal,
valid and binding obligation of Planet and is enforceable against Planet in
accordance with its terms, except as such enforcement is limited by bankruptcy,
insolvency and other similar laws affecting the enforcement of creditors' rights
generally.
Page 14
Section 6.4 Capitalization of the Company. The authorized capital stock of
Planet, as of the date of this Agreement, consists of 25,000,000 shares of
Common Stock, par value $.001 per share, of which 2,000,000 will be issued and
outstanding upon completion of the Distribution and 1,000,000 shares of
Preferred Stock, par value $.001 per share, of which none are issued and
outstanding. There are no warrants, options, subscriptions or other rights or
preferences (including conversion or preemptive rights) outstanding to acquire
capital stock of Planet, or notes, securities or other instruments convertible
into or exchangeable for capital stock of Planet, nor any agreements or
understandings with respect to the issuance thereof except options to purchase
405,000 shares of Common Stock at a price of $.15 per share and options to
purchase 50,000 shares of Common Stock at a price of $.40 per share.
Section 6.5 Duly Issued. Upon issuance by Planet of the Distribution
Shares, such shares will be validly issued, fully paid and non-assessable, and
will vest in their holders legal and valid title to the Distribution Shares,
free and clear of all liens, security interests, restrictions, options, proxies,
voting trusts or other encumbrances.
Section 6.6 Representations Not Waived. The representations and warranties
of Planet contained herein will not be affected or deemed waived by reason of
any investigation made by or on behalf of ILL and/or its representatives or
agents or by reason of the fact that ILL and/or its representatives or agents
knew or should have known that any such representation or warranty is or might
be inaccurate in any respect.
Section 6.7 Disclosure. No representation or warranty of Planet contained
in this Agreement and no information appearing in any writing furnished by
Planet to ILL pursuant hereto contains any untrue statement of material fact or
omits to state a material fact necessary to make the statements herein or
therein not misleading.
ARTICLE VII
DISPUTE RESOLUTION
Section 7.1 Disputes. In the event of a controversy, dispute or claim
arising out of, in connection with, or in relation to the interpretation,
performance, nonperformance, validity or breach of this Agreement or otherwise
arising out of, or in any way related to this Agreement, including, without
limitation, any claim based on contract, tort, statute or constitution (singly,
an "Agreement Dispute" and collectively, "Agreement Disputes"), the party
asserting the Agreement Dispute shall give written notice to the other party of
the existence and nature of such Agreement Dispute. Thereafter, the general
counsels (or other designated representatives) of the respective parties shall
negotiate in good faith for a period of no less than 60 days after the date of
the notice in an attempt to settle such Agreement Dispute. If after such 60
calendar day period such representatives are unable to settle such Agreement
Dispute, any party hereto may commence arbitration by giving written notice to
any other party hereto that such Agreement Dispute has been referred to the
American Arbitration Association for arbitration in accordance with the
provisions of this Article.
Section 7.2 Arbitration in Accordance with American Arbitration
Association Rules. All Agreement Disputes shall be settled by arbitration in
Houston, Texas, before a single
Page 15
arbitrator in accordance with the rules of the American Arbitration Association
(the "Rules"). The arbitrator shall be selected by the mutual agreement of all
parties, but if they do not so agree within twenty (20) days after the date of
the notice of arbitration referred to above, the selection shall be made
pursuant to the Rules from the panels of arbitrators maintained by the American
Arbitration Association. The arbitrator shall be an individual with substantial
professional experience with regard to resolving or settling sophisticated
commercial disputes.
Section 7.3 Final and Binding Awards. Any award rendered by the arbitrator
shall be conclusive and binding upon the parties hereto; provided, however, that
any such award shall be accompanied by a written opinion of the arbitrator
giving the reasons for the award. This provision for arbitration shall be
specifically enforceable by the parties and the decision of the arbitrator in
accordance therewith shall be final and binding, and there shall be no right of
appeal therefrom. The parties agree to comply with any award made in any such
arbitration proceedings that has become final in accordance with the Rules, and
agree to the entry of a judgment in any jurisdiction upon any award rendered in
such proceedings becoming final under the Rules.
Section 7.4 Costs of Arbitration. In the award, the arbitrator shall
allocate, in his or her discretion, among the parties to the arbitration all
costs of the arbitration, including, without limitation, the fees and expenses
of the arbitrator and reasonable attorneys' fees, costs and expert witness
expenses of the parties. Absent such an allocation by the arbitrator, each party
shall pay its own expenses of arbitration, and the expenses of the arbitrator
shall be equally shared.
Section 7.5 Settlement by Mutual Agreement. Nothing contained in this
Article VII shall prevent the parties hereto from settling any Agreement Dispute
by mutual agreement at any time.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 No Inconsistent Agreements. Planet will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
which is inconsistent with this Agreement or otherwise conflicts with the
provisions hereof. In the event Planet has previously entered into any agreement
with respect to its securities granting any registration rights to any Person,
the rights granted to ILL hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of Planet's securities under
any such agreements.
Section 8.2 Survival of Obligations. The obligations of the parties under
Articles VII and VIII of this Agreement shall survive the termination for any
reason of this Agreement (whether such termination is by Planet, by ILL, upon
the expiration of this Agreement or otherwise).
Section 8.3 Severability. In case any one or more of the provisions or
part of the provisions contained in this Agreement shall for any reason be held
to be invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall be deemed not to affect any
other provision or part of a provision of this Agreement, but this Agreement
shall be reformed and construed in such jurisdiction as if such provision or
part
Page 16
of a provision held to be invalid or illegal or unenforceable had never been
contained herein and such provision or part reformed so that it would be valid,
legal and enforceable in such jurisdiction to the maximum extent possible. In
furtherance and not in limitation of the foregoing, Planet and ILL each intend
that the covenants contained in Articles IV and V of this Agreement shall be
deemed to be a series of separate covenants, one for each county of the State of
Texas and one for each and every other state, territory or jurisdiction of the
United States and any foreign country set forth therein. If, in any judicial
proceeding, a court shall refuse to enforce any of such separate covenants, then
such unenforceable covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings. If, in any
judicial proceeding, a court shall refuse to enforce any one or more of such
separate covenants because the total time thereof is deemed to be excessive or
unreasonable, then it is the intent of the parties hereto that such covenants,
which would otherwise be unenforceable due to such excessive or unreasonable
period of time, be enforced for such lesser period of time as shall be deemed
reasonable and not excessive by such court.
Section 8.4 Entire Agreement, Amendment. This Agreement contains the
entire agreement between Planet and ILL with respect to the subject matter
hereof and supplants in its entirety the Original Distribution Agreement. This
Agreement may not be amended, waived, changed, modified or discharged except by
an instrument in writing executed by or on behalf of the party against whom any
amendment, waiver, change, modification or discharge is sought.
Section 8.5 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed to have been
duly given if delivered by hand-delivery, registered first-class mail, postage
prepaid, telex, telecopier, or air courier guaranteeing overnight delivery as
follows:
To Planet: To ILL:
Planet Resources, Inc. Internet Law Library, Inc.
0000 Xxxxxxxxx, Xxxxx 0000 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
Attn: X. X. Xxxxx, President Attn: Hunter M. A. Xxxx, President
With an additional copy by like With an additional copy by like
means to: means to:
Sonfield & Sonfield Internet Law Library, Inc.
000 Xxxxx Xxxx Xxx Xxxx 0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Xx., Esq. Attn: Xxxxxxxx X. Xxxxxxxxx, Esq.
and/or to such other persons and addresses as any party shall have
specified in writing to the other.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if
Page 17
telecopied; and on the next business day if timely delivered to an air courier
guaranteeing overnight delivery.
Section 8.6 Assignability. This Agreement shall be assignable by either
party on the express consent of the other and shall be binding upon, and shall
inure to the benefit of, the successors and assigns of the parties.
Section 8.7 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware.
Section 8.8 Waiver and Further Agreement. Any waiver of any breach of any
term or condition of this Agreement shall not operate as a waiver of any other
breach of such term or condition or any other term or condition, nor shall any
failure to enforce any provision hereof operate as a waiver of such provision or
of any other provision hereof. Each of the parties hereto agrees to execute all
such further instruments and documents and to take all such further action as
the other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
Section 8.9 Headings of No Effect. The paragraph headings contained in
this Agreement are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
[The remainder of this page is intentionally left blank.]
Page 18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the date first above
written.
INTERNET LAW LIBRARY, INC.,
a Delaware corporation formerly known as
Planet Resources, Inc.
By:_______________________________
Hunter M. A. Xxxx
President
PLANET RESOURCES, INC.,
a Delaware corporation formerly known as
New Planet Resources, Inc.
By:_______________________________
X. X. Xxxxx
President
Page 19
SCHEDULE I
to
AGREEMENT AND PLAN OF DISTRIBUTION
DESCRIPTION OF MINERAL PROPERTIES
Subsurface mineral rights on approximately 190 acres of land located in
the City of Xxxxxx, Idaho. The mineral properties consist of a mining lease with
the City of Xxxxxx and subsurface mineral rights that Allied acquired from
property owners in Mullan, Idaho, in exchange for stock in Allied Silver. The
lease with the City of Mullan is for 25 years from May 7, 1981. The lease grants
the Lessee the option to renew the lease for 25 years from expiration of the
original term. The property leased from the City of Xxxxxx consists of
approximately two hundred acres and involves property to the north and south of
the Xxxxxx Fault. The City of Xxxxxx, as Lessor, is entitled to receive 20% of
any and all royalty payments, advance or otherwise, or other consideration,
which may be paid by any third parties to the Lessee as a result of mining
activities north of the Xxxxxx Fault. The same is true for activities south of
the Xxxxxx Fault, but the payment shall be 15%, rather than 20%.
The mineral interests owned by the predecessor company, Allied Silver,
constitutes fee simple interest to the subsurface mineral rights previously held
by property owners within the City of Xxxxxx. Those property owners conveyed, by
deed, their subsurface mineral rights to Allied Silver in exchange for stock in
Allied Silver. These subsurface mineral rights are held as fee simple absolute.
The precise acreage for all of the subsurface mineral rights has not been
calculated, but the property from which these subsurface mineral rights were
severed was all located within the boundaries of the City of Xxxxxx. Therefore,
to the extent there was private property within the City of Xxxxxx, those
property owners conveyed the subsurface mineral rights to Allied Silver. To the
extent there was any property owned by the City of Xxxxxx, including public
right-of-ways like streets, alleys and parks, the City leased its mineral rights
to the subsurface to Allied Silver.
