AGREEMENT AND PLAN OF EXCHANGE
AGREEMENT AND PLAN OF EXCHANGE ("Agreement"), dated as of
the _____ day of _______, 2002, by and between PLAN B PRODUCTIONS
OF UTAH, INC., hereafter "PLAN B", a Utah corporation, and ▇▇▇▇-
▇▇▇▇▇▇, INC., hereafter "BH", a Nevada corporation.
Plan of Exchange
The Plan of Exchange will consist of the acquisition of all
of the issued and outstanding shares of PLAN B by BH and the
issuance by BH to the shareholders of PLAN B a total of
2,400,000 restricted common shares of BH's stock with
registration rights, having a par value of US$.001 each, to be
issued upon and subject to the terms and conditions of the
Agreement hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the
mutual and dependent promises hereinafter contained, and good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto represent, warrant,
covenant, and agree as follows:
ARTICLE I
1.1 Agreement to Consummate Transactions. Subject to the
terms and conditions of this Agreement, ▇▇▇▇-▇▇▇▇▇▇, INC. and
PLAN B PRODUCTIONS OF UTAH, INC. agree to consummate or cause to
be consummated, the transactions contemplated by Sections 1.2
through 8.2 of this Agreement ("Transactions"), and agree that
the consummation of each of the Transactions is conditional upon
the consummation of each of the other Transactions.
1.2 Shareholders Approval. PLAN B PRODUCTIONS OF UTAH,
INC. has submitted to its shareholders, or will submit to its
shareholders for approval, the substance of this Agreement at a
special meeting of its shareholders to be held on or before 90
days hereafter.
1.3 Closing. A meeting of the parties to this Agreement
("Closing") will take place at which time certificates, opinions,
letters and other documents required by this Agreement will be
delivered or exchanged. The Closing will take place at the
Office of ▇▇▇▇-▇▇▇▇▇▇, INC. as soon as practicable after the
parties have obtained the required shareholder approval, or at
such other time and place as agreed by the parties, but not later
than 90 days hereafter, and this Agreement shall be declared
effective as of such Closing.
1.4 Consummation of Transactions. If at the Closing no
condition exists which would permit any of the parties to
terminate this Agreement, or a condition then exists and the
party entitled to terminate because of that condition elects not
to do so, then and thereupon BH will file the necessary documents
required by the State of Nevada, and upon such filing with the
State, to reflect the acquisition of PLAN B.
1.5 Acquisition of Shares. Upon, and subject to the terms
and conditions herein stated, ▇▇▇▇-▇▇▇▇▇▇, INC. shall acquire
from PLAN B's shareholders and PLAN B's shareholders shall
transfer, assign and convey to ▇▇▇▇-▇▇▇▇▇▇, INC. 100% of the
issued and outstanding shares of common stock of PLAN B.
1.6 Consideration, Issuance and Delivery of Stock. In
consideration of, and in exchange for the foregoing transfer,
assignment and conveyance, and subject to compliance by PLAN B
PRODUCTIONS OF UTAH, INC. with its warranties and undertakings
contained herein. ▇▇▇▇-▇▇▇▇▇▇, INC. SHALL:
A. At Closing, issue and deliver to the
shareholders of the common stock of PLAN B,
Two Million Four Hundred Thousand
(2,400,000) restricted common shares of ▇▇▇▇-
▇▇▇▇▇▇, INC. stock. The stock will be issued
on a restricted and investment basis, which
upon such issuance and delivery, shall be
fully paid and non-assessable: The stock
will also have registration rights attached,
the recipients shall be entitled to include
the shares in a registration of the Company's
common stock under the Act (including, but
not limited to, registration statements
relating to secondary offerings of the
Company's securities, but excluding
registration statements relating to any
employee benefit plan or corporate
reorganization), unless, in the event of an
underwritten offering, the underwriter
advises that the Shares should not be
included.
ARTICLE II
Representations and Warranties of PLAN B.
PLAN B PRODUCTIONS OF UTAH, INC. represents and warrants to
▇▇▇▇-▇▇▇▇▇▇, INC. AS follows:
2.1 Organization and Good Standing. PLAN B PRODUCTIONS OF
UTAH, INC. is a corporation duly organized, validly existing and
in good standing under the laws of the State of Utah and has the
corporate power to carry on its business as it is now being
conducted. Copies of PLAN B PRODUCTIONS OF UTAH, INC. Articles
of Incorporation, as amended or restated, and By-laws, both as
presently in effect, are complete and correct.
2.2 Capitalization. PLAN B's authorized capital stock
consists of 100,000 shares of common stock having no par value,
of which 100,000 shares are presently issued and outstanding,
and held by the Shareholders. No pre-emptive rights are
conferred by the class of stock, and there are not outstanding
options, calls, commitments, convertible securities or demands of
any character relating to the capital stock of PLAN B, whether
issued or un-issued, except for an employee stock option plan,
for which no shares have been issued.
2.3 Authority. PLAN B PRODUCTIONS OF UTAH, INC. has all of
the corporate power necessary to enter into this Agreement and
carry out the transactions contemplated hereby. The execution,
delivery, and performance of the Agreement by PLAN B PRODUCTIONS
OF UTAH, INC. will have been duly and validly authorized and
adopted by ▇▇▇▇-▇▇▇▇▇▇, INC. Board of Directors, this Agreement
and the consummation of the Plan of Exchange will have been duly
and validly authorized and approved by all necessary corporate
action on the part of PLAN B PRODUCTIONS OF UTAH, INC. and this
Agreement will be legally binding, and enforceable against PLAN B
PRODUCTIONS OF UTAH, INC. in accordance with its terms, subject
to applicable bankruptcy, reorganization, insolvency, moratorium
and other laws affecting creditors' rights generally from time
to time in effect and subject to principles of equity, which may
affect the availability of remedies with respect thereto. To the
best knowledge of PLAN B, the entering into this Agreement by
PLAN B PRODUCTIONS OF UTAH, INC. does not, and the consummation
by PLAN B PRODUCTIONS OF UTAH, INC. of the Transactions
contemplated by this Agreement will not violate the provisions of
(I) any applicable laws of the United States or any other state
or jurisdiction in which PLAN B PRODUCTIONS OF UTAH, INC. does
business; (ii) PLAN B's Certificate of Incorporation or By-Laws;
or (iii) any judgment or decree applicable to PLAN B PRODUCTIONS
OF UTAH, INC. subject to the obtaining of PLAN B PRODUCTIONS OF
UTAH, INC. of the permits, approvals, consents, authorizations
and modifications referred to in Section 6.3 hereof, no default
or breach will occur in any material respect by virtue of the
Plan of Exchange under any material contract, agreement,
mortgage, indenture or other instrument, which PLAN B PRODUCTIONS
OF UTAH, INC. is a part or by which it is bound, and no material
right of PLAN B PRODUCTIONS OF UTAH, INC. under any such existing
contract, agreement, mortgage, indenture or other instrument will
be extinguished by virtue of the Agreement.
2.4 Rights, Titles and Interests. PLAN B PRODUCTIONS OF
UTAH, INC. will transfer all or substantially all the rights,
titles and interests in and to those assets and business, and
PLAN B PRODUCTIONS OF UTAH, INC. will not withhold or withdraw
any of the same without prior written approval of BH.
2.5 Financial Statements. PLAN B's financial statements
listed as Exhibit A, are attached hereto and made a part hereof.
2.6 Absence of Certain Changes of Events. Except as
permitted or contemplated by this Agreement, or disclosed to ▇▇▇▇-
▇▇▇▇▇▇, INC. there has not been:
A. Any material adverse change in the assets
(including any such change caused by damage,
destruction or loss, whether or not insured), the
results of operations (including any change caused by
discontinued operations), or the business prospects or
conditions, financial or otherwise of PLAN B; not to
the knowledge of PLAN B has any event or condition
occurred which may result in such change;
B. Any declaration, setting aside or payment of any
dividend or other distribution in respect to PLAN B's
Common Stock;
C. Any repurchase or redemption by PLAN B PRODUCTIONS
OF UTAH, INC. of any PLAN B's Common Stock; or
D. Any sale or transfer by PLAN B PRODUCTIONS OF
UTAH, INC. of any material, tangible asset, or any
mortgage, pledge, lease or lien, charge or encumbrance
on any assets, or any such lease or real property,
machinery, equipment or buildings, other than in the
ordinary course of business.
2.7 Litigation. Except as disclosed to BH, there are no
judicial or administrative actions, suits, proceeding or
investigations pending; or, to the best knowledge and belief of
PLAN B PRODUCTIONS OF UTAH, INC. threatened against which might
result in any material adverse change in the condition (financial
or other), properties, assets, business, operations or prospects
of PLAN B PRODUCTIONS OF UTAH, INC. or in any material liability
on the part of PLAN B PRODUCTIONS OF UTAH, INC. or which question
the validity of this Agreement or of any action taken or to be
taken in connection herewith. There are no citations, fines or
penalties heretofore asserted against PLAN B PRODUCTIONS OF UTAH,
INC. under any federal, state or local law relating to air or
water pollution, or other environmental protection matters, or
relating to occupational health or safety.
2.8 Disclosing of Material Information. Neither this
Agreement nor any exhibit hereto contains any untrue statement or
material fact, or admits to state a material fact necessary to
make the statements herein or therein not misleading, relating to
the business or affairs of PLAN B. There is no fact known to
PLAN B which materially adversely affects the business, condition
(financial or otherwise) or prospects of PLAN B which has not
been set further herein or disclosed to BH.
ARTICLE III
Representations and Warranties of ▇▇
▇▇▇▇-▇▇▇▇▇▇, INC. represents and warrants to PLAN B
PRODUCTIONS OF UTAH, INC. as follows:
3.1 Organization and Good Standing of BH. ▇▇▇▇-▇▇▇▇▇▇,
INC. is a corporation duly organized, existing and of good
standing under the laws of the State of Nevada, with full
corporate power to carry on its business as it is now being
conducted. ▇▇▇▇-▇▇▇▇▇▇, INC. has qualified as a foreign
corporation to do business and is in good standing in each
jurisdiction in which the character and location of the
properties owned or leased by it, or the nature of the business
transacted by it, makes such qualification necessary. Copies of
▇▇▇▇-▇▇▇▇▇▇, INC. Articles of Incorporation, as amended, and
By-Laws, both as presently in effect, are complete and correct.
3.2 Capitalization. BH's authorized capital stock consists
of __________ shares of common stock, par value of $.001 of which
_________ shares, are issued and outstanding, fully paid and
non-assessable. There are no outstanding warrants to purchase
▇▇▇▇-▇▇▇▇▇▇, INC. common stock. Investment shares of ▇▇▇▇-
▇▇▇▇▇▇, INC. common stock to be issued in connection with this
Agreement, when so issued will be duly authorized, validly
issued, fully paid, and non-assessable.
3.3 Authority. ▇▇▇▇-▇▇▇▇▇▇, INC. has the corporate power
to enter into this Agreement and to carry out the transactions
contemplated hereby. The execution, delivery and performance of
this Agreement by ▇▇▇▇-▇▇▇▇▇▇, INC. has been duly and validly
authorized and approved by BH's Board of Directors. Otherwise,
the entering into of this Agreement by ▇▇▇▇-▇▇▇▇▇▇, INC. does
not, and the consummation by ▇▇▇▇-▇▇▇▇▇▇, INC. and PLAN B
PRODUCTIONS OF UTAH, INC. of the transactions contemplated
hereby, will not violate the provisions of (I) any applicable
laws of the United States or any other jurisdiction in which
▇▇▇▇-▇▇▇▇▇▇, INC. DOES business; (ii) BH's Articles of
Incorporation; as amended, of its By-Laws; or (iii) any judgement
or decree applicable to BH, subject to the obtaining of ▇▇▇▇-
▇▇▇▇▇▇, INC. approvals, consents, authorizations and
modifications referred to in Sections 6.3 hereof, no default or
breach will occur in any material respect by virtue of this
Agreement under any material contract mortgage, agreement,
indenture or other instrument applicable to ▇▇▇▇-▇▇▇▇▇▇, INC. and
no rights of ▇▇▇▇-▇▇▇▇▇▇, INC. under any existing contract,
agreement, mortgage, indenture or other instrument will be
extinguished by virtue of the Agreement.
3.4 Financial Statements. BH's audited financial report
dated as of its last quarterly SEC filing, is true and complete
in all material respects, such having been prepared in accordance
with generally accepted accounting principles consistently
followed through the periods covered by such statements, and
present fairly, in accordance with generally accepted accounting
principles, the financial condition of ▇▇▇▇-▇▇▇▇▇▇, INC. and the
results of its operations for the period covered thereby, since
the date of said Report, there has not been any change in the
financial condition, properties, assets, liabilities, business or
operations of ▇▇▇▇-▇▇▇▇▇▇, INC. which has been, or to the best
knowledge of BH, is likely to materially adverse with respect to
BH. As soon as practicable after consummation of the transaction
contemplated by this Agreement. ▇▇▇▇-▇▇▇▇▇▇, INC. will prepare
audited consolidated financial statements, and will update and
file all necessary reports and filings with the Securities And
Exchange Commission as required.
3.5 Absence of Certain Changes of Events. Since the date
of BH's financial report cited above, there have not been: A.
Any material adverse change in the assets (including any such
change caused by damage, destruction or loss, whether or not
insured). The results of operations (including any change caused
by discontinued operations) or the business prospects or
condition, financial or otherwise of BH, nor, to the knowledge of
BH, has any event or condition occurred which may result in such
change;
B. Until the date of Closing, ▇▇▇▇-▇▇▇▇▇▇, INC. will
conduct its business in the ordinary and usual course; and prior
to the time of Closing, it will not, without the written consent
of PLAN B PRODUCTIONS OF UTAH, INC. dispose of any property,
except in the regular, ordinary course of business, declare or
pay any dividends, or make any other distribution to the
shareholders, or issue or purchase any stock.
3.6 Litigation. There are no judicial or administrative
actions, suits of a material nature, proceedings or
investigations pending, or threatened against BH which might
result in any material adverse change in the condition (financial
or other), properties, assets, business, operations or
prospects of ▇▇▇▇-▇▇▇▇▇▇, INC. or in any material liability on
the part of BH or which question the validity of the Agreement
or of any action taken or to be taken in connections herewith.
There are no citations, fines or penalties heretofore asserted
against BH under any federal, state or local law relating to air
or water pollution, or other environmental protection matters, or
relating to occupational health or safety.
3.7 Disclosing of Material Information. Neither this
Agreement nor any exhibit hereto contains any untrue statement of
material fact, or admits to state a material fact necessary to
make the statement herein or therein not misleading, relating to
the business or affairs of ▇▇▇▇-▇▇▇▇▇▇, INC. to the best
knowledge and belief of its officers and directors. There is no
fact known to ▇▇▇▇-▇▇▇▇▇▇, INC. which materially adversely
affects the business, condition (financial or otherwise) or
prospects of ▇▇▇▇-▇▇▇▇▇▇, INC. which has not been set forth
herein or otherwise disclosed to PLAN B PRODUCTIONS OF UTAH, INC.
and its legal counsel.
ARTICLE IV
Covenants of PLAN B
PLAN B PRODUCTIONS OF UTAH, INC. covenants with ▇▇▇▇-▇▇▇▇▇▇, INC.
as follows:
4.1 Negative Covenants. From the date of this Agreement,
PLAN B will not, without the prior written consent of BH engage
in any of the following transactions: A. Engage in any
activities or transactions which will be outside the normal
course of its business;
B. Issue any additional shares of PLAN B PRODUCTIONS
OF UTAH, INC. common stock, or issue any shares of stock in
PLAN B PRODUCTIONS OF UTAH, INC. or any shares of stock in
PLAN B PRODUCTIONS OF UTAH, INC. or any option, warrant or
right to acquire stock in PLAN B.
C. Pay any dividend or make any distribution in
respect to this capital stock;
D. Sell any of its assets, other than in the ordinary
course of business;
E. Amend its Certificate of Incorporation or its
By-Laws;
F. Re-capitalize, reorganize or be a party to any
merger or consolidation or sale of all or
substantially all of its assets; or
G. Make any loans or grant increases in compensation
to its officers or employees.
4.2 Affirmative Covenants. Prior to the Closing Date, PLAN
B WILL do or has done the following:
A. PLAN B PRODUCTIONS OF UTAH, INC. has convened a
special meeting of the stockholders of PLAN B, at which time
the shareholders of PLAN B agreed to proceed with the
Agreement and the Plan of Exchange;
B. PLAN B will use its best efforts to preserve its
business organization intact, and retain the services of its
officers and employees;
C. PLAN B will afford to the officers, attorneys,
accountants and other authorized representatives of BH full
and free access to its properties, books, tax returns and
records, in order that BH may have a full opportunity to
make such investigations as BH desires of the affairs of
PLAN B;
D. PLAN B PRODUCTIONS OF UTAH, INC. will promptly
advise BH in writing of any materially adverse change in
the financial condition, business, operations or key
personnel of PLAN B, any breach of its representations or
warranties contained herein, and any material contract,
agreement, license or other arrangement which, if in effect
on the date of this Agreement, should have been included in
this Agreement; and
E. PLAN B PRODUCTIONS OF UTAH, INC. will use its best
efforts to accomplish all actions necessary to consummate
the Plan of Exchange, including the satisfaction of all the
conditions set forth in this Agreement.
ARTICLE V
Covenants of BH. BH covenants that prior to the execution of th
is Agreement with PLAN B PRODUCTIONS OF UTAH, INC. as follows:
5.1 Negative Covenants. ▇▇▇▇-▇▇▇▇▇▇, INC. will not,
without the prior written consent of PLAN B:
A. Declare any dividends payable in shares of BH
common stock;
B. Except as noted in Section 3.2, spilt or combine
or reclassify the outstanding shares of BH common
stock; or
C. Merge into, sell all or substantially all of its
assets to any person or entity. 5.2 Affirmative
Covenants. Prior to Closing date, ▇▇▇▇-▇▇▇▇▇▇, INC. will do
the following: A. BH will reserve, and promptly
after the Closing will issue and deliver the number of
shares of ▇▇▇▇-▇▇▇▇▇▇, INC. common stock required, and will
take all other actions contemplated hereby with respect to
BH common stock to be registered under the Securities or
"Blue Sky" Laws of every jurisdiction in the United States
in which any trading of BH's common stock is contemplated or
is taking place, or in any state which such qualifications
in required;
B. BH will use its best efforts to accomplish all
actions necessary to consummate the Agreement,
including satisfaction of all the conditions contained
in this Agreement;
C. BH will promptly advise PLAN B in writing of any
materially adverse change in the financial condition,
business, operations, or key personnel of BH, any
breach of its representations or warranties contained
herein, and any material contract, agreement, license
or other arrangement which, if in effect on the date of
this agreement should have been included in the
Agreement;
D. BH will afford to the officers, attorneys,
accountants and other authorized representatives of
PLAN B full and free access to its properties, books,
tax returns and records, in order that PLAN B may have
a full opportunity to make such investigations as PLAN
B desires of the affairs of BH.
ARTICLE VI
Mutual Conditions
Neither BH or PLAN B PRODUCTIONS OF UTAH, INC. will be
obligated to complete or cause to be completed the transactions
contemplated by this agreement unless the following conditions
have been met prior to or at the Closing:
6.1 Absence of Restraint. No order to restrain, enjoin or
otherwise prevent the consummation of this Agreement, or the
transactions contemplated herein shall have been entered by any
court of or administrative body, and no proceeding to obtain any
such order shall have been commenced or shall be threatened.
6.2 Absence of Termination. The obligations to consummate
the transactions contemplated hereby shall not have been canceled
pursuant to sections 9.1.
6.3 Required Approvals. ▇▇▇▇-▇▇▇▇▇▇, INC. AND PLAN B
PRODUCTIONS OF UTAH, INC. shall have received all such approvals,
consents, authorizations or modifications as may be required to
permit the performance of ▇▇▇▇-▇▇▇▇▇▇, INC. AND PLAN B
PRODUCTIONS OF UTAH, INC. of their respective obligations under
this Agreement, and the consummations of the transactions herein
contemplated (whether for governmental authorities or other
persons), and ▇▇▇▇-▇▇▇▇▇▇, INC. AND PLAN B PRODUCTIONS OF UTAH,
INC. shall each have received any and all permits and approvals
from any regulatory authority having jurisdiction required for
the lawful consummation for the Plan of Exchange.
6.4 Blue Sky Compliance. There shall have been obtained
any and all permits, approvals and consents of the Securities or
"Blue Sky" Commissions or any jurisdictions, and of any other
governmental body or agency, which counsel for ▇▇▇▇-▇▇▇▇▇▇, INC.
may reasonably deem necessary or appropriate so that consummation
of the transactions contemplated by this Agreement will be in
compliance with applicable laws.
ARTICLE VII
Conditions to PLN B's Obligations
PLAN B PRODUCTIONS OF UTAH, INC. shall not be obligated to
complete or cause to be completed the transactions contemplated
by this Agreement unless the following conditions have been met
prior to or at the Closing:
7.1 Compliance with Representations, Warranties and
Covenants. All of the representations and warranties of ▇▇▇▇-
▇▇▇▇▇▇, INC. made in or pursuant to this Agreement are true and
shall be true in all material respects at and as of the Closing
date, with the same force and effect for changes contemplated or
permitted by the Agreement or otherwise approved in writing by
PLAN B: ▇▇▇▇-▇▇▇▇▇▇, INC. shall have complied with and preformed
all of the covenants contained in this Agreement to be performed
by them at or prior to the Closing Date. Such shall be
evidenced by appropriate Schedules to be attached hereto and
incorporated by reference and certified as correct by the
President of BH.
7.2 Tax opinion. PLAN B PRODUCTIONS OF UTAH, INC. shall
have received from its accounting firm, a letter to the effect
that in their opinion the PLAN B PRODUCTIONS OF UTAH, INC. income
tax consequences of the Agreement is expected to be substantially
as follows:
A. No gain or loss will be recognized by the
shareholders of PLAN B
PRODUCTIONS OF UTAH, INC. upon receipt in the Agreement
of ▇▇▇▇-▇▇▇▇▇▇, INC. common stock in exchange for their
PLAN B PRODUCTIONS OF UTAH, INC. common stock; and
B. The tax basis of the ▇▇▇▇-▇▇▇▇▇▇, INC. common
stock received by each holder of shares of PLAN B
PRODUCTIONS OF UTAH, INC. COMMON stock will be the same
as the tax basis of the shares of PLAN B PRODUCTIONS OF
UTAH, INC. COMMON stock surrendered in exchange
therefor.
7.3 Opinion of Counsel. PLAN B PRODUCTIONS OF UTAH, INC.
shall have received an opinion dated at or near the Closing date
from counsel for ▇▇▇▇-▇▇▇▇▇▇, INC. that:
▇. ▇▇▇▇-▇▇▇▇▇▇, INC. is a corporation validly organized,
legally existing and in good standing under the laws of the
state of Nevada, with full corporate power and authority to
own its properties and to conduct its business as it is
being conducted;
▇. ▇▇▇▇-▇▇▇▇▇▇, INC. shall have full corporate power to
carry out the transactions contemplated herein; this
Agreement has been duly executed and delivered by ▇▇▇▇-
▇▇▇▇▇▇, INC. and all necessary corporate action has been
taken by BH, its Board of Directors and shareholders in
order to consummate the transactions, to execute and deliver
this Agreement and to make this Agreement the valid and
legally binding obligation of BH;
C. The shares of ▇▇▇▇-▇▇▇▇▇▇, INC. common stock required
to effect the Plan of Exchange between ▇▇▇▇-▇▇▇▇▇▇, INC. and
PLAN B, in accordance with the terms of this Agreement have
been duly and validly authorized and issued; and upon the
consummation of the transactions herein, will be fully paid
and non-assessable;
D. The execution, delivery and performance of this
Agreement by BH, and the consummation of the
transaction contemplated thereby will not constitute a
violation, breach or default under of conflict with BH's
Articles of Incorporation, as amended, or its By-Laws, or
any other Agreement or any judgement, writ, injunction or
decree or any court, governmental body or arbitrator, known
to such counsel, to which ▇▇▇▇-▇▇▇▇▇▇, INC. is a party or by
which it may be bound;
E. No consent or approval by any governmental authority
which has not been obtained is required in connection with
the consummation of the Agreement;
F. To the best knowledge and information of counsel, there
is no material litigation or proceeding pending or
threatened against ▇▇▇▇-▇▇▇▇▇▇, INC. required to be
disclosed under this Agreement which has been so disclosed
to PLAN B.
ARTICLE VIII
Conditions to Obligations of ▇▇
▇▇▇▇-▇▇▇▇▇▇, INC. shall not be obligated to complete or
cause to be completed the transactions contemplated by this
Agreement unless the following conditions have been met prior to
or at the Closing:
8.1 Compliance with Representations, Warranties and
Covenants. All of the representations and warranties of PLAN B
PRODUCTIONS OF UTAH, INC. contained in this Agreement and in its
Business Plan provided ▇▇▇▇-▇▇▇▇▇▇, INC. are true and shall be
true in all material respects at and as of the Closing date.
Such shall be evidenced by appropriate Schedules attached hereto
and incorporated by reference and certified as correct by the
Directors and President of PLAN B.
8.2 Opinion of Counsel. ▇▇▇▇-▇▇▇▇▇▇, INC. shall have
received an opinion dated at or near the Closing date from
Counsel for PLAN B, that:
A. PLAN B PRODUCTIONS OF UTAH, INC. is a corporation
duly incorporated and validly existing as a
corporation in good standing under the laws of the
State of Utah, with corporate power and authority to
own its properties and to conduct its business as it is
then being conducted;
B. PLAN B PRODUCTIONS OF UTAH, INC. has full
corporate power to carry out the Transaction; this Agreement
has been duly executed and delivered by PLAN B; and
necessary corporate action as been taken by PLAN B
PRODUCTIONS OF UTAH, INC. to execute and deliver this
Agreement, and to consummate the Transactions; and this
Agreement is the valid and legally binding obligation of
PLAN B PRODUCTIONS OF UTAH, INC. subject to applicable
bankruptcy, reorganization, insolvency, moratorium, and
other laws affecting creditor's rights generally from time
to time in effect and subject to principles of equity which
may affect the availability of remedies with respect
thereto;
C. The execution, delivery and performance by PLAN B
PRODUCTIONS OF UTAH, INC. of this Agreement, and the
consummation of the Transactions contemplated hereby will
not constitute a violation, breach or default under the
Certificate of Incorporation or By-Laws of PLAN B;
D. No consent or approval by any governmental
authority which has not been obtained is required in
connection with the consummation by PLAN B PRODUCTIONS
OF UTAH, INC. of the Transactions contemplated herein.
E. To the best knowledge and information of counsel
to PLAN B, there is no material litigation or
proceeding pending or threatened against PLAN B
PRODUCTIONS OF UTAH, INC. required to be disclosed
under this Agreement which has not been so disclosed to
BH.
8.3 PLAN B PRODUCTIONS OF UTAH, INC. Stock Options. On the
effective date of the Exchange, there shall be no outstanding
options to purchase shares of PLAN B PRODUCTIONS OF UTAH, INC.
common stock.
ARTICLE IX
Miscellaneous
9.1 Terminations. This Agreement may be terminated or
canceled, and the transactions contemplated hereby may be
abandoned, notwithstanding stockholder authorization, at any time
before consummation of the Agreement:
A. By mutual consent of the Board of Directors of
▇▇▇▇-▇▇▇▇▇▇, INC. and PLAN B;
B. By any party in the event that any of the
conditions specified in Article VI shall not have been
satisfied within the time contemplated by this
Agreement;
A. By ▇▇▇▇-▇▇▇▇▇▇, INC. if any of the conditions specified in
Article VIII shall not have been satisfied within the time
contemplated by this Agreement; or D. By PLAN B if any of the
conditions specified in Article VII shall not have been satisfied
within the time contemplated by this Agreement.
9.2 Effect of Termination. If this Agreement is
terminated, this Agreement, except as to Sections 9.3 and 9.4,
shall no longer be of any force or effect and there shall be no
liability on the part of any part of any party or its respective
directors, officers or stockholders' provided, however, that in
the case of a termination without cause by a party or a
termination pursuant to Sections 9.1(c) or (d) hereof because of
a prior material default under or material breach of this
Agreement by another party, the damages which the aggrieved party
or parties may recover from the defaulting party or parties shall
in no event exceed the amount of out-of-pocket costs and expenses
incurred by such aggrieved party or parties in connection with
this Agreement.
9.3 Return of Information; Confidentially. In the event
this Agreement is terminated or the Plan of Exchange is not
consummated for any reason. BH and PLAN B agree that all
written information and documents supplied by either BH and PLAN
B to each other shall be promptly returned to the other party at
its request, and BH and PLAN B shall each use its best efforts
to cause confidential information to continue to be treated as
confidential.
9.4 Costs and Expenses. All costs and expenses incurred in
connection with this Agreement will be paid by the party
incurring expenses. In the event of any termination of this
Agreement, pursuant to Section 9.1, subject to the provisions of
9.2, BH and PLAN B will each bear their own expenses.
9.5 Extension of Time; Waivers. At any time prior to the
Closing date:
A. BH may (i) extend the time for the performance of
the obligations or other acts of PLAN B, (ii) waive any
inaccuracies in the representations and warranties of PLAN B
PRODUCTIONS OF UTAH, INC. contained herein or in any
document delivered pursuant hereto by PLAN B, and (iii)
waiver compliance with any of the agreements or conditions
herein to be performed by BH. Any agreement on the part of
PLAN B to any such extension or waiver shall be valid only
if set forth in an instrument, in writing, signed on behalf
of PLAN B.
9.6 Assignability. This Agreement shall inure to the
benefit of, and be binding on the parties hereto and their
respective successors and assigns, provided that this Agreement
may not be assigned by any party without the prior written
consent of the other party.
9.7 Reliance of Counsel. In rendering any opinion referred
to herein, counsel may rely, as to any factual matters involved
in their opinion, on certificates of public officials and of
corporate officers, opinions of corporate general counsel, and
such other evidence as such counsel may reasonably deem
appropriate; and as to matters governed by laws of jurisdictions
other than the United States or the state in which said counsel
is located, an opinion of local counsel in jurisdictions, which
counsel shall be satisfactory to the other parties in the
exercise of their reasonable judgement.
9.8 Notices. Any notice to any party hereto pursuant to
this Agreement shall be given by Certified or Registered mail,
addressed as follows:
BH
[INSERT MAILING ADDRESS]
PLAN B
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
9.9 Amendment. This Agreement may be amended with the
approval of the Board of Directors of ▇▇▇▇-▇▇▇▇▇▇, INC. and PLAN
B PRODUCTIONS OF UTAH, INC. at any time before or after approval
thereof by the stockholders of ▇▇▇▇-▇▇▇▇▇▇, INC. and PLAN B; but
after any such stockholder approval, no amendment shall be made
which substantially and adversely changes the terms hereof. This
Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto.
9.10 Entire Agreement; Counterparts; Applicable Law. This
Agreement (a) constitutes the entire agreement and superseded all
prior agreements and understanding, both written and oral among
the parties with respect to the subject matter hereof, (b) may be
executed in several counterparts, each of which will be deemed
an original and all of which shall constitute one and the same
instrument, and (c) shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of
Nevada.
9.11 Titles. The titles and capitals of the Sections and
paragraphs of this Agreement are included for convenience of
reference any and shall have no effect on the constructions or
meaning of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first
above written.
▇▇▇▇-▇▇▇▇▇▇, INC.
BY:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Its President
PLAN B PRODUCTIONS OF UTAH, INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its President
