AGREEMENT AND PLAN OF EXCHANGE
This Agreement and Plan of Exchange ("Agreement") between H
Bar C, Inc., a Delaware corporation ("H Bar C") and Campus Live
Corp., a Delaware corporation ("Campus Live"), the two
corporations acting by their respective boards of directors and
sometimes collectively referred to as the "Constituent
Corporations," is entered into this 18th day of June, 2000.
WHEREAS, H Bar C is a corporation organized and existing under
the laws of the State of Delaware, having been incorporated on
November 9, 1999, with its principal business office located at
118 Murray Avenue, Port Washington, New York 11050;
WHEREAS, the authorized capital stock of H Bar C is Ten Million
(10,000,000) shares of common stock, par value of One Tenth of
One Cent ($0.001) per share, Three Million Five Hundred Twenty-
Two Thousand Five Hundred (3,522,500) of which have been issued;
there is no preferred stock authorized;
WHEREAS, Campus Live is a corporation organized and existing
under the laws of the State of Delaware, having been originally
incorporated on September 19, 1997, with its principal business
office located at 2007 Bedford Drive, West Palm Beach, Florida
33403;
WHEREAS, the authorized capital stock of Campus Live consists of
Fifteen Million (15,000,000) shares of common stock, par value of
One Cent ($0.001) per share, of which Three Million Eight Hundred
Twelve Thousand Five Hundred (3,812,500) shares are presently
issued and outstanding.
WHEREAS, the respective boards of directors of H Bar C and Campus
Live deem it desirable and in the best interests of the
corporations and their stockholders that the corporations enter
into this Agreement and exchange shares pursuant to the terms and
conditions contained herein; and
WHEREAS, in order to consummate this exchange and in
consideration of the mutual benefits to be derived and the mutual
agreements contained herein, Campus Live and H Bar C approve and
adopt this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual
agreements, provisions and covenants herein contained, it is
agreed by and between the parties that, in accordance with the
provisions of the laws of the State of Delaware, H Bar C shall
be, and it is, as of the exchange date (as defined in Article I,
Section 2 hereafter), become a wholly subsidiary of Campus Live,
one of the Constituent Corporations; both such corporations shall
continue their corporate existence and remain Delaware
corporations governed by the laws of that state, all on the terms
and conditions set forth as follows:
ARTICLE I
EXCHANGE
Written consents executed by shareholders holding a majority
of the issued and outstanding shares of common stock of each
company, the shareholders of both Campus Live and H Bar C are
being sought to approve and adopt, pursuant to and in accordance
with the applicable provisions of the laws of the State of
Delaware, the exchange of all the outstanding shares of common
stock of H Bar C for an equivalent number of shares of common
stock of Campus Live. Upon this approval, this exchange shall
become effective ("Exchange Date").
ARTICLE II
NAME AND CONTINUED CORPORATE EXISTENCE
OF H BAR C
The corporate name of H Bar C, the Constituent Corporation whose
corporate existence will continue after the exchange under this
Agreement, and its identity, existence, purposes, powers,
objects, franchises, rights and immunities shall continue
unaffected and unimpaired by this exchange, and the corporate
identity, existence, purposes, powers, objects, franchises,
rights and immunities of Campus Live shall continue unaffected
and unimpaired by this exchange
ARTICLE III
CONVERSION OF SHARES ON EXCHANGE
Each of the shares of common stock, par value of One Cent
($0.001) per share, of H Bar C outstanding on the Exchange Date
("H Bar C Stock"), and all rights shall upon the Exchange Date be
exchanged with each of common stock, par value One Tenth of One
Cent ($0.001) per share of Campus Live ("Campus Live Stock"). At
any time and from time to time after the Exchange Date, each
holder of an outstanding certificate or certificates representing
shares of H Bar C Stock shall be entitled, upon the surrender of
the certificate or certificates at the office of an transfer
agent of Campus Live to be designated by the Board of Directors
of Campus Live to receive in exchange a certificate or
certificates representing the number of shares of Campus Live
Stock into which the shares of H Bar C Stock represented by the
certificate or certificates surrendered shall have been
converted. No dividend shall be paid by Campus Live to the
holders of outstanding certificates expressed to represent shares
of H Bar C Stock, but, upon surrender and exchange as provided,
there shall be paid to the record holder of the certificate or
certificates for Campus Live Stock issued in exchange therefor an
amount with respect to each such share of Campus Live Stock equal
to all dividends which shall have been paid or become payable to
holders of record of Campus Live Stock between the Exchange Date
and the date of actual conversion.
ARTICLE IV
ASSETS AND LIABILITIES
On the Exchange Date, all property, real, personal and mixed, and
all debts due to either of the Constituent Corporations on
whatever account, as well for stock subscriptions as all other
choses in action, and all and every other interest of or
belonging to either of Constituent Corporations shall remain with
each corporation. The title to any real estate or any interest,
whether vested by deed or otherwise, in either of the Constituent
Corporations shall not revert or be in any way impaired by reason
of the exchange; provided, however, that all rights of creditors
and all liens upon the property of either of the Constituent
Corporations shall be preserved unimpaired, and all debts,
liabilities, obligations and duties of the respective Constituent
Corporations shall remain the same. Any action or proceeding
pending by or against either of the Constituent Corporations may
be prosecuted to judgment as if the exchange had not taken place.
ARTICLE V
CONDUCT OF BUSINESS BY CONSTITUENT CORPORATIONS
Prior to the Exchange Date, H Bar C shall conduct its business in
its usual and ordinary manner, and shall not enter into any
transaction other than in the usual and ordinary course of such
business except as provided. Without limiting the generality of
the above, H Bar C shall not, except as otherwise consented to in
writing by Campus Live or as otherwise provided in this agreement:
1. Issue or sell any shares of its capital stock in addition to
those outstanding on this date, except shares issued pursuant to
rights or options outstanding at that date;
2. Issue rights to subscribe to or options to purchase any
shares of its stock in addition to those outstanding on this
date;
3. Amend its certificate of incorporation or its bylaws;
4. Issue or contract to issue funded debt;
5. Declare or pay any dividend or make any other distribution
upon or with respect to its capital stock.
6. Repurchase any of its outstanding stock or by any other
means transfer any of its funds to its shareholders either
selectively or rateably, in return for value or otherwise, except
as salary or other compensation in the ordinary or normal course
of business;
7. Undertake or incur any obligations or liabilities except
current obligations or liabilities in the ordinary course of
business and except for liabilities for fees and expenses in
connection with the negotiation and consummation of the exchange
in amounts to be determined after the Exchange Date;
8. Mortgage, pledge, subject to lien or otherwise encumber any
realty or any tangible or intangible personal property;
9. Sell, assign or otherwise transfer any tangible assets of
whatever kind, or cancel any claims, except in the ordinary
course of business;
10. Sell, assign, or otherwise transfer any trademark, trade
name, patent or other intangible asset;
11. Default in performance of any material provision of any
material contract or other obligation;
12. Waive any right of any substantial value; or
13. Purchase or otherwise acquire any equity or debt security of
another corporation except to realize on an otherwise worthless
debt.
ARTICLE VI
WARRANTIES OF THE CONSTITUENT CORPORATIONS
Representations and Warranties of H Bar C.
H Bar C covenants, represents and warrants to Campus Live that:
1. It is on the date of this Agreement, and will be on the
Exchange Date, (a) a corporation duly organized and existing
under the laws of the jurisdiction of the State of Delaware, and
(b) duly authorized under its articles, and under applicable
laws, to engage in the business carried on by it;
2. All federal, state and local tax returns required to be
filed by it on or before the Exchange Date will have been filed,
and all taxes shown to be required to be paid on or before the
Exchange Date will have been paid;
3. It will use its best efforts to collect the accounts
receivable owned by it on or prior to the Exchange Date and will
follow its past practices in connection with the extension of any
credit prior to the Exchange Date;
4. All fixed assets owned by it and employed in its business
are of the type, kind and condition appropriate for its business
and will be operated in the ordinary course of business until the
Exchange Date;
5. All leases now held by it are now and will be on the
Exchange Date in good standing and not voidable or void by reason
of any default whatsoever;
6. During the period between January 1, 2000, and the date of
this Agreement, except as disclosed in writing to Campus Live, it
has not taken any action, or suffered any conditions to exist, to
any material or substantial extent in the aggregate, which it has
agreed in Article IX or this Article X of this Agreement not to
take or to permit to exist during the period between the date of
this agreement and the Exchange Date;
7. It has not been represented by any broker in connection with
the transaction contemplated, except as it has advised Campus
Live in writing; and
8. Its Board of Directors has, subject to the authorization and
approval of its stockholders, authorized and approved the
execution and delivery of this Agreement, and the performance of
the transactions contemplated by this Agreement.
9. H Bar C, in addition to other action which is has
covenanted, represented, and warranted to Campus Live that it
shall take, shall also:
(a) Use its best efforts to preserve its business organization
intact, to keep available to Campus Live the present officers and
employees of H Bar C, and to preserve for Campus Live the
relationships of H Bar C with suppliers and customers and others
having business relations with H Bar C; and
(b) Not increase the compensation, wages, or other benefits
payable to its officers or employees, other than increases which
Campus Live has approved in writing.
Representations and Warranties of Campus Live.
Campus Live covenants, represents and warrants to H Bar C that:
1. It is on the date of this Agreement, and will be on the
Exchange Date, (a) a corporation duly organized and existing and
in good standing under the laws of the jurisdiction of the State
of Delaware, (b) duly authorized under its articles, and under
applicable laws, to engage in the business carried on by it, and
(c) it is fully qualified and authorized to do business in the
State of Florida; and
2. Its Board of Directors has, subject to the authorization and
approval of its stockholders, authorized and approved the
execution and delivery of this Agreement, and the performance of
the transactions contemplated by this Agreement.
ARTICLE VII
CONSUMMATION OF EXCHANGE
If the exchange contemplated is completed, all expenses incurred
in consummating the plan of exchange shall, except as otherwise
agreed in writing between the Constituent Corporations, be borne
by Campus Live. If the exchange is not completed, each of the
Constituent Corporations shall be liable for, and shall pay, the
expenses incurred by it.
Notwithstanding shareholder authorization and at any time prior
to the filing, the filing and recording of this agreement may be
deferred from time to time by mutual consent of the respective
boards of directors of each of the Constituent Corporations, and,
to the extent provided in (a), (b), (c) and (d) below, the
exchange may be abandoned:
1. By the mutual consent of the respective Boards of Directors
of each of the Constituent Corporations;
2. At the election of the Board of Directors of Campus Live, if
(a) demands by shareholders for appraisal of their shares of H
Bar C Stock have been received from the holders of twenty-five
percent (25%) or more of the outstanding shares, or (b) in the
judgment of the Board any judgment is rendered relating to any
legal proceeding not commenced and the existence of the judgment
will or may materially affect the rights of either Constituent
Corporation to sell, convey, transfer or assign any of its assets
or materially interfere with the operation of its business,
renders the exchange impracticable, undesirable or not in the
best interests of its shareholders;
3. By the Board of Directors of Campus Live if there shall not
have been submitted to Campus Live the opinion of counsel for H
Bar C, in form and substance satisfactory to Campus Live, to the
effect that (1) H Bar C is a validly organized and duly existing
corporation, (2) this Agreement has been duly authorized by, and
is binding upon, H Bar C in accordance with its terms, and (3)
all the properties, estate, rights, privileges, powers and
franchises of H Bar C and all debts due to H Bar C shall remain
with that corporation, without further act or deed;
4. At the election of the Board of Directors of H Bar C if
there shall not have been submitted to H Bar C the opinion of
counsel for Campus Live, in form and substance satisfactory to H
Bar C, to the effect that: (a) Campus Live is a validly organized
and duly existing corporation; (b) this Agreement has been duly
authorized by, and is binding upon, Campus Live in accordance
with its terms; (c) the H Bar C Stock will be converted into
Campus Live Stock; (d) the Campus Live Stock into which the H Bar
C Stock will be converted as provided herein will be legally and
validly authorized, exempt from the registration requirements of
Section 5 of the Securities Act of 1933, as amended, ("Act'),
provided by Section 3(a)(10) thereof, and exempt from the
registration requirements of Section 7304 of the Delaware
Securities Act, as amended, provided by Section 7309(b) thereof,
and may be issued without a restrictive legend pursuant to Rule
145(a)(2) under the Act if the any of the shares of common stock
H Bar C are otherwise unrestricted and not owned by any affiliate
of H Bar C; and (e) when issued will be validly issued, fully
paid and nonassessable stock of the surviving corporation;
5. At the election of the Board of Directors of either
Constituent Corporation if:
(a) The warranties and representations of the other Constituent
Corporation contained in this Agreement shall not be
substantially accurate in all material respects on and as of the
date of election; or the covenants contained of the other
Constituent Corporation shall not have been performed or
satisfied in all material respects;
(b) Prior to the exchange (1) there shall have been filed in any
court or agency having jurisdiction a complaint or other
proceeding seeking to restrain or enjoin the exchange
contemplated hereby, or (2) there shall have been presented to H
Bar C or Campus Live or any director or officer of either of them
any process, demand or request which, in the opinion of counsel
for either Constituent Corporation, offers reasonable ground to
believe that a complaint or bill in equity may be forthcoming
which, if successful, would restrain, enjoin or dissolve the
exchange, and if, in either case, such Board of Directors
determines that abandonment and cancellation of this Agreement is
advisable in the best interests of the Constituent Corporations,
their shareholders, employees and customers;
(c) If the Exchange Date shall not have occurred by July 1,
2000, then, at the option of the Board of Directors of the
Constituents Corporations, it may be deferred to a date on or
after August 1, 1999. If the Exchange Date shall not have
occurred by September 1, 1999, then, at the option of the Board
of Directors of either Constituent Corporation the exchange may
be abandoned. In the event of the abandonment of the exchange
pursuant to the foregoing provisions, this Agreement shall become
void and have no effect, without any liability on the part of
either of the Constituent Corporations or its shareholders or
directors or officers in respect of this exchange except the
obligation of each Constituent Corporation to pay its own
expenses as provided in this Article XI.
ARTICLE VIII
MISCELLANEOUS
1. Access to Books and Records.
To enable Campus Live to coordinate the activities of H Bar C
into those of Campus Live on and after the Exchange Date, H Bar C
shall, before the Exchange Date, afford to the officers and
authorized representatives of Campus Live free and full access to
the plants, properties, books and records of H Bar C, and the
officers of H Bar C will furnish Campus Live with financial and
operating data and other information as to the business and
properties of H Bar C as Campus Live shall from time to time
reasonably request. Campus Live shall, before the Exchange Date,
afford to the officers and authorized representatives of H Bar C
such access, and Campus Live's officers will furnish such data
and information to H Bar C, as may be reasonably required by H
Bar C for the preparation of its proxy statement in connection
with the meeting of shareholders to be called pursuant to section
1 of Article I of this Agreement. Campus Live and H Bar C agree
that, unless and until the exchange contemplated by this
Agreement has been consummated, Campus Live and H Bar C and their
officers and representatives will hold in strict confidence all
data and information obtained from one another as long as it is
not in the public domain, and if the exchange provided for is not
consummated as contemplated, Campus Live and H Bar C will each
return to the other party all data as the other party may
reasonably request.
2. Tax Treatment.
The parties hereto acknowledge that the transaction contemplated
by this Agreement is intended to qualify as a "tax-free"
reorganization under the provisions of Section 368(a)(1)(B) of
the Internal Revenue Code of 1986, as amended. Campus Live and H
Bar C acknowledge, however, that each are being represented by
their own tax advisors in connection with this transaction, and
neither has made any representations or warranties to the other
with respect to treatment of such transaction or any part or
effect thereof under applicable tax laws, regulations or
interpretations; and no attorney's opinion or tax revenue ruling
has been obtained with respect to the tax consequences of the
transactions contemplated by the within Plan.
3. Exemption from Registration.
The parties hereto acknowledge that the exchange of shares of
common stock contemplated by this Agreement is intended to be
exempt from the registration requirements of Section 5 of the
Securities Act of 1933, as amended, ("Act'), provided by Section
3(a)(10) thereof, and exempt from the registration requirements
of Section 7304 of the Delaware Securities Act, as amended,
provided by Section 7309(b) thereof, and may be issued without a
restrictive legend pursuant to Rule 145(a)(2) under the Act if
the any of the shares of common stock H Bar C are otherwise
unrestricted and not owned by any affiliate of H Bar C.
4. Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall
not be capable of being waived or varied other than by an express
waiver or variation in writing. Any failure to exercise or any
delay in exercising any of such rights shall not operate as a
waiver or variation of that or any other such right. Any
defective or partial exercise of any of such rights shall not
preclude any other or further exercise of that or any other such
right. No act or course of conduct or negotiation on the part of
any party shall in any way preclude such party from exercising
any such right or constitute a suspension or any variation of any
such right.
5. Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators,
representatives, successors, and permitted assigns.
6. Entire Agreement.
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. There are no
promises, agreements, conditions, undertakings, understandings,
warranties, covenants or representations, oral or written,
express or implied, between them with respect to this Agreement
or the matters described in this Agreement, except as set forth
in this Agreement. Any such negotiations, promises, or
understandings shall not be used to interpret or constitute this
Agreement.
7. Assignment.
Neither this Agreement nor any other benefit to accrue hereunder
shall be assigned or transferred by either party, either in whole
or in part, without the written consent of the other party, and
any purported assignment in violation hereof shall be void.
8. Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
9. Severability.
Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court
or other authority of competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or
modified, this Agreement shall continue in full force and effect.
10. Section Headings.
The Section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement.
11. Construction.
Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall
be deemed to include each of the singular, and pronouns of one or
no gender shall be deemed to include the equivalent pronoun of
the other or no gender.
12. Further Assurances.
In addition to the instruments and documents to be made, executed
and delivered pursuant to this Agreement, the parties hereto
agree to make, execute and deliver or cause to be made, executed
and delivered, to the requesting party such other instruments and
to take such other actions as the requesting party may reasonably
require to carry out the terms of this Agreement and the
transactions contemplated hereby.
13. Notices.
Any notice which is required or desired under this Agreement
shall be given in writing and may be sent by personal delivery or
by mail (either 1. United States mail, postage prepaid, or 2.
Federal Express or similar generally recognized overnight
carrier), addressed as provided by each of the Constituent
Corporations.
14. Governing Law.
This Agreement shall be construed and enforced under, in
accordance with, and governed by, the laws of the State of
Delaware.
15. Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent
and authority to execute and deliver this Agreement on behalf of
such party.
16. Termination of Agreement.
This Agreement shall terminate on the Effective Date unless all
actions required under this Agreement have not been fully
performed.
17. Survival of Provisions.
The representations and warranties contained in Article VI of
this agreement and any liability of one Constituent Corporation
to the other for any default under the provisions of Articles V
or VI of this agreement, shall expire with, and be terminated and
extinguished by, the exchange under this agreement on the
Exchange Date.
18. Execution in Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
H Bar C:
By: /s/ Richard Stahl
Richard Stahl, CEO
Campus Live:
By: /s/ Tiffany Smith
Tiffany Smith, CEO
