(a)
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Ohr
shall become the surviving corporation in the Merger (in such capacity,
the "Surviving Corporation");
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(b)
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the
Certificate of Incorporation of Ohr as in effect at the Effective Time
shall be the Certificate of Incorporation of the Surviving
Corporation;
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(c)
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the
By-Laws of Ohr, as in effect at the Effective Time, shall be the By-Laws
of the Surviving Corporation;
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(d)
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the
directors of BBM shall be the directors of the Surviving
Corporation;
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(e)
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the
officers of BBM shall be the officers of the Surviving
Corporation;
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(f)
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the
corporate existence, franchises and rights of Ohr, with its purposes,
powers and objects, shall continue unaffected and unimpaired by the
Merger, and Ohr shall succeed to and be fully vested insofar as permitted
by law and not
otherwise expressly provided herein, with the corporate existence,
identity and all rights, franchises, assets, liabilities and obligations
of BBM; and
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(g)
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the
separate existence and corporate organization of BBM except insofar as
they may be continued by statute, shall cease, and thereupon BBM and Ohr
shall be a single corporation.
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(a)
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Each
outstanding share of Common Stock, $0.0001 par value per share, of BBM
(the "BBM Common Stock") shall be converted into, in accordance with the
terms and conditions hereof, one (1) share of common stock of the
Surviving Corporation ("Ohr Common Stock"). The remaining
shares of authorized but unissued shares of Common Stock shall cease to
exist at the Effective Time;
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(b)
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Each
outstanding share of Series B Convertible Preferred Stock, $0.0001 par
value per share, of BBM (the "BBM Series B Stock" and, collectively with
the BBM Common Stock, the "BBM Stock") shall be converted into, in
accordance with the terms and conditions hereof, one (1) share of Series B
Convertible Preferred Stock of the Surviving Corporation ("Ohr Series B
Stock" and, collectively with the Ohr Common Stock, the "Ohr
Stock");
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(b)
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Outstanding
options and warrants of BBM shall be assumed by and converted into options
and warrants of Ohr, having substantially the same terms;
and
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(c)
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Each
outstanding share of Ohr Stock owned by BBM immediately prior to the
Effective Time shall, by virtue of the Merger, cease to be outstanding, be
cancelled and retired without any payment of any consideration therefor
and cease to exist.
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(a)
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The
Closing will take place at 10:00 A.M. New York time on the Effective Time,
or at such other time as the parties to this Agreement, acting through
their Boards of Directors, may mutually agree. The place of
Closing will be at the offices of Hahn & Hessen LLP, 488 Madison
Avenue, New York, New York or at such other place as may be mutually
agreed upon by the parties.
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(b)
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As
soon as practicable after the Effective Time, each holder of shares of BBM
Stock issued and outstanding on the Effective Time (other than treasury
shares, if any) shall surrender the certificate or certificates
representing such shares to Ohr and shall receive in exchange therefor a
certificate or certificates representing the number of whole shares of Ohr
Stock into which such shares of BBM Stock have been converted and
exchanged as provided in Section 4. The certificate or
certificates so surrendered shall be duly endorsed as Ohr may
require. Subject to the following provisions of this Section
6(b), after the Effective Time each certificate which represented
outstanding shares of BBM Stock prior to the Effective Time shall be
deemed for all corporate purposes to evidence the ownership of the shares
of Ohr Stock into which such shares of BBM Stock have been
converted. No dividend or other distribution payable with
respect to the Ohr Stock shall be paid to any holder of any certificate
representing shares of BBM Stock issued and outstanding on the Effective
Time until such holder surrenders such certificate for exchange as
provided in this Section 6(b). Until a holder of any certificate
representing shares of BBM Stock issued and outstanding on the Effective
Time surrenders such certificate for exchange as herein provided, such
holder shall not be entitled to exercise the voting rights of the Ohr
Common Stock or Ohr Series B Stock into which the shares represented by
such certificate have been converted. Upon surrender of such
certificate, all such withheld dividends or other distributions shall be
paid (without interest) with respect to each share represented by such
certificate.
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(c)
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All
shares of Ohr Stock for and into which shares of BBM Stock shall have been
exchanged and converted pursuant to this Agreement shall be deemed to have
been issued in full satisfaction of all rights pertaining to such
exchanged and converted shares. Except for such rights and
except as provided in Section 6(b), the holder of certificate(s)
representing shares of BBM Stock issued and outstanding on the Effective
Time shall have no rights with respect to such shares other than to
surrender such certificate or certificates pursuant to Section
6(b).
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(a)
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BBM
is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Utah with corporate power and authority to
carry on the business in which it is engaged, to own, lease, and operate
its properties, to execute and deliver this Agreement and to perform its
obligations under this Agreement;
and
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(b)
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The
authorized capital stock of BBM consists of (i) 50,000,000 shares of
Common Stock, $0.0001 par value per share, of which 25,247,006 shares were
issued and outstanding on the date of this Agreement, and (ii) 15,000,000
shares of Serial Preferred Stock,
of which 6,000,000 shares were designated as Series B Convertible
Preferred Stock, $0.0001 par value per share, and 5,583,320 shares of
Series B Convertible Preferred Stock were issued and outstanding on the
date of this Agreement. BBM does not hold any shares of its
authorized capital stock in its
treasury.
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8.
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(a)
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Covenants of
BBM.
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(i)
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Between
the date of this Agreement and the Effective Time, there will be no change
in the Certificate of Incorporation or By-Laws or in the authorized or
issued capital stock of BBM.
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(ii)
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Except
as otherwise provided herein, between the date of this Agreement and the
Effective Time, BBM will not (i) issue any additional capital stock or
other security, (ii) declare, set aside or pay any dividend or make any
other distribution in respect to its capital, (iii) directly or indirectly
redeem, purchase or otherwise acquire any shares of its capital stock, or
(iv) issue to any person options, warrants or other rights to acquire any
securities of BBM.
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(iii)
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From
the date of this Agreement up to and including the Effective Time, except
with the prior written approval of Ohr, the business of BBM will be
conducted in the usual, regular and ordinary manner, and BBM will not (i)
make any material change in its methods of management, distribution,
marketing, accounting or operations or (ii) create or incur any
indebtedness or other liability or obligation, except in the ordinary
course of business.
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(b)
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Covenant of BBM and
Ohr.
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(i)
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Each
of BBM and Ohr will use its respective best efforts to cause all of the
Section 10 and Section 11 conditions that are within its control to be
satisfied as soon as practicable after the date
hereof.
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(a)
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Ohr
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware with power and authority to carry
on its business, to own its properties, and to execute and deliver this
Agreement and perform its obligations
hereunder.
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This
Agreement and the Merger shall have been approved by the affirmative vote
of
the holders of a majority of the shares of BBM Stock entitled to vote
thereon.
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This
Agreement and the Merger shall have been approved by the affirmative vote
of the holders of all Ohr capital stock entitled to vote
thereon.
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(a)
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Parties in
Interest. This Agreement shall only bind and inure to
the benefit of the parties and their respective successors and
assigns.
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(b)
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Entire
Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings between the parties
with respect to such subject
matter.
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(c)
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Counterparts. This
Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute only one
agreement.
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(d)
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Headings. The
section headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
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(e)
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Governing
Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving
effect to principles of conflicts of
law.
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Name
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State of Incorporation
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Ohr
PHARMACEUTICAL, INC.
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Delaware
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BBM
HOLDINGS, INC.
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Utah
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