PLAN AND AGREEMENT OF REORGANIZATION
AMONG
FINANCIAL MEDIA GROUP, INC.
AND
WALLSTREET DIRECT, INC.
AND
CERTAIN STOCKHOLDERS OF
WALLSTREET DIRECT, INC.
DATED SEPTEMBER 19, 2005
TABLE OF CONTENTS
PLAN AND AGREEMENT OF REORGANIZATION..............................................................................3
PLAN OF REORGANIZATION............................................................................................3
Agreement......................................................................................................3
Section 1 - Transfer of Shares..............................................................................3
Section 2 - Issuance of Exchange Stock to WALLSTREET Stockholders...........................................3
Section 3 - Closing.........................................................................................4
Section 4 - Representations and Warranties by WALLSTREET and Certain Stockholders...........................7
Section 5 - Representations and Warranties by FMG..........................................................11
Section 6 - Access and Information.........................................................................15
Section 7 - Covenants of WALLSTREET and Certain Stockholders..............................................14
Section 8 - Covenants of WALLSTREET........................................................................17
Section 9 - Additional Covenants of the Parties............................................................17
Section 10 - Non-Survival of Representations, Warranties and Covenants.....................................19
Section 11 - Conditions Precedent to Obligations of Parties................................................18
Section 12 - Termination, Amendment, Waiver................................................................23
Section 13 - Miscellaneous.................................................................................23
EXHIBIT LIST.....................................................................................................28
SCHEDULE LIST....................................................................................................28
2
PLAN AND AGREEMENT OF REORGANIZATION
This Plan and Agreement of Reorganization ("Agreement") is entered into on
this 19th day of September 2005 by and between FINANCIAL MEDIA GROUP, INC.,
f/k/a Giant Jr. Investments Corp., a Nevada corporation ("FMG"), and WALLSTREET
DIRECT INC., a Nevada Corporation ("WALLSTREET"), and those persons listed in
Exhibit "A" hereto, being all of the Stockholders of WALLSTREET who own
individually at least ten percent (10%) of the outstanding shares of
WALLSTREET's common stock and together hold over fifty percent (50%) of the
outstanding common stock of WALLSTREET as of the date this Agreement is
executed.
PLAN OF REORGANIZATION
The transaction contemplated by this Agreement is intended to be a
qualified Type "B" reorganization pursuant to Internal Revenue Code Section
ss.368, and conforming California and Nevada provisions. FMG will acquire up to
100% of WALLSTREET's issued and outstanding common stock in exchange for up to
20,000,000 shares of FMG's common stock, $.001 par value (the "Exchange Stock").
Upon the consummation of the exchange transaction and the issuance and transfer
of the Exchange Stock as set forth in Section 2 hereinbelow, WALLSTREET's
Stockholders would hold approximately eighty-two percent (82%) of the then
outstanding common stock of FMG representing a controlling interest in FMG. The
Exchange Transaction will result in WALLSTREET becoming a wholly-owned
subsidiary of FMG.
AGREEMENT
Section 1
TRANSFER OF SHARES
1.1 All Stockholders of WALLSTREET (the "Stockholder" or the "WALLSTREET
Stockholders"), as of the date of Closing as such term is defined in
Section 3 herein (the "Closing" or the "Closing Date"), shall transfer,
assign, convey and deliver to FMG on the Closing Date, certificates
representing one hundred percent (100%) of the issued and outstanding
WALLSTREET common stock or such lesser percentage as shall be acceptable
to FMG, but in no event less than ninety-two percent (92%) of the issued
and outstanding WALLSTREET common stock. The transfer of the WALLSTREET
Stockholder common stock shall be made free and clear of all liens,
mortgages, pledges, encumbrances or charges, whether disclosed or
undisclosed, except as the WALLSTREET Stockholder and FMG shall have
otherwise agreed in writing.
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Section 2
ISSUANCE OF EXCHANGE STOCK TO WALLSTREET STOCKHOLDER
2.1 As consideration for the transfer, assignment, conveyance and delivery of
the WALLSTREET Stockholder common stock hereunder, FMG shall, at the
Closing issue to the WALLSTREET Stockholder, pro rata in accordance with
each Stockholder's percentage ownership of WALLSTREET immediately prior to
the Closing, certificates representing up to 20,000,000 shares of FMG
common stock. The parties intend that the Exchange Shares being issued
will be used to acquire all outstanding WALLSTREET common stock. To the
extent that less than 100% of the WALLSTREET common stock Interests are
acquired, the number of shares issuable to those WALLSTREET Stockholders
who have elected to participate in the exchange described in this
Agreement shall increase proportionately.
2.2 The issuance of the Exchange Stock shall be made free and clear of all
liens, mortgages, pledges, encumbrances or charges, whether disclosed or
undisclosed, except as the WALLSTREET Stockholder and FMG shall have
otherwise agreed in writing. As provided herein, and immediately prior to
the Closing, FMG shall have issued and outstanding: (i) not more than
4,394,529 shares of common stock; and (ii) shall have no preferred stock
or other securities issued and outstanding.
2.3 None of the Exchange Stock issued to the WALLSTREET Stockholder, nor any
of the WALLSTREET common stock transferred to FMG hereunder shall, at the
time of Closing, be registered under federal securities laws but, rather,
shall be issued pursuant to an exemption therefrom and be considered
"restricted stock" within the meaning of Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Act"). All of such shares shall
bear a legend worded substantially as follows:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933 (the "Act") and are `restricted
securities' as that term is defined in Rule 144 under the Act. The
shares may not be offered for sale, sold or otherwise transferred
except pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of
the Company."
The respective transfer agents of FMG and WALLSTREET Stockholder shall
annotate their records to reflect the restrictions on transfer embodied in
the legend set forth above. There shall be no requirement that FMG
register the Exchange Stock under the Act, nor shall WALLSTREET or the
Stockholder be required to register any WALLSTREET common stock under the
Act.
2.4 At the Closing, each outstanding warrant to purchase WALLSTREET common
stock, whether or not then exercisable, shall be converted into a warrant
to purchase ( in substitution for each share of WALLSTREET common stock
subject to a WALLSTREET warrant) one (1) share of FMG Common Stock for
every one (1) share of WALLSTREET common stock said warrant was
exercisable for, on terms and conditions substantially and materially
similar to the terms and conditions of said warrant prior to conversion.
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Section 3
CLOSING
3.1 Closing of Transaction. Subject to the fulfillment or waiver of the
conditions precedent set forth in Section 11 hereof, the Closing shall
take place on the Closing Date at the offices of FMG, 0000 Xxxx Xxxxxx,
Xxxxx 000, Xxxxxx Xxxxxxxxxx 00000, at 10:00 A.M., local time, or at such
other time on the Closing Date as WALLSTREET and FMG may mutually agree in
writing.
3.2 Closing Date. The Closing Date of the Exchange shall take place on a date
chosen by mutual agreement of WALLSTREET and FMG within sixty (60) days
from the date of this Agreement, or such later date upon which WALLSTREET
and FMG may mutually agree in writing, or as extended pursuant to
subsection 12.1(b) hereinbelow.
3.3 Deliveries at Closing.
(a) WALLSTREET shall deliver or cause to be delivered to FMG at Closing:
(1) Certificates representing all shares, or an amount of shares
acceptable to FMG, of the WALLSTREET Stockholder's common
stock as described in Section 1, each endorsed in blank by the
registered owner;
(2) An agreement from each Stockholder surrendering his or her
shares agreeing to a restriction on the transfer of the
Exchange Stock as described in Section 2 hereof;
(3) A copy of a consent of WALLSTREET's board of directors
authorizing WALLSTREET to take the necessary steps toward
Closing the transaction described by this Agreement in the
form set forth in Exhibit B;
(4) A copy of a Certificate of Good Standing for WALLSTREET issued
not more than thirty (30) days prior to Closing by the Nevada
Secretary of State;
(5) An opinion of Xxxxx Xxx Xxxxxx, Esq., special counsel to
WALLSTREET, dated the Closing Date, in a form deemed
acceptable by FMG and its counsel;
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(6) Articles of Incorporation and Bylaws of WALLSTREET certified
as of the Closing Date by the President and Secretary of
WALLSTREET; and
(7) Such other documents, instruments or certificates as shall be
reasonably requested by FMG or its counsel.
(b) FMG shall deliver or cause to be delivered to WALLSTREET at Closing:
(1) A copy of a consent of FMG'S board of directors authorizing
FMG to take the necessary steps toward Closing the transaction
described by this Agreement in the form set forth in Exhibit
C;
(2) A copy of a Certificate of Good Standing for FMG issued not
more than ten (10) days prior to Closing by the Secretary of
State of Nevada;
(3) All of FMG'S corporate records;
(4) Stock certificate(s) or a computer listing from FMG's transfer
agent representing the Exchange Stock to be newly issued by
FMG under this Agreement, which certificates shall be in the
names of the appropriate WALLSTREET Stockholders, each in the
appropriate denomination as described in Section 2;
(5) An opinion of Stone, Xxxxxxxxxx & Cha, counsel to FMG, dated
the Closing Date, in a form deemed acceptable by WALLSTREET
and its counsel;
(6) Articles of Incorporation and Bylaws of FMG certified as of
the Closing Date by the President and Secretary of FMG;
(7) Such other documents, instruments or certificates as shall be
reasonably requested by WALLSTREET or its counsel.
3.4 Filings; Cooperation.
(a) Prior to the Closing, the parties shall proceed with due diligence
and in good faith to make such filings and take such other actions
as may be necessary to satisfy the conditions precedent set forth in
Section 11 below.
(b) On and after the Closing Date, FMG, WALLSTREET and the Stockholders
set forth in Exhibit "A" shall, on request and without further
consideration, cooperate with one another by furnishing or using
their best efforts to cause others to furnish any additional
information and/or executing and delivering or using their best
efforts to cause others to execute and deliver any additional
documents and/or instruments, and doing or using their best efforts
to cause others to do any and all such other things as may be
reasonably required by the parties or their counsel to consummate or
otherwise implement the transactions contemplated by this Agreement.
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Section 4
REPRESENTATIONS AND WARRANTIES BY
WALLSTREET AND CERTAIN STOCKHOLDERS
4.1 Subject to the schedule of exceptions, attached hereto and incorporated
herein by this reference, (which schedules shall be acceptable to FMG),
WALLSTREET and those Stockholders listed on Exhibit "A" represent and
warrant to FMG as follows:
(a) Organization and Good Standing of WALLSTREET. The Articles of
Incorporation of WALLSTREET and all Amendments thereto as presently
in effect, and the Bylaws of WALLSTREET as presently in effect, both
of which shall be certified by the President and Secretary of
WALLSTREET, have been delivered to FMG and are complete and correct
and since the date of such delivery, there has been no amendment,
modification or other change thereto.
(b) Capitalization. WALLSTREET's authorized capital consists of
100,000,000 shares of common stock of which, as of the date hereof,
42,375,000 are issued and outstanding and held of record by
approximately fifty-four (54) persons, who are currently residents
of one of the following jurisdictions: CA, NC, MN, WA, FL, TX, UT,
NV, IL, CO, VI, NM, MD, AR, NJ, PA, CN, MI. All such outstanding
Shares are validly issued, paid and non-assessable. In addition,
there are issued and outstanding Class A and Class B Warrants to
purchase 2,375,000 shares and 2,375,000 shares, respectively, of
WALLSTREET common stock. There are no other outstanding securities
including options and warrants. All securities issued by WALLSTREET
as of the date of this Agreement have been issued in compliance with
all applicable state and federal laws. Except as set forth in
Schedule 4.1(b), no other equity securities or debt obligations of
WALLSTREET are authorized, issued or outstanding. The total number
of issued and outstanding common stock, Class A Warrants and Class B
Warrants that will be issued and outstanding as of the Closing Date
shall not exceed 50,000,000 shares, 10,000,000 Class A Warrants and
10,000,000 Class B Warrants, respectively.
(c) Subsidiaries. Other than as set forth in Schedule 4.1 (c),
WALLSTREET has no subsidiaries and no other investments, directly or
indirectly, or other financial interest in any other corporation or
business organization, joint venture or partnership of any kind
whatsoever.
(d) Financial Statements. WALLSTREET will deliver to FMG, prior to
Closing, a copy of WALLSTREET's audited, financial statements for
the years ended December 31, 2003 and 2004, and unaudited financial
statements for the six (6) months ended June 30, 2005, if required,
which will be true and complete and will have been prepared in
conformity with generally accepted accounting principles. Other than
changes in the usual and ordinary conduct of the business since June
30, 2005, and the sale of up to 10,000,000 Units, for a total
consideration of up to $2,500,000 pursuant to a private placement,
there have been and, at the Closing Date, there will be no material
adverse changes in such financial statements.
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(e) Absence of Undisclosed Liabilities. WALLSTREET has no liabilities
which are not adequately reflected or reserved against in the
WALLSTREET Financial Statements or otherwise reflected in this
Agreement and WALLSTREET shall not have as of the Closing Date, any
liabilities (secured or unsecured and whether accrued, absolute,
direct, indirect or otherwise) which were incurred after June 30,
2005, and would be individually or in the aggregate, material to the
results of operations or financial condition of WALLSTREET as of the
Closing Date.
(f) Litigation. Except as disclosed in Schedule 4.1(f), there are no
outstanding orders, judgments, injunctions, awards or decrees of any
court, governmental or regulatory body or arbitration tribunal
against WALLSTREET or its properties. Except as disclosed in
Schedule 4.1(f), there are no actions, suits or proceedings pending,
or, to the knowledge of WALLSTREET, threatened against or affecting
WALLSTREET or its affiliated companies, any of its officers or
directors relating to their positions as such, or any of its
properties, at law or in equity, or before or by any federal, state,
municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, in
connection with the business, operations or affairs of WALLSTREET or
its affiliated company which might result in any material adverse
change in the operations or financial condition of WALLSTREET, or
which might prevent or materially impede the consummation of the
transactions under this Agreement.
(g) Compliance with Laws. To the best of its knowledge, the operations
and affairs of WALLSTREET do not violate any law, ordinance, rule or
regulation currently in effect, or any order, writ, injunction or
decree of any court or governmental agency, the violation of which
would substantially and adversely affect the business, financial
conditions or operations of WALLSTREET.
(h) Absence of Certain Changes. Except as set forth in Schedule 4.1(h),
or otherwise disclosed in writing to FMG, since June 30, 2005,
(i) WALLSTREET has not entered into any material transaction;
(ii) There has been no change in financial or other condition,
business, property, prospects, assets or liabilities of
WALLSTREET as shown on the WALLSTREET Financial Statement,
other than changes that both individually and in the aggregate
do not have a consequence that is materially adverse to such
condition, business, property, prospects, assets or
liabilities;
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(iii) There has been no damage to, destruction of or loss of any of
the properties or assets of WALLSTREET (whether or not covered
by insurance) materially and adversely affecting the financial
or other condition, business, property, prospects, assets or
liabilities of WALLSTREET;
(iv) WALLSTREET has not declared, or paid any dividend or made any
distribution on its capital stock, redeemed, purchased or
otherwise acquired any of its capital stock, granted any
options to purchase shares of its stock, or issued any shares
of its capital stock except in conjunction with the private
placement described in Schedule 4.1(h);
(v) There has been no material change, except in the ordinary
course of business, in the contingent obligations of
WALLSTREET by way of guaranty, endorsement, indemnity, and
warranty or otherwise;
(vi) There have been no loans made by WALLSTREET to its employees,
officers or directors;
(vii) There has been no waiver or compromise by WALLSTREET of a
valuable right or of a material debt owed to it;
(viii) There has been no extraordinary increase in the compensation
of any of WALLSTREET's employees;
(ix) There has been no agreement or commitment by WALLSTREET to do
or perform any of the acts described in this Section 4.1(h);
and
(x) There has been no other event or condition of any character,
which might reasonably be expected either to result in a
material and adverse change in the condition (financial or
otherwise), business, property, prospects, assets or
liabilities of WALLSTREET or to impair materially the ability
of WALLSTREET to conduct the business now being conducted.
(i) Employees. There are, except as disclosed in Schedule 4.1(i), no
collective bargaining, bonus, profit sharing, compensation, or other
plans, agreements or arrangements between WALLSTREET and any of its
directors, officers or employees. Employee agreements will be
supplied at the closing.
(j) Assets. All of the assets reflected on the June 30, 2005, WALLSTREET
Financial Statements or acquired and held as of the Closing Date,
will be owned by WALLSTREET on the Closing Date. Except as set forth
in Schedule 4.1(j), WALLSTREET owns outright and has good and
marketable title, or holds valid and enforceable leases, to all of
such assets. None of WALLSTREET's equipment used by WALLSTREET in
connection with its business has any material defects and all of
them are in all material respects in good operating condition and
repair, and are adequate for the uses to which they are being put;
none of WALLSTREET's equipment is in need of maintenance or repairs,
except for ordinary, routine maintenance and repair. WALLSTREET
represents that, except to the extent disclosed in Schedule 4.1(j)
to this Agreement or reserved against on its balance sheet as of
June 30, 2005, it is not aware of any accounts and contracts
receivable existing that in its judgment would be uncollectible.
9
(k) Tax Matters. All federal, foreign, state and local tax returns,
reports and information statements required to be filed by or with
respect to the activities of WALLSTREET have been timely filed.
Since June 30, 2005, WALLSTREET has not incurred any liability with
respect to any federal, foreign, state or local taxes except in the
ordinary and regular course of business. Such returns, reports and
information statements are true and correct in all material respects
insofar as they relate to the activities of WALLSTREET. On the date
of this Agreement, WALLSTREET is not delinquent in the payment of
any such tax or assessment, and no deficiencies for any amount of
such tax have been proposed or assessed.
(l) Operating Authorities. To the best knowledge of WALLSTREET,
WALLSTREET has all material operating authorities, governmental
certificates and licenses, permits, authorizations and approvals
("Permits") required to conduct its business as presently conducted.
Such Permits are set forth on Schedule 4.1(l). Since WALLSTREET's
inception, there has not been any notice or adverse development
regarding such Permits; such Permits are in full force and effect;
no material violations are or have been recorded in respect of any
permit; and no proceeding is pending or threatened to revoke or
limit any Permit.
(m) Continuation of Key Management. To the best knowledge of WALLSTREET,
all key management personnel of WALLSTREET intend to continue their
employment with WALLSTREET after the Closing.
(n) Books and Records. The books and records of WALLSTREET are complete
and correct, are maintained in accordance with good business
practice and accurately present and reflect, in all material
respects, all of the transactions therein described, and there have
been no transactions involving WALLSTREET which properly should have
been set forth therein and which have not been accurately so set
forth.
(o) Authority to Execute Agreement. The Board of Directors of
WALLSTREET, pursuant to the power and authority legally vested in
it, has duly authorized the execution and delivery by WALLSTREET of
this Agreement, and has duly authorized each of the transactions
hereby contemplated. WALLSTREET has the power and authority to
execute and deliver this Agreement, to consummate the transactions
hereby contemplated and to take all other actions required to be
taken by it pursuant to the provisions hereof. WALLSTREET has taken
all actions required by law, its Articles of Incorporation, as
amended, or otherwise to authorize the execution and delivery of
this Agreement. This Agreement is valid and binding xxxx XXXXXXXXXX
and those stockholders listed in Exhibit "A" hereto in accordance
with its terms. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will
constitute a violation or breach of the Articles of Incorporation,
as amended, or the Bylaws, as amended, of WALLSTREET, or any
agreement, stipulation, order, writ, injunction, decree, law, rule
or regulation applicable to WALLSTREET.
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(p) Finder's Fees. WALLSTREET is not, and on the Closing Date will not
be liable or obligated to pay any finder's, agent's or broker's fee
arising out of or in connection with this Agreement or the
transactions contemplated by this Agreement.
4.2 Disclosure. At the date of this Agreement, WALLSTREET and those
Stockholders listed in Exhibit "A" have, and at the Closing Date they will
have, disclosed all events, conditions and facts materially affecting the
business and prospects of WALLSTREET. WALLSTREET and such Stockholders
have not now and will not have at the Closing Date, withheld knowledge of
any such events, conditions or facts which they know, or have reasonable
grounds to know, may materially affect WALLSTREET's business and
prospects. Neither this Agreement nor any certificate, exhibit, schedule
or other written document or statement, furnished to FMG by WALLSTREET
and/or by such Stockholders in connection with the transactions
contemplated by this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary to be stated in order to make the statements contained
herein or therein not misleading.
Section 5
REPRESENTATIONS AND WARRANTIES BY FMG
5.1 Subject to the schedule of exceptions, attached hereto and incorporated
herein by this reference, (which schedules shall be acceptable to
WALLSTREET), FMG represents and warrants to WALLSTREET and those
Stockholders listed in Exhibit "A" as follows:
(a) Organization and Good Standing. FMG is currently a corporation duly
organized, validly existing and in good standing under the laws of
the State of Nevada and has full corporate power and authority to
own or lease its properties and to carry on its business as now
being conducted and as proposed to be conducted. FMG is qualified to
conduct business as a foreign corporation in no other jurisdiction,
and the failure to so qualify in any other jurisdiction does not
materially, adversely affect the ability of FMG to carry on its
business as most recently conducted. The Articles of Incorporation
of FMG and all amendments thereto as presently in effect, and the
Bylaws of FMG as presently in effect, both of which shall be
certified by the President and Secretary of FMG, have been delivered
to WALLSTREET and are complete and correct and since the date of
such delivery, there has been no amendment, modification or other
change thereto.
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(b) Capitalization. FMG's authorized capital stock consists of
300,000,000 shares of $.001 par value Common stock, defined above as
"FMG Common Stock", of which not more than 4,394,529, will be issued
and outstanding, prior to Closing Date and held of record by
approximately 454 shareholders. Except as set forth in Schedule
5.1(b), no other equity securities or debt obligations of FMG are
authorized, issued or outstanding and as of the Closing, there will
be no other outstanding options, warrants, agreements, contracts,
calls, commitments or demands of any character, preemptive or
otherwise, other than this Agreement, relating to any of the FMG
Common Stock, and there will be no outstanding security of any kind
convertible into FMG Common Stock. The shares of FMG Common Stock
are free and clear of all liens, charges, claims, pledges,
restrictions and encumbrances whatsoever of any kind or nature that
would inhibit, prevent or otherwise interfere with the transactions
contemplated hereby. All of the outstanding FMG Common Stock are
validly issued, fully paid and nonassessable and there are no voting
trust agreements or other contracts, agreements or arrangements
restricting or affecting voting or dividend rights or
transferability with respect to the outstanding shares of FMG Common
Stock.
(c) Issuance of Exchange Stock. All of the FMG Common Stock to be issued
to or transferred to WALLSTREET Stockholder pursuant to this
Agreement, when issued, transferred and delivered as provided
herein, will be duly authorized, validly issued, fully paid and
nonassessable, and will be free and clear of all liens, charges,
claims, pledges, restrictions and encumbrances whatsoever of any
kind or nature, except those restrictions imposed by State or
Federal corporate and securities regulations.
(d) No Violation. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby nor
compliance by FMG with any of the provisions hereof will:
(1) Violate or conflict with, or result in a breach of any
provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a
default) under, any of the terms, conditions or provisions of
the Articles of Incorporation or Bylaws of FMG or any note,
bond, mortgage, indenture, deed of trust, license, agreement
or other instrument to which FMG is a party, or by which it or
its properties or assets may be bound or affected; or
(2) Violate any order, writ, injunction or decree, or any statute,
rule, permit, or regulation applicable to FMG or any of its
properties or assets.
(e) Subsidiaries. Except as set forth in Schedule 5.1 (e), FMG has no
subsidiaries and no investments, directly or indirectly, or other
financial interest in any other corporation or business
organization, joint venture or partnership of any kind whatsoever.
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(f) Financial Statements. FMG will deliver to WALLSTREET prior to
Closing, copies of all of FMG's audited and unaudited financial
statements for the past three years through August 31, 2005, all of
which are true and complete and have been prepared in accordance
with generally accepted accounting principles.
(g) Absence of Certain Changes. Since August 31, 2005 there has been no
material change in FMG's financial conditions, assets or
liabilities, except as set forth in Schedule 5.1(g).
(h) Absence of Undisclosed Liabilities. Except as disclosed in FMG's
Financial Statements or as set forth in Schedule 5.1 (h), FMG did
not have, as of the Closing Date, any liabilities (secured or
unsecured and whether accrued, absolute, direct, indirect or
otherwise) which were incurred after August 31, 2005, and would be
individually or in the aggregate, material to the results of
operation or financial condition of FMG.
(i) Litigation. There are no outstanding orders, judgments, injunctions,
awards or decrees of any court, governmental or regulatory body or
arbitration tribunal against FMG or its properties. There are no
actions, suits or proceedings pending, or, to the knowledge of FMG,
threatened against or relating to FMG. FMG is not, and on the
Closing Date will not be, in default under or with respect to any
judgment, order, writ, injunction or decree of any court or of any
federal, state, municipal or other governmental authority,
department, commission, board, agency or other instrumentality; and
FMG has, and on the Closing Date will have, complied in all material
respects with all laws, rules, regulations and orders applicable to
it, if any.
(j) Contracts. FMG is not a party to any written or oral commitment for
capital expenditures except as contemplated by this Agreement. FMG
is not a party to, nor is its property bound by any written or oral,
express or implied, agreement, contract or other contractual
obligation including, without limitation, any real or personal
property leases, any employment agreements, any consulting
agreements any personal services agreements or any other agreements
that require FMG to pay any money or deliver any assets or services.
FMG has in all material respects performed all obligations required
to be performed by it to date and is not in default in any material
respect under any agreements or other documents to which it was a
party.
(k) Tax Matters. Except as set forth in Schedule 5.1(k), all federal,
foreign, state and local tax returns, reports and information
statements required to be filed by or with respect to the activities
of FMG have been filed for all the years and periods for which such
returns and statements were due, including extensions thereof. Since
August 31, 2005, FMG has not incurred any liability with respect to
any federal, foreign, state or local taxes except in the ordinary
and regular course of business. Such returns, reports and
information statements are true and correct in all material respects
insofar as they relate to the activities of FMG. On the date of this
Agreement, FMG is not delinquent in the payment of any such tax or
assessment, and no deficiencies for any amount of such tax have been
proposed or assessed. Any tax sharing agreement among or between FMG
and any affiliate thereof shall be terminated as of the Closing
Date.
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(l) Authority to Execute Agreement. The Board of Directors of FMG,
pursuant to the power and authority legally vested in it, has duly
authorized the execution and delivery by FMG of this Agreement and
the Exchange Stock, and has duly authorized each of the transactions
hereby contemplated. FMG has the power and authority to execute and
deliver this Agreement, to consummate the transactions hereby
contemplated and to take all other actions required to be taken by
it pursuant to the provisions hereof. FMG has taken all the actions
required by law, its Certificate of Incorporation, as amended, its
Bylaws, as amended, applicable state law or otherwise to authorize
the execution and delivery of the Exchange Stock pursuant to the
provisions hereof. This Agreement is valid and binding upon FMG in
accordance with its terms.
(m) Finder's Fees. FMG is not, and on the Closing Date, will not be
liable or obligated to pay any finder's, agent's or broker's fee
arising out of or in connection with this Agreement or the
transactions contemplated by this Agreement.
(n) Books and Records. The books and records of FMG are complete and
correct, are maintained in accordance with good business practice
and accurately present and reflect in all material respects, all of
the transactions therein described and there have been no
transactions involving FMG which properly should have been set forth
therein and which have not been accurately so set forth.
5.2 Disclosure. FMG has and at the Closing Date it will have, disclosed all
events, conditions and facts materially affecting the business and
prospects of FMG. FMG has not now and will not have at the Closing Date,
withheld knowledge of any such events, conditions and facts which it
knows, or has reasonable grounds to know, may materially affect FMG's
business and prospects. Neither this Agreement, nor any certificate,
exhibit, schedule or other written document or statement, furnished to
WALLSTREET or the WALLSTREET Stockholders by FMG in connection with the
transactions contemplated by this Agreement contains or will contain any
untrue statement of a material fact or omits or will omit to state a
material fact necessary to be stated in order to make the statements
contained herein or therein not misleading.
14
Section 6
ACCESS AND INFORMATION
6.1 As to WALLSTREET. Subject to the protections provided by subsection 9.4
herein, WALLSTREET shall give to FMG and to FMG's counsel, accountants and
other representatives full access during normal business hours throughout
the period prior to the Closing, to all of WALLSTREET's properties, books,
contracts, commitments, and records, including information concerning
products and customer base, and patents held by, or assigned to,
WALLSTREET, and furnish FMG during such period with all such information
concerning WALLSTREET's affairs as FMG reasonably may request.
6.2 As to FMG. Subject to the protections provided by subsection 9.4 herein,
FMG shall give to WALLSTREET, the WALLSTREET Stockholders and their
counsel, accountants and other representatives, full access, during normal
business hours throughout the period prior to the Closing, to all of FMG's
properties, books, contracts, commitments, and records, if any, and shall
furnish WALLSTREET and the WALLSTREET Stockholders during such period with
all such information concerning FMG's affairs as WALLSTREET and the
WALLSTREET Stockholders reasonably may request.
Section 7
COVENANTS OF WALLSTREET
AND CERTAIN STOCKHOLDERS
7.1 No Solicitation. For a period of sixty (60) days from the date of this
Agreement, WALLSTREET and those Stockholders listed on Exhibit "A", to the
extent within each Stockholder's control, will use their best efforts to
cause its officers, employees, agents and representatives not, directly or
indirectly, to solicit, encourage, or initiate any discussions with, or
indirectly to solicit, encourage, or initiate any discussions with, to,
any person or entity other than FMG and its officers, employees, and
agents, concerning any merger, sale of substantial assets, or similar
transaction involving WALLSTREET, or any sale of any of its common stock
or of the common stock held by such Stockholder in excess of fifty percent
(50%) of such Stockholder's current stock holdings except as otherwise
disclosed in this Agreement. WALLSTREET will notify FMG immediately upon
receipt of an inquiry, offer, or proposal relating to any of the
foregoing. None of the foregoing shall prohibit providing information to
others in a manner in keeping with the ordinary conduct of WALLSTREET
business, or providing information to government authorities.
7.2 Conduct of Business Pending the Transaction. WALLSTREET and those
Stockholders listed on Exhibit "A", to the extent within each
Stockholder's control, covenant and agree with FMG that, prior to the
consummation of the transaction called for by this Agreement, and Closing,
or the termination of this Agreement pursuant to its terms, unless FMG
shall otherwise consent in writing, and except as otherwise contemplated
by this Agreement, WALLSTREET and those Stockholders listed on Exhibit
"A", to the extent within each WALLSTREET Stockholder control, will comply
with each of the following:
15
(a) Its business shall be conducted only in the ordinary and usual
course. WALLSTREET shall use reasonable efforts to keep intact its
business organization and good will, keep available the services of
its respective officers and employees, and maintain good relations
with suppliers, creditors, employees, customers, and others having
business or financial relationships with it, and it shall
immediately notify FMG of any event or occurrence which is material
to, and not in the ordinary and usual course of business of
WALLSTREET.
(b) It shall not (i) amend its Articles of Incorporation or Bylaws or
(ii) split, combine, or reclassify any of its outstanding
securities, or declare, set aside, or pay any dividend or other
distribution on, or make or agree or commit to make any exchange for
or redemption of any such securities payable in cash, stock or
property.
(c) Other than as set forth in it's Private Placement Memorandum dated
June 17, 2005 or any amendments thereof, WALLSTREET shall not (i)
issue or agree to issue any additional securities or rights of any
kind to acquire any securities, or (ii) enter into any contract,
agreement, commitment, or arrangement with respect to any of the
foregoing, except as set forth in this Agreement.
(d) It shall not create, incur, or assume any long-term or short-term
indebtedness for money borrowed or make any capital expenditures or
commitment for capital expenditures, except in the ordinary course
of business and consistent with past practice.
(e) It shall not (i) adopt, enter into, or amend any bonus, profit
sharing, compensation, stock option, warrant, pension, retirement,
deferred compensation, employment, severance, termination or other
employee benefit plan, agreement, trust fund, or arrangement for the
benefit or welfare of any officer, director, or employee, or (ii)
agree to any material (in relation to historical compensation)
increase in the compensation payable or to become payable to, or any
increase in the contractual term of employment of, any officer,
director or employee except, with respect to employees who are not
officers or directors, in the ordinary course of business in
accordance with past practice, or with the written approval of FMG.
(f) It shall not sell lease, mortgage, encumber, or otherwise dispose of
or grant any interest in any of its assets or properties except for:
(i) sales, encumbrances, and other dispositions or grants in the
ordinary course of business and consistent with past practice; (ii)
liens for taxes not yet due; (iii) liens or encumbrances that are
not material in amount or effect and do not impair the use of the
property, or (iv) as specifically provided for or permitted in this
Agreement.
16
(g) It shall not enter into any agreement, commitment, or understanding,
whether in writing or otherwise, with respect to any of the matters
referred to in subparagraphs (a) through (f) above.
(h) It will continue properly and promptly to file when due all federal,
state, local, foreign, and other tax returns, reports, and
declarations required to be filed by it, and will pay, or make full
and adequate provision for the payment of, all taxes and
governmental charges due from or payable by it.
(i) It will comply with all laws and regulations applicable to it and
its operations.
Section 8
COVENANTS OF FMG
8.1 No Solicitation. For a period of sixty (60) days from the date of this
Agreement, FMG will not discuss or negotiate with any other corporation,
firm or other person or entertain or consider any inquiries or proposals
relating to the possible disposition of its shares of capital stock, or
its assets, and will conduct business only in the ordinary course.
Notwithstanding the foregoing, FMG shall be free to engage in activities
mentioned in the preceding sentence, which are designed to further the
mutual interests of the parties to this Agreement.
8.2 Conduct of FMG Pending Closing. FMG covenants and agrees with WALLSTREET
that, prior to the consummation of the transactions called for by this
Agreement, and Closing, or the termination of this Agreement pursuant to
its terms, unless WALLSTREET shall otherwise consent in writing, and
except as otherwise contemplated by this Agreement, FMG will comply with
each of the following.
(a) No change will be made in FMG's Articles of Incorporation or Bylaws,
except for a name change, or in FMG's authorized or issued shares of
stock, except as contemplated in this Agreement or as may be first
approved in writing by WALLSTREET.
(b) No dividends shall be declared, no stock options granted and no
employment agreements shall be entered into with officers or
directors in FMG, except as may be first approved in writing by
WALLSTREET.
(c) It shall not (i) issue or agree to issue any additional shares of,
or rights of any kind to acquire any shares of its capital stock of
any class, or (ii) enter into any contract, agreement, commitment,
or arrangement with respect to any of the foregoing, except as set
forth in this Agreement.
(d) It shall not create, incur, or assume any long-term or short-term
indebtedness for money borrowed or make any capital expenditures or
commitment for capital expenditures, except in the ordinary course
of business and consistent with past practice.
17
(e) It shall not (i) adopt, enter into, or amend any bonus, profit
sharing, compensation, stock option, warrant, pension, retirement,
deferred compensation, employment, severance, termination or other
employee benefit plan, agreement, trust fund, or arrangement for the
benefit or welfare of any officer, director, or employee, or (ii)
agree to any material (in relation to historical compensation)
increase in the compensation payable or to become payable to, or any
increase in the contractual term of employment of, any officer,
director or employee except, with respect to employees who are not
officers or directors, in the ordinary course of business in
accordance with past practice, or with the written approval of FMG.
(f) It shall not sell lease, mortgage, encumber, or otherwise dispose of
or grant any interest in any of its assets or properties except for:
(i) sales, encumbrances, and other dispositions or grants in the
ordinary course of business and consistent with past practice; (ii)
liens for taxes not yet due; (iii) liens or encumbrances that are
not material in amount or effect and do not impair the use of the
property, or (iv) as specifically provided for or permitted in this
Agreement.
(g) It shall not enter into any agreement, commitment, or understanding,
whether in writing or otherwise, with respect to any of the matters
referred to in subparagraphs (a) through (f) above.
(h) It will continue properly and promptly to file when due all federal,
state, local, foreign, and other tax returns, reports, and
declarations required to be filed by it, and will pay, or make full
and adequate provision for the payment of, all taxes and
governmental charges due from or payable by it.
(i) It will comply with all laws and regulations applicable to it and
its operations.
Section 9
ADDITIONAL COVENANTS OF THE PARTIES
9.1 Cooperation. Both WALLSTREET and FMG will cooperate with each other and
their respective counsel, accountants and agents in carrying out the
transaction contemplated by this Agreement, and in delivering all
documents and instruments deemed reasonably necessary or useful by the
other party. Furthermore, both WALLSTREET and FMG shall collaborate on the
preparation and dissemination of an offer, which the Board of Directors of
WALLSTREET shall approve and recommend, to the WALLSTREET Stockholders, to
exchange their outstanding common stock of WALLSTREET for shares of FMG
Common Stock.
18
9.2 Expenses. Each of the parties hereto shall pay all of its respective costs
and expenses (including attorneys' and accountants' fees, costs and
expenses) incurred in connection with this Agreement and the consummation
of the transactions contemplated herein.
9.3 Publicity. Prior to the Closing, any written news releases or public
disclosure by either party pertaining to this Agreement shall be submitted
to the other party for its review and approval prior to such release or
disclosure, provided, however, that (a) such approval shall not be
unreasonably withheld, and (b) such review and approval shall not be
required of disclosures required to comply, in the judgment of counsel,
with federal or state securities or corporate laws or policies.
9.4 Confidentiality. While each party is obligated to provide access to and
furnish information in accordance with Section 6 herein, it is understood
and agreed that such disclosure and information subsequently obtained as a
result of such disclosures are proprietary and confidential in nature.
Each party agrees to hold such information in confidence and not to reveal
any such information to any person who is not a party to this Agreement,
or an officer, director or key employee thereof, and not to use the
information obtained for any purpose other than assisting in its due
diligence inquiry in conjunction with the transaction contemplated by this
Agreement. Upon request of any party, a confidentiality agreement,
acceptable to the disclosing party, will be executed by any person
selected to receive such proprietary information, prior to receipt of such
information.
Section 10
NON-SURVIVAL OF REPRESENTATIONS,
WARRANTIES AND COVENANTS
10.1 None of the representations, warranties, covenants and other agreements in
this Agreement or in any instrument delivered pursuant to this Agreement,
including any rights arising out of any breach of such representations,
warranties, covenants, agreements and other provisions, shall survive the
Effective Time, except for those covenants, agreements and other
provisions contained herein that by their terms apply or are to be
performed in whole or in part after the Effective Time and this Section
10.
Section 11
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARTIES
11.1 Conditions to Obligations of the Parties. The obligations of FMG,
WALLSTREET and those Stockholders listed in Exhibit "A" under this
Agreement shall be subject to the fulfillment, on or prior to the Closing,
of all conditions elsewhere herein set forth, including, but not limited
to, receipt by the appropriate party of all deliveries required by
Sections 4 and 5 herein, and fulfillment, prior to Closing, of each of the
following conditions:
19
(a) All representations and warranties made by WALLSTREET Stockholders
listed in Exhibit "A" and FMG in this Agreement shall be true and
correct in all material respects on and as of the Closing Date with
the same effect as if such representations and warranties had been
made on and as of the Closing Date.
(b) WALLSTREET Stockholders listed in Exhibit "A" and FMG shall have
performed or complied with all covenants, agreements and conditions
contained in this Agreement on their part required to be performed
or complied with at or prior to the Closing.
(c) All material authorizations, consents or approvals of any and all
governmental regulatory authorities necessary in connection with the
consummation of the transactions contemplated by this Agreement
shall have been obtained and be in full force and effect.
(d) The Closing shall not violate any permit or order, decree or
judgment of any court or governmental body having competent
jurisdiction and there shall not have been instituted any legal or
administrative action or proceeding to enjoin the transaction
contemplated hereby or seeking damages from any party with respect
thereto.
11.2 Conditions to Obligations of FMG. The obligations of FMG to consummate the
transactions contemplated herein are subject to satisfaction (or waiver by
it) of the following conditions:
(a) Each WALLSTREET Stockholder acquiring Exchange Stock will be
required, at Closing, to submit an agreement confirming that all the
Exchange Stock received will be acquired for investment and not with
a view to, or for sale in connection with, any distribution thereof,
and agreeing not to transfer any of the Exchange Stock for a period
of two years from the date of the Closing, except for those
transfers falling within the exemption from registration under the
Securities Act of 1933 and any applicable state securities laws,
which transfers do not constitute a public distribution of
securities, and in which the transferees execute an investment
letter in form and substance satisfactory to counsel for FMG. The
foregoing provision shall not prohibit the registration of those
shares at any time following the Closing. Each WALLSTREET
Stockholder acquiring Exchange Stock will be required to transfer to
FMG at the Closing his/her respective WALLSTREET Stock
Certificate(s), free and clear of all liens, mortgages, pledges,
encumbrances or changes, whether disclosed or undisclosed.
20
(b) All schedules, prepared by WALLSTREET shall be current or updated as
necessary as of the Closing Date.
(c) WALLSTREET shall have provided to FMG through December 31, 2004, all
audited financial statements prepared in accordance with generally
accepted accounting principles by independent accountants of
WALLSTREET. WALLSTREET shall also provide unaudited financial
statements for the six months ended June 30, 2005, as of a date
within thirty days of Closing, an update on any material change in
the aforementioned financial statements.
(d) Each party shall have received favorable opinions from the other
party's counsel on such matters in connection with the transactions
contemplated by this Agreement as are reasonable.
(e) If Stockholders of WALLSTREET, who in the aggregate own eight
percent (8%) or more of the outstanding WALLSTREET common stock,
dissent from the proposed share exchange, are unable or for any
reason refuse to transfer any or all of their WALLSTREET common
stock to FMG in accordance with Section 1 of this Agreement, FMG, at
its option, may terminate this Agreement.
(f) Each party shall have satisfied itself that since the date of this
Agreement the business of the other party has been conducted in the
ordinary course. In addition, each party shall have satisfied itself
that no withdrawals of cash or other assets have been made and no
indebtedness has been incurred since the date of this Agreement,
except in the ordinary course of business or with respect to
services rendered or expenses incurred in connection with the
Closing of this Agreement, unless said withdrawals or indebtedness
were either authorized by the terms of this Agreement or
subsequently consented to in writing by the parties.
(g) Each party covenants that, to the best of its knowledge, it has
complied or will comply in all material respects with all applicable
laws, orders and regulations of federal, state, municipal and/or
other governments and/or any instrumentality thereof, domestic or
foreign, applicable to their assets, to the business conducted by
them and to the transactions contemplated by this Agreement.
11.3 Conditions to Obligation of WALLSTREET and the WALLSTREET Stockholders.
The obligations of WALLSTREET and the WALLSTREET Stockholders listed in
Exhibit "A" to consummate the transactions contemplated herein are subject
to satisfaction (or waiver by them) of the following conditions:
(a) FMG shall have provided to WALLSTREET through August 31, 2005, all
audited financial statements prepared in accordance with generally
accepted accounting principles by independent accountants of FMG.
FMG shall also provide, as of a date within thirty days of Closing,
an update on any material change in the aforementioned financial
statements.
21
(b) Each party shall have granted to the other party (acting through its
management personnel, counsel, accountants or other representatives
designated by it) full opportunity to examine its books and records,
properties, plants and equipment, proprietary rights and other
instruments, rights and papers of all kinds in accordance with
Sections 4 and 5 hereof, and each party shall be satisfied to
proceed with the transactions contemplated by this Agreement upon
completion of such examination and investigation.
(c) FMG and WALLSTREET shall agree to indemnify each other party against
any liability to any broker or finder to which that party may become
obligated.
(d) The Exchange shall be approved by the Board of Directors of both
WALLSTREET and FMG. Furthermore, the Exchange shall be approved by
the stockholders of WALLSTREET and shareholders of FMG, if deemed
necessary or appropriate by counsel for the same, within sixty (60)
days following execution of this Agreement. If such a meeting is
deemed necessary, the management of WALLSTREET and FMG agree to
recommend approval to their respective Shareholders and to solicit
proxies in support of the same.
(e) FMG and WALLSTREET and their respective legal counsel shall have
received copies of all such certificates, opinions and other
documents and instruments as each party or its legal counsel may
reasonably request pursuant to this Agreement or otherwise in
connection with the consummation of the transactions contemplated
hereby, and all such certificates, opinions and other documents and
instruments received by each party shall be reasonably satisfactory,
in form and substance, to each party and its legal counsel.
(f) Both WALLSTREET and FMG shall have the right to waive any or all of
the conditions precedent to its obligations hereunder not otherwise
legally required; provided, however, that no waiver by a party of
any condition precedent to its obligations hereunder shall
constitute a waiver by such party of any other condition.
(g) FMG shall have obtained all necessary Blue Sky approvals or
exemptions for the issuance of the Exchange Stock required prior to
the Closing Date.
22
Section 12
TERMINATION, AMENDMENT, WAIVER
12.1 This Agreement may be terminated at any time prior to the Closing, and the
contemplated transactions abandoned, without liability to either party,
except with respect to the obligations of FMG, WALLSTREET and those
WALLSTREET Stockholders listed in Exhibit "A" under Section 9.4 hereof:
(a) By mutual agreement of FMG and WALLSTREET;
(b) If the Closing (as defined in Section 3) has not have taken place on
or prior to November 30,, 2005, this Agreement can be terminated
upon written notice given by FMG or WALLSTREET which is not in
material default;
(c) By FMG, if in its reasonable believe there has been a material
misrepresentation or breach of warranty on the part of any
Stockholder listed in Exhibit "A" in the representations and
warranties set forth in the Agreement.
(d) By WALLSTREET or a majority of those Stockholders listed in Exhibit
"A" (as measured by their equity interest) if, in the reasonable
belief of WALLSTREET or any such Stockholders, there has been a
material misrepresentation or breach of warranty on the part of FMG
in the representations and warranties set forth in the Agreement;
(e) By FMG if, in its opinion or that of its counsel, the Exchange does
not qualify for exemption from registration under applicable federal
and state securities laws, or qualification, if obtainable, cannot
be accomplished in FMG's opinion or that of its counsel, without
unreasonable expense or effort;
(f) By FMG or by a majority of those Stockholders listed in Exhibit "A"
(as measured by their equity interest) if either party shall
determine in its sole discretion that the Exchange has become
inadvisable or impracticable by reason of the institution or threat
by state, local or federal governmental authorities or by any other
person of material litigation or proceedings against any party [it
being understood and agreed that a written request by a governmental
authority for information with respect to the Exchange, which
information could be used in connection with such litigation or
proceedings, may be deemed to be a threat of material litigation or
proceedings regardless of whether such request is received before or
after the signing of this Agreement];
23
(g) By FMG if the business or assets or financial condition of
WALLSTREET, taken as a whole, have been materially and adversely
affected, whether by the institution of litigation or by reason of
changes or developments or in operations in the ordinary course of
business or otherwise; or, by a majority of those Stockholders
listed in Exhibit "A" (as measured by their equity interest) if the
business or assets or financial condition of FMG, taken as a whole,
have been materially and adversely affected, whether by the
institution of litigation or by reason of changes or developments or
in operations in the ordinary course of business or otherwise;
(h) By FMG if holders of eight percent (8%) or more of the WALLSTREET
common stock fail to tender their membership interests at the
Closing of the Exchange;
(i) By FMG or WALLSTREET if, in the opinion of FMG's independent
accountants, it should appear that the combined entity will not be
auditable to SEC accounting standards;
(j) By WALLSTREET if FMG fails to perform material conditions set forth
in Sub-Section 11.1 and 11.3 herein;
(k) By WALLSTREET if examination of FMG's books and records pursuant to
Section 5 herein uncovers a material deficiency;
(l) By FMG if WALLSTREET fails to perform material conditions set forth
in Sub-Section 11.1 and 11.2 herein; and
(m) By FMG if examination of WALLSTREET's books and records pursuant to
Section 4 herein uncovers a material deficiency.
12.2 No modification or amendment of any provision of this Agreement shall be
effective unless specifically made in writing and duly signed by the party
to be bound.
12.3 In the event of termination of this Agreement by either FMG or WALLSTREET
as provided in Section 12.1, this Agreement shall forthwith become void
and there shall be no liability or obligation on the part of any of the
parties or their respective officers or directors except with respect to
Section 9, which provisions shall survive such termination, and except
that, notwithstanding anything to the contrary contained in this
Agreement, neither FMG nor WALLSTREET shall be relieved or released from
any liabilities or damages arising out of its willful and material breach
of this Agreement.
24
Section 13
MISCELLANEOUS
13.1 Entire Agreement. This Agreement (including the Exhibits and Schedules
hereto) contains the entire agreement between the parties with respect to
the transactions contemplated hereby, and supersedes all negotiations,
representations, warranties, commitments, offers, contracts, and writings
prior to the date hereof. No waiver and no modification or amendment of
any provision of this Agreement shall be effective unless specifically
made in writing and duly signed by the party to be bound thereby.
13.2 Binding Agreement.
(a) This Agreement shall become binding upon the parties when, but only
when, it shall have been signed on behalf of all parties.
(b) Subject to the condition stated in subsection (a), above, this
Agreement shall be binding upon, and inure to the benefit of, the
respective parties and their legal representatives, successors and
assigns. This Agreement, in all of its particulars, shall be
enforceable by the means set forth in subsection 13.9 for the
recovery of damages or by way of specific performance and the terms
and conditions of this Agreement shall remain in full force and
effect subsequent to Closing and shall not be deemed to be merged
into any documents conveyed and delivered at the time of Closing. In
the event that subsection 13.9 is found to be unenforceable as to
any party for any reason or is not invoked by any party, and any
person is required to initiate any action at law or in equity for
the enforcement of this Agreement, the prevailing party in such
litigation shall be entitled to recover from the party determined to
be in default, all of its reasonable costs incurred in said
litigation, including attorneys' fees.
13.3 Stockholders Owning at Least Ten Percent (10%) of the Outstanding
Membership Common Stock of WALLSTREET. The Stockholders owning at least
10% of the outstanding common stock of WALLSTREET (see Exhibit "A" hereto)
are only executing this Agreement with respect to Sections 3.4, 4, 7, 9.4,
10, 11.1 and 11.3, 12.1(d and f ), 13.2, 13.3, 13.4, 13.8, and 13.9.
13.4 Counterparts. This Agreement may be executed in one or more counterparts,
each of which may be deemed an original, but all of which together, shall
constitute one and the same instrument.
13.5 Severability. If any provisions hereof are to be held invalid or
unenforceable by any court of competent jurisdiction or as a result of
future legislative action, such holding or action shall be strictly
construed and shall not affect the validity or effect or any other
provision hereof.
25
13.6 Assignability. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto; provided,
that neither this Agreement nor any right hereunder shall be assignable by
WALLSTREET or FMG without prior written consent of the other party.
13.7 Captions. The captions of the various Sections of this Agreement have been
inserted only for convenience of reference and shall not be deemed to
modify, explain, enlarge or restrict any of the provisions of this
Agreement.
13.8 Governing Law. The validity, interpretation and effect of this Agreement
shall be governed exclusively by the laws of the State of California.
13.9 Jurisdiction and Venue. Each party hereto irrevocably consents to the
jurisdiction and venue of the state or federal courts located in Orange
County, State of California, in connection with any action, suit,
proceeding or claim to enforce the provisions of this Agreement, to
recover damages for breach of or default under this Agreement, or
otherwise arising under or by reason of this Agreement. The prevailing
party may recover costs and reasonable attorney's fees.
13.10 Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and delivered in person or sent by
certified mail, postage prepaid and properly addressed as follows:
To WALLSTREET and WALLSTREET Stockholders:
Xxxxxx X. Xxxx, President
WALLSTREET DIRECT, INC.
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Fax (000) 000-0000
With a Copy to:
Xxxxx Xxx Xxxxxx, Esq.
00000 Xxx Xxxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Fax (000) 000-0000
26
To FMG:
Xxxxx Xxxxxxx, President
FINANCIAL MEDIA GROUP, INC.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Fax (000) 000-0000
With a Copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Stone, Xxxxxxxxxx & Cha
00000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, XX 00000
Fax (000) 000-0000
Any party may from time to time change its address for the purpose of
notices to that party by a similar notice specifying a new address, but no
such change shall be deemed to have been given until it is actually
received by the respective party hereto.
All notices and other communications required or permitted under this
Agreement which are addressed as provided in this Section 13.10 if
delivered personally, shall be effective upon delivery; and, if delivered
by mail, shall be effective three days following deposit in the United
States mail, postage prepaid.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
FINANCIAL MEDIA GROUP, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------
Xxxxx Xxxxxxx, President
WALLSTREET DIRECT, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------
Xxxxxx X. Xxxx, President
27
Exhibit List
Exhibit "A": Ten Percent Members of WALLSTREET Direct, Inc.
Exhibit "B": Consent of Board of Directors of WALLSTREET Direct, Inc.
Exhibit "C": Consent of Board of Directors of FINANCIAL MEDIA GROUP, INC.
Schedule List
Schedule 4.1(b): WALLSTREET DIRECT INC., Common Stock, Options and Warrants
Outstanding
Schedule 4.1(c): WALLSTREET DIRECT, INC. Subsidiaries
Schedule 4.1(f): Litigation Involving WALLSTREET DIRECT, INC.
Schedule 4.1(h): Absence of Certain Changes - WALLSTREET DIRECT, INC.
Schedule 4.1(i): WALLSTREET DIRECT INC., Employee Benefit Plans
Schedule 4.1(j): Asset Ownership Exceptions
Schedule 4.1(l): Operating Permits/Licenses
Schedule 5.1(b): FINANCIAL MEDIA GROUP, INC., STOCK, Options and Warrants
Outstanding or to be Outstanding
Schedule 5.1(e): FINANCIAL MEDIA GROUP, INC., Subsidiaries
Schedule 5.1 (g): FINANCIAL MEDIA GROUP, INC., Absence of Certain Changes
Schedule 5.1 (h): FINANCIAL MEDIA GROUP, INC., Absence of Undisclosed
Liabilities
Schedule 5.1(k): FINANCIAL MEDIA GROUP, INC., Tax Matters
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