SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit
10.1
SECOND
AMENDMENT TO
THIS
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the “Amendment”) is entered
into as of May 31, 2007, by and among FILTERING ASSOCIATES, INC., (“FAI”), a
Nevada corporation, and Xxxxx Xxxxx and Xxxxxx Xxxxxxx, individual stockholders
of FAI (the “FAI Stockholders”), on the one hand, and MATINEE MEDIA CORPORATION,
a Texas corporation (the “Company”), on the other hand.
BACKGROUND
A. FAI,
the
FAI Stockholders and the Company entered into an Agreement and Plan of Merger
(the “Agreement”) on April 13, 2006. All capitalized terms used herein have the
same meanings given to them in the Agreement.
B.
On
December 18, 2006, FAI, the FAI Stockholders and the Company entered into a
First Amendment to Agreement and Plan of Merger, amending the
Agreement.
C.
Each
of
FAI, the FAI Stockholders and the Company desires to amend the Agreement again
by entering into this Amendment.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereby agree as follows:
1.
Section
1.08 of the Agreement is hereby amended to read in its entirety as
follows:
“Stock
Cancellation.
On or
before the Closing, FAI shall cause to be cancelled 1,662,214 shares of the
outstanding FAI Common Stock held by certain of its stockholders who hold
restricted Common Stock and it shall transfer to such stockholders its existing
business and related assets and liabilities in consideration of the cancellation
of their FAI Common Stock. Such stockholders, by their signature below, agree
to
the cancellation of their stock as aforesaid and to the assumption of all
liabilities of the existing FAI business. After the cancellation of these
shares, the total outstanding shares of FAI Common Stock as of immediately
prior
to the Effective Time of the Merger shall not exceed 1,210,786
shares.”
2.
Section
2.01(b) of the Agreement is hereby amended to read in its entirety as
follows:
“Conversion
of Company Stock.
Except
as otherwise provided herein, each issued and outstanding share of Company
Stock
shall be converted into one share of Public FAI Common Stock (“Company Exchange
Ratio”). Certificates representing such number of shares of Company Stock shall
be exchanged for certificates representing an equal number of shares of Public
FAI Common Stock.”
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3.
Section
2.03(c) of the Agreement is hereby deleted in its entirety.
4.
The
last
sentence of Section 3.02(e) of the Agreement is hereby amended to read in its
entirety as follows:
“FAI
does
not have, and at the Effective Time of the Merger FAI will not have, any
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) which, individually or in the aggregate, exceed
$200,000.”
5.
Section
4.01(b) of the Agreement is hereby amended to read in its entirety as
follows:
“sell,
assign or otherwise transfer any of their assets, except for the sale of
Broadcast Licenses by the Company, as determined by its Board of Directors,
cancel or compromise any debts or claims relating to their assets, other than
for fair value, in the ordinary course of business, and consistent with past
practice, or declare, set aside or pay any dividend or distribution payable
in
cash, stock, property or otherwise (other than (A) a declaration and payment
by
the Company, so long as the appropriate amount of such dividends are held in
trust and paid to the holders of the FAI Common Stock if the Merger is
consummated, or (B) in connection with the cancellation of those shares of
common stock held by the FAI Stockholders specified in Section 1.08 of this
Agreement);”
6.
Section
5.01 of the Agreement is hereby amended to read in its entirety as
follows:
“Shareholder
Approvals.
FAI
will, as promptly as practicable following June 1, 2007, call, give notice
of,
convene and hold a meeting of its shareholders (the “Shareholders Meeting”) for
the purpose of obtaining the FAI Shareholder Approval. As soon as practicable
after the date of this Agreement, FAI shall file with the S.E.C. a registration
of Form S-4 (such registration statement, and any amendments or supplements
thereto, collectively, the “Merger Registration Statement”) covering the
issuance of Public FAI Common Stock to the holders of the Company Stock in
the
Merger. FAI shall use its best efforts to cause the Merger Registration
Statement to be declared effective under the Securities Act as promptly as
possible after the filing thereof, and shall cause the proxy statement included
in the Merger Registration Statement (the “Proxy Statement”) to be mailed to the
holders of the FAI Stock. FAI agrees to provide the Company and its counsel
with
any written or oral comments FAI or its counsel may receive from the S.E.C.
with
respect to the Merger Registration Statement promptly after the receipt of
such
comments. FAI shall also provide the Company and its counsel a reasonable
opportunity to review each of the filings relating to the Merger Registration
Statement prior to its filing with the S.E.C. or dissemination to the holders
of
the FAI Stock and to participate, including by way of discussions with the
S.E.C., in the response of FAI to such comments. The Company agrees to pay
all
reasonable out-of-pocket expenses incurred by FAI in connection with the Merger
Registration Statement. The Board of Directors of FAI will take all lawful
action to solicit such approval, including, without limitation, the timely
mailing of the Proxy Statement. At the Shareholders Meeting, the FAI
Shareholders will vote all FAI Stock held by them in favor of the adoption
and
approval of this Agreement, the Merger and the transactions contemplated hereby.
The Company will, as promptly as practicable following June 1, 2007, call,
give
notice of, convene and hold a meeting of its shareholders, or obtain the written
consent of the holders of at least two-thirds of the outstanding Company Stock,
for the purpose of obtaining the Company Shareholder Approval.”
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7.
Section
6.03(c) of the Agreement is hereby amended to read in its entirety as
follows:
“(c) Forgiveness
of Excess Liabilities.
FAI and
the FAI Shareholders shall have obtained for the benefit of Public FAI, prior
to
the Closing Date, the forgiveness or satisfaction of (i) sufficient liabilities
or obligations of FAI necessary so that the liabilities and obligations of
FAI
at the Effective Time of the Merger do not exceed the limitation of $200,000
set
forth in Section 3.02(e) of this Agreement.”
8.
Section
7.01(c) of the Agreement is hereby amended to read in its entirety as
follows:
“(c) by
either
FAI or the Company, so long as such party is not in breach hereunder, if the
Merger shall not have been consummated on or before September 30, 2007 (other
than as a result of the failure of the party seeking to terminate this Agreement
to perform its obligations under this Agreement required to be performed at,
or
prior to, the Effective Time of the Merger, in which event such party may not
terminate this Agreement pursuant to this provision for a period of ten days
following such party’s cure of such failure); provided,
however,
that if
either FAI or Company requests an extension of the Closing after this date
and
the other party consents in writing, then neither party may terminate this
Agreement under this provision until the expiration of such extension
period;”
9. Except
as
and to the extent expressly amended by this Amendment, the Agreement remains
in
full force and effect in accordance with its terms.
10. This
Amendment may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered will be an original, but all such
counterparts will together constitute one and the same instrument.
[signature
page follows]
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IN
WITNESS WHEREOF, the undersigned have caused their duly authorized officers
to
execute this Amendment as of the date first above written.
| FAI STOCKHOLDERS: |
FILTERING
ASSOCIATES, INC.
|
||
| /s/ Xxxxx Xxxxx |
By:
|
/s/ Xxxxx Xxxx | |
|
Xxxxx Xxxxx |
|
||
|
/s/
Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx |
Name:
Xxxxx Xxxx
Its: President
|
|
MATINEE
MEDIA CORPORATION
|
|||
|
By:
|
/s/ Xxxxxx Xxxxxx | ||
|
|
|||
|
|
Name:
Xxxxxx Xxxxxx
Its: President, CEO
|
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