AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF REORGANIZATION
EXHIBIT
10.1
AMENDMENT
NO. 1 TO
This
Amendment No. 1 (this “Amendment”), dated as of January 9th,
2007 to
that certain Agreement and Plan of Reorganization (the “Agreement”), dated as of
July 26, 2006, is made and entered into by and among, PSI Corporation (f/k/a
Friendlyway Corporation), a Nevada corporation (“PSI”),
Big
Fish Marketing Group, Inc., a Colorado corporation (“Big
Fish”)
and
the stockholders of Big Fish identified in the signature page hereto (the
“Stockholders”).
Capitalized terms not defined herein shall have the meanings given to them
in
the Agreement.
Whereas,
as an inducement to Big Fish and the Stockholders to forbear until February
7,
2007 from taking any legal action to collect any unpaid Cash Consideration
scheduled to be paid prior to the date hereof, (which forbearance is hereby
acknowledged and agreed by Big Fish and the Stockholders), the parties desire
to
amend the Agreement to provide certain additional rights to Big Fish and the
Stockholders.
Now,
therefore, PSI, Big Fish and the Stockholders have agreed to amend the Agreement
on the terms and conditions set forth below.
1. |
Amendments.
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(a) Termination
and Unwinding of Agreement.
Section
8 of the Agreement is hereby deleted in its entirety and in substitution thereof
the following new Section 8 is hereby added:
“8A. Termination
and Unwinding of Transaction.
(i)
The
parties acknowledge that Big Fish is engaging in this transaction expecting
that
PSI will achieve certain financial objectives with respect to sales and gross
revenues. Accordingly, the parties agree that, if PSI’s total gross revenues as
of the first anniversary of the Closing Date (the “Performance Date”) are less
than $2,858,345.00, Big Fish shall have the limited unilateral right to
terminate and unwind this transaction. In the event Big Fish elects to terminate
this transaction, it shall, within thirty (30) days after the Performance Date,
provide PSI with written notice of such election. The date on which such
election notice is received by PSI is hereafter referred to as the “Notice
Date.” Within sixty (60) days after the Notice Date, (i) PSI shall return all of
the Assets to Big Fish, (ii) Big Fish shall return the Stock Consideration
and
any Contingent Stock Consideration to PSI; and (iii) each party will execute
and
deliver all other documents required by paragraph 12 of this Agreement ((i),
(ii) and (iii) are collectively the “Unwinding
Procedures”).
(ii)
In
addition, Big Fish may elect to terminate and unwind the transactions
contemplated by this Agreement upon the occurrence of either the following
events:
a.
Any
"Person" (as defined in Section 13(d)(3) under the Securities Exchange Act
of
1934, as amended (the "Exchange Act")), other than Xxx Xxxxxxx, shall become
a
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of more
than
25% of the total voting power attached to all outstanding equity securities
of
PSI; or
b.
PSI or
its subsidiaries shall make an assignment for the benefit of creditors, or
apply
for or consent to the appointment of a receiver or trustee for it or for a
substantial part of its property or business; or such a receiver or trustee
shall otherwise be appointed.
Following
Big Fish’s notice of election to terminate this Agreement, the parties shall
perform the Unwinding Procedures.
(iii)
Furthermore, Big Fish may elect to terminate and unwind the transactions
contemplated by this Agreement upon the failure of PSI to pay (i) on or before
February 7, 2007 the scheduled payment of Cash Consideration, and all remaining
unpaid Cash Consideration due thereon, subject to a cure period of fifteen
(15)
days after notice to PSI of its failure to pay such amount. Following Big Fish’s
notice of election to terminate this Agreement, the parties shall perform the
Unwinding Procedures.
8B.
Post Closing Operations.
The
parties contemplate that, promptly following the Closing, PSI will create a
separate division called the “Big Fish division” to own and operate the assets
of Big Fish acquired under this Agreement. Until such time as PSI otherwise
directs, a separate bank account governing the “Big Fish division” shall be
maintained. Any excess cash in this account may be transferred to the accounts
of PSI on a monthly basis as long as all payables of Big Fish are current and
the transfer of excess cash will not cause an inability of Big Fish to meet
its
payroll or tax needs for the next period.”
(b) Securities
Registration.
Section
11 of the Agreement is hereby deleted in its entirety and in substitution
thereof the following new Section 11 is hereby added:
“11.
Securities Registration. Big
Fish
acknowledges that the
Stock
issued by PSI
pursuant
to this Agreement is not currently, and may not in the future be, registered
under federal or state securities laws but will be, instead, issued in reliance
on exemptions from federal and state registration requirements. Big Fish further
acknowledges that no portion of such Stock
may be
sold, offered for sale, pledged or hypothecated by Big Fish in the absence
of an
effective registration statement under applicable federal or state securities
laws or an opinion of counsel reasonably satisfactory to PSI, that such
registration is not required. Without limiting the foregoing Big Fish may sell,
offer for sale, pledge or hypothecate the Stock in privately negotiated
transactions that do not require registration.”
2. |
Remainder
of Agreement.
Except as set forth herein, the Agreement is ratified and confirmed
in all
respects. All other terms and conditions of the Agreement not
in conflict
with the terms of this Amendment shall remain in full force and
effect.
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3. |
Governing
Law.
This Amendment shall be governed by, construed and enforced in
accordance
with the laws of the State of Nevada and not by choice of law
principles
or the laws of any other
state.
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4. |
Entire
Agreement and Amendments.
The Agreement, as amended by this Amendment, including the Schedules
and
Exhibits hereto and the documents delivered pursuant hereto,
embodies the
entire agreement and understanding of the parties with respect
to the
subject matter hereof and supersedes all prior agreements and
understandings between the parties.
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5. |
Counterparts.
This Amendment (or the signature pages hereof) may be executed in
any
number of counterparts; all such counterparts shall be deemed to
constitute one and the same instrument; and each of said counterparts
shall be deemed an original hereof.
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of page is intentionally blank.]
IN
WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
on
the day and year first above written.
Big Fish Marketing Group, Inc. | ||
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By: | /s/ Xxxxxx Xxxxxxx | |
Xxxxxx Xxxxxxx | ||
President |
By: | /s/ Xxxxx Xxxxxx | |
Xxxxx Xxxxxx | ||
Vice President Operations |
By: | /s/ Xxxxx Xxxxxx | |
Z,Inc., Xxxxx Xxxxxx as President |
By: | /s/ Xxxxx Xxxxxx | |
Xxxxx Xxxxxx | ||
Vice President Sales |
PSI Corporation | ||
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By: | /s/ Xxxxx X. Xxxx | |
Name: Xxxxx X. Xxxx | ||
Title:
Chief Executive Officer
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