EXHIBIT 10.2
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FIRST AMENDMENT TO ACQUISITION AGREEMENT
FIRST AMENDMENT TO ACQUISITION AGREEMENT (this "Amendment"), dated as of
October 11, 2005, by and among Wien Group, Inc., a New York corporation ("Wien
(NY)"), Wien Group, Inc., a New Jersey corporation ("Wien (NJ)"), Xxxxxxx Xxxx,
XX0 Group, Inc., a New Jersey corporation ("MM2"), and Xxxx Xxxxxx and Xxxxxx
Xxxxxxx (each a "MM2 Shareholder" and, together, the "MM2 Shareholders"), each
herein sometimes being referred to individually as a "party" and collectively as
the "parties," is made with reference to the following facts.
W I T N E S S E T H:
WHEREAS, the parties entered into that certain Acquisition Agreement, dated
as of July 8, 2005 (the "Acquisition Agreement"), pursuant to which Wien (NY)
agreed to merge with and into Wien (NJ) pursuant to a Plan and Agreement of
Merger (the "Merger Agreement") between Wien (NY) and Wien (NJ); and
WHEREAS, the parties proposed, pursuant to the Acquisition Agreement, that
Wien (NJ) shall acquire ownership (the "Acquisition") of 100% of both the
outstanding Class A Common Shares of MM2 and Class B Common Shares of MM2, as a
result of which (a) MM2 will become a wholly-owned subsidiary of Wien (NJ), and
(b) the MM2 Shareholders will receive as consideration for the Acquisition
shares of Wien (NJ) Class A Common Stock and Wien (NJ) Class B Common Stock.
WHEREAS, the parties hereto have agreed to amend the Acquisition Agreement
accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein, the parties hereby agree as follows:
1. Definitions. Terms used but not defined herein shall have the meanings
assigned thereto in the Acquisition Agreement.
2. Amendments to Acquisition Agreement.
(a) Section 2.02(c) of the Acquisition Agreement shall be, and it
hereby is, amended and restated in its entirety to read as follows:
"(c) Fractional shares of Wien (NJ) common stock may be issued in
connection with the Acquisition."
(b) The first two sentences of Section 5.11 of the Acquisition
Agreement shall be, and they hereby are, amended and restated in their
entirety to read as follows:
"The authorized capital stock of Wien (NY) consists of (i)
25,000,000 shares of common stock, of which 3,697,000 shares are
outstanding on the date hereof, and (ii) 1,000 shares of
convertible preferred stock, none of which are outstanding. At
the Closing, the authorized capital stock of Wien (NJ) will
consist of (i) 450,000,000 shares of Class A Common Stock, of
which 123,327,333 shares will be outstanding, (ii) 50,000,000
shares of Class B Common Stock, of which 10,000,000 shares will
be outstanding, and (iii) 1,000,000 shares of Preferred Stock,
none of which will be outstanding."
(c) Section 9.07(g) of the Acquisition Agreement shall be, and it
hereby is, amended and restated in its entirety to read as follows:
"(g) Immediately after the Reincorporation, the authorized
capital stock of Wien (NJ) consists of 450,000,000 shares of
Class A Common Stock, 7,394,000 of which are outstanding,
50,000,000 shares of Class B Common Stock, none of which are
outstanding, and 1,000,000 shares of Preferred Stock, none of
which are outstanding; and"
3. Counterparts. This Amendment may be executed by the parties hereto
individually or in any combination, in one or more counterparts, each of which
shall be an original and all of which shall constitute one and the same
instrument.
4. Acquisition Agreement in Full Force and Effect. All of the provisions
of the Acquisition Agreement shall remain in full force and effect from and
after the date hereof as amended hereby.
5. References to Acquisition Agreement. From and after the date hereof,
(i) all references in the Acquisition Agreement to "this Agreement," "hereof,"
"herein," or similar terms, (ii) all references to the Acquisition Agreement in
each agreement, instrument and other document executed or delivered in
connection with the Acquisition Agreement, and (iii) all references to the
Acquisition Agreement and all other related documents, shall mean and refer to
the Acquisition Agreement as amended by this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first set forth above.
WIEN GROUP, INC.,
a New York corporation
By: ______________________________
Name:
Title:
WIEN GROUP, INC.,
a New Jersey corporation
By: ______________________________
Name:
Title:
__________________________________
Xxxxxxx Xxxx
XX0 GROUP, INC.
By: ______________________________
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
__________________________________
Xxxx Xxxxxx
__________________________________
Xxxxxx Xxxxxxx
