Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement")made as of this 27th day of
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December, 2002, by and among Famous Fixins Inc., a New York corporation having
its principal place of business at 1325 Howard Avenue, Suite #422, Burlingame,
California 94010 ("Famous Fixins"), FIXN Acquisition Sub, Inc., a Delaware
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corporation ("FIXN SUB"), Warning Model Management, LLC, a California limited
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liability company having its principal place of business at 9440 Santa Monica
Blvd South, Suite 400, Beverly Hills, California 90210 ("WMM"), Stephan
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Chamberlain (the "WMM Managing Member") and all of the members of WMM.
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CAPITALIZED TERM USED IN THIS AGREEMENT AND NOT OTHERWISE DEFINED SHALL
HAVE THE MEANINGS ASCRIBED TO SUCH TERMS IN SECTION 27.
WHEREAS, WMM shall acquire 100% of the common stock of FIXN SUB, a wholly
owned subsidiary of Famous Fixins, upon the merger of FIXN SUB with and into WMM
in exchange for a combination of convertible debentures plus fifty-one percent
(51%) of the issued and authorized Famous Fixins Common Stock; and
WHEREAS, Famous Fixins is authorized to issue 200,000,000 shares of its
common stock, par value $0.001 per share (the "Famous Fixins Common Stock") of
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which 23,360,179 shares are issued and outstanding (the "Outstanding Famous
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Fixins Common Stock"); and
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WHEREAS, FIXN SUB is a wholly owned subsidiary of Famous Fixins and is
authorized to issue 200 shares of common stock, par value $.001 (referred to as
the "FIXN SUB Shares"), all of which such FIXN SUB Shares are issued and
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outstanding and owned by Famous Fixins; and
WHEREAS, the respective Boards of Directors of Famous Fixins and FIXN SUB
and the Managing Member deem it advisable and generally to the advantage and
welfare of the Companies, and their respective shareholders, that (i) FIXN SUB
be merged with and into WMM under the terms and conditions hereinafter set forth
(the "Merger") and to be a tax free reorganization under Section 368(a)(1)(A) of
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the Code; and
NOW, THEREFORE, in consideration of the premises, covenants and conditions
hereof, the parties hereto do mutually agree as follows:
1. Vote on Merger and Related Matters. The Constituent Corporations shall
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each, as soon as practicable but prior to closing, and in no event later than 10
days after the execution and delivery hereof, (i) cause a special meeting
of its shareholders or members, as the case may be, to be called to consider and
vote upon the Merger on the terms and conditions hereinafter set forth, or (ii)
obtain written consent of such shareholders or members, as applicable, as is
necessary to approve the Merger. Subject to the further conditions and
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provisions of this Agreement, a closing of the Merger shall be held (the
"Closing"), and a certificate of merger and all other documents or instruments
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deemed necessary or appropriate by the parties hereto to effect the Merger shall
be executed and filed with the Secretaries of States of the States of California
and Delaware as promptly as possible thereafter. The certificate of merger for
the Merger (the "Certificate of Merger") so filed shall be substantially in the
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forms of Exhibits A1 and A2 annexed hereto, with such changes therein as the
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Boards of Directors of the Constituent Corporations shall mutually approve.
2. Representations, Warranties and Covenants of WMM. WMM and the WMM
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Managing Member(s), jointly and severally, represent, warrant and covenant as
follows, except to the extent set forth on the WMM Schedule of Exceptions:
(a) WMM is, and on the Effective Date will be, a duly organized and a
validly existing limited liability company in good standing under the laws of
California and in such other jurisdictions as it is qualified to do business.
Each WMM Membership Interest, including the name of the Member and address for
notice of the applicable Member is set fort on the WMM Schedule of Exceptions
("Outstanding WMM Membership Interests"). All Outstanding WMM Membership
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Interests, on the Effective Date, will be duly authorized, validly issued,
fully paid and nonassessable. There are no, and on the Effective Date there
will be no, issued or outstanding rights, options or warrants to purchase any
equity interest in WMM, including but not limited to any membership interests of
WMM or any other issued or outstanding securities of any nature convertible
into or exercisable or exchangeable for membership interests of WMM, as
applicable. The Outstanding WMM Membership Interests have all been issued
pursuant to an appropriate exemption from the registration requirements of the
Securities Act and from any applicable registration requirements of the various
states.
(b) WMM does not have, and on the Effective Date will not have, any
subsidiaries, nor does it own any direct or indirect interest in any other
business entity.
(c) WMM has, and on the Effective Date will have, full power and authority
to enter into this Agreement and, subject to any required Member or other third
party approval in accordance with the laws of the State of California, to
consummate the transactions contemplated hereby. This Agreement and the
transactions contemplated hereby have been duly approved by the Managing Member
and, prior to the Closing, by the Members.
(d) WMM is qualified or licensed as a foreign limited liability company in
all jurisdictions where its business or ownership of assets so requires, except
where the failure to be qualified or licensed would not have a material adverse
effect on the business of WMM. The business of WMM does not require it to be
registered as an investment company or investment adviser, as such terms are
defined under the Investment Company Act of 1940 and the Investment Advisers Act
of 1940, each as amended.
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(e) The financial statements of WMM, consisting of its Balance Sheets
as of WMM's fiscal year-end December 31, 2001 and December 31, 2000, its
Statement of Income (Loss) for the fiscal years ended December 31, 2001 and
2000, its Statement of Member's Equity for the two years ended December 31, 2001
and 2000, and its Statements of Cash Flows for the fiscal years ended December
31, 2001 and 2000, have been audited by independent public accountants and
fairly present the financial position, results of operations and other
information purported to be shown therein, at the date and for the respective
periods to which they apply. The interim financial statements of WMM,
consisting of its Balance Sheet as of March 31, 2002, June 30, 2002 and
September 30, 2002, and its Statements of Income (Loss) for the nine months
ended September 30, 2002, fairly present the financial position, results of
operations and other information purported to be shown therein of WMM, at the
date and for the respective periods to which they apply. All such financial
statements have been prepared in conformity with generally accepted accounting
principles consistently applied throughout the periods involved, and have been
adjusted for all normal and recurring accruals. All such financial statements
(together, the "Financial Statements") have been delivered to Famous Fixins and
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are incorporated herein and made a part hereof.
(f) There has not been, and on the Effective Date there will not have been
in the aggregate, any material adverse change in the condition, financial or
otherwise, of WMM from that set forth in the Financial Statements.
(g) Except for transactions occurring in the ordinary course of business,
there has not been, and on the Effective Date there will not have been, any
transactions involving WMM since September 30, 2002 in an amount in excess of
$25,000.
(h) There are, and on the Effective Date will be, no liabilities
(including, but not limited to, tax liabilities) or claims against WMM (whether
such liabilities or claims are contingent or absolute, direct or indirect,
matured or unmatured) not appearing on the Financial Statements, other than
liabilities incurred in the ordinary course of business or taxes incurred on
earnings since September 30, 2002.
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(i) All federal, state, county and local income, excise, property and other
tax or information returns required to be filed by WMM have been filed, and all
required taxes, fees or assessments have been paid or an adequate reserve
therefor has been established in the Financial Statements. The federal income
tax returns and state and foreign income tax returns of WMM have not been
audited by the IRS or any other taxing authority within the past five (5) years.
Neither the IRS nor any state, local or other taxing authority has proposed any
additional taxes, interest or penalties with respect to WMM or any of their
operations or businesses. There are no pending, or to the knowledge of WMM,
threatened, tax claims or assessments, and there are no pending, or to the
knowledge of WMM, threatened, tax examinations by any taxing authorities. WMM
has not given any waivers of rights (which are currently in effect) under
applicable statutes of limitations with respect to the federal income tax
returns of WMM, for any year.
(j) Except as provided for in the Financial Statements, WMM, has, and on
the Effective Date will have, good and marketable title to all of its furniture,
fixtures, equipment and other assets as set forth in the Financial Statements,
and such assets are owned free and clear of all security interests, pledges,
liens, restrictions and encumbrances of every kind and nature, except as set
forth in the Financial Statements.
(k) WMM is the owner of its inventory as set forth in the Financial
Statements and has good and marketable title thereto.
(l) The accounts receivable as set forth in the Financial Statements
represent amounts due for goods sold or services rendered by WMM in the ordinary
course of business and, except as reserved for in the Financial Statements, are
collectable in the ordinary course of business.
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(m) A copy of all agreements, contracts, arrangements, understandings and
commitments, whether written or oral, to which WMM is or on the Effective Date
will be, a party, or from which WMM will receive substantial benefits and which
are material to WMM (collectively, "Contracts"), have been delivered to Famous
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Fixins and FIXN SUB. A list of such Contracts is set forth on the WMM Schedule
of Exceptions, which such schedule shall be amended at the Effective Date to
reflect any Contracts entered into between the date hereof and the Effective
Date. WMM is not now, nor will be on the Effective Date, in material default
under any Contract. The validity and enforceability of, and rights of WMM
contained in, each such Contract shall not be adversely effected by the Merger
or the transactions contemplated hereby or any actions taken in furtherance
hereof.
(n) There are, and on the Effective Date there will be, no legal,
administrative, arbitral or other proceedings, claims, actions or governmental
investigations of any nature pending, or to WMM's knowledge, as applicable,
threatened, involving WMM, individually or in the aggregate in which an
unfavorable determination could result in suspension or termination of WMM's
business or authority to conduct such business in any jurisdiction or could
result in the payment by WMM of more than $25,000 individually or $100,000 in
the aggregate, or challenging the validity or propriety of the transactions
contemplated by this Agreement and, to WMM's best knowledge, there is no
reasonable basis for any such proceeding, claim, action or governmental
investigation. WMM is not a party to any order, judgment or decree which will,
or might reasonably be expected to, materially adversely affect the business,
operations, properties, assets or financial condition of WMM.
(o) Since September 30, 2002 there have been, and through the Effective
Date there will be (i) no bonuses or extraordinary compensation to any of the
officers, Managing Member or Members, (ii) no loans made to or any other
transactions with any of the officers, Managing Member or Members or their
families, and (iii) no dividends or other distributions declared or paid by WMM.
(p) WMM has, and on the Effective Date will have, maintained casualty and
liability policies and other insurance policies with respect to its business
which are appropriate and customary for businesses similar in size, industry and
risk profile. Copies of all of the policies of insurance and bonds presently in
force with respect to WMM, including without limitation those covering
properties, buildings, machinery, equipment, worker's compensation, officers and
directors and public liability, have been delivered to Famous Fixins and FIXN
SUB. All such insurance is outstanding and in full force and effect, with all
premiums thereon duly paid, and WMM has not received any notice of cancellation
of any such policies.
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(q) WMM has, and on the Effective Date will have, no patents, patent
applications, trademarks, trademark registrations or applications, trade names,
copyrights, copyright registrations or applications, or other intellectual
property. WMM does not have knowledge of any infringements by it of any third
party's intellectual property.
(r) Since its inception, WMM has, and on the Effective Date will have, in
all material respects operated its business and conducted its affairs in
compliance with all applicable laws, rules and regulations, except where the
failure to so comply did not have and would not be expected to have a material
adverse effect on its business or property.
(s) There are, and on the Effective Date there will be, no loans, leases or
other Contracts outstanding between WMM and any of its officers, Managing Member
or any other Member or any person related to or affiliated with any such
officers or Managing Member or any other Member.
(t) During the past five year period neither WMM, nor any of its officers
or Managing Member, nor any person intended upon consummation of the Merger to
become an officer or director of either WMM or Famous Fixins or any successor
entity or subsidiary, has been the subject of:
(i) a petition under the Federal bankruptcy laws or any other
insolvency or moratorium law or has a receiver, fiscal agent or similar
officer been appointed by a court for the business or property of WMM or
such person, or any partnership in which WMM or any such person was a
general partner at or within two years before the time of such filing, or
any corporation or business association of which WMM or any such person was
an executive officer at or within two years before the time of such filing;
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(ii) a conviction in a criminal proceeding or a named subject of a
pending criminal proceeding (excluding traffic violations which do not
relate to driving while intoxicated or driving under the influence);
(iii) any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction, permanently
or temporarily enjoining WMM or any such person from, or otherwise
limiting, the following activities:
(A) acting as a futures commission merchant, introducing broker,
commodity trading advisor, commodity pool operator, floor broker,
leverage transaction merchant, any other person regulated by the
United States Commodity Futures Trading Commission ("CFTC") or an
associated person of any of the foregoing, or as an investment
adviser, underwriter, broker or dealer in securities, or as an
affiliated person, director or employee of any investment company,
bank, savings and loan association or insurance company, or engaging
in or continuing any conduct or practice in connection with such
activity;
(B) engaging in any type of business practice; or
(C) engaging in any activity in connection with the purchase or
sale of any security or commodity or in connection with any violation
of Federal, state or other securities laws or commodities laws;
(iv) any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any Federal, state or local authority barring,
suspending or otherwise limiting for more than 60 days the right of WMM or
any such person to engage in any activity described in the preceding
sub-paragraph, or to be associated with persons engaged in any such
activity;
(v) a finding by a court of competent jurisdiction in a civil action
or by the Commission to have violated any securities law, regulation or
decree and the judgment in such civil action or finding by the Commission
has not been subsequently reversed, suspended or vacated; or
(vi) a finding by a court of competent jurisdiction in a civil action
or by the CFTC to have violated any federal commodities law, and the
judgment in such civil action or finding by the CFTC has not been
subsequently reversed, suspended or vacated.
(u) WMM does not have any pension plan, profit sharing or similar employee
benefit plan.
(v) Except for the consent and approval of the Members and the filing of
the Certificate of Merger, no consents or approvals of, or filings or
registrations with, any third party or any public body or authority are
necessary in connection with (i) the execution and delivery by WMM of this
Agreement and (ii) the consummation by WMM of the Merger and by WMM of all other
transactions contemplated hereby. This Agreement has been duly executed and
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delivered by WMM and constitutes the legal, valid and binding obligation of WMM,
enforceable against it in accordance with the terms hereof, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application relating to or affecting the enforcement of rights hereunder
or general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(w) WMM knows of no person who rendered any service in connection with the
introduction of Famous Fixins, FIXN SUB or WMM to any of the other companies,
and they know of no claim by anyone for a "finder's fee" or similar type of fee
in connection with the Merger and the other transactions contemplated hereby.
(x) No employees of WMM are on strike or to the best of their knowledge
threatening any strike or work stoppage. WMM does not have any obligations
under any collective bargaining or labor union agreements nor is WMM involved in
any material controversy with any of its employees or any organization
representing any of its employees.
(y) None of the information supplied or to be supplied by or about WMM for
inclusion or incorporation by reference in any information supplied to holders
of Famous Fixins Common Stock concerning the Merger, contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading.
(z) The execution and delivery by WMM of this Agreement, the consummation
and performance of the transactions herein contemplated, and compliance with the
terms of this Agreement by WMM will not conflict with, result in a breach of or
constitute or give rise to a default under (i) any indenture, mortgage, deed of
trust or other agreement, instrument or Contract to which WMM is now a party or
by which it or any of its assets or properties are bound; (ii) the Articles of
Organization or the Operating Agreement of WMM, in each case as amended; or
(iii) any law, order, rule, regulation, writ, injunction, judgment or decree of
any government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over WMM or any of its business or properties wherein such
breach could have a material adverse effect on WMM or any of its business or
properties.
(aa) To the best of its knowledge, WMM is not in violation of any federal,
state or local environmental law or regulation.
3. Representations and Warranties of FIXN SUB. FIXN SUB represents and
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warrants as follows:
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(a) FIXN SUB is, and on the Effective Date will be, a duly organized and
validly existing corporation in good standing under the laws of the State of
Delaware, authorized to issue only the FIXN SUB Shares. On the Effective Date
there will be issued and outstanding all of the FIXN SUB Shares, which shall be
fully paid and nonassessable and all of which shall be owned by Famous Fixins.
There are no, and on the Effective Date there will be no issued or outstanding
options or warrants to purchase FIXN SUB Shares or any issued or outstanding
securities of any nature convertible into FIXN SUB Shares, or any agreements or
understandings to issue any FIXN SUB Shares, options or warrants.
(b) FIXN SUB has been organized solely for the purpose of consummating the
Merger and, since its inception, has had no business activity of any nature
other than those related to its organization or as contemplated by this
Agreement.
(c) FIXN SUB has, and on the Effective Date will have, full power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement and the transactions contemplated hereby
have been duly approved by the Board of Directors of FIXN SUB.
(d) Since its inception, FIXN SUB has not issued or committed itself to
issue, and to the Effective Date will not issue or commit to issue, any FIXN SUB
Shares or any options, rights, warrants, or other securities convertible into
FIXN SUB Shares, except for the issuance of the FIXN SUB Shares to Famous
Fixins.
(e) Except for the consent and approval of the shareholders of FIXN SUB, and
the filing of the Certificate of Merger, no consents or approvals of, or
filings or registrations with, any third party or any public body or authority
are necessary in connection with (i) the execution and delivery by FIXN SUB of
this Agreement and (ii) the consummation by FIXN SUB of the Merger and the other
transactions contemplated hereby.
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(f) The execution and delivery by FIXN SUB of this Agreement, the
consummation and performance of the transactions herein contemplated, and
compliance with the terms of this Agreement by FIXN SUB will not conflict with,
result in a breach of or constitute or give rise to a default under any
indenture, mortgage, deed of trust or other agreement, instrument or contract to
which FIXN SUB is now a party or by which it or any of its assets or
properties are bound or its Certificate of Incorporation or the bylaws of FIXN
SUB as amended, or any law, order, rule or regulation, writ, injunction,
judgment or decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over FIXN SUB or any of its businesses
or properties.
(g) FIXN SUB is, and on the Effective Date will be duly authorized,
qualified, and licensed under any and all applicable laws, regulations,
ordinances, or orders of public authorities to carry on its business in the
places and in the manner as presently conducted or as contemplated in this
Agreement. The business of FIXN SUB does not require it to be registered as an
investment company or investment adviser as such terms are defined under the
Investment Company Act and the Investment Advisers Act of 1940, each as amended.
(h) FIXN SUB has, and on the Effective Date will have no subsidiaries.
(i) Except for (i) the incurring of expenses of its organization, (ii)
the issuance of the FIXN SUB Shares to Famous Fixins, (iii) the incurring of
expenses relating to this Agreement and the consummation of the transactions
contemplated by this Agreement, and (iv) the consummation of the Merger, FIXN
SUB has had, and on the Effective Date will have had no business and no
financial or other transactions of any nature whatsoever.
(j) FIXN SUB has, and on the Effective Date will have no liabilities
(including, but not limited to, tax liabilities) nor are there, or on the
Effective Date will there be, any claims against FIXN SUB (whether such
liabilities or claims are contingent or absolute, direct or indirect, and
matured or unmatured) except for liabilities for its organization expenses or
expenses incurred in connection with the Merger.
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(k) FIXN SUB has, and on the Effective Date will have no fixtures,
furniture, equipment, inventory or accounts receivable.
(l) FIXN SUB has, and on the Effective Date will have no contracts and
commitments to which it is, or on the Effective Date will be a party, except for
this Agreement and other documents and instruments contemplated hereby in
connection with the Merger.
(m) There are, and on the Effective Date there will be no legal,
administrative, arbitral or other proceedings, claims, actions or governmental
investigations of any nature against FIXN SUB, or challenging the validity or
propriety of the transactions contemplated by this Agreement and, to FIXN SUB's
best knowledge, there is no reasonable basis for any other proceeding, claim,
action or governmental investigation against FIXN SUB. FIXN SUB is not a party
to any order, judgment or decree which will, or might reasonably be expected to,
materially adversely affect the business, operations, properties, assets or
financial condition of FIXN SUB.
(n) Since the inception of FIXN SUB there have been, and to the Effective Date
there will be (i) no salaried or otherwise compensated employees and no bonuses
paid to any officer or director of FIXN SUB; (ii) no loans made to or any
transactions with any officer or director of FIXN SUB; (iii) no dividends or
other distributions declared or paid by FIXN SUB; and (iv) no purchase by FIXN
SUB of any FIXN SUB Shares.
(o) Since its inception, FIXN SUB has not issued or committed itself to
issue, and to the Effective Date will not issue or commit itself to issue any
FIXN SUB shares or any options, rights, warrants, or other securities
convertible into FIXN SUB Shares except for the issuance of the FIXN SUB Shares
to Famous Fixins.
(p) FIXN SUB has no patents, patent applications, trademarks, trademark
registrations, tradenames, copyrights, copyright registrations or applications
therefor.
(q) Since its inception, FIXN SUB has, and on the Effective Date will have
in all material respects conducted its affairs in compliance with all applicable
laws, rules and regulations.
(r) During the past five year period, no officer or director of FIXN SUB has
been the subject of any Bad Event.
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(s) FIXN SUB has no pension plan, profit sharing or similar employee benefit
plan.
(t) FIXN SUB knows of no person who rendered any service in connection with
the introduction of Famous Fixins, FIXN SUB or WMM to any of the other Companies
and they know of no claim by anyone for a "finder's fee" or similar type of fee
in connection with the Merger and the other transactions contemplated hereby.
(u) FIXN SUB has no employees.
4. Representations and Warranties of Famous Fixins. Famous Fixins
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represents, warrants and covenants, except to the extent set forth on the Famous
Fixins Schedule of Exceptions or except as set forth in the reports required to
be filed by Famous Fixins under the Securities Act and the Exchange Act of 1934,
as amended, including pursuant to Section 13(a) or 15(d) thereof ("SEC
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Reports"), as follows:
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(a) Famous Fixins is a duly organized and validly existing corporation in
good standing under the laws of the State of New York, authorized to issue an
aggregate of 200,000,000 shares of Famous Fixins Common Stock. On the Effective
Date, there will be issued and outstanding no more than 47,673,834 shares of
Famous Fixins Common Stock, all of which such issued and outstanding shares will
be validly issued, fully paid and nonassessable. Except as contemplated by this
Agreement, on the Effective Date there will be no issued or outstanding options,
warrants or other rights, or commitments or agreements of any kind, contingent
or otherwise, to purchase or otherwise acquire shares of Famous Fixins Common
Stock or any issued or outstanding securities of any nature convertible into
shares of Famous Fixins Common Stock. There is no proxy or any other agreement,
arrangement or understanding of any kind authorized or outstanding which
restricts, limits or otherwise affects the right to vote any shares of Famous
Fixins Common Stock.
(b) Famous Fixins is, and on the Effective Date will be, duly authorized,
qualified and licensed under any and all applicable laws, regulations,
ordinances or orders of public authorities to carry on its business in the
places and in the manner as presently conducted. The business of Famous Fixins
does not require it to be registered as an investment company or investment
advisor, as such terms are defined under the Investment Company Act and the
Investment Advisors Act of 1940.
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(c) Famous Fixins has, and on the Effective Date will have no subsidiaries
except for FIXN SUB.
(d) The financial statements of Famous Fixins, consisting of its Balance
Sheets as at December 31, 2001 and 2000, and its Statement of Operations for the
fiscal years ended December 31, 2001 and 2000, its Statement of
Stockholders' Equity as of December 31, 2001 and 2000, and its Statement of Cash
Flows for the fiscal years ended December 31, 2001 and 2000, all together with
accompanying notes, have been audited by independent public accountants, are
complete and correct in all material respects, present fairly the financial
position of Famous Fixins and the results of operations and changes in financial
position for the respective periods ended on such dates, and were prepared in
accordance with generally accepted accounting principles consistently applied
during the periods. The interim financial statements of Famous Fixins,
consisting of its Balance Sheet as of September 30, 2002 and its Statement of
Operations, Statement of Stockholders' Equity and Statement of Cash Flows for
the six-month period ending September 30, 2002 have been prepared in accordance
with generally accepted accounting principles and have been adjusted for all
normal and recurring accruals and present fairly the financial position of
Famous Fixins and the results of operations and changes in financial position
for the respective periods ended on such dates, and were prepared in accordance
with generally accepted accounting principles consistently applied during the
periods. All the financial statements referenced herein regarding Famous Fixins
are collectively referred to as the "Famous Fixins Financial Statements", all of
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which are set forth in the SEC Reports publicly filed with the Commission.
(e) There has not been, and on the Effective Date there will not have been,
any material change in the financial condition of Famous Fixins from that set
forth in the Famous Fixins Financial Statements except for (i) transactions in
the ordinary course of business, (ii) transactions relating to this Agreement,
and (iii) the incurring of expenses and liabilities relating to this Agreement.
(f) There are, and on the Effective Date will be, no liabilities
(including, but not limited to, tax liabilities) or claims against Famous Fixins
(whether such liabilities or claims are contingent or absolute, direct or
indirect, accrued or unaccrued and matured or unmatured) not appearing on the
Famous Fixins Financial Statements, except for (i) liabilities for expenses
incurred relating to this Agreement and the consummation of the transactions
contemplated hereby and (ii) liabilities and commitments incurred or made in the
ordinary course of Famous Fixins's business or taxes incurred on earnings since
September 30, 2002.
(g) All federal, state, county and local income, excise, property or other
tax returns required to be filed by Famous Fixins have been filed and all
required taxes, fees or assessments have been paid or an adequate reserve
therefore has been set up in the Famous Fixins Financial Statements.
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(h) Famous Fixins has, and on the Effective Date will have, no fixtures,
furniture, equipment, inventory or accounts receivable.
(i) Famous Fixins has, and on the Effective Date will have, no material
contracts to which it is, or on the Effective Date will be, a party.
(j) There are, and on the Effective Date there will be, no legal,
administrative, arbitral or other proceedings, claims, actions or governmental
investigations of any nature pending or to Famous Fixins's knowledge threatened
in writing, against Famous Fixins, including, but not limited to any shareholder
claims or derivative actions, or challenging the validity or propriety of
the transactions contemplated by this Agreement, and, to Famous Fixins's best
knowledge, there is no reasonable basis for any proceeding, claim, action or
governmental investigation against Famous Fixins. Famous Fixins is not a party
to any order, judgment or decree which will, or might reasonably be expected to,
materially adversely affect the business, operations, properties, assets or
financial condition of Famous Fixins.
(k) Since September 30, 2002 and to the Effective Date there will be (i) no
salaried or otherwise compensated employees and no bonuses paid to any officer
or director of Famous Fixins; (ii) no loans made to or transactions with any
officer or director of Famous Fixins; (iii) no dividends or other distributions
declared or paid by Famous Fixins; and (iv) no purchase by Famous Fixins of any
of the Famous fixins common stock.
(l) Famous Fixins has not issued or committed itself to issue, and to the
Effective Date will not issue or commit itself to issue, any additional common
shares or any options, rights, warrants, or other securities convertible into
common shares, except as contemplated by this Agreement.
(m) Famous Fixins has no patents, patent applications, trademarks,
trademark registrations, trade names, copyrights, copyright registrations or
applications therefor. Famous Fixins has no knowledge of any infringements by it
of any third party's intellectual property.
(n) Famous Fixins has, and on the Effective Date will have, in all material
respects operated its business and conducted its affairs in compliance with all
applicable laws, rules and regulations.
(o) On the Effective Date there will be no loans, leases, commitments,
arrangements or other contracts of any kind or nature outstanding between (i)
Famous Fixins and (ii) any officer or director of Famous Fixins or any person
related to or affiliated with any officer or director of Famous Fixins.
16
(p) During the past five year period, no officer or director of Famous
Fixins has been the subject of any Bad Event.
(q) Famous Fixins has no pension plan, profit sharing or similar employee
benefit plan.
(r) Except for the consent and approval of the Boards of Directors of FIXN
SUB and Famous Fixins and the Managing Member and Members to the Merger, the
filing of a Certificate of Merger, the filing of a Form 8-K within 15 days of
the Effective Date and the filing of a Form D with the Commission and the State
of California, no consents or approvals of, or filings or registrations with,
any third party or any public body or authority are necessary in connection with
(i) the execution and delivery by Famous Fixins of this Agreement and (ii)
the consummation of the Merger and the other transactions contemplated hereby.
Famous Fixins has, and on the Effective Date will have, full power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement and the transactions contemplated hereby have been, or
will be prior to the Effective Date, duly approved by the Board of Directors of
Famous Fixins. This Agreement has been duly executed and delivered by Famous
Fixins and constitutes the legal, valid and binding obligation of Famous Fixins
enforceable against it in accordance with the terms hereof except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application relating to or affecting the enforcement of rights hereunder
or general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(s) Famous Fixins knows of no person who rendered any service in connection
with the introduction of Famous Fixins, FIXN SUB or WMM to any of the other
companies and they know of no claim by anyone for a "finder's fee" or similar
type of fee in connection with the Merger and the other transactions
contemplated hereby.
(t) Famous Fixins has no employees.
(u) None of the information supplied or to be supplied by or about Famous
Fixins to WMM concerning the Merger contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading.
(v) The execution and delivery by Famous Fixins of this Agreement, the
consummation and performance of the transactions herein contemplated, and
compliance with the terms of this Agreement by Famous Fixins will not conflict
with, result in a breach of or constitute a default under (i) any indenture,
mortgage, deed of trust or other agreement, instrument or contract to which
Famous Fixins is now a party or by which it or any of its assets or properties
17
is bound; (ii) the Certificate of Incorporation, as amended, or the bylaws of
Famous Fixins, in each case as amended; or (iii) any law, order, rule or
regulation, writ, injunction, judgment or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
Famous Fixins or any of its business or properties.
(w) To the best of its knowledge, Famous Fixins is not in violation of any
federal, state or local environmental law or regulation.
5. Representations and Warranties of each Member. Each Member,
--------------------------------------------------
including the Managing Member, for itself and no other Member, represents and
warrants as follows:
(a) Investment Intent. Such Member is acquiring the Member Securities
------------------
as principal for its own account for investment purposes only and not with a
view to or for distributing or reselling such Member Securities or any part
thereof. Such Member is acquiring the Member Securities hereunder in the
ordinary course of its business. Such Member does not have any agreement or
understanding, directly or indirectly, with any Person to distribute any of the
Member Securities.
(b) Member Status. Such Member is an "accredited investor" as defined in
--------------
Rule 501(a) under the Securities Act.
(c) Experience of such Member. Such Member, either alone or together with
---------------------------
its representatives, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits and
risks of the prospective investment in the Member Securities, and has so
evaluated the merits and risks of such investment. Such Member is able to bear
the economic risk of an investment in the Member Securities and, at the present
time, is able to afford a complete loss of such investment.
(d) General Solicitation. Such Member is not purchasing the Member
---------------------
Securities as a result of any advertisement, article, notice or other
communication regarding the Member Securities published in any newspaper,
magazine or similar media or broadcast over television or radio or presented at
any seminar or any other general solicitation or general advertisement.
(e) Famous Fixin's Information. Such Member has read the SEC Reports and
----------------------------
has had an opportunity to discuss Famous Fixin's business, management and
financial affairs with directors, officers and management of Famous Fixins and
has had the opportunity to review Famous Fixins's operations and facilities.
Such Member has also had the opportunity to ask questions of and receive answers
from, Famous Fixins and its management regarding the terms and conditions
of this investment.
(f) Residence. If such Member is an individual, then such Member resides in
---------
the state or province identified in the address of such Member set forth on
18
the WMM Schedule of Exceptions; if such Member is a partnership, corporation,
limited liability company or other entity, then the office or offices of such
Member in which its investment decision was made is located at the address or
addresses of such Member set forth on WMM Schedule of Exceptions.
(g) Rule 144. Such Member acknowledges and agrees that the Member
---------
Securities are "restricted securities" as defined in Rule 144 promulgated under
the Securities Act as in effect from time to time and must be held indefinitely
unless they are subsequently registered under the Securities Act or an exemption
from such registration is available. Such Member has been advised or is aware
of the provisions of Rule 144, which permits limited resale of shares purchased
in a private placement subject to the satisfaction of certain conditions,
including, among other things: the availability of certain current public
information about Famous Fixins, the resale occurring following the required
holding period under Rule 144 and the number of shares being sold during any
three-month period not exceeding specified limitations.
6. Representations to Survive Closing. All of the representations,
-------------------------------------
covenants and warranties contained in this Agreement (including all statements
contained in any certificate or other instrument delivered by or on behalf of
Famous Fixins, FIXN SUB or WMM pursuant hereto or in connection with the
transactions contemplated hereby) shall survive the Closing for a period of
three (3) years from the Effective Date.
7. Surviving Corporation. The surviving entity shall be WMM. Its name,
----------------------
identities, articles of organization, operating agreement, existence, purposes,
powers, objects, franchises, rights and immunities shall be unaffected and
unimpaired by the Merger, except as described in the Certificate of Merger.
8. Treatment of Shares of Constituent Corporations. The terms and
-------------------------------------------------
conditions of the Merger, the mode of carrying the same into effect, and the
manner and basis of converting the securities of each of the Constituent
Corporations are as follows:
(a) All of the Outstanding WMM Membership Interests shall be converted by
virtue of the Merger at the Effective Date into, in the aggregate, (i)
24,313,655 shares of Famous Fixins Common Stock (the "Member Shares") and (ii)
-------------
$2,900,000 principal amount of convertible debentures in the form of the
convertible debenture attached hereto as Exhibit B (the "WMM Debentures" and
--------- --------------
collectively with the Member Shares, the "Member Securities"). After the
------------------
Effective Date, each Member, upon surrender of their Outstanding WMM Membership
Interest existing immediately prior to the Effective Date, shall be entitled to
receive from Famous Fixins, pro-rata based upon their respective share of such
Outstanding Membership Interest, certificates representing their share of the
Member Securities, which certificates shall contain any appropriate restrictive
legend concerning the resale of such securities. Until so surrendered, any
outstanding certificates or other documentation which, prior to the Effective
Date, represented Outstanding WMM Membership Interests, shall be deemed for all
corporate purposes to evidence ownership of the Member Securities into which
such Outstanding WMM Membership Interests shall be convertible into. Upon such
19
surrender, Outstanding WMM Membership Interests so surrendered shall no longer
be outstanding and shall automatically be canceled and retired and shall cease
to exist. Upon conversion, any fractional shares resulting from conversion
shall be rounded to the nearest whole number of Member Shares.
(b) All of the FIXN SUB Shares shall be converted by virtue of the Merger
at the Effective Date into, in the aggregate, Membership Interests
representing 100% of the Membership Interests of WMM, and all of such interests
shall be held by Famous Fixins.
(c) The separate existence and corporate organization of FIXN SUB, except
insofar as it may be continued by statute, shall cease on Effective Date and WMM
shall become a wholly owned subsidiary of Famous Fixins.
9. Rights and Liabilities of Surviving Corporation. (a) On and after the
-------------------------------------------------
Effective Date, WMM, as the surviving entity of the Merger, shall succeed to and
possess, without further act or deed, all of the estate, rights,
privileges, powers and franchises, both public and private and all of the
property, real, personal and mixed, of FIXN SUB; all debts due to FIXN SUB on
whatever account shall be vested in WMM; all claims, demands, property, rights,
privileges, powers, franchises and every other interest of FIXN SUB shall be as
effectively the property of WMM as they were of FIXN SUB; the title to any real
estate by deed or otherwise in FIXN SUB shall not revert or be in any way
impaired by reason of the Merger, but shall be vested in WMM; all rights of
creditors and all liens upon any property of FIXN SUB shall be preserved
unimpaired, limited in lien to the property affected by such lien at the
Effective Date; all debts, liabilities and duties of FIXN SUB shall thenceforth
attach to WMM and may be enforced against it to the same extent as if such
debts, liabilities and duties had been incurred or contracted by it; and WMM
shall indemnify and hold harmless Famous Fixins and the officers and directors
of FIXN SUB against all such debts, liabilities and duties and against all
claims and demands arising out of the Merger.
10. Further Assurances of Title. As and when requested by WMM, or by any
----------------------------
of its successors or assigns, FIXN SUB shall execute and deliver, or cause to be
executed and delivered, all such deeds and instruments and will take or cause to
be taken all such further action as WMM may deem necessary or desirable in order
to vest in and confirm to WMM title to and possession of the property acquired
by WMM by reason or as a result of the Merger and otherwise to carry out the
intent and purposes hereof, and the officers and directors of WMM and Famous
Fixins are fully authorized in the name of WMM or Famous Fixins or otherwise to
take any and all such action.
11. Conditions of Obligations of FIXN SUB and Famous Fixins. The
---------------------------------------------------------------
obligation of FIXN SUB and Famous Fixins to consummate the Merger is subject to
the following conditions prior to the Effective Date:
20
(a) WMM has not suffered an uninsured loss on account of fire, flood,
accident, or other calamity of such a character as to interfere materially with
the continuous operation of its business or materially affect adversely its
condition, financial or otherwise, regardless of whether or not such loss shall
have been insured.
(b) That no material transactions shall have been entered into by WMM other
than transactions in the ordinary course of business between September 30, 2002
and the Effective Date, other than as referred to in this Agreement or in the
schedules annexed, except with the prior written consent of Famous Fixins.
(c) Except as disclosed in this Agreement or in the schedules annexed
hereto, that no material adverse change in the aggregate shall have occurred in
the financial condition of WMM since September 30, 2002.
(d) That none of the properties or assets of WMM shall have been sold or
otherwise disposed of other than in the ordinary course of business during such
period, except with the prior written consent of Famous Fixins.
(e) That WMM shall have performed and complied with the provisions and
conditions of this Agreement on its part to be performed and complied with, and
that the representations and warranties made by WMM in this Agreement are true
and correct, both when made and as of the Effective Date.
(f) That all applicable filings and regulatory approvals required to be made or
obtained by WMM have been made or obtained.
(g) That this Agreement and the transactions contemplated hereby shall have
been approved by appropriate action of WMM, the Managing Member and the Members.
(h) That there shall have been full compliance with the applicable
securities or "blue sky" laws and regulations of any state or other governmental
body having jurisdiction over the Merger.
(i) That Famous Fixins shall have received from WMM the following documents:
21
(i) original signature page of this Agreement duly executed by WMM, the
Managing Member and each Member;
(ii) Good Standing Certificate of WMM;
(iii) Certificate of Organization of WMM;
(iv) Organizational minutes of WMM and any other documents required by
Section 16;
(v) Operating Agreement of WMM;
(vi) an opinion from counsel to WMM, substantially in the form of Exhibit C
---------
attached hereto;
(vii) Written consent of Members authorizing the Merger;
(viii) Certificate of the Managing Member evidencing compliance with the
provisions of this Section 11;
(ix) Form D and evidence of filing with the State of California; and
(x) Original signature page of each Certificate of Merger for filing with
the Secretaries of State of California and Delaware.
12. Conditions of Obligations of WMM. The obligations of WMM to consummate
---------------------------------
the Merger are subject to the following conditions prior to the Effective Date:
(a) That FIXN SUB and Famous Fixins are in compliance with their respective
representations, warranties and covenants contained herein, and that WMM shall
receive from each of FIXN SUB and Famous Fixins a certificate to such effect
from the President of FIXN SUB and Famous Fixins as of the Effective Date.
(b) That FIXN SUB and Famous Fixins shall not have suffered any loss on
account of fire, flood, accident or other calamity of such a character as to
interfere materially with the continuous operation of its business or materially
affect adversely its condition, financial or otherwise, regardless of whether or
not such loss shall have been insured.
(c) That no material transactions shall have been entered into by FIXN SUB
or Famous Fixins other than transactions in the ordinary course of business
since September 30, 2002, other than as referred to in this Agreement, except
with the prior written consent of WMM.
(d) That no material adverse change shall have occurred in the financial
condition of FIXN SUB or Famous Fixins since September 30, 2002 other than as
referred to in this Agreement.
(e) That none of the properties or assets of FIXN SUB or Famous Fixins
shall have been sold or otherwise disposed of other than in the ordinary course
of business September 30, 2002, except with the written consent of WMM.
22
(f) That FIXN SUB and Famous Fixins shall each have performed and complied
with the provisions and conditions of this Agreement on its part to be performed
and complied with, and that the representations and warranties made by Famous
Fixins herein are true and correct.
(g) That all applicable filings and regulatory approvals required to be
made or obtained by Famous Fixins have been made or obtained.
(h) That Famous Fixins shall have held a meeting of its Board of Directors
at which meeting all of its directors shall have resigned seriatim and the
persons designated by WMM shall have been elected as directors of Famous Fixins,
all subject to the consummation of the Merger.
(i) That WMM shall have received from Famous Fixins and FIXN SUB the
following documents:
(i) original signature page of this Agreement duly executed by Famous Fixins
and FIXN SUB;
(ii) Good Standing Certificate of Famous Fixins;
(iii) Good Standing Certificate of FIXN SUB;
(iv) Certificate of Incorporation of Famous Fixins;
(v) Certificate of Incorporation of FIXN SUB;
(vi) Organizational minutes of Famous Fixn and any other documents required
by Section 15;
(vii) Organizational minutes of FIXN SUB and any other documents required by
Section 15;
(viii) By-Laws of Famous Fixins;
(ix) By-Laws of FIXN SUB;
(x) an opinion from counsel to FIXN SUB, substantially in the form of
Exhibit D attached hereto;
-----------
(xi) Written consent of shareholders of FIXN SUB authorizing the Merger;
(xii) Written consent of the Board of Directors of Famous Fixins authorizing
the Merger;
(xiii) Officer's Certificate of Famous Fixins evidencing compliance with the
provisions of this Section 12; and
(xiv) Officer's Certificate of FIXN SUB evidencing compliance with the
provisions of this Section 12.
13. Abandonment. This Agreement and the Merger may be abandoned (a) by
-----------
any of the Companies, acting by its Board of Directors, at any time prior to its
adoption by the shareholders of such Company, as provided by law, (b) by any of
the Companies, acting by its Board of Directors by written notice to the other
parties hereto, at any time in the event of the failure of any condition in
23
favor of such entity as to which the consummation of the Merger is subject, or
(c) by the consent of all the Companies, acting each by its Board of Directors,
at any time after such adoption by such shareholders and prior to the Effective
Date. In the event of abandonment of this Agreement, the same shall become
wholly void and of no effect, and there shall be no further liability or
obligation hereunder on the part of any of the Companies, their respective
Boards of Directors or any other party to this Agreement.
14. Closing or Termination. In the event the Closing of this Agreement
------------------------
shall not take place by December 31, 2002, due to failure of any condition of
closing required herein, any party shall have the right to terminate this
Agreement, in which event no party shall have any further right or obligation as
against any other.
15. Delivery of Corporate Proceedings of Famous Fixins and FIXN SUB. At the
----------------------------------------------------------------
Closing, Famous Fixins and FIXN SUB shall deliver to counsel for WMM the
originals of all of the corporate proceedings of Famous Fixins and FIXN SUB,
duly certified by their respective Secretaries, relating to this Agreement.
16. Delivery of Corporate Proceedings of WMM. At the Closing, WMM shall
---------------------------------------------
deliver to counsel for Famous Fixins and FIXN SUB the originals of all of the
corporate proceedings of WMM, duly certified by its Secretary, relating to this
Agreement and a draft of the language proposed to be included the Form 8-K to be
filed within 15 days of the Effective Day, which draft shall be substantially in
compliance with the requirements of Form 8-K.
17. Limitation of Liability. The representations and warranties made by
-------------------------
any party to this Agreement are intended to be relied upon only by the other
parties to this Agreement and by no other person. Nothing contained in this
Agreement shall be deemed to confer upon any person not a party to this
Agreement any third party beneficiary rights or any other rights of any nature
whatsoever.
18. Further Instruments and Actions. Each party shall deliver such
----------------------------------
further instruments and take such further action as may be reasonably requested
by any other in order to carry out the intent and purposes of this Agreement.
19. Governing Law. This Agreement is being delivered and is intended to be
--------------
performed in the State of New York and shall be construed and enforced in
accordance with the laws of such State without regard to conflicts of laws
thereof.
20. Notices. All notices or other communications to be sent by any party to
-------
this Agreement to any other party to this Agreement shall be sent by certified
mail, nationwide overnight delivery service or by personal delivery or
nationwide overnight courier to the addresses hereinbefore designated, or such
other addresses as may hereafter be designated in writing by a party.
21. Binding Agreement. This Agreement represents the entire agreement among
-----------------
the parties hereto with respect to the matters described herein and is binding
upon and shall inure to the benefit of the parties hereto and their legal
representatives, successors and permitted assigns. This Agreement may not be
assigned and, except as stated herein, may not be altered or amended except in
writing executed by the party to be charged.
24
22. Counterparts. This Agreement may be executed in counterparts, all of
------------
which, when taken together, shall constitute the entire Agreement.
23. Severability. The provisions of this Agreement shall be severable, so
------------
that the unenforceability, validity or legality of any one provision shall not
affect the enforceability, validity or legality of the remaining provisions
hereof.
24. Joint Drafting. This Agreement shall be deemed to have been
---------------
drafted jointly by the parties hereto, and no inference or interpretation
against any party shall be made solely by virtue of such party allegedly having
been the draftsperson of this Agreement.
25. Reliance on Certificates. In rendering any opinion referred to
--------------------------
herein, counsel for the parties hereto may rely, as to any factual matters
involved in their respective opinions, on certificates of public officials and
of corporate and company officers, and on such other evidence as such counsel
may reasonably deem appropriate and, as to the matters governed by the laws of
jurisdictions other than the United States or the States of New York and
California, an opinion of local counsel in such other jurisdiction(s), which
counsel shall be satisfactory to the other parties in the exercise of their
reasonable discretion.
26. Public Announcements. All parties hereto agree that any public
---------------------
announcement, press release or other public disclosure of the signing of this
Agreement shall be made jointly and only after all parties hereto have reviewed
and approved the language and timing of such disclosure, except as such
disclosure may be required pursuant to any legal obligation or order of any
court having proper jurisdiction over any of the parties hereto.
27. Definitions. In addition to the terms defined elsewhere in this
-----------
Agreement, the following terms have the meanings indicated in this Section 27:
"Bad Events" shall mean, collectively, the events described in clauses (i)
-----------
through (vi) of Section 2(t).
"Certificate of Merger" shall have the meaning set forth in Section 1.
-----------------------
"CFTC" shall have the meaning set forth in Section 2(t)(iii)(A).
----
"Closing" shall have the meaning set forth in Section 1.
-------
"Code" shall mean the Internal Revenue Code of 1986, as amended.
----
25
"Commission" shall mean the Securities and Exchange Commission.
----------
"Commission Reports" shall have the meaning set forth in the opening
--------------------
paragraph of Section 4
"Companies" shall mean, collectively, Famous Fixins, FIXN SUB and WMM.
---------
"Contracts" shall have the meaning set forth in Section 2(m).
---------
"Constituent Corporations" shall mean, collectively, WMM and FIXN SUB.
-------------------------
"Effective Date" shall mean the date the Certificate of Merger is filed
---------------
with the State of California.
"Famous Fixins" shall mean Famous Fixins Inc., a New York corporation.
--------------
"Famous Fixins Common Stock" shall have the meaning set forth in the second
----------------------------
recital to this Agreement.
"Famous Fixins Financial Statements" shall have the meaning set forth in
----------------------------------
Section 4(d).
"Famous Fixins Schedule of Exceptions" shall mean the schedule of exceptions
-------------------------------------
to the representations, warranties and covenants of Famous Fixins annexed hereto
and made a part hereof.
"Financial Statements" shall have the meaning set forth in Section 2(e).
---------------------
"FIXN SUB" shall mean FIXN Acquisition Sub, Inc., a Delaware corporation and
---------
wholly owned subsidiary of Famous Fixins.
"FIXN SUB Shares" shall have the meaning set forth in the third recital to this
----------------
Agreement.
"IRS" shall mean the Internal Revenue Service.
---
"Member" shall mean each member of WMM as set forth on the WMM Schedule of
------
Exceptions.
"Member Securities" shall mean the Member Shares and the WMM Debentures.
------------------
"Member Shares" shall have the meaning set forth in Section 8(a).
--------------
"Merger" shall have the meaning set forth in the fourth recital to this
------
Agreement.
26
"Outstanding Famous Fixins Common Stock" shall have the meaning set forth in the
--------------------------------------
second recital to this Agreement.
"Outstanding WMM Membership Interests" shall have the meaning set forth in
---------------------------------------
Section 2(a).
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
---------------
rules and regulation promulgated thereunder.
"WMM" shall mean Warning Model Management, LLC, a California limited liability
---
company.
"WMM Debentures" shall have the meaning set forth in Section 8(a).
---------------
"WMM Managing Member" shall mean Steve Chamberlain.
---------------------
"WMM Schedule of Exceptions" shall mean the schedule of exceptions to the
-----------------------------
representations, warranties and covenants of WMM annexed hereto and made a part
hereof.
[SIGNATURE PAGE FOLLOWS]
27
IN WITNESS WHEREOF, the parties hereto have made and executed this
Agreement as of the day and year first above written.
FAMOUS FIXINS, INC.
By: /s/ S. Michael Rudolph
Name: S. Michael Rudolph
Title: Director
WARNING MODEL MANAGEMENT, LLC
By: /s/ Stephen Chamberlin
Name: Stephen Chamberlain
Title:
FIXN ACQUISITION SUB, INC.
By: /s/ S. Michael Rudolph
Name: S. Michael Rudolph
Title: Director
MANAGING MEMBER:
/s/ Stephen Chamberlin
------------------------
Stephen Chamberlain
MEMBERS:
/s/ Stephen Chamberlin
------------------------
Stephen Chamberlain
/s/ George Furla
------------------
George Furla
/s/ Jeffrey Wong
------------------
Jeffrey Wong
28