SECURITIES EXCHANGE AGREEMENT
BETWEEN
GIANT JR INVESTMENTS CORP.
AND
FOREST GLENNEYRE & ASSOCIATES INC.
SHAREHOLDER OF
WALL STREET DIRECT INC.
DATED April 11, 2005
TABLE OF CONTENTS
SECURITIES EXCHANGE AGREEMENT........................................................3
PLAN OF REORGANIZATION...............................................................3
Agreement.........................................................................3
Section 1 - Transfer of Shares.................................................3
Section 2 - Issuance of Exchange Stock to WSD Shareholders.....................3
Section 3 - Closing............................................................4
Section 4 - Representations and Warranties by WSD and Certain Shareholders.....6
Section 5 - Representations and Warranties by GIANT JR INVESTMENTS CORP........9
Section 6 - Access and Information............................................12
Section 7 - Covenants of WSD and Certain Shareholders.........................12
Section 8 - Covenants of GIANT JR INVESTMENTS CORP ...........................13
Section 9 - Additional Covenants of the Parties...............................13
Section 10 - Survival of Representations, Warranties and Covenants............16
Section 11 - Conditions Precedent to Obligations of Parties...................17
EXHIBIT LIST........................................................................__
SCHEDULE LIST.......................................................................__
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SECURITIES EXCHANGE AGREEMENT
This Securities Exchange Agreement ("Agreement") is entered into on this
11th day of April 2005 by and between GIANT JR INVESTMENTS CORP., a Nevada
corporation ("GIANT JR"), and FOREST GLENNEYRE & ASSOCIATES INC, a Nevada
corporation, being a shareholder of WALL STREET DIRECT, INC. a Nevada
corporation ("WSD") which owns forty percent (40%) of the issued and outstanding
stock of WSD as of the date this Agreement is executed (the "WSD Shareholder").
PLAN OF EXCHANGE
The transaction contemplated by this Agreement is intended to be an
exchange of stock, whereby GIANT JR will acquire 16,000,000 shares of WSD,
representing approximately 40% of WSD's issued and outstanding common stock, (no
par value), from WSD Shareholder, in exchange for 7,000,000 shares of GIANT JR'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 herein below, WSD Shareholder would hold over fifty
percent of the then-outstanding common stock of GIANT JR representing a
controlling interest in GIANT JR.
AGREEMENT
Section 1
Transfer of Shares
1.1 Forest Glenneyre & Associates Inc a shareholder of WSD (the "WSD
Shareholder"), 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 GIANT JR on the Closing Date, certificates
representing 16,000,000 shares of the WSD. The transfer of the WSD Stock
shall be made free and clear of all liens, mortgages, pledges,
encumbrances or charges, whether disclosed or undisclosed, except as the
WSD Shareholder and GIANT JR shall have otherwise agreed in writing.
Section 2
Issuance of Exchange Stock to WSD Shareholder
2.1 As consideration for the transfer, assignment, conveyance and delivery of
the WSD Stock hereunder, GIANT JR shall, at the Closing issue to the WSD
Shareholder, certificates representing 7,000,000 shares of GIANT JR Common
Stock. The parties intend that the Exchange Shares being issued will be
used to acquire the 16,000,000 WSD Shares.
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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 WSD Shareholder and GIANT JR shall have
otherwise agreed in writing.
2.3 None of the Exchange Stock issued to the WSD Shareholder, nor any of the
WSD Stock transferred to GIANT JR hereunder shall, at the time of Closing,
be registered under federal securities laws but, rather, shall be issued
pursuant to an exemption there from 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 GIANT JR and WSD shall annotate their
records to reflect the restrictions on transfer embodied in the legend set
forth above. There shall be no requirement GIANT JR register the Exchange
Stock under the Act, nor shall WSD or the WSD Shareholder be required to
register any WSD Shares under the Act.
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, Giant Jr. Investments Corp. 2575
McCabe Way Irvine CA 92614, at 10:00 A.M., local time, or at such other time on
the Closing Date as GIANT JR and the WSD Shareholder 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 WSD Shareholder and GIANT JR within ten (10) days
from the date of this Agreement, or such later date upon which the parties
hereto may mutually agree in writing, or as extended pursuant to subsection
12.1(b) herein below.
3.3 Deliveries at Closing.
(a) WSD Shareholder shall deliver or cause to be delivered to GIANT JR
at Closing:
(1) Certificates representing all 16,000,000 shares of the WSD
Stock as described in Section 1, each endorsed in blank by the
registered owner;
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(2) an agreement from each Shareholder 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 Certificate of Good Standing for WSD issued not
more than ten (10) days prior to Closing by the Nevada,
Secretary of State;
(4) Such other documents, instruments or certificates as shall be
reasonably requested by GIANT JR or its counsel.
(b) GIANT JR shall deliver or cause to be delivered to WSD Shareholder
at Closing:
(1) A copy of a consent of GIANT JR'S board of directors
authorizing GIANT JR to take the necessary steps toward
Closing the transaction described by this Agreement in the
form set forth in Exhibit B;
(2) A copy of a Certificate of Good Standing for GIANT JR issued
not more than ten (10) days prior to Closing by the Secretary
of State of Nevada;
(3) Stock certificate(s) representing the Exchange Stock to be
newly issued by GIANT JR under this Agreement, which
certificates shall be in the name of the WSD Shareholder.
(4) Such other documents, instruments or certificates as shall be
reasonably requested by WSD Shareholder 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, GIANT JR, and the WSD Shareholder 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 the WSD Shareholders
4.1 Subject to the schedule of exceptions, attached hereto and incorporated
herein by this reference, (which schedules shall be acceptable to GIANT
JR), WSD Shareholder listed on Exhibit A represents and warrants to the
best of its knowledge as follows:
(a) Organization and Good Standing of WSD. The Articles of Incorporation
of WSD and all Amendments thereto as presently in effect, certified
by the Secretary of Nevada, and the Bylaws of WSD as presently in
effect, certified by the President and Secretary of WSD, have been
delivered to GIANT JR and are complete and correct and since the
date of such delivery, there has been no amendment, modification or
other change thereto.
(b) Capitalization. WSD's authorized capital stock is 100,000,000 shares
no par value Common Stock (defined as "WSD Common Stock"), of which
40,000,000 shares are issued and outstanding prior to the Closing
Date. All of such outstanding shares are validly issued, fully paid
and non-assessable. There are no currently outstanding options and
warrants for WSD Common Stock. All securities issued by WSD 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 WSD are
authorized, issued or outstanding.
(c) Absence of Undisclosed Liabilities. WSD has no liabilities which are
not adequately reflected or reserved against in the WSD Financial
Statements or otherwise reflected in this Agreement and WSD 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 December 31, 2004, and would be
individually or in the aggregate, material to the results of
operations or financial condition of WSD as of the Closing Date.
(e) 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 WSD or its properties. Except as disclosed in Schedule
4.1(f), there are no actions, suits or proceedings pending, or, to
the knowledge of WSD Shareholder, threatened against or affecting
WSD 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 WSD which might result in any
material adverse change in the operations or financial condition of
WSD, or which might prevent or materially impede the consummation of
the transactions under this Agreement.
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(f) Compliance with Laws. To the best of the WSD Shareholder's
knowledge, the operations and affairs of WSD 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 WSD.
(g) Absence of Certain Changes. Except as set forth in Schedule 4.1(h),
or otherwise disclosed in writing to GIANT JR, since December 31,
2004,
(i) WSD has not entered into any material transaction;
(ii) There has been no change in the condition (financial or
otherwise), business, property, prospects, assets or
liabilities of WSD as shown on the WSD December 31, 2004
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;
(iii) There has been no damage to, destruction of or loss of any of
the properties or assets of WSD (whether or not covered by
insurance) materially and adversely affecting the condition
(financial or otherwise), business, property, prospects,
assets or liabilities of WSD;
(iv) WSD 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 WSD by
way of guaranty, endorsement, indemnity, and warranty or
otherwise;
(vi) There has been no loan made by WSD to its employees, officers
or directors;
(vii) There has been no waiver or compromise by WSD 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 WSD's employees;
(ix) There has been no agreement or commitment by WSD 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 WSD or to impair materially the ability of WSD
to conduct the business now being conducted.
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(i) Assets. All of the assets reflected on the December 31, 2004, WSD
Financial Statements or acquired and held as of the Closing Date,
will be owned by WSD on the Closing Date. Except as set forth in
Schedule 4.1(j), WSD owns outright and has good and marketable
title, or holds valid and enforceable leases, to all of such assets.
(j) 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 WSD have been timely filed. Since
December 31, 2004, WSD has not incurred any liability with respect
to any federal, foreign, state or local taxes except in the ordinary
and regular course of business. On the date of this Agreement, WSD
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.
(k) Operating Authorities. To the best knowledge of WSD Shareholder, WSD
has all material operating authorities, governmental certificates
and licenses, permits, authorizations and approvals ("Permits")
required to conduct its business as presently conducted.
(l) Continuation of Key Management. To the best knowledge of WSD
Shareholders, all key management personnel of WSD intend to continue
their employment with WSD after the Closing. For purposes of this
subsection 4.1(l), "key management personnel" shall include Nick
Iyer.
(m) Finder's Fees. The WSD Shareholder 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, the WSD Shareholder has, and at
the Closing Date it will have, disclosed all events, conditions and facts
materially affecting the business and prospects of WSD. The WSD
Shareholder has not now and will not have at the Closing Date, withheld
knowledge of any such events, conditions or facts which it knows, or has
reasonable grounds to know, may materially affect WSD's business and
prospects. Neither this Agreement nor any certificate, exhibit, schedule
or other written document or statement, furnished to GIANT JR by such WSD
Shareholder 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.
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Section 5
Representations and Warranties by GIANT JR
5.1 Subject to the schedule of exceptions, attached hereto and incorporated
herein by this reference, (which schedules shall be acceptable to WSD
Shareholder), GIANT JR represents and warrants to the WSD Shareholder
listed in Exhibit A as follows:
(a) Organization and Good Standing. GIANT JR 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. GIANT JR 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
GIANT JR to carry on its business as most recently conducted. The
Articles of Incorporation of GIANT JR and all amendments thereto as
presently in effect, certified by the Secretary of State of Nevada,
and the Bylaws of GIANT JR as presently in effect, certified by the
President and Secretary of GIANT JR, have been made available to WSD
Shareholders and are complete and correct and since the date of such
delivery, there has been no amendment, modification or other change
thereto.
(b) Capitalization. GIANT JR's authorized capital stock consists of
300,000,000 shares of $.001 par value Common stock (defined above as
"GIANT JR Common Stock"), of which not more than 1,394,500 will be
issued and outstanding, prior to Closing Date and held of record by
approximately 210 shareholders. Except for up to 50 million shares
of GIANT JR. common stock reserved to be issued pursuant to a
regulation E offering and except as set forth in Schedule 5.1(b), no
other equity securities or debt obligations of GIANT JR 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 GIANT
JR Common Stock, and there will be no outstanding security of any
kind convertible into GIANT JR Common Stock. The shares of GIANT JR
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 the outstanding GIANT JR
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 GIANT
JR Common Stock.
(c) Issuance of Exchange Stock. All of the GIANT JR Common Stock to be
issued to or transferred to WSD Shareholder 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.
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(d) No Violation. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby nor
compliance by GIANT JR 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 GIANT JR or any
note, bond, mortgage, indenture, deed of trust, license,
agreement or other instrument to which GIANT JR 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 GIANT JR or any of
its properties or assets.
(e) Financial Statements. GIANT JR will deliver to WSD Shareholder prior
to Closing, copies of all of GIANT JR's audited and unaudited
financial statements through November 30, 2004, all of which are
true and complete and have been prepared in accordance with
generally accepted accounting principles.
(f) SEC Filings. GIANT JR will deliver to WSD Shareholder prior to
Closing, copies of all of GIANT JR's recent filings made with the
Securities and Exchange Commission ("SEC" including Forms 10-KSB and
10-QSB and any proxy material).
(g) Absence of Certain Changes. Since November 30, 2004 there has been
no material change in GIANT JR's financial conditions, assets or
liabilities, except as set forth in Schedule 5.1(g).
(h) Absence of Undisclosed Liabilities. Except as disclosed in GIANT
JR's Financial Statements, GIANT JR 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
November 30, 2004, and would be individually or in the aggregate,
material to the results of operation or financial condition of GIANT
JR.
(i) Litigation. There are no outstanding orders, judgments, injunctions,
awards or decrees of any court, governmental or regulatory body or
arbitration tribunal against GIANT JR or its properties. There are
no actions, suits or proceedings pending, or, to the knowledge of
GIANT JR, threatened against or relating to GIANT JR. GIANT JR 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 GIANT JR 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.
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(j) Tax Matters. Except as set forth in Schedule 5.1(j), all federal,
foreign, state and local tax returns, reports and information
statements required to be filed by or with respect to the activities
of GIANT JR have been filed for all the years and periods for which
such returns and statements were due, including extensions thereof.
Since November 30, 2004, GIANT JR 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 GIANT JR. On
the date of this Agreement, GIANT JR 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.
(k) Authority to Execute Agreement. The Board of Directors of GIANT JR,
pursuant to the power and authority legally vested in it, has duly
authorized the execution and delivery by GIANT JR of this Agreement
and the Exchange Stock, and has duly authorized each of the
transactions hereby contemplated. GIANT JR 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. GIANT
JR 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 GIANT JR in accordance with its terms.
(l) Finder's Fees. GIANT JR 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.
(m) Regulation E Offering. On March 2, 2005 GIANT JR. filed with the
Securities and Exchange Commission a Form 1-E registering for sale
under Regulation E of the Securities Act of 1933, up to 50,000,000
shares of its common stock at prices ranging between $0.10 and $3.00
per share. The offering is a "best efforts" offering and will
continue for nine months or until all 50,000,000 share are sold or
until the offering is withdrawn by order of GIANT JR. management. To
the extent shares of GIANT JR. common stock are sold in this
Regulation E offering, the ownership in GIANT JR. common stock by
the WSD Shareholder will be substantially diluted. If, for example,
30,000,000 shares are sold in the Regulation E offering, the WSD
Shareholder ownership interest in GIANT JR. will be reduced to
approximately 16%.
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5.2 Disclosure. GIANT JR has and at the Closing Date it will have, disclosed
all events, conditions and facts materially affecting the business and
prospects of GIANT JR. GIANT JR 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
GIANT JR's business and prospects. Neither this Agreement, nor any
certificate, exhibit, schedule or other written document or statement,
furnished to WSD or the WSD Shareholders by GIANT JR 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 6
Access and Information
6.1 Subject to the protections provided by subsection 7.4 herein, GIANT JR
shall give to the WSD Shareholder and its counsel, accountants and other
representatives, full access, during normal business hours throughout the
period prior to the Closing, to all of GIANT JR's properties, books,
contracts, commitments, and records, if any, and shall furnish the WSD
Shareholder during such period with all such information concerning GIANT
JR's affairs as the WSD Shareholder reasonably may request.
Section 7
Additional Covenants of the Parties
7.1 Cooperation. Both the WSD Shareholder and GIANT JR 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.
7.2 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.
7.3 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.
7.4 Confidentiality. While GIANT JR 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. The
WSD Shareholder 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.
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Section 8
Survival of Representations, Warranties and Covenants
8.1 The representations, warranties and covenants of the WSD Shareholder shall
survive the execution and delivery of this Agreement, the Closing and the
consummation of the transactions called for by this Agreement. The
representations, warranties and covenants of GIANT JR contained herein shall
survive the execution and delivery of this Agreement, the Closing and the
consummation of the transactions called for by this Agreement.
Section 9
Conditions Precedent to Obligations of Parties
9.1 Conditions to Obligations of the Parties. The obligations of GIANT JR and
the WSD Shareholder 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:
(a) All representations and warranties made by WSD Shareholder and GIANT
JR 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) WSD Shareholder and GIANT JR 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.
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9.2 Conditions to Obligations of GIANT JR. The obligations of GIANT JR to
consummate the transactions contemplated herein are subject to
satisfaction (or waiver by it) of the following conditions:
(a) The WSD Shareholder 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 GIANT JR. The foregoing
provision shall not prohibit the registration of those shares at any
time following the Closing. The WSD Shareholder acquiring Exchange
Stock will be required to transfer to GIANT JR at the Closing its
WSD Shares, free and clear of all liens, mortgages, pledges,
encumbrances or changes, whether disclosed or undisclosed.
(b) All schedules, prepared by WSD Shareholder shall be current or
updated as necessary as of the Closing Date.
(c) 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.
(d) Each party covenants that, to the best of its knowledge, it has
complied 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.
9.3 Conditions to Obligation of the WSD Shareholder. The obligations of the
WSD Shareholder to consummate the transactions contemplated herein are
subject to satisfaction (or waiver by them) of the following conditions:
(a) GIANT JR shall have provided to WSD Shareholder through November 30,
2004, all unaudited financial statements prepared in accordance with
generally accepted accounting principles by independent accountants
of GIANT JR. GIANT JR shall also provide, as of a date within thirty
days of Closing, an update on any material change in the
aforementioned financial statements.
(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.
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(c) GIANT JR and WSD Shareholder shall agree to indemnify each other
party against any liability to any broker or finder to which that
party may become obligated.
(d) Both WSD and GIANT JR 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.
Section 10
Termination, Amendment, Waiver
10.1 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 GIANT JR and the WSD Shareholder
under Section 7.4 hereof:
(a) By mutual agreement of GIANT JR and the WSD Shareholder;
(b) If the Closing (as defined in Section 3) has not have taken place on
or prior to APRIL 15, 2005, this Agreement can be terminated upon
written notice given by GIANT JR or the WSD Shareholder which is not
in material default;
(c) By GIANT JR, if in its reasonable believe there has been a material
misrepresentation or breach of warranty on the part of the WSD
Shareholder in the representations and warranties set forth in the
Agreement.
(d) By the WSD Shareholder if, in the reasonable belief of the WSD
Shareholder, there has been a material misrepresentation or breach
of warranty on the part of GIANT JR in the representations and
warranties set forth in the Agreement;
(e) By GIANT JR 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 GIANT JR's opinion or that of its counsel,
without unreasonable expense or effort;
(f) By GIANT JR or by the WSD Shareholder 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];
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(g) By GIANT JR if the business or assets or financial condition of WSD,
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 the WSD Shareholder if the business or assets or
financial condition of GIANT JR, 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 GIANT JR or WSD if, in the opinion of GIANT JR's independent
accountants, it should appear that the combined entity will not be
auditable to SEC accountants standards;
(i) By the WSD Shareholder if GIANT JR fails to perform material
conditions set forth in Sub-Section 9.1 and 9.3 herein;
(j) By GIANT JR if the WSD Shareholder fails to perform material
conditions set forth in Sub-Section 9.1 and 9.2 herein; and
10.2 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.
Section 11
Miscellaneous
11.1 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.
11.2 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.
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(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 11.9 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 11.9 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.
11.3 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.
11.4 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.
11.5 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
the WSD Shareholder or GIANT JR without prior written consent of the other
party.
11.6 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.
11.7 Governing Law. Exclusively the laws of the State of California shall
govern the validity, interpretation and effect of this Agreement.
11.8 Dispute Resolution. In the event of a dispute between the parties hereto
involving a claim of breach of representation or warranty hereunder, or to
enforce a covenant herein (either or both of which are referred to
hereafter as a "Claim"), if it is the desire of any party for quick
resolution, the rights and obligations of the parties hereto arising under
the terms of this Agreement with respect to such Claims and/or resolution
of such disputes will be by the means of the judgment of an independent
third party ("Rent-A-Judge") who has been selected and hired through the
mutual agreement of the parties. The utilization of this subsection 11.9,
if invoked by any party hereto, shall be the exclusive remedy for
resolving a Claim regardless of whether legal action has or has not been
otherwise instituted. If legal action has been instituted by any party,
and this subsection 13.9 is invoked in a timely manner, any such legal
action shall be void ab initio and immediately withdrawn.
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(a) In the event of a Claim by any party, any party may make a written
request upon the other parties for a "Rent-A-Judge." A request by
any party for the employment of a "Rent-A-Judge" to resolve the
Claim shall be binding on all other parties to this Agreement in
accordance with the terms hereof.
The parties may agree upon one "Rent-A-Judge," but in the event that
they cannot agree, there shall be three, one named in writing by
each of the parties within twenty (20) days after the initial demand
for employment of a "Rent-A-Judge," and a third chosen by the two
appointed. Should either party refuse or neglect to join in the
appointment of the "Rent-A-Judge(s)" or to furnish the
"Rent-A-Judge(s) with any papers or information demanded, the
"Rent-A-Judge(s)" are empowered by all parties to this Agreement to
proceed ex parte.
(b) Claim resolution proceedings shall take place in the City or County
of Los Angeles, State of California, and the hearing before the
"Rent-A-Judge(s)" of the matter to be arbitrated shall be at the
time and place within said city or county as is selected by the
"Rent-A-Judge(s)." The "Rent-A-Judge(s)" shall select such time and
place promptly after appointment and shall give written notice
thereof to each party at least thirty (30) days prior to the date so
fixed. At the hearing, any relevant evidence may be presented by
either party, and the formal rules of evidence applicable to
judicial proceedings shall not govern. Evidence may be admitted or
excluded in the sole discretion of the "Rent-A-Judge(s)." Said
"Rent-A-Judge(s)" shall hear and determine the matter and shall
execute and acknowledge their award in writing and cause a copy
thereof to be delivered to each of the parties.
(c) If there is only one (1) "Rent-A-Judge," his or her decision shall
be binding and conclusive on the parties, and if there are three (3)
"Rent-A-Judge(s)" the decision of any two (2) shall be binding and
conclusive.
(d) If three (3) "Rent-A-Judge(s)" are selected under the foregoing
procedure, but two (2) of the three (3) fail to reach an agreement
in the determination of the matter in question, the matter shall be
decided by three (3) new "Rent-A-Judge(s)" who shall be appointed
and shall proceed in the same manner, and the process shall be
repeated until a decision is finally reached by two (2) of the three
(3) "Rent-A-Judge(s)" selected.
(e) The costs of such Claim resolution shall be borne by the parties
equally and each party shall pay its own attorneys' fees; provided,
however, that in the event either party challenges or in any way
seeks to have the Rent-A-Judge's decision or award vacated or
corrected or modified, if the challenge is denied or the original
decision or award is affirmed, the challenging party shall pay the
costs and fees, including reasonable attorneys' fees, of the
non-challenging party, both for the challenge and for the original
Claim resolution process.
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11.9 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: WSD Shareholder
Forest Glennyre & Associate Inc.
202 N Curry Street Suite 100
Carson City
Nevada 89703
With a copy to: WALL STREET DIRECT INC:
Nick Iyer, President
2575 McCabe Way
Irvine, CA 92614
To GIANT JR INVESTMENTS CORP:
Javan Khazali, President
Giant Jr Investments Corp.
2575 McCabe Way
Irvine, California 92614
Fax (949) 486-1711
With a Copy to:
William B. Barnett, Esq.
Stone Rosenblatt & Cha
16633 Ventura Blvd., Suite 1401
Encino, CA 91436
Fax (818) 789-2269
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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 11.9 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.
GIANT JR INVESTMENTS CORP.
By: /s/ Javan Khazali
------------------------------------
Javan Khazali, President
FOREST GLENNYRE & ASSOCIATES INC.
By: /s/ Albert Aimers
------------------------------------
Albert Aimers