Agreement and Plan of Merger, Second Amendment


    
      

      

    

    Exhibit
      10.1

     

     

    SECOND
      AMENDMENT TO

    AGREEMENT
      AND PLAN OF MERGER

     

    THIS
      FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the “Amendment”) is entered
      into as of May 31, 2007, by and among FILTERING ASSOCIATES, INC., (“FAI”), a
      Nevada corporation, and Kevin Frost and Edward Wiggins, individual stockholders
      of FAI (the “FAI Stockholders”), on the one hand, and MATINEE MEDIA CORPORATION,
      a Texas corporation (the “Company”), on the other hand.

     

    BACKGROUND

     

    A.       FAI,
      the
      FAI Stockholders and the Company entered into an Agreement and Plan of Merger
      (the “Agreement”) on April 13, 2006. All capitalized terms used herein have the
      same meanings given to them in the Agreement.

     

    B.       
      On
      December 18, 2006, FAI, the FAI Stockholders and the Company entered into a
      First Amendment to Agreement and Plan of Merger, amending the
      Agreement.

     

    C.       
      Each
      of
      FAI, the FAI Stockholders and the Company desires to amend the Agreement again
      by entering into this Amendment.

     

    NOW,
      THEREFORE, for good and valuable consideration, the receipt and sufficiency
      of
      which are hereby acknowledged, the parties hereby agree as follows:

     

    1.       
      Section
      1.08 of the Agreement is hereby amended to read in its entirety as
      follows:

     

    “Stock
      Cancellation.
      On or
      before the Closing, FAI shall cause to be cancelled 1,662,214 shares of the
      outstanding FAI Common Stock held by certain of its stockholders who hold
      restricted Common Stock and it shall transfer to such stockholders its existing
      business and related assets and liabilities in consideration of the cancellation
      of their FAI Common Stock. Such stockholders, by their signature below, agree
      to
      the cancellation of their stock as aforesaid and to the assumption of all
      liabilities of the existing FAI business. After the cancellation of these
      shares, the total outstanding shares of FAI Common Stock as of immediately
      prior
      to the Effective Time of the Merger shall not exceed 1,210,786
      shares.”

     

    2.       
      Section
      2.01(b) of the Agreement is hereby amended to read in its entirety as
      follows:

     

    “Conversion
      of Company Stock.
      Except
      as otherwise provided herein, each issued and outstanding share of Company
      Stock
      shall be converted into one share of Public FAI Common Stock (“Company Exchange
      Ratio”). Certificates representing such number of shares of Company Stock shall
      be exchanged for certificates representing an equal number of shares of Public
      FAI Common Stock.”

     

    
      
        
        

      

      
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    3.       
      Section
      2.03(c) of the Agreement is hereby deleted in its entirety.

     

    4.       
      The
      last
      sentence of Section 3.02(e) of the Agreement is hereby amended to read in its
      entirety as follows:

     

    “FAI
      does
      not have, and at the Effective Time of the Merger FAI will not have, any
      liabilities or obligations of any nature (whether accrued, absolute, contingent
      or otherwise) which, individually or in the aggregate, exceed
      $200,000.”

     

    5.       
      Section
      4.01(b) of the Agreement is hereby amended to read in its entirety as
      follows:


    “sell,
      assign or otherwise transfer any of their assets, except for the sale of
      Broadcast Licenses by the Company, as determined by its Board of Directors,
      cancel or compromise any debts or claims relating to their assets, other than
      for fair value, in the ordinary course of business, and consistent with past
      practice, or declare, set aside or pay any dividend or distribution payable
      in
      cash, stock, property or otherwise (other than (A) a declaration and payment
      by
      the Company, so long as the appropriate amount of such dividends are held in
      trust and paid to the holders of the FAI Common Stock if the Merger is
      consummated, or (B) in connection with the cancellation of those shares of
      common stock held by the FAI Stockholders specified in Section 1.08 of this
      Agreement);”

     

    6.       
      Section
      5.01 of the Agreement is hereby amended to read in its entirety as
      follows:

     

    “Shareholder
      Approvals.
      FAI
      will, as promptly as practicable following June 1, 2007, call, give notice
      of,
      convene and hold a meeting of its shareholders (the “Shareholders Meeting”) for
      the purpose of obtaining the FAI Shareholder Approval. As soon as practicable
      after the date of this Agreement, FAI shall file with the S.E.C. a registration
      of Form S-4 (such registration statement, and any amendments or supplements
      thereto, collectively, the “Merger Registration Statement”) covering the
      issuance of Public FAI Common Stock to the holders of the Company Stock in
      the
      Merger. FAI shall use its best efforts to cause the Merger Registration
      Statement to be declared effective under the Securities Act as promptly as
      possible after the filing thereof, and shall cause the proxy statement included
      in the Merger Registration Statement (the “Proxy Statement”) to be mailed to the
      holders of the FAI Stock. FAI agrees to provide the Company and its counsel
      with
      any written or oral comments FAI or its counsel may receive from the S.E.C.
      with
      respect to the Merger Registration Statement promptly after the receipt of
      such
      comments. FAI shall also provide the Company and its counsel a reasonable
      opportunity to review each of the filings relating to the Merger Registration
      Statement prior to its filing with the S.E.C. or dissemination to the holders
      of
      the FAI Stock and to participate, including by way of discussions with the
      S.E.C., in the response of FAI to such comments. The Company agrees to pay
      all
      reasonable out-of-pocket expenses incurred by FAI in connection with the Merger
      Registration Statement. The Board of Directors of FAI will take all lawful
      action to solicit such approval, including, without limitation, the timely
      mailing of the Proxy Statement. At the Shareholders Meeting, the FAI
      Shareholders will vote all FAI Stock held by them in favor of the adoption
      and
      approval of this Agreement, the Merger and the transactions contemplated hereby.
      The Company will, as promptly as practicable following June 1, 2007, call,
      give
      notice of, convene and hold a meeting of its shareholders, or obtain the written
      consent of the holders of at least two-thirds of the outstanding Company Stock,
      for the purpose of obtaining the Company Shareholder Approval.”

     

    
      
        
        

      

      
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    7.        
      Section
      6.03(c) of the Agreement is hereby amended to read in its entirety as
      follows:

     

                      
      “(c)    Forgiveness
      of Excess Liabilities.
      FAI and
      the FAI Shareholders shall have obtained for the benefit of Public FAI, prior
      to
      the Closing Date, the forgiveness or satisfaction of (i) sufficient liabilities
      or obligations of FAI necessary so that the liabilities and obligations of
      FAI
      at the Effective Time of the Merger do not exceed the limitation of $200,000
      set
      forth in Section 3.02(e) of this Agreement.”

     

    8.       
      Section
      7.01(c) of the Agreement is hereby amended to read in its entirety as
      follows:

     

              
      “(c) by
      either
      FAI or the Company, so long as such party is not in breach hereunder, if the
      Merger shall not have been consummated on or before September 30, 2007 (other
      than as a result of the failure of the party seeking to terminate this Agreement
      to perform its obligations under this Agreement required to be performed at,
      or
      prior to, the Effective Time of the Merger, in which event such party may not
      terminate this Agreement pursuant to this provision for a period of ten days
      following such party’s cure of such failure); provided,
      however,
      that if
      either FAI or Company requests an extension of the Closing after this date
      and
      the other party consents in writing, then neither party may terminate this
      Agreement under this provision until the expiration of such extension
      period;”

     

    9.   Except
      as
      and to the extent expressly amended by this Amendment, the Agreement remains
      in
      full force and effect in accordance with its terms.

     

                      
      10.      This
      Amendment may be executed by the parties hereto in separate counterparts, each
      of which when so executed and delivered will be an original, but all such
      counterparts will together constitute one and the same instrument.

     

    [signature
      page follows]

     

    
      
        
          
          

        

        
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    IN
      WITNESS WHEREOF, the undersigned have caused their duly authorized officers
      to
      execute this Amendment as of the date first above written.

     

     

    
      	FAI
              STOCKHOLDERS:	 	 	
              FILTERING
                ASSOCIATES, INC.

               

               

            
	/s/
              Kevin Frost	 	
              By: 
                

            	/s/
              David Choi        
	
              
Kevin
              Frost	 	 	
              

            
	
               

              /s/
                Edward Wiggins

              
                
Edward
                Wiggins

            	 	 	
               

              Name:
                David Choi

              
                

              

              
                 

                Its: President

              

              
                

              

            


    

     

     

    
      	 	 	 	
              MATINEE
                MEDIA CORPORATION

               

               

            
	 	 	
              By: 
                

            	/s/
              Robert Walker
	
            	 	 	
              

            
	
            	 	
               

               

               

            	
               

              Name:
                Robert Walker

              
                

              

              
                 

                Its: President, CEO

              

              
                

              

               

            


    

     

     

     

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