Attached files
| file | filename |
|---|---|
| 8-K - Thwapr, Inc. | v179918_8k.htm |
| EX-3.1 - Thwapr, Inc. | v179918_ex3-1.htm |
| EX-99.2 - Thwapr, Inc. | v179918_ex99-2.htm |
| EX-10.5 - Thwapr, Inc. | v179918_ex10-5.htm |
| EX-99.1 - Thwapr, Inc. | v179918_ex99-1.htm |
| EX-10.8 - Thwapr, Inc. | v179918_ex10-8.htm |
| EX-10.7 - Thwapr, Inc. | v179918_ex10-7.htm |
| EX-10.9 - Thwapr, Inc. | v179918_ex10-9.htm |
| EX-10.6 - Thwapr, Inc. | v179918_ex10-6.htm |
| EX-10.4(A) - Thwapr, Inc. | v179918_ex10-4a.htm |
| EX-99.3 - Thwapr, Inc. | v179918_ex99-3.htm |
Exhibit
10.4
EXCHANGE
OFFER AGREEMENT
This
Exchange Offer Agreement, dated as of July 20, 2009 (the “Agreement”), by and
between the Mobile Video Development, Inc., a Delaware corporation (the
“Company”) and each of the undersigned (each a “Stockholder”, collectively, the
“Stockholders”), being the holders of all of the issued and outstanding shares
of common stock, par value $.0001 per share (the “Common Stock”).
RECITALS
WHEREAS,
the Stockholders currently hold all of the 16,000,000 issued and outstanding
shares of Common Stock of the Company;
WHEREAS,
the Company and the Stockholders desire to conduct a share exchange pursuant to
Section 3(a)(9) of the Securities Act of 1933, as amended (the “Act”), pursuant
to which the Stockholders will exchange all of their currently issued and
outstanding shares of Common Stock for shares of preferred stock, par value
$.0001 per share (the “Series A Preferred Stock”) that will be convertible into
shares of Common Stock at a ratio of 9 shares of Common Stock for each share of
Series A Preferred Stock upon certain events as described below, representing
all of the capital stock prior to the financing discussed below;
WHEREAS,
the Stockholders acknowledge that the Company is conducting an offering to issue
2,500,000 shares of Common Stock at a offering price of $4.00 per share (the
“Offering Price”) for an
aggregate offering amount of $10,000,000 Dollars (the “Offering”);
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, Subscriber and the Company agree as follows:
1. Exchange
of Common Stock for Series A Preferred Stock.
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a.
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The
Stockholders hereby agree to exchange all of their respective shares of
Common Stock of the Company, as described on Exhibit A, for shares of
Series A Preferred Stock of the Company at a ratio of 1 share of Series A
Preferred Stock for each share of Common Stock, with such rights and
designations of the Series A Preferred Stock evidenced by the Certificate
of Designations attached hereto as Exhibit B in the respective amounts
listed on Exhibit A.
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2. Conversion
of Series A Preferred Stock.
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a.
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Pursuant
to the rights and designations of the Series A Preferred Stock evidenced
by the Certificate of Designations, a copy of which is attached hereto as
Exhibit B, the shares of Series A Preferred Stock shallautomatically
convert into shares of Common Stock at a ratio of 9 shares of Common Stock
for each share of Series A Preferred Stock upon the following
events:
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A.
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(i)
the three year anniversary of the closing of the Offering, and (ii) the
Company obtains at least 10,000,000 active registered users, in cumulative
aggregate and across all its products, past and present;
or
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B.
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Upon
the occurrence of a change of control (“Change of
Control”).
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A Change
of Control shall be deemed to occur if: any of the following
occurs:
(i) Any
transaction in which shares of voting securities of the Company representing
more than 50% of the total combined voting power of all outstanding voting
securities of the Company are issued by the Company, or sold or transferred by
the stockholders of the Company as a result of which those persons and entities
who beneficially owned voting securities of the Company representing more than
50% of the total combined voting power of all outstanding voting securities of
the Company immediately prior to such transaction cease to beneficially own
voting securities of the Company representing more than 50% of the total
combined voting power of all outstanding voting securities of the Company
immediately after such transaction;
(ii) The
merger or consolidation of the Company with or into another entity as a result
of which those persons and entities who beneficially owned voting securities of
the Company representing more than 50% of the total combined voting power of all
outstanding voting securities of the Company immediately prior to such merger or
consolidation cease to beneficially own voting securities of the Company
representing more than 50% of the total combined voting power of all outstanding
voting securities of the surviving corporation or resulting entity immediately
after such merger or consolidation; or
(iii) The
sale of all or substantially all of the Company’s assets to an entity of which
those persons and entities who beneficially owned voting securities of the
Company representing more than 50% of the total combined voting power of all
outstanding voting securities of the Company immediately prior to such asset
sale do not beneficially own voting securities of the purchasing entity
representing more than 50% of the total combined voting power of all outstanding
voting securities of the purchasing entity immediately after such asset
sale.
(iv) As
a result of, or in connection with, any cash tender offer, exchange offer,
merger or other business combination, sale of assets or contested election, or
combination of the foregoing, the persons who were directors of the Company just
prior to such event shall cease to constitute a majority of the Board of
Directors; or
(v) A
tender offer or exchange offer is made for all shares of the Company’s Common
and Series A Preferred Stock (other than one made by the Company) and shares are
acquired thereunder.
2. Representations
and Warranties of Subscriber.
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a.
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Each
Stockholder is the beneficial and record holder of the number of shares of
Common Stock presented on Exhibit
A.
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b.
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Each
Stockholder has not transferred, assigned, pledged or hypothecated, in
whole or in part, their respective shares of Common Stock or granted any
interest therein or thereto.
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c.
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Each
Stockholder understands that the Series A Preferred Stock is not presently
registered.
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d.
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Each
Stockholder acknowledges that the Series A Preferred Stock must be held
indefinitely unless such Series A Preferred Stock is converted into shares
of Common Stock pursuant to the terms of the Certificate of Designations
and such shares of Common Stock are subsequently registered under the Act
or unless an exemption from such registration is
available.
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2
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e.
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Each
Stockholder acknowledges that each Stockholder has had the opportunity to
ask questions of, and receive answers from the Company or any person
acting on its behalf concerning the Company and its business and to obtain
any additional information, to the extent possessed by the Company (or to
the extent it could have been acquired by the Company without unreasonable
effort or expense) necessary to verify the accuracy of the information
received by each Stockholder. In connection therewith, each Stockholder
acknowledges that each Stockholder has had the opportunity to discuss the
Company’s business, management and financial affairs with the Company’s
management or any person acting on its behalf. Each Stockholder has
received and reviewed this Agreement, and all the information, both
written and oral, that it desires. Without limiting the generality of the
foregoing, each Stockholder has been furnished with or has had the
opportunity to acquire, and to review, all information, both written and
oral, that it desires with respect to the Company’s business, management,
financial affairs and prospects. In determining whether to enter into this
Agreement, each Stockholder has relied solely on each Stockholder’s own
knowledge and understanding of the Company and its business based upon
each Stockholder’s own due diligence investigations and the information
furnished pursuant to this paragraph. Each Stockholder understands that no
person has been authorized to give any information or to make any
representations which were not furnished pursuant to this paragraph and
each Stockholder has not relied on any other representations or
information.
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f.
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Each
Stockholder has all requisite legal and other power and authority to
execute and deliver this Agreement and to carry out and perform
Stockholder’s obligations under the terms of this Agreement. This
Agreement constitutes a valid and legally binding obligation of
Stockholder, enforceable in accordance with its terms, and subject to laws
of general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive
relief or other general principals of equity, whether such enforcement is
considered in a proceeding in equity or
law.
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g.
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Each
Stockholder has carefully considered and has discussed with Stockholder’s
professional legal, tax, accounting and financial advisors, to the extent
Subscriber has deemed necessary, the suitability of this investment and
the transactions contemplated by this Agreement for Subscriber’s
particular federal, state, local and foreign tax and financial situation
and has determined that this investment and the transactions contemplated
by this Agreement are a suitable investment for Stockholder. Each
Stockholder relies solely on such advisors and not on any statements or
representations of the Company or any of its agents. Each Stockholder
understands that each Stockholder (and not the Company) shall be
responsible for each Stockholder’s own tax liability that may arise as a
result of this investment or the transactions contemplated by this
Agreement.
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h.
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There
are no actions, suits, proceedings or investigations pending against each
individual Stockholder or Stockholder’s properties before any court or
governmental agency (nor, to Stockholder’s knowledge, is there any threat
thereof) which would impair in any way Stockholder’s ability to enter into
and fully perform Stockholder’s commitments and obligations under this
Agreement or the transactions contemplated
hereby.
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3
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i.
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The
execution, delivery and performance of and compliance with this Agreement,
and the issuance of the Series A Preferred Stock will not result in any
material violation of, or conflict with, or constitute a material default
under, any of Stockholder’s articles of incorporation or bylaws, if
applicable, or any of Stockholder’s material agreements nor result in the
creation of any mortgage, pledge, lien, encumbrance or charge against any
of the assets or properties of Stockholder or the
securities.
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j.
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Stockholder
recognizes that no federal, state or foreign agency has recommended or
endorsed the purchase of the Series A Preferred
Stock.
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k.
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In
addition, the certificates representing the Series A Preferred Stock or
Common Stock upon conversion of the Series A Preferred Stock, and any and
all securities issued in replacement thereof or in exchange therefor,
shall bear such legend as may be required by the securities laws of the
jurisdiction in which Stockholder
resides.
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1.
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Stockholder
acknowledges that Stockholder has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits
and risks of an investment in the securities and of making an informed
investment decision.
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3. Representations
and Warranties of the Company. The Company represents and warrants to
Stockholders as follows:
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a.
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The
Company is duly organized and validly exists as a corporation in good
standing under the laws of the State of
Delaware.
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b.
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The
Company has all requisite corporate power and authority to enter into,
deliver and perform this Agreement.
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c.
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All
necessary corporate action has been duly and validly taken by the Company
to authorized the execution, delivery and performance of this Agreement by
the Company, and the issuance of the Series A Preferred Stock by the
Company pursuant to this Agreement. This Agreement has been duly and
validly authorized, executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company enforceable against
the Company in accordance with the terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’
rights generally and by general principles of equity, whether considered
in a proceeding in equity of law.
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4. Miscellaneous.
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a.
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Stockholder
agrees not to transfer or assign this Agreement or any of Stockholder’s
interest herein and further agrees that the transfer or assignment of the
Series A Preferred Stock acquired pursuant hereto shall be made only in
accordance with all applicable laws, including such transfers to the
Stockholder’s legal heirs and assigns. All statements, representations,
warranties, covenants and agreements in this Agreement shall be binding on
the parties hereto and shall inure to the benefit of the respective
successors and permitted assigns of each party
hereto.
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b.
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Subscriber
has read and has accurately completed this entire Agreement including all
Exhibits attached hereto.
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4
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c.
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This
Agreement constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof and may be amended only by a written
execution by all parties.
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d.
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Stockholder
acknowledges that it has been advised to consult with its own attorney
regarding this Agreement and Stockholder has done so to the extent that
Stockholder deems appropriate.
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e.
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This
Agreement shall be enforced, governed and construed in all respects in
accordance with the laws of the State of New York, as such laws are
applied by the New York courts to agreements entered into and to be
performed in New York by and between residents of New York, and shall be
binding upon each Stockholder, each Stockholder’s heirs, estate, legal
representatives, successors and assigns and shall inure to the benefit of
the Company, its successors and
assigns.
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f.
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If
any provision of this Agreement is held to be invalid or unenforceable
under any applicable statute or rule of law, then such provision shall be
deemed modified to conform with such statute or rule of law. Any provision
hereof that may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provisions
hereof.
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g.
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All
pronouns and any variations thereof used herein shall be deemed to refer
to the masculine, feminine, singular or plural, as identity of the person
or persons may require.
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h.
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This
Agreement may be executed in counterparts and by facsimile, each of which
shall be deemed an original, but all of which shall constitute one and the
same instrument.
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5. Prohibition
of Pledge, Sale or Transfer. The pledge, sale, or other transfer of
the Series A Convertible Preferred Stock, including (i) the use of the Series A
Convertible Preferred Stock as collateral for borrowing, or (ii) the granting of
purchase options to any other person or entity, shall be prohibited until the
earlier to occur of (x) three (3) years from the date of issuance of such Series
A Convertible Preferred Stock; or (y) upon the occurrence of a Change in
Control, as defined above; provided, however, that a transfer by a Holder,
(certified by the Holder to the Company that such transfer is for estate
planning purposes), to (A) to an immediate family member; or (B) a trust,
corporation, limited partnership or limited liability company created by a
Holder and in which the beneficial interest of such trust and/or equity
ownership of any such entity is for the principal benefit of the Holder and/or
the Holder’s immediate family, shall be permitted. To the extent of any
permitted transfer, such transferred shares shall still, nonetheless, be subject
to the provisions set forth in this Certificate of Designation.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their duly authorized representatives as of the date first written
above.
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MOBILE VIDEO DEVELOPMENT,
INC.
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a
Delaware corporation
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By:
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Chief
Financial Officer
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STOCKHOLDERS:
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Synthetica
Holdings, LLC
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SNK
Trust
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By:
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By:
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Maurizio
Vecchione
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Gaye
Knowles, Its Trustee
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Managing
Director
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By:
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Jaspal
Julie Soos
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By:
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Wilma
Vander Burgh
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By:
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Kristopher
Wocks
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By:
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Jaime
Ashmore
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