AGREEMENT TO ADVANCE FUNDS
This
Agreement to Advance Funds (the "Agreement") is made by and between Yale
Xxxxx,
an individual, and Rokwader, Inc., a Delaware corporation (the
"Company").
WHEREAS,
the Company has filed a registration statement on Form SB-2, and amendment
thereto (collectively, the "Registration Statement"), with the Securities
and
Exchange
Commission (the "SEC") contemplating an offering of 125,000 shares of the
Company's common stock at $1.00 per share (the "Offering");
WHEREAS,
the Company anticipates the fees and expenses relating to the Offering will
total
approximately $100,000;
WHEREAS,
the Company anticipates first paying such expenses from its
treasury;
WHEREAS,
as of September 15, 2005, the expenses incurred relating to the Offering
totaled
$66,748 and the Company's available cash balance was $34,492;
WHEREAS,
the Company acknowledges that the fees and expenses relating to the Offering
yet to be incurred may exceed the Company's available cash balance;
and
WHEREAS,
as a director, officer and beneficial owner of shares of the Company, Xx.
Xxxxx
desires the Company to continue to pursue the registration of the shares
and to
conduct the Offering,
NOW,
THEREFORE, for and in consideration of the promises and mutual covenants
herein
contained,
and other valuable consideration, the parties hereto hereby agree as
follows:
1. Advancement
of Funds.
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(a)
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Advancement
of
funds
up to $50,000. In
consideration of the Company's commitment
to continue with the registration process and to conduct and
complete the
Offering should fees and expenses exceed the funds immediately
available
in its treasury, Xx. Xxxxx hereby agrees to advance up to a
total of
$50,000
for use towards fees and expenses relating to the Offering,
including, but
not
limited to, the legal, accounting, filing and printing costs
associated
with the Registration Statement.
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| (b) | Further advances. Xx. Xxxxx further agrees to consider any further requests for advancement of funds in excess of $50,000, but advancement of any additional funds shall remain subject to Xx. Xxxxx'x sole discretion. |
2. Requesting
an Advance
of Funds. Xx.
Xxxxx
shall advance funds upon request of the Company upon disclosure of the Company's
available cash balance, expenses incurred in relation
to the Offering to the date of the request, and a reasonable projection of
the
anticipated
fees and expenses to be incurred in relation to the Offering within the 30
day
period
subsequent to the request.
3.
Tracking
Advanced Funds. In
connection with each advance of funds by Xx. Xxxxx to the
Company, the parties shall execute a note in substantially similar form to
Exhibit
A to
this
Agreement.
4.
No
Interest on Advanced Funds. The
funds
advanced by Xx. Xxxxx shall bear no interest
nor entitle Xx. Xxxxx to any fees or any reimbursement other than the face
value
of
any
outstanding notes.
5.
Reimbursement
of Advanced Funds. The
Company shall reimburse Xx. Xxxxx for the aggregate amount of any advances,
as
reflected by any notes outstanding, upon release of the
Offering proceeds from escrow upon consummation of a merger or acquisition.
The
Company
shall repay any advances pursuant to this Agreement prior to reimbursing
costs
incurred
in relation to the consummation of the business combination.
IN
WITNESS WHEREOF, the undersigned parties have executed this Agreement upon
proper
legal authority as of the 21st
day of
September, 2005.
| /s/ Yale Xxxxx | /s/ Xxxxxxxx Xxxx | ||
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Yale Xxxxx, an individual |
Xxxxxxxx Xxxx, Chief Financial Officer
and Secretary
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EXHIBIT
A
THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE
SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD, UNLESS IT HAS
BEEN
REGISTERED UNDER SUCH ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
PROMISSORY
NOTE
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$____________
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Los
Angeles, CA
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______________,
200_
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FOR
VALUE
RECEIVED, Rokwader, Inc., a Delaware corporation (the "Company"), promises
to
pay to the order of Yale Xxxxx, an individual (the "Holder"), the principal
amount of $
, payable
upon the consummation of a business combination between the Company and an
entity to
be
identified ("Due Date"), in relation to the Company's registration and offering
of shares of common
stock pursuant to Rule 419 promulgated under the Securities Act of 1933.
The
principal
amount shall not bear any interest.
The
following is a statement of the rights of Holder and the conditions to which
this Note is subject, and to which Holder, by the acceptance of this Note,
agrees:
1. Agreement
to Advance Funds. This
Note
is being issued pursuant to the terms of the Agreement to Advance Funds entered
into by and between the Company and the Holder and dated September 21, 2005
(the
"Agreement").
2. Payments. All
payments of principal in respect of this Note shall be made in lawful
money
of
the United States of America in same day funds at the principal office of
the
Holder,
or at such other place as Holder may designate in writing. Each payment made
hereunder
shall be credited to outstanding principal due.
3. Prepayment
Privilege. This
Note
may be prepaid at any time, without premium or penalty.
4. Events
of Default. All
liabilities of the Company under this Note shall be immediately due and payable,
without notice or demand, upon or at any time after the occurrence or
existence
of any one or more of the following "Events of Default":
(a) A
proceeding shall have been instituted in a court having jurisdiction over
the
Company seeking a decree or order for relief in respect of Company in an
involuntary
case under any applicable bankruptcy, insolvency, reorganization or other
similar law and such involuntary case shall remain undismissed or unstayed
and
in effect for a period of sixty (60) consecutive days, or Company shall
commence
a voluntary case under any such law or consent to the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator, conservator (or other
similar official).
(b)
The
Company shall have filed a notice of withdrawal of the Company's registration
statement on Form SB-2 with the Securities and Exchange Commission (the
"SEC");
or
(c)
The
Company shall have failed to complete the contemplated offering within 6
months
from date of the prospectus contained in registration statement on Form SB-2
as
declared effective by the SEC.
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5.
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Successors
and Assigns. The
rights and obligations of the Company and Holder of this Note
shall be
binding upon and benefit the successors, assigns, heirs, administrators
and transferees
of the parties. The Company may not assign its obligations
hereunder
without the
consent of the Holder; the Holder may assign its rights, interests
or
obligations hereunder, in whole or in part.
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6.
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Waiver
and Amendment. Any
provision of this Note may be amended, waived or modified upon
the written
consent of the Company and Holder.
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7.
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Notices. Any
notice, request or other communication required or permitted
hereunder
shall be in writing and shall be deemed to have been duly given
if
personally delivered or mailed by registered or certified mail,
postage
prepaid, or by recognized overnight courier or personal delivery
at the
respective addresses of the parties as set forth on the register
maintained by the Company. Any party hereto may by notice so
given change
its address for future notice hereunder. Notice shall conclusively
be
deemed to have been given
when received.
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8.
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Expenses;
Waivers. If
action is instituted to collect this Note, the Company promises
to
pay
all costs and expenses, including, without limitation, reasonable
attorneys' fees, and costs,
incurred in connection with such action. The Company hereby
waives notice
of default, presentment or demand for payment, protest or notice
of
nonpayment or dishonor and
all other notices or demands relative to this
instrument.
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9.
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Governing
Law. This
Note and all actions arising out of or in connection with this
Note
shall
be governed by and construed in accordance with the laws of
the State of
California, without
regard to the conflicts of law provisions of the State of California,
or
of any other state.
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10.
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Waiver
of Jury Trial. To
the fullest extent permitted by applicable law, the Company
and
the
Holder hereby irrevocably and expressly waive all right to
a trial by jury
in any action,
proceeding, counterclaim (whether based upon contract, tort
or otherwise)
arising out of or relating to this Note, or other documents
entered in
connection herewith or the transactions contemplated
hereby.
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11.
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Headings. The
headings of the sections and subsections of this Note are inserted
for
convenience only and do not constitute a part of this
Note.
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12.
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Severability. In
case any one or more of the provisions contained in this Note
shall be
deemed
invalid, illegal, or unenforceable in any respect, the validity,
legality
and enforceability
of the remaining provisions contained herein shall not in any
way be
affected or impaired thereby.
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13.
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Miscellaneous. In
the event the Holder at any time discovers that this Note contains
an
error which was caused by clerical mistake, calculation error,
computer
error, printer error, or similar error, the Company agrees,
upon notice
from the Holder to execute any amendment or modification hereto
that is
necessary to correct any such errors, and the Company also
agrees not to
hold the Holder responsible for any damage resulting from such
error. If this Note is lost, stolen, mutilated or destroyed,
and the
Holder delivers to the
Company an indemnification in the Company's favor, signed by
the Holder,
the Company
will sign and deliver to Holder, a note identical in form and
content
which will have
the effect of the original Note for all
purposes.
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IN
WITNESS WHEREOF, the undersigned has caused this Note to be duly executed
and
delivered as of the day and year first above written.
______________________
Name:
Title:
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