ADDENDUM NO. 1 TO EXCHANGE OFFER AGREEMENT
Exhibit
10.4(a)
ADDENDUM
NO. 1 TO EXCHANGE OFFER AGREEMENT
THIS
ADDENDUM NO.1 TO EXCHANGE OFFER AGREEMENT (the “Addendum”) is made as of
February __, 2010 (the “Effective Date”) by and among
Thwapr, Inc., f.k.a. Mobile Video Development, Inc., a Delaware corporation (the
“Company”) and each of
the undersigned Stockholders under that certain Exchange Offer Agreement by and
among the Company and the Stockholders dated July 20, 2009 (the “Agreement”). Capitalized terms
not specifically defined herein shall have the meaning ascribed to them in the
Agreement.
RECITALS
WHEREAS,
the Company and the Stockholders executed the Agreement dated July 20, 2009,
pursuant to which the Company and Stockholders conducted a share exchange under
Section 3(a)(9) of the Securities Act of 1933, as amended where each Stockholder
exchanged all of its issued and outstanding shares of common stock of the
Company, par value $0.0001 per share (the “Common Stock”) for shares of
preferred stock of the Company, par value $0.0001 per share (the “Series A Preferred
Stock”);
WHEREAS,
each share of Series A Preferred Stock is convertible into nine (9) shares of
Common Stock upon (i) the three (3) year anniversary of the closing of the
Offering, (ii) the Company obtaining at least 10,000,000 active registered
users, or (iii) upon the occurrence of a Change of Control;
WHEREAS,
the holders of Series A Preferred Stock are subject to certain lock-up
provisions for a period of three (3) years as set forth in Section 5 of the
Agreement;
WHEREAS,
the Company desires to convert all of the issued and outstanding shares of
Series A Preferred Stock into Common Stock and the Stockholders agree to amend
the conversion features of the Series A Preferred Stock;
NOW,
THEREFORE, in consideration of the foregoing and the promises and covenants
contained herein, the sufficiency of which is hereby acknowledged, the parties
agree as follows:
TERMS
AND CONDITIONS
1. Conversion
and Surrender. The Company and
each Stockholder agree that each share of Series A Preferred Stock held by such
Stockholder shall be converted into nine (9) shares of Common Stock (the “Stockholder Shares”) as of the
Effective Date. Each Stockholder agrees to surrender its original
Series A Preferred Stock certificate within five (5) days of the Effective Date.
The Company shall issue a new certificate evidencing the issuance of the
Stockholder Shares upon surrender by each Stockholder of its original Series A
Preferred Stock certificate for cancellation.
-1-
2. Prohibition
of Pledge, Sale or Transfer. The pledge, sale, or other
transfer of the Stockholder Shares, including (i) the use of the Stockholder
Shares 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 the Series A Preferred Stock;
or (y) upon the occurrence of a Change in Control, provided, however, that a
transfer by a Stockholder (certified by such Stockholder to the Company that
such transfer is for estate planning purposes), to (A) an immediate family
member; or (B) a trust, corporation, limited partnership or limited liability
company created by a Stockholder and in which the beneficial interest of such
trust and/or equity ownership of any such entity is for the principal benefit of
the Stockholder and/or the Stockholder’s immediate family, shall be
permitted.
3. Miscellaneous
3.1 Effectiveness; Continuity of
Terms. This Addendum shall be effective when executed by the
Company and each Stockholder. All other terms and provisions of the
Agreement shall remain in full force and effect.
3.2 Governing Law. This
Addendum shall be governed, construed and enforced in accordance with the laws
of the State of New York, without regard to the principles of conflicts of
laws.
3.3 Counterparts. This
Addendum may be executed simultaneously in two or more counterparts, any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same
agreement. This Addendum, to the extent delivered by means of a
facsimile machine or electronic mail (any such delivery, an "Electronic Delivery"), shall
be treated in all manner and respects as an original agreement or instrument and
shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. At the request
of any party hereto, each other party hereto shall re-execute original forms
hereof and deliver them in person to all other parties. No party
hereto shall raise the use of Electronic Delivery to deliver a signature or the
fact that any signature or agreement or instrument was transmitted or
communicated through the use of Electronic Delivery as a defense to the
formation of a contract, and each such party forever waives any such defense,
except to the extent such defense related to lack of authenticity.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
-2-
IN WITNESS WHEREOF, the
parties have executed this Addendum No. 1 to Exchange Offer Agreement as of the
Effective Date.
|
COMPANY:
|
||
|
Thwapr,
Inc., a Delaware corporation
|
||
|
By:
|
||
|
Chief
Financial Officer
|
||
|
STOCKHOLDERS:
|
||
|
Synthetica
Holdings, LLC
|
||
|
By:
|
||
|
Xxxxxxxx
Xxxxxxxxx, Managing Director
|
||
|
SNK
Trust
|
||
|
By:
|
||
|
Xxxx
Xxxxxxx, Its Trustee
|
||
|
By:
|
||
|
Xxxxxx
Xxxxx Xxxx
|
||
|
By:
|
||
|
Xxxxx
Xxxxxx Burgh
|
||
|
By:
|
||
|
Xxxxxxxxxx
Xxxxx
|
||
|
By:
|
||
|
Xxxxx
Xxxxxxx
|
||
-3-
