Exhibit 10.15
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (this "AGREEMENT") is made and entered
into as of January 19, 2006, by and between Soft Wave Media, LLC, a New York
limited liability company ("SOFT WAVE"), Soft Wave Media, Inc., a Delaware
corporation ("NEWCO"), Alowex, LLC, a New York limited liability company
("ALOWEX") and Remnant Media, LLC, a New York limited liability company
("REMNANT").
RECITALS
WHEREAS, Newco is a newly-formed Delaware corporation; and
WHEREAS, the authorized capital stock of Newco currently consists of
250,000,000 shares of common stock, par value $.01 per share (the "COMMON
STOCK"), of which 10,000 shares are issued and outstanding, all of which are
held by Soft Wave; and
WHEREAS, Soft Wave is currently owned by Alowex and Remnant; and
WHEREAS, Soft Wave is the obligor of a promissory note, dated
January 19, 2006, in the original principal amount of $1,400,000 that is payable
to Alowex (the "SOFT WAVE PROMISSORY NOTE"); and
WHEREAS, Soft Wave and Alowex are parties to a certain Security
Agreement, dated January 19, 2006 (the "SOFT WAVE SECURITY AGREEMENT"), pursuant
to which Soft Wave has granted to Alowex a security interest in certain assets
of Soft Wave; and
WHEREAS, Soft Wave is obligated to Alowex pursuant to a certain
letter agreement, dated as of January 19, 2006 (the "ALOWEX LETTER AGREEMENT"),
pursuant to which Soft Wave has agreed to pay Alowex, upon the terms and
conditions set forth in the Alowex Letter Agreement, $1,300,000 upon the
consummation of a Qualified Offering; and
WHEREAS, Soft Wave is obligated to Remnant pursuant to a certain
letter agreement, dated as of January 19, 2006 (the "REMNANT LETTER AGREEMENT"),
pursuant to which Soft Wave has agreed to pay Remnant, upon the terms and
conditions set forth in the Remnant Letter Agreement, $1,300,000 upon the
consummation of a Qualified Offering; and
WHEREAS, Soft Wave desires to contribute, assign, transfer, convey
and deliver to Newco, and Newco desires to accept and receive from Soft Wave,
all of Soft Wave's assets subject to all of Soft Wave's liabilities (including
the Soft Wave Promissory Note, the Alowex Letter Agreement and the Remnant
Letter Agreement), all upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing, and the mutual
covenants and agreements set forth herein, the parties hereto, intending to be
legally bound, do hereby covenant and agree as follows:
1. DEFINITIONS.
As used herein, the terms below shall have the following meanings:
"AGREEMENT" shall have the meaning set forth in the introduction to
this Agreement.
"ALOWEX" shall have the meaning set forth in the introduction to
this Agreement.
"ALOWEX LETTER AGREEMENT" shall have the meaning set forth in the
recitals to this Agreement.
"BUSINESS" shall mean the web-based radio advertising business
operated by Soft Wave at the following Internet website: xxx.xxxxxxxxxxxx.xxx.
"CLOSING" shall have the meaning set forth in Section 3 of this
Agreement.
"COMMON STOCK" shall have the meaning set forth in the recitals to
this Agreement.
"EXCLUDED ASSETS" shall mean those assets of Soft Wave set forth on
EXHIBIT A2.
"EXCLUDED LIABILITIES" shall mean those Liabilities of Soft Wave set
forth on EXHIBIT B2.
"INSTRUMENT OF ASSIGNMENT" shall have the meaning set forth in
Section 3 of this Agreement.
"INSTRUMENT OF ASSUMPTION" shall have the meaning set forth in
Section 3 of this Agreement.
"LIABILITIES" shall mean any and all liabilities, debts,
obligations, covenants, guaranties, indemnities, demands, claims, causes of
action or charges of any nature, whether absolute or contingent, matured or
unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown,
whenever arising, and including those arising under any law, rule, regulation,
action, threatened or contemplated action, order or consent decree of any
governmental authority or any award of any arbitrator or mediator of any kind,
and those arising under any contract, commitment or undertaking, including those
arising under this Agreement, whether or not recorded or reflected or required
to be recorded or reflected on the financial statements of Soft Wave.
"NEWCO" shall have the meaning set forth in the introduction to this
Agreement.
"NEWCO PROMISSORY NOTE" shall have the meaning set forth in Section
4 of this Agreement.
"NEWCO SECURITY AGREEMENT" shall have the meaning set forth in
Section 4 of this Agreement.
"PATENT APPLICATION ASSIGNMENT" shall have the meaning set forth in
Section 3 of this Agreement.
"PERSON" shall mean any individual, partnership (whether general or
limited), limited liability company, corporation, trust, estate, association,
nominee or other entity.
"REMNANT" shall have the meaning set forth in the introduction to
this Agreement.
"REMNANT LETTER AGREEMENT" shall have the meaning set forth in the
recitals to this Agreement.
"SOFT WAVE" shall have the meaning set forth in the introduction to
this Agreement.
"SOFT WAVE PROMISSORY NOTE" shall have the meaning set forth in the
recitals to this Agreement.
"SOFT WAVE SECURITY AGREEMENT" shall have the meaning set forth in
the recitals to this Agreement.
"SUBJECT ASSETS" shall have the meaning set forth in Section 2 of
this Agreement.
"SUBJECT LIABILITIES" shall have the meaning set forth in Section 2
of this Agreement.
2. CONTRIBUTION OF ASSETS AND ASSUMPTION OF LIABILITIES.
(a) Soft Wave, upon the terms and conditions set forth in this
Agreement, does hereby agree to contribute, assign, transfer, convey and deliver
to Newco, on an as-is, where-is basis, and Newco does hereby agree to accept and
receive from Soft Wave, at the closing provided for in Section 3 of this
Agreement, all of Soft Wave's right, title and interest in and to the assets of
Soft Wave set forth on EXHIBIT A1 (the "SUBJECT ASSETS").
(b) Newco, upon the terms and conditions set forth in this Agreement,
does hereby agree to assume and faithfully perform, satisfy and fulfill in
accordance with their respective terms and, at the closing provided for in
Section 3 of this Agreement, will so assume, all of the Liabilities of Soft Wave
set forth on EXHIBIT B1 (the "SUBJECT LIABILITIES"). For purposes of clarity, it
is noted that the Subject Liabilities include the liabilities and obligations of
Soft Wave under the Soft Wave Promissory Note, the Alowex Letter Agreement and
the Remnant Letter Agreement.
(c) In connection with the above-described transfer of the Subject
Assets, subject to the Subject Liabilities, Newco shall issue to Soft Wave
159,990,000 shares of Newco Common Stock.
(d) It is intended by the parties hereto that the transfer of the
Subject Assets, subject to the Subject Liabilities, shall be governed by and
qualify for tax-free treatment under Section 351 of the Internal Revenue Code of
1986, as amended.
3. CLOSING.
(a) The closing of the transactions contemplated under this Agreement
(the "CLOSING") shall take place concurrent with the execution and delivery of
this Agreement.
(b) At the Closing, Soft Wave shall execute and deliver:
(i) an instrument of assignment in substantially the form
attached hereto as EXHIBIT C (the "INSTRUMENT OF ASSIGNMENT");
(ii) a patent application assignment in substantially the form
attached hereto as EXHIBIT D (the " PATENT APPLICATION ASSIGNMENT");
and
(iii) such other bills of sale, certificates of title,
assignments of contracts and other instruments of transfer, conveyance
and assignment as and to the extent necessary to accomplish and
evidence the valid and effective contribution, transfer, conveyance and
assignment of the Subject Assets to, and the assumption of the Subject
Liabilities by, Newco.
(c) At the Closing, Newco shall execute and deliver:
(i) an instrument of assumption in substantially the form
attached hereto as EXHIBIT E (the "INSTRUMENT OF ASSUMPTION"); and
(ii) such other bills of sale, certificates of title,
assignments of contracts and other instruments of transfer, conveyance
and assignment as and to the extent necessary to accomplish and
evidence the valid and effective contribution, transfer, conveyance and
assignment of the Subject Assets to, and the assumption of the Subject
Liabilities by, Newco.
4. ALOWEX PROMISSORY NOTE AND SECURITY AGREEMENT.
(a) Alowex hereby consents to and approves in all respects the
transactions contemplated under this Agreement upon the terms and conditions set
forth herein.
(b) Remnant hereby consents to and approves in all respects the
transactions contemplated under this Agreement upon the terms and conditions set
forth herein.
(c) Soft Wave hereby consents to and approves in all respects the
transactions contemplated under this Agreement upon the terms and conditions set
forth herein.
(d) Immediately following the consummation of the contribution of the
Subject Assets and the assumption of the Subject Liabilities contemplated in
Section 2 of this Agreement, Alowex shall submit the Soft Wave Promissory Note
to Newco for cancellation and, upon such submission, Newco shall cancel the Soft
Wave Promissory Note and replace it by issuing a new substantially equivalent
promissory note in substantially the form attached hereto as EXHIBIT G (the
"NEWCO PROMISSORY NOTE").
(e) Concurrent with the issuance of the Newco Promissory Note, Newco
and Alowex shall enter into a security agreement in substantially the form
attached hereto as EXHIBIT H (the "NEWCO SECURITY AGREEMENT") which shall
replace the Soft Wave Security Agreement.
5. FURTHER ASSURANCES.
(a) From and after the Closing, each party shall execute and deliver,
or use its reasonable best efforts to cause to be executed and delivered, all
such other instruments, including instruments of conveyance, assignment and
transfer, and take all such other actions as may be necessary, consistent with
the terms of this Agreement, in order to effectuate the provisions and purposes
of this Agreement and the transfer of the Subject Assets and the assumption of
the Subject Liabilities.
(b) To the extent that any Subject Asset or Subject Liability that
would otherwise be assigned to, or assumed by, Newco at Closing pursuant to
Section 2 is not capable of being assigned or assumed without obtaining the
consent of any third party, which consent has not been received on or prior to
Closing, such Subject Asset or Subject Liability will be assigned or assumed on
the date the requisite consent is received and until such time, Soft Wave shall
be deemed to have assigned to Newco hereby the economic benefit received by Soft
Wave from and after the Closing with respect to the applicable rights and/or
interests under any such Subject Asset and shall hold such Subject Asset in
trust for Newco, and Newco shall be deemed to have assumed the economic
detriment incurred by Soft Wave from and after the Closing with respect to any
such Subject Liability.
6. MISCELLANEOUS.
(a) Any notice, payment, demand, or communication required or permitted
to be given by any provision of this Agreement shall be in writing and shall be
deemed to have been delivered, given, and received for all purposes (i) if
delivered personally to the party or to an officer of the party to whom the same
is directed, or (ii) when the same is actually received, if sent either by
registered or certified mail, postage and charges prepaid, or by Federal Express
(or other reputable overnight delivery service which provides evidence of
delivery), addressed as follows, or to such other address as such party may from
time to time specify by notice to the other party:
(i) If to Soft Wave, to the address of Soft Wave set forth on
the signature page to this Agreement;
(ii) If to Newco, to the address of Newco set forth on the
signature page to this Agreement;
(iii) If to Alowex, to the address of Alowex set forth on the
signature page to this Agreement; and
(iv) If to Remnant, to the address of Remnant set forth on the
signature page to this Agreement.
(b) Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, transferees, and
permitted assigns. No party may assign this Agreement without the prior written
consent of the other party. Any attempted assignment contrary to the foregoing
shall be void.
(c) Every covenant, term, and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against
any party.
(d) Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define, or
limit the scope, extent, or intent of this Agreement or any provision hereof.
(e) Except as otherwise provided in the succeeding sentence, every
provision of this Agreement is intended to be severable, and, if any term or
provision of this Agreement is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the validity or legality of the
remainder of this Agreement. The preceding sentence of this subsection shall be
of no force or effect if the consequence of enforcing the remainder of this
Agreement without such illegal or invalid term or provision would be to cause
any party to lose the material benefit of its economic bargain.
(f) All terms and any variations thereof shall be deemed to refer to
masculine, feminine, or neuter, singular or plural, as the identity of the
Person or Persons may require.
(g) The laws of the State of New York shall govern the validity of this
Agreement, the construction of its terms, and the interpretation of the rights
and duties arising hereunder.
(h) Each of the parties irrevocably waives to the extent permitted by
law, all rights to trial by jury and all rights to immunity by sovereignty or
otherwise in any action, proceeding or counterclaim arising out of or relating
to this Agreement.
(i) This Agreement and the agreements referenced herein or contemplated
hereunder or thereunder contain the entire agreement of the parties with respect
to the subject matter hereof. This Agreement may not be altered, amended,
changed, modified, waived or terminated in any respect or particular unless the
same shall be in writing signed by the party to be bound.
(j) This Agreement may be executed in any number of counterparts with
the same effect as if all of the parties had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
[the next page is the signature page]
[signature page to Contribution Agreement]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the day and year first above written.
SOFT WAVE MEDIA, LLC
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Manager
ADDRESS:
XXX XXXXXX XXXXXX, XXXXX 00
XXXXXXXXX, XX 00000
SOFT WAVE MEDIA, INC.
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: CEO
ADDRESS:
XXX XXXXXX XXXXXX, XXXXX 00
XXXXXXXXX, XX 00000
ALOWEX, LLC
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Manager
ADDRESS:
XXX XXXXXX XXXXXX, XXXXX 00-00
XXXXXXXXX, XX 00000
REMNANT MEDIA, LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Member
ADDRESS:
XXX XXXXXX XXXXXX, XXXXX 00
XXXXXXXXX, XX 00000
