Unassociated Document


    
      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.

     

    
      	
               
      

            	
              a.

            	
              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.

            


    

     

    2.           Conversion
of Series A Preferred Stock.

     

    
      	
               
      

            	
              a.

            	
              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:

            


    

     

    
      	
               
      

            	
              A.

            	
              (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

            


    

     

    
      	
               
      

            	
              B.

            	
              Upon
      the occurrence of a change of control (“Change of
    Control”).

            


    

     

    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.

     

    
      	
               
      

            	
              a.

            	
              Each
      Stockholder is the beneficial and record holder of the number of shares of
      Common Stock presented on Exhibit
A.

            


    

     

    
      	
               
      

            	
              b.

            	
              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.

            


    

     

    
      	
               
      

            	
              c.

            	
              Each
      Stockholder understands that the Series A Preferred Stock is not presently
      registered.

            


    

     

    
      	
               
      

            	
              d.

            	
              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.

            


    


    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              e.

            	
              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.

            


    

     

    
      	
               
      

            	
              f.

            	
              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.

            


    

     

    
      	
               
      

            	
              g.

            	
              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.

            


    

     

    
      	
               
      

            	
              h.

            	
              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.

            


    


    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              i.

            	
              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.

            


    

     

    
      	
               
      

            	
              j.

            	
              Stockholder
      recognizes that no federal, state or foreign agency has recommended or
      endorsed the purchase of the Series A Preferred
  Stock.

            


    

     

    
      	
               
      

            	
              k.

            	
              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.

            


    

     

    
      	
               
      

            	
              1.

            	
              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.

            


    

     

    3.          Representations
and Warranties of the Company.  The Company represents and warrants to
Stockholders as follows:

     

    
      	
               
      

            	
              a.

            	
              The
      Company is duly organized and validly exists as a corporation in good
      standing under the laws of the State of
  Delaware.

            


    

     

    
      	
               
      

            	
              b.

            	
              The
      Company has all requisite corporate power and authority to enter into,
      deliver and perform this Agreement.

            


    

     

    
      	
               
      

            	
              c.

            	
              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.

            


    

     

    4.          Miscellaneous.

     

    
      	
               
      

            	
              a.

            	
              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.

            


    

     

    
      	
               
      

            	
              b.

            	
              Subscriber
      has read and has accurately completed this entire Agreement including all
      Exhibits attached hereto.

            


    


    
      
         


      

      
        4

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              c.

            	
              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.

            


    

     

    
      	
               
      

            	
              d.

            	
              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.

            


    

     

    
      	
               
      

            	
              e.

            	
              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.

            


    

     

    
      	
               
      

            	
              f.

            	
              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.

            


    

     

    
      	
               
      

            	
              g.

            	
              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.

            


    

     

    
      	
               
      

            	
              h.

            	
              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.

            


    

     

    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.


    
      
         


      

      
        5

        
          

        

      

      
         


      

    


    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.

     

    
      
        	
                MOBILE VIDEO DEVELOPMENT,
      INC.

              	 
      	 
      	 
      
	
                a
      Delaware corporation

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
                By:

              	 
      	 
      	 
      	 
      
	 
      	
                Chief
      Financial Officer

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                STOCKHOLDERS:

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
                Synthetica
      Holdings, LLC

              	 
      	
                SNK
      Trust

              
	 
      	 
      	 
      	 
      
	
                By:

              	 
      	 
      	
                By:

              	 
      
	 
      	
                Maurizio
      Vecchione

              	 
      	 
      	
                Gaye
      Knowles, Its Trustee

              
	 
      	
                Managing
      Director

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                By:

              	 
      	 
      	 
      	 
      
	 
      	
                Jaspal
      Julie Soos

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                By:

              	 
      	 
      	 
      	 
      
	 
      	
                Wilma
      Vander Burgh

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                By:

              	 
      	 
      	 
      	 
      
	 
      	
                Kristopher
      Wocks

              	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                By:

              	 
      	 
      	 
      	 
      
	 
      	
                Jaime
      Ashmore

              	 
      	 
      	 
      


      

    


    
      
         


      

      
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