EXHIBIT 2.1
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (the "Agreement") dated as of May 17, 2007 (the
"Effective Date"), is made by and between Fluid Media Networks, Inc., a Delaware
corporation (the "Parent"), and Fluid Media Networks USA, Inc., a Delaware
corporation and a wholly owned direct subsidiary of Parent (the "Subsidiary").
W I T N E S S E T H:
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WHEREAS, the Subsidiary is a wholly owned subsidiary of the Parent; and
WHEREAS, the Parent desires to contribute all of the Parent's assets and
liabilities ("Contributed Capital") to the Subsidiary as a capital contribution,
in consideration for ownership of all of the issued and outstanding capital
stock of the Subsidiary;
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties, covenants and agreements hereinafter set forth, the
parties hereto do hereby agree as follows:
1. CONTRIBUTION AND ISSUANCE OF SHARES.
1.1. Contribution and Issuance of Shares. (i) The Parent hereby
contributes, conveys, transfers, assigns and delivers to the Subsidiary all of
the Parent's right, title and interest in and to all of Contributed Capital, and
the Subsidiary agrees to accept such contribution, and (ii) the Subsidiary, in
exchange and as full consideration for such Contributed Capital, hereby issues
to the Parent one hundred (100) shares of its common stock, as evidenced by
stock certificate no. 1 of the Subsidiary (the "Issued Shares"), free and clear
of all liens, claims, security interests and other encumbrances. Each of the
Parent and the Subsidiary intends that the contribution of the Contributed
Capital be treated as a capital contribution under Section 351 of the Internal
Revenue Code of 1986, as amended.
1.2. Representations or Warranties. The Subsidiary acknowledges and agrees
that it accepts the Contributed Capital described in Section 1.1 above "as is,
where is" with all defects. Each of the Subsidiary and the Parent understands
and agrees that in conjunction with such contribution and issuance, the Parent
and the Subsidiary are making no representations or warranties whatsoever,
either express or implied, except for the following:
(a) The execution, delivery and performance by each party of this
Agreement are within such party's corporate powers, have been duly authorized by
all necessary corporate action, and do not (i) contravene such party's
constituent documents, (ii) violate any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award applicable to such party,
or (iii) conflict with or result in the breach of, or constitute a default
under, any contractual obligation of such party.
(b) This Agreement has been duly executed and delivered by such party
and is the legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or limiting creditors' rights or by equitable principles
generally.
(c) Upon issuance of the Issued Shares, such shares will represent one
hundred percent (100%) of the issued and outstanding capital stock of the
Subsidiary, and will be duly issued, fully paid, non-assessable, and free from
all liens, claims, security interests and other encumbrances.
1.3 Delivery of Issued Share Certificates. In conjunction with the
execution of this Agreement, the Subsidiary shall deliver a properly executed
stock certificate no. 1 to the Parent evidencing the Issued Shares.
1.4 Assumption of Liabilities. The parties understand and agree that, on
the Effective Date, the Subsidiary shall assume and perform all of the Parent's
rights and obligations arising from or otherwise associated with or related to
the Contributed Capital.
2. MISCELLANEOUS.
2.1. Entire Agreement. This Agreement contains, and is intended as, a
complete statement of all of the terms and the arrangements between the parties
with respect to the matters provided for, supersede any previous agreements and
understandings between the parties with respect to those matters, and cannot be
changed or terminated orally. No party makes, and each party hereby expressly
disclaims reliance upon, any representations or warranties with respect to the
transactions contemplated hereby.
2.2. Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of Delaware applicable to agreements made
and to be performed therein, without regard to any conflict of laws principles
that would cause the application of the laws of any other jurisdiction.
2.3. Headings. The section headings contained in this Agreement are solely
for the purpose of reference, are not part of the Agreement of the parties and
shall not in any way affect the meaning or interpretation of this Agreement.
2.4. Counterparts; Facsimile Signature. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. Any counterpart
of this Agreement may be executed by facsimile signature, which shall be deemed
to be an original.
2.5 Further Assurance. The Parent and the Subsidiary each agree, from time
to time after the Effective Date, upon the request of the other and without
further consideration, to do, execute, acknowledge and deliver, or to cause to
be done, executed, acknowledged and delivered, all such further acts, deeds,
assignments, transfers, conveyances, powers of attorney, consents and assurances
as might be required, or reasonably necessary (including, but not limited to,
obtaining third party consents), to give effect to this Agreement and to allow
each party full to enjoy and exercise the rights accorded to and acquired by it
under this Agreement.
2.6 Severability. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof, is invalid or
unenforceable, (a) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid or unenforceable provision and (b) the
remainder of this Agreement and the application of such provision to other
persons, entities or circumstances shall not be affected by such invalidity or
unenforceability.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
FLUID MEDIA NETWORKS, INC.
By:
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Name: Xxxxxx X. Xxxxxxx
Title: CEO
FLUID MEDIA NETWORKS USA, INC.
By:
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Name: Xxxxxxx Xxxxxxx
Title: Chief Strategic Officer; Secretary
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