Amendment No. 1 to Stockholder and Registration Rights Agreement by and among SoftWave Media Exchange, Inc. and Stockholders

 Exhibit 10.6 AMENDMENT NO. 1 TO STOCKHOLDER AND REGISTRATION RIGHTS AGREEMENT THIS AMENDMENT NO. 1 (this "AMENDMENT NO. 1"), dated as of April 12, 2006, is made by and among SoftWave Media Exchange, Inc. (formerly Soft Wave Media, Inc.) (the "COMPANY") and each of the holders of the Company's common stock (collectively, the "STOCKHOLDERS"), to that certain Stockholder and Registration Rights Agreement dated as of January 19, 2006 by and among the Company and the Stockholders (the "AGREEMENT"). Capitalized terms used in this Amendment No. 1 but not otherwise defined shall have the meanings ascribed to them in the Agreement. RECITALS: A. The Company and the Stockholders have heretofore executed and delivered the Agreement. B. Pursuant to Section 16 of the Agreement, subject to certain limited exceptions, no change, modification or amendment of the Agreement shall be valid unless the same shall be in writing and signed by all of the parties to the Agreement. C. The Company and the Stockholders now wish to amend the Agreement. NOW THEREFORE, in consideration of the foregoing the Agreement is hereby amended as follows: 1. The definition of "Permitted Transferee" in Section 1 of the Agreement is hereby amended by striking the definition in its entirety and substituting the following in place thereof: "PERMITTED TRANSFEREE" means (i) in the case of a Founding Stockholder (or any direct or indirect Permitted Transferee of a Founding Stockholder), one or more of the following persons or entities: Soft Wave Media, LLC, Alowex, LLC, Remnant Media, LLC, Josh Wexler, Stavros Aloizos, Michael Caprio, Charles Omphalius, Jay Keay or Larry Gershman, (ii) in the case of an Investor, any entity in which Robert A. Berman, Scott Kaniewski and/or such Investor, singularly or collectively, owns at least 51% of the outstanding voting securities and (iii) any recipient of shares of common stock acquired by gift; PROVIDED, HOWEVER, that no person or entity shall be deemed to be a Permitted Transferee unless such person or entity, in connection with the purported Permitted Transfer to such person or entity, shall execute a counterpart to this Agreement, in form and substance reasonably satisfactory to the Board of Directors of the Corporation, pursuant to which such person or entity agrees to be bound by all of the terms and provisions of this Agreement. 2. Section 4 of the Agreement is hereby amended by striking the section in its entirety and substituting the following in place thereof: 4. BOARD OF DIRECTORS AND OFFICERS. During the term of this Agreement (as set forth in Section 13), each Stockholder shall vote his Shares and otherwise act so as to cause the Board of Directors of the Corporation (the "BOARD") to be comprised of up to nine persons, constituted as follows: (i) a majority of persons who are independent from the Company, as independence is  defined in Rule 4200(a)(15) of the NASD listing standards or such other listing standards as are then applicable to the Company; and (ii) one less than a majority of persons nominated by Soft Wave Media, LLC. 3. Section 5(c) of the Agreement is hereby amended by striking the section in its entirety and substituting the following in place thereof: (c) Notwithstanding anything else set forth in paragraph (a) of this Section 5, the Corporation may, at the discretion of a vote by not less than eighty percent (80%) of its Board of Directors and without the consent of any requesting Registrable Holder, withdraw any registration and abandon the proposed offering. Furthermore, if the managing underwriter of an underwritten offering advises the Corporation that in its opinion either because of (i) the size of the offering that the Corporation and any Registrable Holders desire to make or (ii) the kind of securities that the Corporation and any Registrable Holders intend to include in such offering, the success of the offering could be materially and adversely affected by inclusion of the Registrable Shares requested to be included, then (A) in the event that the size of the offering is the basis of such managing underwriter's opinion, the amount of Registrable Shares to be offered for the account of Registrable Holders shall be reduced on a pro rata basis among such Registrable Holders (on the basis of the amount of Registrable Shares intended to be included in such registration by each such Registrable Holder as compared to the aggregate amount of Registrable Shares intended to be included by all such Registrable Holders) to the extent necessary to reduce the total amount of Registrable Shares to be included in such offering to the amount recommended by such managing underwriter; and (B) in the event that the kind or combination of securities to be offered is the basis of such managing underwriter's opinion, the amount of Registrable Shares to be included in such offering shall be reduced as described in clause (A) above or, if any such reduction would, in the judgment of the managing underwriter, be insufficient to substantially eliminate the adverse effect that inclusion of the Registrable Shares requested to be included could have on such offering, such Registrable Shares shall be excluded from such underwritten offering. Notwithstanding the exclusion of such Registrable Shares from such underwritten offering, the Corporation will cause such Registrable Shares to be registered for resale in the same registration statement, provided upon the reasonable request of the managing underwriter that the requesting Registrable Holders agree not to consummate any such resale of their Registrable Shares pursuant to such registration statement for a period of up to 180 days after such registration statement is declared effective under the Securities Act. The Corporation agrees to maintain the effectiveness of such registration statement under the Securities Act for up to 12 months after such lock-up period has expired or until all such registered Registrable Shares are sold, whichever is earlier. 4. Section 13 of the Agreement is hereby amended by striking the section in its entirety and substituting the following in place thereof: 13. TERM OF AGREEMENT. This Agreement shall become effective as of the date first written above and shall remain in full force and effect until the earliest to occur of the following: (i) Corporation and all of the Stockholders then holding Shares subject to this Agreement shall agree in writing to its termination; (ii) the offering by the Corporation of shares of the Common Stock of the Corporation pursuant to a registration statement that is effective under the Securities Act or the Corporation otherwise becoming a reporting company under Section 13 or 15(d) of the Exchange Act, PROVIDED, HOWEVER, that the  provisions of Sections 5, 6 and 7 of this Agreement (and the defined terms and miscellaneous provisions of this Agreement pertaining thereto) shall remain in effect until satisfied; (iii) the purchase by one Stockholder of all the issued and outstanding Shares of the Corporation; or (iv) the dissolution, bankruptcy or receivership of the Corporation. Upon termination of this Agreement, the Secretary of the Corporation shall, as appropriate, upon tender of the certificates for Shares, delete the legends endorsed thereon pursuant to Section 8 of this Agreement. 5. Section 16 of the Agreement is hereby amended by striking the section in its entirety and substituting the following in place thereof: 16. AMENDMENT. No change, modification or amendment of this Agreement shall be valid unless the same shall be in writing and signed by the holders of at least ninety percent (90%) of the then outstanding Registrable Shares. 6. To the extent of any inconsistency, ambiguity or conflict between the terms of the Agreement and this Amendment No. 1, the terms of this Amendment No. 1 shall govern and control. 7. Except as expressly amended hereby, the Agreement shall remain unchanged and in full force and effect. [Signature Page Follows]  [SIGNATURE PAGE TO AMENDMENT NO.1 TO STOCKHOLDER AND REGISTRATION RIGHTS AGREEMENT] IN WITNESS WHEREOF, the undersigned have caused this Amendment No. 1 to be duly executed as of the date first set forth above. SOFTWAVE MEDIA EXCHANGE, INC. By: /s/ Joshua Wexler -------------------------------------- Name: Joshua Wexler Title: Chief Executive Officer STOCKHOLDER By: -------------------------------------- Name: Title: