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EXHIBIT 10.24
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PREINCORPORATION AND
CONTRIBUTION AGREEMENT
DATED AS OF AUGUST 1, 1998
AMONG
INTERACTIVE KNOWLEDGE, INC.,
INFOMASTER CD-ROM, LLC,
INFOMASTER, INC.,
XXXXXXX X. XXXXXXX AND XXXX XXXXXXXX XXXXXXX,
XXXXX XXXXXXXX AND XXXXXXX XXXXXXXX,
AND
F. XXXXX XXXXX
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PREINCORPORATION AND CONTRIBUTION AGREEMENT
This PREINCORPORATION AND CONTRIBUTION AGREEMENT, dated as of August 1,
1998 (the "Effective Date"), is among Interactive Knowledge, Inc., a Delaware
corporation (the "Company"), InfoMaster CD-ROM, LLC, a Colorado limited
liability company ("LLC"), InfoMaster, Inc., a Colorado corporation ("Inc."),
Xxxxxxx X. Xxxxxxx and Xxxx Xxxxxxxx Xxxxxxx, as joint tenants ("Xxxxxxx"),
Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx, as joint tenants ("Xxxxxxxx") and F. Xxxxx
Xxxxx ("Xxxxx"). Xxxxxxx, Xxxxxxxx and Xxxxx are sometimes collectively
referred to below as the "Individual Transferors," and the Individual
Transferors, Inc. and LLC are collectively referred to as the "Transferors."
RECITALS:
A. LLC and Inc. own all right, title and interest in and to
certain intellectual property rights, equipment and intangibles relating to a
proposed business involving the distribution of books and other materials over
the Internet.
B. The parties have caused to be formed a new Delaware
corporation, Interactive Knowledge, Inc., for the purpose of continuing the
development and commercialization of the intellectual property rights and
related assets relating to the proposed netLibrary business, and desire to
restructure the ownership of the netLibrary assets.
C. The Company is seeking an equity investment in the amount of
at least $5 million.
D. The parties desire to set forth their agreement concerning
certain aspects of the formation of the Company, the transfer of assets to and
assumption of liabilities by the Company, the issuance of stock by the Company,
and certain related matters.
ARTICLE 1
CERTAIN DEFINITIONS
The following terms, when used with initial capitals in this Agreement,
are defined below and are used in this Agreement with the same meaning:
"Bank Loan" shall consist of a revolving line of credit, in the
aggregate amount of up to $250,000, made to LLC by Bank of Boulder.
"Equipment" shall mean the tangible personal property described on
Exhibit A, including both tangible personal property currently owned by Inc.
(the "Inc. Equipment"), and such property currently owned by LLC (the "LLC
Equipment").
"Equity Closing" shall mean the closing of an equity investment of at
least $5.0 million for Series A preferred stock of the Company, representing at
least $2.5 million by Sequel Limited
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Partnership and affiliates and at least $2.5 million by Anschutz Corporation.
The Equity Closing will require a restatement of the Certificate of
Incorporation of the Company to authorize the shares to be issued in the
transaction.
"Excluded Assets" shall mean the property rights identified on Exhibit
C.
"NetLibrary Assets" shall mean all of the tangible and intangible
property currently owned by Inc. and LLC, including without limitation the
assets described on Exhibit B and the Equipment, but excluding the Excluded
Assets.
ARTICLE 2
PREINCORPORATION TRANSFERS
2.1 Ownership of Assets by LLC. LLC and Inc. shall execute and
deliver such assignments and documents as are reasonably necessary to cause LLC
to own all right, title and interest of LLC and Inc. in and to the NetLibrary
Assets (other than the Inc. Equipment).
2.2 Distribution by LLC. LLC shall distribute to each of the
Individual Transferors an undivided interest, in proportion to each Individual
Transferor's ownership interest in LLC, in the NetLibrary Assets, and the
Individual Transferors shall pay LLC cash received from the Company pursuant to
Section 3.1 in the amount of $300,000. LLC shall apply such amount to retire
the Bank Loan in full, and shall obtain a release of all liens or security
interests securing the Bank Loan. In consideration for such distribution and
assignment, all or a portion of the interest in LLC of the Individual
Transferors shall be redeemed, resulting in a proportionate reduction in the
Sharing Ratios (as defined in the Operating Agreement for the LLC) of the
Individual Transferors.
ARTICLE 3
TRANSFERS TO THE COMPANY AND ISSUANCE OF SHARES
3.1 Transfers to the Company by Individual Transferors. Each of
the Individual Transferors hereby agrees that, following the transactions
described in Article 2, he or she will transfer to the Company all of his or
her entire right, title and interest in and to the NetLibrary Assets, in
consideration for shares of the $.001 common stock of the Company and a cash
payment in the aggregate amount of $300,000. The parties intend that this
transfer will qualify as, and agree that it will be reported as, a nontaxable
exchange under section 351(a) of the Code (subject to the provisions of
sections 351(b) and 357(c) of the Code). The undivided interests in the
NetLibrary Assets, the number of shares of the Company's common stock to be
issued, and the amount of the cash payment with respect to each Individual
Transferor are as follows:
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Individual Undivided Shares of Company
Transferor Interest Common Stock Cash Payment
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Xxxxxxx 40% 990,099 $120,000
Xxxxxxxx 40% 990,099 $120,000
Xxxxx 20% 495,050 $60,000
3.2 Assumption of Liabilities. Simultaneously with the transfer
of the assets as set forth in Section 3.1, the Company agrees to assume the
obligations of InfoMaster, Inc. under the letter agreement with Concept
Ventures dated February 19, 1998. The Company shall indemnify, defend and hold
harmless the Transferors from such obligation; provided that the Company shall
not be liable for any breach under any of such agreement occurring prior to
Closing, or for any liabilities of the Transferors arising before the date of
Closing except as otherwise specifically set forth in this Agreement.
3.3 Additional Founders' Shares. Simultaneously with the
transfers described under Section 3.1, the Company shall issue to the following
individuals, in consideration for services provided by them in connection with
the formation of the Company, shares of the Company's common stock as follows:
Stockholder Number of Shares
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Xxxxxxx X. Xxxxxxx 495,049
Xxxxx X. Xxxxxxxx 90,000
Xxxx Xxxxxx 30,000
Xxxxx Xxxxxxxx 29,703
The shares of the Company's common stock issued as provided above (other than
those issued to Xxxxx Xxxxxxxx, which shall be fully vested on issuance) shall
be subject to Founders Stock Purchase Agreements substantially in the form
attached as Exhibit D E, or to other agreements containing substantially
similar terms.
3.4 Related Agreements. Following the transfers described above
in this Article 3, the Company and LLC and Inc., as appropriate, shall enter
into the following related agreements:
(i) a license agreement granting to Inc. and LLC a limited
license to the netLibrary technology and related intellectual property rights
held by the Company, necessary for Inc. and LLC to perform their existing
contractual obligations to third parties in connection with the Excluded
Assets; and
(ii) a services agreement under which the Company will permit
LLC use of certain public domain databases and electronic publications, and
perform related services to create a master CD-ROM disc, as reasonably
necessary to enable LLC to meet its existing monthly support obligations with
respect to the Excluded Assets.
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In return for its rights under the license and services arrangement, LLC and
Inc. will pay the Company a fee of $3,000 per month. The parties acknowledge
that the service and licensing agreements described above shall only permit
Inc. and LLC to perform their existing contractual obligations disclosed on
Exhibit B. Without the consent of the Company, neither Inc. nor LLC will not
amend, waive or otherwise modify, directly or indirectly, the obligations of
such existing agreements.
3.5 Noncompetition. In consideration of the assumption or
agreement to pay certain liabilities of Inc. and LLC as set forth above and of
the other provisions of the Agreement, and in consideration of the issuance of
stock to, and the other benefits conferred upon, the Transferors under this
Agreement, each of Inc. and LLC covenants and agrees that, for a period of five
years following the Effective Date, it will not, directly or indirectly,
participate in the design, development or commercialization of any product or
service that imitates, is a substitute for, or in any way competes with the
"NetLibrary" service of the Company.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Each of the Transferors represents and warrants to the Company that, as
to itself and as of the date hereof:
4.1 Authority to Execute and Perform Agreements. The Transferors
have the full legal right and power and authority and approval required to
enter into, execute and deliver this Agreement and to fully perform its
obligations hereunder. This Agreement and the other instruments executed by the
Transferors as contemplated herein have been duly executed and delivered by
them and are the valid and binding obligations of the Transferors enforceable
in accordance with their terms, except as may be limited by bankruptcy,
moratorium, insolvency or other similar laws generally affecting the
enforcement of creditors' rights and except that enforcement thereof might be
limited by general principles of equity (including, but not limited to, all
matters of public policy regardless of whether considered in a proceeding in
equity or at law). No approval or consent of any foreign, federal, state,
county, local or other governmental or regulatory body, and no approval or
consent of any other person, is required in connection with the execution and
delivery by the Transferors of this Agreement and the consummation and
performance by the Transferors of the transactions contemplated hereby.
4.2 No Conflict. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not
violate, conflict with and or otherwise result in the breach or violation of
any of the terms and conditions of, result in a material modification of or
constitute (or with notice or lapse of time or both would constitute) a default
under, any instrument, contract or other agreement to which the Transferors are
a party or by or to which it or any of the assets or properties is bound or
subject, or any statute or any regulation, order, judgment, injunction, award
or decree of any court, arbitrator or governmental
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or regulatory body against or binding upon or applicable to, the Transferors or
upon the properties or business of the Transferors.
4.3 Litigation and Claims. There are no material adverse claims
pending, or to the best knowledge of the Transferors, threatened relating to or
affecting the NetLibrary Assets. There are no actions, suits or proceedings at
law or in equity before or by any Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, pending or, to the best knowledge of the Transferors,
threatened relating to or affecting the NetLibrary Assets, or the transactions
contemplated by this Agreement. To the best of knowledge of the Transferors,
there are no governmental investigations pending or threatened relating to or
affecting the NetLibrary Assets, or the transactions contemplated by this
Agreement. To the best knowledge of the Transferors, there are no circumstances
which could reasonably form the basis of any such action, suit, proceeding or
investigation against the NetLibrary Assets.
4.4 Title and Sufficiency. The Transferors have good and
marketable title to the NetLibrary Assets, free and clear of any lien, claim,
option, security interest, or encumbrance of any nature whatsoever. That
portion of the Assets which are tangible assets are in good condition and in a
good state of maintenance and repair.
4.5 Complete Transfer. In transferring its interest in the
NetLibrary Assets, the Transferors have directly or indirectly conveyed to the
Company its entire interest in all of the assets, rights, agreements and other
property rights, whether tangible or intangible, including without limitation
interests in technology and other intellectual property rights, that are
necessary to conduct the NetLibrary business as proposed to be conducted in its
business plan for the NetLibrary business dated April 3, 1998 as supplemented
by the version 9 financial information dated July 8, 1998, other than the
rights under the License described in Section 3.6, and other than a license to
the Folio search engine, which has been retained by LLC because it is required
to satisfy other contractual obligations of LLC. The parties acknowledge and
agree that the Company will be required, at its expense, to obtain a new
license to the Folio search engine (or another search engine selected by the
Company), and that LLC has retained rights to the Excluded Assets.
ARTICLE 5
CLOSING
5.1 Closing. The closing of the transactions described in
Articles 2 and 3 (the "Closing") shall take place at the Offices of Holme
Xxxxxxx & Xxxx LLP at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 at
10:00 a.m. local time on such date agreed to by the Parties, but only
simultaneously with, or immediately prior to, the Equity Closing.
5.2 Closing Obligations of the Individual Transferors. At the
Closing, each Individual Transferors shall execute and deliver:
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(a) an executed Assignment and Assumption Agreement
giving effect to the provisions of Section 3.1; and
(b) an Assignment, Assumption and Redemption Agreement
and Amendment to Operating Agreement giving effect to the provisions of Section
2.2;
(c) a Founders Stock Purchase Agreement substantially in
the form attached as Exhibit D, or another agreement giving effect to the
provisions of Section 3.3; and
(d) any other documents reasonably necessary to
consummate the transactions contemplated by this Agreement.
5.3 Closing Obligations of Inc. At the Closing, Inc. shall
execute and deliver to the Company the following:
(a) an Assignment and Assumption Agreement giving effect
to the provisions of Section 2.1; and
(b) any other documents reasonably necessary to
consummate the transactions contemplated by this Agreement.
5.4 Closing Obligations of LLC. At the Closing, LLC shall:
(a) execute and deliver an Assignment, Assumption and
Redemption Agreement and Amendment to Operating Agreement giving effect to the
provisions of Section 2.2;
(b) execute and deliver any other documents reasonably
necessary to consummate the transactions contemplated by this Agreement.
5.5 Closing Obligations of the Company. At the Closing, the
Company shall:
(a) make the cash payments described in Section 3.1
(which payments may be made in whole or in part by a direct payment applied
against the Bank Loan);
(b) issue shares of its $.001 common stock as provided
in Sections 3.1 and 3.3;
(c) execute and deliver to LLC and Inc., as appropriate,
such license agreements and service agreements as are appropriate to give
effect to the provisions of Section 3.4; and
(d) execute and deliver any other documents reasonably
necessary to consummate the transactions contemplated by this Agreement.
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ARTICLE 6
GENERAL PROVISIONS
6.1 Survival of Covenants, Representations and Warranties. The
representations, warranties and indemnities made by the parties to this
Agreement and the covenants and agreements to be performed or complied with by
the respective parties under this Agreement before the date of the Closing
shall be deemed to be continuing and shall survive the Closing. Furthermore,
the indemnities contained in this Agreement shall survive any termination of
this Agreement after the Closing and shall remain binding upon the parties and
their respective successors and assigns.
6.2 Expenses. Except as otherwise explicitly provided herein, the
parties shall bear their respective direct and indirect expenses incurred in
connection with the negotiation, preparation, or execution and performance of
this Agreement and the transactions contemplated hereby.
6.3 Further Assurances. The parties agree to execute such further
instruments and documents and to diligently undertake such further actions as
may be reasonably required in order to consummate the transactions herein
contemplated.
6.4 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute one and the same instrument.
6.5 Headings. Any captions or headings to the sections,
paragraphs or subparagraphs of this Agreement are solely for the convenience of
the parties hereto, are not a part of this Agreement, and shall not be used for
the interpretation or determination of the validity of this Agreement or any
provision hereof.
6.6 No Obligations to Third Parties. Except as otherwise
expressly provided herein, the execution and delivery of this Agreement shall
not be deemed to confer any rights upon, nor obligate any of the parties
hereto, to any person or entity other than the parties hereto.
6.7 Exhibits. The attached Exhibits are incorporated herein by
this reference.
6.8 Amendment to this Agreement. The terms of this Agreement may
not be modified or amended except by an instrument in writing executed by each
of the parties hereto.
6.9 Waiver. The waiver or failure to enforce any provision of
this Agreement shall not operate as a waiver of any future breach of any such
provision or any other provision hereof.
6.10 Entire Agreement. This Agreement supersedes any prior
agreements, negotiations and communications, oral or written, and contains the
entire agreement among the parties as to the subject matter hereof. No
subsequent agreement, representation, or promise made by either
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party hereto, or by or to an employee, officer, agent or representative of
either party shall be of any effect unless it is in writing and executed by the
party to be bound thereby.
6.11 Assignment. This Agreement may not be assigned by either
party without the prior written consent of the other party.
6.12 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the successors and assigns of the parties
hereto (as permitted pursuant to the provisions of this Agreement).
6.13 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first set forth above.
INTERACTIVE KNOWLEDGE, INC., a Delaware
corporation
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, President
INFOMASTER CD-ROM, LLC,
a Colorado limited liability company
By: InfoMaster, Inc., Manager
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, President
INFOMASTER, INC., a Colorado corporation
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, President
/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx AND
/s/ XXXX XXXXXXXX XXXXXXX
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Xxxx Xxxxxxxx Xxxxxxx, as joint tenants
/s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx AND
/s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx Xxxxxxxx, as joint tenants
/s/ F. XXXXX XXXXX
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F. Xxxxx Xxxxx
