SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 24, 2012
(Exact name of registrant as specified in its charter)
(State or Other Jurisdiction
1410 Market Street, Suite 200 Kirkland, Washington 98033
(Address of Principal Executive Offices) (Zip Code)
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Gary L. Blum, Esq.
Law Offices of Gary L. Blum
3278 Wilshire Boulevard, Suite 603
Los Angeles, CA 90010
Phone: (213) 381-7450
Fax: (213) 384-1035
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
1.01 Entry into a Material Definitive Agreement.
CoroWare, Inc. (“Company”) entered into a joint venture agreement (“Joint Venture Agreement”) with Lucas Snyder (“Snyder”) as of September 24, 2012, whereby the parties have formed a North Carolina limited liability company, ARICON, LLC, to implement a joint venture that will develop and market mobile robot platforms, applications, and solutions for the construction industry.
The Company will contribute mobile robotics development capabilities and certain equipment to the joint venture; and Snyder will contribute his construction industry knowledge, expertise and customer relationships. Additionally, CoroWare will contribute 38,000,000 shares of Company common stock into the formation of the joint venture as further described in Item 3.02 below. A copy of the Joint Venture Agreement is filed as Exhibit 10.1 to this Report.
3.02. Unregistered Sales of Equity Securities.
Pursuant to the Joint Venture Agreement described in Item 1.01, on September 27, 2012, the Company contributed 38,000,000 shares of its common stock to Aricon, LLC at a price of $0.001 per share in a private placement exempt from registration under the Securities Act of 1933 in reliance on Section 4(2) of the Securities Act. The aggregate proceeds of the contribution into the formation of the joint venture were $38,000.
On September 27, 2012, the Company issued a press release announcing the Joint Venture. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated by reference into this Item 8.01.
9.01 Financial Statements and Exhibits
EXHIBIT NO. DESCRIPTION
Joint Venture Agreement by and between CoroWare, Inc. and Lucas Snyder dated September 25, 2012
Press release dated September 26, 2012
JOINT VENTURE AGREEMENT
This Joint Venture Agreement (this “Agreement”) is made and entered into as of this 24st day of September, 2012 by and between CoroWare, Inc. a Delaware corporation, having its principal offices at1410 Market Street, Suite 200, Kirkland, Washington 98033 (together with its Affiliates, “COROWARE”) and Lucas Snyder, a private investor and a managing partner of Snyder Construction Consulting, whose address is 10823 Hampton Mill Terrace, #350, Rockville, Maryland 20852 (“SNYDER”) whose names are set forth on the signature page of this Agreement, COROWARE and SNYDER being herein together referred to as the “Parties.”
WHEREAS, the Parties desire to create a new limited liability company under the name of ARICON, LLC and under the jurisdiction of the State of North Carolina (the “Company”), for the purpose of developing unique and compelling mobile robots, software applications, and professional services that will help construction company customers design, build and operate properties more efficiently (the “Joint Venture”), and in furtherance thereof, agree on COROWARE’s and SNYDER’s contribution of certain assets to the Company, and, immediately following the contribution of such assets to the Company, on the contribution of cash, if any, to the Company by each of COROWARE and SNYDER;
WHEREAS, in order to achieve such objectives, the Parties desire to effectuate the Joint Venture and to form the Company by causing a Certificate of Formation with the Secretary of State in substantially the form attached hereto as Exhibit A (the “Certificate”) to be filed and entering into this Agreement and the other Transaction Agreements, the Closing of such agreements to constitute one single, integrated transaction;
WHEREAS, the Parties would not have entered into this Agreement nor any other Transaction Agreement but for the other Party’s agreement to be duly bound by the other Transaction Agreements; and
WHEREAS, the Parties desire to clarify the governance and operation of the Joint Venture and the mechanics of the closing of the Transactions (as defined below).
NOW, THEREFORE, in consideration of the premises and mutual covenants herein below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
In addition to terms defined throughout this Agreement, the following capitalized terms shall have the corresponding meanings as used in this Agreement:
“Affiliate” means any corporation or other business entity that controls, is controlled by, or is under common control with a Party, for so long as such control exists. A corporation or other entity shall be regarded as in control of another corporation or entity if it owns or directly or indirectly controls at least seventy five percent (75%) of the outstanding shares or other voting rights of the other corporation or entity having the right to elect directors or the power to direct or cause the direction of the management and policies of the corporation or non-corporate business entity, as applicable, whether through the ownership or control of voting securities, by contract or otherwise.
“Asset Contribution Agreement” means the asset contribution agreement substantially in the form attached hereto as Exhibit B.
“Board” means the board of directors of a corporation or equivalent group of a legal entity.
“Business” has the meaning assigned to it in the Asset Contribution Agreement.
“Business Day” means any day other than a Saturday, Sunday or any other day on which commercial banks are authorized or required by Legal Requirement to remain closed.
“Closing Date” means the date on which the Transaction is consummated in accordance with Article 3 and Article 6, which in any event shall be no later than (a) the second Business Day following the first date that the conditions set forth in Article 6 are satisfied or waived (other than those to be specifically delivered at Closing) or (b) such other date as the Parties mutually agree.
“Code” means the Internal Revenue Code of 1986, as amended.
“Confidential Information” means all confidential and/or proprietary information of a Person, including information derived from reports, investigations, research, work in progress, programs, product concepts, marketing and sales programs, financial projections, cost summaries, pricing formula, contract analyses, financial information, projections, confidential filings with any state or federal agency, and all other confidential concepts, methods of doing business, ideas, materials or information prepared or performed for, by or on behalf of such Person by its employees, officers, directors, agents, representatives, or consultants.
“Contributed Assets” has the meaning assigned to it in Paragraph 1. of the Asset Contribution Agreement.
“Consent” means any approval, consent, ratification, permission, waiver or authorization (including any Governmental Approval).
“Contract” means any binding agreement, contract, consensual obligation, promise, understanding, arrangement, commitment or undertaking of any nature (whether written or oral and whether express or implied).
“NCLLCA” means the North Carolina Limited Liability Company Act.
“Encumbrance” means any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, equity, trust, equitable interest, claim, preference, right of possession, lease, tenancy, license, encroachment, covenant, infringement, interference, Order, proxy, option, right of first refusal, preemptive right, community property interest, legend, defect, impediment, exception, reservation, limitation, impairment, imperfection of title, condition or restriction of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset (except as imposed by any Legal Requirement, or, in the case of a license, by the terms of the license) and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset) other than Permitted Encumbrances.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“GAAP” means U.S. generally accepted accounting principles as in effect on the date hereof.
“Governmental Authority” means any: (a) nation, principality, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign or other government; (c) governmental or quasi governmental authority of any nature (including any governmental division, subdivision, department, agency, bureau, branch, office, commission, council, board, instrumentality, unit, or body and any court or other legal tribunal); (d) any governmental multinational organization or body; or (e) individual, Entity or body exercising, or entitled to exercise, any executive, legislative, judicial, administrative, regulatory, police, military or taxing or arbitral authority or power of any nature.
“Intellectual Property” has the meaning assigned to it in the Asset Contribution Agreement.
“Legal Requirement” means any federal, state, local, municipal, foreign or other law, statute, legislation, constitution, principle of common law, resolution, ordinance, code, Order, edict, decree, proclamation, treaty, convention, rule, regulation, permit, ruling, directive, pronouncement, requirement (licensing or otherwise), specification, determination or decision that has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority.
“Liability” means any debt, obligation, duty or liability of any nature (including any unknown, undisclosed, unmatured, unaccrued, unasserted, contingent, indirect, conditional, implied, vicarious, derivative, joint, several or secondary liability), regardless of whether such debt, obligation, duty or liability would be required to be disclosed on a balance sheet prepared in accordance with generally accepted accounting principles and regardless of whether such debt, obligation, duty or liability is immediately due and payable.
“Order” means any: (a) temporary, preliminary or permanent order, judgment, injunction, edict, decree, ruling, pronouncement, determination, decision, opinion, verdict, sentence, stipulation, subpoena, writ or award that is or has been issued, made, entered, rendered or otherwise put into effect by or under the authority of any court, administrative agency or other Governmental Authority; or (b) Contract with any Governmental Authority that is or has been entered into in connection with any Proceeding.
“Proceeding” means any action, suit, complaint, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), prosecution, contest, hearing, inquiry, inquest, audit, examination or investigation that is or has been commenced, brought, conducted or heard at law or in equity or before any Governmental Authority or any arbitrator or arbitration panel.
The “Unit Subscription Agreement” means the unit purchase agreement in substantially the form attached hereto as Exhibit C.
“SEC” means the Securities and Exchange Commission.
“Public Company Subsidiary” means any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than 51% of the voting stock or other equity interest is owned directly or indirectly by any Person or one or more of the other Subsidiaries of such Person or a combination thereof.
“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means any net income, alternative or add-on minimum tax, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, environmental or windfall profit tax, custom, duty or other tax, governmental fee or other assessment or charge of any kind whatsoever, together with any interest or any penalty, addition to tax or additional amount and any interest on such penalty, addition to tax or additional amount, imposed by any Tax Authority.
“Tax Authority” means any Governmental Authority responsible for the imposition, assessment or collection of any Tax (domestic or foreign).
“Third Party” means any entity other than the Parties.
“Transaction Agreements” means collectively (a) this Agreement; (b) Asset Contribution Agreement; (c) Subscription Agreement; (d) Operating Agreement.
“Transactions” means, collectively, the transactions contemplated by the Transaction Agreements.
Formation of the Company. COROWARE shall cause to be filed on or prior to the Closing Date with the Secretary of the State of North Carolina the Certificate. The expenses of forming the Company, including the reasonable legal and other expenses related thereto but, for the avoidance of doubt, excluding any legal and other expenses incurred by the Parties in connection with the negotiation and effectuation of the Transaction Agreements, shall be borne by the Company.
Operation of the Company. The Parties hereby agree jointly to develop and operate the Company in accordance with the Transaction Agreements. The purpose of the Company shall be to develop and market unique and compelling mobile robots, software applications, and professional services that will help construction company customers design, build and operate properties more efficiently.
Company Governance. In connection with the formation of the Company, the Parties shall cause the Operating Agreement, in substantially the form attached hereto as Exhibit A.1 (the “Operating Agreement”) and the minutes of the initial meeting of the Company’s managers (the “Managers”) (or action by unanimous written consent of the Members covering substantially similar matters), in substantially the form attached hereto as Exhibit A.2, to be adopted as the Operating Agreement and minutes of the Company.
Time and Place of Closing. The closing of the Transactions (the “Closing”) shall take place remotely via the exchange of documents and signatures on the Closing Date at such place as the Parties mutually agree upon in writing but in no event later than _September 24________, 2012.
Closing Deliverables by COROWARE. At the Closing, COROWARE shall deliver the following items duly executed, as applicable:
Officer’s Certificate. A certificate executed on behalf of COROWARE by an officer of COROWARE, dated as of the Closing Date, certifying as to:
the accuracy of the provisions set forth in Sections 6.1(a), (b), and (c);
resolutions of COROWARE’s Board authorizing the execution, delivery and performance of this Agreement and of all other Transaction Agreements; and
incumbency of COROWARE’s officers executing this Agreement and all other Transaction Agreements.
Transaction Agreements. All Transaction Agreements to which it is a party.
Closing Deliverables and Funding by COROWARE and SNYDER. At the Closing, each of COROWARE and SNYDER shall execute and deliver all Transaction Agreements to which he or she is a party. Each of COROWARE and SNYDER shall contribute funding to the Company to the extent so required under the Transaction Documents in a manner agreed upon by the Parties in advance of the Closing.
Closing Deliverables by the Company. At the Closing, the Parties hereto shall cause the Company to execute and deliver all Transaction Agreements to which the Company is a party.
REPRESENTATIONS AND WARRANTIES
Except with respect to COROWARE, as disclosed in the reports, schedules, forms, statements and other documents filed with the SEC, each Party (the “Representing Party”) hereby represents and warrants to the other Parties as follows:
Representations and Warranties of COROWARE. COROWARE represents as follows:
Organization and Qualification. COROWARE is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted.
Authority. COROWARE has all necessary power and authority to execute and deliver this Agreement and the other Transaction Agreements and to perform its obligations hereunder and thereunder. The execution and delivery of this Agreement and the other Transaction Agreements and the consummation by COROWARE of the Transactions have been duly and validly authorized by all requisite corporate action and no other corporate proceedings on the part of COROWARE are necessary to authorize this Agreement or the other Transaction Agreements or to consummate the Transactions. This Agreement has been, and at Closing the other Transaction Agreements will be, duly and validly executed and delivered by COROWARE and constitutes, and at Closing the other Transaction Agreements will constitute, the legal, valid and binding obligations of COROWARE, enforceable against it in accordance with their respective terms,.
Board Approval. COROWARE’s Board has (i) approved this Agreement, and (ii) determined that the Transactions are in the best interests of the stockholders of COROWARE.
Representations and Warranties of COROWARE and SNYDER. Each of COROWARE and SNYDER represents and warrants as follows:
Accredited Investor. He, she or it is an “accredited investor” as such term is defined in Regulation D under the Securities Act of 1933, as amended.
Investment. He, she or it is taking an interest in the Joint Venture (in the form of LLC membership units as more fully described in the Operating Agreement) for his, her or its own account for investment and not with a view toward resale or distribution thereof, nor with any present intention, agreement or obligation to distribute, sell or otherwise dispose of the same.
Suitability. It understands and has fully considered the risks of investing in the Joint Venture (or accepting an equity interest in the Joint Venture in lieu of cash in exchange for services) and confirms that (i) this investment is suitable only for an investor who is able to bear the economic consequences of losing its entire investment, (ii) the Company is an early-stage enterprise with no operating history; (iii) equity in the Joint Venture is a speculative investment which involves a high degree of risk of loss of the entire investment, and (iv) there are substantial restrictions on the transferability of, and there will be no public market for, the membership units in the Joint Venture, and accordingly, it may not be possible to liquidate its investment in case of emergency.
Lack of Liquidity. He, she or it is able (i) to bear the economic risk of this investment, (ii) to hold the equity in the Joint Venture for an indefinite period of time, and (iii) presently to afford a complete loss of its investment.
Knowledge and Experience. He, she or it has such knowledge and experience in financial and business matters that he, she or it is capable of evaluating the merits and risks of an investment in the Joint Venture and of making an informed investment decision.
During the time period from the date of this Agreement until the earlier to occur of the (a) Closing Date and (b) the termination of this Agreement in accordance with the provisions of Article 7 hereof, the Parties covenant and agree as follows:
COROWARE’s Maintenance of the Contributed Assets. Except as required by applicable Legal Requirements, or as otherwise provided for hereby or by the other Transaction Agreements, COROWARE covenants not to:
Sell, transfer, lease, out-license or otherwise encumber any of the Contributed Assets or any assets that would limit, reduce or restrict the Intellectual Property to be assigned or licensed to the Company under the Asset Contribution Agreement except in the ordinary course of its business; or
Enter into any agreements or commitments relating to the Contributed Assets with another person, except on commercially reasonable terms in the ordinary course of business.
Litigation. COROWARE will (a) notify the Company in writing promptly after having knowledge of any action, suit, arbitration, mediation, proceeding, claim, or investigation by or before any Governmental Authority or arbitrator initiated by or against it which affects the Intellectual Property or the Contributed Assets.
Confidentiality Obligations. Subject to paragraph (b) below and except to the extent otherwise expressly authorized by the Transaction Agreements or otherwise agreed to in writing by the applicable Parties, each Party shall keep confidential and shall not publish or otherwise disclose, nor use for any purpose other than for the purpose of exercising its rights or performing its obligations under this Agreement or any other Transaction Agreement, any Confidential Information of any other Party hereto. Confidential Information of a Party shall consist of any Confidential Information disclosed by such Party to another Party under this Agreement or any other Transaction Agreement. Notwithstanding any of the foregoing to the contrary, Confidential Information shall not include any information that:
was already known to the receiving Party, other than under an obligation of confidentiality (except to the extent such obligation has expired or an exception is applicable under the relevant agreement pursuant to which such obligation was established), at the time of disclosure to such Party;
was generally available to the public or otherwise part of the public domain at the time of its disclosure to a Party hereunder;
became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of any receiving Party in breach of this Agreement or any other Transaction Agreement;
was independently discovered or developed by such Party without reference to or use of Confidential Information of another Party, as demonstrated by documented evidence; or
was disclosed to such Party, other than under an obligation of confidentiality (except to the extent such obligation has expired or an exception is applicable under the relevant agreement pursuant to which such obligation was established), by a Third Party who had no obligation not to disclose such information to others.
The obligations set forth in this Section 5.3(a) shall remain in effect during the term of this Agreement or for two (2) years following termination of this Agreement.
Authorized Disclosure. Except as expressly provided otherwise in the Transaction Agreements, each Party may use and disclose Confidential Information of the other Parties as follows:
under appropriate confidentiality provisions substantially equivalent to those in this Agreement: (A) in connection with the performance of its obligations or as reasonably necessary or useful in the exercise of its rights under the Transaction Agreements, and (B) to the extent such disclosure is reasonably necessary or useful in conducting activities under the Joint Venture;
to the extent such disclosure is reasonably necessary in prosecuting or maintaining any patent or other Intellectual Property in accordance with the Transaction Agreements, (prosecuting or defending litigation related to the Transaction Agreements, complying with applicable governmental regulations with respect to performance under the Transaction Agreements (including to comply with the applicable rules of any public stock exchange upon which the stock of such Party or its Affiliate is listed), making any regulatory filings, otherwise obtaining marketing approvals or fulfilling post-marketing approval obligations for products that are the subject a Transaction Agreement, or otherwise required by applicable Legal Requirements; provided, however, that if a Party is required by applicable Legal Requirements or court order to make any such disclosure of another Party’s Confidential Information such Party will give reasonable advance notice to such other Party of such disclosure requirement and, in each of the foregoing, (but not to the extent inappropriate in the case of prosecution and maintenance of patents), will use its reasonable efforts to seek confidential treatment of such Confidential Information required to be disclosed;
in communication with advisors (including financial advisors, lawyers and accountants) or actual or bona fide potential investors or acquirers, or actual or bona fide potential licensees or sublicensees related to products that are the subject of the Transaction Agreements, or approved or permitted contractors, service providers, vendors and the like used (or to be used) in connection with activities under any Transaction Agreement, each on a need to know basis, and in each case under standard confidentiality obligations (subject to the allowances for term of confidentiality provided in subsection (i) above), or (iv) to the extent mutually agreed to by the Parties. In addition to the foregoing, with respect to complying with the disclosure requirements of the SEC or similar regulatory bodies or the rules of an applicable public stock exchange, in connection with any required disclosure of material information related to this Agreement, the Parties shall consult with one another concerning the information to be disclosed where practicable.
Press Release. Notwithstanding the foregoing, the Parties shall agree upon and release a mutually agreed press release or press releases to announce the execution of the Transaction Agreements in substantially the forms attached hereto as Exhibit C; thereafter, the Parties may each disclose to Third Parties the information contained in such press release s without the need for further approval by the others. The Parties acknowledge that COROWARE will file a Current Report on Form 8-K with the SEC and will attach this Agreement and other Transaction Agreements as exhibits to such report.
Use of Confidential Information. The Parties agree that no Party hereto shall use, either directly or indirectly through a Third Party, Confidential Information of another Party in any way which would compete with or operate to the detriment of, such other Party except as specifically authorized in this Agreement or the Transaction Agreements.
Satisfaction of Conditions Precedent. The Parties will use commercially reasonable efforts to satisfy or cause to be satisfied all of the conditions precedent which are set forth in Article 6 promptly as reasonably possible and will use commercially reasonable efforts to cause the Transactions to be consummated as promptly as reasonably possible.
Tax Matters. It is the intent of the Parties that the Company shall be organized and operated as a “partnership” for federal, state and local income and franchise Tax purposes. In accordance therewith, (i) the Parties shall not file any election with any Tax Authority to have the Company treated otherwise, and (ii) each Party hereby represents, covenants, and warrants that it shall not maintain a position inconsistent with such treatment.
CONDITIONS TO CLOSING
The obligations of each of the Parties to consummate the Transactions are subject to the fulfillment or satisfaction, on and as of the Closing Date, of each of the following conditions (any one or more of which may be waived in a writing executed by each of the counter Parties).
Conditions Precedent to Obligations of COROWARE and SNYDER. The obligations of COROWARE and SNYDER to consummate the Transactions are subject to the satisfaction of the following conditions, unless waived in writing:
Representations and Warranties. The representations and warranties of COROWARE set forth in this Agreement and in the forms of the Transaction Agreements shall be true and correct in all material respects.
Performance of Obligations. COROWARE shall have performed in all material respects all obligations and covenants required to be performed by it under this Agreement and in the forms of the Transaction Agreements to be delivered by COROWARE under this Agreement as attached to this Agreement on the date hereof, on or prior to the Closing Date.
Legal Requirements. No Legal Requirement shall be in effect which prohibits or materially restricts the consummation of the Transactions at the Closing,
Deliveries. COROWARE shall have delivered all of the closing documents and agreements set forth in Section 3.2 hereof.
Conditions Precedent to Obligations of COROWARE. The obligations of COROWARE to consummate the Transactions are subject to the satisfaction of the following conditions, unless waived by COROWARE in writing:
Representations and Warranties. The representations and warranties of COROWARE and SNYDER set forth in this Agreement and in the forms of the Transaction Agreements shall be true and correct as of the Closing Date. .
Legal Requirements. No Legal Requirement shall be in effect which prohibits or makes illegal the consummation of the Transactions at the Closing, and no Proceeding is pending or threatened in writing by a Governmental Authority which is reasonably likely to result in a Legal Requirement having such an effect.
Deliveries. Each of COROWARE and SNYDER shall have delivered all of the closing documents and agreements set forth in Section 3.3 hereof.
Voluntary Termination. This Agreement may be terminated at any time before the Closing by the mutual written consent of the Individual Parties and COROWARE.
Automatic Termination. If the Closing has not occurred on or prior to October 5, 2012 or has not been extended to a specified date thereafter by mutual agreement of the Parties, then this Agreement shall terminate automatically and be of no further force or effect.
Governing Law. This Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in accordance with the substantive laws of the State of North Carolina, without reference to conflicts of laws principles that would result in laws of a jurisdiction other then the State of North Carolina governing. Notwithstanding the above, any dispute regarding validity or enforceability of any patent shall be governed by the patent laws of the jurisdiction in which such patent was issued solely for the purpose of resolution of the dispute as to validity and enforceability.
Assignment. Except as provided in Section 11.3, this Agreement shall not be assignable or otherwise transferred, in whole or in part, by any Party to any Third Party without the written consent of the other Parties, provided that this Agreement may without requiring the consent of any other Party be assigned, transferred, delegated or sublicensed to (i) an entity that acquires all or substantially all of the business or assets of such Party, whether by merger, reorganization, acquisition, asset sale or otherwise, or (ii) a Related Entity of such Party, (including, for the avoidance of doubt and without limitation, a liquidating trust or similar entity), in each case subject to the agreement in writing of such transferee to be subject to the terms and conditions of this Agreement, the Asset Contribution Agreement and the Unit Subscription Agreement. Except as expressly provided in this Section 11.3, any attempted assignment or transfer of this Agreement shall be null and void. The terms and conditions of this Agreement shall be binding on and inure to the benefit of the permitted successors and assigns of the Parties.
Notices. Any notice, request, delivery, approval or consent required or permitted to be given under this Agreement shall be in English language, in writing, shall specifically refer to this Agreement and shall be deemed to have been sufficiently given if delivered in person, transmitted by as a PDF attachment to an email (receipt verified) or by express courier service (signature required) or five (5) Business Days after it was sent by registered letter, return receipt requested (or its equivalent), provided that no postal strike or other disruption is then in effect or comes into effect within two (2) Business Days after such mailing, to the Party to which it is directed at its address or email address shown below or such other address or email address as such Party will have last given by notice to the other Parties.
If to COROWARE,
addressed to: CoroWare, Inc.
To its address as set forth in the preamble hereof.
Attention: Lloyd T. Spencer
Telephone: (800) 6410-2676 x 756
Email address: firstname.lastname@example.org
with copy to: Law Offices of Gary Blum
3278 Wilshire Boulevard
Los Angeles, California 90010-1402
Telephone: (213) 381-7450
Email address: email@example.com
If to SNYDER,
addressed to: Lucas Snyder
10823 Hampton Mill Terrace, #350
Rockville, Maryland 20852
Telephone: (330) 389-1219
Email address: firstname.lastname@example.org
Waiver. No Party may waive or release any of its rights or interests in this Agreement except in writing. The failure of any Party to assert a right hereunder or to insist upon compliance with any term or condition of this Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition. No waiver by any Party of any condition or term in any one or more instances shall be construed as a continuing waiver of such condition or term or of another condition or term.
Waiver of Jury Trial. Each of the parties hereto hereby waives, to the fullest extent permitted by law, any and all right to trial by jury in any legal proceeding (whether sounding in contract, tort or otherwise) arising out of or related to this Agreement.
Severability. If any provision hereof is held invalid, illegal or unenforceable by any arbitrator or court of competent jurisdiction from which no appeal can be or is taken, all other provisions hereof shall remain in full force and effect.
Modification. No subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the Parties unless reduced to writing and signed by the respective authorized officers of each of the Parties.
Relationship of the Parties. The Parties agree that the relationships among the Parties established by this Agreement are of independent contractors and that this Agreement shall not be construed to establish an agency, partnership or any other relationship except as expressly set forth herein. Except as may be specifically provided herein, no Party shall have any right, power or authority, nor shall they represent themselves as having any authority to assume, create or incur any expense, liability or obligation, express or implied, on behalf of any other Party, or otherwise act as an agent for any other Party for any purpose.
Third Party Beneficiaries. All rights, benefits and remedies under this Agreement are solely intended for the benefit of the Parties, and this Agreement may not be assigned without the written consent of all of the Parties.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together, shall constitute one and the same instrument.
Construction. The construction of this Agreement shall not take into consideration the Party who drafted or whose representative drafted any portion of this Agreement, and no canon of construction shall be applied that resolves ambiguities against the drafter of a document. Each Party acknowledges that: (a) it has read this Agreement; (b) it has been represented in the preparation, negotiation and execution of this Agreement by legal counsel of its own choice or has voluntarily declined to seek such counsel; and (c) it understands the terms and consequences of this Agreement and is fully aware of the legal and binding effect of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement in duplicate originals by their duly authorized representatives as of the date first written above.
Date:October 1, 2012
/s/ Lloyd Sepncer
Name: Llyod Spence
Date: October 1, 2012
/s/ Lucas Snyder
Name: Lucas Snyder
Exhibit A Certificate
Exhibit A.1 Operating Agreement
Exhibit A.2 Minutes
Exhibit B Asset Contribution Agreement
Exhibit C Form of Unit Subscription Agreement
Exhibit D Press Releases
Limited Liability Company
Dated as of September 24, 2012
Limited Liability Company Operating Agreement (the “Agreement”) of ARICON, LLC, a North Carolina limited liability company (the “Company”), made as of _September 24_____, 2012 (the “Agreement”), by and among the Company, CoroWare, Inc., a Delaware corporation (“CoroWare”), Lucas Snyder (“Snyder”) and the other persons or entities who or which have or will have executed and delivered this Agreement in the capacity of a Member (as defined in Section 1.1) pursuant to the provisions hereof.
Pursuant to the Certificate of Formation, filed with the Office of the Secretary of State of North Carolina on September 24, 2012, ARICON, LLC was formed as a North Carolina limited liability company.
Members of the Company now desire to enter into this Agreement, which will govern the business and affairs of the Company and sets forth in full their rights and obligations with respect to the Company.
Now, therefore, in consideration of the foregoing premises, of the mutual covenants set forth in this Agreement and of other good and valuable consideration the receipt and sufficiency of which are acknowledged, the parties to this Agreement, intending to be legally bound, hereby agree as follows:
DEFINITIONS AND CALCULATIONS
As used herein, the following terms shall have the following meanings:
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person. A Person shall be deemed to “control” another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of such other Person, whether through the ownership of voting securities, by contract or otherwise. For the purposes of this Agreement, a limited partnership will be deemed to be an Affiliate with respect to any Person, if the general partner of such limited partnership is an Affiliate of such Person;
“Bankruptcy Event” means, with respect to any Person, (a) the initiation by such Person of a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to himself, itself or his or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect (including 11 U.S.C. § 1, et. seq.) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of his or its property, or consent by such Person to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against him or it, or a general assignment by such Person for the benefit of creditors, or the failure by such Person generally to pay his or its debts as they become due, or the taking by such Person of any action to authorize any of the foregoing; (b) the commencement of an involuntary case or other proceeding against such Person seeking liquidation, reorganization or other relief with respect to himself, itself or his or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect (including 11 U.S.C. § 1, et. seq.) or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of his or its property, and the continuance of such involuntary case or other proceeding undismissed and unstayed for a period of 60 days; or (c) the entry of an order for relief against such Person under the federal bankruptcy laws as now or hereafter in effect.
“Business” means the business of developing solutions and products. “Capital Account” means the capital account established and maintained for each Member pursuant to Article V.
“Capital Contribution” means any cash or property contributed to the capital of the Company by or on behalf of a Member in exchange for Common Units, whenever made.
“Certificate of Formation” means the Certificate of Formation of the Company, filed on September 21, 2012, with the Secretary of State of the State of North Carolina and any and all amendments thereto.
“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute.
“Common Units” means Units designated herein as Common Units.
“Disability” means, with respect to any Person, that a court of competent jurisdiction adjudges such Person to be incompetent, or that such Person has a physical or mental infirmity which prevents him from fulfilling his duties and obligations with respect to the Company for a period in excess 90 consecutive days.
“Equity Securities” means Common Units, or any warrants, options or other rights to acquire Common Units, and debt securities convertible into Common Units; provided, however, that Equity Securities shall not include (a) Common Units reserved by the Company for issuance to Managers, employees (including officers), consultants, advisers, agents, lessors, lenders, customers, suppliers, vendors and/or strategic or joint venture partners of the Company pursuant to any duly authorized and adopted plan or agreement providing for the award of restricted or unrestricted Common Units, options to purchase Common Units, Common Unit appreciation rights, profit interests, performance awards, incentive awards or any combination of the foregoing, (b) Common Units or other equity securities issued in connection with any public offering, (c) Common Units or other equity securities issued in connection with the acquisition of another Person by the Company by merger, purchase of all or substantially all of such Person’s assets or equity securities or by other reorganization or consolidation, (d) the issuance of Common Units in connection with the exercise of any warrant, option or other right to acquire Common Units, or the conversion or exchange of any security convertible or exchangeable into Common Units, or (e) Common Units issued in consideration for services performed for the benefit of the Company.
“Family Member” means any parent, spouse, child, brother, sister or any other relative with a relationship (by blood, marriage or adoption) not more remote than first cousin.
“GAAP” means generally accepted accounting principles in the United States, consistently applied.
“Intellectual Property” means any or all of the following: (a) works of authorship including, without limitation, computer programs, source code and executable code, whether embodied in software, firmware or otherwise, documentation, designs, files, net lists, records, data and mask works; (b) inventions (whether or not patentable and whether or not reduced to practice), improvements, and technology; (c) proprietary and confidential information and materials, including technical data and customer and supplier lists, trade secrets, discoveries, processes, formulas, and other know-how; (d) databases, data compilations and collections and technical data; and (e) all copies and instantiations of the foregoing.
“LLC Assets” means all of the assets and property, whether tangible or intangible, owned by, or held for the benefit of, the Company.
“Losses” means any and all losses, claims, demands, costs, damages, liabilities (joint or several), expenses of any nature (including attorneys’ fees and disbursements), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which an Indemnitee (as defined in Section 8.14(a)) may be involved, or threatened to be involved, as a party or otherwise.
“Manager” means an individual appointed by the Members to serve as Manager hereunder.
“Member” means any Person executing this Agreement in the capacity of a member of the Company, including CoroWare, Snyder, and any Person hereafter admitted to the Company as a member of the Company as provided in this Agreement, but does not include any Person who or which has ceased to be a member of the Company.
“North Carolina LLC Act” means the North Carolina Limited Liability Company Act, Chapter 57C of North Carolina General Statutes, as amended.
“Original Cost” means, with respect to an Unvested Restricted Common Unit, the price per Common Unit paid in connection with the purchase of such Restricted Common Unit (adjusted for dividends, splits, reverse splits, recapitalization, reorganization or a similar event or transaction), as reflected in the books and records of the Company.
“Percentage Interest” means, at the time of such determination, a Member’s allocable interest in items of income, gain, loss, deduction and credit of or to the Company. A Member’s Percentage Interest is equal to a fraction expressed as a percentage (a) the numerator of which is the number of issued and outstanding Common Units held by such Member, and (b) the denominator of which is the aggregate number of issued and outstanding Common Units held by all Members.
“Permitted Transferee” means, with respect to any Member, an Affiliate or Family Member of such Member, or a trust or other legal entity wholly-owned by, or for the sole benefit of, the relevant Member and/or his or its Affiliates or Family Members.
“Person” means any individual, partnership, joint venture, firm, corporation, limited liability company, association, trust, unincorporated organization or other enterprise, or any government or political subdivision or any agency, department or instrumentality thereof.
“Related Party” means any Member, Manager, officer of the Company, any Affiliate or Family Member of a Member, Manager or officer, and any Person in which any of the foregoing owns (a) more than 10% of the aggregate ownership interests in such Person, (b) an interest entitling such interested party to more than 10% of the capital or profits of such Person, or (c) a beneficial interest of more than 10% in such Person.
“Restricted Common Units” means Common Units that are designated as Restricted Common Units on Schedule I attached hereto.
“Subsidiary” means any Person of which (or in which) more than 50% of (a) the voting power or equity rights, (b) the interest in the capital or profits, or (c) the beneficial interest, as applicable, is at the time, directly or indirectly, owned by the Company, by the Company and one or more of its other Subsidiaries, or by one or more of the Company’s Subsidiaries.
“Transfer” means, with respect to any Common Unit, to sell, or in any other way directly or indirectly transfer, assign, convey, distribute, pledge, hypothecate, encumber or otherwise dispose of such Common Unit, whether voluntarily, involuntarily or by operation of law.
“Units” means the membership units of the Company or other securities issued in respect of, or exchange for, Units, by way of a dividend, split, combination of Units, recapitalization, merger, consolidation, reorganization, conversion of the Company from a limited liability company into a corporation, or a similar event or transaction, including, without limitation, Unvested Restricted Units.
Accounting Principles. Where the character or amount of any asset or amount of any asset or liability or item of income or expense is required to be determined or any consolidation or other accounting computation is required to be made for the purposes of this Agreement, such determination or computation shall be made in accordance with GAAP at the time in effect, to the extent applicable, except where such principles are inconsistent with the requirements of this Agreement.
Directly or Indirectly. Where any provision in this Agreement refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.
Member or Members. Whenever there shall be only one Member of the Company, the plural term “Members” shall refer to such single Member.
Formation of the Company; Certificate of Formation. The Members of the Company hereby:
approve and ratify the filing of the Certificate of Formation with the Secretary of State of the State of North Carolina on September _24__, 2012;
confirm and agree to their status as Members;
execute this Agreement for the purpose of admitting additional Members, establishing the rights, duties and relationships of the Members among themselves and with the Company, and rules regarding the operation and governance of the Company; and
agree that if the laws of any jurisdiction in which the Company transacts business so require, any of the Members or authorized representatives of the Company shall file, or shall cause to be filed, with the appropriate office in that jurisdiction, any documents, instruments or other filings necessary for the Company to qualify to transact business under such laws; and (ii) agree and obligate themselves to execute, acknowledge, and cause to be filed for record in the place or places and manner prescribed by law, any amendments to the Certificate of Formation as may be required, either by the North Carolina LLC Act, by the laws of any jurisdiction in which the Company transacts business, or by this Agreement, in order to reflect changes in the information contained therein or otherwise to comply with the requirements of law for the continuation, preservation and operation of the Company as a limited liability company under the North Carolina LLC Act.
Name of the Company. The name under which the Company shall conduct its business is ARICON, LLC. The business, activities and operations of the Company may be conducted under any other name permitted by the North Carolina LLC Act or the laws of the jurisdiction in which the Company proposes to conduct business under such name, to the extent deemed necessary or advisable. The Company, through the officers or authorized agents or representatives, shall execute, file and record any assumed or f