Exhibit 10.1
Letter Agreement
Between
Innova Holdings, Inc. and CoroWare, Inc.
This letter agreement ("Letter Agreement") is made this 24th day of
January, 2006 by and between CoroWare, Inc., ("Seller") a state of Washington
corporation with its business address at 000 000xx Xxxxxx XX, #000, Xxxxxxxx, XX
00000 and Innova Holdings, Inc., ("Buyer") a Delaware corporation with its
business address at 00000 Xxx Xxxxxx Xxxx., Xxxxx X0000, Xxxx Xxxxx Xxxxx,
Xxxxxxx 00000 Subject only to the terms and conditions set forth herein, this
Letter Agreement is intended to be binding upon the parties for term described
herein.
1. Proposed Transaction: Buyer shall form a new subsidiary ("Newco") which
shall purchase all of the assets including without limitation all
hardware, software, employee relations, customer contacts in the military
and homeland security markets, contacts with Microsoft and all other
customers, all other tangible and intangible assets including without
limitation all developed software which includes software for JAUS for an
aggregate purchase price consisting of the following: (a). up to $450,000
in cash ("Cash Portion") of which $100,000 is guaranteed; (b). up to
thirty million (30,000,000) shares ("Stock Portion") and (c). stock
options exercisable at $.018 ("Option Portion") to be allocated to
employees of Seller of two million shares, each as more fully described
below. In addition, Buyer shall assume only the liabilities of Seller as
set forth on Exhibit A hereto in the amount of $98,168.33, and none other.
The new subsidiary will change its name to CoroWare after closing and
Seller will change its name to a new unrelated name.
Buyer shall assume only those liabilities of Seller listed on Exhibit A.
All other liabilities of Seller, known or unknown, xxxxxx or inchoate
shall remain Seller's responsibility. Notwithstanding the above, if Buyer
is required by law to pay any of Seller's liabilities which are not
specifically assumed by Buyer and listed on Exhibit A then the purchase
price shall be reduced by the amount paid by Buyer with respect to such
non assumed liabilities. Such amounts paid shall first reduce the cash
portion of the purchase price and the balance, if any, shall reduce the
number of shares of stock to be paid by Buyer to Seller
2. Cash Portion of Purchase Price.
(a) Guaranteed Payment. Buyer shall pay to Seller (i) on Closing in
immediately available funds the amount of $30,000; (ii) on or prior to the date
which is one month after closing, the amount of $20,000; and (iii) $10,000 in
each month for five months beginning on the date which is six months after
closing for an aggregate guaranteed amount of $100,000.
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(b) Performance Payment. (i) If during any of the first four quarters
after closing, Newco sales reach $300,000 or more for such quarter, Buyer shall
pay Seller an additional $25,000 for each quarter sales reached $300,000 or more
(maximum $100,000) and gross profit percentage, as defined in paragraph 3 below,
is no less than 40%. Additionally, if during the first four quarters following
closing, Newco has sales of at least One and One-half Million Dollars
($1,500,000) and the gross profit percentage is no less than 40%, Buyer shall
pay Newco an additional $125,000 and if Newco has sales of at least Two Million
Dollars and the gross profit percentage is no less than 40% the total amount
paid shall be increased by an additional $125,000 or a total of $250,000. If the
gross profit percentage in any of these quarters is less than 40% but at least
25%, then the Buyer shall pay Seller a portion of the indicated cash Performance
Payments for each quarter in accordance with the following schedule:
--------------------------------------------------------------------------------
Gross Profit % Payout %
--------------------------------------------------------------------------------
Less than 25% -0-%
--------------------------------------------------------------------------------
25% 50%
--------------------------------------------------------------------------------
25% to 40% Prorated from 50% to 100%
--------------------------------------------------------------------------------
40% 100%
--------------------------------------------------------------------------------
3. Stock Portion. Buyer shall pay to Seller up to thirty million (30,000,000)
shares of its restricted common stock in accordance with the following
schedule and subject to the terms set forth below:
(a) Shares Payable in First Twelve Months Following Closing:
(i) Buyer shall pay and deliver five million shares (5,000,000) of
restricted common stock of the Seller on Closing. Such shares shall vest equally
over a three year period with one-third vesting on the first anniversary date
following closing and one-third on each of the next two subsequent anniversary
dates. Such shares shall include a legend which prohibits sale or transfer of
shares until vested and which will be removed upon vesting.
(ii) If Newco's total sales in the twelve month period following
closing reach 1.1 Million Dollars ($1,100,000) and the gross profit percentage
as defined below is no less than forty percent (40%), then Buyer shall pay and
deliver an additional Two Million Five Hundred Thousand shares of Seller's
common stock to Seller for an aggregate of 7,500,000 shares at the end of the
first twelve month period.
(iii) If Newco's total sales in the twelve month period following
closing reach 1.5 Million Dollars ($1,500,000) and the gross profit percentage
is no less than forty percent (40%), then Buyer shall pay and deliver an
additional Two Million Five Hundred Thousand shares of Seller's common stock to
Seller for an aggregate of 10,000,000 shares at the end of the first twelve
month period.
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(b) Shares Payable in Second Twelve Months Following Closing:
(i) If Newco's total sales in the second twelve month period
following closing reach 1.2 Million Dollars ($1,200,000) and the gross profit
percentage as defined below is no less than forty percent (40%), then Buyer
shall pay and deliver an additional Five Million shares of Seller's common stock
to Seller at the end of the second twelve month period.
(ii) If Newco's total sales in the second twelve month period
following closing reach Two Million Dollars ($2,000,000) and the gross profit
percentage as defined below is no less than forty percent (40%), then Buyer
shall pay and deliver an additional Two Million Five Hundred Thousand shares of
Seller's common stock to Seller at the end of the second twelve month period for
an aggregate of 7,500,000 shares.
(iii) If Newco's total sales in the second twelve month period
following closing reach Two and One-half Million Dollars ($2,500,000) and the
gross profit percentage as defined below is no less than forty percent (40%),
then Buyer shall pay and deliver an additional Two Million Five Hundred Thousand
shares of Seller's common stock to Seller at the end of the second twelve month
period for an aggregate of 10,000,000 shares.
(c) Shares Payable in Third Twelve Months Following Closing:
(i) If Newco's total sales in the third twelve month period
following closing reach 2 Million Dollars ($2,000,000) and the gross profit
percentage as defined below is no less than forty percent (40%), then Buyer
shall pay and deliver an additional Five Million shares of Seller's common stock
to Seller at the end of the third twelve month period.
(ii) If Newco's total sales in the third twelve month period
following closing reach Two and One Half Million Dollars ($2,500,000) and the
gross profit percentage is no less than forty percent (40%), then Buyer shall
pay and deliver an additional Two Million Five Hundred Thousand shares of
Seller's common stock to Seller at the end of the third twelve month period for
an aggregate of 7,500,000 shares.
(iii) If Newco's total sales in the third twelve month period
following closing reach Three and One-half Million Dollars ($3,500,000) and the
gross profit percentage is no less than forty percent (40%), then Buyer shall
pay and deliver an additional Two Million Five Hundred Thousand shares of
Seller's common stock to Seller at the end of the third twelve month period for
an aggregate of 10,000,000 shares.
(d) If the gross profit percentage in any of these twelve month periods is
less than 40% but at least 25%, then the Buyer shall pay Seller a portion of the
indicated Stock Portion for each twelve month period in accordance with the
following schedule:
--------------------------------------------------------------------------------
Gross Profit % Payout %
--------------------------------------------------------------------------------
Less than 25% -0-%
--------------------------------------------------------------------------------
25% 50%
--------------------------------------------------------------------------------
25% to 40% Prorated from 50% to 100%
--------------------------------------------------------------------------------
40% 100%
--------------------------------------------------------------------------------
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For all purposes of Paragraphs 2 and 3, Gross Profit shall mean reported sales,
as included in the audited financial statements of Buyer less all compensation
costs and subcontractor costs for Newco and gross profit percentage shall mean
Gross Profit divided by Total Sales.
Notwithstanding the schedule shown above, in the event that Innova enters a
binding agreement to sell all of its stock or its assets or all of the assets
acquired from Seller prior to receipt of all of the stock portion of the
purchase price to be paid hereunder, then the remaining portion of the stock
purchase price shall be delivered to the Seller immediately prior to the sale.
4. Due Diligence Review: Buyer shall have the right to perform due diligence
with respect to such matters as Buyer in its sole discretion deems
advisable to permit Buyer to confirm its understanding of the assets and
business of Seller. Such due diligence shall include legal, financial, and
operational due diligence including due diligence regarding employees,
customers and suppliers, prospects and any other matters with respect to
the business and ownership of the assets of Seller. Seller will provide
Buyer with access to such materials as it reasonably requests to perform
its due diligence review in a timely manner. Buyer shall begin its review
of Seller as soon as reasonably practicable and provided that Buyer
provides all materials requested in a timely manner, Seller shall complete
its review on or prior to April 30, 2006. Buyer's obligation to purchase
the assets set forth in this Letter Agreement shall be subject to a
satisfactory due diligence review. If Buyer does not notify Seller on or
prior to April 30, 2006 that it is not satisfied with the results of the
due diligence review, this requirement will be deemed met. For purposes of
this Letter Agreement Buyer shall be deemed satisfied with the due
diligence review if (i) the audited financial statements are not
materially different from the financial information previously provided to
Buyer by Seller; and (ii) all other information relating to the business
assets does not differ materially from the information provided to Buyer
prior to the date hereof.
5. Financial Audit: Seller shall provide its audited financial statement for
the year 2005 and such other prior years as may be required by the SEC.
6. Employment of Key Employees. Newco shall enter an employment agreement
with each key employee listed on Exhibit B at a base salary as set forth
thereon. In addition, in the first twelve month period following closing,
key employees shall be eligible for a compensation bonus based on sales of
no less than $1.9 Million. If Newco achieves sales of $1.9 million, key
employees shall receive a bonus equal to 20% of their compensation. For
each $75,000 in excess of $1.9 million, each Key employee shall receive an
additional bonus of 1% of compensation up to a maximum of an additional
10% of compensation for a total of 30% of compensation. Key employees of
Seller shall be allocated the aggregate amount of options to purchase 2
million shares of Buyer's common stock subject to the terms of Buyer's
stock option plan. Such options shall vest equally over a three year
period following closing and shall be exercisable at an exercise price of
$.018 per share.
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7. Confidentiality: Each of the parties hereto and each of their key
employees shall execute a mutual Confidentiality Agreement in the form
attached hereto as Exhibit B. Neither party shall without the approval of
the other party disclose the existence of this Letter Agreement or issue a
press release regarding any of the terms set forth herein without the
approval of the other party.
8. Term. This Letter Agreement shall terminate upon the earlier of (a) the
execution of a definitive agreement which includes the terms set forth
herein plus such other terms which are customary in an agreement for the
purchase of assets, and (b) the later of two weeks after (i) satisfactory
completion of the due diligence review and the receipt of the audited
financial statements described in Paragraph 5 above, or (c) the date upon
which notice is provided to Seller that Buyer is not satisfied with the
results of the due diligence review or audited financial statements.
Notwithstanding anything in the Agreement to the contrary, this Letter
Agreement shall terminate (A) on April 30, 2006 if the parties have not
executed a formal definitive asset purchase agreement. Acceptance of such
definitive agreement is subject to the parties' reasonable satisfaction,
provided further, that the financial terms of the transaction found in
Paragraphs 2. and 3. shall not be subject to re-negotiation or change; (B)
on May 31, 2006 if the transaction has not closed on or before that date;
or (C) if there is a material adverse change to the business of either
party to this Letter Agreement.
9. Governing Law. This Letter Agreement will be governed by the laws of the
State of Florida, without regard to any provision of Florida law that
would require or permit the application of the substantive law of any
other jurisdiction. The parties waive all right to a jury trial with
respect to any and all issues in any action or proceeding arising out of
or related to this Letter Agreement.
10. Entire Agreement: This Letter Agreement constitutes the entire agreement
between the parties, and supersedes all other prior or contemporaneous
communications between the parties (whether written or oral) relating to
the subject matter of this Letter Agreement. This Letter Agreement may be
modified or amended solely in a writing signed by both parties. Neither
party may assign or otherwise transfer this Letter Agreement or any of the
rights that it grants, without the prior written consent of the other
party.
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11. Waiver. No failure or delay by a party in exercising any right, power or
remedy will operate as a waiver of that right, power or remedy, and no
waiver will be effective unless it is in writing and signed by the waiving
party. Any provision of this Letter Agreement that imposes or contemplates
continuing obligations on a party will survive the expiration or
termination of this Letter Agreement.
12. Acceptance. If the terms of this Letter Agreement are acceptable, please
indicate your acceptance by counter-signing where indicated below and
returning the signed copy to Xxxxxx Xxxxxxx at 00000 Xxx Xxxxxx Xxxx.,
Xxxxx X0000, Xxxx Xxxxx Xxxxx, Xxxxxxx 00000.
Sincerely,
Innova Holdings, Inc.
/s/ Xxxxxx Xxxxxx
---------------------------------
By: Xxxxxx Xxxxxx
Chairman and CEO
Agreed and Accepted:
January 24, 2006
CoroWare, Inc.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Its: President and CEO
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