Exhibit 10.5
CONTRIBUTION AGREEMENT
Intek Information, Inc., a Delaware corporation ("Intek") has developed and
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operates a business based on a web-based software product used in call centers
("TelWeb Business").
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1. Intek hereby contributes, assigns and transfers unto Spider
Technologies, Inc., a Delaware corporation ("Spider"), its successors, legal
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representatives and assigns, as a capital contribution in return for 7,475, 890
(less the 100 shares of Spider Common Stock previously issued by Spider to
Intek) shares of Spider Common Stock and 37,707,124 shares of Spider Series A
Preferred Stock, issuable pursuant to the Distribution Plan attached hereto,
the following assets, properties, rights, and obligations of Intek used in the
TelWeb Business, and Spider hereby accepts and assumes such:
(a) Assigned Contracts listed on Exhibit A;
(b) Real Property interests listed on Exhibit B;
(c) Leases and Licenses listed on Exhibit C;
(d) Personal Property listed on Exhibit D;
(e) Intangible Assets listed on Exhibit E;
(f) Computer and Other Services and Utilities Agreements listed on
Exhibit F;
(g) Claims and causes of action related to any of the foregoing,
including those listed on Exhibit G;
(h) One Million Dollars ($1,000,000) in cash, $300,000 of which shall
be delivered on the date hereof and the balance within sixty (60)
days; and
(i) The organizational costs of forming Spider, prepaid rent or lease
payments on the foregoing for the month of October, 1999, if
already paid by Intek, and bills for the TelWeb Business paid by
Intek in the month of October, 1999, in the ordinary course of
business.
The assets, properties, rights and obligations contributed and transferred by
Intek to Spider pursuant to this Section 1 are collectively referred to as the
"Assets."
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The above numbers of shares of capital stock of Spider are based upon the
calculation of both the number of shares of outstanding Intek capital stock and
the theoretical PIK Election calculation set forth in the Distribution Plan of
Intek. If there is a mathematical error in such calculations, the number of
shares of Spider capital stock issued hereunder shall be automatically
correspondingly adjusted up to the date of physical distributions of Spider
stock certificates issued pursuant to the Distribution Plan.
2. Intek specifically does not hereby contribute, transfer or assign, and
Spider does not hereby accept or assume the following: (i) the TelWeb name, and
goodwill, marks and logos associated with "TelWeb"; (ii) assets which are
assigned to Spider by Intek pursuant to the Software Assignment and Grant Back
License, Maintenance and Support Agreement dated on or about the date hereof;
(iii) accounts receivable, debts and accounts payable accrued or due prior to
the date hereof including the disputed invoice of Xxxxxx Xxxx and the litigation
with Davox Corporation; (iv) rights, obligations, or assets which are allocated
between Intek and Spider in a different fashion than set forth herein pursuant
to the Tax Separation Agreement, Separation Agreement, Transition Support
Agreement or Sublease and Resource Sharing Agreement, of even date, between
Intek and Spider (the "Related Agreements"); (v) furniture, fixtures and
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equipment subject to the Sublease and Resource Sharing Agreement dated on or
about the date hereof; (vi) the "Integration Business" of Intek as defined
below; or (vii) any liabilities, contingent or otherwise, not expressly set
forth in Section 1 or the Exhibits thereto (provided, however, that Spider may
have assumed liabilities, contingent or otherwise, pursuant to the Related
Agreements).
The parties recognize that there are two sometimes related, but distinct,
functions concerning software. One is the core development of the software,
including code and manuals related to the code. The other is the integration of
the code so that it operates on, and with, a company's (including customer's and
licensee's) hardware and software platforms. Such integration may involve the
development of software code and manuals solely to permit such efficient
interoperability. The later function performed by Intek is the "Integration
Business" as defined above. However, the retention by Intek of the Integration
Business does not expressly or impliedly prevent Spider from performing similar
or the same functions for any person, including Intek customers or sublicensees
of software from Intek.
3. EXCEPT AS PROVIDED IN THE RELATED AGREEMENTS OR ANOTHER WRITTEN
AGREEMENT BETWEEN INTEK AND SPIDER, INTEK MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, BY SAMPLE, OR AS TO QUALITY, AS TO THE ASSETS, OR ANY PART
THEREOF, AS TO THE CONDITION OR WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY
DEFECTS THEREIN, OR INFRINGEMENT ON THE RIGHTS OF OTHERS WHETHER LATENT OR
PATENT, IT BEING UNDERSTOOD THAT THE ASSETS ARE TO BE CONTRIBUTED HEREUNDER "AS
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IS, WHERE IS" ON THE DATE HEREOF IN THEIR PRESENT CONDITION. REPRESENTATIONS AND
WARRANTIES OF INTEK MAY EXIST IN RELATED AGREEMENTS OR OTHER WRITTEN AGREEMENTS
BETWEEN INTEK AND SPIDER.
4. At or after the date hereof, Intek shall prepare, execute and deliver,
at Intek's expense, such further instruments of conveyance, sale, assignment or
transfer, and shall take or cause to be taken such other or further action, as
Spider shall reasonably request at any time or from time to time and which are
reasonably acceptable in form and substance to Intek in order to perfect,
confirm or evidence in Spider title to all or any part of the Assets or to
consummate, in any other manner, the terms and provisions of this Contribution
Agreement. Spider and Intek shall use their respective best efforts to secure
any consents and approvals required to effect the assignment of the contracts
transferred to Spider and release of Intek from future obligations thereunder.
Intek agrees that, upon written request, it will execute and return to Spider
any reasonable assignment, novation or transfer form to effect the transfer of
any contract. With respect to any contract conveyed to Spider by Intek for
which Spider is unable to obtain an assignment, novation or other transfer,
Spider shall nevertheless be deemed to be entitled to all beneficial interest in
such contract and be responsible for all duties thereunder and upon request
Intek shall provide cooperation to Spider as reasonably required to facilitate
the assignment and transfer of all contracts to Spider.
5. The covenants in Section 4 shall terminate three years after the date
hereof.
Dated: October 27, 1999 INTEK INFORMATION, INC.
By: /s/ Xxxxxxx X. X'Xxxxxxx
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Its: Chief Executive Officer
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AGREED TO:
SPIDER TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. X'Xxxxxxx
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Its: Authorized Officer
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EXHIBIT A
ASSIGNED CONTRACTS
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Contracts to be contributed by Intek to Spider including, among other
things, contracts with customers, contracts with vendors and/or suppliers: None.
However, customer relationships and goodwill related to TelWeb software (other
than Integration Business) are being transferred in respect of the following
contracts.
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Name of Contract Description
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3DO Master Service Agreement dated 7/1/97 to 7/1/98 which
specifically prohibits Subcontracting without consent
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AMEX (Copy of Contract Requested)
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BLUE SHIELD Master Service Agreement dated 5/7/98 to 5/7/99
prohibiting assignment without consent
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CELL ONE Letter of Intent for 4/25/98 to Present
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CFG Campaign Services Agreement dated 3/1/97 to 3/1/98
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CONSECO Master Service Agreement dated 7/1/98 to 7/1/00
prohibiting assignment without consent
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NORWEST Master Service Agreement dated 5/1/98 to 5/11/01
prohibiting assignment without consent
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ORACLE Letter of Intent (limited info)
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SAFEWAY Master Service Agreement dated 9/17/97 to 9/17/98
prohibiting assignment without consent
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SEGA USA Master Service Agreement dated 4/8/97 to 4/8/99
prohibiting assignment without consent
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SEGA ENT Telephone Marketing Agreement dated 8/18/96 to 8/17/97
prohibiting assignment without consent
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SONY Services Agreement dated 5/1/97 to 3/31/99 prohibiting
assignment without consent
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US WEST Agreement for Services dated 1/27/99 to 12/31/99
specifically stating subcontracting is not allowed without
consent
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WALL STREET Memo and Vendor Confidentiality Agreement dated 7/30/96
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EXHIBIT B
REAL PROPERTY
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Owned real property to be contributed by Intek to Spider: None.
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EXHIBIT C
LEASES AND LICENSES (AMENDED)
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Leases and licenses to be contributed by Intek to Spider including software
licenses and equipment leases such as photocopiers, telephones, computer
equipment, etc. NONE.
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EXHIBIT D
PERSONAL PROPERTY
(FURNITURE, FIXTURES AND EQUIPMENT)
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Furniture, fixtures, equipment and supplies to be contributed by Intek to
Spider consisting of approximately $10,000 by fair market value of furniture,
fixtures, equipment and supplies used by Spider and located in the Denver
metropolitan area.
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EXHIBIT E
INTANGIBLE ASSETS
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None, except customer relationships and goodwill, as detailed in Exhibit A,
and going concern value.
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EXHIBIT F
COMPUTER AND OTHER
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SERVICES AND UTILITIES AGREEMENTS
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Service and utility contracts such as telecommunications, computer
maintenance, electricity, lighting, heat and air, gas, water, fuel, oil,
sanitary facilities, maintenance and cleaning service agreements to be
contributed to Intek to Spider: None. Addressed by Sublease and Resource
Sharing Agreement.
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EXHIBIT G
CLAIMS AND CAUSES OF ACTION
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Claims and causes of action related to the contributions listed on Section
1 to be contributed by Intek to Spider: None currently known.
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