Exhibit 10rr
JOINT VENTURE AGREEMENT
AGREEMENT (the "Agreement"), dated as of December 1, 1995, by and
between LoJack Venture Corporation, a Massachusetts corporation having its
principal place of business at Norfolk Place, 000 Xxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, ("LVC") and Micrologic, Inc., a Massachusetts corporation
having its principal place of business at 00 Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, ("Micrologic").
Recitals
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WHEREAS, the parent of LVC is the vehicle recovery and automotive
security business and is the owner of patents and other proprietary technology
in the field, including the trademark LOJACK(R) applied to such vehicle recovery
and automobile security business, and has given LVC the right to authorize the
use of the same pursuant to this agreement; and
WHEREAS, Micrologic is in the design, engineering and technology
development business and is the technical developer of the LoJack Stolen Vehicle
Recovery System and has developed the concept of a completely self-contained
transponder; and
WHEREAS, the parties wish to continue to develop a new self-contained
transponder technology using state of the art technology, of which the first
application will be a next generation LoJack Unit, designated LJU-III; and
WHEREAS, the parties believe that the development process will result
in additional proprietary technology (the "Technology") which also will have
applications beneficial to LVC outside of stolen vehicle recovery and vehicle
security; and
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WHEREAS, the parties would like jointly to exploit these other
applications; and
WHEREAS, the parties wish to form a joint venture for the purpose of
developing LJU-III and the Technology; and
WHEREAS, the parties desire to set forth their respective interests in
the joint venture with respect to the services to be rendered and in any
profits, losses, or liabilities arising therefrom;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:
1. Formation of Joint Venture.
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(a) The parties hereby agree to form a joint venture (the "Joint
Venture") solely for the purposes of developing the Technology (the "Project")
and exploiting the Technology for the benefit of the Joint Venture. The Joint
Venture shall be known as "SCT Development Venture". The parties hereto are
sometimes herein referred to as "Venturers" or, where applicable, "Venturer".
(b) The Venturers agree to use their best efforts to carry out
the respective duties and obligations of the Joint Venture required of them, or
each of them hereunder; to protect and further the interests of the Joint
Venture; and to contribute such funds as are required of each such Venturer to
be contributed to undertake and carry out the Project as herein described.
(c) This Agreement shall not constitute any Venturer the
partner or agent of any other Venturer except as herein expressly provided, nor
in any manner limit the Venturers in carrying on their respective separate
businesses or activities, nor impose upon
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any Venturer any fiduciary duty by reason of its carrying on its separate
business or activity, nor impose upon any Venturer any liability or obligation
to the other Venturer or the Joint Venture except as expressly provided herein.
(d) Except as otherwise expressly and specifically provided
herein, no Venturer shall have any authority to act for or to assume any
obligations or responsibility on behalf of the Joint Venture or any other
Venturer.
(e) Except as otherwise expressly and specifically provided
herein, no Venturer shall have the right to borrow money on behalf of the Joint
Venture or any other Venturer. No Venturer shall have the right to use the
credit of another Venturer for any purpose whatsoever.
(f) Subject to the provisions of Section 15, the Venture
shall terminate on December 31, 2015.
2. Contributions to the Joint Venture.
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(a) LVC hereby contributes $10,000 in cash, the receipt of which
is hereby acknowledged.
(b) Micrologic hereby contributes $10,000 in cash, the receipt of
which is hereby acknowledged.
(c) Working capital shall be contributed equally by the
Venturers, as provided in Section 4.
(d) LVC and the Joint Venture shall execute a License Agreement
substantially in the form attached hereto as Exhibit B.
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(e) Micrologic and the Joint Venture shall execute a LJU-III
Development Agreement substantially in the form attached hereto as Exhibit C.
3. Interest in Property, Profits and Losses and Liabilities.
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(a) All property of the Joint Venture of whatever description
("Property of the Joint Venture"), including, without limitation, accounts
receivable, cash receipts and undistributed cash used, generated or earned in
connection with the performance of the Project and proceeds of insurance and
fidelity bonds with respect to property or funds of the Joint Venture and loan
proceeds shall be deemed owned by the Joint Venture. No Venturer, individually,
shall have any ownership of or title to such property.
(b) The Venturers' interest in the Property of the Joint Venture
and in the Profits, Losses, Operating Deficits and liabilities of the Joint
Venture shall be shared in the following percentages ("Proportionate Shares")
namely: LVC 50% and Micrologic 50%. The Proportionate Shares of the Venturers
are subject to adjustment in the event a Venturer does not furnish its
Proportionate Share of working capital or pay its Proportionate Share of any
Operating Deficit or Loss as provided in Section 5.
(c) Each Venturer shall be jointly and severally liable to
third parties as to obligations of the Joint Venture; provided, however, that as
between the Venturers, each Venturer shall indemnify and save the other harmless
from and against any loss sustained or liability incurred in the performance of
or in connection with the Project or this Agreement, to the extent any such loss
or liability shall exceed such Venturer's respective Proportionate Share
thereof.
4. Working Capital; Bank Account.
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(a) Initial working capital in the aggregate amount of $20,000
has been contributed to the Joint Venture. Thereafter additional working capital
shall be furnished by the Venturers at such times and in such amounts as may be
determined by the Venturers. All contributions to working capital by the
Venturers shall be in amounts equal to their respective Proportionate Shares.
All working capital contributed shall be repaid to the Venturer contributing the
same prior to the distribution of any Profits.
(b) The Venturers shall open and establish such bank account(s)
under such description or title as the Venturers may determine. All funds
contributed or advanced by the Venturers, as well as all funds received on
account of the performance of the Project and all proceeds of insurance and
fidelity bonds, shall be deposited in the bank account(s) of the Joint Venture.
Withdrawals from the bank account(s) shall be made only in such manner and form
as the Venturers may from time to time direct by such persons as are approved by
the Venturers.
5. Failure to Contribute; Right to Cure.
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If any Venturer (the "Defaulting Party") shall at any time fail to
make the payments required to be made or contributed pursuant to this Agreement,
including, without limitation, contributions to working capital and
contributions on account of Operating Deficits and Losses, then:
(i) If such failure shall occur prior to July 31, 1996, the other
Venturer (the "Non-Defaulting Party") may make such contribution and the
proportional interest of the Non-Defaulting Party shall be increased by a
percent determined by dividing the amount of the contribution made by the
Non-Defaulting Party by $803,025 and multiplying the quotient
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by one hundred. For example, if the amount of the contribution is $26,767 and
the Non-Defaulting Party's percentage prior to the contribution is fifty percent
(50%), after the contribution the Non-Defaulting Party's percentage would be
fifty-three and one-third percent (53 1/3%) determined as follows:
26,767/803,025=1/30x100=3 1/3%+50%=53 1/3%.
(ii) If such failure shall occur thereafter, the Non-Defaulting Party
may, within ten (10) days after written notice specifying the default and prior
to cure thereof by the Defaulting Party, without waiving or releasing the
Defaulting Party, contribute the amount in default for the account of the
Defaulting Party. If the Non-Defaulting Party does so contribute the amount in
default, the amount of such contribution, together with interest thereon at 3%
above the then current prime rate of Bank of Boston from the date of such
contribution, shall become a debt of, and be paid by, the Defaulting Party to
the Non-Defaulting Party within forty-five (45) days after written demand. If
the debt is not paid by the Defaulting Party within said forty-five (45) day
period, in addition to any other remedy or relief available to the
Non-Defaulting Party, said debt shall be deemed a lien upon and collectible out
of the Defaulting Party's interest in, and distributions from the Joint Venture.
Reimbursement of amounts paid under this Section shall have priority over
payment of any distribution to the Defaulting Party under this Agreement.
6. Manager. The general supervision and management of the Joint
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Venture and any and all matters relating thereto shall be under the general
charge and control of a board of three managers. One such manager shall be
designated by each Venturer from among its executive officers and directors. The
Venturers together shall designate a third member of the Board of Managers who
shall not be an employee or director of either Venturer or of a
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subsidiary or parent of either Venturer. The Board of Managers may delegate
day-to-day operating authority to one or more persons (the "Manager").
Initially, in the absence of such designation, Xxxxxx X. Xxxxx and Xxxxxxx
Xxxxxx jointly shall act as Manager. Until further or other delegation is made
by the Board of Managers, both of them, acting together as Manager shall have
the power, in the name of the Joint Venture, to execute and deliver sales
orders, purchase orders, contracts, and other agreements, and to borrow money,
obtain letters of credit and pledge Property of the Joint Venture as collateral
for obligations of the Joint Venture, except that, where any single commitment
resulting in an obligation of the Joint Venture exceeds $5,000 in amount, or the
total of such commitments then outstanding exceed $10,000 in the aggregate, the
Manager shall obtain the approval of the Venturers before executing any such
agreements. The Manager shall be given such additional specific powers as the
Venturers may from time to time delegate. Unless specifically authorized by the
Venturers, the Manager shall serve without compensation.
7. Venture Costs. Costs of performance of the Joint Venture ("Venture
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Costs") to be borne by the Joint Venture and shared by the Venturers shall
consist of all costs incurred pursuant to the Development Contract, all costs of
exploiting the Technology, and all administrative costs, insurance (other than a
Venturer's own general liability insurance and workers compensation insurance
relating to a Venturer's own employees which shall not be borne by the Joint
Venture), taxes, if any, imposed on the Joint Venture or the Property of the
Joint Venture, legal fees, accounting fees, liability, fidelity or casualty
losses not covered by insurance, compensation and benefits (if any, as approved
by the Venturers) of the Manager and other administrative, supervisory and
clerical personnel employed directly by
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the Joint Venture or assigned full time to the Joint Venture, all costs
attributable to the maintenance of an office and all other expenses and
obligations incurred in connection with the performance of the Project of a kind
and nature which, under generally accepted accounting principles, would be
properly charged as an expense relating to the performance of the Project.
Except by agreement of the Venturers, the Joint Venture shall not be charged for
any overhead expenses or charges attributable to the main or branch offices of a
Venturer, nor for compensation of officers and administrative staff of a
Venturer unless assigned full time to the Project, nor for any costs associated
with the negotiation, preparation or enforcement by a Venturer of this
Agreement.
8. Books and Records.
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(a) Separate books of account and other records relating to the
performance of the Project, the amount of Venture Costs incurred and revenue
received in the performance of the Project, the amount of each Venturer's
respective capital account, the records relating to bank accounts of the Joint
Venture and all other matters pertaining to the Joint Venture and the Project
shall be kept and maintained at the main office of the Joint Venture.
(b) A periodic audit (or, if agreed upon by the Board of
Directors, review) of the books and records shall be made by an independent firm
of certified public accountants or by such individuals and at such intervals as
may be agreed upon by the Venturers.
(c) A true and correct accounting shall be rendered by the
Manager to each Venturer monthly within thirty (30) days after the close of each
month (and at the Completion
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of the Project) of all costs, expenses, and other data relating to the
performance of the Project and the affairs of the Joint Venture.
(d) Records shall be kept of each Venturer's capital account in
the Joint Venture, including, without limitation, contributions to working
capital, the amount of all distributions therefrom, and adjustments to capital
accounts resulting from defaults, if any, pursuant to Section 5.
(e) Each Venturer shall have the right at all reasonable times,
during usual business hours, to audit, examine, and, at its expense, make copies
of or extracts from the books and records maintained in connection with the
Project. The Venturer or Venturers requesting such inspection shall bear all
expenses incurred in any examination made for its or their account.
(f) The books and records of the Joint Venture shall be kept for
a period of five years after the Completion of the Project at such place or
places as the Venturers may from time to time determine. The cost of maintaining
and storing the books and records after Completion of the Project shall be borne
by the Venturers in amounts equal to their respective Proportionate Shares.
(g) The fiscal year of the Joint Venture shall be December 31.
9. Tax Status, Returns and Allocations.
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(a) Any provision hereof to the contrary notwithstanding, for
federal income tax purposes, each of the Venturers hereby recognizes and agrees
that the Joint Venture will be treated as a partnership in accordance with the
provisions of the United States Internal Revenue Code, as the same may from time
to time be amended; provided,
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however, that the filing of partnership tax returns shall not be construed to
extend the purposes of the Joint Venture or expand the obligations or
liabilities of the Venturers. The Venturers shall, by mutual agreement, file any
election permitted or required under said Internal Revenue Code (the "Code") in
confirmation of the foregoing provided, however, that the Venturers shall file
an election under Section 754 of the Code on the first federal income tax return
of the Joint Venture.
(b) The Manager shall cause to be prepared all tax returns and
statements, if any, which are required to be filed on behalf of the Joint
Venture with the appropriate taxing authorities. Such returns and statements
shall be submitted to the Venturers for their approval prior to filing, and,
when approved by the Venturers, shall be filed promptly. The Venturers agree not
unreasonably to withhold or delay approval of tax returns.
10. Division of Profits.
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(a) Profits or losses of the Joint Venture shall be allocated to
the capital accounts of the Venturers in proportion to their respective
ownership interests. All tax and other items separately allocated shall be
allocated in proportion to aggregate profit or loss.
(b) The Profits of the Joint Venture shall be distributed to
the Venturers in the discretion of the Board of Managers. All distributions
shall be in proportion to capital account balances. Either Venturer may require,
to the extent that cash is available, that a distribution shall be made to each
of the Venturers in an amount at least sufficient to pay estimated Federal and
State income taxes on the taxable income of the Joint Venture, assuming each
Venturer to be subject to such taxes at the maximum applicable effective rate,
net, in the case of Federal taxes, of the benefit of the deduction of State
taxes.
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Further, if combined capital accounts of the Venturers exceed $1,000,000, either
Venturer may require, to the extent of available cash, a distribution to the
Venturers of an amount not more than the amount by which such combined capital
accounts exceed $1,000,000.
(c) As used herein, the term "Profits" shall mean the total
amount of funds of the Joint Venture:
- after payment of (i) all Venture Costs and any other costs and charges
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incurred in the performance of the Project; (ii) all other costs and
charges provided in this Agreement to be paid or borne by the Joint
Venture theretofore due and payable; and (iii) any and all liens and
claims against the Project or the Joint Venture (unless covered by
insurance and being defended, without reservation of right, by the
insurer or unless the parties agree in good faith to contest the same
and maintain an adequate reserve therefor as set forth below);
- and after the retention of adequate and reasonable reserves for (iv)
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any liens or claims which either have been brought against the Project
or the Joint Venture and not paid or covered by insurance (but
contested as provided above) or which are reasonably anticipated by the
Venturers to be brought and for (v) all other monetary obligations of
the Joint Venture or the Venturers on its behalf not then due and
payable, including a cash reserve approximately equal to an average one
month's operating expenses of the Joint Venture; and
- after repayment to the Venturers of (vi) all sums advanced by the
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Venturers for working capital, as adjusted for defaults as provided in
Section 5 hereof, including repayment of advances (and interest
thereon) made by a Non-Defaulting Party.
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Any reserves, when no longer required, or so much thereof as shall remain, shall
be distributed to the Venturers in the amount of their respective Proportionate
Shares. This obligation shall survive the Completion of the Project.
11. Sharing of Losses and Operating Deficit.
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(a) If the cost of performance of the Project from time to time
exceeds available cash from the sale of Product and working capital or if there
are insufficient funds, at any time, to meet accrued obligations of the Joint
Venture or the Venturers acting on its behalf ("Operating Deficit") or if, upon
Completion of the Project there are insufficient funds to make the payments and
reservations set forth in Section 10(i), (ii), (iii), (iv) and (v) ("Loss" or
"Losses"), the Venturers shall be obligated to make additional contributions of
cash or otherwise satisfy claims and obligations in the amount of their
respective Proportionate Shares of the Operating Deficit or Loss, as the case
may be. The liability of the Venturers for Losses shall continue with respect to
any claims which at any time, either before or after the Completion of the
Project, shall be made against them or either of them or the Joint Venture by
reason of the Joint Venture or the Project or this Agreement.
(b) Any deficit in the account of a Venturer by reason of its
failure to contribute its required proportion of the Operating Deficit or Loss
shall be subject to the provisions of Section 5 as a failure to contribute
working capital.
12. Insolvency. In the event a Venturer shall institute proceedings or
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consent to proceedings requesting relief or an arrangement under the Federal
Bankruptcy Code or any similar or applicable federal or state law; or if a
petition under any federal or state bankruptcy or insolvency law is filed
against a Venturer and such petition is not dismissed
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within sixty (60) days from the date of said filing; or if a Venturer admits in
writing its inability to pay its debts generally as they become due; or if a
Venturer makes a general assignment for the benefit of its creditors; or if a
receiver, liquidator, trustee or assignee is appointed on account of its
bankruptcy or insolvency; or if a receiver of all or any substantial portion of
a Venturer's properties is appointed; or if a Venturer fails to perform promptly
and diligently its obligations under this Agreement; or if a Venturer is a
Defaulting Party and payments are made on its behalf under Section 5; then, from
and after the date of such event, such Venturer shall cease to have any voice in
the management of the Joint Venture and the Project and all acts, consents, and
decisions with respect to the Joint Venture and the Project shall thereafter be
taken solely by the other Venturer. The Venturer thus prohibited shall, however,
remain liable for its Proportionate Share of Losses, Operating Deficits and
liability for obligations of the Joint Venture, including those arising or
accruing after the date of such prohibition.
13. Assignment. Neither this Agreement nor any interest of a Venturer
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herein (including any interest in the Property of the Joint Venture) may be
assigned, pledged, transferred, or hypothecated, without the prior written
consent of the other Venturer.
14. Rights of First Purchase.
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(a) In the event of termination pursuant to Section 15, the
terminating Venturer ("Offeror") shall offer in writing to sell its interest in
the Venture (the "Offered Interest") to the other Venturer ("Offeree") as
hereinafter provided. The written offer to sell shall state the terms and
conditions of the proposed sale.
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(b) Upon receipt of such written notice and offer, the Offeree
shall, within a period of ten (10) business days thereafter, give notice in
writing to the Offeror of its election to negotiate for the purchase of the
Offered Interest. Thereafter, for a period not to exceed 45 days after such
notice by the Offeree, the parties shall proceed to negotiate in good faith for
the purchase of the Offered Interest.
(c) If the Offeree shall have elected not to negotiate, or if
the parties shall have been unable to reach agreement within the 45 day period
specified in subsection (b) hereof, then if the dispute between the parties
relates to valuation, the issue of valuation shall be determined by arbitration
in the City of Boston pursuant to the Rules for Commercial Arbitration of the
American Arbitration Association. Valuation, as so determined, shall be binding
upon the parties for all purposes. If the dispute is other than as to valuation,
or if the Offeree declines to purchase based upon the value determined by
arbitration, then the Venture shall be liquidated.
(d) Nothing herein shall prevent any of the Venturers hereto from
selling or otherwise transferring its entire interest, or any portion thereof,
in this Agreement, and the Venture to its subsidiaries, affiliates, or parent
(including a corporate or individual majority shareholder), provided that such
transferee shall expressly assume and agree to be bound by all the terms and
conditions of this Agreement.
(e) It is hereby expressly agreed that upon any sale, assignment,
transfer, mortgage, pledge, lease or other disposition of any Venturer's
interest herein, including a judicial or involuntary sale or transfer, or a
transfer by operation of law, the purchaser or transferee shall be bound by all
of the terms and conditions of this Agreement, and by
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acceptance of any such transfer shall be deemed to have assumed and agreed to be
so bound, and will on request of the Venture execute an instrument in writing to
that effect.
15. Voluntary Termination. This Agreement may be terminated at any
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time by the mutual agreement of the Venturers, or by either venturer on sixty
(60) days written notice.
16. Liquidation Procedures.
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(a) Upon failure of negotiation as provided in Section 14, or if
all Venturers otherwise wish to terminate this Agreement, (i) a final accounting
shall be prepared by the Manager; (ii) all liabilities and obligations of the
Joint Venture shall be discharged; and (iii) the Property of the Joint Venture
and other assets of the Venture shall be distributed to the Venturer(s) as
herein provided; provided, however, that in order to effect distribution, all or
any portion of the Property of the Joint Venture and other assets of the Joint
Venture may by agreement of the Venturers be sold and the proceeds thereof
distributed in accordance with the foregoing.
(b) (i) In no event shall a termination or liquidation of the
Joint Venture terminate the LVC License Agreement. In the event of
termination or liquidation, the provisions of the License Agreement
shall cover the rights to the Technology which is subject to it.
(ii) Upon liquidation, the Technology shall be distributed in
kind to the Venturers, who shall own it jointly, subject to the rights
of LVC pursuant to the License Agreement. Any net proceeds from
licensing the Technology shall be divided between the former Venturers
in proportion to their respective Proportionate Shares immediately
prior to liquidation.
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(iii) Where a former Venturer exploits the Technology
directly (i.e., without licensing), proceeds of exploitation of the
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Technology shall be deemed to be two and one-half percent (2 1/2%) of
the revenues recognized in accordance with generally accepted
accounting principles for the subject line of business before interest,
taxes, depreciation and amortization.
(c) Any remaining assets shall be distributed to the Venturers in
proportion to their Proportionate Shares.
17. Indemnity. Except as provided herein, in the event any claims are
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made or asserted against any Venturer or any parent, subsidiary or affiliate of
a Venturer by reason of the execution of any agreements, guarantees, or other
obligations assumed or guaranteed for or on behalf of the Joint Venture, and
approved by the Joint Venture, the Joint Venture shall defend said claims and be
responsible for the payment thereof, as well as otherwise indemnify and hold
said Venturer, its parent, subsidiary or affiliate harmless from any loss, cost
or expense incurred by it or them, or any of them, with respect thereto. All of
the assets of the Joint Venture shall be available to discharge any claims so
asserted against any of the Venturers, their parents, subsidiaries or
affiliates, or any of them, in accordance with the foregoing.
18. General.
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18.1 Further Cooperation. The Venturers hereto agree to execute and
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furnish any and all papers and documents which may reasonably be necessary to
carry out the terms of this Agreement and to further the interests of the Joint
Venture, including, without limitation, any financial statements, corporate
resolutions, and other documentation and information as
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may be required by depositories of funds of the Joint Venture by insurers and by
lenders or as may be required under the License Agreement or Procurement
Agreement or in aid or defense of patents.
18.2 Entire Agreement. All exhibits and schedules hereto shall be
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deemed to be incorporated into and made part of this Agreement. This Agreement,
together with the exhibits and schedules hereto, contains the entire agreement
among the parties and there are no agreements, representations, or warranties
which are not set forth herein. This Agreement may not be amended or revised
except by a writing signed by all parties hereto.
18.3 Binding Effect. This Agreement shall be binding upon and inure to
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the benefit of the parties hereto and their respective successors and assigns;
provided, however, that, except as expressly provided herein, this Agreement and
all rights hereunder may not be assigned by any party hereto except by written
consent of the other parties hereto.
18.4 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
18.5 Notices. All notices, request, demands and other communications
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required hereunder shall be in writing and shall be deemed to have been duly
given or made if delivered personally, sent by facsimile transmission or telex
confirmed in writing within two (2) business days, or sent by registered or
certified mail, postage prepaid, as follows:
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If to LVC:
LoJack Venture Corporation Corporation
Norfolk Place
000 Xxx Xxxxxx
Xxxxxx, XX 00000
Attention: C. Xxxxxxx Xxxxx, President
With a copy to:
Xxxxxx X. Xxxxxxx, Esquire
Peabody & Xxxxxx
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
If to Micrologic:
Micrologic, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Any Venturer may change the address to which such communications are to be sent
to it by giving written notice of change of address to the other party in the
manner provided above for giving notice.
18.6 Provisions Separable. The provisions of this Agreement are
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independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
18.7 Captions. The captions herein have been inserted solely for
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convenience of reference and in no way define, limit or describe the scope or
substance of any provision of this Agreement.
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18.8 Construction. The Venturers acknowledge that each Venturer and its
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counsel have reviewed and revised this Agreement and that the normal rules of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
18.9 Delays or Omissions. Any waiver, permit, consent or approval of
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any kind or character of any breach or default under this Agreement, or any
waiver of any provision or condition of this Agreement shall be effective only
to the extent specifically set forth in writing.
18.10 Consent to Jurisdiction. Each of the Venturers hereto agrees that
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any suit, action or proceeding instituted against such party under or in
connection with this Agreement shall be brought exclusively in a court of
competent jurisdiction of the Commonwealth of Massachusetts. By execution
hereof, each Venturer hereto irrevocably waives any objection to, and any right
of immunity on the grounds of, improper venue, the convenience of the forum, the
personal jurisdiction of such courts or the execution of judgments resulting
therefrom. Each Venturer hereto hereby irrevocably accepts and submits to the
exclusive jurisdiction of such courts in any such action, suit or proceeding.
18.11 Governing Law. The execution, interpretation, and performance of
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this Agreement shall be governed by the laws of the Commonwealth of
Massachusetts.
18.12 Assumed Name Certificate: The Venturers shall execute any assumed
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or fictitious name certificate or certificates required by law to be filed in
connection with the formation of the Joint Venture and shall cause such
certificate or certificates to be filed in the appropriate offices as required
by law.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as an instrument under seal by its officer
thereunto duly authorized as of the date first above written.
LoJack Venture Corporation
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
Title: President
Micrologic, Inc.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Xxxxxxx Xxxxxx
Title: President
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EXHIBIT B
LICENSE AGREEMENT
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License Agreement (the "Agreement"), between SCT Development Venture, a
joint venture (the "Venture") of LoJack Venture Corporation and Micrologic, Inc.
("Micrologic"), and LoJack Corporation, a Massachusetts corporation having its
principal place of business at Norfolk Place, 000 Xxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx (hereinafter "LoJack"), with respect to certain proprietary rights
and certain patents that have been registered or are being registered with the
Patent and Trademark Office of the United States of America. The parties agree
as follows:
I. DEFINITIONS:
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Field means all aspects of stolen Vehicle recovery systems and Vehicle
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security systems, and any product or system in any way utilizing or operating on
LoJack's Sector Activation System as it now or hereafter may be operated.
Licensed Rights mean the LJU-III Patents and the LJU-III Proprietary
---------------
Information.
LJU-III Patents. All patents now or hereafter during the term of this
---------------
Agreement held by the Venture relating to LJU-III.
LJU-III Products include all products manufactured or distributed in any
----------------
way utilizing or operating on LoJack's Sector Activation System as it is now or
hereafter may be operated by LoJack, including third-generation LoJack Units for
installation in consumer vehicles.
LJU-III Proprietary Information means all unpatented proprietary
-------------------------------
information of the Venture, including design details and operating
characteristics, information relating to installation, and all other things
treated as confidential by the Venture or not generally
-21-
known, including all related software, file structures, documentation,
algorithms and related software concepts, and all aspects of the Registration
System, except as otherwise provided herein.
LoJack System means the system for locating and recovering stolen motor
-------------
vehicles utilizing a computerized transceiver located in the vehicle (the
"LoJack Unit"), a terrestrial radio system for activating the LoJack Unit after
report of the theft (the "Sector Activation System"), and method of assigning
code numbers (the "Registration System") and a directional tracking unit
designed for installation in police vehicles (the "LoJack Tracking Computer").
Territory means, subject to Article VII, Section 4, anywhere in the world.
---------
Vehicle means passenger motor vehicles, trucks, vans, motorcycles,
-------
tractors, trailers, buses, motorized construction equipment, aircraft and water
craft.
II. LICENSE GRANTS:
--------------
1. PATENT AND PROPRIETARY INFORMATION LICENSE
------------------------------------------
1. For the term of this Agreement and within the Territory, the
Venture grants to LoJack and its distributors and licensees, subject to all
terms and conditions set forth in this Agreement, the exclusive right, with the
right to sublicense, within the Field to make, use and sell LJU-III Products
within the scope of the LJU-III Patents and the LJU-III Proprietary Information,
provided, however, that LoJack's right to sublicense manufacture shall be
limited to subcontractors manufacturing for LoJack, and shall not authorize
distributors or licensees to manufacture. Initially, the Venture shall be
responsible to manufacture, or select the manufacturer of, the LJU-III. LoJack
shall have the right to
-22-
approve the manufacturer, the specifications, and the terms of the contract,
which approval shall not unreasonably be withheld or delayed. The Venture shall
sell LJU-III units it manufactures or has manufactured to LoJack at its direct
cost. The Venturers responsibility for and right to manufacture or contract for
manufacturing LJU-III units shall be limited to the first 100,000 units. If
earlier, such responsibility and right shall terminate one year after
manufacturing commences, in the event of the termination of the Venture, or upon
failure of the Venture to commence manufacturing.
2. For the term of this Agreement and within the Territory, the Venture
grants to LoJack and its distributors and licensees, subject to all terms and
conditions set forth in this Agreement, the right, co-terminous and coextensive
with the rights granted to LoJack herein, to sublicense the LJU-III Patents and
the LJU-III Proprietary Information, provided, however, that LoJack may
sublicense manufacturing only for the use of and sale by LoJack and not for sale
to third parties.
3. To the extent that any intellectual property developed by the Venture
constitutes an improvement to inventions encompassed by patents owned by LoJack
Corporation, such property hereby is assigned to LoJack, and LoJack shall have
the right to file patents on and to own such improvements. The filing or
granting of such patents shall not affect royalty or other obligations of LoJack
pursuant to this Agreement.
III. LIMITATIONS AND USE:
-------------------
1. USE OF LJU-III PROPRIETARY INFORMATION. The LJU-III Proprietary
--------------------------------------
Information shall continue to be treated as Confidential by LoJack, and may be
used by
-23-
LoJack only in connection with the rights granted hereunder, and with reasonable
care to assure its continued confidentiality.
2. EXTENT OF LICENSES. Subject to the limitations set forth in paragraph
------------------
II, 2, above, the licenses granted herein shall be transferable within the
Territory for use within the Field.
IV. ROYALTIES.
---------
1. In each year, LoJack shall pay to the Venture royalties based on the
sale of third-generation LoJack Units according to the following formula:
UNIT VOLUME PERCENTAGE OF
WHOLESALE
PRODUCT REVENUE
RECEIVED
First 99,999 Units 5%
Next 50,000 Units 4.5%
Next 50,000 Units 4%
All Additional Units 3%
Such Royalties shall be payable thirty (30) days after the end of each calendar
quarter.
2. LoJack will pay to the Venture a minimum royalty of $8,333.33 per
month, commencing twelve (12) months after initial production of third-
generation LoJack Units commences. The minimum royalty shall be applicable to
the second, third, fourth and fifth years of production only, and shall
terminate after the fifth year.
3. As soon as practicable after the end of each fiscal year, LoJack shall
provide to the Venture accounting information sufficient to determine wholesale
product revenue received for the sale of LJU-III Products and royalties due. The
Venture shall have, at its
-24-
own expense, the right to audit such information, on reasonable advance notice.
All accounting and financial information provided by LoJack to the Venture shall
be deemed confidential and proprietary information of LoJack Corporation.
V. OWNERSHIP OF RIGHTS. LoJack acknowledges the Venture's exclusive right,
-------------------
title and interest in and to the LJU-III Patents and the LJU-III Proprietary
Information, and will not at any time do or cause to be done any act or thing
contesting or in any way impairing or tending to impair any part of such right,
title and interest. The Venture acknowledges the LoJack's exclusive right, title
and interest in and to the intellectual property within the scope of Section II,
3, above, and will not at any time do or cause to be done any act or thing
contesting or in any way impairing or tending to impair any part of such right,
title and interest.
Each party agrees that for the term of this Agreement it shall promptly
notify the other in writing of any infringement or potential infringement of
patents owned by such other party of which it becomes aware.
VI. EXCLUSIVITY. The rights granted herein are exclusive in the Field.
-----------
VII. TERMINATION.
-----------
1. Except as specifically set forth below, the Venture shall not have the
right to terminate this Agreement at any time, for any reason, with or without
cause. In the event of a dispute between the parties, it shall be submitted to
binding arbitration under the commercial rules of the American Arbitration
Association, in Boston, Massachusetts. Both parties shall continue to perform
this Agreement pending resolution of the dispute.
-25-
2. If LoJack fails, for a continuous period of sixty days or more, to pay
royalties due pursuant to this Agreement, the Venture shall have the right, on
thirty (30) days advance written notice, to terminate this Agreement in its
entirety.
3. If LoJack ceases, for a continuous period of 12 months or more, to
manufacture any LJU-III Products, the Venture shall have the right, on thirty
(30) days advance written notice, to terminate this Agreement in its entirety.
4. The Venture shall have the right to limit the territories so as to
exclude any designated country on six (6) months written notice to LoJack given
not earlier than three (3) years from the commencement of manufacturing of the
third-generation LoJack Unit, provided that LoJack shall not, directly or
through a licensee or distributor, have sold the lesser of 25,000 LJU-III units,
or units representing 2% of annual new vehicle sales, in such countries as
operate a stolen vehicle recovery system compatible with such units. The
Venture's right so to limit the Territory shall expire, and the Territory shall
be restored to include such country, if, within six (6) months of the expiration
of such notice period, the Venture a stolen vehicle recovery system operating in
such country utilizing, at least in part, the LJU-III Patents or the LJU-III
Proprietary Information. With respect to jurisdictions which operate
incompatible systems, the Venture shall not supply units adapted for use with
such system or contract for their supply unless the opportunity shall have been
offered to and declined by LoJack.
5. Upon any termination of the Venture, LoJack's rights to use the
Licensed Rights within the Field and within the Territory shall continue,
however, royalties will not be payable to the Venture. Upon any termination of
the Venture, LoJack shall pay royalties to
-26-
Micrologic, Inc. in an amount equal to that percentage of the royalties which
would have been due to the Venture pursuant to this Agreement had the Venture
continued in existence which equals Micrologic.'s proportionate share in the
Venture immediately prior to its termination.
In witness whereof the parties have signed this agreement this 1st day of
December, 1995.
SCT DEVELOPMENT VENTURE
By:
MICROLOGIC, INC.
By:
------------------------
duly authorized
LOJACK VENTURE CORPORATION
By:
------------------------
duly authorized
LOJACK CORPORATION
By:
------------------------
duly authorized
-27-
EXHIBIT C
LJU-III DEVELOPMENT AGREEMENT
-----------------------------
AGREEMENT made and entered into the 1st day of December, 1995, by and
between SCT Development Venture (the "Venture"), a joint venture between LoJack
Venture Corporation and Micrologic, Inc., and Micrologic, Inc., a corporation
organized and existing under the laws of the Commonwealth of Massachusetts
("Micrologic").
W I T N E S S E T H :
-------------------
WHEREAS, the business of Micrologic is to provide design, engineering and
manufacturing services for entities seeking to develop and manufacture a
product; and
WHEREAS, the Venture has a concept and design elements and specifications
for a new self-contained transponder technology using state of the art
technology; and
WHEREAS, Micrologic and the Venture desire to enter into an agreement by
which Micrologic will undertake such engineering and development for the Venture
to develop a next generation LoJack Unit (designated LJU-III) based on such
technology.
NOW, THEREFORE, in consideration of the mutual covenants expressed herein
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereby agree as follows:
I. DEFINITIONS
-----------
1.1 "Cost," as incurred by Micrologic, shall mean hours spent by
Micrologic employees directly on the Project at rates in effect on January 1,
1995, and actual out-of-pocket costs, including the cost for subcontractors and
materials directly employed on the Project.
-28-
1.2 "Developed Technology" shall mean the technology resulting from the
activities and efforts of Micrologic pursuant to this Agreement.
1.3 "LoJack Patents" shall mean all United States Letters patent now owned
or hereafter acquired by LoJack Venture Corporation or its parent, LoJack
Corporation.
1.4 "Know-how" shall mean confidential information which is not generally
known to the public including knowledge, techniques, processes and inventions
owned, developed or acquired by and proprietary to the Company, relating to or
developed in connection with the LoJack System.
1.5 "LoJack Improvements" shall mean all Developed Technology which
constitutes an improvement in the technology embodied in the LoJack Patents.
1.6 "New Discoveries" shall refer to all developments, discoveries,
improvements, inventions, processes and trade secrets, whether or not tangible,
that are conceived, developed or reduced to practice, alone or jointly with
others, from the date hereof through termination of this Agreement, which relate
in any way to the Project.
1.7 "Project" shall refer to the further development by Micrologic of the
new transponder technology referred to above. Specifically, it shall refer to
the development of the LJU-III consistent with the specifications attached as
Exhibit A.
II. RESEARCH AND DEVELOPMENT SERVICES.
---------------------------------
2.1 Micrologic hereby agrees to exercise its best efforts to perform all
research and development necessary to complete the Project and to assist the
Venture in securing any patent or technology license necessary to enable the
Venture, its licensee or assignee, to commercially exploit the work product of
the Project. The parties acknowledge that the very
-29-
nature of a research and development program precludes a detailed statement in
advance of the work that will be required to complete the Project but the
description, attached as Exhibit B, prepared by Micrologic, describes the work
to be performed. The parties intend that Micrologic will, under this Agreement,
develop new technology that will enable the Venture or LoJack or its designee to
produce the LJU-III and other products on or before October l, l996, complete
LJU-III testing on or before January l, l997, commence production on or before
July l, l997, and will use its best efforts to complete various aspects of the
Project on or before such dates.
2.2 Warranty. Micrologic will perform the agreed upon services using their
--------
best efforts and warrants professional workmanship and conduct. However,
Micrologic cannot and does not guarantee that any engineering or product
development effort provided by Micrologic shall result in a commercially LJU-III
product, and does not guarantee the ultimate commercial success of any developed
product, or assume any liability in connection with the development,
manufacture, distribution, or use of a product, machine, or model thereof.
Product documentation resulting from the development project shall conform to
the usual and customary standards of Micrologic.
EXCEPT AS STATED HEREIN, MICROLOGIC DISCLAIMS ALL WARRANTIES, EITHER
EXPRESSED, IMPLIED OR STATUTORY, WITH RESPECT TO ANY DEVELOPED PRODUCT, OR ANY
DEVELOPMENT OR ENGINEERING SERVICE, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY EXPRESS WARRANTY
STATED IN THIS AGREEMENT IS IN LIEU OF ALL OBLIGATIONS OR LIABILITIES OF
-30-
MICROLOGIC FOR DAMAGES INCLUDING, BUT NOT LIMITED TO, GENERAL SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR
PERFORMANCE OF THE LJU-III PRODUCT OR PRODUCT DOCUMENTATION OR ARISING FROM THE
NEGLIGENCE OF MICROLOGIC, ITS EMPLOYEES, OFFICERS, DIRECTORS, OR CONSULTANTS.
Any warranties extend solely to LoJack and all warranty claims must be
made by LoJack and not by customers or other successors or assigns of LoJack.
III. PAYMENT.
-------
The Venture agrees to pay Micrologic on a staged basis for Cost
incurred in connection with performance of the attached description of work,
with an estimated total development cost of between Six Hundred Seventy-five
Thousand Dollars ($675,000) and Eight Hundred Twenty-five Thousand Dollars
($825,000), provided, however, that the total cost of the Project as defined in
-------- -------
Paragraph 1.7 shall not exceed Eight Hundred Twenty-five Thousand Dollars
($825,000) unless specifically authorized in advance by the Venture. The Venture
agrees to pay Micrologic for costs incurred prior to the date of this Agreement
in accordance with the payment terms set forth herein.
Micrologic will deliver invoices for services and expenses at the
beginning of each calendar month for those services and expenses rendered to the
Venture in the prior calendar month. Terms of payment are net thirty (30) days
from the date of receipt of the invoice by the Venture.
IV. LIMITATIONS ON EXPENDITURES.
---------------------------
-31-
4.1 Both parties understand that the Venture intends to secure Federal
income tax treatment pursuant to Internal Revenue Code Section 174 for payments
made to Micrologic under this Agreement. Accordingly, Micrologic agrees to apply
all sums received under this Agreement only to qualifying research and
experimental expenditures relating to this Project.
V. REPORTS AND RECORDS.
-------------------
5.1 Micrologic shall provide to the Venture within ten (10) days of
the end of each calendar month a report in such reasonable detail as the Venture
may require setting forth:
(a) all of its labor hours by category, material expenses,
subcontract, travel, and miscellaneous expenses relating to the Project
during such period;
(b) the work performed by Micrologic during such period pursuant
to this Agreement; and
(c) the status of the Project at the end of the period. The
estimated cost to complete.
5.2 Micrologic shall keep and maintain, in accordance with generally
accepted accounting principles and practices, proper and complete books and
records of account documenting all costs and expenses.
5.3 Micrologic immediately shall notify LoJack, in writing if:
(a) Micrologic determines that it is not feasible or practicable
to develop LJU-III consistent with the specifications attached as
Exhibit A;
(b) The cost to complete development of LJU-III will greatly
exceed prior estimates; or
-32-
(c) The time required to complete the development of LJU-III
shall substantially exceed the guidelines set forth in Section 2.1,
above.
VI. OWNERSHIP, DISCLOSURE AND PATENTS.
---------------------------------
6.1 Except as provided in Subsection (c), the Venture shall have full
and exclusive right, title and interest in and to:
(a) all general and specific knowledge, know-how, experience and
information developed, acquired or conceived by Micrologic in
performing its obligations under this Agreement including, without
limitation, design features, processes, schematics, manufacturing
procedures, test procedures and parts information; and
(b) all physical manifestations or embodiments of such knowledge,
experience and information, including without limitation all documents
and writings and all copies thereof developed or made by Micrologic,
and including without limitation, all patent rights, patentable
information, patent applications, engineering and manufacturing
information, schematics, layout drawings, assembly drawings, printed
circuit patterns, specifications, parts lists, inspection procedures,
test procedures and engineering prototype models. Micrologic may retain
possession of all study models and prototypes constructed by
Micrologic.
(c) LoJack shall own and have all patent and other rights to the
LoJack Improvements.
6.2 Micrologic shall routinely or upon demand disclose in writing to
the Venture all developments, discoveries, inventions, improvements and trade
secrets, whether or not
-33-
tangible, that are conceived, developed or reduced to practice alone or jointly
with others from the date hereof through termination of this Agreement which
relate in any way to the Project. Such matters are herein referred to as the
"New Discoveries."
6.3 Micrologic agrees to participate in and cooperate in the
preparation, filing and prosecution of such United States and foreign patent
applications relating to the new Discoveries as the Venture or LoJack shall
reasonably request in writing. Except as provided in paragraph 6.1 (c), above,
all such applications and patents will be owned exclusively by the Venture. All
costs and expenses incurred pursuant to this Paragraph 6.3 shall be borne by the
Venture.
6.4 Micrologic hereby assigns to the Venture all rights to all
software developed in connection with the Project and agrees to deliver all
instruments or writings reasonably requested and necessary by the Venture to
perfect its title to such software.
6.5 Within thirty (30) days of termination of this Agreement for any
reason, Micrologic will deliver to the Venture all property owned by the Venture
held by or under the control of Micrologic relating to the Project.
VII. CONFIDENTIALITY.
---------------
7.1 Micrologic agrees to keep confidential and all new discoveries and
all information relating thereto, and not to disclose the same to any third
party whatsoever and to use the same only for the purpose of performing its
obligations under this Agreement and for no purpose whatsoever following the
termination of this Agreement.
-34-
7.2 Not later than thirty (30) days after the termination of this
Agreement, provided that the Venture is not in default of any of its
obligations, Micrologic shall deliver to the Venture or its designee property:
(a) furnished to Micrologic by the Venture, or
(b) developed or made by Micrologic pursuant to this Agreement,
or
(c) which embodies or reflects the New Discoveries.
Such property shall include, without limitation, all property in which
the Venture or LoJack has ownership rights pursuant to Section 6.1 above. In the
case of any such documents other than items created by Micrologic as a result of
information furnished to Micrologic by the Venture, Micrologic shall deliver a
certificate certifying that all such documents or items or all copies thereof
have been destroyed.
7.3 The provisions of this Article VII shall survive the termination
of this Agreement.
7.4 Micrologic agrees that remedies at law may be inadequate to
protect against breach of this Article VII, and Micrologic hereby consents to
the granting of injunctive relief, whether temporary, preliminary or final, in
favor of the Venture without proof of actual damages.
VIII. TECHNICAL ASSISTANCE.
--------------------
Micrologic agrees to make available to the Venture or its designee, at
reasonable times and places and on reasonable notice the services of technical
personnel to consult with, instruct and assist the Venture or its designee in
technical matters relating to the New Discoveries in particular and the LoJack
System in general, at the Venture's expense. The
-35-
cost for this work is not included in previous figures of Section III and shall
be billed separately.
IX. TERMINATION.
-----------
This Agreement (other than Articles VI and VII) will terminate upon the
earliest of:
(a) completion of the Project;
(b) thirty (30) days written notice by either party; or
(c) the institution of voluntary or involuntary proceedings by
or against either party in bankruptcy or under any solvency law, or
corporate reorganization, the appointment of a receiver, or petition
for the dissolution of such party or an assignment by such party for
the benefit of creditors.
X. MISCELLANEOUS.
-------------
10.1 This Agreement sets forth and constitutes the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof, supersedes any and all prior agreements, understandings, promises and
representations made by either party to the other concerning the subject matter
hereof and the terms applicable hereto. This Agreement may not be released,
discharged, amended or modified in any manner except by and instrument in
writing signed by duly authorized officers of both parties hereto.
10.2 If any provision of this Agreement is or becomes or is deemed to
be invalid, illegal or unenforceable in any jurisdiction, such provision shall
be deemed amended to conform to applicable law so as to be valid and enforceable
or, if it cannot be so amended without materially altering the intention of the
parties, it shall be stricken and the remainder of this Agreement shall remain
in full force and effect.
-36-
10.3 This Agreement shall be deemed to have been entered into and
shall be construed and enforced in accordance with the laws of the Commonwealth
of Massachusetts.
10.4 No waiver of any right under this Agreement shall be deemed
effective unless contained in a writing signed by the party charged with such
waiver, and no waiver of any right arising from any breach or failure to perform
shall be deemed to be a waiver of any future such right or of any other right
arising under this Agreement.
10.5 Headings contained in this Agreement are included for convenience
only and form no part of the Agreement or understanding between the parties.
10.6 Notices required and permitted hereunder shall be in writing and
shall be delivered in person or sent by registered certified mail, postage
prepaid, addressed as follows:
to the Venture:
LoJack Venture Corporation
Norfolk Place
000 Xxx Xxxxxx
Xxxxxx, XX 00000
Attention: C. Xxxxxxx Xxxxx, President
to Micrologic:
Micrologic, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, President
10.7 This Agreement may be executed in any number of counterparts,
each of which shall be an original and all of which shall constitute together
but one in the same document.
-37-
10.8 Neither this Agreement nor any right or obligation arising
hereunder may be assigned, in whole or in part, by either party without the
prior written consent of the other party; provided, however, that the Venture
may contract with others in furtherance of the research and development to be
undertaken pursuant to this Agreement.
This Agreement shall be binding upon any assignor and, subject to the
restrictions on assignment herein set forth, shall inure to the benefit of the
successors and assigns of each of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first set forth above.
ATTEST: LoJack Venture Corporation
By:
-------------------------- -----------------------------
ATTEST: MICROLOGIC, INC.
By:
-------------------------- -----------------------------
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