CONTRIBUTION AGREEMENT
Exhibit 2.1
This Contribution Agreement (this “Agreement”) is dated as of August 16, 2018, by and between McorpCX, Inc., a California corporation (the “Company”), and McorpCX, LLC, a Delaware limited liability company (“Subsidiary”).
RECITALS
WHEREAS, Company desires to distribute, convey, assign, transfer and deliver to Subsidiary all of the Company’s right, title and interest in, to and under all of the assets and liabilities specifically related to and/or used exclusively by its customer experience services business (the “Business”), including the assets (collectively, the “Assets”), and the assumption of certain liabilities, obligations or commitments of any kind or nature (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due) arising out of or related to the Business or the Assets (the “Assumed Liabilities”) and specifically excluding the assumption of certain Liabilities (the “Retained Liabilities”) all of which are described in the attached Exhibit A
WHEREAS, in exchange for the Assets and the assumption of the Assumed Liabilities, Subsidiary desires to issue to Company all of the equity interests in Subsidiary, such that the Company becomes the sole member of Subsidiary; and
WHEREAS, the board of directors of the Company and the Member of Subsidiary have each approved this Agreement and the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the parties agree as follows:
1. Contribution of the Assets. Upon the terms of this Agreement, the Company hereby transfers, conveys, assigns and distributes to Subsidiary all of the Company’s right, title and interest in and to all of the Assets, effective as of the date hereof.
2. Acceptance and Assumption. Subsidiary does hereby irrevocably accept such transfer, conveyance, assignment and distribution of the Assets.
3. Assignment and Assumption of the Assumed Liabilities.
(a) Upon the terms of this Agreement, Company hereby transfers, conveys, assigns and distributes to Subsidiary all of the Company’s covenants, agreements, commitments, duties and obligations under, in connection with and relating to the Assumed Liabilities, effective as of the date hereof.
(b) Subsidiary does hereby assume all of the Assumed Liabilities and all of the Company’s covenants, agreements, commitments, duties and obligations under, in connection with or relating to such Assumed Liabilities.
(c) Subsidiary covenants and agrees to pay, perform, discharge and satisfy when due all of the Company’s covenants, agreements, commitments, duties and obligations under, in connection with or relating to the Assumed Liabilities.
4. No Assignment or Assumption of Retained Liabilities. For purposes of clarity, Subsidiary does not hereby assume any of the Retained Liabilities or any of the Company’s covenants, agreements, commitments, duties or obligations under, in connection with or relating to the Retained Liabilities.
5. Assignment of Contracts. To the extent that the Company’s rights under any contract or license to be transferred, conveyed, assigned and distributed to Subsidiary pursuant to this Agreement may not be assigned to Subsidiary without the consent of a third party which has not been obtained prior to the date hereof, this Agreement shall not constitute a transfer, conveyance, assignment or distribution, or an attempted transfer, conveyance, assignment or distribution of the same if such transfer, conveyance, assignment or distribution, or attempted transfer, conveyance, assignment or distribution would constitute a breach thereof or be unlawful, and the Company shall use its reasonable best efforts to obtain any such required consent(s) as promptly as possible. If any such consent shall not be obtained or if any attempted assignment would be ineffective or would impair Subsidiary’s rights under the contract or license in question so that Subsidiary would not in effectively acquire the benefit of all such rights, the Company, to the maximum extent permitted by law and the contract or license, shall act after the date hereof as Subsidiary’s agent in order to obtain for it the benefits thereunder and shall cooperate, to the maximum extent permitted by law and the contract or license, with Subsidiary in any other reasonable arrangement designed to provide such benefits to Subsidiary.
6. Representations and Warranties. Neither the Company, nor any other person on the Company’s behalf, has made or makes any express or implied representation or warranty with respect to the Assets and the Assumed Liabilities, either oral or written, whether arising by law or otherwise, all of which are expressly disclaimed.
7. Further Assurances. Each party covenants that at any time, and from time to time, after the date hereof, it will execute such additional instruments and take such actions as may be reasonable requested by the other party to confirm, perfect or otherwise carry out the intent and purposes of this Agreement.
8. Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or by means of portable document format (pdf) transmission) in one or more counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
9. Governing Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by, and construed in accordance with, the internal laws of the State of California, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of California.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.
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COMPANY:
McorpCX, Inc., a California corporation |
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/s/ Xxxxx X Xxxxx |
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By: Xxxxx X Xxxxx, CEO |
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SUBSIDIARY:
McorpCX, LLC, a Delaware limited liability company |
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/s/ Xxxxxxx Xxxxxxx |
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By: Xxxxxxx Xxxxxxx, Manager |
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Signature Page
EXHIBIT A
Business Assets [draft to be updated with final June 30 Balance Sheet & updated list of Assets]
McorpCX LLC Acquisition Assets List
Names and Domains
All of the Company’s assumed names and domains
Mcorp Consulting
Touchpoint Mapping
Touchpoint Metrics
McorpCX
All trademarks, trade names and DBAs, including all Mcorp-related names.
Registration #2962824; Touchpoint Mapping
Registration #3220929; Loyalty Mapping
Registration #3660627; Touchpoint Metrics
Physical Assets - related to the consulting business and its employees
Computers and Hardware
Furniture and Equipment
Leased Real Estate and Leasehold Improvements
Purchased (Installed) Software
Information Technology – shared use of certain IT equipment and software
IT assets owned or leased, related to the consulting business and its employees including:
Surface Pro 3
Dell E7450
Precision T3620
Optiplex 3040
Latitude E7480
All registered domains and URL’s (with the exception of xxxxxxxxxxxxxx.xxx), including:
xxxxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxx.xxx
xxxxxxxxxxxx.xxx
xxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxxxxx.xxx
[?] public co website
xxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxx.xxxx
[?]
xxxxxxxxx.xxx
xxxxxxxxxxx.xxx
xxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxx.xxx
xxxxxxxxx.xxx
Third party computer software and other intellectual property used or acquired in support of consulting services offered.
McorpCX, Inc. shall own any databases and will offer a royalty free perpetual license to McorpCX, LLC for the use of the databases.
All licensed and deployed desktop software related to the CX consulting business and its employees
Employees, Vendors and Contractors
The employment, consulting, nondisclosure, non-solicitation or noncompetition agreements with any of the employees or contractors and vendor, supplier and contractor supply and service agreements all of which are related to the CX consulting business.
Licenses and Permits
All governmental (U.S., state, county) licenses, permits or consents that are assignable to McorpCX, LLC that may include:
Business license / City of San Anselmo
CA Secretary of State
Washington State All license agreements for commercial (e.g. installed, licensed SaaS) software, relating to the consulting business and shared licenses may be arranged as needed to support McorpCX, Inc. that may include:
Workamajig
Box
Hubspot
Qualtrics
Digsite
All customer experience related industry related memberships, licenses and certifications
Material Contracts and Agreements that relate to the CX consulting business:
All distribution agreements, sales representative agreements, marketing agreements, and supply agreements
The Company’s standard quote, master service agreement, statement of work, purchase order, proposals, invoices, contracts and other forms.
All nondisclosure agreements to which the Company is a party.
All other material contracts and agreements, both active and inactive
Services and Strategies that relate to the CX consulting business
All methodological and process know-how, processes, ideas, inventions (whether patentable or not), schematics and trade secrets
All existing services and services under development.
All marketing, sales and other business strategies and plans, including any business or commercial information of a confidential nature
Customer Contacts, Contracts and Information that relate to the CX consulting business
All consulting agreements, licenses or assignments of intellectual property to or from the Company.
All customer and prospect lists (potential or actual) and other customer-related information
All proposals and presentations
All Non-Disclosure, Master Service, SOWs and other contractual Agreements
All customer supply and service agreements.
Sales and Marketing Information related to the CX consulting business
All sales and sales pipeline information, including committed (booked), outstanding (proposals), expected, and in-process/discovery
All sales process and tracking materials, e.g. SFA software, lead scoring, etc.
All marketing technology, including marketing database, forms and templates
All surveys and market research reports developed by or relevant to the Company and its business or services.
All advertising, sales and marketing-related materials
Sales and Marketing Materials related to the CX consulting business
All first and third-party published articles, reviews, reports and other assessments of the Company's commercial (consulting-related) activities
All company-maintained/branded social-media, including:
All text, drawings, photographs, graphics, designs, plans, and presentations
[public co and need links to/from xxx.xxxxxxx.xxx and these will be shared websites] All company-created marketing and sales-related content, including:
Articles
Case Studies
Webinars
Presentations
Videos
White papers
All licensed analyst reports, including:
ALM Media Content
Aberdeen Group Content
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Balance Sheet |
PRELIMINARY |
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| 6/30/2018 | ||||||||||||
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Allocation |
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Retained Liabilities |
Assumed Liabilities |
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| Amount | Amount |
MCX PubSo |
McorpCX LLC SubCo |
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Assets |
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Current Assets |
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Xxxxx Fargo - US Business Checking |
189,763 | 189,763 | ||||||||||
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BMO - CDN Checking |
262 | 262 | ||||||||||
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BMO - USD Checking |
4,266 | 4,266 | ||||||||||
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BMO - Investment Certificates |
1,144,000 | 1,144,000 | ||||||||||
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Accounts Receivable |
585,843 | 585,843 | ||||||||||
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Total Current Assets |
1,924,134 | 1,148,266 | 775,868 | |||||||||
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Fixed Assets |
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Fixed Assets |
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Furniture and Equipment |
31,731 | 31,731 | ||||||||||
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Furniture and Equipment: Accumulated Depreciation |
(31,731 | ) | (31,731 | ) | ||||||||
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Computers and Hardware |
62,154 | 62,154 | ||||||||||
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Computers and Hardware:Accumulated Depreciation |
(56,983 | ) | (56,983 | ) | ||||||||
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Software |
38,646 | 38,646 | ||||||||||
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Software: Accumulated Depreciation |
(38,646 | ) | (38,646 | ) | ||||||||
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Equipment |
2,359 | 2,359 | ||||||||||
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Equipment: Accumulated Depreciation |
(2,359 | ) | (2,359 | ) | ||||||||
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Leasehold Improvements |
99,246 | 99,246 | ||||||||||
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Leasehold Improvements: Accumulated Depreciation |
(99,246 | ) | (99,246 | ) | ||||||||
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Real Estate |
85,000 | 85,000 | ||||||||||
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Real Estate Improvements |
4,000 | 4,000 | ||||||||||
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Real Estate Improvements: Accumulated Depreciation |
(4,000 | ) | (4,000 | ) | ||||||||
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Total Fixed Assets |
90,171 | 85,000 | 5,171 | |||||||||
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Other Assets |
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Other Assets |
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Deposits |
3,474 | 3,474 | ||||||||||
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Prepaid Expenses |
24,999 | 0 | 24,999 | |||||||||
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Intangible Assets |
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Organization Costs |
1,377 | 1,377 | ||||||||||
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Organization Costs:Accumulated Amortization |
(1,377 | ) | (1,377 | ) | ||||||||
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LinkedIn Grp |
2,500 | 2,500 | ||||||||||
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LinkedIn Grp:Accumulated Amortization |
(2,500 | ) | (2,500 | ) | ||||||||
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Investment in PersonaDrive |
5,000 | 5,000 | ||||||||||
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Investment in PersonaDrive: Accumulated Amortization |
(5,000 | ) | (5,000 | ) | ||||||||
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ALM Media Content Distribution Rights |
25,000 | 25,000 | ||||||||||
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ALM Content Distribution Rights: Accumulated Depreciation |
(25,000 | ) | (25,000 | ) | ||||||||
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SaaS Product Development |
800,806 | 800,806 | ||||||||||
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SaaS Product Development:Accumulated Amortization |
(596,149 | ) | (596,149 | ) | ||||||||
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Web Development Costs |
70,188 | 70,188 | ||||||||||
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Web Development Costs: Accumulated Amortization |
(70,188 | ) | (70,188 | ) | ||||||||
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Total Other Assets |
233,130 | 204,657 | 28,473 | |||||||||
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Total Assets |
2,247,435 | 1,437,923 | 809,512 | |||||||||
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Liabilities and Capital |
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Liabilities |
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Current Liabilities |
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Accounts Payable |
341,173 | 341,173 | ||||||||||
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AMEX |
(750 | ) | (750 | ) | ||||||||
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First Bankcard 9440 |
0 | |||||||||||
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First Bankcard 1400 |
0 | 0 | ||||||||||
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Deferred Revenue |
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Deferred Revenue - SaaS Product |
0 | 0 | ||||||||||
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Deferred Revenue - Pro Services |
0 | 0 | ||||||||||
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Deferred Revenue - Product Income: Other |
27,504 | 0 | 27,504 | |||||||||
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Accrued Payroll Taxes |
(0 | ) | (0 | ) | ||||||||
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Other Accrued Liabilities |
3,275 | 3,275 | ||||||||||
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Total Current Liabilities |
371,202 | 0 | 371,202 | |||||||||
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Total Liabilities |
371,202 | 0 | 371,202 | |||||||||
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Capital |
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APIC |
5,833,501 | 5,395,191 | 438,310 | |||||||||
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APIC-Employee Stock Options |
601,364 | 601,364 | ||||||||||
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Retained Earnings |
(4,422,957 | ) | (4,422,957 | ) | ||||||||
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Net Income |
(135,675 | ) | (135,675 | ) | ||||||||
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Total Capital |
1,876,233 | 1,437,923 | 438,310 | |||||||||
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Total Liabilities and Capital |
2,247,435 | 1,437,923 | 809,512 | |||||||||
