-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HztmHbawukS+f2KfsCyFG6Xc9R3PA4vTGl6QfgseyTAomyi7HBQ7BmrFLiny/5WM h8vGl7cAQhnSQHWtfs5nYQ== 0001092306-05-000169.txt : 20050331 0001092306-05-000169.hdr.sgml : 20050331 20050331152926 ACCESSION NUMBER: 0001092306-05-000169 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20050329 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Cost Associated with Exit or Disposal Activities ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050331 DATE AS OF CHANGE: 20050331 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRIBEWORKS INC CENTRAL INDEX KEY: 0001093636 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943308801 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-28675 FILM NUMBER: 05719854 BUSINESS ADDRESS: STREET 1: 243 FRONT STREET STREET 2: N/A CITY: SAN FRANCISCO STATE: CA ZIP: 94111 BUSINESS PHONE: 415-674-5555 MAIL ADDRESS: STREET 1: 243 FRONT STREET STREET 2: N/A CITY: SAN FRANCISCO STATE: CA ZIP: 94111 8-K 1 trbw8k.txt FORM 8-K DATED 03-29-05 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): MARCH 29, 2005 TRIBEWORKS, INC. ______________________________________________________ (Exact name of registrant as specified in its charter) 000-28675 ________________________ (Commission File Number) DELAWARE 94-3370795 _______________________________ ___________________ (State or other jurisdiction of (I.R.S. Employer incorporation) Identification No.) 243 FRONT STREET SAN FRANCISCO, CA 94111 _______________________________________________________ (Address of principal executive offices, with zip code) (415) 674-5555 ____________________________________________________ (Registrant's telephone number, including area code) 988 MARKET STREET SAN FRANCISCO, CA 94102 _____________________________________________________________ (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT An Assignment and Indemnification Agreement, dated March 29, 2005, was made by and between Tribeworks, Inc., the registrant, and its wholly owned subsidiary Tribeworks Development Corporation, a California corporation. The agreement assigns to its subsidiary all material assets and liabilities of the registrant, except for the registrant's books and records, and liabilities totaling approximately $136,000. In addition, the subsidiary indemnifies the registrant against claims based on assigned assets and liabilities. A copy of this Agreement is being furnished as Exhibit 99.2 to this Current Report on Form 8-K. A Note in an amount of up to $100,000 was entered into as of March 29, 2005. The lender under the Note is Terrence Hooper, a non-U.S. resident individual, who is a non-affiliate shareholder of the registrant. The funds are to be used only for the purposes of a planned reorganization and will be lent to the registrant only to pay specific reorganization related expenses as they are incurred. To date no money has been lent under the Note. The Note becomes due and payable 6 months from the effective date of March 29, 2005 and carries interest rate of 6% simple interest on any principal lent. A copy of this Note is being furnished as Exhibit 99.3 to this Current Report on Form 8-K. ITEM 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT A Note in an amount of up to $100,000 was entered into as of March 29, 2005. The lender under the Note is Terrence Hooper, a non-U.S. resident individual, who is a non-affiliate shareholder of the registrant. The funds are to be used only for the purposes of a planned reorganization and will be lent to the registrant only to pay specific reorganization related expenses as they are incurred. To date no money has been lent under the Note. The Note becomes due and payable 6 months from the effective date of March 29, 2005 and carries interest rate of 6% simple interest on any principal lent. A copy of this Note is being furnished as Exhibit 99.3 to this Current Report on Form 8-K. ITEM 2.05 COSTS ASSOCIATED WITH EXIT OR DISPOSAL ACTIVITIES On March 30, 2005, the registrant announced a plan of reorganization intended to allow the company to maintain its public reporting requirements, reduce its debt, and explore new business directions. The plan of reorganization includes the transfer of most assets and liabilities to the registrant's operating subsidiary, Tribeworks Development Corporation, and possible sale of the subsidiary to current management or others. After further development, the plan is expected to be submitted to shareholders for a vote later this year. A Note in an amount of up to $100,000 was entered into as of March 29, 2005 to help cover reorganization costs, which are estimated to be the following: Accounting Fees: $30,000, Temporary Accountant: $5,000, Tribeworks Development Corp. Valuation: $15,000, Sell-off Administrative Costs: $7,000, Attorney Fees: $20,000, Annual General Meeting: $5,000. The funds received under the note are being held in escrow and will be released from escrow only as applicable expenses are incurred. -2- ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS (b) Effective March 29, 2005, Duncan Kennedy and Patrick Soquet voluntarily resigned as Directors of the registrant. Duncan Kennedy also resigned as the CEO and President of the registrant effective as of the same date. (c) Effective March 29, 2005, J. Glenn Pogue was appointed by the Board of Directors as CEO of the registrant. During the last five years, Mr. Pogue has worked for public companies in numerous investor relations capacities, including working as an employee of the registrant during 2004. Mr. Pogue is currently Vice President of Indico Technologies LTD (TSX_IND). The registrant currently has no compensation agreement with Mr. Pogue. (d) Effective March 29, 2005, J. Glenn Pogue was appointed by the Board as a Director of the registrant to fill a vacancy until the next annual general meeting of shareholders. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS (c) Exhibits The following exhibits are furnished in accordance with the provisions of Item 601 of Regulation S-B: Exhibit No. Description ___________ ___________ 99.1 Press release entitled "Tribeworks Announces Major Restructuring", dated March 29, 2005 99.2 Asset and Liability Assignment and Indemnification Agreement, dated March 29, 2005 99.3 Promissory Note, dated March 29, 2005 -3- SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. TRIBEWORKS, INC. Dated: March 31, 2005 By: /s/ J. GLENN POGUE ___________________________ J. Glenn Pogue Chief Executive Officer -4- EXHIBIT INDEX Exhibit No. Description ___________ ___________ 99.1 Press release entitled "Tribeworks Announces Major Restructuring", dated March 29, 2005 99.2 Asset and Liability Assignment and Indemnification Agreement, dated March 29, 2005 99.3 Promissory Note, dated March 29, 2005 -5- EX-99 2 ex99-1.txt EXHIBIT 99.1 EXHIBIT 99.1 TRIBEWORKS ANNOUNCES MAJOR RESTRUCTURING SAN FRANCISCO- March 30, 2005 - Tribeworks, Inc., (OTCBB: TRBW) today announces a plan of reorganization intended to allow the company to maintain its public reporting requirements, reduce its debt, and explore new business directions. After further development, the plan is expected to be submitted to shareholders for a vote later this year. The restructuring plan includes the transfer of most assets (including iShell intellectual property and the Tribeworks and iShell trademarks) and most liabilities to Tribeworks Development Corporation (TDC), a wholly owned subsidiary of Tribeworks, Inc., such that current operating business units would operate entirely in a separate, private company. Further, the Company has engaged an independent company to provide a valuation of the TDC subsidiary, which will be used as the basis for a possible sale of the subsidiary to current management or others. The Company also announces that it has issued a $100,000 Promissory Note to help cover reorganization costs, and that Mr. Duncan Kennedy has resigned as the Company's Director, President and CEO, and Mr. Patrick Soquet has resigned as the Company's Director. Mr. Kennedy will continue to manage the operations of the Company's TDC subsidiary as an independent contractor during the transition period. In addition, the Company announces the appointment of Mr. J. Glenn Pogue as interim CEO and Chairman of the Board. Mr. Pogue will oversee the reorganization and help raise additional venture capital as needed. Mr. Pogue has experience working for public companies in numerous investor relations capacities and is currently Vice President of Indico Technologies LTD (TSX_IND). Copies of the material agreements associated with this reorganization will be made available via the Company's 8-K filing. For more information please contact Mr. Glenn Pogue at (415) 674-5531. EX-99 3 ex99-2.txt EXHIBIT 99.2 EXHIBIT 99.2 ASSET AND LIABILITY ASSIGNMENT AND INDEMNIFICATION AGREEMENT This Asset and Liability Assignment and Indemnification Agreement ("Assignment and Indemnification Agreement"), effective this 29th day of March, 2005 is made by and between Tribeworks, Inc., a Delaware corporation (the "Assignor") and Tribeworks Development Corporation, a California corporation (the "Assignee"). GENERAL As part of a planned reorganization, the Assignor wishes to assign, transfer and convey unto the Assignee the entirety of the assets and liabilities listed on the attached Schedules A, B, and C (the "Assigned Assets and Liabilities"), and the Assignee desires to acquire the entire right, title and interest in the Assigned Assets and Liabilities and to indemnify Assignor for any and all associated liabilities. The assets and liabilities that are retained by Assignor are listed on Schedule D. 1. DEFINITIONS For purposes of this Agreement, the following term will have the indicated definition: "ASSIGNED ASSETS AND LIABILITIES." Each and every asset and liability listed, respectively, on the attached Schedules A, B, and C, which schedules may be updated from time to time with the express written consent of both parties. It is expected that the list of assets and liabilities shall be updated periodically to reflect ongoing activities. Upon the close of a sale, if any, of the Assignee, the parties shall complete a signed statement of updated Schedules A, B, and C as of the closing date. 2. ASSIGNMENT 2.1 Assignor holds all right and title in the Assigned Assets and Liabilities and does hereby assign, transfer and convey to the Assignee and its successors and assigns the entire right, title and interest to and under the Assigned Assets and Liabilities, and Assignee accepts such assignment in its entirety. 2.2 The Assignee shall do everything reasonably within its power to transfer right, title and interest in the Assigned Assets and Liabilities into its name, including but not limited to securing acceptances of assignment, negotiating release and settlement agreements, and the making of filings. 2.3 Assignor shall promptly upon request of the Assignee, its heirs, successors and assigns execute and deliver without further compensation any necessary power of attorney, further documentation of assignment, application, whether original, continuation, divisional or reissue, or other papers that may be necessary or desirable to fully secure to the Assignee, its heirs, successors and assigns all right, title and interest in and to the Assigned Assets and Liabilities. 3. DELIVERY The Assignor agrees to deliver all tangible manifestations, books, and records relating to the Assigned Assets and Liabilities to the Assignee as soon as is practical; however, Assignor shall have the right to keep such books and records, or copies thereof, as may be necessary for its record-keeping purposes. The parties agree to provide ongoing 4. REPRESENTATIONS AND WARRANTIES 4.1 The Assignor represents and warrants to the Assignee that: Assignor has all right, title and interest in the Assigned Assets and Liabilities ; and 4.2 The Assignee represents and warrants to the Assignor that: Assignee has all right, power and authority necessary to accept the assignment of the Assigned Assets and Liabilities from Assignor and to indemnify Assignor against associated liabilities. 5. NON - ASSIGNABLE ASSETS AND LIABILITIES The Parties acknowledge that some of the assets and liabilities listed on Schedules A, B, and C may be unassignable and/or dormant and best left as is, and in such circumstances it is agreed that such assets and/or liabilities shall none-the-less be treated as though assigned between the Parties, with Assignee specifically and fully indemnifying Assignor against any associated liability, claims, and costs. 6. INDEMNIFICATION Assignee agrees to indemnify and defend Assignor against all claims, causes of action, damages, judgments, costs or expenses, including attorneys' fees and other litigation costs, which may in any way arise from the Assigned Assets and Liabilities, including those on Schedules A and B and also including any unassignable Assets or Liabilities, including the Unassignable Liabilities designated as indemnified on Schedule C. 7. PAST DUE ACCOUNTING FEES The Assignee agrees to pay Assignor $14,957.40 in past due accounting fees owed to Tauber & Balser, according to a mutually agreeable schedule, and both Assignee and Assignor agree to book this obligation as an accounting entry on their respective general ledgers. 8. GENERAL PROVISIONS 8.1 EFFECT ON SUCCESSORS. This Assignment and each of its provisions shall be binding on and shall inure to the benefit of the respective successors and assigns of the parties hereto. 8.2 WAIVER, AMENDMENT, MODIFICATION. No waiver, amendment or modification, including those by custom, usage of trade, or course of dealing, of any provision of this Agreement will be effective unless in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced. No waiver by any party of any default in performance by the other party under this Agreement or of any breach or series of breaches by the other party of any of the terms or conditions of this Agreement shall constitute a waiver of any subsequent default in performance under this Agreement or any subsequent breach of any terms or conditions of that Agreement. Performance of any obligation required of a party under this Agreement may be waived only by a written waiver signed by a duly authorized officer of the other party, that waiver shall be effective only with respect to the specific obligation described in that waiver. 8.3 SEVERABILITY. If any provision of this Agreement is found invalid or unenforceable under judicial decree or decision, the remainder shall remain valid and enforceable according to its terms. Without limiting the previous, it is expressly understood and agreed that each and every provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended by the parties to be severable and independent of any other provision and to be enforced as such. Further, it is expressly understood and agreed that if any remedy under this Agreement is determined to have failed of its essential purpose, all other limitations of liability and exclusion of damages set forth herein shall remain in full force and effect. 8.4 GOVERNING LAW. This Agreement shall be governed by the laws of the State of California applicable to Agreements made and fully performed in State of California. We have carefully reviewed this contract and agree to and accept its terms and conditions. We are executing this Agreement as of the day and year first written above. ASSIGNOR ASSIGNEE __________________________________ __________________________________ Tribeworks, Inc. Tribeworks Development Corporation __________________________________ __________________________________ Name Name __________________________________ __________________________________ Title Title EX-99 4 ex99-3.txt EXHIBIT 99.3 EXHIBIT 99.3 THE SECURITIES EVIDENCED BY THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY OR WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION. Tribeworks, Inc. A DELAWARE CORPORATION PROMISSORY NOTE UP TO $100,000 MARCH 29, 2005 Terrence G. Hooper (the "Holder") agrees to loan to Tribeworks, Inc., a Delaware corporation (the "Company"), the principal sum of up to one-hundred thousand dollars ($100,000) on the terms and conditions herein. Funds totaling $100,000 will be held in Trust for specific purposes noted below. As procedures are fulfilled for payment of authorized expenditures, money will be released from Trust to the Company. The amount(s) so released will become principal amounts under this Note as of the date the money is released to the Company. NOW, THEREFORE, FOR VALUE RECEIVED, the Company promises to pay simple interest on the unpaid principal amount of that loan at a rate per annum equal to 6 percent (6%). This Note shall become due and payable as to both accrued interest and principal at any time on or after September 29, 2005, upon receipt by the Company of written notice from the Holder demanding such payment. The Company shall make such requested payment within thirty (30) days of receipt of such notice. All payments hereon shall be applied first to accrued interest and second to the reduction of the principal. This Note shall be subordinate in all respects to any existing or future indebtedness of the Company. 1. USE OF PROCEEDS. Loan proceeds shall be held in Trust and utilized only for the following expenses and in the amounts shown, unless otherwise agreed upon in writing. Actual expenditure requests shall be individually approved in writing by all members of the Board of Directors of the Company, and shall in all cases contain the signature of J. Glenn Pogue. Each written, signed request for funds shall specify the amount and use of the requested funds and shall be forwarded to the person holding the Trust. Upon, and as of the date of, the release of funds from the Trust to the Company, said amount shall be added to the outstanding Principal balance of the Loan A. Accounting Fees: $30,000 B. Temporary Accountant: $5,000 C. Tribeworks Development Corp. Valuation: $15,000 D. Sell-off Administrative Costs: $7,000 E. Attorney Fees: $20,000 F. Annual General Meeting: $5,000 2. Prepayment. Prepayment of this Note, in full or in part, may be made at any time without penalty. 3. Transfer of Note; Successors and Assigns. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Notwithstanding the foregoing, this Note may not be transferred without the prior written consent of the Company. The Company shall not be required to recognize as the Holder any purported transferee of this Note if the Company has not consented to the transfer of this Note to the transferee. 4. Waiver of Notice, Etc. The undersigned and all endorsers, guarantors and assignors, if any, of this Note severally waive notice of default, presentation or demand for payment and protest and notice of nonpayment or dishonor. 5. No Stockholder Rights. Nothing contained in this Note shall be construed as conferring upon the Holder or any other person the right to vote or to consent or to receive notice as a stockholder in respect of meetings of stockholders for the election of directors of the Company or any other matters or any rights whatsoever as a stockholder of the Company; and no dividends or interest shall be payable or accrued in respect of this Note or the interest represented hereby or the shares obtainable hereunder until, and only to the extent that, this Note shall have been converted. 6. Expense. Each party shall pay its own fees and expenses incurred in enforcing its rights under this Note, whether or not litigation is commenced, including without limitation all fees and expenses of attorneys and expert witnesses. 7. Amendment. This Note and its terms may be changed, waived, or amended only by the written consent of the Company and the Holder. 8. Governing Law. This Note shall be governed by, and construed and enforced in accordance with the laws of the State of California without giving effect to the conflict of laws principles thereof. 9. Stockholders, Officers and Directors Not Liable. In no event shall any stockholder, officer, or director of the Company be liable for any amounts due or payable pursuant to this Note. This Promissory Note is executed as of the date first above written. [SIGNATURE PAGE FOLLOWS] "COMPANY" Tribeworks, Inc. By:________________________________ Print Name:________________________ Title:_____________________________ Acknowledged and Agreed: "HOLDER" By:________________________________ Print Name:________________________ Title:_____________________________ Address of Holder: ___________________________________ ___________________________________ [SIGNATURE PAGE OF CONVERTIBLE PROMISSORY NOTE] -----END PRIVACY-ENHANCED MESSAGE-----