EXHIBIT 10.13
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST dated as of December 31,
2002 (this "Assignment") made by and among Zoom Telephonics, Inc. (together with
its successors and assigns, the "Assignor") to each of Xxxxx X. Xxxxxx Living
Trust, Xxxxx Xxxxxx, Jewel Family Limited Partnership and Xxxxx Xxxxxxx (each,
an "Assignee" and, collectively, the "Assignees"). Capitalized terms used but
not defined herein shall have the meanings ascribed them in the Operating
Agreement of Zoom Group, LLC (the "Company") , a Massachusetts limited liability
company, dated as of March 29, 2002 (such agreement, as it may be amended
supplemented or otherwise modified from time to time, the "Agreement").
RECITALS
(1) The Assignor is the owner of twenty (20) Units (as defined in the
Agreement) of the Company representing its entire membership interest (the
"Membership Interest") in the Company, as evidenced by the Agreement. Under the
Agreement, the Assignor has certain rights, title and interest in and to the
Company and the property and assets of the Company.
(2) Pursuant to Section 9.07 of the Agreement, the Assignor has the right
to sell to the Assignees, and the Assignees shall be obligated to buy, its
entire Membership Interest in the Company (the "Zoom Option"), at the aggregate
price as determined in accordance with Section 9.07.
(3) The Assignor has elected to exercise the Zoom Option in accordance with
the terms of the Agreement and the parties have determined that the aggregate
purchase price to be paid by the Assignees to the Assignor is $482,446 (the
"Purchase Price") of which $472,857.00 is to be paid by the Assignees, and $9,
589.00 (representing the deposit interest) is to be paid by the Company, and
other good and valuable consideration. The portion of the Purchase Price to be
paid by each Assignee, and the portion of the Membership Interest purchased by
such Assignee, is as set forth in Schedule A attached hereto. The Assignor and
the Assignees shall execute and deliver this Assignment pursuant to the terms
and conditions set forth therein, and such other documents, agreements and
instruments necessary to effect the transactions contemplated hereby.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
and agreements contained herein, the parties hereto agree as follows:
Section 1. Assignment and Acceptance of Assigned Membership Interest. As of
the Effective Date (as defined in Section 9), the Assignor hereby sells,
transfers, conveys and assigns (collectively, the "Assignment") to the Assignees
100% of the Assignor's right, title and interest in and to the Membership
Interest and of its rights under the Agreement, including, without limitation,
all its (a) rights to receive moneys due and to become due under or pursuant to
the Agreement, (b) rights to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect to the Agreement, (c) claims for damages
arising out of or for breach of or default under the Agreement, and (d) rights
to perform thereunder and to compel performance, and otherwise exercise all
rights and remedies thereunder. The Assignor's right, title and interest in the
Membership Interest and of the Assignor's rights under the Agreement that are
being assigned to the Assignees pursuant to this Agreement are hereinafter
referred to as the "Assigned Membership Interest". Each Assignee, upon the
execution of this Assignment, hereby accepts from the Assignor the portion of
the Assigned Membership Interest being hereby assigned to it and agrees to
become a successor member of the Company in the place and stead of the Assignor
to the extent of the Assigned Membership Interest, to be bound by the terms and
provisions of the Agreement and to assume all duties, responsibilities and
obligations of the Assignor as a member of the Company now existing or arising
on or after the Effective Date. Each Assignee assumes and agrees to hold the
Assignor harmless from and against all obligations and liabilities of the
Assignor arising with respect to the Assigned Membership Interest being hereby
assigned hereunder, including without limitation and obligations of Assignor
with respect to any loan agreements (including without limitation any guarantees
thereof) entered into by and for the benefit of the Company or with respect to
the Company's property. The Assignor and each Assignee intend for each Assignee
to increase its respective existing membership interest in the Company.
Section 2. Capital Account. On the Effective Date, the portion of all
profits and losses, and all other items of income, gain, loss, deduction or
credit, allocable to the portion of the Assigned Membership Interest assigned
hereby to each Assignee shall be credited or charged, as the case may be, to
such Assignee and such Assignee shall be entitled to the portion of all
distributions, payments or other allocations payable in respect of its portion
of the Assigned Membership Interest, regardless of the source of such
distributions, payments or other allocations or the date on which they were
earned.
Section 3. Representations and Warranties. (a) The Assignor represents to
the Assignee, as of the Effective Date, that:
(i) This Assignment has been duly executed and delivered by the
Assignor and is a valid and binding obligation of the Assignor,
enforceable in accordance with its terms; and
(ii) The Assignor is the sole owner of the Assigned Membership
Interest free and clear of any liens, and each Assignee, upon
consummation of the Assignment hereunder, shall acquire good
title to its portion of the Assigned Membership Interest.
(b) Each Assignee represents to the Assignor, as of the Effective Date,
that:
(i) This Assignment has been duly executed and delivered by the
Assignees and is a valid and binding obligation of the Assignees,
enforceable in accordance with its terms; and
(ii) The Assignee is acquiring its portion of the Assigned Membership
Interest for its own account for investment and not with a view
to the distribution or resale thereof.
Section 4. Filings. On or as soon as practicable after the Effective Date,
each Assignee shall file and record or cause to be filed and recorded with all
proper offices or agencies all documents and instruments required to effect the
terms herein, if any, including, without limitation, this Assignment.
Section 5. Future Assurances. The Assignor and each Assignee mutually
agrees to cooperate at all times from and after the date hereof with respect to
any of the matters described herein, and to execute such further agreements,
deeds, bills of sale, assignments, releases, assumptions, notifications or other
documents as may be reasonably requested for the purpose of giving effect to,
evidencing or giving notice of the assignment evidenced hereby, including
without limitation, an amendment or restatement of the Agreement, as determined
by the Company, to reflect the transactions contemplated hereby. The Company and
the Assignees agree to use good faith efforts to obtain confirmation of the
release of the Assignor of any obligation of Assignor with respect to any loan
with respect to the property or its condition.
Section 6. Successors and Assigns. This Assignment shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
Section 7. Modification and Waiver. No supplement, modification, waiver or
termination of this Assignment or any provisions hereof shall be binding unless
executed in writing by all parties hereto.
Section 8. Counterparts. Any number of counterparts of this Assignment may
be executed. Each counterpart will be deemed to be. an original instrument and
all counterparts taken together will constitute one agreement. Delivery of an
executed counterpart of a signature page to this Assignment by facsimile shall
be as effective as delivery of a manually executed counterpart of this
Assignment.
Section 9. Effective Date. This Assignment will be binding and effective
and will result in the assignment of the Assigned Membership Interest on the
date first written above (the "Effective Date").
Section 10. Governing Law. This Assignment will be governed by the laws of
the Commonwealth of Massachusetts.
Section 11. Lease Recovery. The Company and Zoom Telephonics, Inc. hereby
agree that Zoom Telephonics will get 10% of the net proceeds, if any, received
by the Company from Boston Corporate Art from now through the closing of all
financial matters relating to Boston Corporate Art's lease at 27 Drydock. It is
understood that the Company currently has a Boston Corporate Art deposit of
approximately $44,000, and that this amount may go down from, for instance legal
bills associated with Boston Corporate Art; and may go up from, for instance,
payments by Boston Corporate Art to the Company or proceeds of any litigation
relating to Boston Corporate Art. Zoom Telephonics understands that in no event
will it be asked to contribute funds to the Company relative to Boston Corporate
Art. .
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed and delivered as of the date first above set forth.
Assignor
ZOOM TELEPHONICS, INC.
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: XXXXXX X. XXXXX
Title: VP FINANCE & CFO
Assignees
XXXXX X. XXXXXX LIVING TRUST
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: XXXXX X. XXXXXX
Title: TRUSTEE
JEWEL FAMILY LIMITED PARTNERSHIP
By: /s/ XXXX XXXXXXX
--------------------------------
/s/ XXXXX XXXXXXX
--------------------------------
Xxxxx Xxxxxxx
/s/ XXXXX XXXXXX
--------------------------------
Xxxxx Xxxxxx
CONSENT
The Board of Managers of ZOOM GROUP, LLC hereby consents to the
execution and delivery by the Assignor of the foregoing Assignment and
Assumption of Membership Interest and to any transfer of the Assigned Membership
Interest pursuant to the terms therein and in accordance with the terms of the
Agreement (as defined therein).
/s/ XXXXX XXXXXX
--------------------------------
Xxxxx Xxxxxx, Manager
/s/ XXXX XXXXXXX
--------------------------------
Xxxx Xxxxxxx, Manager
SCHEDULE A
--------------------------- ----------------------- ------------------- ---------------------- -----------------------
Name Units/Percentage Purchase Price Portion of Units/Percentage
---- ----------------- -------------- ----------- ----------------
Interest prior to Membership Interest Interest after
------------------ -------------------- --------------
Assignment Purchased Assignment
--------------------------- ----------------------- ------------------- ---------------------- -----------------------
Xxxxx X. Xxxxxx Living
Trust 20 Units/20% $118,214.25 5.0 Units 25.0 Units/25%
--------------------------- ----------------------- ------------------- ---------------------- -----------------------
Xxxxx Xxxxxx 20 Units/20% $118,214.25 5.0 Units 25.0 Units/25%
--------------------------- ----------------------- ------------------- ---------------------- -----------------------
Jewel Family Limited
Partnership 20 Units/20% $178,805.67 7.5 Units 27.5 Units/27.5%
--------------------------- ----------------------- ------------------- ---------------------- -----------------------
Zoom Telephonics, Inc. 20 Units/20% N/A N/A 0.0 Units/0%
--------------------------- ----------------------- ------------------- ---------------------- -----------------------
Xxxxx Xxxxxxx 20 Units/20% $ 57,622.83 2.5 Units 22.5 Units/22.5%
--------------------------- ----------------------- ------------------- ---------------------- -----------------------
Total: 100 Units/100% $472,857.00 20.0 Units 100.0 Units/100%
--------------------------- ----------------------- ------------------- ---------------------- -----------------------
