Exhibit 10.35
XXXXXXX CAPITAL, LLC
TRANSFER, CONSENT AND SETTLEMENT AGREEMENT
THIS TRANSFER, CONSENT AND SETTLEMENT AGREEMENT (this "AGREEMENT") is
hereby made and entered into on April 12, 2002 by and among MKZ FUND, LLC, as
transferor (the "TRANSFEROR" or "MKZ"), XXXXXXX ENTERPRISES, INC. ("MKE"), THE
XXXXXXX GROUP, LLC ("XXXXXXX GROUP"), XXXXXXXX XXXX, an individual ("Xxxx"),
ZIASUN TECHNOLOGIES, INC. ("ZIASUN"), INVESTOOLS, INC. ("InvesTools") and
XXXXXXX CAPITAL PARTNERS, LLC, a Delaware limited liability company (the
"MANAGING MEMBER"). All capitalized terms used but not defined herein shall have
the meanings set forth in the Amended and Restated Limited Liability Company
Agreement of XXXXXXX CAPITAL, LLC, a Delaware limited liability company formerly
known as XxXxxxx Venture Accelerator, LLC (the "FUND"), dated February 22, 2002
(the "OPERATING AGREEMENT"), attached as EXHIBIT A.
RECITALS
A. MKZ is a Non-Managing Member under the Operating Agreement.
B. The Transferor failed to contribute a portion of its Capital
Contribution equal to $1,904,000 (the "DEFAULTED CAPITAL CONTRIBUTION") pursuant
to a Drawdown Notice issued by the Managing Member on April 2, 2001 and is in
breach of the Operating Agreement (the "BREACH").
C. After the Breach, pursuant to a series of certain agreements, which
have been amended from time to time (the "INTERIM AGREEMENTS"), the Managing
Member has endeavored to assist MKZ, MKE and ZiaSun in curing the Breach without
waiving any of the rights or remedies the Fund has against each of them under
the Operating Agreement, the Interim Agreements and otherwise as equity or law.
D. In order to resolve the Breach and settle any claims the parties hereto
may have against the others, MKZ desires, and each of MKE and ZiaSun desire to
cause MKZ, to assign, transfer and convey to the Managing Member, as the Fund's
nominee, MKZ's limited liability company membership interest in the Fund (the
"INTEREST") pursuant to the terms set forth herein.
E. The Managing Member desires to acquire the Interest in the capacity of
the Fund's nominee in order to sell and transfer the Interest to one or more
third parties, including other Members not in default of their obligations to
the Fund, in accordance with Section 4.3 of the Operating Agreement (each a
"SUBSEQUENT TRANSFER"). In the event that the Managing Member is unable to
effect a Subsequent Transfer for all or a portion of the Interest, all right,
title and interest to the remaining Interest shall revert to the Managing Member
on such terms as contemplated hereby.
F. The Managing Member desires to consent to the transfer of the Interest
pursuant to the terms set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. TRANSFER OF INTEREST.
(A) As of the Effective Date (as hereinafter defined), MKZ hereby assigns,
conveys and transfers to the Managing Member One Hundred Percent (100%) of MKZ's
right, title and interest in the Interest.
(B) The Managing Member hereby accepts the Interest as nominee of the Fund
for the primary purpose of consummating a Subsequent Transfer.
(C) As of the Effective Date, MKZ shall no longer be a Member and neither
MKZ, ZiaSun nor MKE shall have any rights or obligations in respect of the Fund
or under the Operating Agreement, including, without limitation, any right to
the Profits, Losses or distributions of the Fund, or any payments, including,
without limitation, any payments received by the Fund or the Managing Member in
connection with a Subsequent Transfer, or any Capital Contributions previously
made by MKZ, including, without limitation, any right to withdraw such paid-in
Capital Contributions; PROVIDED, HOWEVER, that MKE shall retain its rights and
obligations as the Special Member of the Fund and hereby assumes the obligation
to contribute $504,000 of the Defaulted Capital Contribution to the Fund (the
"MKE CAPITAL COMMITMENT"), which continues to be in default. MKE shall cooperate
with the Managing Member to satisfy its obligation to contribute the MKE Capital
Commitment to the Fund on terms acceptable to the Managing Member. MKE hereby
agrees that its obligation to satisfy the MKE Capital Commitment shall be
secured by its interest in the Fund as a Special Member and as such MKE's
Special Member Interest shall be treated as a Non-Managing Member Interest under
the Operating Agreement, including, without limitation, Section 4.3 thereof.
(D) EFFECTIVE DATE. The Transfer shall be effective for all purposes under
the Operating Agreement as of January 1, 2002 (the "EFFECTIVE DATE").
(E) MANAGING MEMBER CONSENT. The Managing Member hereby consents to the
Transfer as set forth in this Section 1 and any Subsequent Transfer and agrees
to amend Exhibit A of the Operating Agreement to reflect such transfers.
(F) ACKNOWLEDGMENT OF BREACH. Each of MKZ, ZiaSun and MKE hereby
acknowledges the Breach.
(G) SUBSEQUENT TRANSFER. The Managing Member may attempt to sell all or a
portion of the Interest in accordance with Section 4.3 of the Operating
Agreement. The parties acknowledge and agree that the Managing Member is acting
as nominee for the Fund and not for any other party. Upon the consummation of
one or more Subsequent Transfers that garners aggregate proceeds (net of any and
all out-of-pocket expenses, fees and commissions reasonably incurred, in the
sole discretion of the Managing Member, in connection with such Subsequent
Transfers) by the Fund in excess of $1,400,000, the Managing Member agrees to
(i) recommend to the Fund's Board of Directors (the "BOARD") that (A) fifty
percent (50%) of such net proceeds be contributed to the Fund as income and (B)
fifty percent (50%) to ZiaSun, and (ii) follow the Board's direction with
respect to treatment of such net proceeds. Notwithstanding the foregoing, in the
event that the Managing Member is unable to effect a Subsequent Transfer that
results in the contribution of all or a portion of the amount of the Defaulted
Capital Commitment with six (6) months after the date hereof, the Managing
Member shall be entitled to retain the Interest for itself, and not as nominee,
and be admitted as a Substituted Non-Managing Member if and to the extent and on
such terms and conditions as approved by the Board of Directors and a
majority-in-interest of the Non-Managing Members (excluding the Interest held by
the Managing Member, as nominee). In the event of one or more Subsequent
Transfers, the Managing Member will notify ZiaSun, within a reasonable period,
of the occurrence of one or more such transactions, the proceeds and costs
relating thereto, and the Board's determination with respect to excess proceeds,
if any. The parties acknowledge and agree that neither the Managing Member, the
Fund, XxXxxxx Capital, Inc. nor any of
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their respective predecessors, successors, assigns (past, present or future),
subsidiaries, parents, shareholders, directors, officers, employees, advisors,
attorneys or agents shall have any liability for any claim for damage or loss
(whether incidental, punitive, indirect or consequential even if apprised of the
possibility of such damage or loss) arising under any theory of contract, tort
(including negligence), strict liability or otherwise relating to, arising out
of or in connection with a Subsequent Transfer, including, without limitation,
failure to consummate a Subsequent Transfer, the determination of the Board with
respect to the net proceeds, if any, as contemplated above or retention of the
Interest by the Managing Member for itself and not as nominee of the Fund;
PROVIDED, HOWEVER, the Managing Member shall not be excused from following the
direction of the Board with respect to its determination as to the distribution,
if any, of such net proceeds.
(H) Upon consummation of the Transfer, the parties agree that MKZ, ZiaSun
and MKE are hereby released from any obligations that any of them may have to
the Fund or under the Operating Agreement; PROVIDED, HOWEVER, MKE shall retain
its obligations as the Special Member of the Fund and its obligation to
contribute the MKE Capital Commitment, which continues to be in default.
2. RELEASES
(A) Each of InvesTools and ZiaSun, for itself and each of its respective
predecessors, successors, executors, administrators, heirs and estates; its
past, present and future assigns, agents and representatives; and each entity
that it has the power to bind (by act or signature) or over which it directly or
indirectly exercises control, including, without limitation, MKZ (each a "ZIASUN
RELEASING PARTY"), hereby unconditionally and completely releases, settles and
discharges the Fund, the Managing Member, the other Members, XxXxxxx Capital,
Inc., XxXxxxx Group, Xxxx and MKE, and each of their subsidiaries, parents,
shareholders, directors, officers, employees, advisors, attorneys, agents,
successors and assigns (collectively, the "ZIASUN RELEASED ENTITIES") from any
and all claims that a ZiaSun Releasing Party ever had, now has or hereafter may
have directly or indirectly by reason of any act, transaction, obligation,
matter, or cause of any kind occurring on or prior to the date hereof,
including, without limitation, any and all claims directly or indirectly a
result of, pursuant to, arising out of or relating to the Breach and the
Defaulted Capital Contribution, or any action or inaction by the ZiaSun Released
Entities, membership in MKZ, MKZ's membership in the Fund, the transfer of the
Interest, any Subsequent Transfer or dealing or transaction between any of the
ZiaSun Releasing Parties and the ZiaSun Released Entities, including, without
limitation, any claim for damage or loss (whether incidental, punitive, indirect
or consequential even if apprised of the possibility of such damage or loss)
arising under any theory of contract, tort (including negligence), strict
liability or otherwise, in each such case whether or not now known
(collectively, the "ZIASUN RELEASED CLAIMS"); PROVIDED, HOWEVER, ZiaSun Released
Claims shall not include claims for breach of this Agreement that any of the
ZiaSun Releasing Parties may have under this Agreement.
(B) Each ZiaSun Releasing Party hereby agrees that it will not bring any
claim, action or suit of any sort based upon, arising out of, or related in any
way to the ZiaSun Released Claims and covenants and agrees not to assert such
claims, directly or indirectly, against any of the ZiaSun Released Entities.
(C) Each of MKE, Xxxx and XxXxxxx Group, for itself or himself and each of
its or his respective predecessors, successors, executors, administrators, heirs
and estates; its past, present and future assigns, agents and representatives;
and each entity that it has the power to bind (by act or signature) or over
which it directly or indirectly exercises control, including, without
limitation, MKZ (each a "MKE RELEASING PARTY"), hereby unconditionally and
completely releases, settles and discharges the Fund, the Managing Member,
XxXxxxx Capital, Inc., the other Members, InvesTools and ZiaSun, and each of
their subsidiaries, parents, shareholders, directors, officers, employees,
advisors, attorneys, agents, successors and assigns (collectively, the "MKE
RELEASED ENTITIES") from any and all claims that a
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MKE Releasing Party ever had, now has or hereafter may have directly or
indirectly by reason of any act, transaction, obligation, matter, or cause of
any kind occurring on or prior to the date hereof, including, without
limitation, any and all claims directly or indirectly a result of, pursuant to,
arising out of or relating to the Breach and the Defaulted Capital Contribution,
or any action or inaction by the MKE Released Entities, membership in MKZ, MKZ's
membership in the Fund, the transfer of the Interest, any Subsequent Transfer or
dealing or transaction between any of the MKE Releasing Parties and the MKE
Released Entities, including, without limitation, any claim for damage or loss
(whether incidental, punitive, indirect or consequential even if apprised of the
possibility of such damage or loss) arising under any theory of contract, tort
(including negligence), strict liability or otherwise, in each such case whether
or not now known (collectively, the "MKE RELEASED CLAIMS"); PROVIDED, HOWEVER,
MKE Released Claims shall not include claims for breach of this Agreement that
any of the MKE Releasing Parties may have under this Agreement.
(D) Each MKE Releasing Party hereby agrees that it will not bring any
claim, action or suit of any sort based upon, arising out of, or related in any
way to the MKE Released Claims and covenants and agrees not to assert such
claims, directly or indirectly, against any of the MKE Released Entities.
(E) Each of the Managing Member and the Fund, for itself and each of its
respective predecessors, successors, executors, administrators, heirs and
estates; its past, present and future assigns, agents and representatives; and
each entity that it has the power to bind (by act or signature) or over which it
directly or indirectly exercises control (each a "FUND RELEASING PARTY"), hereby
unconditionally and completely releases, settles and discharges MKZ, InvesTools,
ZiaSun, XxXxxxx Group, Xxxx and MKE, and each of their subsidiaries, parents,
shareholders, directors, officers, employees, advisors, attorneys, agents,
successors and assigns (collectively, the "FUND RELEASED ENTITIES") from any and
all claims that a Fund Releasing Party ever had, now has or hereafter may have
directly or indirectly by reason of any act, transaction, obligation, matter, or
cause of any kind occurring on or prior to the date hereof, including, without
limitation, any and all claims directly or indirectly a result of, pursuant to,
arising out of or relating to the Breach and the Defaulted Capital Contribution,
or any action or inaction by the Fund Released Entities, membership in MKZ,
MKZ's membership in the Fund, the transfer of the Interest, any Subsequent
Transfer or dealing or transaction between any of the Fund Releasing Parties and
the Fund Released Entities, including, without limitation, any claim for damage
or loss (whether incidental, punitive, indirect or consequential even if
apprised of the possibility of such damage or loss) arising under any theory of
contract, tort (including negligence), strict liability or otherwise, in each
such case whether or not now known (collectively, the "FUND RELEASED CLAIMS");
PROVIDED, HOWEVER, Fund Released Claims shall not include claims for breach of
this Agreement that any of the Fund Releasing Parties may have under this
Agreement, including MKE's obligation in respect of the MKE Capital Commitment.
(F) Each Fund Releasing Party hereby agrees that it will not bring any
claim, action or suit of any sort based upon, arising out of, or related in any
way to the Fund Released Claims and covenants and agrees not to assert such
claims, directly or indirectly, against any of the Fund Released Entities.
3. CONDITIONS TO EFFECTING TRANSFERS.
The obligations of the Managing Member to consummate and effect this
Agreement and the transactions contemplated hereby shall be subject to the
satisfaction of each of the following conditions:
(A) Xxx Xxxxx shall resign from the Fund's Board and Investment Committee
upon the execution of this Agreement and MKZ and ZiaSun hereby agree that
neither of them shall be entitled to any right to appoint a successor to the
Board or such committee.
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(B) ZiaSun shall promptly reimburse the Managing Member for all of its
legal fees and expenses incurred in connection with the preparation, negotiation
and execution of this Agreement, which fees and expenses shall not exceed
$10,000.
4. REPRESENTATIONS AND WARRANTIES
Each of MKE, XxXxxxx Group, Xxxx and ZiaSun, on behalf of itself and with
respect to itself only, hereby represents and warrants that, to the best of its
or his knowledge, (i) there are no members of MKZ other than MKE, ZiaSun and
XxXxxxx Group, (ii) there are no managing members of MKZ other than XxXxxxx
Group, MKE and Xxxx, and (iii) each of XxXxxxx Group, MKE, Xxxx and ZiaSun has
full right, power and authority to enter into this Agreement. Each of the
Managing Member, the Fund, MKZ, MKE, XxXxxxx Group, InvesTools and ZiaSun hereby
represents and warrants, on behalf of itself and with respect to itself only, to
each other as follows:
(A) It is not relying on any representation or promise of any other person
in executing this Agreement or in making the release provided for herein, and
assumes the risk of any misrepresentation, concealment or mistake. If any of the
Managing Member, the Fund, MKZ, MKE, Xxxx, XxXxxxx Group, InvesTools or ZiaSun
should subsequently discover that a fact relied upon by it in entering into this
Agreement was untrue, or that a fact was concealed from it, or that its
understanding of the facts or of the law was incorrect, such party shall not be
entitled to any relief in connection therewith, including, without limitation,
any alleged right or claim to set aside or rescind this Agreement and the
release contained in Section 2 above. This Agreement is intended to be and is
final and binding, regardless of any claims of misrepresentation, promise made
without the intention to perform, concealment of fact, mistake of fact or law,
or of any other circumstance.
(B) Neither the Managing Member, the Fund, MKZ, XxXxxxx Group, Xxxx, XXX,
InvesTools or ZiaSun has assigned, transferred, conveyed or otherwise disposed
of any Released Claim, or any direct or indirect interest in any such Released
Claim, in whole or in part.
(C) The Fund, the Managing Member, ZiaSun, InvesTools and MKE shall have
been released from all obligations (contingent or otherwise) to MKZ.
(D) This Agreement is a valid and binding obligation of each of the
Managing Member, the Fund, MKZ, MKE, XxXxxxx Group, Xxxx, InvesTools and ZiaSun,
and is enforceable against each of them in accordance with its terms.
(E) There is no action, suit, proceeding, dispute, litigation, claim,
complaint or investigation by or before any court, tribunal, governmental body,
governmental agency or arbitrator pending, or to the best of the knowledge of
the Managing Member, the Fund, MKZ, XxXxxxx Group, Xxxx, XXX, InvesTools or
ZiaSun, threatened against any of them that challenges or would challenge the
execution and delivery of this Agreement or the taking of any of the actions
required to be taken by each of the Managing Member, the Fund, MKZ, MKE, XxXxxxx
Group, Xxxx, InvesTools and ZiaSun.
(F) Neither the execution and delivery of this Agreement nor the
performance hereof will (a) result in any violation or breach of any agreement
or other instrument to which it is a party or by which it is bound, or (b)
result in a violation of law, rule, regulation, treaty, ruling, directive,
order, arbitration award, judgment or decree to which it is subject.
(G) No authorization, instruction, consent or approval of any person or
entity is required to be obtained by it in connection with the execution and
delivery of this Agreement or the performance hereof.
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5. MISCELLANEOUS.
(A) SEVERABILITY. If any provision hereof is held under any circumstances
to be invalid or unenforceable in any jurisdiction, then (i) such provision
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (ii) the validity or unenforceability of such provision
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision under any other circumstances or in any
other jurisdiction, and (iii) such invalidity or enforceability shall not affect
the validity or enforceability of any other provision hereof. If any provision
hereof is held to be unenforceable against any person then the unenforceability
of such provision against such person, shall not affect the enforceability
thereof against any other person.
(B) INTERPRETATION. Any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Release.
(C) SECTION 1542 OF THE CIVIL CODE. Each of the Managing Member, the Fund,
MKE, XxXxxxx Group, Xxxx, InvesTools and ZiaSun (i) represents, warrants, and
acknowledges that it has been fully advised by its attorney of the contents of
Section 1542 of the Civil Code of the State of California, and (ii) hereby
expressly waives the benefits thereof and any rights such party may have
thereunder. Section 1542 of the Civil Code of the State of California provides
as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor."
Each of the Managing Member, the Fund, MKE, XxXxxxx Group, Xxxx,
InvesTools and ZiaSun also hereby waives the benefits of, and any rights it may
have under, any statute or common law principle of similar effect in any
jurisdiction.
(D) ATTORNEY FEES. In the event of any litigation or dispute in connection
with the interpretation or enforcement of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees and all costs of proceedings
incurred in enforcing this Agreement.
(E) ENTIRE AGREEMENT; GOVERNING LAW; COUNTERPARTS; ORIGINALS. This
Agreement, including all documents incorporated herein by reference, constitutes
the complete and exclusive agreement between the parties with respect to the
subject matter hereof, and supersedes and replaces any and all prior or
contemporaneous discussions, negotiations, understandings and agreements,
written and oral, including the Interim Agreements, regarding such subject
matter. This Agreement shall be governed by and construed under the laws of the
State of California without regard to conflicts of law principles. This
Agreement may be executed in counterparts, each of which will be deemed an
original, but all of which together shall constitute one and the same
instrument. Once signed, any reproduction of this Agreement made by reliable
means (e.g., photocopy, facsimile) is considered an original.
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(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties hereto have executed this Transfer,
Consent and Settlement Agreement as of the day first set forth above.
MKZ:
MKZ FUND, LLC MKZ FUND, LLC
Its Managers Its Members
By: The XxXxxxx Group, LLC By: XxXxxxx Enterprises, Inc.
By: /s/ XXXXXXXX XXXX By: /s/ XXXXXXXX XXXX
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Name: XXXXXXXX XXXX Name: XXXXXXXX XXXX
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Title: MANAGER Title: PRESIDENT AND CHIEF EXECUTIVE
------------------------------- OFFICER
-----------------------------------
By: XxXxxxx Enterprises, Inc. By: ZiaSun Technologies, Inc.
By: /s/ XXXXXXXX XXXX By: /s/ XXXX X. XXXXXXXX
------------------------------- -----------------------------------
Name: XXXXXXXX XXXX Name: XXXX X. XXXXXXXX
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Title: PRESIDENT AND CHIEF EXECUTIVE Title: CFO
OFFICER -----------------------------------
-------------------------------
/s/ XXXXXXXX XXXX By: The XxXxxxx Group, LLC
--------------------------------
Xxxxxxxx Xxxx, an Individual
By: /s/ XXXXXXXX XXXX
-----------------------------------
Name: XXXXXXXX XXXX
-----------------------------------
Title: MANAGER
-----------------------------------
MKE: XXXXXXX ENTERPRISES, INC.
By: /s/ XXXXXXXX XXXX
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Name: XXXXXXXX XXXX
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Title: PRESIDENT AND CEO
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ZIASUN: ZIASUN TECHNOLOGIES, INC.
By: /s/ XXXX X. XXXXXXXX
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Name: XXXX X. XXXXXXXX
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Title: CFO
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INVESTOOLS: INVESTOOLS, INC.
By: /s/ XXXX X. XXXXXXXX
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Name: XXXX X. XXXXXXXX
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Title: CFO
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MANAGING MEMBER: XXXXXXX CAPITAL PARTNERS, LLC,
for itself and XxXxxxx Capital, LLC
By: /s/ XXXXXXX X. XXXXXXX
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Name: XXXXXXX X. XXXXXXX
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Title: MANAGING MEMBER
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SIGNATURE PAGE TO
XXXXXXX CAPITAL, LLC
TRANSFER, CONSENT AND SETTLEMENT AGREEMENT
