Exhibit 10.48
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VENTURE FUND AGREEMENT
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This Venture Fund Agreement ("Agreement") is made effective the 3rd day of
July, 2000, and entered into at San Diego, California, by and between ZiaSun
Technologies, Inc., ("ZiaSun") a Nevada corporation, located at 462 Stevens
Avenue, Suite 106, Solana Beach, California 92075, and the appropriate McKenna
Group entity (Yet to be named, but hereinafter referred to as "TAMEG"). The
Mckenna Group, ("TMG") is a general fund membership, located at 1755 Embarcadero
Road, Palo Alto, California 94303
WHEREAS, ZiaSun is a holding company for worldwide acquisitions, mergers
and/or consolidations, which are compatible with its long-term strategic plans;
and,
WHEREAS, TAMEG is an Internet consulting firm, which provides consulting
services to leading and emerging technology companies worldwide; and,
WHEREAS, ZiaSun and TAMEG are desirous of pooling their resources,
expertise and capital to create a venture fund to perform and support incubation
activities for emerging technology companies;
Formation of Venture Fund
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NOW, THEREFORE, the parties to this Agreement do hereby voluntarily
associate themselves together as venture fund members subject to the following
terms and conditions:
Name of Venture Fund
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1. The name of this venture fund shall be "McKenna-ZiaSun" ("MKZ").
Purposes of Venture Fund
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2. The purposes of this venture fund shall be:
2.1 To enter into a relationship under which ZiaSun and TAMEG will
make direct investments in emerging-technology companies.
2.2 To invest in emerging, early-stage technology companies, either
through the McKenna Venture Accelerator ("MVA"), a new Limited Liability
Company to be organized under the laws of the State of Delaware, U.S.A., or
through any other organization or means authorized by either the MKZ
Investment Board or the MVA Investment Board.
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Ownership and Profit Interest
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3. The membership and "profits" interest of MKZ shall be divided as
follows:
3.1 ZiaSun will contribute 100% of the funding to the venture fund.
3.2 ZiaSun shall receive sixty percent (60%) of the first twenty
million and no/100 dollars ($20,000,000.00) of MKZ distributions and TAMEG
shall receive a carried interest of forty percent (40%) of such
distributions. 3.3 ZiaSun shall receive 51% of distributions above twenty
million and no/100 dollars ($20,000,000.00) and TAMEG shall receive a
carried interest of forty-nine percent (49%) of such distributions.
Exclusive Relationship
4. This relationship shall be deemed exclusive in the following
restricted sense: no other parties shall be principals of MKZ other
than ZiaSun and TAMEG principals, unless both parties agree in
writing. Exclusivity will not extend beyond profit interest in MKZ and
will specifically not cover other vehicles that ZiaSun or TAMEG
principals may already be involved in or may become involved in during
the term of this agreement.
Extent of Relationship
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5. It is expressly acknowledged and agreed by ZiaSun and TAMEG that all
investments identified and/or reviewed by either MKZ or MVA shall be
subject to this Agreement. As such, notwithstanding the nature of the
investment, or the entity and/or individuals who actually make the
investment, in all approved MVA investments, MKZ shall be entitled to
an equity participation of the target entity's outstanding stock,
including all classes and series thereof, as measured on the day of
the closing of the investment, in a percentage mutually agreed upon by
ZiaSun and the MVA Investment Board for each and every deal
undertaken. Said stock shall be issued and held in the name of MKZ,
with distributions and/or gains to be distributed to ZiaSun and TAMEG
as determined by the MKZ Investment Board.
Funding, Identification and Staffing of Venture
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6. MKZ shall be funded and staffed, as follows:
6.1 Initial Payment to MKG: Cash in the amount of five-hundred
thousand and no/100 dollars ($500,000.00) already transferred to The
McKenna Group as a good faith deposit on April 25, 2000 to cover start-up
costs, consulting services and initial equity stubs acquired between April
25 and the date of the final agreement. Every reasonable effort shall be
made on the part of the McKenna Group to absolutely minimize the
administrative and overhead costs incurred by MKZ and/or MVA
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6.2 Initial Capital: ZiaSun shall contribute a total of fourteen
million, five hundred thousand and no/100 dollars ($14,500,000.00), which
shall consist of the following:
6.2.1 Cash in the amount of three million and no/100 dollars
($3,000,000.00) to be transferred to the MKZ account on the date of
execution of this agreement.
6.2.2 Cash in the amount of two million and no/100 dollars
($2,000,000.00) to be transferred to the MKZ account on or about
*September 1, 2000.
6.2.3 **Cash in the amount of two million, five-hundred thousand
and no/100 dollars ($2,500,000.00) to be transferred to the MKZ
account on or about *November 1, 2000.
6.2.4 **Cash in the amount of three million, five-hundred
thousand and no/100 dollars ($3,500,000.00) to be transferred to the
MKZ account on or about *January 1, 2001.
6.2.5 **Cash in the amount of three million, five-hundred
thousand and no/100 dollars ($3,500,000.00) to be transferred to the
MKZ account on or about *April 1, 2001.
NOTES: (*)The actual dates of cash transfer may vary slightly as
required to best meet the needs of MKZ, and/or depending on the
immediate availability of cash for transfer. (**)ZiaSun reserves
the right to infuse its stock in equivalent amounts in lieu of
cash for these payments.
6.2.6 Upon execution of this Agreement, two million and no/100
dollars ($2,000,000.00) in cash shall be available for the following
purposes: (a) to TAMEG to help it meet the business consulting needs
of MKZ; (b) for acquisition of present or committed warrant rights
from TAMEG clients and/or warrants and options in companies to be
incubated by MVA, as directed and authorized by the MKZ Investment
Board.
6.3 Identification and Staffing: TAMEG authorizes the use of its name
and shall contribute consulting services to MKZ, as follows:
6.3.1 TAMEG authorizes MKZ to use the name, "McKenna," in all
advertising and promotion of MKZ, subject to TAMEG's prior review and
approval in writing of all proposed materials and/or promotions.
6.3.2 TAMEG shall provide ZiaSun worldwide consulting services,
at a discount of at least fifteen percent (15%) from its standard
published hourly rates, to assist MKZ in identifying and attracting
third-party investors; and identifying, qualifying, evaluating and
negotiating acquisitions, mergers and consolidations of emerging,
early-stage technology companies to be considered for investment by
MKZ, as well as any other matter requested by ZiaSun.
6.3.3 The five hundred thousand and no/100 dollars ($500,000.00)
dollars already transferred to the McKenna account shall be available
to build the operations of MKZ to a sufficient level to accommodate
the needs of this venture. Any and all disbursements will be made at a
time and in a manner that is appropriate for the business requirements
of MKZ.
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Organization and Governance
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7. The MKZ Investment Board shall be formed, as follows:
7.1 Authority
7.1.1 *To oversee the disbursement of all funds of MKZ.
7.1.2 *To determine the level of investment in MVA.
7.1.3 *To evaluate and select all investments to be made by MKZ.
7.1.4 *To oversee the disbursement of portfolio company stock to
the MKZ fund participants.
*NOTE: Whenever possible, the goal of the MKZ Investment Board
and the MVA Investment Board shall be to manage all investments
in such a manner that they are eligible to receive the benefits
of Section 1045 of the Internal Revenue Code of 1986, as amended.
7.1.5 At its discretion, the MKZ Investment Board shall have
contemplated transactions and/or disbursements reviewed by appropriate
professionals, including without limitation, a certified public
accountant, prior to execution.
7.2 Composition:
7.2.1 ZiaSun shall appoint two (2) members.
7.2.2 TAMEG shall appoint two (2) members.
7.2.3 ZiaSun and TAMEG shall jointly approve the appointment of
two non-executive directors.
7.3 Voting: Each member of the MKZ Investment Board shall have one (1)
vote. All decisions shall be approved by a two-thirds (2/3) vote.
7.4 Investment Portfolio: MKZs investment portfolio will be held and
maintained in MKZ.
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Management Team
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8. A management team consisting of no more than five (5) senior
executives, reporting to the MKZ Investment Board, shall be employed
to oversee operations of MKZ. The MKZ Board shall unanimously approve
all senior executive hires therefor; such as, positions equivalent to
the Chief Executive Officer and Chief Financial Officer. Up to five
percent (5%) of capital may be expended annually to cover operating
costs.
Formation of MVA
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9. Promptly following execution of this Agreement, a new business entity
shall be formed, which shall perform the initial screening for all
potential investments and provide a vehicle from which target
companies for investments may be assimilated and incubated.
9.1 Form: The new business entity shall be initially organized as a
Limited Liability Company under the laws of the State of Delaware, U.S.A.
("LLC"). The Operating Agreement shall authorize the members by a
two-thirds (2/3) vote to elect to convert to a -C"(Y)corporation at a
future date, if appropriate to accommodate the long-term strategic goals of
the LLC, e.g., in anticipation of an initial public offering.
9.2 Name: The name shall be: "McKenna Venture Accelerator, L.L.C."
("MVA").
9.3 Governance:
9.3.1 MVA Investment Board:
9.3.1.1 Duties: The MVA Investment Board shall be
responsible for reviewing and evaluating all potential
investments of MVA. In this role, the MVA Investment Board shall
screen the potential investments and select only those, which
appear viable, and shall determine whether the investment should
be retained by MVA, or directed to MKZ for evaluation as a
suitable investment for MKZ or other appropriate entities.
9.3.1.2 Approval: All investments to seed emerging
technology companies shall be approved by a two-thirds (2/3)
majority vote.
9.3.1.3 Composition: The MVA Investment Board shall be
comprised of the following:
A. Investors: One (1) seat per investing entity.
B. TAMEG: Two (2) seats.
C. MVA Management Team: One (1) seat.
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9.3.2 MVA Management Team: A management team, consisting of no
more than seven (7) senior executives, which reports to the MVA
Investment Board, shall be employed to oversee operations of MVA.
TAMEG and the investors in MVA shall mutually approve all senior
executive hires therefor; such as, positions equivalent to the Chief
Executive Officer and Chief Financial Officer.
9.4 Funding and Ownership:
9.4.1 Funding: MVA shall have a total initial funding of at least
twenty million and no/100 dollars ($20,000,000.00), which shall be
contributed by ZiaSun through MKZ and by other third-party investors.
MKZ shall have the option of contributing a minimum of five million
and no/100 dollars ($5,000,000.00) and up to ten million and no/100
dollars ($10,000,000.00) to MVA.
9.4.2 Ownership of MVA:
9.4.2.1 TAMEG shall have a membership and profit interest of
up to up to twenty-five percent (25%) of MVA.
9.4.2.2 MVA Management shall have a membership and profit
interest of up to fifteen percent (15%) of MVA.
9.4.2.3 All Investors, including MKZ, will collectively have
a sixty percent (60%) membership interest of MVA.
9.4.2.4 MKZ shall own a percentage of MVA equal to sixty
percent (60%) times the ratio of its dollar investment in MVA to
the total dollar investment in MVA.
9.4.3 Deal Flow Among Parties
9.4.3.1 ZiaSun shall not be obligated to present its flow of
pre-IPO investment opportunities to either MKZ or MVA.
9.4.3.2 MVA will give right of first refusal on deals that
it chooses not to fund to MKZ, subject to the consent of the
relevant majority of the shareholders in the investee company.
9.4.3.3 MKZ shall offer the deals that it chooses not to
fund to ZiaSun, subject to the consent of the relevant majority
of the shareholders in the investee company.
9.5 Identification and Staffing: TAMEG shall authorize the use of its
name and contribute services to MVA, as follows:
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9.5.1 TAMEG authorizes MVA to use the name, McKenna, in all
advertising and promotion of MVA, subject to TAMEGs prior review
and approval of all proposed materials and/or promotions, which
approval shall not be unreasonably withheld.
9.5.2 TAMEG shall provide MVA worldwide consulting services,
at a discount of at least fifteen percent (15%) from its standard
published hourly rates, to assist MVA in incubating, assimilating
and launching the early stage technology companies approved for
investment by MVA.
9.6 Use of Investment Funds:
9.6.1 Disbursement Rules: MVA will disburse ninety percent
(90%) to ninety-five percent (95%) of its funds derived from
investments directly to the targeted investment companies, or in
the payment of services, which directly benefit said companies.
The balance of its funds derived from investments shall be spent
on critical infrastructure items for MVA; such as leased office
premises, and the costs of the dedicated management team of MVA.
9.6.2 Budget: The Management Team of MVA shall develop, and
submit to the MVA Investment Board for approval, an annual budget
and statement of use of funds by targeted investment companies.
9.6.3 Modification: All material departures or changes from
the aforementioned disbursement rules and/or approved budget will
require the prior written approval of the MVA Investment Board.
9.7 Investment Portfolio: MVA's investment portfolio will be held and
maintained in MVA.
9.8 Tax-Free Liquidation of Stock: Whenever possible, the goal of the
MVA Investment Board shall be to manage all investments in such a manner
that they are eligible to receive the benefits of Section 1045 of the
Internal Revenue Code of 1986, as amended.
9.9 Equity Participation: For each company reviewed by MKZ and/or MVA
which culminates in an investment by any entity or individual, MKZ shall be
entitled to an equity participation of the target entitys outstanding
stock, including all classes and series thereof, as measured on the day of
the closing of the investment, in a percentage mutually agreed upon by
ZiaSun and the MVA Investment Board for each and every deal undertaken,
which stock shall be issued to MKZ in the same manner as stock will be
issued to other investors.
9.10 Expert Advice: At its discretion, the MVA Investment Board shall
have all contemplated transactions and/or disbursements reviewed by
appropriate professionals, including without limitation, a certified public
accountant, prior to execution.
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Accounting
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10. The management team of MKZ shall be responsible for the management and
financial affairs of MKZ, in accordance with the following:
10.1 No non-budgeted expenditures or liabilities shall be made in
the name or on the credit of the organization exceeding fifty thousand
and no/100 dollars ($50,000.00) per transaction, or one hundred
thousand and no/100 dollars ($100,000.00) per month, without the
express written consent of both ZiaSun and TAMEG.
10.2 Bank accounts in the names of MKZ shall be maintained. All
expenditures made by or on behalf of the entity shall be made by check
drawn on its account and all non-budgeted monies received on behalf of
the entity shall be deposited into this account. All checks in excess
of fifty thousand and no/100 dollars ($50,000.00) on said accounts
must be signed by an authorized representative of both ZiaSun and
TAMEG.
10.3 At all times during the continuance of MKZ, accurate books
of account shall be maintained in accordance with generally accepted
accounting procedures in which all matters relating to this venture
shall be entered. The books of account shall be open to examination by
either party or its agent upon reasonable written notice.
10.4 A complete accounting of the operation of MKZ shall be
rendered as of the close of business each calendar month to each party
hereto within ten (10) days after the close of each month.
10.5 Funds shall only be disbursed to cover actual expenses as
they are incurred; or for investments authorized by the MKZ Investment
Advisory Board. Any excess funds shall be distributed pro rata upon
termination of the venture fund to the venture fund members after all
debts, liabilities and obligations of the venture fund have been fully
satisfied.
10.6 MVA shall be required to implement the same accounting
principles and practices as set forth in Items 10.1 through 10.5, plus
any other accounting principles and practices, which may be unique in
nature, and specific to the laws of an investor's country of domicile.
Prohibited Transactions
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11. The parties to this Agreement are prohibited from engaging in the
following transactions:
11.1 Name: During the term of this Agreement, no party shall use
the name of the venture fund except as specifically authorized in this
Agreement.
11.2 Venture Fund Members Confidential Information: The venture
fund members possess certain confidential information regarding their
respective business affairs, plans or activities ("Information"). Said
Information includes, but is not limited to, trade secrets,
proprietary information, business strategies, shareholder names,
customer names, marketing plans, supplier names, costs, applications,
specifications, software, formulas, plans, designs, and manufacturing
procedures. During the term of this Agreement, each party agrees to
disclose this Information to the other party, as the party deems
necessary in its sole discretion for the sole purpose of performance
under this Agreement. The parties agree to utilize such Information
only for the purposes described herein, and to otherwise hold such
Information confidential pursuant to the terms of this Agreement and
subject to the following conditions:
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11.2.1 To hold all Information in trust and confidence and
agree it shall be used only for the contemplated purpose and
shall not be used for any other purpose or disclosed to any other
third party.
11.2.2 The obligations of non-disclosure and non-use shall
be for five (5) years from the date of disclosure of the
Information.
11.2.3 It is understood, the foregoing obligations of
confidentiality and non-use shall not apply to any Information
known by the parties prior to disclosure under this Agreement,
generally known to the public, or disclosed to the parties by a
third party having a legal right to make such disclosure.
11.3 Conduct: During the term of this Agreement, no party shall:
11.3.1 Do any other act or deed with the intention of
harming the business operations of the other party.
11.3.2 Do any act contrary to this Agreement, except with
the prior express written approval of the other party.
11.3.3 Do any act that would make it impossible to carry on
the intended purpose of this Agreement.
Right of First Refusal
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12. Any transfer or sale of the ownership interest in MKZ by the venture
fund members to a third party shall be regulated as follows:
12.1 The parties to this Agreement agree that any binding
instrument with a third party for the sale or transfer of all or part
of a venture fund members interest in MKZ shall be subject to a Right
of First Refusal of the other venture fund member. Such Right of First
Refusal shall entitle the other venture fund member to acquire the
offered shares at the price and on the terms and conditions no less
favorable than those contained in such instrument by serving written
notice to the selling party within ten (10) days after receipt of the
copy of such instrument, which may be sent by facsimile.
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12.2 Absent exercise of such Right of First Refusal by the other
party to this Agreement, the third-party transaction may proceed to
closing without amendment of any price or other material term
immediately following expiration of the ten-day notice period.
Termination of Venture Fund
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13. This venture fund shall commence on execution of this Agreement and
shall continue until the first of any of the following events occur:
13.1 Termination on Occurrence of Stated Events: This Agreement
will terminate automatically on the occurrence of any of the following
events:
13.1.1 A two-thirds (2/3) vote of the MKZ Investment Board.
13.1.2 Any voluntary or involuntary assignment or transfer
by either party hereto, without the consent of the other party
hereto, of its interest in this venture;
13.1.3 A material change in either partys ability to perform
under this Agreement for a period of thirty (30) consecutive
days.
13.1.4 Dissolution, termination of existence, insolvency,
business failure, appointment of a receiver, assignment for the
benefit of creditors, or the commencement of any proceeding under
any bankruptcy or insolvency law by or against either party to
this Agreement.
13.2 Termination for Default: If any party defaults in the
performance of this Agreement or materially breaches any of its
provisions, the non-breaching party may terminate this Agreement by
giving written notification to the breaching party. Said notice of
termination shall be effective immediately on receipt of notice by the
breaching party, one (1) day after sending the notice by facsimile, or
five (5) days after sending the notice by U.S. mail in accordance with
this Agreement, whichever occurs first. The party in default shall
have twenty-one (21) days after the notice of termination is effective
to cure the default. If the default is not cured within said
twenty-one (21) days, this Agreement shall automatically terminate.
For the purposes of this paragraph, material breach of this Agreement
includes, but is not limited to, the following:
13.2.1 Any party's material breach of any representation or
agreement contained in this Agreement.
13.2.2 Any voluntary or involuntary assignment or transfer
by either party hereto, without the consent of the other party
hereto, of its interest in this venture.
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13.3 Mutual Termination: The parties may, at any time, mutually
agree to terminate this Agreement.
Winding Up
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14. Upon termination, the activities of the venture shall be wound up as
quickly as reasonably possible, all debts, liabilities and obligations
shall be promptly paid, and any excess funds shall be distributed
prorata to the venture fund members.
General Provisions
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15. Venture Members Not Agents: This Agreement does not constitute any
venture fund member as the agent or legal representative of the other
venture fund member for any purpose whatsoever. No venture fund member
is granted any express or implied right or authority by any other
venture fund member to assume or to create any obligation or
responsibility on behalf of, or in the name of, the other venture fund
member, or to bind the other venture fund member in any manner or
thing whatsoever.
16. Indemnity: Each venture fund member agrees to defend, indemnify and
hold harmless the other venture fund member from and against any and
all liabilities, claims and expenses (including without limitation:
expert witnesses fees, attorneys fees, damages, causes of action,
suits or judgments relating to and/or arising out of the venture fund
members performance under this Agreement).
17. Notice of Claims:
17.1 If during the term of this Agreement, any venture fund
member shall have reason to believe there may be a claim against
itself or the other venture fund member pertaining to any transaction
growing out of this Agreement, it shall notify the other venture fund
member in writing within ten (10) days after it knows, or has reason
to know, the basis of any such claim.
17.2 Failure to give the notice prescribed by Item 17.1 shall
relieve the other venture fund member from any and all liability on
any claim pertaining to any transaction growing out of this Agreement.
17.3 The provisions of this section shall survive the termination
of any other provisions of this Agreement.
18. Law: This Agreement shall be governed by and construed in accordance
with the laws of the State of --- California without regard to
conflict of laws provisions.
19. Attorneys' Fees: If this Agreement gives rise to a lawsuit or other
legal proceeding between any of the parties hereto, the prevailing
party shall be entitled to recover court costs, necessary
disbursements (including without limitation expert witnesses' fees)
and reasonable attorneys' fees, in addition to any other relief such
party may be entitled. This provision shall be construed as applicable
to the entire contract.
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20. Injunctive Relief: Venture fund members hereby agree the subject
matter of this Agreement is unique, unusual and extraordinary in
nature such that it has a peculiar value, the loss of which cannot be
reasonably or adequately compensated in damages in an action at Law.
Therefore, each venture fund member expressly agrees that the other
venture fund member, in addition to any other rights or remedies which
the other venture fund member may possess, shall be entitled to
injunctive and other equitable relief to prevent or remedy a breach of
this Agreement by a venture fund member.
21. Binding on Heirs: This Agreement shall be binding on and shall inure
to the benefit of the heirs, executors, administrators, successors,
and assigns of the venture fund members.
22. Jurisdiction/Venue: If any dispute arises out of this Agreement, it is
agreed that jurisdiction and venue shall lie exclusively in a
competent court in the County of San Diego, California, U.S.A.
23. Entire Agreement/Modification: This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties
hereto with respect to the subject matter hereof, and no other
agreement, statement, or promise relating to the subject matter of
this Agreement which is not contained herein shall be valid or
binding. Any modification of this Agreement will be effective only if
it is in writing.
24. Assignment: No venture fund member shall have the right to assign any
right or interest arising under this Agreement without the prior
written consent of the other venture fund member.
25. Severability: If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without
being impaired or invalidated in any way.
26. Waiver: The waiver by any party of any breach of a provision of this
Agreement by the other party shall not constitute a continuing waiver
or a waiver of any subsequent breach of the same or of a different
provision of this Agreement. Except as otherwise specifically provided
in this Agreement, nothing contained herein shall be deemed to
restrict or prevent any party from exercising legal or equitable
rights or from pursuing legal or equitable remedies in connection
herewith.
27. Notices and Requests: Except as otherwise provided herein, any notice,
demand, or request required or permitted to be given hereunder shall
be in writing and shall be deemed effective seventy-two (72) hours
after having been sent via facsimile to the addressee at the office
set forth in the first paragraph of this Agreement.
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28. Section Headings: The headings of the paragraphs of this Agreement
have been set forth for convenience only and are not intended to
influence the interpretation of this Agreement.
29. Construction: Each party cooperated in the drafting of this Agreement.
If any construction is to be made of any provision of this Agreement,
it shall not be construed against either party on the ground such
party was the drafter of the Agreement or any particular provision.
30. Time is Of The Essence: Time is of the essence in this Agreement.
31. Entity Authorization: Each signatory of this Agreement represents and
warrants that this Agreement and the undersigneds execution of this
Agreement has been duly authorized and approved by the corporations
Board of Directors, if necessary, or the governing board of the
entity, if necessary. The undersigned officers and representatives of
the entities executing this Agreement on behalf of the entities
represent and warrant they possess full authority to execute this
Agreement on behalf of the entities.
32. Execution By Facsimile: This Agreement may be executed by the parties
and transmitted by facsimile. A facsimile signature of a party shall
be binding as an original. If a party sends a copy of the Agreement or
part thereof with that partys signature by facsimile, that party shall
promptly send the original by first class mail.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
THE McKENNA GROUP ZIASUN TECHNOLOGIES, INC.
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By: /s/ Greoff Mott By: /s/ Allen D. Hardman
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Geoff Mott Allen D. Hardman
Its: Managing Fund Member Its: President & Chief Executive Officer
By: /s/ Scott D. Elder
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D. Scott Elder
Its: Chairman
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