Exhibit 10.31
AGREEMENT AND PLAN OF DISSOLUTION
This Agreement and Plan of Dissolution ("Agreement") is entered into
effective as of the 30th day of April, 1999 (the "Effective Date"), between and
among J-TECH ENTERPRISES, INC., a Florida corporation with offices at 000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 ("J-Tech") and TOWER
TECH, INC., an Oklahoma corporation with offices located at 11935 South I-44
Service Road, Oklahoma City, Oklahoma ("Tower Tech"), XXXX X. XXXXXX, an
individual residing at 0000 Xxxx Xxxxxxxxx, Xxx. 0000, Xxxxxxxxxx, Xxxxxxx 00000
("Eunson") and XXXXXX XXXXXX, an individual residing at 11935 South I-44 Service
Road, Oklahoma City, Oklahoma ("Xxxxxx").
R E C I T A L S
A. On or about December 29, 1995, J-Tech and Tower Tech associated
themselves as joint venture partners (Florida general partnership) under the
name and style of Tower Tech SE (hereinafter referred to as the "Joint
Venture"), pursuant to a Joint Venture Agreement dated December 29, 1995 (the
"Joint Venture Agreement").
B. The Joint Venture Agreement provides that the Joint Venture shall
continue until, among other things, the agreement of the parties.
C. The undersigned partners constitute all of the partners of the Joint
Venture.
D. Under the terms of the Joint Venture Agreement, the Joint Venture
was given rights as exclusive licensee of certain technology referenced in the
Technology License (the "Technology License") which was made a part of the Joint
Venture Agreement.
E. The undersigned partners have unanimously agreed to (i) dissolve the
Joint Venture in accordance with the Joint Venture Agreement and (ii) terminate
the Technology License.
F. The undersigned parties agree that there is no longer a need for the
continuance of the business of the Joint Venture and that the dissolution of the
Joint Venture as provided herein will be mutually beneficial to all the parties.
NOW, THEREFORE, the parties hereto agree as follows:
1. Dissolution. J-Tech and Tower Tech hereby dissolve the
Joint Venture effective as of April 30, 1999 (the "Closing Date"). No further
business shall be conducted by the Joint Venture and no further obligations
shall be incurred on its behalf, except for the purposes of carrying out the
dissolution and winding up the business of the Joint Venture as provided herein.
2. Closing. The closing (the "Closing") of this transaction
shall take place at the offices of Holland & Knight, located at 000 Xxxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx, on the Closing Date.
3. Financial Statements. Prior to the Closing Date, J-Tech
will prepare a balance sheet and an income statement for the Joint Venture as of
April 30, 1999 (the "Financial Statements". The Financial Statements will be
closed in the usual manner and will be provided to Tower Tech prior to closing.
4. Distributions and Payments of Liabilities. Upon dissolution
of the Joint Venture, Tower Tech shall have the sole authority and power to wind
up, and shall commence the winding up of, the affairs of the Joint Venture. The
assets and liabilities of the Joint Venture shall be shared as follows:
4.1. Lease Agreement. On October 1, 1996, the Joint
Venture entered into a Lease Agreement with Lennar Central FL-III Q.A.
("Lennar") (the "Lease Agreement"). The rights and obligations of the
Joint Venture in the Lease Agreement shall be distributed to J-Tech and
shall become the sole property and obligation of J-Tech.
4.2. Office Furniture and Equipment Leases. The Joint
Venture owns certain furniture and equipment and has entered into
leases (the "Office Lease") for certain office equipment (collectively,
the "Office Furniture and Equipment"). Upon Closing, J-Tech shall
retain the Office Furniture and Equipment (as owner or lessee) and
Tower Tech and the Joint Venture shall have no further rights or
obligations concerning the Office Furniture and Equipment.
4.3. Other Assets and Liabilities. All other assets
and liabilities that remain after Closing and are reflected on the
Financial Statements shall be distributed to Tower Tech and shall
become the sole property and obligation of Tower Tech. All financial
records of the Joint Venture of any kind are specifically included as
assets hereunder and shall be distributed to Tower Tech.
4.4. Unknown Assets and Liabilities. Any assets or
liabilities of the Joint Venture not reflected on the Financial
Statements, except for any liabilities relating to the design or
performance of any of Tower Tech's products that were marketed and sold
by the Joint Venture which shall remain the sole obligation of Tower
Tech after dissolution, shall be distributed to and become the
responsibility of J-Tech and Eunson.
5. Technology License. Immediately upon the execution of this
Agreement, the Technology License is hereby revoked and void. Neither the Joint
Venture nor J-Tech shall have any rights as licensees or otherwise for any
technology that was the subject matter of the Technology License.
6. Termination Payment. Immediately prior to the Closing Date,
the Joint Venture shall make a lump-sum payment to J-Tech of $327,161.40 (the
"Termination Payment"). Prior to Closing, the Joint Venture shall pay to its
employees $12,959.00 as severance pay.
7. Releases.
7.1. J-Tech and Eunson Release. In consideration
of the mutual covenants contained within this Agreement and of the Termination
Payment provided for in Section 6 hereof, and other good and valuable
consideration, the adequacy and sufficiency of which are hereby acknowledged,
J-Tech and Eunson do hereby fully release, acquit and forever discharge the
Joint Venture, Tower Tech, and Xxxxxx, and their respective successors,
assigns, officers, directors, agents, employees, attorneys and representatives,
past and present (all of which released parties being hereinafter collectively
referred to as the "Tower Tech Released Parties"), from any and all claims,
demands, liabilities, grievances, loans and causes of action of any kind
whatsoever, except for claims made pursuant to Section 8.3., whether known
or unknown at the present time, contingent or not contingent, which J-Tech and
Eunson may have had or may now have against the Tower Tech Released Parties
or any of them, including, without limitation, claims, demands, liabilities,
grievances, and causes of action arising out of or in any way connected with or
related to (i) any obligations or liabilities of the Joint Venture to J-Tech
and Eunson; (ii) any obligations or liabilities of Tower Tech or Xxxxxx to
J-Tech or Eunson; (iii) any obligations or liabilities of Tower Tech or Xxxxxx
to J-Tech and Eunson arising out of any letter or other agreements; and (iv)
any obligations or liabilities of Tower Tech or Xxxxxx relating to Eunson's
employment agreement or stock options. It is the intent of the parties that
this release terminate whatever options or rights that Eunson has under a
letter agreement dated on or about March 26, 1998.
7.2. Tower Tech and Xxxxxx Release. In consideration of the mutual
covenants contained within this Agreement and of the Termination Payment
provided for in Section 6 hereof, and other good and valuable consideration, the
adequacy and sufficiency of which are hereby acknowledged, Tower Tech and Xxxxxx
do hereby fully release, acquit and forever discharge the Joint Venture, J-Tech,
and Eunson, and their respective successors, assigns, officers, directors,
agents, employees, attorneys and representatives, past and present (all of which
released parties being hereinafter collectively referred to as the "J-Tech
Released Parties"), from any and all claims, demands, liabilities, grievances,
loans and causes of action of any kind whatsoever, except for claims made
pursuant to Section 8.2., whether known or unknown at the present time,
contingent or not contingent, which Tower Tech and Xxxxxx may have had or may
now have against the J-Tech Released Parties or any of them, including, without
limitation, claims, demands, liabilities, grievances, and causes of action
arising out of or in any way connected with or related to (i) any obligations or
liabilities of the Joint Venture to Tower Tech and Xxxxxx; (ii) any obligations
or liabilities of J-Tech to Tower Tech and Xxxxxx; and (iii) any obligations or
liabilities of J-Tech to Tower Tech and Xxxxxx arising out of any letter or
other agreements.
8. Remedies for Breaches of This Agreement.
8.1. Survival of Representations and Warranties. All of the representations
and warranties of the parties contained in Sections 10 and 11 shall survive the
Closing and continue in full force and effect for a period of 18 months.
8.2. Indemnification Provisions for the Benefit of Tower Tech. In the event
J-Tech or Eunson breach any of their representations, warranties, and covenants
contained in this Agreement, provided that Tower Tech makes a written claim for
indemnification against J-Tech within such 18-month survival period, then J-Tech
and Eunson jointly and severally agree to indemnify Tower Tech from and against
the entirety of any damages, judgments, claims, demands or liabilities
(collectively, "Adverse Consequences") that Tower Tech shall suffer caused
proximately by the breach; provided, however, that J-Tech shall not have any
obligation to indemnify Tower Tech from and against any Adverse Consequences
caused by the breach of any representation or warranty of J-Tech or Eunson (i)
until Tower Tech has suffered Adverse Consequences by reason of all such
breaches in excess of $20,000 (after which point J-Tech will be obligated only
to indemnify Tower Tech from and against further Adverse Consequences) or
thereafter (ii) to the extent the Adverse Consequences Tower Tech has suffered
by reason of all such breaches exceeds the Termination Payment (after which
point J-Tech will have no obligation to indemnify Tower Tech from and against
further such Adverse Consequences); provided, however, that any breach of a
representation or warranty arising out of fraud, intentional misrepresentation
or with actual knowledge that it contained an untrue statement of fact or
omitted a fact necessary to make the statement not misleading shall not be
subject to such $20,000 threshold or the ceiling set by the Termination Payment.
8.3. Indemnification Provisions for the Benefit of J-Tech. In the event
that Tower Tech breaches any of its representations, warranties, and covenants
contained in this Agreement, provided that J-Tech makes a written claim for
indemnification against Tower Tech within such survival period, then Tower Tech
agrees to indemnify J-Tech from and against the entirety of any Adverse
Consequences J-Tech shall suffer caused proximately by the breach; provided,
however, that Tower Tech shall not have any obligation to indemnify J-Tech from
and against any Adverse Consequences caused by the breach of any representation
or warranty of Tower Tech, unless such breach was the result of fraud or an
intentional misrepresentation (i) until J-Tech has suffered Adverse Consequences
by reason of all such breaches in excess of $20,000 (after which point Tower
Tech will be obligated only to indemnify J-Tech or Eunson from and against
further Adverse Consequences) or thereafter (ii) to the extent the Adverse
Consequences J-Tech has suffered by reason of all such breaches exceeds the
Termination Payment (after which point Tower Tech will have no obligation to
indemnify J-Tech from and against further such Adverse Consequences); provided,
however, that any breach of a representation or warranty arising out of fraud,
intentional misrepresentation or with actual knowledge that it contained an
untrue statement of fact or omitted a fact necessary to make the statement not
misleading shall not be subject to such $20,000 threshold or the ceiling set by
the Termination Payment.
9. Termination of Joint Venture Agreement. All rights of the
parties under the Joint Venture Agreement are hereby terminated, except as
otherwise specifically provided herein.
10. Representations and Warranties of J-Tech and Eunson.
J-Tech and Eunson jointly and severally represent and warrant to Tower Tech that
the statements contained in this Section are correct and complete as of the date
of this Agreement and shall be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were substituted for the date of
this Agreement throughout this Section 10).
10.1. Organization of J-Tech. J-Tech is a corporation
duly organized, validly existing, and in good standing under the laws
of Florida.
10.2. Authorization of Transaction. J-Tech and Eunson
have full power and authority to execute and deliver this Agreement and
to perform their respective obligations hereunder. This Agreement and
any document or instrument to be executed by it in connection herewith
constitute the valid and legally binding obligations of J-Tech and
Eunson, enforceable in accordance with their terms and conditions.
10.3. Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, shall (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court
to which J-Tech or Eunson is subject or any provision of J-Tech's
articles of incorporation or bylaws, or (ii) conflict with, result in a
breach of, constitute a default under, result in then of, create in any
party the right to accelerate, terminate, modify, or cancel, or require
any notice under any agreement, contract, lease, license, instrument,
or other arrangement to which J-Tech or Eunson is a party or by which
either is bound or to which any of their assets is subject. Neither
J-Tech nor Eunson needs to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or
governmental agency in order for the parties to consummate the
transactions contemplated by this Agreement.
10.4. Financial Statements. Except as set forth on
Schedule 10.4 or the Financial Statements, to the knowledge of J-Tech
and Eunson, the Joint Venture has no liabilities except for those that
may have been incurred since April 30, 1999 in the ordinary course of
business.
11. Representations and Warranties of Tower Tech. Tower Tech
represents and warrants to J-Tech that the statements contained in this Section
are correct and complete as of the date of this Agreement and shall be correct
and complete as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement throughout this
Section 11).
11.1. Organization of Tower Tech. Tower Tech is a
corporation duly organized, validly existing, and in good standing
under the laws of Oklahoma.
11.2. Authorization of Transaction. Tower Tech has
full power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement and any document or
instrument to be executed by it in connection herewith constitute the
valid and legally binding obligations of Tower Tech, enforceable in
accordance with their terms and conditions.
11.3. Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, shall (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court
to which Tower Tech is subject or any provision of its articles of
incorporation or bylaws, or (ii) conflict with, result in a breach of,
constitute a default under, result in then of, create in any party the
right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or
other arrangement to which Tower Tech is a party or by which it is
bound or to which any of its assets is subject. Tower Tech does not
need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental
agency in order for the parties to consummate the transactions
contemplated by this Agreement.
12. Closing and Conditions to Obligation to Close.
12.1. Conditions to Obligation of J-Tech. The
obligation of J-Tech to consummate the transactions to be performed by it
in connection with the Closing is subject to satisfaction of the following
conditions:
(a) the representations and warranties of
Tower Tech set forth in Section 11 above shall be true and
correct in all material respects at and as of the Closing
Date;
(b) Tower Tech shall have performed and
complied with all of its covenants hereunder in all material
respects; and
(c) all actions to be taken by Tower Tech in
connection with consummation of the transactions contemplated
hereby and all certificates, instruments, and other documents
required to effect the transactions contemplated hereby shall
be reasonably satisfactory in form and substance to J-Tech.
J-Tech may waive any condition specified in this Section 12.1.
12.2. Conditions to Obligation of Tower Tech. The
obligation of Tower Tech to consummate the transactions to be performed
by it in connection with the Closing is subject to satisfaction of the
following conditions:
(a) the representations and warranties of
J-Tech and Eunson set forth in Section 10 above shall be true
and correct in all material respects at and as of the Closing
Date;
(b) J-Tech has obtained a release from
Lennar specifically releasing Tower Tech from any obligations
under the Lease Agreement between the Joint Venture and Lennar
and the Office Lease;
(c) J-Tech and Eunson shall have performed
and complied with all of their covenants hereunder in all
material respects;
(d) all actions to be taken by J-Tech in
connection with consummation of the transactions contemplated
hereby and all certificates, instruments, and other documents
required to effect the transactions contemplated hereby shall
be reasonably satisfactory in form and substance to Tower
Tech; and
(e) J-Tech and Eunson shall have delivered
to Tower Tech a certificate as of May 7, 1999, certifying that
the conditions in Section 12.2(a) and (c) are correct (such
certificate shall be considered a representation and warranty
of J-Tech and Eunson).
Tower Tech may waive any condition specified in this Section 12.2.
13. Integration; Amendment. This is the entire agreement
between the parties with respect to the subject matter hereof and supersedes in
its entirety all prior agreements between the parties with respect hereto. No
alteration, modification, interpretation or amendment of this Agreement shall be
binding on the parties unless in writing, designated as an amendment thereto and
executed with equal formality by each of the parties.
14. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Florida.
15. Binding Effect of Agreement. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, their respective
legal representatives, successors and assigns.
16. Severability. In the event any clause, provision or
provisions of this Agreement prove to be or are adjudicated invalid for any
reason, then such invalid or void clause, provision or provisions, shall not
affect the whole of this Agreement, but the balance of the provision hereof
shall remain operative and shall be carried into effect insofar as legally
possible.
17. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement and any party hereto may execute
this Agreement by signing one or more counterparts hereof.
18. Attorneys' Fees and Costs. In any action by any party as a
result of a breach of or to enforce this Agreement, the prevailing party shall
be entitled to recover a reasonable attorneys' fees and costs incurred in
preparation for and prosecution of such action or suit and, if any appeal is
taken from the decision of the trial court, reasonable attorneys' fees and costs
as fixed by the appellate court.
19. Headings. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
20. Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
two business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:
If to Tower Tech:
Tower Tech, Inc.
00000 Xxxxx X-00 Xxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxxx Xxxxxx & Xxxxx
0000 Xxxx xx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
If to Xxxxxx:
Xxxxxx Xxxxxx
00000 Xxxxx X-00 Xxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
If to J-Tech:
J-Tech Enterprises, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
With a copy to:
Holland & Knight LLP
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to Eunson:
Xxxx X. Xxxxxx
0000 Xxxx Xxxxxxxxx, Xxx. 0000
Xxxxxxxxxx, Xxxxxxx 00000
21. Expenses. Each of the parties shall bear his or its own
costs and expenses (including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
22. Confidentiality. During the period commencing on the
Closing Date and continuing for three years thereafter, both J-Tech and Eunson
shall keep confidential all, and shall not divulge to any other party any, of
the private, secret, or confidential information of Tower Tech or the Joint
Venture including, but not limited to, private, secret, and confidential
information relating to such matters as the intellectual property, finances,
methods of operation and completion, pricing, marketing plans and strategies,
equipment, and operational requirements and information concerning personnel,
clients, independent contractors, and suppliers of Tower Tech or the Joint
Venture, unless J-Tech or Eunson is required to disclose such information by law
or a judicial administrative, or regulatory authority. The remedy at law for any
breach of this Section 22 is and will be inadequate, and in the event of a
breach or threatened breach by either J-Tech or Eunson, Tower Tech shall be
entitled to an injunction restraining J-Tech or Eunson from any breach or
threatened breach of Section 22. Nothing in this Section 22 shall be construed
as prohibiting Tower Tech from contemporaneously pursuing any other remedies
available for such breach or threatened breach, including the recovery of
damages. This section 22 shall be inoperative as to any confidential information
that: (a) is or becomes generally available to the public other than as a result
of an improper disclosure by J-Tech or Eunson; (b) becomes available on a
non-confidential basis and not in contravention of applicable law from a source
other than J-Tech or Eunson; or (c) was known to J-Tech or Eunson prior to the
formation of the Joint Venture.
23. Cooperation. Each party shall use its reasonable efforts
to cooperate with the other party in connection with this Agreement and take
such actions as the other party may reasonably request, and to the extent that
such cooperation is reasonably necessary, Eunson will assist Tower Tech in the
collection of outstanding accounts receivables of the Joint Venture.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date above written.
J-TECH ENTERPRISES, INC.
BY: ss/XXXX XXXXXX
-----------------------------
Xxxx X. Xxxxxx, President
TOWER TECH, INC.
BY: ss/XXXXXX XXXXX
----------------------------
Xxxxxx Xxxxx, President
ss/XXXXXX XXXXXX
----------------------------
Xxxxxx Xxxxxx, Individually
ss/XXXX XXXXXX
----------------------------
Xxxx X. Xxxxxx, Individually
