EXHIBIT 10.24
STOCK SALE & SETTLEMENT AGREEMENT
1. PARTIES.
A. Xxxx X. Xxxxxxxxx ("Plaintiff");
B. JMW Capital Partners, Inc., an Oregon corporation (now known as
Aequitas Capital Management, Inc.), Xxxxxxxxxxx Group LLC, an Oregon limited
liability company, and Microfield Group, Inc., an Oregon corporation
(collectively "JMW Defendants");
X. Xxxxxxxxxxx Electric, Inc., an Oregon corporation, Destination Capital,
LLC, an Oregon limited liability company, Xxxxxxxxxxx Velagio, Inc., an Oregon
corporation, Xxxxxx X. Jesenik, Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxxx X.
Xxxxxx, R. Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxx X. Xxxxxx, and Xxxxx X.
Xxxxxxxxxxx (collectively "Xxxxxxxxxxx Defendants");
D. Collectively herein, the JMW Defendants and the Xxxxxxxxxxx Defendants
shall sometimes be referred as the "Defendants."
2. REPRESENTATION BY PLAINTIFF. Plaintiff represents and warrants that he
is the sole owner of (a) 119,050 shares of Series 2 preferred stock and
3,404,958 shares (203,008 of which are currently being held in escrow) of common
stock in Microfield Group, Inc. ("Microfield Stock"), and (b) a warrant to
purchase 16,667 shares of Microfield common stock ("Microfield Warrant").
Plaintiff further represents and warrants that the Microfield Stock and the
Microfield Warrant constitute all of Plaintiff's interests in Microfield Group,
Inc. Except for the 203,008 shares held in escrow, Plaintiff represents and
warrants that at Closing that he will be the sole owner of all such shares
(subject to any stock splits that may have occurred on or before Closing) and
that he is now, and then will be, free to transfer said Microfield Stock to the
JMW Defendants and that there is not now, and then will not be, any liens,
security interests or other encumbrances on said Microfield Stock.
3. PURPOSE. The purpose of this Agreement is to provide for the sale of
all of Plaintiff's Microfield Stock to the JMW Defendants and dismiss and
release each party from any and all
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claims which Plaintiff and Defendants may have against each other as of May 10,
2005. Many of these claims are currently the subject of litigation pending in
the Multnomah County Circuit Court, Xxxxxxxxx v. Jesenik et al, Multnomah County
Circuit Court Case No. 0403-02370.
4. PURCHASE OF STOCK BY JMW DEFENDANTS. The JMW Defendants jointly and
severally agree to purchase Plaintiff's Microfield Stock at Closing for the
aggregate purchase price of $362,500.00. The purchase price shall be allocated
as follows: $50,000 to the purchase of Plaintiff's preferred shares and the
balance to the purchase of Plaintiff's common shares.
5. TRANSFER OF STOCK; CANCELLATION OF WARRANT. Plaintiff agrees to sell
all of his Microfield Stock to the JMW Defendants and shall deliver all such
shares, endorsed in blank, to the JMW Defendants at Closing (according to the
share allocation instructions of the JMW Defendants), subject to the
representations and warranties set out in Section 2 hereto. If any of such
shares are still then in escrow, Plaintiff shall execute such documents provided
by the JMW Defendants as are necessary to transfer such shares to the JMW
Defendants. In addition, Plaintiff agrees to terminate and cancel the Microfield
Warrant as of Closing. Plaintiff agrees not to exercise the Microfield Warrant
prior to Closing.
6. RELEASE BY PLAINTIFF. Subject to the condition that all Defendants have
signed this Agreement by Closing and that the JMW Defendants pay the $362,500
provided for in Section 4 herein as a condition precedent, Plaintiff hereby
releases and acquits the Defendants, and each of them, and their respective
officers, directors, shareholders, agents, employees, successors, assigns, and
attorneys from any and all claims, demands, damages, costs, attorney fees,
liability, claims for contribution, claims for indemnity, and claims of any
other kind or nature, whether known or unknown, existing on this date, including
by way of illustration only, any claims for common law or securities fraud in
connection with this Agreement, fraud in the inducement of this Agreement, and
the claims asserted in, or which could have been asserted in, the lawsuit
captioned Xxxxxxxxx v. Jesenik et al, Multnomah County Circuit Court Case No.
0403-02370 in
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which the undersigned are parties. This release does NOT include the joint and
several obligation of the JMW Defendants to pay Plaintiff the $362,500 required
by this Agreement, but otherwise, in construing this release, the parties agree
that the release shall have the broadest meaning possible and shall be construed
to release all claims.
7. RELEASE BY DEFENDANTS. Subject to the condition that Plaintiff has
signed this Agreement by Closing and delivered his Microfield Stock at Closing
to the JMW Defendants as described in Section 5 hereto as a condition precedent,
the Defendants, and each of them, hereby release and acquit the Plaintiff and
his wife, children, agents, employees, successors, assigns, and attorneys from
any and all claims, demands, damages, costs, attorney fees, liability, claims
for contribution, claims for indemnity, and claims of any other kind or nature,
whether known or unknown, existing on this date, including by way of
illustration only, any claims for common law or securities fraud in connection
with this Agreement, fraud in the inducement of this Agreement, and the claims
asserted in, or which could have been asserted in, the lawsuit captioned
Xxxxxxxxx v. Jesenik et al, Multnomah County Circuit Court Case No. 0403-02370
in which the undersigned are parties. This release does NOT include the
representation of Plaintiff as to the ownership of the Microfield Stock and the
Microfield Warrant set out in Section 2 herein nor Plaintiff's obligation to
transfer all of the Microfield Stock and cancel the Microfield Warrant, but
otherwise, in construing this release, the parties agree that the release shall
have the broadest meaning possible and shall be construed to release all claims.
8. DISMISSAL OF LITIGATION. The parties to this Agreement shall suspend
further proceedings in the case of Xxxxxxxxx v. Jesenik et al, Multnomah County
Circuit Court Case No. 0403-02370 until August 1, 2005 and until the parties
have delivered the funds and stock described herein. If such delivery occurs,
then on August 2, 2005, the parties agree to dismiss with prejudice the
parties' claims against each other in Xxxxxxxxx v. Jesenik et al, Multnomah
County Circuit Court Case No. 0403-02370. The parties will request that the
order of dismissal
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make no reference to the fact of this settlement and simply state that the
action is dismissed without costs or fees to any party.
9. CLOSING. Closing shall occur within 5 business days after notice from
the JMW Defendants to Plaintiff, but no later than August 1, 2005 at 1:00 pm, at
the offices of Xxxxxxx, Xxxx & Xxxxxx LLP.
9.1 At Closing, the following shall be delivered to Plaintiff:
a) One or more insurance company, attorney trust account and/or cashier
checks in the aggregate sum of $362,500.00, made payable to Xxxx X. Xxxxxxxxx.
b) An executed assignment of the xxxx "Broadband in Motion" to Plaintiff.
c) An executed stipulated order of the dismissal of the case and claims
set forth in Section 8 herein.
9.2 At Closing, the following shall be delivered to the JMW Defendants:
a) All of Plaintiff's Microfield Stock, executed in blank, as described in
Sections 2 and 5 herein, except, to the extent that any such shares continue to
be held in escrow, Plaintiff shall deliver an executed copy of such document
prepared by the JMW Defendants necessary to transfer such shares to the JMW
Defendants.
b) An executed cancellation document, in form satisfactory to Microfield
Group, Inc., which cancels and terminates the Microfield Warrant.
c) An executed stipulated order of the dismissal of the case and claims
set forth in Section 8 herein.
10. DUPLICATE ORIGINALS, FACSIMILE AND SIGNATURES. There shall be three
duplicate originals of this Agreement. The parties may submit counterpart
signature pages, incorporating such signature pages to form three, complete,
duplicate original documents. Facsimile transmission of any signed original
document, and the retransmission of any signed facsimile transmission, shall be
the same as delivery of the original signed document. At the request of
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any party, a party shall confirm documents with a facsimile transmitted
signature by signing an original document.
11. INTERPRETATION AND ARBITRATION OF DISPUTES. In the event of any
dispute regarding any term or aspect of this Agreement, interpretation and
resolution of the dispute shall be determined in binding arbitration by an
arbitrator appointed by the Presiding Judge of Multnomah County Oregon Circuit
Court. Any arbitration shall be conducted pursuant to the Oregon Uniform Trial
Court Rules, with the exception that all witnesses must appear in person and the
arbitration shall be binding without right of appeal. The arbitration cost of
any dispute shall be paid by the non-prevailing party to the arbitration as
determined by the arbitrator.
12. CONSTRUCTION OF THE AGREEMENT. This Agreement is, by agreement,
drafted by all of the parties and the subject of bona fide negotiations. No
party shall be entitled to receive the benefits of any rule or doctrine
construing ambiguities against the drafter because this Agreement has been
drafted by each party. It is the specific intent of the parties to give the
releases set forth in this Agreement the broadest possible construction, and any
ambiguity shall be resolved in favor of a broad construction rather than a
narrow construction.
13. CONFIDENTIALITY.
A. The parties recognize the need to keep the terms of this Agreement
confidential and that serious, irrevocable harm could result if the terms of
this Agreement became known or were disclosed. Therefore, the parties agree
that, without the prior written consent of all the other parties to this
Agreement, no party shall disclose the terms of this Agreement to any other
person, except as specifically provided for in this Agreement. In the event of
such disclosure, or a threat of such disclosure, the parties agree that the sole
remedy shall be in a court of equity to obtain a decree of specific performance
or an injunction or temporary restraining order.
B. This confidentiality clause shall not prohibit the parties from making
disclosure as to the terms of this Agreement to their attorneys, accountants, or
employees if disclosure to those
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persons is reasonably necessary for those persons to fulfill their duties to the
parties. In the event of such authorized disclosure, the parties shall inform
such third persons of the requirement of this confidentiality clause and shall
take all reasonable steps to insure that such third persons keep the terms of
this Agreement confidential. This confidentiality clause shall not prohibit the
parties from making any necessary disclosure to any government authority to
which the parties are required to report, including by way of illustration only,
the U. S. Securities & Exchange Commission. In the event that any party receives
a subpoena or other instrument which purport to compel such party to reveal to a
third party information covered by this confidentiality agreement, such party
shall so notify the other parties in writing of such fact within a reasonable
time before delivery of the information to such third party. This provision is
intended to give the affected parties the opportunity to seek a prior
determination by a court of the need to deliver such information to the third
party.
14. CONTRACTUAL ACKNOWLEDGMENT. The parties declare and represent they
fully understand the terms of the settlement and voluntarily agree to the
aforesaid payment and settlement for the purpose of making a full compromise,
adjustment, and settlement of claims as more fully set forth herein.
It is further understood and agreed this settlement is in compromise of
doubtful and disputed claims and neither the stock purchase, the payment nor the
release is to be construed as an admission of liability on the part of any party
above-named by whom liability is expressly denied. This document contains the
entire agreement between the parties, and the terms of this Agreement are
contractual and not a mere recital.
The undersigned further states he or it has carefully read the foregoing
release and know the contents thereof, and he or it has signed the same as his
or its own free act.
If the undersigned is a corporation, it represents that it has full power
and authority to enter into this Agreement.
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15. MISCELLANEOUS PROVISIONS.
15.1 Each party to Sections 4 and 5 hereof agrees to treat this
transaction as a sale and purchase of the Microfield Stock for federal and state
income tax purposes.
15.2 All parties to this Agreement shall execute any documentation
reasonably necessary to effectuate the terms of this Agreement within seven days
of request by any party.
15.3 No amendment, change or modification of this Agreement shall be
valid, unless in writing and signed by all parties hereto.
15.4 This Agreement constitutes the entire agreement between and among the
parties, integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements
between the parties with respect to all or any part of the subject matter
hereof.
15.5 Each party to this Agreement has been advised of the necessity of
retaining counsel and has had opportunity to obtain counsel before entering into
this Agreement.
APPROVED AS TO FORM:
/s/ Xxxxxx X. XxXxxxxxx
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Xxxxxx X. XxXxxxxxx Date
Attorney for Plaintiff
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx Date
Attorney for Plaintiff
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx Date
Attorney for defendants Xxxxxx X. Jesenik, JMW Capital Partners, Inc.,
Destination Capital, LLC, Xxxxxxxxxxx Electric, Inc., Xxxxxx X. Xxxxx, Xxxxxx X.
Xxxxxx, Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxxxxx and Xxxxxxxxxxx Group LLC.
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx Date
Attorney for defendants Microfield Group, Inc., Xxxxxx X. Xxxxxx, Xxxxxxx
Xxxxxxxx and Xxxxxxxxxxx Velagio, Inc.
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SIGNATURES:
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx Date
JMW CAPITAL PARTNERS, INC.
an Oregon corporation now known as Aequitas
Capital Management, Inc.
By: /s/ Xxxxxx X. Jesenik
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Xxxxxx X. Jesenik, CEO Date
XXXXXXXXXXX GROUP LLC
an Oregon limited liability company
By: Aequitas Capital Management, Inc., its Manager
By: /s/ Xxxxxx X. Jesenik
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Xxxxxx X. Jesenik, CEO Date
MICROFIELD GROUP, INC.
an Oregon corporation
By:
-------------------------------------- ----------------------
Title: Date
------------------------------
XXXXXXXXXXX ELECTRIC, INC.
an Oregon corporation
By: /s/ Xxxxxx X. Jesenik
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Xxxxxx X. Jesenik, CEO Date
DESTINATION CAPITAL, LLC
an Oregon limited liability company
By: Aequitas Capital Management, Inc., its Manager
By: /s/ Xxxxxx X. Jesenik
-------------------------------------- ----------------------
Xxxxxx X. Jesenik, CEO Date
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XXXXXXXXXXX VELAGIO, INC.
an Oregon corporation
By:
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Title: Date
------------------------------
/s/ Xxxxxx X. Jesenik
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Xxxxxx X. Jesenik Date
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx Date
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx Date
/s/ Xxxxxx X. Xxxxxx
----------------------------------------- ----------------------
Xxxxxx X. Xxxxxx Date
/s/ R. Xxxxxxx Xxxxxx
----------------------------------------- ----------------------
R. Xxxxxxx Xxxxxx Date
/s/ Xxxxxxx Xxxxxxxx
----------------------------------------- ----------------------
Xxxxxxx Xxxxxxxx Date
/s/ Xxxxx X. Xxxxxx
----------------------------------------- ----------------------
Xxxxx X. Xxxxxx Date
/s/ Xxxxx X. Xxxxxxxxxxx
----------------------------------------- ----------------------
Xxxxx X. Xxxxxxxxxxx Date
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