MEMBERSHIP INTEREST SALE AGREEMENT
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THIS MEMBERSHIP INTEREST SALE AGREEMENT ("Agreement") is effective
December 15, 2005 (the "Effective Date"), by and among DESTINATION CAPITAL, LLC
("Destination") and XXXXXXX HOLDINGS I, LIMITED PARTNERSHIP ("THI").
RECITALS:
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A. THI is a member of Destination and owns 425.53191 Preferred
Units in Destination (the "Membership Interest").
B. Destination desires to purchase the Membership Interest and
THI desires to sell its Membership Interest to Destination on the terms and
conditions set forth below.
Now, therefore, in consideration of the foregoing, the parties agree as
follows:
AGREEMENT:
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1. Sale of Membership Interest. THI agrees to sell and
Destination agrees to purchase the Membership Interest for the sum of $427,490
(the "Purchase Price").
1.1 THI will cease to be a member of Destination
effective at the close of business on December 15, 2005.
1.2 The Purchase Price will be paid by Destination by
delivering, at Destination's option, cash or common shares of Microfield Group,
Inc. ("Microfield"). If Destination elects to deliver Microfield stock, this
payment shall be accomplished by delivery by Destination (or an affiliate of
Destination) of a certificate or certificates representing 217,000 shares of
Microfield common stock, together with duly executed stock powers, to Mellon
Investor Services, LLC, the transfer agent for Microfield common stock, or its
successor, by February 10, 2006 with instructions to immediately transfer and
deliver to THI a stock certificate evidencing the 217,000 shares to be
transferred to THI. The number of Microfield shares shall be appropriately
adjusted for stock dividends and/or splits after December 15, 2005 (if any). If
Destination elects to deliver cash, the amount to be paid on or before February
10, 2006 shall be the greater of (a) the Purchase Price or (b) the closing bid
price of Microfield common stock on February 6, 2006 (or the last trading day
prior to such date) multiplied by the number of shares of Microfield stock that
Destination would otherwise be required to deliver to THI as set forth above.
2. THI's Representations.
2.1 Disclosure. THI is familiar with the business and
properties of Destination and, in making its decision to sell the Membership
Interest, has not relied on representations or warranties of Destination or any
other person, or their agents, officers or employees. THI has had an opportunity
to review all documents, records and books pertaining to its membership interest
in Destination, obtain any additional information necessary to verify the
accuracy of all information obtained, and ask questions of and receive answers
from Destination or any persons authorized to act on its behalf concerning the
terms and conditions of this transaction.
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2.2 Title. THI has, and upon purchase thereof by
Destination pursuant to the terms of this Agreement Destination will have, good
and marketable title to the Membership Interest, free and clear of all security
interests, liens, pledges, encumbrances or other restrictions or claims, subject
only to restrictions as to marketability imposed by securities laws and other
liens, claims, debts or matters within the actual knowledge of Destination and
its subsidiaries, affiliates and key personnel.
2.3 No Outstanding Obligations. THI represents that it
has not incurred any obligations on behalf of Destination that are not now
reflected on the books and records of Destination.
3. Representations of Destination. Destination represents to THI
that upon transfer to THI of any Microfield shares under the terms of this
Agreement, THI will have good and marketable title to such Microfield shares,
free and clear of all security interests, liens, pledges, encumbrances or other
restrictions or claims, subject only to restrictions as to marketability imposed
by securities laws.
4. Miscellaneous.
4.1 Further Documents. Each of the parties hereby agrees
to execute and deliver any and all instruments or documents and to take any
further action which may be or become necessary or appropriate to give effect to
the terms of this Agreement.
4.2 Waiver. The waiver by any party of any breach or
default of the other party under this Agreement or the failure of a party to
exercise any right, power or remedy shall not operate or be construed as a
waiver of any subsequent breach or default by the other party.
4.3 Integration. This Agreement contains the entire
agreement of the parties with respect to the subject matter of this Agreement
and may be modified only by an agreement in writing signed by all parties.
4.4 Binding Effect. This Agreement is legally effective
and binding, both upon the parties and upon their respective estates, heirs,
legal representatives, successors and permitted assigns.
4.5 Governing Law. This Agreement shall be subject to and
governed by the laws of the State of Oregon.
4.6 Severability of Agreement. The parties intend that
this be a binding and enforceable agreement. If a provision or provisions of
this Agreement are invalid or unenforceable, the remainder of this Agreement
shall be valid and enforceable without such provision or provisions.
4.7 Attorney Fees. If this Agreement is placed in the
hands of an attorney due to a default in payment or performance of any of its
terms, the defaulting party shall pay, immediately upon demand, the other
party's reasonable attorney fees and collection costs, even though no suit or
action is filed thereon, and any other fees or expenses incurred by the
non-defaulting party. If litigation is instituted arising directly or indirectly
out of this Agreement, the losing party shall pay to the prevailing party the
prevailing party's reasonable attorney fees and court costs as determined by the
court, at trial or any appeal therefrom.
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4.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. Facsimile signatures shall be considered original signatures for
purposes of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
the day and year first above written.
XXXXXXX HOLDINGS I, DESTINATION CAPITAL, LLC
LIMITED PARTNERSHIP By: Aequitas Capital Management,
By: Xxxxxxx Advisors, LLC, General Partner Inc., its Manager
By: By: /s/ XXXXXX X. JESENIK
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Managing Director Xxxxxx X. Jesenik, CEO
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