EXHIBIT 10(K)
AGREEMENT
This Agreement ("Agreement") is made as of this day of February, 1997 by
and between CONSOLIDATED FINANCIAL MANAGEMENT, INC., an Arizona Corporation,
(hereinafter "CONSOLIDATED") and THERMACELL TECHNOLOGIES, INC., a Florida
Corporation, (hereinafter "THERMACELL").
R E C I T A L S
A. WHEREAS, CONSOLIDATED is the maker of that certain Promissory Note,
(hereinafter the "Note"), dated December 5, 1995 in the amount of two hundred
thousand ($200,000) dollars;
B. WHEREAS, THERMACELL is the Payee of said Note;
C. WHEREAS, CONSOLIDATED is the Pledgor under that certain Pledge Agreement
dated December 5, 1995 in which it pledged sixty thousand (60,000) shares of
Meadow Valley Corporation stock as security for the obligations under the Note;
D. WHEREAS, THERMACELL is the Pledgee of that certain Pledge Agreement;
E. WHEREAS, THERMACELL is the maker of two Promissory Notes dated November
29, 1995. One, executed in the amount of one hundred thousand ($100,000) dollars
in favor of Xxxxxx X. Xxxxx as holder; and one, executed in the amount of two
hundred thousand ($200,000) dollars in favor of Xxxxxxx Xxxx as holder, the
("Third Partry Notes");
F. WHEREAS, CONSOLIDATED has acquired all rights, title and interest into
the Third Party Notes;
G. WHEREAS, as a result of a dispute regarding the Note, the Stock, and the
Third Party Notes, an action entitled CONSOLIDATED FINANCIAL MANAGEMENT, INC.,
AN ARIZONA CORPORATION, PLAINTIFF V. THERMACELL TECHNOLOGIES, INC., A FLORIDA
CORPORATION, DEFENDANT, bearing Maricopa County Superior Court cause # CV
97-90292 (The "ACTION") was commenced;
H. WHEREAS, in the action CONSOLIDATED has obtained a Temporary Restraining
Order enjoining THERMACELL from selling, reselling, assigning, transferring,
conveying or delivering the 60,000 shares of Meadow Valley Corporation Stock
shares to any other person or entity other than CONSOLIDATED;
I. WHEREAS, prior to the action, THERMACELL obtained a replacement
certificate bearing its name pertaining to the 60,000 shares of Meadow Valley
Corporation Stock.
J. WHEREAS, for purposes of clarification in this document, "Business Day"
shall mean a calendar day other than a Saturday, Sunday of other day on which
banks in Phoenix, Arizona, are required to close;
K. WHEREAS, by this agreement, CONSOLIDATED and THERMACELL exchange certain
promises and agree to perform certain acts to settle the ACTION.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. INCORPORATION. Recitals A through K are incorporated herein by
reference.
2. METHOD OF SETTLEMENT.
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2.1 THERMACELL shall deposit with Xxxxx Xxxxxx located at 000 Xxxx Xxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx, the replacement certificate it
obtained regarding the 60,000 shares of Meadow Valley Corporation stock.
Said replacement certificate shall either be endorsed in blank or
accompanied by an executed stock power that will allow CONSOLIDATED to
obtain a successor certificate issued in its name. Accompanied with the
replacement certificate issued in the name of THERMACELL endorsed in blank
and/or the endorsed stock power shall be an instructional letter to Xxxxx
Xxxxxx, (the form and content which is attached hereto as Exhibit "A"),
instructing Xxxxx Xxxxxx that they are not to release the replacement
certificate issued to THERMACELL (and/or the executed stock power) to
CONSOLIDATED until THERMACELL through its Attorney Xxxxxxx Xxxxxx notifies
Xxxxx Xxxxxx that CONSOLIDATED has complied with the obligations as
prescribed in paragraph 2.2 herein.
2.2 Upon notification by the Xxxxx Xxxxxx, Clearwater Florida office
that it has received the replacement certificate issued in the name of
THERMACELL (that is either endorsed in blank or accompanied by an
appropriate stock power), CONSOLIDATED shall within two (2) business day's
notification from Xxxxx Xxxxxx, send the sum of one hundred thousand
($100,000.00) dollars wired, on behalf of THERMACELL as follows:
Republic Bank
POB 7017
Xxxxxxxxxx, Xxxxxxx 00000
Telephone 813/000-0000 (ext 296)
ABA #000000000
Account to
Credit: Johnson, Blakely, Pope, Bokor, Xxxxxx & Xxxxx-Trust Account
Account Number: 0018022106
2.3 Until such time that the transaction stated in paragraphs 2.1 and
2.2 are completed, the Temporary Restraining Order that is currently in
effect in the ACTION shall remain in full force and effect and CONSOLIDATED
shall continue to be required to maintain the ten thousand ($10,000.00)
dollar bond. Once the transactions in paragraphs 2.1 and 2.2 are complied
with by the parties, CONSOLIDATED will cause to have filed the Notice of
Dismissal with Prejudice, the form and content of which is attached hereto
as Exhibit "B". The parties understand and agree that the dismissal of the
ACTION with prejudice does not in any way limit or restrict the rights of
either party to this Agreement and any attachment hereto including but not
limited to the right to bring an action in law or in equity to enforce that
party's rights under this Agreement.
2.4 In connection with this Agreement, THERMACELL shall deliver to
CONSOLIDATED the original Promissory Note dated December 5, 1995, and the
original Pledge and Security Agreement dated December 5, 1995 and delineate
that each document is conceled and the Note is paid in full.
2.5 THERMACELL shall also deliver to CONSOLIDATED the original Third
Party Notes. Consolidated will in turn delineate that each Third Party Note
is cancelled and return the Third Party Notes to THERMACELL.
2.6 If the original Note, Pledge and Security Agreement and/or Third
Party Notes cannot be located, each party will execute any and all necessary
documents to conform with the requirements of 2.4 and 2.5.
2.7 Upon execution of this Agreement, THERMACELL shall also execute and
deliver a new Promissory Note in the sum of two hundred fifty eight
thousand, seven hundred eighty nine ($258,789.00) dollars in favor of
CONSOLIDATED, the form and content of which is attached hereto as Exhibit
"C". THERMACELL understands and agrees that CONSOLIDATED shall have the
right to assign this new Promissory Note if it so desires.
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3. REPRESENTATIONS AND WARRANTIES OF THERMACELL. So long as this Agreement
is in effect, THERMACELL represents, warrants and agrees as follows:
3.2 THERMACELL represents and warrants to CONSOLIDATED that the 60,000
shares of Meadow Valley Corporation stock is owned free and clear of all
claims, mortgages, pledges, liens and other encumbrances of any nature
whatsoever, except (i) any liens and restrictions set forth herein, and (ii)
any restrictions pursuant to Rule 144 of the Securities Act of 1933, as
amended (the "Act"), or any applicable state securities laws.
4. REPRESENTATIONS AND WARRANTIES OF CONSOLIDATED. So long as this
Agreement is in effect, CONSOLIDATED represents, warrants and agrees as follows:
4.1 CONSOLIDATED represents and warrants to THERMACELL that it has
acquired all right, title and interest into the Third Party Notes and is the
lawful titleholder of said notes. Attached hereto and incorporated herein as
Exhibits "D" and "E" are copies of the Assignments executed by Xxxxxxx Xxxx
on the Lang Third Party Note and Xxxxxx Xxxxx on the Xxxxx Third Party Note,
evidencing their assignment of said notes to CONSOLIDATED.
5. RELEASES.
5.1 THERMACELL shall and does hereby relieve, release, and discharge
CONSOLIDATED, its respective officers, directors, representatives, agents,
attorneys, employees, administrators, sureties, successors, heirs and
assigns, and each of them, and the heirs, legatees, devisees, executors,
trustees, administrators, successors and assigns of any such persons and
entities, of and from any and all claims, debts, abilities, demands,
obligations, promises, acts, agreements, costs, expenses (including but not
limited to attorneys' fees), damages, actions, causes of action, judgments,
executions and attachments (hereinafter referred to as "released claims"),
whether now known or unknown, suspected or unsuspected, based on, arising
out of, or in connection with the Action, save and except any obligations
created under this Agreement.
5.2 CONSOLIDATED, shall and does hereby relieve, release, and discharge
THERMACELL, its respective officers, directors, representatives, agents,
attorneys, employees, administrators, sureties, successors, heirs and
assigns, and each of them, and the heirs, legatees, devisees, executors,
trustees, administrators, successors and assigns of any such persons and
entities, of and from any and all claims, debts, abilities, demands,
obligations, promises, acts, agreements, costs, expenses (including but not
limited to attorneys' fees), damages, actions, causes of action, judgments,
executions and attachments (hereinafter referred to as "released claims"),
whether now known or unknown, suspected or unsuspected, based on, arising
out of, or in connection with the Action, save and except any obligations
created under this Agreement.
6. MISCELLANEOUS.
6.1 ENTIRE AGREEMENT AND WAIVER. This AGREEMENT contains the entire
agreement between the parties hereto and supersedes all prior and
contemporaneous agreements, arrangements, negotiations and understandings
between the parties hereto, relating to the subject matter hereof. There are
no other understandings, statements, promises or inducements, oral or
otherwise, contrary to the terms of this AGREEMENT. No supplement,
modification, or amendment of any term, provision or condition of this
AGREEMENT shall be binding unless executed in writing by all parties. No
waiver of any term, provision, or condition of this AGREEMENT whether by
conduct or otherwise, in any one or more instances, shall be deemed to be,
or shall constitute, a waiver of any other provision hereof, whether or not
similar, nor shall such waiver constitute a continuing waiver, and no waiver
shall be binding unless executed in writing by the party making the waiver.
6.2 EXHIBITS. All exhibits attached hereto and referred to herein are
an integral part of this AGREEMENT and are incorporated herein by reference
hereby.
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6.3 REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties contained in this AGREEMENT, in any attachment hereto, or any
certificate delivered in connection herewith, shall be considered a material
warranty and representation which was made as a substantial inducement to
the execution of this AGREEMENT and any breach of any such representation
and warranty shall be considered a material breach of this AGREEMENT.
6.4 SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND COVENANTS. All
statements contained in any exhibit, document, certificate or other
instrument delivered by or on behalf of any party hereto in connection with
the transactions contemplated hereby shall be deemed to be representations
and warranties made pursuant to this AGREEMENT by such party. The
representations, warranties, covenants and agreements contained in this
AGREEMENT and continue from the date of this AGREEMENT.
6.5 INTERPRETATIONS AND DEFINITIONS. The parties agree that each party
and its counsel have reviewed and revised this AGREEMENT and that any rule
of construction to the effect that ambiguities are to be resolved against
the drafting party shall not apply in the interpretation of this AGREEMENT.
In this AGREEMENT whenever the context so requires, the gender includes the
neuter, feminine and masculine and the number includes the singular and the
plural and the words "person" and "party" include an individual,
corporation, partnership, firm, trust or association.
6.6 HEADINGS. The subject headings of articles, sections and
paragraphs in this AGREEMENT are included solely for purposes of convenience
and reference only, and shall not be deemed to explain, modify, limit,
amplify, or aid in the meaning, construction or interpretation of any of the
provisions of this AGREEMENT.
6.7 RELATIONSHIPS. Nothing contained in this AGREEMENT shall be deemed
or construed by the parties or by any third person to create the
relationship of principal and agent or of partnership or of joint venture or
any association between or among the parties hereto.
6.8 PARTIES IN INTEREST. Nothing in this AGREEMENT whether expressed
or implied, is intended to confer any rights or remedies under or by reason
of this AGREEMENT on any persons other than the parties to it and their
respective heirs, representatives, successors and permitted assigns, nor is
anything in this AGREEMENT intended to relieve or discharge the obligations
or liabilities of any third persons to any party to this AGREEMENT, nor
shall any provision hereof give any third persons any right of subrogation
against or action over any party to this AGREEMENT.
6.9 GOVERNING LAW. It is the intention of the parties that the
internal laws, and not the laws of conflicts, of the State of Arizona shall
govern the validity of this AGREEMENT, the construction of its terms and the
interpretation of the rights and duties of the parties. Jurisdiction and
venue for all actions related to this AGREEMENT shall be in the Superior
Court of Maricopa County, Phoenix, Arizona.
6.10 REMEDIES NOT EXCLUSIVE AND WAIVER. No remedy conferred by any of
the specific provisions of this AGREEMENT is intended to be exclusive of any
other remedy and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder of now or hereafter existing
at law or in equity or by statute or otherwise. The election of any one or
more remedies shall not constitute a waiver of the right to pursue other
available remedies.
6.11 ATTORNEYS' FEES. In any action at law or in equity to enforce any
of the provisions or rights under this AGREEMENT, the unsuccessful party to
such litigation, as determined by the Court in a final judgment or decree,
shall pay the prevailing party or parties all costs, expenses and reasonable
attorneys' fees incurred herein by such party or parties (including without
limitation such costs, expenses and fees on any appeal), and if such
prevailing party shall recover judgment in any such action or proceeding,
such costs, expenses and attorneys' fees shall be included in as part of
such judgment.
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6.12 NOTICES. All notices, requests, demands or other communications
("notices") under this AGREEMENT shall be in writing and shall be either
delivered personally to the party to whom notice is to be given, mailed by a
reputable overnight courier service or mailed in the United States mail,
first class, postage prepaid, registered or certified, return receipt
requested and properly addressed as follows:
(a) If to CONSOLIDATED:
Consolidated Financial Management, Inc.
0000 X. Xxxxxx Xxxx, Xxxxx #000
Xxxxxxxxxx, Xxxxxxx 00000
cc: Attorney C. Xxxxxxx Xxxxxxxx, III
0000 X. Xxxxxxxxx, Xxxxx #0
Xxxxx, Xxxxxxx 00000
(b) If to THERMACELL:
Thermacell Technologies, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx
cc: Attorney Xxxx Xxxxxx
000 Xxxxxxxx Xxxxxx
XXX 0000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Any notice which is personally delivered shall be deemed to be given
upon the date of delivery. Any notice which is mailed by a reputable
overnight courier service shall be deemed to be given on the day following
deposit with such overnight courier service. Any notice which is mailed
shall be deemed to be given three days after the deposit of same into the
United States mail, as above provided. Any person named above may change the
address to which notices are sent to it by giving written notice thereof to
all other persons referred to above in the manner provided above.
6.13 TIME IS OF THE ESSENCE OF THIS AGREEMENT. Time is of the essence
of this AGREEMENT. This AGREEMENT shall be binding upon the heirs, personal
representatives, executors, administrators, successors, and assigns of the
respective parties hereto.
6.14 SEVERABILITY. Should any part, term or provision of this
Agreement or any document required herein to be executed be declared
invalid, void or unenforceable, all remaining parts, terms and provisions
hereof shall remain in full force and effect and shall in no way be
invalidated, impaired or affected thereby.
6.15 COUNTERPARTS. This AGREEMENT may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, said parties have hereunto set their hands and seals the
day and year above written.
CONSOLIDATED FINANCIAL
MANAGEMENT INC.
By: /s/ X.X. XXXXXX
--------------------------------------
X.X. Xxxxxx
PRESIDENT
THERMACELL TECHNOLOGIES, INC.
By:
--------------------------------------
Xxxx Pidorenko
PRESIDENT
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