REDEMPTION AGREEMENT
This
Redemption Agreement (the “Agreement”) is made effective
as of December 31, 2008, by and between Xxxxxxxxxxx X. Xxxxxx, an Arizona
resident (“Stockholder”), National Cash
& Credit, LLC, a Minnesota limited liability company (“NCC”), and Western
Capital Resources, Inc., a Minnesota corporation (f/k/a URON Inc.) (the “Corporation”).
INTRODUCTION
Stockholder and the Corporation have
agreed to the assignment and redemption of certain of the Stockholder’s shares
of common stock of the Corporation (the “Redemption”). Stockholder
currently serves as a director on the Corporation’s board of directors, and the
Corporation’s Chief Executive Officer, and Stockholder is therefore fully
familiar with the Corporation’s operations, results of operations and financial
condition through the date hereof. To effectuate the Redemption and
certain related transactions described herein, the parties desire to enter into
this Agreement.
AGREEMENT
Now,
Therefore, in consideration of the foregoing facts, the mutual covenants
set forth herein and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Redemption of
Shares. The Corporation hereby redeems 1,291,290 shares of
common stock of the Corporation presently held in the name of Stockholder
(the “Redeemed
Shares”), and Stockholder hereby sells and assigns to the Corporation all
of Stockholder’s rights, title to and interest in the Redeemed Shares free and
clear of any and all liens, pledges, security interests, transfer restrictions
or encumbrances of any kind. In furtherance of the Redemption,
Stockholder is executing and delivering to the Corporation, concurrently with
this Agreement, a stock power with respect to the Redeemed Shares in the form
attached hereto as Exhibit A
(the “Redeemed Shares
Assignment”).
2. Redemption
Consideration. As full payment for the Redeemed Shares, the
Corporation hereby assigns to Stockholder, and Stockholder hereby accepts, all
of the Corporation’s rights, title to and interest in and to (a) all of the
membership interest in NCC, and (b) all of its capital stock of WCR Acquisition,
Co. a Minnesota corporation, each free and clear of any and all liens, pledges,
security interests, transfer restrictions or encumbrances of any
kind. In furtherance thereof, the Corporation is executing and
delivering to Stockholder, concurrently with this Agreement, an assignment
(relating to the membership interest in National Cash & Credit, LLC) and
stock power (relating to the capital stock of WCR Acquisition Co.) in the forms
attached hereto as Exhibits B and C, respectively
(collectively, the “Redemption
Consideration Assignments”).
3. STEN Acquisition Promissory
Notes.
(a) On
or before January 23, 2009 the Corporation shall pay to NCC all amounts due and
owing under that certain promissory note of the Corporation delivered to and in
favor of STEN Corporation (“STEN”) in the principal amount
of $100,000 and identified in that certain Asset Purchase Agreement by and among
the Corporation, WCR Acquisition Co., STEN Credit Corporation, a Utah
corporation, and STEN, dated effective as of July 31, 2008 (the “STEN Purchase Agreement”), as
“Purchase Note A.”
(b) On
the date of this Agreement the Corporation shall pay to NCC six (6) months of
interest with respect to “Purchase Note B” and “Purchase Note C,” together in
the aggregate amount of $4,687.50, delivered by the Corporation to STEN in
connection with the STEN Purchase Agreement.
(c) On
the date of this Agreement, the Corporation shall pay to Xxxxxx Xxxxxx’x current
unreimbursed expenses in an amount equal to $5,322.35.
(d) NCC
agrees that it will use the funds paid to it by the Corporation pursuant to
subsections (a) and (b) of this Section 3 to make payment of the corresponding
amounts due under Purchase Note A, Purchase Note B and Purchase Note C as and
when due.
(e) The
Corporation hereby transfers, conveys, assigns and delivers to NCC all of the
Corporation’s rights in, title to and interest under (i) the STEN Purchase
Agreement, (ii) those promissory notes of the Corporation delivered in
connection with the STEN Purchase Agreement and identified in the STEN Purchase
Agreement as “Purchase Note A.” “Purchase Note B,” “Purchase Note C” and
“Purchase Note D” (collectively referred to herein as the “Assigned Notes”), and
(iii) the Alpha Omega title loan software used in the STEN and NCC
stores located in Utah and Arizona (the “Title Loan
Software”). Furthermore, the Corporation hereby delegates to
NCC all of the Corporation’s obligations under the STEN Purchase Agreement, the
Assigned Notes and the Title Software.
(f) NCC
hereby accepts the transfer, conveyance, assignment and delivery of all of the
Corporation’s rights in, title to and interest under the STEN Purchase
Agreement, the Assigned Notes and the Title Software; and hereby unconditionally
and irrevocably assumes all of Assignor’s obligations under the STEN Purchase
Agreement, the Assigned Notes and the Title Software. On or prior to
January 5, 2009, NCC will provide evidence acceptable to the Corporation that
STEN has printed or stamped a legend on the faces of the Assigned Notes clearly
indicating that the Corporation has legally delegated to NCC, and NCC has
legally assumed, all obligations under the Assigned Notes and that the
Corporation has been fully released under the Assigned Notes.
4. Banco Popular Personal
Guaranty. The Corporation will use its best efforts to cause
that certain guaranty delivered by Stockholder to Banco Popular North America
under that certain Commercial Guaranty in connection with that certain Business
Loan Agreement (and related Promissory Note), by and between Wyoming Financial
Lenders, Inc. and Banco Popular North America, dated on or about October 29,
2008 (the “Guaranty”), to be reduced to a maximum personal guarantee by
Stockholder in the amount of $1,000,000 as soon as reasonably possible following
the date hereof. The Corporation covenants and agrees that it will
take all actions necessary to have Stockholder released from all liabilities and
obligations in connection with the Guaranty no later than December 31,
2010.
5. License of Payday Software
and Support. Effective as of the date hereof and continuing
for a period of eighteen (18) months, the Corporation hereby grants to NCC a
non-transferable, royalty-free license to use the Corporation’s “Payday”
software. Under such license, NCC shall have the right to use the
Payday software and associated technical support, without payment of any
royalties or fees, on terms and conditions consistent with NCC’s existing scope
of use of the Payday software and support services as of the date
hereof.
6. Resignations. Effective
as of the date hereof, Stockholder hereby resigns his positions on the board of
directors of the Corporation and as the Corporation’s President and Chief
Executive Officer, and any other officer position which Stockholder may hold or
be deemed to hold under the Minnesota Business Corporation Act.
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7. Representations and
Warranties of Stockholder. Stockholder hereby represents and
warrants to the Corporation as set forth in the paragraphs below:
(a) Stockholder
is the record and beneficial owner of the Redeemed Shares free and clear of any
and all liens and encumbrances and, upon assignment of the Redeemed Shares
pursuant hereto, the Corporation will receive good and marketable title to such
securities free and clear of all liens and encumbrances, except those required
under federal and state securities laws;
(b) neither
the execution nor delivery of this Agreement or the Redeemed Shares Assignment,
nor the transactions contemplated or effected hereby and thereby, will
constitute a violation or default under any term or provision of any contract,
commitment, indenture or other agreement or restriction of any kind or character
to which Stockholder is bound. Stockholder has full legal power and
authority to assign and transfer the Redeemed Shares without obtaining the
consent or approval of any other person, entity or governmental
authority;
(c) Stockholder
has delivered its certificate and other instruments representing the Redeemed
Shares, duly endorsed in blank for transfer on the Corporation’s books (or an
affidavit of loss), and an executed Redeemed Shares Assignment;
(d) in
connection with the sale of the Redeemed Shares to the Corporation, Stockholder
further represents and warrants to the Corporation that
Stockholder: (i) has had the opportunity to review all relevant
information about the Corporation, including without limitation shareholder
records, minute books, financial statements, and any other information which it
desired to review in conjunction with this Agreement; (ii) is experienced and
knowledgeable in financial and business matters, and (iii) is capable of
evaluating the merits and risks of transferring the Redeemed Shares as
contemplated hereunder, including without limitation any and all business,
securities, tax and other risks; and
(e) Stockholder
has obtained and provided to the Corporation a written consent from STEN to the
assignment and delegation of the Corporation’s rights and duties for all
purposes under the STEN Purchase Agreement and the Assigned Notes, which consent
includes a representation from STEN (for the benefit of the Corporation) that
STEN has not assigned or hypothecated any of its rights under the Assigned Notes
and holds all rights to and under the Assigned Notes.
8. Representations and
Warranties of the Corporation. The Corporation hereby
represents and warrants to the Stockholder as set forth in the paragraphs
below:
(a) neither
the execution nor delivery of this Agreement or the Redemption Consideration
Assignments, nor the transactions contemplated or effected hereby and thereby,
will constitute a violation or default under any term or provision of any
contract, commitment, indenture or other agreement or restriction of any kind or
character to which the Corporation is bound;
(b) this
Agreement has been duly executed by an authorized representative of the
Corporation and, assuming the valid execution and delivery of the same by the
other parties thereto, the same are valid and binding agreements of the
Corporation, enforceable against the Corporation in accordance with their
respective terms, except as may be limited by customary enforceability
exceptions; and
(c) WCR
Acquisition Co. holds all of the assets of STEN (and its subsidiary) that were
purchased by the Corporation pursuant to the STEN Purchase
Agreement. Furthermore, the membership interest in NCC and the
capital stock of WCR Acquisition Co. being assigned to Stockholder hereunder and
pursuant to the Redemption Consideration Assignments represent all of the
ownership interests in NCC and WCR Acquisition Co. outstanding and issued in the
name of the Corporation.
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9. Indemnification. The
Stockholder and NCC agree to indemnify and hold the Corporation harmless from
and against any and all loss, damage or liability (including but not limited to
reasonable legal fees and costs) that the Corporation may incur or suffer by
reason of, or which results, arises out of or is based upon any breach of the
Stockholders’ (or NCC’s) representations, warranties, agreements or covenants
contained in this Agreement or the Assignment. Similarly, the
Corporation agrees to indemnify and hold the Stockholder and NCC harmless from
and against any and all loss, damage or liability that the Stockholder or NCC
may incur or suffer by reason of, or which results, arises out of or is based
upon any breach of the Corporation’s representations, warranties, agreements or
covenants contained in this Agreement.
10. Mutual
Release.
(a) Effective
as of 5:00 p.m. Minnesota time on March 31, 2009 (the “Release Time”), the
Corporation hereby forever discharges Xxxxxx and NCC, as well as NCC’s
principals, agents, attorneys, assigns, successors, parents, subsidiaries,
affiliates, officers, directors and employees, from all claims, causes of
action, damages, attorneys' fees, costs, disbursements and interest, and any
liabilities, known or unknown, liquidated or unliquidated, asserted or
unasserted, fixed or contingent, direct or indirect, that may exist regarding or
relating to claims that were asserted or could have been asserted by the
Corporation or any of its affiliates through the effective date of this
Agreement regarding or in connection with the business relationship between the
Corporation, NCC and Xxxxxx (collectively, “Claims,” and such release, the
“Corporation Release”); provided, however,
that the Corporation Release shall not apply with respect to any Claims with
respect to which the Corporation has provided written notice to Xxxxxx prior to
the Release Time. Such notice to Xxxxxx shall be delivered to F-9/PMB
523, 0000 Xxxx Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000 and must set forth, with
specificity, the nature, basis and extent of such Claim that is not being
released.
(b) Effective
as of the Release Time, Xxxxxx and NCC, each hereby forever discharges the
Corporation, as well as the Corporation’s principals, agents, attorneys,
assigns, successors, parents, subsidiaries, affiliates, officers, directors and
employees, from all Claims that may exist regarding or relating to Claims that
were asserted or could have been asserted by Xxxxxx or NCC or any of their
affiliates through the effective date of this Agreement regarding or in
connection with the business relationship between the Corporation, NCC and
Xxxxxx (the “Xxxxxx
Release”); provided, however,
that the Xxxxxx Release shall not apply with respect to any Claims with respect
to which Xxxxxx or NCC has provided written notice to the Corporation prior to
the Release Time. Such notice to the Corporation shall be delivered
to x/x Xxxx X. Xxxxxxxxxx, Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, XXX, 0000 Xxxxx
Fargo Center, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 and must set forth,
with specificity, the nature, basis and extent of such Claim that is not being
released.
(c) Each
of the Corporation, NCC and Xxxxxx agree to execute and deliver all documents
reasonably requested by the other side to further memorialize and implement the
mutual releases contemplated in this Section 10.
(d) For
purposes of this Section 10, notices shall be deemed to have been properly given
if hand delivered, sent by personal courier service, faxed or mailed by
registered, certified or express mail (postage prepaid), with mailed notices
being deemed given three days after deposit in the U.S. Mail and all other
notices being deemed given when actually given (subject, however, to
transmission confirmation in the case of a notice delivered by facsimile
). A party’s address for notice may be changed from time to time by
such party by notice given as provided herein.
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11. General
Provisions.
(a) This
Agreement sets forth the parties’ final and entire agreement with respect to its
subject matter and supersedes any and all prior understandings and
agreements. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota (without regard to
conflicts-of-law principles thereof) applicable to contracts made and to be
performed within such state. If any provision of this Agreement shall
be held by any court of competent jurisdiction to be illegal, invalid or
unenforceable, such provision shall be construed and enforced as if it had been
more narrowly drawn so as not to be illegal, invalid or unenforceable, and such
illegality, invalidity or unenforceability shall have no effect upon and shall
not impair the enforceability of any other provision of this
Agreement.
(b) This
Agreement may be modified or amended only by an instrument in writing signed by
the parties hereto. No delay or failure on the part of any party to
exercise any right, power or privilege hereunder shall operate as a waiver
thereof; nor shall any waiver on the part of any party of any right, power or
privilege hereunder operate as a waiver of any other right, power or privilege
hereunder. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns; provided, however, this
Agreement may not be assigned without the prior express written consent of the
other party. For the convenience of the parties and to facilitate the
execution of this Agreement, this Agreement may be executed in counterparts and
each such executed counterpart shall be deemed an original
instrument. Furthermore, the parties may execute and deliver this
Agreement by facsimile or electronically transmitted signatures and the parties
agree that the reproduction of signatures by way of facsimile or a computer
device will be treated, in all respects including validity, as though such
reproductions were executed originals. Each party to this Agreement
will, on or any time after the date hereof, execute and deliver to the other
such further documents or instruments and take such further actions as may
reasonably be requested by the other party to this Agreement to effect the
purposes hereof.
12. Dispute
Resolution. Any dispute among the parties hereto shall be
resolved in accordance with the arbitration provisions of this
Section:
(a) To
the greatest extent possible, the parties will endeavor to resolve any disputes
relating to this Agreement through amicable negotiations. Failing an
amicable settlement, any controversy, claim or dispute arising under or relating
to this Agreement, including the existence, validity, interpretation,
performance, termination or breach of this Agreement, will finally be settled by
binding arbitration before a single arbitrator (the “Arbitration Tribunal”) which
will be jointly appointed by the parties. The Arbitration Tribunal
shall self-administer the arbitration proceedings utilizing the Commercial Rules
of the American Arbitration Association; provided, however, the
American Arbitration Association shall not be involved in administration of the
arbitration. The arbitrator must be a retired judge of a state or
federal court of the United States or a licensed lawyer with at least ten years
of corporate or commercial law experience and have at least an AV rating by
Martindale Xxxxxxx. If the parties cannot agree on an arbitrator,
either the Buyer or a Stockholder may request the American Arbitration
Association to appoint an arbitrator which appointment will be
final.
(b) The
arbitration will be held in Omaha, Nebraska. Each party will have
discovery rights as provided by the Federal Rules of Civil Procedure within the
limits imposed by the arbitrator; provided, however, that all
such discovery will be commenced and concluded within 60 days of the selection
of the arbitrator. It is the intent of the parties that any
arbitration will be concluded as quickly as reasonably
practicable. Once commenced, the hearing on the disputed matters will
be held four days a week until concluded, with each hearing date to begin at
9:00 a.m. and to conclude at 5:00 p.m. The arbitrator will use all
reasonable efforts to issue the final written report containing award or awards
within a period of five business days after closure of the
proceedings. Failure of the arbitrator to meet the time limits of
this Section will not be a basis for challenging the award. The
Arbitration Tribunal will not have the authority to award punitive damages to
either party. Each party will bear its own expenses, but the parties
will share equally the expenses of the Arbitration Tribunal. The
Arbitration Tribunal shall award attorneys’ fees and other related costs payable
by the losing party to the successful party as it deems
equitable. This Agreement will be enforceable, and any arbitration
award will be final and non-appealable, and judgment thereon may be entered in
any court of competent jurisdiction.
[Signature Page
Follows]
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In
Witness Whereof, the parties have executed this Redemption Agreement to
be effective as of December 31, 2008.
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CORPORATION:
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NCC:
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National
Cash & Credit, LLC
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By:
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/s/ Xxxx Xxxxxxxx
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By:
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/s/ Xxxxxxxxxxx Xxxxxx
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Xxxx
Xxxxxxxx
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Xxxxxxxxxxx
X. Xxxxxx
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Chief
Financial Officer
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Member-Manager
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STOCKHOLDER:
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/s/ Xxxxxxxxxxx Xxxxxx
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Xxxxxxxxxxx
X. Xxxxxx
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Exhibit
A
STOCK
POWER
The
Undersigned, Xxxxxxxxxxx X. Xxxxxx, pursuant to that certain Redemption
Agreement by and among Xxxxxxxxxxx X. Xxxxxx, National Cash & Credit, LLC
and Western Capital Resources, Inc., does hereby assign, transfer and convey
unto Western Capital Resources, Inc., a Minnesota corporation (f/k/a “URON
Inc.”) (the “Corporation”), effective as of
December 31, 2008, a total of 1,291,290 shares of common stock of the
Corporation (collectively, the “Redeemed Shares”) legally and
beneficially owned by the undersigned and standing in the name of the
undersigned on the books of said Corporation, represented by Stock Certificate
No.(s). 818-5 and 852-4 and does hereby irrevocably constitute and appoint
______________________________________________________________ as his true and
lawful attorney-in-fact, with full power of substitution and re-substitution in
the premises, to transfer the Redeemed Shares on the books of the
Corporation.
Dated:
_____________
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Xxxxxxxxxxx
X. Xxxxxx
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[MEDALLION
GUARANTEE]
Exhibit
B
ASSIGNMENT
The
Undersigned, on behalf of Western Capital Resources, Inc., pursuant to
that certain Redemption Agreement by and among Xxxxxxxxxxx X. Xxxxxx, National
Cash & Credit, LLC and Western Capital Resources, Inc., does hereby assign,
transfer and convey unto Xxxxxxxxxxx X. Xxxxxx the entire membership interest of
Western Capital Resources, Inc. in National Cash & Credit, LLC, a Minnesota
limited liability company (the “Company”), including all
financial rights and governance rights associated therewith, legally and
beneficially owned by Western Capital Resources, Inc. and standing in the name
of Western Capital Resources, Inc. on the books and records of the Company
(collectively, the “Interest”). No part of the
Interest is represented by any certificate.
Dated:
_____________
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By:
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Xxxx
Xxxxxxxx
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Chief
Financial Officer
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Exhibit
C
STOCK
POWER
The
Undersigned, on behalf of Western Capital Resources, Inc., pursuant to
that certain Redemption Agreement by and among Xxxxxxxxxxx X. Xxxxxx, National
Cash & Credit, LLC and Western Capital Resources, Inc., does hereby assign,
transfer and convey unto Xxxxxxxxxxx X. Xxxxxx, effective as of December 31,
2008, a total of 1,000 shares of common stock of WCR Acquisition Co., a
Minnesota corporation (collectively, the “WCR Shares”) legally and
beneficially owned by the undersigned and standing in the name of the
undersigned on the books of WCR Acquisition Co., represented by Stock
Certificate No. 1 and does hereby irrevocably constitute and appoint
___________________________________ as its true and lawful attorney-in-fact,
with full power of substitution and re-substitution in the premises, to transfer
the WCR Shares on the books of WCR Acquisition Co.
Dated:
_____________
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Western
Capital Resources, Inc.
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By:
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Xxxx
Xxxxxxxx
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Chief
Financial Officer
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