REDEMPTION AGREEMENT
EXHIBIT 10.1
THIS REDEMPTION AGREEMENT (the “Agreement”) is entered into and effective as of April 16, 2012 (the “Effective Date”) by and between SpectrumDNA, Inc., a Delaware corporation (“SpectrumDNA”), and Xxxxx Xxxxxxxx, an individual (“Xxxxxxxx”).
Recitals
WHEREAS, Xxxxxxxx is the record and beneficial owner of (i) Thirty Million Six Hundred Fifteen Thousand (30,615,000) shares of the common stock, par value $0.001 per share (the “Common Stock”), of SpectrumDNA, and (ii) warrants to acquire One Hundred Forty-Eight Thousand Five Hundred Eighty-Six (148,586) shares of Common Stock (collectively referred to as “Xxxxxxxx’x Equity Securities”); and
WHEREAS, SpectrumDNA and Xxxxxxxx have agreed to the redemption of Xxxxxxxx’x Equity Securities in consideration for the transfer to Xxxxxxxx of certain intellectual property owned by SpectrumDNA and SpectrumDNA Studios, Inc. pursuant to the terms of a certain Assignment of Property Agreement to be entered into among SpectrumDNA, SpectrumDNA Studios, Inc. and Xxxxxxxx (the “Assignment Agreement”) and in accordance with the terms and conditions set forth in this Agreement.
Agreement
NOW, THEREFORE, the parties hereto agree as follows:
1. Redemption of Stock. Subject to the terms and conditions of this Agreement and the Assignment Agreement, SpectrumDNA shall redeem Xxxxxxxx’x Equity Securities from Xxxxxxxx, free of any liens, security interests or adverse claims of any party.
2. Consideration and Payment Terms. In consideration for the redemption and cancellation of Xxxxxxxx’x Equity Securities, SpectrumDNA will, (i) together with SpectrumDNA Studios, Inc. and Xxxxxxxx, enter into the Assignment Agreement; and (iii) pay to Xxxxxxxx the sum of seven thousand five hundred dollars ($7,500). The certificates reflecting Xxxxxxxx’x Equity Securities will be surrendered and delivered by Xxxxxxxx upon the Final Closing Date (as such term is defined in that certain Escrow Agreement dated as of February 29, 2012 among the parties hereto, SpectrumDNA Studios, Inc., Xxxxxxx Xxxxxxxxx and the Escrow Agent as defined therein (the “Escrow Agreement”)), along with duly executed stock powers with Medallion Guarantee, in exchange for the consideration set forth herein.
3. Ownership Pending Release; Irrevocable Proxy.
3.1 Pending the Final Closing Date, Xxxxxxxx shall be prohibited from selling, encumbering, assigning or transferring Xxxxxxxx’x Equity Securities, but shall continue to have ownership rights in Xxxxxxxx’x Equity Securities and shall be entitled to vote all of the shares of Common Stock owned of record and beneficially by Xxxxxxxx on all issues concerning SpectrumDNA on which shareholders are entitled to vote, subject to Section 3.2 below.
1
3.2 Xxxxxxxx agrees that he shall vote or cause to be voted (including by written consent) all shares of Common Stock owned of record and beneficially by Xxxxxxxx in favor of the transaction contemplated by the Assignment Agreement. In connection therewith, Xxxxxxxx hereby appoints Xxxxxxx Xxxxxxxxx, with full power of substitution, as lawful agent, attorney and proxy, to vote, including by written consent, the shares of Common Stock owned of record and beneficially by Xxxxxxxx in accordance with the preceding sentence. This proxy is irrevocable and coupled with an interest.
4. Representations and Warranties of SpectrumDNA. SpectrumDNA represents and warrants that (a) all corporate action on the part of SpectrumDNA necessary for the authorization, execution, delivery and performance of this Agreement and the transactions contemplated hereby has been taken, (b) no broker, finder or intermediary has been employed by SpectrumDNA in connection with this Agreement, and (c) this Agreement constitutes a valid and legally binding obligation of SpectrumDNA.
5. Representations and Warranties of Xxxxxxxx. Xxxxxxxx represents and warrants to SpectrumDNA as follows:
5.1 Xxxxxxxx has full power and authority to execute and deliver this Agreement, and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Xxxxxxxx and (assuming the due authorization, execution and delivery by SpectrumDNA hereto) this Agreement constitutes legal, valid and binding obligations of Xxxxxxxx, enforceable against Xxxxxxxx in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
5.2 Xxxxxxxx is the sole record and beneficial owner of Xxxxxxxx’x Equity Securities, has not transferred or attempted to transfer any interest in Xxxxxxxx’x Equity Securities to any person or entity, and has full power and authority to transfer and deliver Xxxxxxxx’x Equity Securities, and owns Xxxxxxxx’x Equity Securities, free and clear of all mortgages, pledges, restrictions, liens, charges, encumbrances, security interests, obligations or other claims.
5.3 Xxxxxxxx acknowledges that he has had the opportunity to ask questions of, and receive answers from SpectrumDNA, or any person acting on its behalf, concerning SpectrumDNA and its business and prospects and to obtain any additional information, to the extent possessed by SpectrumDNA (or to the extent it could have been acquired by SpectrumDNA without unreasonable effort or expense) necessary to verify the accuracy of the information received by Xxxxxxxx. Xxxxxxxx acknowledges that he is voluntarily selling Xxxxxxxx’x Equity Securities to SpectrumDNA and that the consideration therefor as reflected herein is fair. Xxxxxxxx further represents that in negotiating for and in arriving at the amount of consideration to be paid for Xxxxxxxx’x Equity Securities, Xxxxxxxx has recognized the possibility that at any time after the date hereof, the business and financial position of SpectrumDNA may substantially improve, which would be to the added or further benefit of SpectrumDNA and its stockholders and that in such event, Xxxxxxxx understands that it has no claim for any increased value with respect to Xxxxxxxx’x Equity Securities.
2
6. Miscellaneous.
6.1 Neither this Agreement nor any provisions hereof shall be modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
6.2 Any notice or communication under this Agreement must be in writing and sent (i) by mail, postage prepaid and registered or certified with return receipt requested, (ii) by overnight courier, (iii) by facsimile or email, or (iv) by delivering the same in person. Notices shall be sent to the last known addresses of the parties or to such other address or addresses as any party may designate by notice as provided above.
6.3 Each party to this Agreement shall perform any and all acts and execute and deliver any and all documents as may be necessary and proper under the circumstances in order to accomplish the intents and purposes of this Agreement and to carry out its provisions.
6.4 This Agreement shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
6.5 This Agreement shall be governed and construed under the laws of the State of Delaware.
6.6 If any provision or any portion of any provision of this Agreement shall be held to be void or unenforceable, the remaining provisions of this Agreement or the remainder of the provision held void or unenforceable in part shall continue in full force and effect.
6.7 No waiver by any party, whether express or implied, of any provision of this Agreement, or of any breach or default, shall constitute a waiver or a breach of a similar or dissimilar provision or condition at the same time or any prior or subsequent time.
6.8 Each of the parties hereto represents, warrants and covenants that it has had ample opportunity to consider entering into this Agreement and has had an opportunity to consult with counsel regarding this Agreement prior to executing the same. Xxxxxxxx understands and agrees that Xxxx Xxxxxx Xxxxx Xxx & Xxxxxxxxx, LLP, the draftsperson of this Agreement, has prepared this Agreement on behalf of the Company and is not representing Xxxxxxxx in an individual capacity in the negotiation and consummation of the transactions hereunder. The parties further agree that any rule that provides that an ambiguity within a document will be interpreted against the party drafting such document shall not apply.
6.9 This Agreement may be executed in counterparts, each of which shall be considered an original instrument, but all of which together shall be considered one and the same agreement. The counterparts may be delivered by facsimile transmission or by electronic mail in portable document format (.pdf).
6.10 In the event the Final Closing Date has not occurred on or before such date which is no later than seven (7) days following the Initial Closing Date (as such term is defined in the Escrow Agreement), this Agreement and the rights and obligations hereunder shall terminate and be of no further force and effect. In the event of termination, neither party shall be liable to the other for damages of any sort resulting solely from the termination of this Agreement in accordance with its terms.
3
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
| SPECTRUMDNA, INC. | |||
|
|
By:
|
/s/Xxxxxxx Xxxxxxxxxx | |
| Xxxxxxx Xxxxxxxxxx | |||
| Chief Financial Officer | |||
| /s/ Xxxxx Xxxxxxxx | |||
| XXXXX XXXXXXXX | |||
4
