REDEMPTION AGREEMENT
Exhibit
10.9
This Redemption Agreement (this "Agreement"),
effective as of December 31, 2009 (the "Effective Date"), is
between WS Technologies LLC, dba Windswept Technologies, an Oregon limited
liability company (the "Company"), and
CarePayment, LLC, an Oregon limited liability company ("Seller").
The parties agree as
follows:
1. Redemption of
Units. Seller hereby sells, transfers, assigns and conveys
43.5 of the Units of the Company (the "Redeemed Units"), and
the Company hereby purchases and redeems the Redeemed Units from Seller (the
"Redemption"). As
of the Effective Date, and without any further action, Seller will have no
ownership interest in the Redeemed Units, and the Redeemed Units shall be
automatically cancelled and no longer outstanding. As of the
Effective Date, Seller will own 0.5 Units in the Company.
2. Redemption
Consideration. Simultaneously with the execution of this
Agreement, the Company will transfer, assign and convey to Seller 400,000 shares
of Series D Preferred Stock (the "Series D Preferred")
of microHelix, Inc., an Oregon corporation ("microHelix"), and
warrants to purchase 65,100,917 shares of Class B Common Stock of
microHelix at an exercise price of $0.001 per share (the "Warrants"). Simultaneously
with the execution and delivery of this Agreement, the Company will deliver (i)
certificates evidencing the Series D Preferred, together with a fully executed
stock power to evidence the transfer of the Series D Preferred to Seller;
and (ii) a fully executed transfer of warrant to evidence the transfer of
the Warrants to Seller.
3. Representations and
Warranties.
3.1 Seller Representations and
Warranties. Seller hereby represents and warrants to the
Company as follows:
(a) Seller
holds of record and is the sole beneficial owner of, and has good, valid and
marketable title to the Redeemed Units being sold hereunder free and clear of
any restrictions on transfer, liens, charges, security interests, taxes, claims,
options, warrants, purchase rights, contracts, commitments, demands or other
encumbrances of any nature whatsoever. Seller has the right to
transfer to the Company complete and absolute legal and beneficial title to, and
complete and absolute rights and interests in, the Redeemed Units being sold
hereunder. Seller is not a party to any option, warrant, purchase
right or other contract or commitment that could require Seller to sell,
transfer or otherwise dispose of any of the Redeemed Units, other than this
Agreement.
(b) This
Agreement has been duly and validly executed and delivered by Seller and
constitutes the valid and binding obligation of Seller, enforceable in
accordance with its terms except as such enforceability may be limited by
principles of public policy and subject to the laws of general application
relating to bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable
remedies.
(c) Neither
the execution and the delivery of this Agreement, nor the consummation of the
Redemption, will (i) violate any statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge or other restriction of any government,
governmental agency, or court to which Seller is subject or, (ii) conflict with,
result in a breach of, constitute a default under or require any notice under
any agreement or other arrangement to which Seller is a party.
(d) Seller
has made its decision to sell such Redeemed Units to the Company based on his
own investigations and analysis, and has not relied on any statements,
representations or warranties from the Company except as set forth in this
Agreement. Seller is not acquiring the Series D Preferred or the
Warrants with a view to or for sale in connection with any further distribution
thereof within the meaning of the Securities Act of 1933, as
amended.
3.2 Company Representations and
Warranties. The Company hereby represents and warrants to
Seller as follows:
(a) The
Company has all requisite limited liability company power and authority to enter
into and perform this Agreement and to consummate the Redemption. The
execution, delivery and performance of this Agreement and the consummation of
the Redemption have been duly authorized by all necessary action on the part of
the Company This Agreement has been duly and validly executed and
delivered by the Company and constitutes the valid and binding obligation of the
Company, enforceable in accordance with its terms except as such enforceability
may be limited by principles of public policy and subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies.
(b) Neither
the execution and the delivery of this Agreement, nor the consummation of the
Redemption, will (i) violate any statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge or other restriction of any government,
governmental agency, or court to which the Company is subject or, (ii) conflict
with, result in a breach of, constitute a default under or require any notice
under any agreement or other arrangement to which the Company is a
party.
(c) The
Company has good, valid and marketable title to the Series D Preferred and
the Warrants being transferred hereunder, free and clear of any restrictions on
transfer, liens, charges, security interests, taxes, claims, options, warrants,
purchase rights, contracts, commitments, demands or other encumbrances of any
nature whatsoever. The Company has the right to transfer to Seller
complete and absolute legal and beneficial title to, and complete and absolute
rights and interests in, the Series D Preferred or the
Warrants. The Company is not a party to any option, warrant, purchase
right or other contract or commitment that could require the Company to sell,
transfer or otherwise dispose of the Series D Preferred or the Warrants, other
than this Agreement.
4. General
Provisions.
4.1 Further
Assurances. The parties will cooperate in taking such further
action and sharing such additional information as may be appropriate to carry
out the transactions contemplated by this Agreement.
4.2 Successors and
Assigns. This Agreement will be binding upon and will inure to
the benefit of the parties and their respective successors and permitted
assigns. The foregoing notwithstanding, neither party will be
permitted to assign its rights or delegate its obligations under this Agreement
to another party without the prior written consent of the other party to this
Agreement.
4.3 Alterations and
Waivers. The waiver, amendment or modification of any
provision of this Agreement or any right, power or remedy under this Agreement,
whether by agreement of the parties or by custom, course of dealing or trade
practice, will not be effective unless in writing and signed by the party
against whom enforcement of such waiver, amendment or modification is
sought. No failure or delay by either party in exercising any right,
power or remedy with respect to any of the provisions of this Agreement will
operate as a waiver of such provisions with respect to such
occurrences.
4.4 Governing Law. This
Agreement will be construed, governed and enforced in accordance with the laws
of the State of Oregon, without regard to its choice of law
provisions.
4.5 Integration and Entire
Agreement. This Agreement and the exhibits and schedules and
other documents referred to in this Agreement set forth the entire understanding
between the parties and supersede all previous and contemporaneous written or
oral negotiations, commitments, understandings, and agreements relating to the
subject matter of this Agreement and merge all prior and contemporaneous
discussions between the parties.
4.6 Counterparts and
Delivery. This Agreement may be executed in
counterparts. Each counterpart will be considered an original, and
all of them, taken together, will constitute a single Agreement. This
Agreement may be delivered by facsimile or electronically, and any such delivery
will have the same effect as physical delivery of a signed
original. At the request of any party, the other party will confirm
facsimile or electronic transmission signatures by signing an original
document.
4.7 Definitions. Whenever
used in this Agreement, (a) the term "including" will be deemed to mean
"including without limitation", (b) the term "person" will be deemed to mean any
natural person, corporation, limited liability company, partnership or other
entity, and (c) the terms "will" and "shall" have the same meaning.
4.8 Attorney Fees. In
the event suit or action is instituted to interpret or enforce this Agreement,
the prevailing party will be entitled to recover its attorney's fees, including
those incurred on appeal, as determined by the court or
arbitrator.
4.9 Specific
Performance. The parties acknowledge they would be irreparably
damaged if any of the provisions of this Agreement are not performed in
accordance with their specific terms and that monetary damages would provide an
inadequate remedy. Accordingly, in addition to any other remedy at
law or in equity, the nonbreaching party will be entitled to injunctive relief
to prevent breaches of this Agreement and specifically to enforce this Agreement
without the need for posting any bond or other security.
4.10 Rules of
Construction. The parties have been represented by separate
counsel during the negotiation and execution of this Agreement and, therefore,
waive the application of any law regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be construed
against the parties drafting such agreement or document.
[Signatures
on following page]
IN
WITNESS WHEREOF, the parties have executed this Redemption Agreement as of the
Effective Date.
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COMPANY:
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WS
TECHNOLOGIES LLC, dba Windswept Technologies
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By
microHelix, Inc., its Manager
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By
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/s/ Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx
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Secretary
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SELLER:
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CAREPAYMENT,
LLC
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By
Aequitas Capital Management, its Manager
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By
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/s/ Xxxxxx X. Jesenik
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Xxxxxx
X. Jesenik,
President
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