EXHIBIT 10.10
REDEMPTION AGREEMENT
This Redemption Agreement (the "Agreement") is made and entered into effective
as of the 15th day of April, 1999, by and between OneSource Technologies, Inc.,
a Delaware corporation ("OneSource" or the "Company") and Ahlawyss Fulton and
Pamela Fulton, husband and wife, dealing with their community property (the
"Fultons").
Recitals
Whereas, as a result of the Stock Exchange Agreement executed contemporaneously
with this Agreement, the Company shall become the record and beneficial owner of
1,000 shares of Net Express, Inc. ("Net Express") $1.00 par value common stock
(the "Net Express Stock"), and
Whereas, as a result of that same Stock Exchange Agreement, the Fultons shall
become the record and beneficial owner of 727,946 shares of OneSource
Technologies, Inc. $.001 par value common stock, (the "OneSource Stock"), and
Whereas, the parties hereto each desire to provide the other with a right of
redemption of their respective shares, which right of redemption may be
exercised unilaterally by either party during the term of this Agreement, for
consideration in the form of the Stock received by them in the original
transaction;
Now Therefore, in consideration of the mutual promises and covenants contained
herein, and other valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
Agreements
1. Redemption Right of Fulton. At any time, during the term of this Agreement,
as set forth in paragraph 2 below, Fulton or the Company may require the other
to redeem the Stock received by them as the result of the Stock Exchange
Agreement. This right of redemption may be exercised by written notice signed by
the party claiming redemption, together with the tender of the Stock received by
the redeeming party with stock powers thereon duly executed, or with a separate
duly executed stock power attached which shall be in form satisfactory to the
party receiving the redeemed Stock. Upon exercise of the redemption right by
either party in accordance with the terms of this Agreement, the party receiving
notice shall redeem the Stock by tendering to the party claiming redemption the
Stock received in the Stock Exchange Agreement. The stock exchange pursuant to
this Agreement shall occur within ten (10) days of the date of the redemption
notice by Fulton.
2. Term of Agreement. The Term of this Agreement shall commence concurrently
with the execution of the Stock Exchange Agreement and shall expire at 5:00 PM
Mountain Standard Time on July 1, 1999. Notices received after the expiration of
the Agreement shall not be effective to exercise the redemption right.
3. Maintenance of Shares During Term of Agreement. The Parties, as to the shares
held by each of them respectively, agree, during the Term of this Agreement, not
to sell, pledge, encumber, hypothecate, gift, dispose of or otherwise take any
action or fail to take any action which would prevent or hinder their ability to
perform under this Agreement. Any shares exchanged under this Agreement shall be
free and clear of all liens or other encumbrances, and shall be the wholly owned
property of the party tendering such shares. So long as it maintains the
specific shares of Net Express as required by this Agreement, nothing in this
Agreement shall prohibit OneSource from entering into other Agreements with
other parties which would require preferred dividend payments or redemption of
other stock for money or other consideration not affecting the Net Express
stock.
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4. Specific Performance. If either party fails to purchase or deliver Shares as
required under this Agreement, it will be impossible to measure the money
damages proximately resulting therefrom, and the other party shall suffer
irreparable injury as a proximate result of such breach. In the event that a
party hereto institutes an action or proceeding to compel the specific
performance of this Agreement by one in default, the Parties hereto hereby waive
the claim or defense that there may exist an adequate remedy at law and agree
that injunctive relief and specific performance shall be a just and proper
remedy upon such breach.
5. Further Actions Upon Redemption. Upon Notice of Redemption by either party as
provided herein, the Parties shall take the following actions:
a) Fulton shall:
1) Resign all positions which they or he may hold with OneSource
Technologies, Inc.
2) Return all information or copies thereof or property belonging to
OneSource or its clients to OneSource.
3) Fulton shall not contact any client of OneSource with respect to
any business in competition with OneSource for a period of one (1)
year from the date of the Notice of Redemption.
b) OneSource shall:
1) Cause its executives to resign all positions which they may hold
with Net Express.
2) Return all information or copies thereof or property belonging to
Net Express or its clients to Net Express.
3) OneSource shall not contact any client of Net Express, as such
clients existed on or before April 15, 1999, for a period of one year
from the date of the Notice of Redemption.
For purposes of this Agreement, clients of OneSource shall include all clients
of OneSource as the existed prior to April 15, 1999 together with all clients as
they are developed by OneSource or Net Express after that date.
c) Fulton shall not be required to return any salary earned as an employee
of OneSource or Net Express after April 15, 1999 through the termination of this
Agreement. The Employment Agreement, executed as of the same date as this
Agreement, shall be terminated as of the date of redemption under this
Agreement.
d) Fulton and OneSource shall make arrangements at the date of termination
for repayment of any loans or guarantees from OneSource to Net Express. In the
event an alternative Agreement is not reached, any loans shall be repaid within
six (6) months of the date of Redemption.
6. Modification and Waiver. The Parties may amend, modify or supplement this
Agreement in such manner as may be agreed upon by all of the parties in writing
at any time. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect such party's
rights at a later date to enforce the same. No waiver by any party of a breach
of any term, representation, or warranty contained in this Agreement, whether by
conduct or otherwise, in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of such condition, breach or waiver
of any condition or of the breach of any other term, covenant, representation or
warranty of this Agreement.
7. Notices. Any notices or other communications required or permitted hereunder
shall be deemed to have been duly given when delivered personally, sent by
registered or certified mail or postage prepaid (return receipt requested), to
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the party to whom such notice or communication is addressed at the following
addresses (or at such other address for a party as shall be specified by like
notice:
Fulton: Ahlawyss Fulton
Pamela Fulton
9201 North 29th Avenue
Suite 302
Phoenix, Arizona 85051
The Company: OneSource Technologies, Inc.
2329 West Mescal
Suite 304
Phoenix, Arizona 85029
Copy to: James A. Deer
16060 North 81st Street
Suite 1
Scottsdale, Arizona 85260
8. Expenses. The Company and Fulton shall bear their own expenses in connection
with this Agreement.
9. Further Assurances. Fulton and the Company agree that at any time and from
time to time after the date hereof they will execute and deliver to any other
party such further instruments or documents as may reasonably be required to
give effect to the transactions contemplated hereunder.
10. Non-Assignment. This Agreement and the Stock held subject to its terms shall
not be assignable by any party without the written consent of all other parties
hereto. Subject to the foregoing, this Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of the parties hereto.
11. Counterparts. This Agreement may be executed in any number of counterparts
with the same effect as if the signatures to each counterpart were upon the same
instrument.
12. Entire Agreement/Captions. This Agreement and the attachments to it set
forth the entire understanding of Fulton and the Company and supersede all prior
agreements, arrangements and communications, whether oral or written, between or
among them with respect to the subject matter hereof. Captions appearing in this
Agreement are for convenience of reference only and shall not be deemed to
explain, limit or amplify the provisions hereof.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Arizona.
14. Severability. If any provisions contained in this Agreement shall for any
reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not invalidate the entire
Agreement. Such provisions shall be deemed to be modified to the extent
necessary to render it valid and enforceable and if no such modification shall
render it valid and enforceable then the Agreement shall be construed as if not
containing such provision.
15. Time of the Essence. Time is of the essence with respect to this Agreement
and all matters covered thereby.
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16. No Third Party Beneficiaries. Nothing herein expressed or implied is
intended to confer upon any person, other than the Parties hereto or their
respective permitted assigns, successors, heirs and legal representatives, any
rights remedies, obligations or liabilities under or by reason of this
Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed as of the date first herein above written.
One Source Technologies, Inc.,
a Delaware corporation
By: /s/ Donald Gause
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Its: Corp. Secretary
/s/ Ahlawyss Fulton
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Ahlawyss Fulton
/s/ Pamela Fulton
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Pamela Fulton
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