AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is made this 16th day of August, 2005,
by and between ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (collectively, the "Secured
Party") and ▇▇▇▇▇ ▇. ▇▇▇, ▇▇. (the "Debtor").
WHEREAS, on February 27, 2004, the Secured Party, the Debtor, and Charys
Holding Company, Inc., a Delaware corporation and formerly known as "Spiderboy
International, Inc.," a Minnesota corporation (the "Company") executed that
certain Stock Purchase Agreement (the "Stock Purchase Agreement"); and
WHEREAS, the Stock Purchase Agreement was amended and restated on May 25,
2004; and
WHEREAS, the Stock Purchase Agreement was further amended on even date
herewith; and
WHEREAS, on February 27, 2004, pursuant to the Stock Purchase Agreement,
the Debtor executed and delivered to the Secured Party a promissory note (the
"Note"); and
WHEREAS, the Note was amended on May 25, 2004; and
WHEREAS, the Note was further amended on even date herewith; and
WHEREAS, on February 27, 2004, the Secured Party and the Debtor executed
that certain Stock Pledge Agreement; and
WHEREAS, the Debtor is the owner of 2,185,150 shares of the common stock of
the Company, par value $0.001 per share (the "Company Common Stock") and
1,000,000 shares of the Series A preferred stock of the Company, par value
$0.001 per share (the "Company Preferred Stock"); and
WHEREAS, the parties desire to amend and restate the Stock Pledge Agreement
as hereinafter provided; and
WHEREAS, all capitalized terms herein shall have the same meaning ascribed
to those terms in the Stock Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties hereto agree as follows:
1. Security Interest. The Debtor hereby acknowledges that the security
-----------------
interest granted in the Stock Pledge Agreement executed on February 27, 2004 is
hereby, renewed, extended, and continued in full force and effect to secure the
payment of the Note, as amended. The Debtor further agrees and acknowledges
that the Secured Party has and shall continue to have a security interest in the
Company Common Stock and the Company Preferred Stock and in any other shares of
the capital stock of the Company now owned or hereafter acquired by the Debtor,
all present and future issued and outstanding shares of capital stock or other
equity and/or investment securities issued by the Company, together with all
monies, income, proceeds, increases, substitutions, replacements, additions,
accessions and benefits attributable or accruing to said property, including,
but not limited to, all stock rights, rights to subscribe, liquidating
dividends, stock dividends, dividends paid in stock, new securities or other
properties or benefits for which the Debtor is or may hereafter become entitled
to receive on account of said property, and in the event that the Debtor shall
receive any of such, the Debtor shall hold same as trustee for the Secured Party
and will immediately deliver same to the Secured Party to be held hereunder in
the same manner as the properties specifically described above are held
hereunder. All property of all kinds in which the Secured Party is herein
granted a security interest, including, but not limited to, the Company Common
Stock and the Company Preferred Stock, shall hereinafter be referred to as the
"Collateral."
1
The Debtor agrees to execute such stock powers, endorse such instruments,
or execute such additional pledge agreements or other documents as may be
required by the Secured Party in order to effectively grant to the Secured Party
the security interest in the Collateral. The security interest granted hereby
is to secure the payment of any and all indebtedness, liabilities, obligations,
and duties whatsoever of the Company and/or the Debtor to the Secured Party
whether direct or whether now existing or hereafter arising, and howsoever
evidenced or acquired, and whether joint or several, including, but not limited
to, the Stock Purchase Agreement, the Note, the Consulting Agreements, and all
costs incurred by the Secured Party to enforce this Agreement or any of the
above described agreements and instruments, including but not limited to
attorney's fees and expenses (all of such obligations, indebtedness and
liabilities being hereinafter collectively referred to as the "Obligations").
2. Warranties and Covenants of the Debtor. The Debtor, for so long as
---------------------------------------
he has any duty with respect to the Obligations, hereby warrants and covenants
as follows:
(a) The security interest granted hereby will attach to the
Collateral on the date hereof.
(b) Except for the security interest granted hereby and for taxes
not yet due, the Debtor will defend the Collateral against all claims and
demands of all persons at any time claiming the same or any interest therein.
(c) The Debtor authorizes the Secured Party to file a financing
statement, if desired by the Secured Party in any applicable jurisdiction,
signed only by the Secured Party covering the Collateral, and at the request of
the Secured Party, the Debtor will join the Secured Party in executing one or
more financing statements pursuant to the Uniform Commercial Code in effect in
any such jurisdiction on the date hereof in a form satisfactory to the Secured
Party, and the Secured Party will pay the cost of filing the same, or filing or
recording the financing statements in all public offices wherever filing or
recording is deemed by the Secured Party to be necessary or desirable. It being
further stipulated in this regard that the Secured Party may also at any time or
times sign a counterpart of this Agreement signed by the Debtor and file same as
a financing statement if the Secured Party shall elect to do so.
(d) The Debtor will not sell or offer to sell or otherwise
transfer or encumber the Collateral or any interest therein.
(e) Subject to the Stock Purchase Agreement, the Debtor will keep
the Collateral free from any adverse lien, security interest, or encumbrance,
except the security interest granted hereby and for taxes not yet due.
(f) The Debtor will pay to the Secured Party all costs and
expenses, including reasonable attorney's fees, incurred or paid by the Secured
Party in exercising or protecting its interests, rights and remedies under this
Agreement in the event of default by the Debtor hereunder or under the Stock
Purchase Agreement, the Note, and the Consulting Agreements or any of the
Attachments referred to therein.
(g) The Debtor will pay all expenses incurred by the Secured Party
in preserving, defending, and enforcing this security interest in the Collateral
and in collecting or enforcing the Obligations. Expenses for which the Debtor
is liable include, but are not limited to, taxes, assessments, reasonable
attorney's fees, and other legal expenses. These expenses will bear interest
from the dates of payment at the highest rate stated in the Obligations, and the
Debtor will pay the Secured Party this interest on demand at a time and place
reasonably specified by the Secured Party. These expenses and interest will be
part of the Obligations and will be recoverable as such in all respects.
(h) The Debtor will immediately notify the Secured Party of any
change in the Debtor's name, address, or location, change in any matter
warranted or represented in this Agreement, change that may affect this security
interest, and any Event of Default.
(i) The Debtor appoints the Secured Party as the Debtor's
attorney-in-fact, effective if an Event of Default as hereinafter defined is not
cured within 30 days after receipt by the Debtor from the Secured
2
Party of notice thereof, to do any act that the Debtor is obligated to do by
this Agreement, to exercise all rights of the Debtor in the Collateral, to make
all collections, to execute any papers and instruments, and to do all other
things necessary to preserve and protect the Collateral and to make collections
and to protect the Secured Party's security interest in the Collateral.
3. General Covenants. The security interest granted hereby shall in no
-----------------
way be affected by any indulgence or indulgences, extension or extensions,
change or changes in the form, evidence, maturity, rate of interest or otherwise
of the Obligations, or by want of presentment, notice, protest, suit, or
indulgence upon the Obligations, or shall any release of any security for any of
the parties liable for the payment of the Obligations in any manner affect or
impair this Agreement, and same shall continue in full force and effect in
accordance with their terms until the Obligations have been fully paid.
Any and all securities and other properties of the Debtor heretofore, now
or hereafter delivered to the Secured Party or in the Secured Party's
possession, shall also secure the Obligations and shall be held and construed to
be a part of the Collateral hereunder to the same extent as fully described
herein.
4. Events of Default. The Debtor shall be in default under this
-------------------
Agreement upon the happening of any of the following events or conditions
(hereinafter severally referred to as an "Event of Default" and collectively
referred to as the "Events of Default"):
(a) Default by the Debtor with respect to any of the Obligations.
(b) The levy of any attachment, execution or other process against
the Debtor, the Company, or any of the Collateral that is not stayed or
dismissed within 30 days.
(c) Dissolution, termination of existence, insolvency or business
failure of the Debtor, the Company, or any endorser, guarantor or surety of the
Obligations, or commission of the act of bankruptcy by, or the appointment of a
receiver or other legal representative for any part of the property of,
assignment for the benefit of creditors by, or commencement of any proceedings
under any bankruptcy or insolvency law by or against, the Debtor, the Company or
any endorser, guarantor, or surety for the Obligations that are not stayed or
dismissed within 30 days of filing.
(d) Default in the performance of any covenant or agreement of the
Debtor or the Company to the Secured Party, whether under this Agreement, the
Stock Purchase Agreement, the Note or any of the Consulting Agreements, or any
other instrument executed in connection with said agreements or otherwise.
(e) The occurrence of any event which under the terms of any
evidence of indebtedness, indenture, loan agreement, security agreement, or
similar instrument permits the acceleration of maturity of any indebtedness of
the Company or the Debtor to the Secured Party, or to persons other than the
Secured Party, or the Secured Party receives notification that another person
has or expects to acquire a security interest in the Collateral or any part
thereof.
(f) If any warranty, covenant, or representation made to the
Secured Party by or on behalf of the Debtor or the Company proves to have been
false in any material respect when made.
(g) If any lien attaches to any of the Collateral.
5. Remedies. Upon the failure of the Debtor or the Company to cure an
--------
Event of Default within 30 days after receipt of notice from the Secured Party
of such Event of Default and at any time thereafter, at the option of the holder
thereof, any or all of the Obligations shall become immediately due and payable
without presentment or demand or any further notice to the Debtor, the Company
or any other person obligated thereon and the Secured Party shall have and may
exercise with reference to the Collateral any and all of the rights and remedies
of a secured party under the Uniform Commercial Code as adopted in the State of
California, and as otherwise granted herein or under any other agreement
executed by the Debtor, including, without limitation, the right and power to
sell at public or private sale or sales, or otherwise dispose of or utilize the
Collateral and any part or parts thereof in any
3
manner authorized or permitted under this Agreement or under the Uniform
Commercial Code as adopted in the State of California after default by the
Debtor or the Company and to apply the proceeds thereof toward the payment of
any costs and expenses and attorney's fees thereby incurred by the Secured Party
and toward payment of the Obligations, in such order or manner as the Secured
Party may elect, including, without limiting the foregoing:
(a) The Secured Party is hereby granted the right, at its option,
upon the occurrence of an Event of Default hereunder, to transfer at any time to
itself or to its nominee securities or other property hereby pledged, or any
part thereof, and to thereafter exercise all voting rights with respect to such
security so transferred and to receive the proceeds, payments, monies, income or
benefits attributable or accruing thereto and to hold the same as security for
the Obligations hereby secured or at the Secured Party's election, to apply such
amounts to the Obligations, whether or not then due, in such order as the
Secured Party may elect, or, the Secured Party may, at its option, without
transferring such securities or properties to its nominee, exercise all voting
rights with respect to the securities pledged hereunder and vote all or any part
of such securities at any regular or special meeting of the stockholders of the
Company, and the Debtor does hereby name, constitute and appoint as a proxy of
the Debtor the Secured Party, in the Debtor's name, place and stead to vote any
and all such securities, as said proxy may elect for and in the name, place and
stead of the Debtor, such proxy to be irrevocable and deemed coupled with an
interest.
(b) Sell, lease, or otherwise dispose of any of the Collateral in
accordance with the rights, remedies, and duties of a secured party under
Chapters 2 and 9 of the California Uniform Commercial Code after giving notice
as required by those chapters; unless the Collateral threatens to decline
speedily in value, is perishable, or would typically be sold on a recognized
market. The Secured Party will give the Debtor reasonable notice of any public
sale of the Collateral or of a time after which it may be otherwise disposed of
without further notice of the Debtor. In such event, notice will be deemed
reasonable if it is mailed, postage prepaid, to the Debtor at the address
specified in this Agreement at least 30 days before any public sale or 30 days
before the time when the Collateral may be otherwise disposed of without further
notice to the Debtor.
(c) Apply any proceeds from disposition of the Collateral after
default in the manner specified in Chapter 9 of the California Uniform
Commercial Code, including payment of the Secured Party's reasonable attorney's
fees and court expenses.
(d) If, after disposition of the Collateral, the Obligations
remain unsatisfied, collect the deficiency from the Debtor.
6. Voting Rights. So long as no Event of Default has occurred and
--------------
remains uncured for the applicable grace period under the Stock Purchase
Agreement, the Note and the Consulting Agreements or any of the Attachments
referred to therein, or hereunder, the Debtor shall have the right to vote all
of the shares of the Company Common Stock and the Company Preferred Stock or
items of the Collateral subject to this Agreement, and the Secured Party shall
on demand execute and deliver an effective proxy or proxies in favor of the
Debtor, whenever demand is made upon the Secured Party for such proxy or proxies
by the Debtor.
7. Payment of the Note. Simultaneously with the payment in full of the
-------------------
Note, the Secured Party shall execute and file at its own expense any and all
instruments necessary to terminate the security interest in the shares of the
Company Common Stock and the Company Preferred Stock created by this Agreement
and also execute any and all other instruments deemed reasonably necessary by
the Debtor to vest in the Debtor title in the shares of the Company Common Stock
and the Company Preferred Stock, free from any claim by the Secured Party.
8. No Usury. It is the intention of the parties hereto to comply with
---------
the usury laws of the State of California. Accordingly, it is agreed that
notwithstanding any provision to the contrary in this Agreement or in any of the
documents evidencing the Obligations or otherwise relating thereto, no such
provision shall require the payment or permit the collection of interest in
excess of the maximum permitted by law. If any excess of interest in such
respect is provided for, or shall be adjudicated to be so provided for, in this
Agreement, or any of the documents evidencing the Obligations or otherwise
relating thereto, then in such event:
(a) The provisions of this paragraph shall govern and control;
4
(b) Neither the Debtor, the Company nor their successors or
assigns, or any other party liable for the payment of the Obligations, shall be
obligated to pay the amount of such interest to the extent that it is in excess
of the maximum amount permitted by law;
(c) Any such excess interest which may have been collected shall
be, at the option of the holder of the instrument evidencing the Obligations,
either applied as a credit against the unpaid principal amount thereof or
refunded to the maker thereof; and
(d) The effective rate of interest shall be automatically subject
to reduction to the maximum lawful contract rate allowed under the usury laws of
the State of California as now or hereafter construed by any court of competent
jurisdiction.
9. Attorney's Fees. In the event that it should become necessary for
----------------
any party entitled hereunder to bring suit against the other party to this
Agreement for enforcement of the covenants herein contained, the parties hereby
covenant and agree that the party who is found to be in violation of said
covenants shall also be liable for all reasonable attorney's fees and costs of
court incurred by the other party hereto.
10. Benefit. All the terms and provisions of this Agreement shall be
-------
binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
11. Notices. All notices, requests, demands, and other communications
-------
hereunder shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage prepaid, by
facsimile, or by e-mail, if to the Secured Party, addressed c/o ▇▇. ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and if to the
Debtor, addressed to ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, ▇▇. at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. Any party hereto may change its address upon 10
days' written notice to any other party hereto.
12. Construction. Words of any gender used in this Agreement shall be
------------
held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise. In addition, the pronouns used in this Agreement shall be understood
and construed to apply whether the party referred to is an individual,
partnership, joint venture, corporation or an individual or individuals doing
business under a firm or trade name, and the masculine, feminine and neuter
pronouns shall each include the other and may be used interchangeably with the
same meaning.
13. Waiver. No course of dealing on the part of any party hereto or
------
its agents, or any failure or delay by any such party with respect to exercising
any right, power or privilege of such party under this Agreement or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
14. Cumulative Rights. The rights and remedies of any party under this
-----------------
Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
15. Invalidity. In the event any one or more of the provisions
----------
contained in this Agreement or in any instrument referred to herein or executed
in connection herewith shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the other provisions of this Agreement or any such other
instrument.
16. Time of the Essence. Time is of the essence of this Agreement.
----------------------
17. Headings. The headings used in this Agreement are for convenience
--------
and reference only and in no way define, limit, simplify or describe the scope
or intent of this Agreement, and in no way effect or constitute a part of this
Agreement.
5
18. Excusable Delay. None of the parties hereto shall be obligated to
----------------
perform and none shall be deemed to be in default hereunder, if the performance
of a non-monetary obligation is prevented by the occurrence of any of the
following, other than as the result of the financial inability of the party
obligated to perform: acts of God, strikes, lock-outs, other industrial
disturbances, acts of a public enemy, terrorists, wars or war-like action
(whether actual, impending or expected and whether de jure or de facto), arrest
or other restraint of governmental (civil or military) blockades, insurrections,
riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms,
floods, washouts, sink holes, civil disturbances, explosions, breakage or
accident to equipment or machinery, confiscation or seizure by any government of
public authority, nuclear reaction or radiation, radioactive contamination or
other causes, whether of the kind herein enumerated, or otherwise, that are not
reasonably within the control of the party claiming the right to delay
performance on account of such occurrence.
19. Incorporation by Reference. The Stock Purchase Agreement, the
----------------------------
Note, and the Consulting Agreements or any of the Attachments referred to
therein, constitute integral parts to this Agreement and are incorporated into
this Agreement by this reference.
20. Multiple 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. Electronically
transmitted copies of signed agreement shall be treated the same as original
signed agreements.
21. Controlling Agreement. In the event of any conflict between the
----------------------
terms of this Agreement, the Stock Purchase Agreement, the Note, and the
Consulting Agreements or any of the Attachments referred to therein, the terms
of the Stock Purchase Agreement shall control.
22. Law Governing. This Agreement shall be construed and governed by
--------------
the laws of the State of California, and all obligations hereunder shall be
deemed performable in San Diego County, California.
23. Perfection of Title. The parties hereto shall do all other acts
---------------------
and things that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Agreement, and to carry out the intent of
this Agreement.
24. Ratification and Republication. Except as amended by this
--------------------------------
Agreement, the parties do hereby ratify and republish the Stock Pledge
Agreement.
25. Entire Agreement. This instrument contains the entire Agreement of
----------------
the parties with respect to the subject matter hereof, and may not be changed
orally, but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
THE SECURED PARTY:
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
6
THE DEBTOR:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇, ▇▇.
7