EXHIBIT 10.22
AGREEMENT REGARDING PUT OPTION
This Agreement Regarding Put Options (the "Agreement") is made as of
May 8, 2007, by and among Spare Backup, Inc. (the "Company"), Xxxxxxxx Xxxx,
Inc. (the "Stockholder") and First Capital Holdings International, Inc.
("FCHI").
RECITALS OF FACT
The Company and the Stockholder are parties to the Common Stock and
Warrant Purchase Agreement dated as of August 27, 2004, as modified by Amendment
No. 1 thereto dated as of November 2, 2004, and the Settlement Agreement dated
as of December 9, 2005, and the Amendment to Settlement Agreement (all of which
are collectively referred to as the "Purchase Agreement").
The Stockholder acquired 1,000,000 shares of the Common Stock of the
Company from the Company at each of the first two closings held under the
Purchase Agreement (the "Shares"). Pursuant to the Purchase Agreement, the
Company has granted to the Stockholder the right to require the Company to
repurchase the Shares on terms and conditions specified in the Purchase
Agreement (the "Put Option Rights").
The Company has registered the Shares on Registration Statement No.
33-123096 on Form S-3 which is now effective with the Securities and Exchange
Commission (the "Registration Statement"). The Stockholder has sold 382,772 of
the Shares pursuant to the Registration Statement and continues to hold the
remaining 1,617,228 Shares. The Stockholder holds two stock certificates
representing the Shares, one representing 1,000,000 Shares and the other
representing 617,228 Shares.
The Stockholder has exercised the Put Option Rights with respect to the
1,617,228 Shares that it continues to hold. In partial satisfaction of the Put
Option Rights, the Company has made payment to the Stockholder in the amount of
$1,250,000, $1,150,000 of which was wired to the Stockholder in April of 2007
and the other $100,000 of which had previously been paid to the Stockholder.
The parties have agreed to complete the transaction relating to the Put
Option Rights by taking the actions required by this Agreement. In addition, the
Stockholder and FCHI have agreed, as set forth below, that upon the conclusion
of the actions required by this Agreement, they shall each release the Company
from any further "put rights" to which they may be entitled.
NOW, THEREFORE, IT IS HEREBY AGREED:
1. The Company has agreed to pay, and has paid, to the Stockholder the
amount of $1,250,000 in cash, the receipt of which is hereby acknowledged by the
Stockholder. The Stockholder hereby agrees to transfer to the Company 331,336
Shares of its Common Stock and to pay to the Company $7,500 in cash to cover
costs of the Company with respect to the matters covered by this Agreement. The
parties shall complete the transaction by taking the following steps:
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(a) Within two (2) business days after the execution and
delivery of this Agreement, the Company will execute irrevocable instructions to
its transfer agent in the form of Exhibit A attached hereto, deliver the
executed instructions to its transfer agent and provide written notice, by email
or otherwise, to the Stockholder, or its attorney, Xxxxx X. Xxxxx, that the
instructions have been delivered. The Company represents and warrants to the
Stockholder that the name and address of its transfer agent set forth on Exhibit
A are correct.
(b) Within two (2) business days of the receipt of the notice
required by Section 1(a), the Stockholder will deliver to the Company's transfer
agent by FedEx or other overnight courier, at the address set forth on Exhibit
A, the certificate that it holds representing 617,228 of the Shares together
with a stock power executed by the Stockholder directing the transfer of 331,336
of the Shares to the Company and provide written notice, by email or otherwise,
to the Company, or its attorney, Xxxxx X. Xxxxxxx, that the certificate and the
stock power have been delivered.
(c) Following receipt of the notice required by Section 1(b),
the Company shall cause its transfer agent to cancel 331,336 of the Shares
represented by the certificate and to deliver to the Company's attorney, Xxxxx
X. Xxxxx, at his address as set forth on Exhibit A, within five (5) business
days of its receipt of the certificate, a new certificate for 285,892 Shares
issued in the name of the Stockholder and bearing no restrictive legends.
(d) Within four (4) business days of its receipt of the new
certificate, the Stockholder will deliver to the Company by FedEx or other
overnight courier its check, payable to the Company, in the amount of $7,500.
2. The parties agree that both the 285,892 Shares to be represented by
the new certificate and the 1,000,000 Shares represented by the certificate
retained by the Stockholder will continue to be covered by the Registration
Statement.
3. Upon the satisfaction by the parties of their obligations under
Sections 1(a) through 1(c), the obligations of the parties with respect to the
Put Option Rights shall be deemed satisfied in full (except that the Stockholder
will be obligated to make the payment required by Section 1(d)), and the
Stockholder shall have full title to the 1,285,892 Shares that it has retained.
In addition, effective upon the satisfaction of the obligations of the Company
and its transfer agent under Sections 1(a) and 1(c), the Stockholder and FCHI
hereby waive, relinquish and release the Company from any and all remaining
contractual rights that either of them may have to require the Company to
purchase shares of its Common Stock from them. Other agreements in effect
between the parties shall not be affected by this Agreement and shall remain in
full force and effect.
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IN WITNESS WHEREOF, the parties cause this Agreement to be executed on
their behalf as of the date first set forth above.
XXXXXXXX XXXX, INC.
By: /s/ Xxxxxxxx Magistrate
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Its Director
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FIRST CAPITAL HOLDINGS INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------
Its Director
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SPARE BACKUP, INC.
By: /s/ Cery Perle
--------------
Its CEO
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Exhibit A
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From: Spare Backup, Inc.
To: Xxxxxxxx Stock Transfer, Inc.
0000 X 00xx Xx, Xxx X
Xxxxxxxxxx, XX 00000
Spare Backup, Inc. (the "Company") expects that you will receive from Xxxxxxxx
Xxxx, Inc. or its attorneys, Xxxxxxxx Xxxxxx Xxxxxxx & Hampton, LLP, a
certificate (the "Old Certificate") representing 617,228 shares of the Common
Stock of the Company together with a stock power (the "Stock Power") executed by
Xxxxxxxx Xxxx, Inc. directing that 331,336 of the shares represented by the Old
Certificate be transferred to the Company and that a new certificate for the
remaining 285,892 shares be issued to Xxxxxxxx Xxxx, Inc.
The Company hereby instructs you, as its transfer agent, to take the following
actions after you have received the Old Certificate and the Stock Power:
1. Return 331,336 of the shares represented by the Old Certificate to the status
of authorized by not issued shares of the Company.
2. Issue a new certificate in the name of Xxxxxxxx Xxxx, Inc., free of any
restrictive legends, for 285,892 of the shares represented by the Old
Certificate and send the new certificate by FedEx to Xxxxx X. Xxxxx, the
attorney for Xxxxxxxx Xxxx, Inc., for delivery not later than five (5) business
days after your receipt of the Old Certificate and the Stock Power, at the
following address:
Xxxxx X. Xxxxx, Esq.
Xxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
(000) 000-0000
These instructions are provided to you for the benefit of Xxxxxxxx Xxxx, Inc.
and may not be rescinded or modified without the written consent of Xxxxxxxx
Xxxx, Inc.
Dated: May __, 2007 Spare Backup, Inc.
By: __________________________
Signature
__________________________
Printed Name
Its: ___________________________
Title
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