Exhibit 10.10
PUT AND CALL AGREEMENT
This Put and Call Agreement (the "Agreement"), dated as of
April 16, 2003, is entered into by and between Xxxx XxxxxxXxxxxx
("VandenBrekel") and Xxxx Xxxxxxxxxxx ("Xxxxxxxxxxx"), jointly and severally,
and La Jolla Cove Investors, Inc. a California corporation ("LJCI"), with
reference to the following:
WHEREAS, concurrently herewith, LJCI is purchasing from Sequiam Corporation
(the "Company") an 8 % Convertible Debenture in the principal amount of $300,000
(the "Debenture"), which Debenture is convertible into stock of the Company (the
"Stock"); and
WHEREAS, VandenBrekel and Xxxxxxxxxxx desire to have the opportunity to
purchase the Debenture at an agreed upon future price, and LJCI is willing to
grant such right provided LJCI gets the opportunity to resell the Debenture at
an agreed upon future price. Accordingly, the parties hereto desire to provide
for certain put and call provisions relating to the Debenture.
WHEREA, this Agreement supercedes and replaces the Put and Call Agreement
between the parties dated as of March 5, 2003.
NOW, THEREFORE, in consideration of the mutual promises and convenants
contained herein, and in consideration of LJCI purchasing the Debenture, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Put Right. During the period and from time to time between
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October 5, 2003 and January 5, 2004 (the "Put Period"), LJCI shall have the
right to sell in its sole and absolute discretion, and VandenBrekel and
Xxxxxxxxxxx, jointly and severally, shall thereafter have the obligation to
purchase, all or a portion of the Debenture remaining unpaid for a cash purchase
price of 180% of the principal balance remaining unpaid, such total obligation
under this Section 1 not to exceed $540,000. The exercise of VandenBrekel and
Xxxxxxxxxxx'x Call and/or the conversion of the Debenture by LJCI, in whole or
in part, shall cancel a corresponding amount of LJCI's Put. The election of LJCI
to sell the Debenture shall be pursuant to written notice to VandenBrekel and
Xxxxxxxxxxx, which notice shall be sent at least three business days prior to
the effective date of the transfer and shall specify the principal balance, plus
accrued interest, of the Debenture. On the effective date of the transfer,
VandenBrekel and Xxxxxxxxxxx shall pay to LJCI (or its designee), the purchase
price therefor in good funds, and within three business days thereafter LJCI
shall deliver to VandenBrekel and Xxxxxxxxxxx the Debenture together with an
assignment thereof. Any transfer hereunder shall be without warranty or
representation except as to good title. The obligations of VandenBrekel and
Xxxxxxxxxxx hereunder shall not be subject to any defense, setoff, recoupment,
impairment or termination for any reason including, without limitation, whether
the Debenture or the stock issuable upon conversion thereof is publicly traded,
whether the stock issuable upon conversion of the Debenture is restricted,
whether any bankruptcy proceedings have been instituted by or against the
Company or any order has been entered adjudging the Company a bankrupt or
insolvent, or whether the Company or its transfer agent consents to or
authorizes the transfer. The
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obligations of VandenBrekel and Xxxxxxxxxxx pursuant to this Section shall be
joint and several and the allocation of the Debenture being purchased shall be
as determined among VandenBrekel and Xxxxxxxxxxx.
2. Call Right. During the period and from time to time between the
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date hereof and October 5, 2003 (the "Call Period"), VandenBrekel and
Xxxxxxxxxxx, jointly and severally, shall have the option to purchase, and LJCI
shall thereafter have the obligation to sell, all or a portion of the Debenture
remaining unpaid for a cash purchase price of 200% of the principal balance
remaining unpaid plus any accrued interest. The election of VandenBrekel and
Xxxxxxxxxxx to purchase the Debenture shall be pursuant to written notice to
LJCI, which notice shall be sent at least three business days prior to the
effective date of the transfer and shall specify the principal balance, plus any
accrued interest, of the Debenture. On the effective date of the transfer,
VandenBrekel and Xxxxxxxxxxx shall pay to LJCI (or its designee) the purchase
price therefor in good funds, and within three business days thereafter LJCI
shall deliver to VandenBrekel and Xxxxxxxxxxx the Debenture together with an
assignment thereof. Any transfer hereunder shall be without warranty or
representation except as to good title. The exercise of LJCI's Put and/or the
conversion of the Debenture by LJCI, in whole or in part, shall cancel a
corresponding amount of VandenBrekel and Xxxxxxxxxxx'x Call.
3. Interest. At such time that money is due to any party, and if such
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amount is not paid within five (5) business days, then that amount shall accrue
interest at the rate of nine percent (9%) per year.
4. Governing Law. This Agreement shall in all respects be construed,
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interpreted and enforced in accordance with and governed by the laws of the
State of California, United States of America.
5. Consent to Jurisdiction. VandenBrekel and Xxxxxxxxxxx (i) hereby
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irrevocably submit to the jurisdiction of the United States District Court
sitting in the District of San Diego and the courts of the State of California
located in San Diego county for the purposes of any suit, action or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereunder and (ii) hereby waive, and agree not to assert in any such suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. VandenBrekel and Xxxxxxxxxxx consent to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under this Agreement and agree that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing in this section shall affect or limit any right to serve
process in any other manner permitted by law.
6. Attorneys' Fees. In the event of any legal action between the
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parties with respect to this Agreement or the subject matter hereof, the
prevailing party shall be entitled to recover reasonable attorneys' fees in
addition to court costs and litigation expenses incurred in said legal action,
regardless of whether such legal action is prosecuted to judgment.
7. Notices. Any notice, demand or other communication required or
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permitted under this Agreement shall be deemed given and delivered when in
writing and (a) personally served upon the receiving party, or (b) upon hand
delivery by telex (with correct answer back received), telecopy or facsimile at
the address or number designated below (if delivered on a
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business day during normal business hours where such notice is to be received),
or (c) upon the third (3rd) calendar day after mailing to the receiving party by
either (i) United States registered or certified mail, postage prepaid, or (ii)
FedEx or other comparable overnight delivery service, delivery charges prepaid,
and addressed as follows:
To VandenBrekel: Xxxx XxxxxxXxxxxx with a copy to:
000 Xxxxxxx Xxxx XXX & XXXXXXX, XXX
Xxxxxxx, Xxxxxxx 00000 00000 Xxx Xxxxxx Xxxxxx, # 000
Xxxxxxxxx: 000-000-0000 Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
To Xxxxxxxxxxx: Xxxx Xxxxxxxxxxx with a copy to:
000 Xxxxxxx Xxxx XXX & XXXXXXX, XXX
Xxxxxxx, Xxxxxxx 00000 00000 Xxx Xxxxxx Xxxxxx, #000
Facsimile: 000-000-0000 Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
To LJCI: La Jolla Cove Investors, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
Facsimile: 000-000-0000
8. Severability. In the event that any provision of this Agreement
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becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or invalid, then this Agreement shall continue in full force and
effect without said provision. If this Agreement continues in full force and
effect as provided above, the parties shall replace the invalid provision with a
valid provision which corresponds as far as possible to the spirit and purpose
of the invalid provision.
9. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
document. Facsimile execution shall be deemed originals.
10. Entire Agreement. This Agreement constitute the entire agreement
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between the parties with respect to the subject matter hereof, and supersede all
prior oral or written agreements, representations or warranties between the
parties other than those set forth herein or herein provided for.
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11. Successors and Assigns. The provisions hereof shall inure to the
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benefit of, and be binding upon, the permitted successors and assigns, heirs,
executors, and administrators of the parties hereto.
12. Amendment and Waiver. No modification or waiver of any provision
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of this Agreement shall be binding upon the party against whom it is sought to
be enforced, unless specifically set forth in writing signed by an authorized
representative of that party. A waiver by any party of any of the terms or
conditions of this Agreement in any one instance shall not be deemed or
construed to be a waiver of such terms or conditions for the future, or of any
subsequent breach thereof. The failure by any party hereto at any time to
enforce any of the provisions of this Agreement, or to require at any time
performance of any of the provisions hereof, shall in no way to be construed to
be a waiver of such provisions or to affect either the validity of this
Agreement or the right of any party to thereafter enforce each and every
provision of this Agreement.
14. Status of Shares. VandenBrekel and Xxxxxxxxxxx acknowledge that
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the Debenture being purchased by LJCI constitutes restricted securities and the
resale thereof by VandenBrekel and Xxxxxxxxxxx may be limited and subject to
applicable securities laws. In the event that VandenBrekel and Xxxxxxxxxxx
acquire the Debenture pursuant to the exercise of the Put Right or Call Right,
they shall acquire the Debenture for investment purposes and not with a view to
distribution.
IN WITNESS WHEREOF, LJCI, VandenBrekel and Xxxxxxxxxxx have duly executed
this Agreement as of the date first above written.
La Jolla Cove Investors, Inc.
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Xxxx XxxxxxXxxxxx
By:
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Title:
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Xxxx Xxxxxxxxxxx
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