-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RWWt0bLfHTOMr+cTpbho4aKNa7AIW8iQAh/RYMA8md9o6X8IhZnnXjFCdlIrwlQL E8nrL2lJYp8CaMFRPSFn/A== 0001140361-05-010139.txt : 20051123 0001140361-05-010139.hdr.sgml : 20051123 20051123164127 ACCESSION NUMBER: 0001140361-05-010139 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20051123 DATE AS OF CHANGE: 20051123 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MANGIARELLI RICHARD CENTRAL INDEX KEY: 0001277595 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 2820 LA MIRADA DR STREET 2: STE H CITY: VISTA STATE: CA ZIP: 92083 BUSINESS PHONE: 8882675950 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CHARYS HOLDING CO INC CENTRAL INDEX KEY: 0000845879 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PERSONAL SERVICES [7200] IRS NUMBER: 512152284 FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-79487 FILM NUMBER: 051225298 BUSINESS ADDRESS: STREET 1: 1117 PERIMETER CENTER WEST STREET 2: SUITE N415 CITY: ATLANTA STATE: GA ZIP: 30338 BUSINESS PHONE: 6784432300 MAIL ADDRESS: STREET 1: 1117 PERIMETER CENTER WEST STREET 2: SUITE N415 CITY: ATLANTA STATE: GA ZIP: 30338 FORMER COMPANY: FORMER CONFORMED NAME: SPIDERBOY INTERNATIONAL INC DATE OF NAME CHANGE: 20010507 FORMER COMPANY: FORMER CONFORMED NAME: SPIDEBOY INTERNATIONAL INC/ DATE OF NAME CHANGE: 20010503 FORMER COMPANY: FORMER CONFORMED NAME: HIGH COUNTRY VENTURES INC DATE OF NAME CHANGE: 20001102 SC 13D/A 1 body.txt CHARYS HOLDINGS SC13DA#1 2-24-2004 (MANGIARELLI) SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D (RULE 13D-101) AMENDMENT NO. 1 INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13D-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(a) CHARYS HOLDING COMPANY, INC. (Name of Issuer) COMMON STOCK, PAR VALUE $0.001 PER SHARE (Title of Class of Securities) 161420 10 4 (CUSIP Number) RICHARD MANGIARELLI 9444 WAPLES STREET, SUITE 290 SAN DIEGO, CALIFORNIA 92121 (858) 646-7410 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 24, 2004 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of 240.13d-1(e), 240.13d(f), or 240.13d(g), check the following box [_]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. 1
- ------------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Richard Mangiarelli - ------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] - ------------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS) OO - ------------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - ------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America - ------------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 120,000 shares of the common stock of the Issuer BENEFICIALLY ------------------------------------------------------------------ OWNED BY 8 SHARED VOTING POWER EACH 647,332 REPORTING ------------------------------------------------------------------ PERSON 9 SOLE DISPOSITIVE POWER WITH 120,000 shares of the common stock of the Issuer ------------------------------------------------------------------ 10 SHARED DISPOSITIVE POWER 647,332 - ------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 647,332 shares of the common stock of the Issuer - ------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [_] - ------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.40 percent of the common stock of the Issuer. - ------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) IN - -------------------------------------------------------------------------------------
2 ITEM 1. SECURITY AND ISSUER. This statement relates to the common stock of Charys Holding Company, Inc. (the "Issuer"). The principal executive offices of the Issuer are located at 1117 Perimeter Center West, Suite N 415, Atlanta, Georgia 30338. ITEM 2. IDENTITY AND BACKGROUND. Pursuant to Rule 13d-1(k)(1) of Regulation 13D-G of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Act"), this amended Schedule 13D is hereby filed by Richard Mangiarelli, an individual (the "Reporting Person"). The Reporting Person's business address is 9444 Waples Street, Suite 290 San Diego, California 92121. The Reporting Person is a private investor and a director of the Issuer. However, his wife, Janet Risher is deemed to be the owner of 527,332 shares of the common stock of the Issuer. During the last five years, the Reporting Person (a) has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), (b) was not a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which he was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. The Reporting Person is a citizen of the United States of America. On December 5, 2003, the Reporting Person, Richard F. Schmidt and Mark N. Pardo executed a Stock Purchase Agreement, pursuant to which the Reporting Person purchased from Mr. Pardo 10,925,752 shares of the common stock of the Issuer. The purchase price for the 21,851,503 shares (the total number sold by Mr. Pardo to the Reporting Person and Mr. Schmidt pursuant to the Stock Purchase Agreement), consisted of $90,000 paid at closing, and a promissory note in the amount of $160,000, dated December 5, 2003, and attached as an exhibit to the previously filed Schedule 13D by the Reporting Person on January 28, 2004. The Reporting Person and Mr. Schmidt each contributed one-half of such purchase price, which has been paid in full. On February 24, 2004, Ms. Risher and Mr. Schmidt were each issued 500,000 shares of the Series A preferred stock of the Issuer, for a consideration of $5,000 paid by each of them in the form of services rendered. On all matters submitted to a vote of the Issuer's stockholders, including, without limitation, the election of directors, a holder of shares of the Series A preferred stock is entitled to the number of votes on such matters equal to the number of shares of the Series A preferred stock held by such holder multiplied by 250. Holders of shares of the Series A preferred stock do not have the right to convert their shares of the Series A preferred stock into shares of the Issuer's common stock. As previously reported in a Schedule 13D filed by Janet Risher on July 21, 2004, the Reporting Person transferred to Janet Risher on February 24, 2004, the 10,925,752 shares of the common stock of the Issuer acquired from Mr. Pardo, along with the right to acquire the 500,000 shares of the Series A preferred stock he purchased from the Issuer. On February 27, 2004, Janet Risher agreed to sell all of her 10,925,752 shares of the common stock of the Issuer and Mr. Schmidt agreed to sell all of his 10,925,751 shares of the common stock of the Issuer to Billy V. Ray, Jr., pursuant to a Stock Purchase Agreement. A copy of the Stock Purchase Agreement was included as an exhibit by Mr. Ray in connection with a Schedule 13D filed on March 10, 2004. Included in the sale to Mr. Ray were the 500,000 shares of the Series A preferred stock of the Issuer which each of Ms. Risher and Mr. Schmidt had a right to purchase. The Stock Purchase Agreement was subsequently amended on May 25, 2004 and August 16, 2005. As a result of the August 16, 2005 amendment, the Stock Purchase Agreement was deemed to have closed and the title to all of the shares covered thereby was transferred to Mr. Ray, effective as of February 27, 2004, subject to his continuing obligation to pay for the shares, pursuant to a Second Amended Promissory Note. The shares continue as security for the note as provided in that certain Amended and Restated Stock Pledge Agreement dated August 16, 2005. 3 The shares of the common stock of the Issuer purchased by Mr. Ray from Ms. Risher and Mr. Schmidt were the subject of a one for 10 reverse split of the common stock of the Issuer as a result of the change of domicile of the Issuer on June 25, 2004. Consequently, the 21,851,503 shares of the Issuer's common stock held by Mr. Ray were changed into 2,185,150 shares. The 1,000,000 shares of the Series A preferred stock of the Issuer held by Mr. Ray were not affected by the reverse split of the common stock. Copies of the Second Amendment to Stock Purchase Agreement as of August 16, 2005, the Second Amended Promissory Note and the Amended and Restated Stock Pledge Agreement resulting from such amendment on August 16, 2005 are attached as exhibits to this amended Schedule 13D. The Stock Purchase Agreement as amended and restated on May 25, 2004 was filed as an exhibit to the Issuer's Form 8-K/A on June 1, 2004. The Stock Purchase Agreement between Ms. Risher, Mr. Schmidt and Mr. Ray contains a requirement that for so long as Mr. Ray owns the shares of the Issuer's common stock purchased thereunder, he agrees to vote his shares to not increase the number of directors to more than 11 members and to elect or retain as directors Richard Mangiarelli and John Jordan for a period of three years from the date of the Stock Purchase Agreement. Following the effective transfer to Mr. Ray on February 27, 2004, the Reporting Person did not own any shares of the Issuer. On March 18, 2005, Ms. Risher received 400,000 shares of the Issuer's common stock in connection with a Consulting Agreement between Ms. Risher and the Issuer dated February 27, 2004. On April 11, 2005, Ms. Risher transferred 400,000 of the Issuer's common stock. On June 6, 2005, Ms. Risher purchased 240,000 shares of the common stock of the Issuer. Ms. Risher has the right to acquire an additional 1,500,000 shares of the Issuer's common stock pursuant to the Consulting Agreement, of which 287,332 shares are currently issuable. The 287,332 shares which are currently issuable are included in the 647,332 shares reflected in this Schedule 13D as being owned by the Reporting Person and his wife, Janet Risher. A copy of the Consulting Agreement was filed as an exhibit to the Form 8-K filed by the Issuer on March 10, 2004. On November 4, 2004, the Reporting Person received 20,000 shares of the common stock of the Issuer in connection with his service as a director of the Issuer. Moreover, on November 14, 2004, the Reporting Person received options to purchase 100,000 shares of the Issuer's common stock in connection with his service as a director of the Issuer. The options expire on November 14, 2014, and are fully vested. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. See Item 2, above. ITEM 4. PURPOSE OF TRANSACTION. The Reporting Person acquired his interest in the Issuer solely for investment purposes. The Reporting Person has no present plans or proposals that relate to or that would result in any of the following actions: 1. An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; 2. A sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; 3. Any material change in the present capitalization or dividend policy of the Issuer; 4. Any other material change in the Issuer's business or corporate structure; 5. Changes in the Issuer's charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person; 6. Causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; 4 7. A class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or 8. Any action similar to any of those enumerated above. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. The Reporting Person may be deemed to be the beneficial owner of 647,332 shares of the common stock of the Issuer, which constitute approximately 5.40 percent of the outstanding shares of the common stock of the Issuer. The Reporting Person has the sole power to vote and to dispose of all shares of the common stock of the Issuer owned by him directly. Other than the transactions described in Items 3 and 4 above, there have been no transactions in the common stock of the Issuer by the Reporting Person during the last 60 days. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Other than as stated herein, to the best knowledge of the Reporting Person, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between the Reporting Person and any other person with respect to any securities of the Issuer, including but not limited to, transfer or voting of any of the securities of the Issuer, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting power or investment power over the securities of the Issuer. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. EXHIBIT NO. IDENTIFICATION OF EXHIBIT - ------------ --------------------------- 1 Second Amended Stock Purchase Agreement between Janet Risher, Richard F. Schmidt and Billy V. Ray, Jr., dated August 16, 2005. 2 Second Amended Promissory Note dated August 16, 2005, by Billy V. Ray, Jr., as the Maker, and Janet Risher and Richard F. Schmidt, as the Payee. 3 Amended and Restated Stock Pledge Agreement dated August 16, 2005, by Billy V. Ray, Jr., as the Debtor, and Janet Risher and Richard F. Schmidt, as the Secured Party. SIGNATURE After reasonable inquiry and to the best of the knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: November 23, 2005 -------------------------------- RICHARD MANGIARELLI 5 EX-1 2 ex1.txt EXHIBIT 1 SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT THIS AMENDED AGREEMENT is made this 16th day of August, 2005, by and between JANET RISHER and RICHARD F. SCHMIDT (collectively, the "Sellers") CHARYS HOLDING COMPANY, INC., a Delaware corporation formerly known as "Spiderboy International, Inc.," a Minnesota corporation (the "Company"), and BILLY V. RAY, JR. (the "Purchaser"). WHEREAS, on February 27, 2004, the Sellers, the Company, and the Purchaser executed that certain Stock Purchase Agreement (the "Stock Purchase Agreement"); and WHEREAS, on May 25, 2004, the Sellers, the Company, and the Purchaser executed that certain Amended and Restated Stock Purchase Agreement; and WHEREAS, the parties desire to further amend the Stock Purchase Agreement as hereinafter provided; and WHEREAS, all of the capitalized terms herein shall have the same meaning as provided 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. Completion of Purchase of Stock. Notwithstanding anything contained ------------------------------- to the contrary in the Stock Purchase Agreement, the parties agree that the Closing thereunder has occurred as of February 27, 2004, and the title to the Initial Common Shares and the Initial Preferred Shares passed to the Purchaser as of that date. 2. Escrow. The requirement for an escrow as described in the Stock ------ Purchase Agreement has been eliminated. Consequently, the Escrow Agreement is terminated. 3. Incorporation by Reference. The Stock Purchase Agreement and all of -------------------------- the attachments thereto constitute integral parts to this Agreement and are incorporated into this Agreement by this reference. 4. 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. A facsimile transmission or electronically transmitted copy of this signed Agreement shall be legal and binding on all parties hereto. 5. Ratification and Republication. Except as amended by this -------------------------------- Agreement, the parties do hereby ratify and republish the Stock Purchase Agreement. 6. Entire Agreement. This instrument and the attachments hereto ----------------- contain the entire understanding of the parties 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, this Agreement has been executed in multiple counterparts on the date first written above. -------------------------------------------- JANET RISHER -------------------------------------------- RICHARD F. SCHMIDT CHARYS HOLDING COMPANY, INC. By ------------------------------------------ Billy V. Ray, Jr., Chief Executive Officer -------------------------------------------- BILLY V. RAY, JR. EX-2 3 ex2.txt EXHIBIT 2 SECONDED AMENDED PROMISSORY NOTE $150,000.00 August 16, 2005 After date, without grace, for value received, BILLY V. RAY, JR., (the "Maker") hereby promises to pay to the order of JANET RISHER and RICHARD F. SCHMIDT, residents of San Diego County, California (collectively, the "Payee") the original principal amount of ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00). Except as may be otherwise provided herein, the unpaid principal of this Note shall bear no interest. All payments of principal and interest hereunder are payable in lawful money of the United States of America at 2076 Hidden Springs Drive, El Cajon, California 92019, or such other place as the Payee may designate in writing to the Maker. The principal of this Note shall be due and payable in six monthly installments of $25,000.00 each, payable on the 20th day of each and every calendar month, beginning on September 20, 2005, and continuing regularly thereafter until the whole of said principal amount has been duly paid. All payments hereunder shall be first applied to expenses and other charges then to any accrued interest, and the balance, if any, to principal. Any interest on this Note shall be computed for the actual number of days elapsed and on the basis of a year consisting of 360 days, unless the maximum legal interest rate would thereby be exceeded, in which event, to the extent necessary to avoid exceeding such maximum rate, interest shall be computed on the basis of the actual number of days elapsed in the applicable calendar year in which it accrued. It is the intention of the Maker and the Payee to conform strictly to applicable usury laws. It is therefore agreed that (i) the aggregate of all interest and other charges constituting interest under applicable law and contracted for, chargeable or receivable under this Note or otherwise in connection with this loan transaction, shall never exceed the maximum amount of interest, nor produce a rate in excess of the maximum contract rate of interest the Payee may charge the Maker under applicable law and in regard to which the Maker may not successfully assert the claim or defense of usury, and (ii) if any excess interest is provided for, it shall be deemed a mistake and the same shall be refunded to the Maker or credited on the unpaid principal balance hereof and this Note shall be automatically deemed reformed so as to permit only the collection of the maximum legal contract rate and amount of interest. If, for any reason whatever, the interest paid on this Note shall exceed the maximum non-usurious amount permitted by law, the Payee shall refund to the Maker such portion of said interest as may be necessary to cause the interest paid on this Note to equal the maximum non-usurious amount permitted by law, and no more. All sums paid or agreed to be paid to the Payee for the use, forbearance or detention of the indebtedness evidenced hereby shall to the extent permitted by applicable law be amortized, prorated, allocated and spread throughout the full term of this Note until payment in full. This Note may be prepaid in whole or in part at any time without premium or penalty by the Maker. Prepayments shall be applied to installments of principal in the inverse order of maturity so that they will pay the last maturing principal installments first, and these payments will not reduce the amount or time of payment of the remaining installments. Any interest on any prepaid installment of principal shall immediately cease to accrue. Except as provided herein, the Maker and each surety, endorser, and guarantor waives all demands for payment, presentations for payment, notices of intention to accelerate maturity, notices of acceleration of maturity, protests, notices of protest, grace, and diligence in the collection of this Note, and in filing suit hereon, and agrees that its liability for the payment hereof shall not be affected or impaired by any release or change in the security or by any extension or extensions of time of payment. Any check, draft, money order or other instrument given in payment of all or any portion of this Note may be accepted by the Payee or any other holder hereof and handled in collection in the customary manner, but the same shall not constitute payment hereunder or diminish any rights of the Payee or any other holder hereof, except to the extent that actual cash proceeds of such instrument are unconditionally received by the Payee or any other holder hereof and applied to the indebtedness as herein provided. 1 This Note is executed in connection with that certain Stock Purchase Agreement (the "Stock Purchase Agreement") dated February 27, 2004, executed by the Maker, the Payee, and Charys Holding Company, Inc., a Delaware corporation and formerly known as "Spiderboy International, Inc.," a Minnesota corporation. The Stock Purchase Agreement was amended and restated on May 25, 2004 and further amended on even date herewith. In the event of default in the payment of this Note or under any instrument executed in connection with this Note, including the Stock Purchase Agreement or any agreement executed in connection therewith, the Maker agrees to pay on demand all costs incurred by the Payee (i) in the collection of any sums, including, but not limited to, principal, interest, expenses, and reimbursements due and payable on this Note, and (ii) in the enforcement of the other terms and provisions of this Note or any instrument securing payment of this Note, whether such collection or enforcement be accomplished by suit or otherwise, including the Payee's reasonable attorney's fees. It is agreed that time is of the essence of this Note, and upon the failure of the Maker to cure an event of default in the payment of any fixed monthly payment when due hereunder within 30 days after receipt of notice from the Payee or other holder of such failure, or upon the failure of the Maker to cure any event of default within 30 days after receipt of notice from the Payee or other holder of such failure, the Payee may declare the whole sum of the principal of this Note remaining at the time unpaid, together with the accrued interest, charges, and, to the extent permitted under applicable law, costs and reasonable attorney's fees incurred by the Payee in collecting or enforcing the payment thereof, immediately due and payable without further notice, and failure to exercise said option shall not constitute a waiver on the part of the Payee of the right to exercise the same at any other time. If this Note is not paid at maturity, however maturity may be brought about, all principal and interest due on the date of such maturity shall bear interest from the date of such maturity at the maximum contract rate of interest which the Payee may charge the Maker under applicable law. Except as otherwise provided for herein, each maker, surety, guarantor and endorser of this Note expressly waives all notices, including, but not limited to, all demands for payment, presentations for payment, notice of opportunity to cure default, notice of intention to accelerate the maturity, notice of protest and notice of acceleration of the maturity, notice of protest and notice of acceleration of the maturity of this Note, and consents that this Note and the security interest securing its payment may be renewed and the time of payment extended without notice and without releasing any of the parties. Any check, draft, money order or other instrument given in payment of all or any portion of this Note may be accepted by the Payee or any other holder hereof and handled in collection in the customary manner, but the same shall not constitute payment hereunder or diminish any rights of the Payee or any other holder hereof, except to the extent that actual cash proceeds of such instrument are unconditionally received by the Payee or any other holder hereof and applied to the indebtedness as herein provided. This Note is given in renewal and extension of the sum of $150,000.00 left owing and unpaid by the Maker upon that one certain promissory note in the original principal sum of $250,000.00, dated February 27, 2004, executed by the Maker, and payable to the order of the Payee. Further, the payment of this Note is secured by a continuing security interest described in that certain Amended and Restated Stock Pledge Agreement of even date herewith covering 2,185,1,50 shares of the issued and outstanding common stock of Charys Holding Company, Inc. and 1,000,000 shares of the issued and outstanding Series A preferred stock of Charys Holding Company, Inc., which security interest is hereby expressly acknowledged by the Maker to be a valid and subsisting security interest against such shares, and a renewal and continuation of the security interest described that certain Stock Pledge Agreement dated February 27, 2004, as amended and restated on even date herewith. This Note shall be governed by and construed in accordance with the laws of the State of California and applicable federal law. ------------------------------------ BILLY V. RAY, JR. 2 EX-3 4 ex3.txt EXHIBIT 3 AMENDED AND RESTATED STOCK PLEDGE AGREEMENT THIS AMENDED AND RESTATED AGREEMENT is made this 16th day of August, 2005, by and between JANET RISHER and RICHARD F. SCHMIDT (collectively, the "Secured Party") and BILLY V. RAY, JR. (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 Mr. Richard F. Schmidt at 2076 Hidden Springs Drive, El Cajon, California 92019; and if to the Debtor, addressed to Mr. Billy V. Ray, Jr. at 1117 Perimeter Center West, Suite N 415, Atlanta, Georgia 30338. 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: ----------------------------------------- JANET RISHER ----------------------------------------- RICHARD F. SCHMIDT 6 THE DEBTOR: ----------------------------------------- BILLY V. RAY, Jr. 7 -----END PRIVACY-ENHANCED MESSAGE-----