Exhibit 10.18
STOCK PUT AGREEMENT
THIS STOCK PUT AGREEMENT (this "Agreement") is made as of the 30th day
of September, 1996 (the "Effective Date"), by and between Exsorbet Industries,
Inc., an Idaho corporation ("Exsorbet") and American Physicians Service Group,
Inc., a Texas corporation ("APS").
RECITALS:
WHEREAS, APS has purchased 1,200,000 shares of the common stock of
Exsorbet; and
WHEREAS, Exsorbet desires to allow APS to cause Exsorbet, at APS'
option for a period of sixty (60) days, to purchase APS' holdings of Exsorbet
stock;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Shares Subject to this Agreement. The shares subject to this
Agreement are up to 1,200,000 shares of the outstanding common stock of Exsorbet
held by APS, including any increases, decreases or substitutions therefor which
occur after the date hereof as a result of any change (through recapitalization,
merger, consolidation, stock dividend, stock split, combination,
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reverse stock split or exchange of shares or otherwise) in the character or
amount of such shares prior to the exercise by APS of its rights hereunder.
2. Option to Sell. Exsorbet irrevocably and unconditionally grants to
APS the right, privilege and option to sell to Exsorbet and Exsorbet hereby
irrevocably and unconditionally agrees to purchase, the Shares, for the price
and on the terms provided herein. This option can be exercised by APS notifying
Exsorbet in writing of the intent to exercise the option, in which case Exsorbet
will have ten (10) days to complete the purchase as required herein. In the
event the parties cannot agree on a time and place for a closing of the
purchase, the closing will occur at the offices of APS in Austin, Texas, at 1:00
p.m. Austin time on the tenth day after APS has given notice of exercise to
Exsorbet.
3. Purchase Price and Payment. The total purchase price to be paid by
Exsorbet for all the Shares is $3,300,000, or $2.75 per share for purchase of a
portion of the Shares. The total purchase price shall be paid at closing in cash
or certified funds or by execution and delivery by Exsorbet of a promissory note
(the "Note") payable to the order of APS in the original principal amount of the
purchase price in the form of Exhibit-A hereto. In the event Exsorbet elects to
pay for the Shares by execution and delivery of the Note, APS shall be entitled
to retain a first-lien, perfected security interest in and to the Shares (in
addition to whatever other collateral may be used to secure Exsorbet's
obligations hereunder as contemplated in Section 5 below) and APS shall be
entitled to retain possession of the certificates evidencing the Shares to
perfect such security interest. In the event the purchase price is paid in cash
or certified funds, or upon payment in full of the Note and
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all interest due thereon, APS shall deliver to Exsorbet all certificates
representing the Shares sold, duly endorsed to Exsorbet.
4. Assignment. This option and the rights granted under this Agreement
may be transferred or assigned by APS to any affiliate or subsidiary of APS.
Otherwise, the rights and obligations of the parties under this Agreement may
not be assigned or transferred without the express prior written consent of the
other party.
5. Obligations of Exsorbet Secured. The obligations of Exsorbet under
and pursuant to this Agreement shall be secured by that certain Assignment and
Security Agreement of even date herewith pursuant to which Exsorbet grants a
security interest in certain collateral to APS to secure Exsorbet's obligations
under this Agreement. In addition, the obligations of Exsorbet under and
pursuant to this Agreement are further guaranteed by the payment and performance
guarantees of each of Exsorbet's subsidiaries.
6. Insufficient Surplus. In connection with the purchase of any Shares
by Exsorbet pursuant to this Agreement, if the surplus of Exsorbet shall prove
to be insufficient under then existing laws to allow Exsorbet to purchase all
the Shares which APS then elects to sell to Exsorbet, Exsorbet shall, within
sixty (60) days of receipt of APS's written notice of intent to exercise their
option to sell Shares hereunder, take such action, execute such instruments, and
otherwise do whatever may be necessary to increase its surplus to an amount
sufficient to authorize the purchase of such Shares, including but not limited
to, one or more of the following:
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(a) a recapitalization of Exsorbet so as to reduce its
capital and increase its surplus;
(b) a reappraisal of the assets of Exsorbet including
goodwill, if any, to reflect the market value of such
assets on the books of Exsorbet in the event such
value exceeds the book value thereof, so as to
increase such surplus; or
(c) any and all other means or procedures as permitted by
law.
7. Notices. All notices required to be given hereunder shall be
deemed to be duly given by personally delivering such
notice or by mailing it certified mail to all parties
hereto at the following address:
Exsorbet: Exsorbet Industries, Inc.
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Xx.
APS: American Physicians Service Group, Inc.
0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx X-000
Xxxxxx, Xxxxx 00000-0000
Attn: President
The foregoing addresses may be changed by providing written notice of
such change of address by certified mail to the other parties to this Agreement.
8. Exercise of Option. This option shall be exercisable at any
time or times until sixty (60) days after the Effective Date.
Upon expiration of this time period, if APS has not exercised
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its rights hereunder, Exsorbet shall pay APS $60,000 within five (5) days after
the expiration of such sixty (60) day period.
9. Binding Effect. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, and their respective successors and
permitted assigns. Exsorbet may not assign this Agreement or any of its rights
or obligations hereunder without the prior express written consent of APS.
10. Governing Law. This Agreement shall be interpreted under the
laws of the State of Texas, and all obligations created hereunder are
performable in Xxxxxx County, Texas.
11. Further Assurances. All parties hereto agree to perform any
further acts and to execute and deliver any further documents which may be
reasonably necessary or convenient to carry out the provisions of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement in
multiple counterparts in Austin, Texas on the day and year first above written.
EXSORBET: EXSORBET INDUSTRIES, INC.
By:
Printed Name:
Title:
APS: AMERICAN PHYSICIANS SERVICE
GROUP, INC.
By:
Printed Name:
Title:
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