PUT AGREEMENT
This PUT AGREEMENT, dated effective as of July 28, 2005, is by and between
Xxxxxxx X. Xxxxx, an individual ("Xxxxx"), and The Frost National Bank, a
national banking association ("Frost").
RECITALS
X. Xxxxx owns 500,000 shares (the "Put Shares") of the Series C
Convertible Preferred Stock of Charys Holding Company, Inc., a Delaware
corporation ("Charys").
X. Xxxxx and Frost desire to enter into this Put Agreement wherein Xxxxx
grants to Frost the right to require Xxxxx to purchase the Put Shares from
Frost, as more fully set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Grant of Put. Xxxxx hereby grants to Frost the option (the "Put
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Option"), in Frost's sole and exclusive discretion, to require Xxxxx to purchase
the Put Shares from Frost as set forth in numbered paragraph 2 below for the
purchase price specified in numbered paragraph 3 below.
2. Exercise. The Put Option granted hereby may be exercised at any time
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after twenty-four (24) months after the date hereof and before thirty (30)
months after the date hereof (the "Exercise Term"). Frost may exercise the Put
Option at any time during the Exercise Term by delivering written notice of
exercise (the "Exercise Notice") to Xxxxx in the manner provided in numbered
paragraph 5 below. If notice of exercise is not received by Xxxxx prior to 5:00
p.m. San Antonio, Texas time on the last day of the Exercise Term, this Put
Agreement and the Put Option granted hereunder shall terminate and be of no
further force or effect. The Put Option may be exercised only as a whole as to
all of the Put Shares then owned by Frost and may not be exercised in part. Any
attempt to exercise the Put Option for less than all of the Put Shares then
owned by Frost shall be void and of no effect.
3. Purchase Price; Settlement of Transaction. The purchase price upon
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exercise of the Put Option shall be $3.50 per share (the "Put Purchase Price")
payable by Xxxxx to Xxxxx. The closing of the purchase and sale of the Put
Shares (the "Closing") shall take place at 10:00 a.m. San Antonio, Texas time at
the offices of Frost at 000 X. Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx, 00000 and
shall occur on the tenth business day following the delivery of the Exercise
Notice to Xxxxx, or at such other time and place as shall be mutually agreed
upon by Xxxxx and Xxxxx. At the Closing, Frost shall deliver to Xxxxx stock
certificates representing the Put Shares accompanied by duly executed stock
powers with signatures as may be necessary to vest title in Xxxxx to the Put
Shares free and clear of all liens, claims, security interests, rights of others
or other encumbrances, against delivery by Xxxxx to Frost, by wire transfer, of
an amount equal to the Put Purchase Price.
4. Investment Representation. In the event of an exercise of the Put
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Option, Xxxxx acknowledges that the Put Shares to be delivered to him pursuant
to numbered paragraph 3 hereof are not being registered under the Securities Act
of 1933, as amended (the "Act") and that the transfer to him of such
unregistered Shares will be being made by Frost in reliance on the provisions of
Section 4(2) of the Act. Xxxxx represents that, if the Put Option is exercised,
he intends to acquire the Put Shares for investment for his own account and not
with a view to the distribution thereof.
5. Notices. All notices and communications which are required or
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permitted hereunder shall be sufficient and deemed received when in writing and
delivered personally, or next day after being mailed by Federal Express or other
reliable overnight mail delivery, delivery charges prepaid, or five (5) days
after being mailed by registered or certified mail, postage prepaid, as follows:
If to Xxxxx:
c/o Contemporary Constructors, Inc.
00000 Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000
If to Frost:
The Frost National Bank
Attn: Xxxx Xxxxxx (T-5)
000 Xxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
or to such other person or persons or address or addresses as may be designated
by written notice to the other parties as provided hereunder.
6. Adjustments. In the event of any change in the nature or amount of
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any Put Shares by reason of any stock dividend, split-up, reclassification,
recapitalization, merger, consolidation or reorganization, the purchase price
thereof that Xxxxx shall be required to pay and/or the number of Put Shares
subject to any such change that Xxxxx shall receive shall be appropriately and
equitably adjusted to reflect any such change.
7. Severability. If any provision of this Put Agreement or the
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application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid and
unenforceable to any extent, the remainder of this Put Agreement or the
application of such provision to such person or circumstances other than those
to which it is so determined to be invalid and unenforceable, shall not be
affected thereby, and each provision hereof shall be validated and shall be
enforced to the fullest extent permitted by law.
8. Waivers. Any failure by either party to this Agreement to comply with
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any of its or his obligations, agreements or covenants hereunder may be waived
by the other party hereto. No party hereto will be deemed as a consequence of
any act, delay, failure, omission, forbearance or other indulgences granted from
time to time by another party hereto: (a) to have waived, or to be
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estopped from exercising, any of its rights or remedies under this Put
Agreement, or (b) to have modified, changed, amended, terminated, rescinded, or
superseded any of the terms of this Put Agreement, unless such waiver,
modification, amendment, change, termination, rescission, or supersession is
expressed in writing and signed by the parties hereto or, where applicable, a
duly authorized officer of the parties hereto, to be bound thereby.
9. Entire Agreement. This Put Agreement embodies the entire agreement
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and understanding of the parties hereto with respect to the subject matters
hereof and supersedes any prior agreement and understanding between the parties.
10. Execution of Additional Documents. Each party hereto will at any
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time, and from time to time after the date hereof, upon reasonable request of
the other party, execute, acknowledge and deliver all such further acts, deeds,
assignments, transfers, conveyances, and assurances as may be required to carry
out the intent of this Agreement; provided, however, this Agreement shall be
effective regardless of whether any such additional documents are executed.
11. Specific Performance. Each of the parties acknowledges that failure
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to comply with any of the terms and restrictions of this Agreement could result
in injury to each other party that would be substantial, irreparable and for
which the parties would not have an adequate remedy at law or in damages.
Accordingly, each party consents to the issuance of an injunction or the
enforcement of other equitable remedies against him, his successor and assigns
at the suit of an aggrieved party without the posting of any bond or other
security, to compel specific performance of all of the terms hereof, and waives
any defenses thereto, including, without limitation, the defenses of (i) failure
of consideration, (ii) breach of any other provision of this Agreement and (iii)
availability of relief in damages.
12. Governing Law and Binding Effect. This Put Agreement shall be
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governed by the laws of the State of Texas and shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
successors and assigns.
13. Counterparts. This Put Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
14. Headings. Headings of the sections in this Put Agreement are for
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reference purposes only and shall not be deemed to have any substantive effect.
15. No Oral Modification. This Put Agreement cannot be amended or
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terminated orally, but only by a writing duly executed by the parties hereto.
16. Assignability. No party may assign its rights or obligations under
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this Put Agreement without the prior written consent of the other party hereto,
and any attempted assignment without consent shall be void and of no effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year first above written.
THE FROST NATIONAL BANK,
a national banking association
By:
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Name:
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Title:
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XXXXXXX X. XXXXX
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