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STOCK PUT AGREEMENT
THIS STOCK PUT AGREEMENT is made and entered into as of the 2 day of
April, 1997, by and among XXXXXXX X. XXXX, XX. ("Xxxx") and EATERIES, INC.
(the "Company").
RECITALS
X. Xxxx is President of the Company.
B. In order to retain the services of Orza, the Company desires
to xxxxx Xxxx'x estate or legal representative the right in the event of his
death to cause the Company to purchase shares of common stock of the Company
(the "Common Stock") owned or controlled, directly or indirectly, by Orza or
members of his immediate family on the date of his death.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. GRANT OF PUT. The Company hereby grants Orza and his estate
or other legal representative the right (but not the obligation) to compel the
Company to purchase all or part of the Common Stock owned by Orza or members of
his immediate family (i.e. spouse or children) or controlled by any of them
through trusts, partnerships, corporations or other entities on the date of
Orza's death and any Common Stock acquired by Orza's estate or other legal
representative after Orza's death pursuant to the exercise of stock options
held by Orza at the time of his death.
2. PURCHASE PRICE. The per share purchase price payable by the
Company for Common Stock purchased under this Agreement shall be the greater of
(a) the highest closing price (as hereinafter defined) of a share of Common
Stock during the sixty (60) days preceding the date of Orza's death or (b) two
times the net book value per share of Common Stock as of the last day of the
calendar month immediately preceding the month of Orza's death as reflected in
the Company's regularly maintained financial records; provided, that, in any
event the total purchase price shall not exceed the proceeds payable to the
Company from the key man life insurance policy maintained on the life of Orza.
The "closing price" shall be (x) if the Common Stock is then traded on the
over-the-counter market, the mean between the highest closing bid and lowest
closing asked prices for a share of the Common Stock as reported by the
National Association of Securities Dealers Automated Quotation System, or if
not reported by that system, the mean between the closing bid and asked prices
as quoted by a source designated by the Board of Directors of the Company, or
(y) if the Common Stock is listed on a national or regional stock exchange, the
closing sales price per share on such exchange. The Company shall escrow
proceeds from the key man life insurance policy maintained on the life of Orza
on terms mutually acceptable to Orza's estate or other legal representative
until such time as the put right granted in this Agreement has been fully
exercised or has fully expired.
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3. TERM OF PUT. The put right granted under this Agreement shall
commence on the date of this Agreement and shall continue for a period of one
year after the date of Orza's death provided that Orza is a full-time employee
of the Company (or its successor) on the date of his death (the "Put Period").
If Orza shall for any reason cease to be a full-time employee of the Company
prior to his death, then this Agreement and the rights and obligations of the
parties hereunder shall terminate on the date of such cessation of employment.
4. CLOSING. Orza's estate or other legal representative shall
exercise the put right granted under this Agreement by giving written notice of
exercise to the Company during the Put Period. Closing of the exercise of the
put right shall take place at a time selected by the Company within ninety (90)
days of the date written notice of exercise is given even if the Closing occurs
beyond the Put Period. At the Closing, the Company shall deliver to Orza's
estate or other legal representative payment for the full amount of the
purchase price, which payment shall be made by cashiers check, wire transfer or
other mutually-agreeable methods.
5. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties.
6. MISCELLANEOUS.
(a) All costs and expenses incurred in connection with
this Agreement and the transaction contemplated hereby shall be paid by the
party incurring such expense.
(b) This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Oklahoma.
(d) All notices or other communications required or
permitted hereunder shall be in writing and shall be delivered in person or
sent by United States certified or registered mail, postage prepaid, return
receipt requested, or by overnight express mail, or by telex, facsimile or
telecopy to the address of the party set forth below. Any such notice shall be
effective upon receipt or three days after being placed in the mail, whichever
is earlier.
If to Eateries: Eateries, Inc.
0000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxx, Xx.
Facsimile: (000) 000-0000
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If to Orza: [To be provided.]
(e) Time is of the essence in the performance and
interpretation of the terms of this Agreement.
Executed effective as of the date first set forth above.
/S/
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Xxxxxxx X. Xxxx, Xx.
EATERIES, INC.
By: /S/
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Its: /S/
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