AMENDMENT NO. 5 TO ASSET ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION
AMENDMENT
NO. 5
TO
AND
PLAN
OF REORGANIZATION
THIS
AMENDMENT NO. 5 TO THE ASSET ACQUISITION AGREEMENT AND PLAN OF
REORGANIZATION
(this
“Amendment”) is made and entered into this 18th day of July, 2007, by and
between Tandem
Energy Corporation,
a
Colorado corporation (“Seller”), Platinum
Energy Resources, Inc.,
a
Delaware corporation (“Platinum”), and PER
Acquisition Corp.,
a
Delaware corporation (“Buyer”).
BACKGROUND
The
parties have entered into that certain Asset Acquisition Agreement and Plan
of
Reorganization dated October 4, 2006, as amended by Amendment No. 1 to the
Asset
Acquisition Agreement and Plan of Reorganization, dated December 6, 2006,
Amendment No. 2 to the Asset Acquisition Agreement and Plan of Reorganization,
dated February 9, 2007, Amendment No. 3 to the Asset Acquisition Agreement
and
Plan of Reorganization, dated March 29, 2007, and Amendment No. 4 to the Asset
Acquisition Agreement and Plan of Reorganization, dated June 1, 2007 (as
amended, the “Agreement”), which provides for the acquisition by Buyer of all of
the assets of Seller and the assumption by Buyer of substantially all of the
liabilities of Seller. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned thereto in the Agreement.
The
parties desire to amend the provisions of the Agreement on the terms and
conditions set forth herein.
TERMS
AND CONDITIONS
In
consideration of the mutual benefits to be derived from this Amendment, and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1.
The
reference in Section 7.01(b) of the Agreement to “June 30, 2007” is hereby
deleted and “August 31, 2007” is substituted in its place.
2.
Section 5.15 of the Agreement is hereby deleted in its entirety and the
following is substituted in its place:
5.15
Management Matters. On or before the Closing Date, Platinum shall amend its
bylaws to provide that the Chairman of the Board is the most senior officer
of
Platinum with ultimate authority for decisions relating to the general
management and control of the affairs and business of Platinum, and on the
Closing Date, Platinum shall enter into an employment agreement to be negotiated
in good faith with Xxx X. Xxxx providing for, among other things, the employment
of Xxx X. Xxxx as Platinum’s Chairman of the Board for an initial period of not
less than two years. On the Closing Date, Buyer shall enter into employment
agreements consistent with their respective written offers of employment and
to
be negotiated in good faith with Messrs. Xxxxxxx X. Xxxxxxxxxx, Xxxx Xxxxxx
and
Xxxxx Xxxxx providing for, among other things, the employment of Messrs.
Xxxxxxxxxx, Xxxxxx and Xxxxx by Buyer for a period of not less than two years.
On the Closing Date, Platinum shall elect Xxx X. Xxxx as a Class C Director
on
the Board of Platinum and an individual recommended by Xxx X. Xxxx to be an
independent member of the board (which individual shall be “independent” within
the meaning of the NASDAQ Corporate Governance Rules) as a Class A Director
on
the Board of Platinum, each filling the existing vacancies in their respective
Classes. For so long as Xxx X. Xxxx shall own at least one percent (1%) of
the
outstanding shares of Platinum, to the extent permitted by applicable law and
corporate governance rules, Platinum shall (i) cause Xxx X. Xxxx to be nominated
to the board as a Class C Director and submitted for election by the
shareholders of Platinum and (ii) cause an individual recommended by Xxx X.
Xxxx
to be an independent member of the board (which nominee shall be “independent”
within the meaning of the NASDAQ Corporate Governance Rules) to be nominated
to
the board as a Class A Director and submitted for election by the shareholders
of Platinum.
3.
Except
as set forth above, the remaining terms and conditions of the Agreement shall
not be amended by this Amendment and shall remain in full force and effect,
and
binding in accordance with their respective terms.
4.
This
Amendment may be executed in two or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
one and the same instrument.
SIGNATURES
To
evidence the binding effect of the foregoing terms and condition, the parties
have caused their respective duly authorized representative to execute and
deliver this Amendment on the date first above written.
Seller:
TANDEM ENERGY CORPORATION
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By:
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/s/
Xxx X. Xxxx
Xxx
X. Xxxx,
President
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Platinum:
PLATINUM ENERGY RESOURCES, INC.
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By:
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/s/
Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Chairman
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Buyer:
PER ACQUISITION
CORPORATION
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By:
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/s/
Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx President
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CONTROL
PERSON AGREEMENT
The
following persons hereby acknowledge that (i) they are the Control Persons
defined in the Agreement described in the Amendment, and (ii) they are executing
and delivering this Control Person Agreement in their individual capacities
to
consent to the amendments to the Agreement contained in the foregoing Amendment.
/s/
Xxx X. Xxxx
Xxx X. Xxxx /s/
Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx /s/
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx /s/
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx |