STOCK AGREEMENT
This
Stock Agreement (hereinafter referred to as the “Stock Agreement”) made and
entered into as of this 4th day of February 2010, by and between Xxxxxxx X.
Xxxx, Xx., individually (hereinafter referred to as “Pace”), and Future Gas
Holdings, Ltd, (hereinafter referred to as the “Buyer”)
WHEREAS,
JBM Energy Company, LLC (“Seller”) and Buyer have entered into a Coal Buy and
Sell Agreement, and Buyer and Pace have entered into a Mineral Buy and Sell
Agreement, and a Consulting Agreement, all of even date herewith,
Now,
THEREFORE, as additional consideration for the execution of the aforesaid
Agreements and of the covenants and conditions hereinafter set forth, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
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1.
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Buyer
incorporates in this Stock agreement by reference hereto all of the
"Representations and Warranties of Buyer" set forth in paragraph 9 of the
Coal Buy and Sell Agreement between Buyer and JBM Energy Company,
LLC.
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2.
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Buyer
agrees to issue to Pace One Million (1,000,000) shares of Buyer's common,
voting stock at the following times and in the following
amounts:
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a.
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250,000
shares at the closing date of the Coal Buy and Sell
Agreement.
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b.
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250,000
shares six (6) months following the aforesaid closing
date.
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c.
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250,000
shares twelve (12) months following the aforesaid closing
date.
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d.
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250,000
shares eighteen (18) months following the aforesaid closing
date.
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Such stock issued to Pace shall be
fully paid and non-assessable and shall have all the
rights
and privileges as any other common, voting stock issued by
Buyer. Buyer agrees that the 1,000,000 shares issued to Pace will be
treated the same as any other common, voting stock issued by Buyer, including,
without limitation, with respect to stock splits, dividends and other stock
distributions, and other form of recapitalizations. The stock issued
to Pace and any increases thereto resulting from the above actions shall be
subject to dilution in the same manner and in the same proportion as the other
common, voting stock of Buyer.
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3.
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a. Buyer
agrees that at Pace's request, it will at its expense take all action
necessary to allow Pace to be able to sell and transfer the shares issued
to Pace hereunder at such time and in such manner as the law permits,
including, without limitation, authorizing and directing the removal of
legends on the stock, if any.
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b. If
Buyer publicly registers shares of Buyer's common stock, at Pace's request Buyer
will include Pace's shares in the registration at no cost to Pace. If
Buyer has not registered its shares, Pace will have an option to require Buyer
to purchase Pace's shares at a price to be agreed upon by Buyer and
Pace. If Buyer and Pace cannot agree on the price of such shares, the
price will be determined by the majority vote of three (3) appraisers, one
appointed by buyer, one appointed by Pace, and one appointed by the two
appraisers. If the two appraisers cannot agree on the third
appraiser, the appointment will be made by the American Arbitration
Association. The ruling by a majority of the appraisers will be final
and binding upon both Buyer and Pace. Seller can exercise this option
at any time following three (3) years from the date of this Stock Agreement or
earlier if Buyer sells the coal or exchanges it for other considerations, or
breaches or defaults under the Coal, Mineral or Consulting
Agreements.
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4.
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BREACH;
REMEDIES
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x.
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Xxxx
agrees that the Buyer's obligations under this Stock Agreement are
conditioned upon, and subject to, the closing of the Coal Buy and Sell
agreement, the Mineral Buy and Sell Agreement, and the Consulting
Agreement. If Buyer fails to timely close the Coal Buy and Sell
and the Mineral Buy and Sell transactions and Pace and JBM are willing and
able to perform all of their obligations to be performed at closing, Pace
may at Pace's option (i) deem this Stock Agreement terminated, null, void
and of no further force and effect, or (ii) initiate any other remedy at
law or in equity permitted under Montana law including, without
limitation, an action for specific
performance.
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b.
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Buyer's
Breach: In the event that Buyer fails to timely deliver
to Pace any installment of Buyer's stock as set forth in paragraph 2
above, or fails to perform any agreement, covenant, representation or
warranty under this Stock Agreement, which failure is not cured within
thirty (30) days after written notice thereof by Pace to Buyer, Pace may
at Pace's option (i) deem this Stock Agreement terminated, null, void and
of no further force and effect at which time Buyer shall have no further
rights or liabilities under this Stock Agreement and all the stock
delivered by Buyer shall be deem forfeited and retained by Pace, or (ii)
initiate action for any other remedy at law or in equity permitted under
Montana law including, without limitations, an action for specific
performance.
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x.
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Xxxx'x
Breach: In the event Pace fails to perform any
agreement, covenant, representation or warranty under this Stock
Agreement, and Buyer is at that time ready, willing and able to perform
all obligations by Buyer to be performed, Buyer may at Buyer's option: (i)
deem this Stock Agreement terminated, null, void and of no further force
or effect, at which time Pace shall have no further rights or liabilities
under this Stock Agreement, or (ii) initiate action for any other remedy
at law or in equity permitted under Montana law including, without
limitation, an action for specific
performance.
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5.
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INTEGRATIONS; SURVIVAL
OF WARRANTIES; AMENDMENT
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Unless
otherwise agreed in writing, this Stock Agreement represents the entire
understanding of the parties with respect to the subject matter referenced, and
supersedes all prior understandings and agreements heretofore made by and
between the parties; provided
that the parties’ respective warranties and representations shall
survive execution of
this Stock Agreement. Neither this Stock Agreement nor any provision
hereof may be amended, waived, modified or discharged except by an agreement in
writing signed by all parties
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6.
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ATTORNEY’S
FEES
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In
the event of any litigation to construe and/or enforce the terms of this
Stock Agreement, the party prevailing in such action shall be entitled to
recover its reasonable attorney’s fees and costs in addition to any other
damages or relief to which such party may be
entitled.
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7.
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FACSIMILE
SIGNATURES
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Both
parties agree that facsimile signatures by any party will be treated as
original signatures for the purpose of this
transaction.
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8.
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NOTICES
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Any
and all notices required under this Stock Agreement shall be in writing
and shall be served upon the respective parties at the addresses shown
below or to such other address as the parties may designate by written
notice to the other.
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PACE:
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BUYER:
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Xxxxxxx
X. Xxxx,
Xx. Future
Gas Holdings, Ltd
2139
Xxxxx’x Church
Road X.X.
Xxx 000, Xxxx Xxxxxx
Xxxxxxx,
XX 00000 Charletstown,
Nevis
Director: Xxxxx Xxxx
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Any
notice to be given under this Stock Agreement shall be sent
by:
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a.
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Certified
mail, return receipt requested, in which case notice shall be deemed
delivered five (5) business days after deposit, postage prepaid in the
United States Mail; or
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b.
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a
nationally recognized overnight courier, in which case notice shall be
deemed delivered three (3) business days after deposit with that
courier.
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9.
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EXECUTION IN
COUNTERPARTS; TELEFACSIMILE
SIGNATURES
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This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
instrument; and the parties may execute copies sent by telefacsimile, and
return signed copies by telefacsimile. Copies signed and
returned by telefacsimile shall be deemed and considered executed
counterparts, but a party executing a copy and transmitting same by
telefacsimile shall promptly mail or overnight to the other parties copies
bearing the transmitting party’s original
signature.
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10.
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TIME IS OF THE
ESSENCE
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Time is of the essence in this Stock
Agreement.
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11.
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CONFIDENTIALITY
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Pace
and Buyer shall not disclose any terms or provisions of this Stock
Agreement to any other persons except to professionals who require such
information in the performance of this Stock Agreement, and both parties
will treat all information disclosed to it as confidential information and
will not make further disclosure to third parties without the consent of
the disclosing party.
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Executed
as of this 4th day of February, 2010.
PACE: BUYER:
Future Gas Holdings, Ltd
___________________ _____________________
Xxxxxxx
X. Xxxx,
Xx. Xxxxx
Xxxx
Individually Director
