FINDERS AGREEMENT
FINDERS
AGREEMENT
THIS
FINDERS AGREEMENT (this
“Agreement”)
is
dated as of the 26th day of October, 2006, by and between Platinum Energy
Resources, Inc., a Delaware corporation (“Platinum”),
and
Xxxxx Xxxxxx, an individual (“Xxxxxx”).
WHEREAS,
on
January 26, 2006, Platinum, Tandem Energy Holdings, Inc. (“Tandem”)
and
PER Acquisition Corp. (“PER”)
and
certain stockholders of Tandem, entered into an Agreement and Plan of Merger
(as
amended, the “Merger
Agreement”)
pursuant to which PER was to merge with and into Tandem; and
WHEREAS,
in
connection with the proposed merger, on January 26, 2006, Platinum entered
into
a letter agreement with Xxxxxx pursuant to which Platinum agreed to pay to
Xxxxxx a fee for his services in connection with the proposed merger, including
introduction of the parties, as well as for future consulting services (the
“Letter
Agreement”);
and
WHEREAS,
in
connection with the parties’ determination to restructure the proposed
transaction, on October 4, 2006, the Merger Agreement was terminated by the
parties and on October 4, 2006, Platinum, PER, Tandem Energy Corporation
(“TEC”)
and
certain stockholders of Tandem, entered into an Asset Acquisition Agreement
and
Plan of Reorganization (the “Acquisition
Agreement”)
pursuant to which PER will acquire substantially all of the assets and assume
substantially all of the liabilities of TEC (the “Acquisition”);
and
WHEREAS,
in
light of the restructured transaction, on October 26th, 2006, the Letter
Agreement was terminated by the parties thereto and the parties acknowledged
that, notwithstanding the termination of the Letter Agreement, Platinum desires
to compensate Xxxxxx for his introduction of the parties
NOW
THEREFORE,
in
consideration of the mutual promises, covenants and agreements herein contained,
and 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. Fee
Platinum
hereby agrees to pay to Xxxxxx, in consideration for his introduction of TEC
to
Platinum, a fee of $3 million in cash upon consummation of the Acquisition
(the
“Fee”).
2. Representation
and Warranties
Xxxxxx
represents and warrants that, except as set forth on Exhibit A hereto, neither
he nor any of his affiliates (i) is a party to any contract or agreement with
Platinum, Tandem or TEC or any of their respective affiliates that has not
been
terminated; (ii) is an officer, director or employee of Platinum, Tandem or
TEC
or any of their respective affiliates; (iii) is principal of Redwood
Consultants, LLC or any of its affiliates; (iv) was involved in the negotiation
of the terms of, or documentation relating to, the Acquisition; (v) other than
in connection with investments as a principal, has been involved in buying
or
selling securities; or (vi) has been censured, disciplined, convicted, fined
or,
to Xxxxxx’x knowledge, investigated for any violations of any federal or state
securities laws.
3. Acknowledgements
Xxxxxx
hereby agrees and acknowledges the following:
(a) Regardless
of whether the Acquisition is consummated, neither Platinum nor Tandem nor
TEC
has any obligation to him or his affiliates pursuant to the Letter Agreement
or
otherwise in connection with his role relating to the Merger.
(b) In
the
event that the Acquisition is consummated, the Fee set forth herein as
consideration for his role in connection with the Acquisition constitutes the
full consideration payable to him or any of his affiliates and to which he
believes that he or any of his affiliates is entitled in such regard.
(c) To
the
extent that the Acquisition is not consummated for any reason, Platinum will
have no obligation to pay the Fee and neither Platinum nor Tandem nor TEC shall
have any liability to him or any of his affiliates.
4. Release
Xxxxxx,
on behalf of himself, his agents, representatives, attorneys, assigns, heirs,
executors, and administrators, hereby unconditionally and irrevocably remises,
releases and forever discharges Platinum, Tandem, TEC and Shamrock Energy
Corporation and their respective past, present and future officers,
stockholders, directors, employees, representatives, attorneys, agents,
successors, divisions, companies, subsidiaries, parents and affiliates (and
past, present and future agents, directors, officers, stockholders, employees,
representatives and attorneys of such divisions, companies, subsidiaries and
affiliates), or any of them (collectively, the “Releasees”), of and from any and
all suits, claims, demands, interest, costs, attorneys’ fees, expenses, actions
and causes of action, rights, liabilities, obligations, promises, contracts,
controversies, losses and debts of any nature whatsoever that Xxxxxx, or his
heirs, successors, legal representatives or assigns, now has, owns or holds,
or
at any time heretofore ever had, owned or held, or could have owned or held,
whether known or unknown, suspected or unsuspected. This release specifically
includes any and all contracts and agreements by and between any of the
Releasees and Xxxxxx and/or any of his affiliates, all of which are hereby
released, waived, terminated and discharged and any such contracts or agreements
shall be null and void and of no further effect as between the parties thereto,
except for the Consulting Agreement and the Termination Agreement, each dated
even date herewith. Xxxxxx further covenants and agrees that he shall forever
forbear from pursuing and does hereby waive and withdraw any legal proceedings,
administrative or judicial, against the Releasees asserting any claim of any
arising out of or that may have existed at any time on or prior to the date
of
this Agreement. Xxxxxx represents that he has not assigned any asserted or
unasserted claims to any person or entity and acknowledges that Platinum enters
into this Agreement in reliance on that representation. Nothing herein shall
preclude Xxxxxx from enforcing the terms of this Agreement.
5. Termination
This
Agreement shall terminate automatically upon the earlier to occur of termination
of the Acquisition Agreement or the liquidation of Platinum.
6. Miscellaneous
(a) Successors
and Assigns; Entire Agreement; No Assignment; Severability.
This
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors or heirs, distributes and personal representatives. This
Agreement contains the entire agreement between the parties with respect to
the
subject matter hereof and supersedes other prior and contemporaneous
arrangements or understandings, whether written or oral, with respect thereto.
This Agreement may not be assigned without the prior written consent of the
other party. If any portion of this Agreement is deemed unenforceable, such
provision shall be enforced to the fullest extent permitted by law and the
remainder of this Agreement shall remain in full force and effect.
(b) Notices.
All
notices, consents and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given (a) when delivered by hand
or (b) five (5) business days after being mailed, prepaid postage, certified
mail, return receipt requested as follows: If to the Company: Platinum Energy
Resources, Inc., 00 Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 Attention:
Xxxxx Xxxxxxxx, President, facsimile (000) 000-0000. If to Xxxxxx: Xxxxx X.
Xxxxxxxx Esq., Law Offices of Xxxxx X. Xxxxxxxx P.C., 0000 000xx
Xxxxxx,
Xxxxxxx, Xxxxx 00000, facsimile (000) 000-0000.
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(c) Changes;
No Waiver.
The
terms and provisions of this Agreement may not be modified or amended, or any
of
the provisions hereof waived, temporarily or permanently, without the prior
written consent of each of the parties hereto. A waiver or failure to enforce
the terms of this Agreement or any similar agreement by a party in one instance
shall not constitute a waiver of its rights hereunder with respect to other
violations of this or any other agreement. This Agreement may be executed in
separate counterparts, each of which shall be an original and all of which
when
taken together shall constitute one and the same agreement.
(d) Governing
Law.
This
Agreement and (unless otherwise provided) all amendments hereof and waivers
and
consents hereunder shall be governed by the internal law of the State of New
York, without regard to the conflicts of law principles thereof.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
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PLATINUM
ENERGY RESOURCES, INC.
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| By: | /s/ Xxxxx Xxxxxxxx | |
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Name: Xxxxx Xxxxxxxx |
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| Title: Chief Executive Officer | ||
| /s/ Xxxxx Xxxxxx | ||
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XXXXX XXXXXX |
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Exhibit
A
Exclusivity
Agreement, dated December 13, 2005, between Platinum and Xxxxxx
Confidentiality
Agreement, dated November 28, 2005, between Tandem and Xxxxxx
Consulting
Agreement, dated as of October 26, 2006, between Platinum and
Xxxxxx
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