PURCHASE AGREEMENT
This Purchase Agreement ("Agreement") is made effective this 20th day
of December, 1999 ("Effective Date") by and between Power Exploration, Inc.
("Power"), a Nevada corporation with a principal office at 0000 Xxxxxxxxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxx, and Trident III, L.L.C. ("Trident") a Cayman
Islands, West Indies exempted company with a principal office located at 000
Xxxx Xxx Xxxx, Xxxxx Xxxxxx BWI, with respect to the following:
RECITALS
WHEREAS, contemporaneous with the execution of the within Agreement,
the parties hereto have executed a Mutual Release and Compromise Settlement
Agreement ("Release") the terms of which Release are incorporated herein by
reference for all purposes;
WHEREAS, pursuant to the terms of the Release the parties hereto are
thereby compromising disputed issues arising between Power and Trident; and
WHEREAS, as part of the consideration for the Release the parties
hereto are hereby entering into the within Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and adequacy of which is expressly acknowledged, Power and Trident agree
as follows:
1. Purchase of Stock as Consideration for Release.
Upon the terms and conditions contained herein, Power agrees to sell,
and Trident agrees to buy, Two hundred and seventy nine thousand eight hundred
and sixty one (279,861) shares of Power's common stock ("Stock" or "Shares")
restricted pursuant to Rule 144 of the Securities Act of 1933 (the "Act"), in
exchange for the mutual promises, covenants and agreements set forth in the
Release. Power common stock has traded in over the counter trading on the
electronic bulletin board at between $2.50 and $8.25 during the ninety day
period ending on January 25, 2000.
2. Delivery of Stock.
Trident hereby acknowledges delivery and receipt of the Stock.
3. Representation and Warranties of Trident:
a. Trident is acquiring the Shares for its own account and not with a
view to any distribution within the meaning of the Securities Act of
1933, as amended (the "Act"). Trident acknowledges that it has been
advised and is aware that
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(i) Power is relying upon an exemption under the Act predicated upon
Trident's representations and warranties contained in this Agreement,
and (ii) the Shares issued to Trident pursuant to this Agreement will
be "restricted stock" within the meaning of the rules and regulations
(the "Rules") promulgated by the United States Securities and Exchange
Commission ("SEC") pursuant to the Act. Unless, and until, the Shares
are registered under the Act, they will be subject to limitations upon
resale set forth in the Rules or in other administrative
interpretations by the SEC in effect at the time of the proposed sale
or other disposition.
b. Trident has received all of the information it considers necessary or
appropriate for determining whether to purchase the Shares. Trident is
familiar with the business, affairs, risks and properties of Power.
Trident has had an opportunity to ask questions of and receive answers
from Power, and its officers, directors and other representatives
regarding Power and the terms and conditions of the offering of the
Shares. Trident has had the opportunity to obtain any additional
information Power possesses or could acquire without unreasonable
effort or expense, necessary to verify the accuracy of the information
furnished.
c. Trident has such knowledge and expertise in financial and business
matters that it is capable of evaluating the merits and substantial
risks of an investment in the Shares and is able to bear the economic
risks relevant to the purchase of the Shares hereunder.
d. Trident is relying solely upon independent consultation with its
professional, legal, tax and accounting advisors and such others as
Trident deems to be appropriate in purchasing the Shares; Trident has
been advised to, and has consulted with, its professional tax and
legal advisors with respect to any tax consequences of investing in
Power.
e. Trident recognizes that an investment in the securities of Power
involves substantial risk and understands all of the risk factors
related to the purchase of the Shares.
f. Trident understands that there may be no market for the Shares.
g. Trident's financial condition is such that Trident is under no present
or contemplated future need to dispose of any portion of Shares to
satisfy any existing or contemplated undertaking, need or
indebtedness.
h. Without in any way limiting the representation set forth above,
Trident further agrees not to make any disposition of all or any
portion of the Shares unless and until:
(1) There is then in effect a registration statement under the Act
covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
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(2) Trident shall have notified Power of the proposed disposition and
shall have furnished Power with a detailed statement of the
circumstances surrounding the proposed disposition, and if
requested by Power, Trident shall have furnished Power with an
opinion of counsel, reasonably satisfactory to Power and its
counsel, that such disposition will not require registration
under the Act.
i. It is understood that the certificates evidencing the Shares will bear
substantially the following legends:
"The securities evidenced hereby have not been registered under the
Securities Act of 1933, as amended (the "Act") nor qualified under the
securities laws of any states, and have been issued in reliance upon
exemptions from such registration and qualification for nonpublic
offerings. Accordingly, the sale, transfer, pledge, hypothecation, or
other disposition of any such securities or any interest therein may
not be accomplished except pursuant to an effective registration
statement under the Act and qualification under applicable State
securities laws, or pursuant to an opinion of counsel, satisfactory in
form and substance to Power, to the effect that such registration and
qualification are not required."
j. Trident confers full authority upon Power (i) t instruct its transfer
agent not to transfer any of the Shares until it has received written
approval from Power and (ii) affix the legend in subparagraph (i)
above to the face of the certificate or certificates representing the
Shares.
k. Trident understands that Power is relying upon Trident's
representations and warranties as contained in this Agreement in
consummating the sale and transfer of the Shares without registering
them under the Act or any law. Therefore, Trident agrees to indemnify
Power against, and hold it harmless from, all losses, liabilities,
costs, penalties and expenses (including attorney's fees) which arise
as a result of a sale, exchange or other transfer of the Shares other
than as permitted under this Agreement. Trident further understands
that Power will make an appropriate notation on its transfer records
of the restrictions applicable to these Shares.
4. Representations and Warranties of Power. Power represents and warrants
that:
a Power is a corporation duly organized, validly existing under the laws
of the State of Nevada.
b. Power has all necessary corporate power and authority under the laws
of Nevada and all other applicable provisions of law to own its
properties and other assets now owned by it, to carry on its business
as now being conducted, and to execute and deliver and carry out the
provisions of this Agreement.
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c. All corporate action on the part of Power required for the lawful
execution and delivery of this Agreement and the issuance, execution
and delivery of the Shares has been duly and effectively taken. Upon
execution and delivery, this Agreement will constitute a valid and
binding obligation of Power, enforceable in accordance with its terms,
except as the enforceability may be limited by applicable bankruptcy,
insolvency or similar laws and judicial decisions affecting creditors'
rights generally.
5. Survival of Representations, Warranties and Covenants. The representations,
warranties and covenants made by Power and Trident in this Agreement shall
survive the purchase and sale of the Shares.
6. Transfer Agent Instructions. Power's transfer agent will be instructed to
issue one or more stock certificates representing the Stock set forth in
Section 1 above, with the restrictive legend set forth in Section 3 above,
in the name of Trident and will be advised that the Shares have been issued
pursuant to Rule 144 of the Securities Act of 1933. Power further warrants
that no stop transfer instructions other than instructions to issue the
Shares will be given to its transfer agent and that these Shares shall be
freely transferable on the books and records of Power, subject to
compliance with applicable securities laws and the restrictions set forth
herein.
7. Stock Delivery Instructions. Trident hereby acknowledge receipt of the
share certificates evidencing the Stock.
8. Governing Law. This Purchase Agreement shall be governe by and interpreted
in accordance with the laws of the State of Texas, without regard to its
law on the conflict of laws and any dispute arising hereunder shall be
brought in a court of competent jurisdiction in Tarrant County, Texas.
9. Miscellaneous
A. Notices. Any notice under this Agreement shall be deemed to have been
sufficiently given if sent by registered or certified mail, postage
prepaid, addressed as follows:
To the attention of the President at the address first indicated above
for the respective entity, or any new address which the parties hereto
may hereafter designate by notice. All notices shall be deemed to have
been given as of the date of receipt.
B. Entire Agreement. This instrument and the Release set forth the entire
agreement between the parties hereto and no prior or contemporaneous
written or oral statement or agreement shall be recognized or
enforced.
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C. Severability. If a court of competent jurisdiction determines that any
clause or provision of this Agreement is invalid, illegal or
unenforceable, the other clauses and provisions of the Agreement shall
remain in full force and effect. The clauses and provisions which the
Court determines are void, illegal or unenforceable shall be limited
so that they remain in effect to the extent permissible by law.
D. Assignment. Neither party hereto may assign this Agreement without the
express written consent of the other party. However, if the other
party consents to the assignment such assignment will be binding and
inure to the benefit of the assignee.
E. Waiver of Jury Trial. To the extent permitted by law, the parties
hereby irrevocably waive a jury trial in the event of litigation. The
parties included this provision because of the cost and delay of a
jury trial and because the parties believe that a jury trial would not
be necessary to resolve any dispute or claim between them.
F. Attorney's Fees. If either party institutes legal action or other
proceedings (including, but not limited to, arbitration) to enforce or
to declare any right or obligation under this Agreement or as a result
of a breach, default or misrepresentation in connection with any of
the provisions of this Agreement, or otherwise because of a dispute
among the parties, the successful or prevailing party will be entitled
to recover reasonable attorney's fees. Attorney's fees shall include
fees for appeals, collections and other expenses incurred in such
action or proceeding. Legal fees shall be awarded in addition to any
other relief to which the prevailing party may be entitled.
G. No Third Party Beneficiary. Nothing in this Agreement, expressed or
implied, is intended to confer any rights or remedies upon any
person other than the parties hereto and their successors.
H. Further Assurances. At any time and from time to time, after the date
of this Agreement, each party hereto will execute such additional
instruments and take such actions as are reasonably necessary to
confirm or perfect title to the Shares or otherwise to carry out the
intent and purposes of this Agreement.
I. Amendment or Waiver. Every right and remedy provided herein shall be
cumulative with every other right or remedy at law, or in equity, and
may be enforced concurrently herewith. No waiver by any party of the
performance of any obligation by the other shall be construed as a
waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time, this Agreement may be
amended by a writing signed by both parties hereto. Any term or
condition of this Agreement may be waived or the time for performance
hereof may be extended by a writing signed by the party or parties for
whose benefit the provision is intended.
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J. Headings. The section and subsection headings in this Agreement are
inserted for convenience only. In the event of a conflict between a
heading and the text of this Agreement, the text shall control the
meaning and interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
DATED this 20th day of December, 1999.
POWER EXPLORATION, INC.
By:/s/Xxx Xxxx Xxxxxxx
---------------------
Printed Name: Xxx Xxxx Xxxxxxx
Title: President
TRIDENT III, L.L.C.
By:/s/Xxxxxxx X. Xxxx
---------------------
Printed Name: Xxxxxxx X. Xxxx
Title: Director
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