WARRANT CLARIFICATION AND CONFIRMATION AGREEMENT
This
Warrant Clarification and Confirmation Agreement (this ‘‘Agreement’’), dated
November 3, 2006, is to the Warrant Agreement, dated as of October 24, 2005
(the
‘‘Warrant Agreement’’), by and between Platinum Energy Resources, Inc., a
Delaware corporation (‘‘Company’’), and American Stock Transfer & Trust
Company, a New York corporation (‘‘Warrant Agent’’).
WHEREAS,
Section
3.3.2 of the Warrant Agreement provides that Company shall not be obligated
to
deliver any securities pursuant to the exercise of a warrant unless a
registration statement under the Securities Act of 1933, as amended
(‘‘Securities Act’’), with respect to the common stock is
effective.
WHEREAS,
the
Warrant Agreement does not contain any provisions granting registered holders
of
Warrants the right to receive any cash or other consideration or otherwise
“net
cash settle” the Warrants in the event securities cannot be issued upon exercise
of the Warrants.
WHEREAS,
in
furtherance of the foregoing, the Company’s final prospectus, dated October 24,
2005, indicated (i) that no warrant would be exercisable unless at the time
of
exercise a prospectus relating to the common stock issuable upon exercise of
the
warrant is current and the common stock has been registered under the Securities
Act or qualified or deemed to be exempt under the securities laws of the state
of residence of the holder of the warrant and (ii) that the warrant may be
deprived of any value and the market for the warrant may be limited if the
prospectus relating to the common stock issuable upon the exercise of the
warrant is not current or if the common stock is not qualified or exempt from
qualification in the jurisdictions in which the holder of the warrant
resides.
WHEREAS,
as a
result of a comment received from the Securities and Exchange Commission
regarding the accounting treatment applicable to the warrants, the parties
hereto deem it desirable to amend the Warrant Agreement to clarify and confirm
that the registered holders do not have the right to receive a net cash
settlement in the event the Company does not maintain a current prospectus
relating to the common stock issuable upon exercise of the warrants at the
time
such warrants are exercisable.
NOW,
THEREFORE,
in
consideration of the mutual agreements contained herein 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
agree
to amend the Warrant Agreement as set forth herein.
1. Warrant
Agreement.
The
Warrant Agreement is hereby amended by adding the following sentence as the
penultimate sentence of Section 3.3.2:
‘‘Furthermore,
if the Company is unable to deliver any securities pursuant to the exercise
of a
Warrant as a result of the foregoing situations, the Company will have no
obligation to pay such registered holder any cash or other consideration or
otherwise ‘‘net cash settle’’ the Warrant.’’
2. Miscellaneous.
(a) Governing
Law.
The
validity, interpretation, and performance of this Agreement and of the Warrants
shall be governed in all respects by the laws of the State of New York, without
giving effect to conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. The Company hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the
courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may be served
by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
9.2 of the Warrant Agreement. Such mailing shall be deemed personal service
and
shall be legal and binding upon the Company in any action, proceeding or
claim.
(b) Responsibility
of the Warrant Agent.
The
Warrant Agent has no responsibility for the correctness of the recitals above
which shall be taken as statements of the Company, and makes no representations
as to the validity, sufficiency and enforceability of this
Agreement.
(c) Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and
assigns.
(d) Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding between the parties
as to the subject matter thereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among them.
Except as set forth in this Agreement, provisions of the Warrant Agreement
which
are not inconsistent with this Agreement shall remain in full force and effect.
This Agreement may be executed in counterparts.
(e) Severability.
This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore, in lieu
of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as part of this Agreement a provision as similar
in
terms to such invalid or unenforceable provision as may be possible and be
valid
and enforceable.
IN
WITNESS WHEREOF, the parties hereto have executed this Warrant Clarification
Agreement as of the date first written above.
| PLATINUM ENERGY RESOURCES, INC. | ||
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| By: | /s/ Xxxx Xxxxxxxxx | |
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Xxxx Xxxxxxxxx, Chairman |
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| AMERICAN STOCK TRANSFER & TRUST COMPANY | ||
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| By: | /s/ Xxxxxxx X. Xxxxxx | |
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Xxxxxxx X. Xxxxxx, Vice President |
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