AMENDMENT TO BUY-SELL AND STOCK OPTION AGREEMENT
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THIS AMENDMENT TO BUY-SELL AND STOCK OPTION AGREEMENT is made August 29,
1997 and is effective as of June 29, 1997 by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇.
▇▇▇▇▇"), and ENERGY CORPORATION OF AMERICA ("ECA").
WHEREAS, ▇▇. ▇▇▇▇▇ and ECA entered into a Buy-Sell and Stock Option
Agreement dated as of July 8, 1996; and
WHEREAS, pursuant to the terms and conditions of the July 8, 1996 Buy-Sell
and Stock Option Agreement, ▇▇. ▇▇▇▇▇ had agreed to sell and transfer 16,000
shares of ECA common stock to ECA; and
WHEREAS, ▇▇. ▇▇▇▇▇ and ECA have amended the terms of such sale as follows:
1. ▇▇. ▇▇▇▇▇ sold 3,950 shares of ECA common stock to ECA in July, 1996.
2. ▇▇. ▇▇▇▇▇ granted ECA the option to purchase 11,850 shares of ECA
stock on the terms and conditions provided in the July 8, 1996 Buy-Sell and
Stock Option Agreement, and
3. ▇▇. ▇▇▇▇▇ transferred 200 shares of ECA common stock to P. T. Gates
in July, 1996; and
WHEREAS, the parties desire to amend the Buy-Sell and Stock Option
Agreement to memorialize such mutually agreed to changes;
NOW, THEREFORE, ▇▇. ▇▇▇▇▇ and ECA do hereby agree that the Buy-Sell and
Stock Option Agreement shall be amended as follows:
1. Paragraph 1 is deleted in its entirety and the following paragraph
is substituted in its place:
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TRANSFER OF 3,950 SHARES AND ISSUANCE OF NEW CERTIFICATE
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The parties acknowledge that as of July, 1996 ▇▇. ▇▇▇▇▇ transferred, sold
and assigned to ECA, and ECA purchased from ▇▇. ▇▇▇▇▇ 3,950 shares of the common
stock of ECA, a West Virginia corporation (the "Initial Shares") at a price of
$75.00 per share for a total price of $296,250.00. The parties further
acknowledge that ECA has paid ▇▇. ▇▇▇▇▇ the entire purchase price of $296,250.00
for the Initial Shares. To effect such transaction, ▇▇. ▇▇▇▇▇ delivered to ECA
Stock Certificate No. 13 representing 80,400 shares of ECA common stock, and at
▇▇. ▇▇▇▇▇'▇ request and direction, ECA issued Certificate No. 57 representing
200 shares to P. T. Gates, Certificate No. 58 representing 16,000 shares to ▇▇.
▇▇▇▇▇, Certificate No. 59 representing 16,000 shares to ▇▇. ▇▇▇▇▇, Certificate
No. 60 representing 16,000 shares to ▇▇. ▇▇▇▇▇, Certificate No. 61 representing
16,000 shares to ▇▇. ▇▇▇▇▇ and Certificate No. 62 representing 400 shares to ▇▇.
▇▇▇▇▇. The remaining 15,800 shares were transferred to ECA of which 3,950 shares
were purchased by ECA and the remaining 11,850 shares belong to ▇▇. ▇▇▇▇▇. ECA
does hereby agree to issue to ▇▇. ▇▇▇▇▇ a new stock certificate representing
11,850 shares of common stock of ECA.
2. Paragraph 2 is deleted in its entirety and the following paragraph
is substituted in its place:
DEPOSIT INTO ESCROW AND OPTION TO PURCHASE
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In addition to the 64,000 shares of ECA common stock which ▇▇. ▇▇▇▇▇ has
granted ECA the option to purchase, ▇▇. ▇▇▇▇▇ hereby grants to ECA an option to
purchase an additional 11,850 shares (said 75,850 shares are hereinafter
collectively referred to as the "Option Shares").
▇▇. ▇▇▇▇▇ will endorse the stock certificates representing the Option
Shares and deposit the certificates with an escrow agent mutually selected with
ECA (the "Escrow Agent").
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The Escrow Agent shall hold the Option Shares in escrow during the Option
Period (as defined below) and will deliver the Option Shares to ECA if and when
ECA exercises the option granted to it below. In the event all or any portion of
the Option Shares remain in escrow at the expiration of the Option Period, the
Escrow Agent shall return all such remaining Option Shares to ▇▇. ▇▇▇▇▇, his
heirs or assigns. Accordingly, ▇▇. ▇▇▇▇▇ hereby grants to ECA an exclusive
option to purchase the Option Shares during the five year period following the
execution of this Amendment to the Buy-Sell and Stock Option Agreement (the
"Option Period") as follows:
a. ECA may purchase 25,283.33 of the Option Shares during each of the
next three years for the purchase price of $75.00 per share, payable in
accordance with Paragraph 5 below, by providing notice to ▇▇. ▇▇▇▇▇ of its
desire to purchase such shares. Such notice must be provided on or before June 1
of each year.
b. In the event ECA fails to exercise, in any year, its option to
purchase the Option Shares as provided in subparagraph a above, ECA shall have
an additional period of two (2) years after July 1, 2000, or until July 1, 2002,
in which it may elect to purchase any of the remaining Option Shares by
providing reasonable notice to ▇▇. ▇▇▇▇▇ and by paying the purchase price of
$75.00 per share in accordance with Paragraph 5 below.
c. ECA shall have the absolute right, in its sole discretion, to
accelerate all options to purchase under this Agreement and to purchase all, or
any portion of the Option Shares at any time during the Option Period.
3. Paragraph 3 is deleted in its entirety, and the following paragraph
is substituted in its place:
THE PURCHASE PRICE
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The purchase price for the Initial Shares was $75.00 per share (Two Hundred
Ninety-Six Thousand Two Hundred Fifty Dollars ($296,250.00)) which purchase
price was paid in full by ECA to ▇▇. ▇▇▇▇▇. The purchase price for the Option
Shares shall be $75.00 per share, payable as provided in Paragraph 5.
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4. Paragraph 4 is deleted in its entirety, and the following paragraph
is substituted in its place:
CLOSING
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In the event ECA elects to exercise the option(s) to purchase all or any
portion of the Option Shares pursuant to Paragraph 2, delivery of the fully
endorsed stock certificates relating to such shares shall take place at ▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. All payments by ECA due pursuant to
this Agreement shall be made by delivery of the payment in person to such place
as may be directed by ▇▇. ▇▇▇▇▇.
5. Paragraph 5 is deleted in its entirety, and the following paragraph
is substituted in its place:
PAYMENT
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In the event ECA elects to exercise the option(s) to purchase all or any
portion of the Option Shares pursuant to Paragraph 2, ECA will pay the purchase
price for such shares in four (4) equal quarterly installments, due July 1,
October 1, January 1, and March 1 following the exercise of such option. ECA
shall have the right, at its sole discretion, to pay any or all of the quarterly
installments prior to the time the same are due.
6. Paragraph 7 is amended to read as follows:
DIVIDENDS
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All dividends, voting rights and other incidents of ownership of the 3,950
Initial Shares transferred shall immediately vest in ECA. All dividends declared
upon the Option Shares, together with all voting rights and all other incidents
of ownership, shall be retained by ▇▇. ▇▇▇▇▇ unless and until ECA shall exercise
its options to purchase all or any of the Option Shares pursuant to Paragraph 2
of this Agreement. Upon exercise of each of the options and the
transfer of the Option Shares, all dividends, voting rights and other incidents
of ownership associated with the shares transferred shall vest in ECA.
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7. Unless amended hereby, all other provisions of the Buy-Sell and
Stock Option Agreement dated July 8, 1996 are in full force and effect.
8. COUNTERPARTS. This Amendment to Buy-Sell and Stock Option Agreement may
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be executed in two counterparts, each of which shall be deemed an original,
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have signed this Amendment to Buy-Sell and
Stock Option Agreement.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
ENERGY CORPORATION OF AMERICA
/s/ ▇▇▇▇ ▇▇▇▇
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By: ▇▇▇▇ ▇▇▇▇
Its: CEO
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