May 31, 2011
Xxxxx X. Xxxx
Chief Executive Officer
High Plains Gas, Inc.
00000 Xxx Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Re: Eighth Amendment to Purchase and Sale Agreement
Dear Xx. Xxxx:
This relates to the February 2, 2011 Purchase and Sale Agreement between
X.X. Xxxxx Corporation ("Seller") and High Plains Gas, Inc. ("Buyer"), as
amended (the "Agreement").
As you know, the Closing of the transaction contemplated by the Agreement
is scheduled for today. However, you have informed us that Buyer is unable to
proceed with the Closing as required by the Agreement. As a result, Seller has
the right to terminate the Agreement and retain the Deposit, the Shares and the
New Shares pursuant to Article 11 of the Agreement.
In light of Buyer's efforts and without waiving its rights under the
Agreement, Seller is willing to accommodate Buyer and hold such termination in
abeyance pursuant to the following terms and conditions:
a. Buyer acknowledges that Seller has the absolute and unconditional right
to retain, and that Seller shall retain, the Deposit and the Shares and the New
Shares pursuant to Article 2 of the Agreement. Buyer has no claim whatsoever
and/or hereby waives any past, present or future claim to any right to recover
the Deposit, the Share or the New Shares.
b. Seller may continue to openly and actively pursue the sale of Assets to
any third party(ies) without any obligation to keep or have the third party(ies)
keep any discussions related thereto confidential. In doing so, Seller and any
third party(ies) with whom Seller engages shall have the ability to take all
such actions they deem necessary and appropriate to pursue a transaction as if
the Agreement had terminated.
c. Upon a notice delivered pursuant to Section 14.10 of the Agreement,
Seller may terminate the Agreement.
d. After termination Seller may hold the Assets or sell all or some of the
Assets to a third party(ies).
e. If, prior to Seller's delivery of a notice pursuant to paragraph (c)
above,
(1) Buyer delivers to Seller a notice that Buyer (i) is able to meet
each and every condition to Closing set forth in the Agreement (including,
without limitation, fully satisfying Buyer's representation and warranties
set forth in Sections 6.08 and 6.11), and (ii) is able to deliver all
instruments required of it at Closing by Seller (including, without
limitation, all instruments to complete the assignment and/or a novation of
all gathering and transportation agreements, surface related agreements,
office lease agreements, and any and all agreements requiring a third party
consent to assign), and
(2) such notice is also accompanied with copies of unconditional
commitments by third parties to fund the Closing for Buyer, true and
correct copies of all bonds approved by Governmental Authorities,
then Seller shall have the right, in its sole discretion, to pursue or not
pursue closing of a transaction with Buyer. If Seller chooses to pursue a
transaction, the timeline for closing shall be determined by Seller.
f. In the event that by June 30, 2011, Seller does not exercise its right
to terminate the Agreement under item (c) above, the Agreement shall
automatically terminate.
g. Except as expressly provided in this Amendment above, all terms of the
Agreement remain in full force and effect and nothing herein shall otherwise
affect any other provision of the Agreement or the rights and obligations of
Buyer and Seller therein.
h. This Amendment may be executed in one or more counterparts, each of
which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same instrument.
i. This Amendment shall be governed by and interpreted and enforced in
accordance with the terms of the Agreement.
If the foregoing accurately reflects our understanding, please sign and return a
copy of this letter agreement to the undersigned.
Very truly yours,
X.X. XXXXX CORPORATION
By: __________________________________
Xxxxxx X. Xxxxxxx
Vice President, Mergers and Acquisitions
AGREED AND ACCEPTED
to this ___ day of May, 2011 by
High Plains Gas, Inc.
By: _______________________________
Xxxxx X. Xxxx
Chief Executive Officer
