Exhibit 10.1
STOCK PURCHASE AGREEMENT
A Stock Purchase Agreement made the 8th day of December 2010 by and between
BIG CAT ENERGY CORPORATION, a Nevada corporation ("Big Cat") whose address is XX
Xxx 000, Xxxxx, Xxxxxxx 00000 and HIGH PLAINS GAS, INC., a Nevada corporation
("High Plains") whose address is 0000 Xxxxxxxx Xx, Xxxxxxxx, Xxxxxxx 00000.
RECITALS
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WHEREAS Big Cat is a publicly held company engaged in the distribution and
sale of certain natural resources technology; and
WHEREAS High Plains is a publicly held company engaged in the business of
exploration of natural resource properties in the United States; and
WHEREAS High Plains desires to purchase 20,000,000 shares of the common
stock, par value $.001 per share, of Big Cat (the "Big Cat Stock") and Big Cat
is willing sell the Big Cat Stock and to receive part payment through the
purchase of restricted common stock, par value $.001 per share of High Plains
(the "High Plains Stock") as provided herein and to grant High Plains a seat on
Big Cat's Board of Directors;
THEREFORE, for good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. STOCK PURCHASE. High Plains agrees to purchase 20,000,000 restricted
shares (the "Big Cat Shares") of common stock of Big Cat at a price of $.03 per
share for a total purchase price of $600,000. In connection with the purchase,
Big Cat agrees to issue to High Plains warrants (the "Big Cat Warrants") to
purchase 10,000,000 additional restricted shares of the common stock of Big Cat,
in the form attached hereto as Exhibit A, such warrants being exercisable at
$0.15 each for a period of five (5) years from the date of Closing. The Big
Cat Shares and the Big Cat Warrants shall be issued and delivered into Escrow
with Xxxxxx Law Group for delivery to High Plains within two business days after
all funds reflected in paragraph 2 hereto are paid in full.
2. PAYMENT. High Plains agrees to pay for the stock purchase as follows:
$75,000 wired to Big Cat on or before November 24, 2010 (which Big Cat hereby
acknowledges receipt in full).
(a) An additional $50,000, wired to Big Cat on or before December 15, 2010.
(b) An additional $75,000, wired to Big Cat on or before December 31, 2010.
(c) The balance of the purchase price paid by issuing to Big Cat such number
of restricted shares of High Plains common stock equal to four hundred thousand
dollars ($400,000) divided by 75% of the volume weighted average trading price
of the High Plains shares for the five trading days prior to the execution of
this Agreement. Such shares shall be issued into Escrow with Xxxxxx Law Group
and delivered within 2 business days after all of the foregoing funds are paid
in full.
3. CLOSING AND POST CLOSING MATTERS. The Closing of the purchase and sale
transactions (the "Closing") will occur informally and shall be effective upon
satisfaction of the conditions precedent specified below which shall occur on or
before December 10, 2010, 5:00 pm Mountain Standard Time unless otherwise agree
by the parties. Conditions precedent to the Closing are as follows:
1- Each party shall have received an executed copy of this Agreement with
Exhibits
2- High Plains shall have wired the $75,000 payment to Big Cat as provided
herein.
3- High Plains and Big Cat execute and enter into that certain Registration
Rights Agreement ("Registration Rights Agreement") in the form attached hereto
as Exhibit B.
POST CLOSING,
1. High Plains shall deliver to Escrow a stock certificate for the High
Plains Stock and a letter stating the basis of the computation of the number of
shares represented by the certificate within ten days of the Closing.
2. Big Cat shall have delivered to Escrow an original stock certificate of
Big Cat for 20,000,000 restricted common shares and a warrant to purchase an
additional 10,000,000 restricted shares, on terms provided herein, within ten
days of the Closing.
3. On or before December 15, 2010, High Plains shall wire $50,000 to Big
Cat's account.
4. On or before December 31, 2010, High Plains shall wire $75,000 to Big
Cat's account.
5. Big Cat shall register the Big Cat Stock and the shares of common stock
issuable upon exercise of the Warrant (the "Warrant Shares") pursuant to the
terms of the Registration Rights Agreement.
6. Each party may publicly announce the transaction by press release or
pursuant to Form 8-K as soon as Closing has occurred, or as otherwise required
by law.
4. BOARD APPOINTMENT. The Board of Directors of Big Cat has appointed
______________to serve as a member of Big Cat's Board of Directors, effective
upon the Closing and to serve until a successor is elected and qualified. A
Certificate of the Corporate Secretary of Big Cat including a copy of the Board
Resolution approving the board appointment of the High Plains nominee is
attached hereto as Exhibit A. High Plains agrees that its nominee will
promptly provide a completed Directors and officers Questionnaire and any other
necessary information to prepare SEC disclosure regarding the nominee's business
and professional background.
5. EXEMPT OFFERING. Each party agrees and acknowledges that the offer and
issuance to High Plains of the Big Cat Stock and the offer and issuance of the
High Plains Stock to Big Cat is made pursuant to the exemption found in Section
4(2) of the Securities Act of 1933 and/or Regulation D and other available
exemptions as an offering exempt from registration and that each party has
access to meaningful current information concerning the other and that such
information has been made available to each party through publicly available
reports and other disclosure. Each party is able to fend for itself, to
require disclosure of all information deemed material to an investment decision
and to comprehend, review and understand disclosed information, risks of the
investment and the business and operations of the issuer. Big Cat and High
Plains are each a public reporting company filing periodic reports with the
Securities and Exchange Commission and each party has had opportunity to review
the publicly filed reports of the other for at least the last year.
6. DOCUMENT AVAILABILITY AND DISCLOSURE. .A list of the filed periodic reports
during the last three years for each of the parties is attached as Exhibits B
and C respectively and such publicly filed documents are incorporated herein by
this reference (the "SEC Documents"), however such lists are not exhaustive and
do not contain every filing of record for Big Cat and High Plains respectively,
as found at xxx.XXX.xxx. Each of High Plains and Big Cat has filed all
reports, schedules, forms, statements and other documents required to be filed
by it with the SEC under the Exchange Act. As of their respective dates, the
financial statements of disclosed in the SEC Documents (the "Financial
Statements") complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto. Such financial statements have been prepared in accordance
with generally accepted accounting principles, consistently applied, during the
periods involved (except
(i) as may be otherwise indicated in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim statements, to the extent they
may exclude footnotes or may be condensed or summary statements) and, fairly
present in all material respects the financial position of such party as of the
dates thereof and the results of its operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal year-end
audit adjustments). The SEC Documents do not include any untrue statements of
material fact, nor do they omit to state any material fact required to be stated
therein necessary to make the statements made, in light of the circumstances
under which they were made, not misleading. No other information provided by or
on behalf of one party to the other which is not included in the SEC Documents
contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
7. REPRESENTATIONS AND WARRANTIES OF BIG CAT. Big Cat understands
that the High Plains Stock is being sold in reliance upon exemptions provided in
the Securities Act of 1933 (the "Securities Act") or Regulation D thereunder for
transactions involving private placement of limited offers and sales of its
securities and Big Cat (for itself and its successors and assigns) makes the
following representations, declarations and warranties with the intent that the
same be relied upon in determining the suitability of the undersigned as an
investor in High Plains. The following representations, warranties and
agreements shall survive the Closing Date.
(a) Big Cat has received, read carefully and understands all exhibits
hereto and public documents incorporated herein by reference.
(b) Big Cat is a corporation, duly incorporated, validly existing and in
good standing under the laws of the State of Nevada and has qualified as a
foreign corporation and is in good standing, under the laws of all jurisdictions
where the failure to so qualify would have a material adverse effect on its
business. Big Cat has made available to High Plains true, complete and correct
copies of its articles of incorporation and by-laws, as amended to date and Big
Cat is not in violation of any of such charter documents. The minute book of
High Plains has been made available to Big Cat and is true, correct and complete
in all material respects.
(c) The execution, delivery and performance by Big Cat of this Agreement is
within Big Cat's legal right, power and capacity, requires no action by or in
respect of, or filing with, any governmental body, agency, or official and does
not and will not contravene, or constitute a default under, any provision of
applicable law or regulation or of any agreement, judgment, injunction, order,
decree or other instrument to which Big
Cat is a party or by which Big Cat or any of its properties is bound. This
Agreement constitutes, when executed and delivered, a valid and binding
agreement of Big Cat, enforceable against Big Cat in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by equitable principles.
(d) there are no material pending or threatened litigation or liabilities
(contingent or otherwise) affecting the business of Big Cat not previously
disclosed in the publicly available reports of Big Cat.
(e) Big Cat's total issued and outstanding common equity as of November 19,
2010 was 43,844,334 shares of common stock and warrants and stock options to
purchase 12,235,000 shares of restricted common stock at prices between
$.14-$.75 per share. All of such outstanding shares have been validly issued and
are fully paid and nonassessable. No shares of Common Stock are subject to
preemptive rights or any other similar rights or any liens or encumbrances
suffered or permitted by Big Cat. As of the date hereof and as disclosed above,
(i) there are no undisclosed outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock of Big Cat or
any of its subsidiaries, or contracts, commitments, understandings or
arrangements by which Big Cat or any of its subsidiaries is or may become bound
to issue additional shares of capital stock of B ig Cat or any of its
subsidiaries or options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of Big Cat or any of its
subsidiaries, (ii) there are no outstanding debt securities (iii) there are no
outstanding registration statements and (iv) there are no agreements or
arrangements under which Big Cat or any of its subsidiaries is obligated to
register the sale of any of their securities under the Securities Act (except
pursuant to the Registration Rights Agreement). There are no securities or
instruments containing anti-dilution or similar provisions that will be
triggered by this Agreement or any related agreement or the consummation of the
transactions described herein or therein.
(f) there has been no material adverse change in the accuracy of the
financial statements of Big Cat and any subsidiaries or in the business and
financial condition of Big Cat not reported in the publicly filed reports of Big
Cat.
(g) there has been no material default by Big Cat or any subsidiary under
any material contract included in the business of Big Cat or any subsidiaries;
(h) High Plains has made available to Big Cat during the course of this
transaction and prior to the purchase of any of the High Plains Stock, the
opportunity to ask questions of and receive answers from representatives of High
Plains concerning the terms and conditions of the offering described herein and
to obtain any additional information necessary to verify the information
contained in the Exhibits or otherwise relative to the financial data and
business of High Plains, to the extent that such party possessed such
information or can acquire it without unreasonable effort or expense, and all
such questions, if asked, have been answered satisfactorily and all such
documents, if examined, have been found to be fully satisfactory.
(i) Big Cat understands and acknowledges that:
(i) Big Cat must bear the economic risk of Big Cat's investment in the
High Plains Stock for an indefinite period.
(ii) the High Plains Stock has not been registered under the
Securities Act or any state securities laws, as applicable, and is being
offered and sold in reliance upon exemptions provided in the Securities Act
and state securities laws, as applicable, for transactions not involving
any public offering and, therefore, cannot be resold or transferred unless
the High Plains Stock is subsequently registered under the Securities Act
and applicable state laws or unless an exemption from such registration is
available;
(iii) Big Cat is acquiring the High Plains Stock for investment
purposes, only for the account of the Big Cat and not with any view toward
a distribution thereof;
(iv) Big Cat is acquiring the High Plains Stock for Big Cat's own
account rather than as a representative or nominee of others;
(v) Big Cat has no contract, undertaking, agreement or arrangement
with any person to sell, transfer or pledge to such person or anyone else
any of the High Plains Stock which Big Cat hereby agrees to acquire or any
part thereof, and big Cat has no present plans to enter into any such
contract, undertaking, agreement or arrangement;
(vi) Big Cat understands that the High Plains Stock cannot be sold or
transferred without compliance with applicable securities laws.
(vii) Big Cat understands that High Plains does not have any
obligation or intention to register the High Plains Stock for sale under
the Securities Act or any state or other securities laws;
(viii) Big Cat has no right to require the registration of the High
Plains Stock under the Securities Act or state securities laws or other
securities regulations;
(ix) Big Cat consents that any certificates representing the High
Plains Stock will bear a restrictive legend prohibiting the transfer of the
High Plains Stock. Big Cat further consents and agrees that the High Plains
Stock is a restricted security which cannot be transferred or sold in the
absence of registration or the availability of an exemption from
registration, as determined by counsel.
(j) Big Cat is aware and acknowledges that the High Plains Stock involves
substantial risk of loss and there is no assurance of any income from such
investment and because there are substantial restrictions on the transferability
of the High Plains Stock it may not be possible for Big Cat to liquidate its
investment readily in any event, including in case of an emergency.
(k) Big Cat has evaluated the risks of investing in the High Plains Stock,
and has determined that the High Plains Stock is a suitable investment for Big
Cat. Big Cat can bear the economic risk of this investment and can afford a
complete loss of the investment in the High Plains Stock. In evaluating the
suitability of an investment in the stock, Big Cat has not relied upon any
representations or other information (whether oral or written) other than as set
forth in this Agreement and the Exhibits hereto, as well as its knowledge of the
business of High Plains and access to the documents and records of High Plains.
(l) Any information which Big Cat has heretofore furnished to High Plains
with respect to Big Cat is correct and complete as of the date of this
Agreement.
(m) The representations, warranties, agreements, undertakings and
acknowledgments made by Big Cat in this Agreement are made with the intent that
they be relied upon by High Plains in determining Big Cat's suitability as a
purchaser of the High Plains Stock, and shall survive Big Cat's purchase.
7. REPRESENTATIONS AND WARRANTIES OF HIGH PLAINS. High Plains understands
that the Big Cat Stock is being sold in reliance upon exemptions provided in the
Securities Act of 1933 (the "Securities Act") or Regulation D thereunder for
transactions
involving private placement of limited offers and sales of its securities and
High Plains (for itself and and its successors and assigns) makes the following
representations, declarations and warranties with the intent that the same be
relied upon in determining the suitability of the undersigned as an investor in
Big Cat. The following representations, warranties and agreements shall survive
the Closing Date.
(a) High Plains has received, read carefully and understands all exhibits
hereto and public documents incorporated herein by reference.
(b) High Plains is a corporation, duly incorporated, validly existing and
in good standing under the laws of the State of Nevada and has qualified as a
foreign corporation and is in good standing, under the laws of all jurisdictions
where the failure to so qualify would have a material adverse effect on its
business. High Plains has made available to Big Cat true, complete and correct
copies of its articles of incorporation and by-laws, as amended to date and High
Plains is not in violation of any of such charter documents. The minute book of
High Plains has been made available to Big Cat and is true, correct and complete
in all material respects.
(c) The execution, delivery and performance by High Plains of this
Agreement is within High Plains' legal right, power and capacity, requires no
action by or in respect of, or filing with, any governmental body, agency, or
official and does not and will not contravene, or constitute a default under,
any provision of applicable law or regulation or of any agreement, judgment,
injunction, order, decree or other instrument to which High Plains is a party or
by which High Plains or any of its properties is bound. This Agreement
constitutes, when executed and delivered, a valid and binding agreement of High
Plains, enforceable against High Plains in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by equitable principles.
(d) there are no material pending or threatened litigation or liabilities
(contingent or otherwise) affecting the business of High Plains not previously
disclosed in the publicly available reports of High Plains.
(e) High Plains' total issued and outstanding common equity as of December
3, 2010 does not exceed 87,000,000 shares of common stock.
(f) there has been no material adverse change in the accuracy of the
financial statements of High Plains and any subsidiaries or in the business and
financial condition of High Plains not reported in the publicly filed reports of
High Plains
(g) there has been no material default by High Plains or any subsidiary
under any material contract included in the business of High Plains or any
subsidiaries;
(h) Big Cat has made available to High Plains during the course of this
transaction and prior to the purchase of any of the Big Cat Stock, the
opportunity to ask questions of and receive answers from representatives of Big
Cat concerning the terms and conditions of the offering described herein and to
obtain any additional information necessary to verify the information contained
in the Exhibits or otherwise relative to the financial data and business of Big
Cat, to the extent that such party possessed such information or can acquire it
without unreasonable effort or expense, and all such questions, if asked, have
been answered satisfactorily and all such documents, if examined, have been
found to be fully satisfactory.
(i) High Plains understands and acknowledges that:
(i) High Plains must bear the economic risk of High Plains' investment
in the Big Cat Stock for an indefinite period.
(ii) the Big Cat Stock has not been registered under the Securities
Act or any state securities laws, as applicable, and is initially being
offered and sold in reliance upon exemptions provided in the Securities Act
and state securities laws, as applicable, for transactions not involving
any public offering and, therefore, cannot be resold or transferred unless
the Big Cat Stock is subsequently registered under the Securities Act and
applicable state laws or unless an exemption from such registration is
available;
(iii) High Plains is purchasing the Big Cat Stock for investment
purposes, only for the account of the High Plains;
(iv) High Plains is investing in the Big Cat Stock for High Plains'
own account rather than as a representative or nominee of others;
(v) High Plains has no contract, undertaking, agreement or arrangement
with any person to sell, transfer or pledge to such person or anyone else
any of the Big Cat Stock which High Plains hereby agrees to purchase or any
part thereof, and High Plains has no present plans to enter into any such
contract, undertaking, agreement or arrangement;
(vi) High Plains understands that the Big Cat Stock cannot be sold or
transferred without compliance with applicable securities laws
(viii) High Plains has the right to require the registration of the
Big Cat Stock and the Warrant Shares under the Securities Act or state
securities laws or other securities regulations in accordance with the
terms of the Registration Rights Agreement;
(ix) High Plains consents that any certificates representing the Big
Cat Stock will initially bear a restrictive legend prohibiting the transfer
of the Big Cat Stock. Subsequent to registration of the Big Cat Stock and
the Warrant Shares, such certificates will not bear any restrictive legend.
(j) High Plains is aware and acknowledges that the Big Cat Stock involves
substantial risk of loss and there is no assurance of any income from such
investment and because there are substantial restrictions on the transferability
of the Big Cat Stock it may not be possible for High Plains to liquidate its
investment readily in any event, including in case of an emergency.
(k) High Plains has evaluated the risks of investing in the Big Cat Stock,
and has determined that the Big Cat Stock is a suitable investment for High
Plains. High Plains can bear the economic risk of this investment and can afford
a complete loss of the investment in the Big Cat Stock. In evaluating the
suitability of an investment in the Stock, High Plains has not relied upon any
representations or other information (whether oral or written) other than as set
forth in this Agreement and the Exhibits hereto, as well as its knowledge of the
business of Big Cat and access to the documents and records of Big Cat.
(l) Any information which High Plains has heretofore furnished to Big Cat
with respect to High Plains is correct and complete as of the date of this
Agreement.
(m) The representations, warranties, agreements, undertakings and
acknowledgments made by High Plains in this Agreement are made with the intent
that they be relied upon by Big Cat in determining High Plains' suitability as a
purchaser of the Big Cat Stock, and shall survive High Plains' purchase.
9. INDEMNIFICATION. Each party to this agreement recognizes that the offer
of its stock to the other was made in reliance upon the investor's
representations and warranties set forth in Paragraphs 7 and 8 above. Each
party agrees to indemnify the other and any affiliates and to hold each other
harmless from and against any loss, damage or liability due to or arising out of
a breach of any representation, warranty or agreement contained in this
Agreement or in any other document provided by one party to the other in
connection with an investment in the stock of the other. Each party further
hereby agrees to indemnify the other and any affiliates, and to hold them
harmless against all
liabilities, costs or expenses (including reasonable attorneys' fees) arising as
a result of the sale or distribution of the stock of the other in violation of
the Securities Act or other applicable law or any misrepresentation or breach
with respect to the matters set forth herein. In addition, each party agrees to
indemnify the other and any affiliates and to hold such persons and firms
harmless from and against, any and all loss, damage, liability or expense,
including costs and reasonable attorneys' fees, to which they may be put or
which they may incur or sustain by reason of or in connection with any
misrepresentation made by them with respect to the matters about which
representations and warranties are required by the terms of this Agreement, or
any breach of any such warranties or any failure to fulfill any covenants or
agreements set forth herein. Notwithstanding any provision of this Agreement,
neither party waives any rights granted to it under applicable securities laws.
10. FEES AND EXPENSES. Except as otherwise specifically set forth herein,
each party will bear its own attorneys, brokers, investment bankers, agents, and
finders fees for any and all such advisors employed by such party. Further, the
parties will indemnify each other against any claims, costs, losses, expenses or
liabilities arising from any claim for commissions, finder's fees or other
compensation in connection with the contemplated transaction which may be
asserted by any person based on any agreement or arrangement for payment by the
other party. The prevailing party in any litigation regarding the
construction or enforcement of this Agreement shall be entitled to recover its
costs and reasonable attorneys fees.
11. GENERAL. This Agreement (including Exhibits hereto)
(a) shall be binding upon the parties and their respective successors and
assigns,
(b) shall be governed, construed and enforced in accordance with the laws
of the State of Nevada without reference to any principles of conflicts of law
and each party consents to the exclusive jurisdiction of the courts of the state
of Nevada in respect of any and all disputes arising under this Agreement
(c) may be amended, modified or waived only with the written consent of the
parties;
(d) may be executed in one or more counterparts, each of which shall be
deemed an original and all of which taken together shall constitute one and the
same instrument.
(e) may not be transferred or assigned, without the prior written consent
of both parties.
(f) contains the entire contract between the parties with respect to the
transactions contemplated hereunder and supersede all prior arrangements or
understandings with respect thereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
BIG CAT ENERGY CORPORATION
/s/ Xxx Xxxxxxx
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XXX XXXXXX, CEO & PRESIDENT
HIGH PLAINS GAS, INC.
/s/ Xxxx Xxxxxxxxx
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XXXX X. XXXXXXXXX, CE
