EXCLUSIVITY AGREEMENT
EXHIBIT
10.1
This
EXCLUSIVITY AGREEMENT (this “Agreement”), is entered into, as of November 10,
2006, by and between Black Sands Petroleum, Inc., a Nevada corporation with
offices at Suite 328, 000 Xxxxx Xxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxx X0X 0X0
(“Blacksands”), and Access Energy Inc., an [Ontario] corporation with offices at
Xxxxx 0000, 000 Xxx Xxxxxx, Xxxxxxx, Xxxxxxx X0X 0X0.
The
parties have engaged in preliminary, non-binding discussions regarding the
terms
of a possible transaction between Access and Blacksands pursuant to which
Blacksands would purchase a significant interest in Access (the “Transaction”).
As
a
condition to pursuing the Transaction, Blacksands has requested that Access
enter into this Agreement and Access is willing to do so.
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, and intending to be legally bound, the parties hereto agree
as
follows:
1. Exclusivity.
Access
agrees that it shall not, and shall not permit any of its respective
subsidiaries or affiliates, and will cause its respective officers, directors,
employees, agents and representatives not to, at any time during the one hundred
and twenty (120) day period commencing on the date hereof (the “Exclusivity
Period”), directly or indirectly, (a) solicit, initiate or encourage submission
of further proposals or offers from any person, other than Blacksands, relating
to any acquisition or purchase of all or a significant portion of the assets
of,
or any equity interest in, Access, any of its subsidiaries or affiliates
controlled by Access or any business combination involving Access or any of
its
subsidiaries or affiliates controlled by Access, or the declaration or payment
of any dividend or any change in the public debt or capital structure of Access
or any of its subsidiaries or affiliates controlled by Access, (b) participate
in any negotiations regarding, or furnish to any other person any additional
non-public information with respect to, or otherwise further cooperate in any
way with, or assist or participate in, facilitate or encourage, any effort
or
attempt by any other person other than Blacksands to do or seek any of the
foregoing. During the Exclusivity Period, Access shall promptly advise
Blacksands if any such proposal or offer, or any inquiry or contact with any
person with respect thereto, is made, shall promptly inform Blacksands of all
the terms and conditions thereof, and shall furnish to Blacksands copies of
any
such written proposal or offer and the contents of any communications in
response thereto. During the Exclusivity Period, Access shall not, without
the
consent of Blacksands, enter into, or commit to enter into, any material
transaction outside the ordinary course of business or any transactions of
the
type described in Paragraph 1(a). In addition, Access agrees that it will
immediately cease, from the date hereof through the end of the Exclusivity
Period, any existing discussions or negotiations with any party other than
Blacksands or its affiliates that relate to, or may reasonably be expected
to
lead to, any transaction outside of the ordinary course of business, consistent
with its past practices, or any transaction of the type described in Paragraph
1(a). If Blacksands notifies Access in writing that Blacksands is terminating
discussions regarding the potential Transaction, then Access shall have the
right to immediately terminate the Exclusivity Period.
2. Access.
Upon
reasonable advance notice to Access, Access shall allow Blacksands and its
representatives full and complete access to the assets and the books, records
and documents of Access and its subsidiaries and affiliates during normal
business hours or such other hours as Access and Blacksands shall agree and
subject to the reasonable rules of Access, and Access shall make available
(subject to the same conditions) the officers, employees, attorneys, independent
accountants and other agents of Access and its subsidiaries and affiliates
to
discuss the business, condition (financial or otherwise) or prospects of Access
in furtherance of the Transaction.
3. Confidentiality.
In
connection with Blacksands’ evaluation (the "Evaluation") of the business and
prospects of Access with respect to a possible Transaction, Blacksands will
have
access to certain information about the properties, business operations and
financial condition of Access. All information about Access furnished by Access
or its affiliates, or its directors, officers, employees, attorneys, accountants
or controlling persons (collectively, "Representatives"), whether furnished
before or after the date hereof, regardless of the manner in which it is
furnished, is referred to in this Agreement as "Proprietary Information".
Proprietary Information does not include, however, information which (i) is
or
becomes generally available to the public other than as a result of a disclosure
by Blacksands or its Representatives, (ii) was available to Blacksands on a
nonconfidential basis prior to its disclosure by Access or (iii) becomes
available to Blacksands on a nonconfidential basis from a person other than
Access who is not otherwise bound by a confidentiality agreement with Access
or
its Representatives, or is not otherwise prohibited from transmitting the
information to Blacksands. As used in this Agreement, the term "person" shall
be
broadly interpreted to include, without limitation, any corporation, company,
partnership, association, entity or individual.
a. Unless
otherwise agreed to in writing by Access, Blacksands agree on behalf of itself
and its Representatives (i) except as required by law, to keep all Proprietary
Information confidential and not to disclose or reveal any Proprietary
Information to any person other than to its Representatives who are actively
and
directly participating in the Evaluation and to cause such persons to observe
the terms of this letter agreement and (ii) not to use any Proprietary
Information for any purpose other than in connection with the Evaluation in
a
manner which Access has approved. Blacksands will be responsible for any breach
of the terms hereunder by itself or its Representatives.
b. In
the
event that Blacksands is requested pursuant to, or required by, applicable
law
or regulation or by legal process to disclose any Proprietary Information,
Blacksands agrees that it will provide Access with prompt notice of such
request(s) to enable Access to seek an appropriate protective order. In the
event that such protective order or other remedy is not obtained, Blacksands
agrees to furnish only that portion of the Proprietary Information which it
is
legally compelled to disclose.
c. The
Proprietary Information shall remain the property of Access. Upon Blacksands’
completion of the Evaluation or upon Access’ request, Blacksands will promptly
deliver to Access or at its request destroy all of the Proprietary Information,
including all copies, reproductions, summaries, analyses or extracts thereof
or
based thereon in Blacksands’ possession or in the possession of any of its
Representatives.
4. Publicity.
This
Agreement is intended to be confidential and its existence shall not be
disclosed by Blacksands or Access to any person unless required by law or the
rules or regulations of the Nasdaq OTCBB or unless requested by any regulatory
agency, including, but not limited to, the Unite States Securities and Exchange
Commission; provided,
however,
that
the foregoing shall not prohibit a party from making any such disclosure to
any
of the following (“Permitted Recipients”): (i) officers and directors of such
party or any subsidiary, (ii) agents and advisors of such party or its
subsidiaries (including legal, tax and financial advisors), (iii) applicable
governmental authorities in connection with requesting approval for the proposed
Transaction, and (iv) any other person with the prior consent of the other
parties. In the event either party determines that any public announcement
of
this Agreement is required, it shall afford the other party the opportunity
to
review and comment on such public announcement prior to its release. In any
event, if any party discloses, without the prior written consent of the other
parties, the fact that discussions concerning a Transaction between the parties
are taking place or the status or terms of any possible Transaction to any
person other than a Permitted Recipient, then Blacksands (in the case of a
disclosure by Access or any of its Permitted Recipients described in clause
(i)
or (ii) of the definition thereof) or (ii) Access (in the case of a disclosure
by Blacksands or any of its Permitted Recipients described in clause (i) or
(ii)
of the definition thereof) may terminate discussions concerning the Transaction
and the Exclusivity Period.
5. Fees
and Expenses.
a. As
consideration for the grant of the Exclusivity Period, Blacksands shall pay
Access the sum of $100,000 Canadian (the “Exclusivity Fee”). The Exclusivity Fee
shall be refundable only in the event of a breach of this Agreement by Access;
otherwise, the Exclusivity Fee shall be non-refundable. In the event the parties
proceed to consummate a Transaction, the Exclusivity Fee shall be applied in
its
entirety to monies otherwise payable by Blacksands to Access in connection
therewith.
b. Each
party shall be responsible for all expenses incurred by it in connection with
the activities contemplated by this Agreement.
6. No
Agreement Regarding the Transaction.
There
are no legally binding obligations among the parties relating to the Transaction
except those specifically set forth herein. Each party acknowledges and agrees
that this Agreement expresses the parties’ interests in continuing discussions
regarding the Transaction and is not intended to, and does not, create any
legally binding obligation on any party to consummate the Transaction. Such
an
obligation will arise only upon the negotiation, execution and delivery of
final
definitive agreements relating to the Transaction in form and substance
satisfactory to the parties and their respective counsel. Neither the
discussions or negotiations between the parties hereto nor this Agreement is
intended to, and they do not, create any fiduciary or other special duties
or
obligations between the parties hereto other than those specifically set forth
herein, including any implied covenant of good faith or fair dealing.
7. Non-Assignability.
This
Agreement shall not be assignable without the prior written consent of the
non-assigning party.
8. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
New
York.
9. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof and supersedes any prior oral or written agreements
related thereto.
10. Amendments
and Waivers.
Neither
this Agreement nor any of the terms hereof may be terminated, amended or waived
orally, but only by an instrument in writing signed by the party against which
enforcement of the termination, amendment or waiver is sought. The performance
or observance of any provision of this Agreement may be waived in whole or
in
part and any period of time relating to such performance or observance may
be
extended from time to time, as agreed by the parties hereto.
11. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
12. Termination.
This
Agreement will terminate upon the earliest of (a) termination or expiration
of
the Exclusivity Period in accordance with the terms hereof, (b) execution by
the
parties of definitive agreements with respect to a Transaction or (c) such
earlier date as may be agreed upon by the parties hereto. Notwithstanding the
foregoing, in the event this Agreement is terminated, the parties hereto agree
that the provisions of Sections 3, 5, 7, 11 and the last sentence of Section
4
hereof shall survive any such termination and shall continue in full force
and
effect.
[Signature
Page Follows]
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly
executed on its behalf by its officer thereunto duly authorized, all as of
the
day and year first above written.
By: /s/
Xxxxxx Xxxxxxxxx
Xxxxxx
X.
Xxxxxxxxx
President
and Chief Executive Officer
ACCESS
ENERGY INC.
By: /s/
Xxxx Xxxxxxxxx
Xxxx
Xxxxxxxxx
President
and Chief Executive Officer
