Exhibit 10.1
SEVENTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SEVENTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Amendment")
effective as of the 3rd day of May, 2011, is by and between X.X. Xxxxx
Corporation ("Seller") and High Plains Gas, Inc. ("Buyer").
RECITALS
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A. Seller and Buyer are parties to a Purchase and Sale Agreement dated
February 2, 2011, as amended from time to time (the "Agreement").
B. Seller and Buyer wish to amend the Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer agree as follows:
1. Amendments to Section 2.02.
a. Section 2.02(a) of the Agreement is hereby amended by deleting the
period at the end of the third sentence of Section 2.02(a)(iii) and
replacing it with "; and". Section 2.02(a) is further amended to add the
following:
(iv) Separately, on or before 5:00 p.m. EST on May 11, 2011,
Buyer shall deliver to Seller's Edison, New Jersey office (attention
Xxxxxx X. Xxxxxxx) Five Hundred Thousand (500,000) duly authorized and
issued shares of Buyer's common stock, par value $0.001 per share, on
a certificate bearing no legend except that the transfer thereof is
restricted pursuant to the Securities Act of 1933 (the "New Shares").
If the New Shares are not timely and properly delivered to Seller,
Seller shall be entitled to retain the Two Million Dollars
($2,000,000.00) cash previously delivered as the Deposit and the
Shares previously delivered as liquidated damages and terminate this
Agreement. The effect of such termination shall be governed by Section
11.02 of the Agreement.
b. Section 2.02(b) is hereby deleted in its entirety and hereby
amended and restated as follows:
(b) Subject to the proviso set forth in Section 11.01, if this
Agreement is terminated by Seller pursuant to Section 2.02(a)(iii),
Section 2.02(a)(iv), Section 11.01(b) or Section 11.01(d) and Seller
does not waive the non-satisfaction of any conditions to Closing set
forth in Article 8, Seller shall retain the Deposit, the Shares and
the New Shares as liquidated damages. Buyer and Seller acknowledge and
agree that (i) Seller's actual damages upon a termination by Seller
pursuant to Section 2.02(a)(iii), Section
2.02(a)(iv), Section 11.01(b) or Section 11.01(d) are difficult to
ascertain with any certainty, (ii) the Deposit plus the Shares and the
New Shares constitute a reasonable estimate of such actual damages,
and (iii) such liquidated damages do not constitute a penalty.
Further, if the Agreement is terminated pursuant to Section 11.01(b)
or Section 11.01(d), Seller in its sole discretion may dispose of the
Shares and/or the New Shares in any manner and at such time(s) as it
determines so long as it complies with the requirements of applicable
securities laws, including without limitation Rule 144 promulgated
under the Securities Act of 1933. Buyer agrees to maintain "current
public information," as such term is used in Rule 144, so long as
Seller is the owner of any Shares and/or New Shares.
c. Section 2.02(c) of the Agreement is hereby amended by inserting
"and the New Shares" between "Shares" and "to" in the sentence immediately
preceding the last sentence thereof.
d. Section 2.02(d) of the Agreement is deleted in its entirety and
hereby amended and restated as follows:
(d) If all conditions precedent to the obligations of Seller set
forth in Article 8 have been met, then notwithstanding any provision
in this Section 2.02 to the contrary, if Closing does not occur
because Seller wrongfully fails to tender performance at Closing or
otherwise Breach this Agreement in any respect prior to Closing, and
Buyer is ready and otherwise able to close, at Buyer's sole election,
either (i) Seller shall return the Deposit, Shares and New Shares to
Buyer within three (3) business days after the determination that the
Closing will not occur, or (ii) Buyer shall have the right to pursue
specific performance of this Agreement, provided that Buyer must file
an action for specific performance within 21 days of Seller's Breach.
If Buyer elects to pursue specific performance, Buyer must pursue
specific performance as its sole and exclusive remedy in lieu of all
other legal and equitable remedies. If such action for specific
performance is not filed within 21 days of Seller's Breach or if Buyer
is unsuccessful for any reason other than a Breach of this Agreement
by Buyer, Buyer shall be deemed to have waived all legal and equitable
remedies and its sole remedy for Seller's Breach of this Agreement
shall be limited to the prompt return of the Deposit, the Shares and
the New Shares.
2. Amendments to Section 10.02.
a. Section 10.02(c) of the Agreement is deleted in its entirety and
hereby amended and restated as follows:
(c) At Closing, the Shares and New Shares will, in Seller's sole
discretion, be treated as follows:
(i) if the Seller does not wish to retain the Shares and/or
New Shares, the Shares and/or New Shares shall be returned to
Buyer immediately after Seller's receipt of the Purchase Price,
in which event there shall be neither an increase to the Purchase
Price pursuant to Section 10.02(a) nor a decrease to the Purchase
Price pursuant to Section 10.02(b);
or
(ii) if (A) the Seller wishes to retain the Shares it may do
so, in which event the Purchase Price shall be decreased by One
Million Five Hundred Thousand Dollars ($1,500,000.00) as a
downward adjustment pursuant to Section 10.02 (b), and/or (B) the
Seller wishes to retain the New Shares it may do so, in which
event the Purchase Price shall be decreased by Five Hundred
Thousand Dollars ($500,000.00) as a downward adjustment pursuant
to Section 10.02(b).
b. Section 10.02(d) of the Agreement is hereby deleted in its entirety
and amended and restated as follows:
(d) The allocations of costs and expenses and/or adjustments to
the Purchase Price described in Section 10.02(a), Section 10.02(b) and
Section 10.02(c)(ii) (the latter only if the Seller elects to retain
the Shares and/or the New Shares) are referred to herein as the
"Purchase Price Allocations and Adjustments."
3. Registration of the Shares. Section 10.10 of the Agreement is
hereby deleted in its entirety and amended and restated as follows:
SECTION 10.10 Registration of the Shares. If the Seller elects in its
sole discretion to retain the Shares and/or the New Shares pursuant to
Section 10.02(c)(ii), Buyer (at its sole expense) shall register the Shares
and/or the New Shares for resale on behalf of Seller in any registration
statement filed by Buyer with the United States Securities and Exchange
Commission ("SEC"). The Shares and/or New Shares shall be registered on no
less favorable terms than those accorded to any other investor the resale
of whose common stock issued by Buyer is also covered by such registration
statement. Seller agrees to enter into, and to be bound by the terms of, a
registration rights agreement on customary terms. Notwithstanding the
foregoing, in its sole discretion, Seller may also dispose of the Shares
and/or New Shares in any manner and at such time(s) as it determines so
long as it complies with the requirements of applicable securities laws,
including without limitation Rule 144 promulgated under the Securities Act
of 1933. Buyer agrees to maintain "current public information," as such
term is used in Rule 144, so long as Seller is the owner of any Shares
and/or New Shares.
4. Closing Date. In Section 10.01 of the Agreement, "May 3rd, 2011" is
hereby deleted and replaced with "May 31, 2011."
5. Further Amendment. In Section 11.01(d) of the Agreement, "May 3rd,
2011" is hereby deleted and replaced with "May 31, 2011."
6. Defined Terms. Capitalized terms not otherwise defined in this
Amendment shall have the meaning ascribed to them in this Agreement.
7. No Other Amendments. 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.
8. Counterparts. 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.
9. Construction. This Amendment shall be governed by and interpreted
and enforced in accordance with the terms of the Agreement.
10. Non-Exclusivity. Notwithstanding anything to the contrary in this
Amendment and/or the Agreement, as additional consideration for extending the
Closing Date Buyer hereby acknowledges and agrees that, effective as of the
effective date of this Amendment, at Seller's sole discretion Seller may engage
in confidential discussions, negotiations and/or sharing of information with one
or more other potential buyers in connection with all or any portion of the
Assets; provided, however, that Seller shall not enter into any binding
commitment to sell all or any portion of the Assets with any other potential
buyer between the effective date of this Amendment and Closing Date.
SELLER:
X.X. XXXXX CORPORATION
By: \s\ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President, Mergers & Acquisitions
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BUYER:
HIGH PLAINS GAS, INC.
By: \s\ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Chief Executive Officer
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