ACCESS ENERGY INC. COMMON SHARE PURCHASE AGREEMENT
ACCESS
ENERGY INC.
THIS
COMMON SHARE PURCHASE AGREEMENT (the “Agreement”) is made and entered into as of
August 3, 2007, by and among ACCESS ENERGY INC., an Ontario corporation (the
“Company”), BLACKSANDS PETROLEUM, INC., a Nevada corporation (the “Purchaser”),
H. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (“Burden”) and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇▇”).
RECITALS
WHEREAS,
the Company has authorized the sale and issuance of six hundred (600) shares
of
common stock of the Company (the “Shares”) to the Purchaser;
WHEREAS,
the Shares, when issued pursuant to this Agreement, will constitute 75% of
the
Company’s issued and outstanding share capital;
WHEREAS,
the Purchaser desires to purchase the Shares on the terms and conditions set
forth herein;
WHEREAS,
the Company desires to issue and sell the Shares to the Purchaser on the terms
and conditions set forth herein;
WHEREAS,
all amounts set forth herein are in Canadian dollars unless otherwise
indicated;
WHEREAS,
on November 10, 2006, the Purchaser paid the Company $100,000 (the “Exclusivity
Fee”) in exchange for the Company’s agreement (“Exclusivity Agreement”) that for
a period of 120 days from the date of the Exclusivity Agreement, the Company
would refrain from soliciting or encouraging the submissions of proposals or
offers from any person other than the Purchaser relating to the purchase of
all
or a significant portion of the Company’s assets and those of its
subsidiaries;
WHEREAS,
the Exclusivity Agreement was extended twice for no additional consideration;
and
WHEREAS,
on May 17, 2007, the Purchaser placed $250,000 (“Escrowed Funds”), together with
a loan agreement into escrow, and the Company placed a note (“Note”) for that
amount into escrow.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual promises,
representations, warranties, and covenants hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
|
1.
|
AGREEMENT
TO SELL AND PURCHASE.
|
1.1 Authorization
of Shares.
The
Company has authorized the sale and issuance to the Purchaser of the Shares.
The
Shares have the rights, preferences, privileges and restrictions set forth
in
the Articles of Incorporation of the Company (the “Articles”).
1.2 Sale
and Purchase.
Subject
to the terms and conditions hereof, at the Closing (as hereinafter defined)
the
Company hereby agrees to issue and sell to the Purchaser, and the Purchaser
agrees to purchase from the Company, the Shares, for an aggregate purchase
price
of Cdn$3,431,757.15, (the “Purchase Price”), together with 1,500,000 warrants
(“Warrants”) of the Purchaser to be issued to H. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇. Each
Warrant shall be exercisable for one common share of Blacksands at an exercise
price of US$2.00 for a period of five years after issuance.
|
2.
|
CLOSING,
DELIVERY AND PAYMENT.
|
2.1 Closing.
The
closing of the sale and purchase of the Shares under this Agreement (the
“Closing”) shall take place at 10:00 a.m. on July 30, 2007, at the offices of
Gottbetter & Partners, LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇, or at such other time or place as the Company and the Purchaser
may mutually agree (such date is hereinafter referred to as the “Closing Date”).
2.2 Delivery
and Payment.
At the
Closing, subject to the terms and conditions hereof, the Company will deliver
to
the Purchaser a certificate representing the Shares and the Purchaser shall
deliver the Purchase Price to the Company less (i) the Exclusivity Fee
already paid to the Company pursuant to the Exclusivity Agreement, and less
(ii) the Escrowed Funds (including amounts previously released from
escrow). The net consideration to be paid to the Company will be Cdn$3,077,935.23,
and
shall be paid to the Company by wire transfer of funds available no later than
the day after the wire was initiated. Also at the Closing, the Note shall be
deemed to be paid in full.
|
3.
|
REPRESENTATIONS
AND WARRANTIES OF THE
COMPANY.
|
The
Company hereby represents and warrants to the Purchaser as of the date of this
Agreement as set forth below.
3.1 Organization,
Good Standing and Qualification.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the Province of Ontario. The Company has all requisite
corporate power and authority to own and operate its properties and assets,
to
execute and deliver this Agreement and the Unanimous Shareholders’ Agreement of
even date herewith among the Company, the Purchaser and the other parties
thereto (the “Shareholders’ Agreement”), the Common Stock Purchase Warrants
issued to H. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and all other documents contemplated hereby
and
thereby (collectively, the “Related Agreements”), to issue and sell the Shares,
and to carry out the provisions of this Agreement, the Related Agreements and
the Articles and to carry on its business as presently conducted and as
presently proposed to be conducted. The Company is duly qualified to do business
in the jurisdictions where it is authorized to do business and is in good
standing as a foreign corporation in all jurisdictions in which the nature
of
its current activities and of its properties (both owned and leased) makes
such
qualification necessary, except for those jurisdictions in which failure to
do
so would not have a material adverse effect on the Company or its business.
3.2 Subsidiaries.
The
Company does not own or control any equity security or other interest of any
other corporation, partnership, limited liability company or other business
entity. Except as set forth on Schedule 3.2, the Company is not a participant
in
any joint venture, partnership, limited liability company or similar
arrangement. Since its inception, the Company has not consolidated or merged
with, acquired all or substantially all of the assets of, or acquired the shares
of or any interest in any corporation, partnership, limited liability company
or
other business entity (other than pursuant to the Agreement and the Related
Agreements).
3.3 Capitalization;
Voting Rights.
(a) The
Company is authorized to issue an unlimited number of common shares (“Common
Shares”), of which two hundred (200) are issued and outstanding. Immediately
after giving effect to the transactions contemplated by this Agreement, there
will be eight hundred (800) Common Shares issued and outstanding.
(b) The
Company does not have any option or similar equity incentive plans. The Company
has not made any representations regarding equity incentives to any officer,
employee, director or consultant.
(c) Except
as
may be granted pursuant to this Agreement and the Related Agreements, there
are
no outstanding options, warrants, rights (including conversion or preemptive
rights and rights of first refusal), proxy or shareholder agreements, or
agreements of any kind for the purchase or acquisition from the Company of
any
of its securities.
(d) All
of
the Company’s issued and outstanding Common Shares (i) have been duly authorized
and validly issued and are fully paid and non-assessable and (ii) were issued
in
compliance with all applicable provincial, state and federal laws and
regulations concerning the issuance of securities (“Securities Laws”).
(e) The
rights, preferences, privileges and restrictions of the Shares are as stated
in
the Articles. The Shares have been duly and validly reserved for issuance.
When
issued in compliance with the provisions of this Agreement and the Articles,
the
Shares will be validly issued, fully paid and non-assessable, and will be free
of any liens or encumbrances other than liens and encumbrances created by or
imposed upon the Purchaser; provided,
however,
that
the Shares may be subject to restrictions on transfer and subject to securities
laws as set forth herein or as otherwise required by such laws at the time
a
transfer is proposed. The sale of the Shares is not subject to any preemptive
rights or rights of first refusal that have not been properly waived or complied
with.
(f) No
share
plan, share purchase, share option or other agreement or understanding between
the Company and any holder of any equity securities or rights to purchase equity
securities provides for acceleration or other changes in the vesting provisions
or other terms of such agreement or understanding as the result of (i)
termination of employment or consulting services (whether actual or
constructive); (ii) any merger, consolidated sale of shares or assets, change
in
control or any other transaction(s) by the Company; or (iii) the occurrence
of
any other event or combination of events.
3.4 Authorization;
Binding Obligations.
All
corporate action on the part of the Company, its officers, directors and
shareholders necessary for the authorization of this Agreement and the Related
Agreements, the performance of all obligations of the Company hereunder and
thereunder at the Closing and the authorization, sale, issuance and delivery
of
the Shares pursuant hereto and pursuant to the Articles
has been
taken. The Agreement and the Related Agreements, when executed and delivered,
will be valid and binding obligations of the Company enforceable in accordance
with their terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors’ rights, and (b) general principles of equity that
restrict the availability of equitable remedies.
3.5 Liabilities.
Except
as provided on Schedule 3.5, the Company has no material liabilities that would
be required to be reflected on a balance sheet in accordance with Canadian
generally acceptable accounting principles (“GAAP”) and, to the best of its
knowledge, no material contingent liabilities that would be required to be
disclosed in footnotes to the Company’s financial statements in accordance with
GAAP, except in each case current liabilities incurred in the ordinary course
of
business which would not reasonably be expected to materially and adversely
affect the business, assets, properties or financial condition of the Company.
3.6 Agreements;
Action.
(a) Except
for agreements explicitly contemplated hereby, there are no agreements,
understandings or proposed transactions between the Company and any of its
officers, directors, employees, affiliates or any affiliate thereof on the
other
hand.
(b) Except
as
provided on Schedule 3.6(b), there are no agreements, understandings,
instruments, contracts, proposed transactions, judgments, orders, writs or
decrees to which the Company is a party or to its knowledge by which it is
bound
which involve future obligations (contingent or otherwise) of, or payments
to,
the Company in excess of $100,000.
(c) The
Company has not (i) accrued, declared or paid any dividends, or authorized
or
made any distribution upon or with respect to any class or series of its share
capital, (ii) incurred or guaranteed any indebtedness for money borrowed or
any
other liabilities, other than the Loan, (iii) made any loans or advances to
any
person, other than ordinary advances for travel expenses, or (iv) sold,
exchanged or otherwise disposed of any of its assets or rights, other than
the
sale of its inventory in the ordinary course of business.
3.7 Obligations
to Related Parties.
Except
as provided on Schedule 3.7, there are no obligations of the Company to
officers, directors, shareholders, or employees of the Company other than (a)
for payment of salary for services rendered, (b) reimbursement for reasonable
expenses incurred on behalf of the Company and (c) for other standard employee
benefits made generally available to all employees (including share option
agreements outstanding under any share option plan approved by the Board of
Directors of the Company). Other than ownership of shares of any shareholder
of
the Company that is itself a corporation or limited liability company, none
of
the officers, directors or, to the best of the Company’s knowledge, key
employees or shareholders of the Company or any members of their immediate
families, is indebted to the Company or has any direct or indirect ownership
interest in any firm or corporation with which the Company is affiliated or
with
which the Company has a business relationship, or any firm or corporation that
competes with the Company, other than (i) passive investments in publicly traded
companies (representing less than 1% of such company) which may compete with
the
Company and (ii) investments by venture capital funds with which directors
of
the Company may be affiliated and service as a board member of a company in
connection therewith due to a person’s affiliation with a venture capital fund
or similar institutional investor in such company. No officer, director or
shareholder, or any member of their immediate families, is, directly or
indirectly, interested in any material contract with the Company (other than
the
Related Agreements and the transactions contemplated thereby and other than
such
contracts as relate to any such person’s ownership of share capital or other
securities of the Company).
3.8 Changes.
Except
as provided on Schedule 3.8, and to the knowledge of the Company, since the
formation of the Company, there has not been:
(a) Any
change in the assets, liabilities, financial condition or operations of the
Company, other than changes in the ordinary course of business, none of which
individually or in the aggregate has had or is reasonably expected to have
a
material adverse effect on such assets, liabilities, financial condition or
operations of the Company;
(b) Any
resignation or termination of any officer, key employee or group of employees
of
the Company;
(c) Any
material change, except in the ordinary course of business, in the contingent
obligations of the Company by way of guaranty, endorsement, indemnity, warranty
or otherwise;
(d) Any
damage, destruction or loss, whether or not covered by insurance, materially
and
adversely affecting the properties, business or prospects or financial condition
of the Company;
(e) Any
waiver by the Company of a valuable right or of a material debt owed to it;
(f) Any
material change in any compensation arrangement or agreement with any employee,
officer, director or shareholder;
(g) Any
labor
organization activity related to the Company;
(h) Any
sale,
assignment, or exclusive license or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets;
(i) Any
change in any material agreement to which the Company is a party or by which
it
is bound which materially and adversely affects the business, assets,
liabilities, financial condition, operations or prospects of the Company;
(j) Any
other
event or condition of any character that, either individually or cumulatively,
has materially and adversely affected the business, assets, liabilities,
financial condition or operations of the Company; or
(k) Any
arrangement or commitment by the Company to do any of the acts described in
subsection (a) through (k) above.
3.9 Title
to Properties and Assets; Liens, Etc.
Except
as provided on Schedule 3.9, The Company has good and marketable title to its
owned properties and assets and a valid leasehold interest in its leasehold
estates, in each case subject to no mortgage, pledge, lien, lease, encumbrance
or charge, other than (a) those resulting from taxes which have not yet become
delinquent, (b) minor liens and encumbrances which do not materially detract
from the value of the property subject thereto or materially impair the
operations of the Company, and (c) those that have otherwise arisen in the
ordinary course of business.
3.10 [Intentionally
omitted]
3.11 Compliance
with Other Instruments.
Except
as provided on Schedule 3.11, the Company is not in violation or default of
any
term of its charter documents, or any document thereof, each as amended. The
Company is not in violation or default under any provision of any mortgage,
indenture, contract, lease, agreement, instrument or contract to which it is
party or by which it is bound or of any judgment, decree, order or writ which
would materially adversely affect the Company’s business, assets, properties or
financial condition. The execution, delivery, and performance of and compliance
with this Agreement, and the Related Agreements, and the issuance and sale
of
the Shares pursuant hereto, will not, with or without the passage of time or
giving of notice, result in any such violation, or be in conflict with or
constitute a default under any such term or provision, or result in the creation
of any mortgage, pledge, lien, encumbrance or charge upon any of the properties
or assets of the Company or the suspension, revocation, impairment, forfeiture
or nonrenewal of any permit, license, authorization or approval applicable
to
the Company, its business or operations or any of its assets or properties.
3.12 Litigation.
There
is no action, suit, proceeding or investigation pending or, to the Company’s
knowledge, currently threatened against the Company that would reasonably be
expected to result, either individually or in the aggregate, in any material
adverse change in the assets, business, properties or financial condition of
the
Company or any change in the current equity ownership of the Company or that
questions the validity of this Agreement or the Related Agreements or the right
of the Company to enter into any of such agreements, or to consummate the
transactions contemplated hereby or thereby. The foregoing includes, without
limitation, actions pending or, to the Company’s knowledge, threatened involving
the prior employment of any of the Company’s employees, their use in connection
with the Company’s business of any information or techniques allegedly
proprietary to any of their former employers, or their obligations under any
agreements with prior employers. The Company is not a party or to its knowledge
subject to the provisions of any order, writ, injunction, judgment or decree
of
any court or government agency or instrumentality. There is no action, suit,
proceeding or investigation by the Company currently pending or which the
Company intends to initiate.
3.13 Tax
Returns and Payments.
The
Company has filed in a timely manner all necessary tax returns and notices
and
has paid all applicable taxes of whatsoever nature for all tax years prior
to
the date hereof to the extent that such taxes have become due or have been
alleged to be due. The Company has no knowledge of any liability of any tax
to
be imposed upon its properties or assets as of the date of this Agreement that
is not adequately provided for.
3.14 Employees.
The
Company currently does not have any employees, nor has it had any employees
in
the past. To the Company’s knowledge, the performance of the Company’s contracts
with its independent contractors, will not result in any violation of any
agreement relating to the right of such individual to contract with the Company.
The Company has not received any notice alleging that any such violation has
occurred.
3.15 Registration
Rights and Voting Rights.
The
Company is presently not under any obligation, and has not granted any rights,
to register under the Securities Act of 1933, as amended (the “Securities Act”),
any of the Company’s presently outstanding securities or any of its securities
that may hereafter be issued. To the Company’s knowledge, except as contemplated
in the Shareholders’ Agreement, no shareholder of the Company has entered into
any agreement with respect to the voting of equity securities of the Company.
3.16 Compliance
with Laws; Permits.
To the
knowledge of the Company, the Company is not in violation of any applicable
statute, rule, regulation, order or restriction of any domestic or foreign
government or any instrumentality or agency thereof in respect of the conduct
of
its business or the ownership of its properties, which violation would
materially and adversely affect the business, assets, properties or financial
condition of the Company. To the knowledge of the Company, no domestic
governmental orders, permissions, consents, approvals or authorizations are
required to be obtained and no registrations or declarations are required to
be
filed in connection with the execution and delivery of this Agreement or the
issuance of the Shares, except such as have been duly and validly obtained
or
filed, or with respect to any filings that must be made after the Closing,
as
will be filed in a timely manner. To the knowledge of the Company, the Company
has all franchises, permits, licenses and any similar authority necessary for
the conduct of its business as now being conducted by it, the lack of which
could materially and adversely affect the business, assets, properties or
financial condition of the Company and believes it can obtain, without undue
burden or expense, any similar authority for the conduct of its business as
planned to be conducted.
3.17 Environmental
and Safety Laws.
To its
knowledge, the Company is not in violation of any applicable statute, law or
regulation relating to the environment or occupational health and safety in
any
material respect, and to its knowledge, no material expenditures are or will
be
required in order to comply with any such existing statute, law or regulation.
3.18 Offering
Valid.
Assuming the accuracy of the representations and warranties of the Purchaser
contained in Section 5
hereof,
the offer, sale and issuance of the Shares will be exempt from the registration
requirements of the Securities Act, and will have been registered or qualified
(or are exempt from registration and qualification) under the registration,
permit or qualification requirements of all applicable Securities Laws. Neither
the Company nor any agent on its behalf has solicited or will solicit any offers
to sell or has offered to sell or will offer to sell all or any part of the
Shares to any person or persons so as to bring the sale of such Shares by the
Company within the registration provisions of the Securities Act or any
Securities Laws.
3.19 Full
Disclosure.
Except
as provided on Schedule 3.19, there are no facts which (individually or in
the
aggregate) materially adversely affect the business, assets, liabilities,
financial condition or operations of the Company that have not been set forth
in
this Agreement or the Related Agreements.
3.20 Minute
Books.
The
minute books of the Company made available to the Purchaser contain a complete
summary of all meetings of directors and shareholders since the time of
incorporation.
|
4.
|
PROSPECTUS
EXEMPTIONS
|
The
sale
of the Shares by the Company to the Purchaser is conditional upon such sale
being exempt from the requirements as to the filing of a prospectus and as
to
the preparation of an offering memorandum or similar document under applicable
Securities Laws or upon the issue of such orders, consents or approvals as
may
be required to permit such sale without the requirement of filing a prospectus
or delivering an offering memorandum or similar document.
4.1 The
Purchaser acknowledges and agrees that:
(a) it
has
not received or been provided with a prospectus, offering memorandum (within
the
meaning of the Securities Laws) or similar document and that its decision to
enter into this Agreement and to purchase the Shares from the Company has not
been based upon any verbal or written representation as to fact or otherwise
made by or on behalf of the Company;
(b) as
a
consequence of the sale being exempt from the prospectus requirements of the
Securities Laws
(1) certain
protections, rights and remedies provided by the Securities Laws, including
statutory rights of rescission or damages, will not be available to the
Purchaser,
(2) the
Purchaser may not receive information that would otherwise be required to be
given under the Securities Laws, and
(3) the
Company is relieved from certain obligations that would otherwise apply under
the Securities Laws; and
(c) no
Person
has made any written or oral representation
(1) that
any
Person will resell or repurchase the Shares,
(2) that
any
Person will refund the Purchase Price;
(3) as
to the
future price or value of the Shares; or
(4) that
any
of the Shares will be listed and posted for trading on a stock exchange or
that
application has been made to list and post any of the Shares for trading on
a
stock exchange.
|
5.
|
REPRESENTATIONS
AND WARRANTIES OF THE
PURCHASER.
|
The
Purchaser hereby represents and warrants to the Company, Burden and ▇▇▇▇▇▇▇▇▇
as
follows (provided,
that
such representations and warranties do not lessen or obviate the representations
and warranties of the Company set forth in this Agreement):
5.1 Requisite
Power and Authority.
The
Purchaser has all necessary power and authority to execute and deliver this
Agreement and the Related Agreements and to carry out their provisions. All
action on the Purchaser’s part required for the lawful execution and delivery of
this Agreement and the Related Agreements has been taken. Upon their execution
and delivery, this Agreement and the Related Agreements will be valid and
binding obligations of the Purchaser, enforceable in accordance with their
terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors’ rights, and (b) as limited by general principles of
equity that restrict the availability of equitable remedies.
5.2 Investment
Representations.
The
Purchaser understands that the Shares have not been registered under the
Securities Act. The Purchaser also understands that the Shares are being offered
and sold pursuant to an exemption from registration contained in the Securities
Act based in part upon the Purchaser’s representations contained in the
Agreement. The Purchaser hereby represents and warrants as follows:
(a) Purchaser
Bears Economic Risk.
The
Purchaser has substantial experience in evaluating and investing in private
placement transactions of securities in companies similar to the Company so
that
it is capable of evaluating the merits and risks of its investment in the
Company and has the capacity to protect its own interests. The Purchaser must
bear the economic risk of this investment indefinitely unless the Shares are
registered pursuant to the Securities Act, or an exemption from registration
is
available. The Purchaser understands that the Company has no present intention
of registering the Shares or any of its Common Shares. The Purchaser also
understands that there is no assurance that any exemption from registration
under the Securities Act will be available and that, even if available, such
exemption may not allow the Purchaser to transfer all or any portion of the
Shares under the circumstances, in the amounts or at the times the Purchaser
might propose.
(b) Acquisition
for Own Account.
The
Purchaser is acquiring the Shares for the Purchaser’s own account for investment
only, and not with a view towards their distribution.
(c) Purchaser
Can Protect Its Interest.
The
Purchaser represents that by reason of its, or of its management’s, business or
financial experience, the Purchaser has the capacity to protect its own
interests in connection with the transactions contemplated in this Agreement,
and the Related Agreements. Further, the Purchaser is aware of no publication
of
any advertisement in connection with the transactions contemplated in the
Agreement.
(d) Accredited
Investor.
The
Purchaser represents that it is an accredited investor within the meaning of
Regulation D under the Securities Act.
(e) Company
Information.
The
Purchaser has had an opportunity to discuss the Company’s business, management
and financial affairs with directors, officers and management of the Company
and
has had the opportunity to review the Company’s operations and facilities. The
Purchaser has also had the opportunity to ask questions of and receive answers
from, the Company and its management regarding the terms and conditions of
this
investment.
(f) Rule
144.
The
Purchaser acknowledges and agrees that the Shares are “restricted securities” as
defined in Rule 144 promulgated under the Securities Act as in effect from
time
to time and must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is available.
The Purchaser has been advised or is aware of the provisions of Rule 144, which
permits limited resale of shares purchased in a private placement subject to
the
satisfaction of certain conditions, including, among other things: the
availability of certain current public information about the Company, the resale
occurring following the required holding period under Rule 144 and the number
of
shares being sold during any three-month period not exceeding specified
limitations.
5.3 Transfer
Restrictions.
The
Purchaser acknowledges and agrees that the Shares are subject to restrictions
on
transfer as set forth in the Shareholders’ Agreement.
5.4 General.
(a) None
of
the funds being used to purchase the Shares are to the Purchaser’s knowledge
proceeds obtained or derived directly or indirectly as a result of illegal
activities;
(b) The
Purchaser is not a "promoter" of the Company within the meaning of the
Securities Laws;
(c) Legal
counsel retained by the Company (the "Company’s Counsel") is acting as counsel
to the Company and not as counsel to the Purchaser. The relationship of the
Company’s Counsel with the Purchaser is limited solely to responding to any
questions which the Purchaser may have regarding the terms of the documents
to
be delivered in connection with this Agreement;
(d) The
Purchaser acknowledges that no agency, governmental authority, securities
commission or similar regulatory body, stock exchange or other entity has
reviewed, passed on or made any finding or determination as to the merit for
investment in the Shares nor have any such agencies or governmental authorities
made any recommendation or endorsement with respect to the Shares;
and
(e) The
execution and delivery of this Agreement, the performance and compliance with
the terms hereof, the purchase of the Shares and the completion of the
transactions described herein by the Purchaser will not result in any material
breach of, or be in conflict with or constitute a material default under, or
create a state of facts which, after notice or lapse of time, or both, would
constitute a material default under any term or provision of the Purchaser’s
constating documents, by-laws or resolutions or the Securities Laws or any
other
laws applicable to the Purchaser, any agreement to which the Purchaser is a
party, or any judgment, decree, order, statute, rule or regulation applicable
to
the Purchaser.
|
6.
|
CONDITIONS
TO CLOSING.
|
6.1 Conditions
to the Purchaser’s Obligations at the Closing.
The
Purchaser’s obligations to purchase the Shares at the Closing are subject to the
satisfaction, at or prior to the Closing Date, of the following
conditions:
(a) Representations
and Warranties True; Performance of Obligations.
The
representations and warranties made by the Company in Section 3
hereof
shall be true and correct as of the Closing Date with the same force and effect
as if they had been made as of the Closing Date, and the Company shall have
performed all obligations and conditions herein required to be performed or
observed by it on or prior to the Closing.
(b) Legal
Investment.
On the
Closing Date, the sale and issuance of the Shares shall be legally permitted
by
all laws and regulations to which the Purchaser and the Company are subject.
(c) Consents,
Permits, and Waivers.
The
Company shall have obtained any and all consents, permits and waivers necessary
or appropriate for consummation of the transactions contemplated by the
Agreement and the Related Agreements except for such as may be properly obtained
subsequent to the Closing.
(d) Filing
of Form D.
The
Company shall file a Form D with the Securities and Exchange Commission as
soon
as practicable following the Closing Date.
(e) Corporate
Documents.
The
Company shall have delivered to the Purchaser or its counsel copies of all
corporate documents of the Company as the Purchaser shall reasonably request.
(f) Compliance
Certificate.
The
Company shall have delivered to the Purchaser a Compliance Certificate, executed
by the President of the Company, dated the Closing Date, to the effect that
the
conditions specified in subsections (a) and (c) of this Section 6.1
have
been satisfied.
(g) Secretary’s
Certificate.
Purchasers shall have received from the Company’s Secretary, a certificate
having attached thereto (i) the Company’s Articles as in effect at the time of
the Closing, as certified by an official of the Company’s jurisdiction of
incorporation, (ii) the Company’s Bylaws as in effect at the time of the
Closing, (iii) a certificate from the Company’s jurisdiction of incorporation
attesting to the Company’s “good standing” in such jurisdiction and (iv)
resolutions approved by the Board of Directors (and the shareholders, if
necessary) authorizing the transactions contemplated hereby.
(h) Shareholders’
Agreement.
The
Shareholders’ Agreement shall each have been executed and delivered by the
parties thereto.
(i) Board
of Directors.
Upon
the Closing, the authorized size of the Board of Directors of the Company shall
be four members and the Board shall consist of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇.
(j) Proceedings
and Documents.
All
corporate and other proceedings in connection with the transactions contemplated
at the Closing hereby and all documents and instruments incident to such
transactions shall be reasonably satisfactory in substance and form to
Purchasers and their special counsel, and Purchasers and their special counsel
shall have received all such counterpart originals or certified or other copies
of such documents as they may reasonably request.
(k) Opinion
of Counsel.
The
Purchaser shall have received from counsel to the Company a legal opinion in
form and substance customary for transactions of the type contemplated by this
Agreement, which opinion shall be reasonably satisfactory to the Purchaser.
6.2 Conditions
to Obligations of the Company.
The
Company’s obligation to issue and sell the Shares at the Closing is subject to
the satisfaction, on or prior to such Closing, of the following conditions:
(a) Representations
and Warranties True.
The
representations and warranties in Section 5
made by
the Purchaser shall be true and correct at the date of the Closing, with the
same force and effect as if they had been made on and as of said date.
(b) Performance
of Obligations.
The
Purchaser shall have performed and complied with all agreements and conditions
herein required to be performed or complied with by the Purchaser on or before
the Closing.
(c) Shareholders’
Agreement.
The
Shareholders’ Agreement shall have been executed and delivered by the parties
hereto.
(d) Consents,
Permits, and Waivers.
The
Company shall have obtained any and all consents, permits and waivers necessary
or appropriate for consummation of the transactions contemplated by the
Agreement and the Related Agreements.
|
7.
|
MISCELLANEOUS.
|
7.1 Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State of
New
York in all respects as such laws are applied to agreements among New York
residents entered into and performed entirely within New York, without giving
effect to conflict of law principles thereof.
7.2 Survival.
The
representations, warranties, covenants and agreements made herein shall survive
the closing of the transactions contemplated hereby. All statements as to
factual matters contained in any certificate or other instrument delivered
by or
on behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by
the
Company hereunder solely as of the date of such certificate or instrument.
The
representations, warranties, covenants and obligations of the Company, and
the
rights and remedies that may be exercised by the Purchaser, shall not be limited
or otherwise affected by or as a result of any information furnished to, or
any
investigation made by or knowledge of, any of the Purchaser or any of its
representatives.
7.3 Successors
and Assigns.
Except
as otherwise expressly provided herein, the provisions hereof shall inure to
the
benefit of, and be binding upon the parties hereto and their respective
successors, assigns, heirs, executors and administrators.
7.4 Entire
Agreement.
This
Agreement, the Related Agreements and the other documents delivered pursuant
hereto constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and no party shall be liable for
or
bound to any other in any manner by any oral or written representations,
warranties, covenants and agreements except as specifically set forth herein
and
therein.
7.5 Severability.
In the
event one or more of the provisions of this Agreement should, for any reason,
be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal
or
unenforceable provision had never been contained herein.
7.6 Amendment
and Waiver.
This
Agreement may be amended or modified only upon the written consent of the
Company and Purchaser.
7.7 Delays
or Omissions.
It is
agreed that no delay or omission to exercise any right, power or remedy accruing
to any party, upon any breach, default or noncompliance by another party under
this Agreement shall impair any such right, power or remedy, nor shall it be
construed to be a waiver of any such breach, default or noncompliance, or any
acquiescence therein, or of or in any similar breach, default or noncompliance
thereafter occurring. It is further agreed that any waiver, permit, consent
or
approval of any kind or character on any party’s part of any breach, default or
noncompliance under this Agreement or any waiver on such party’s part of any
provisions or conditions of the Agreement must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement by law, or otherwise afforded to any
party, shall be cumulative and not alternative.
7.8 Notices.
All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified,
(b)
when sent by confirmed electronic mail, telex or facsimile if sent during normal
business hours of the recipient, if not, then on the next business day, (c)
five
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent:
|
If
to the Company:
|
Copy
to (which copy shall not constitute notice
hereunder):
|
|
|
Access
Energy Inc.
▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attn:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
|
Fraser
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇
▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile:
▇▇▇-▇▇▇ ▇▇▇▇
|
|
|
If
to the Purchaser:
|
Copy
to (which copy shall not constitute notice
hereunder):
|
|
|
▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, CEO
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
|
Gottbetter
& Partners, LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
|
or
at
such other address the Company or the Purchaser may designate by ten days
advance written notice to the other parties hereto.
7.9 Expenses.
Each
party shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement.
7.10 Attorneys’
Fees.
In the
event that any suit or action is instituted under or in relation to this
Agreement, including without limitation to enforce any provision in this
Agreement, the prevailing party in such dispute shall be entitled to recover
from the losing party all fees, costs and expenses of enforcing any right of
such prevailing party under or with respect to this Agreement, including without
limitation, such reasonable fees and expenses of attorneys and accountants,
which shall include, without limitation, all fees, costs and expenses of
appeals.
7.11 Titles
and Subtitles.
The
titles of the sections and subsections of the Agreement are for convenience
of
reference only and are not to be considered in construing this Agreement.
7.12 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but all of which together shall constitute one instrument.
7.13 Broker’s
Fees.
Each
party hereto represents and warrants that no agent, broker, investment banker,
person or firm acting on behalf of or under the authority of such party hereto
is or will be entitled to any broker’s or finder’s fee or any other commission
directly or indirectly in connection with the transactions contemplated herein.
Each party hereto further agrees to indemnify each other party for any claims,
losses or expenses incurred by such other party as a result of the
representation in this Section 7.13
being
untrue.
7.14 Pronouns.
All
pronouns contained herein, and any variations thereof, shall be deemed to refer
to the masculine, feminine or neutral, singular or plural, as to the identity
of
the parties hereto may require.
7.15 Currency.
All
references to $s or dollars in this Agreement are to United States dollars,
unless specifically stated otherwise.
Signature
Page Follows
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date set forth in the
first paragraph hereof.
|
ACCESS
ENERGY INC.
|
||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ |
||
| Title: President | ||
| By: | /s/ H. Reg. ▇. ▇▇▇▇▇▇ | |
|
Name: H. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
||
| Title: Vice President | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
||
| Title: President | ||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇ ▇▇▇▇▇▇ |
||
| Title: Director | ||