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EXHIBIT 10.16
STOCK PURCHASE AGREEMENT
AMONG
▇▇▇▇▇▇ DRILLING USA, INC.,
SAMSON INVESTMENT COMPANY,
▇▇▇▇▇ DRILLING & SERVICES COMPANY,
SAMSON RIG COMPANY
AND
RIG PROPERTIES, INC.
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TABLE OF CONTENTS
ARTICLE I -- DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II -- SALE AND TRANSFER OF SHARES; CLOSING . . . . . . . . . . . . . 8
2.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Scheduled Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Actions Prior to the Closing . . . . . . . . . . . . . . . . . . . . . . 8
2.4 Actions at the Closing . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.5 Effectiveness of Closing . . . . . . . . . . . . . . . . . . . . . . . . 9
2.6 Deferred Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III -- REPRESENTATIONS AND WARRANTIES OF PURCHASER . . . . . . . . . 10
3.1 Incorporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.2 Authorization and Enforceability . . . . . . . . . . . . . . . . . . . . 10
3.3 No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.4 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.5 Banker's/Finder's Fee . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.6 Sufficient Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.7 Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV -- REPRESENTATIONS AND WARRANTIES OF SAMSON . . . . . . . . . . . 11
AND THE CORPORATIONS
4.1 Incorporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.2 Authorization and Enforceability . . . . . . . . . . . . . . . . . . . 12
4.3 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.4 No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.5 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.6 Operations of Newco and Newco2 . . . . . . . . . . . . . . . . . . . . 13
4.7 Litigation and Claims . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.9 Environmental, Health and Safety Compliance . . . . . . . . . . . . . . 13
4.10 Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.11 Employees; Employee Benefit Plans . . . . . . . . . . . . . . . . . . . 15
4.12 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.13 Compliance With Laws; Permits . . . . . . . . . . . . . . . . . . . . . 16
4.14 Banker's/Finder's Fee . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.15 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.16 Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.17 Powers of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.18 Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.19 Completeness of Disclosure . . . . . . . . . . . . . . . . . . . . . . . 17
(i)
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ARTICLE V -- PRE-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . 17
5.1 Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.2 Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.3 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.4 Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.5 Governing Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.6 No Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.7 No Dispositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.8 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.9 Other Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.10 Advice of Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.11 Maintenance of Rigs . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.12 Exclusivity of Dealing . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.13 Best Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI -- COVENANTS OF SELLER AND PURCHASER . . . . . . . . . . . . . . . 18
6.1 Access and Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.2 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.3 Notices to Third Parties . . . . . . . . . . . . . . . . . . . . . . . . 19
6.4 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.5 Inspection of Real Property and Leases . . . . . . . . . . . . . . . . . 20
6.6 No Warranty; Acceptance of Assets . . . . . . . . . . . . . . . . . . . . 20
6.7 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.8 Mutual Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.9 Preservation of Seller's Files and Records . . . . . . . . . . . . . . . 21
6.10 Access for Purposes of Litigation . . . . . . . . . . . . . . . . . . . 21
6.11 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VII -- CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS . . . . . . . 22
7.1 Accuracy of Representations and Warranties . . . . . . . . . . . . . . . 22
7.2 Performance of Covenants and Agreements . . . . . . . . . . . . . . . . . 22
7.3 Release of Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.4 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.5 Permits, Consents, etc . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.6 Litigation Concerning this Agreement . . . . . . . . . . . . . . . . . . 22
7.7 Certificate of Seller . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.8 Legal Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.9 Delivery of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VIII -- CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS . . . . . . . . 23
8.1 Accuracy of Representations and Warranties . . . . . . . . . . . . . . . 23
8.2 Performance of Covenants and Agreements . . . . . . . . . . . . . . . . . 23
8.3 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(ii)
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8.4 Litigation Concerning this Agreement . . . . . . . . . . . . . . . . . . 23
8.5 Certificate of Purchaser . . . . . . . . . . . . . . . . . . . . . . . . 24
8.6 Legal Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.7 Delivery of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE IX -- TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE X -- INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . 25
10.1 General Indemnification by Purchaser . . . . . . . . . . . . . . . . . . 25
10.2 General Indemnification by Samson and the Seller . . . . . . . . . . . . 26
10.3 Defense of Third Party Claims . . . . . . . . . . . . . . . . . . . . . 26
10.4 Matters Involving the Parties . . . . . . . . . . . . . . . . . . . . . 28
10.5 Right to Indemnification Not Affected by Knowledge . . . . . . . . . . . 28
10.6 Consequential and Incidental Damages . . . . . . . . . . . . . . . . . . 28
10.7 Determination of Damages . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE XI -- TAX MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.1 Certain Non-Income Tax Matters . . . . . . . . . . . . . . . . . . . . . 29
11.2 Taxes Operations on or Before Closing Date . . . . . . . . . . . . . . . 29
11.3 Taxes Operations Subsequent to Closing Date . . . . . . . . . . . . . . 31
11.4 Income Taxes Resulting from this Transaction . . . . . . . . . . . . . . 31
11.5 Tax Sharing Agreements . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE XII -- GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.1 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.2 No Other Representations, Etc . . . . . . . . . . . . . . . . . . . . . 32
12.3 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.4 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.5 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.6 Binding Agreements; Assignment. . . . . . . . . . . . . . . . . . . . . 32
12.7 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.8 U.S. Dollars. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
12.9 Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
12.10 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
12.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
12.12 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
12.13 Survival of Representations, Warranties, Covenants
and Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
12.14 Parties in Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 34
12.15 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
12.16 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . 34
12.17 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
(iii)
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EXHIBITS
2.4(a) FORM OF STOCK POWER
7.8 FORM OF LEGAL OPINION OF GENERAL COUNSEL OF SAMSON
8.6 FORM OF LEGAL OPINION OF COUNSEL OF PURCHASER
SCHEDULES
1.9 CONTRACTS
1.28 LEASED REAL PROPERTY
1.38 OWNED REAL PROPERTY
1.46 RIGS, INCLUDING EQUIPMENT
1.47 ROLLING STOCK
4.1(b) FOREIGN QUALIFICATIONS OF NEWCO
4.1(c) FOREIGN QUALIFICATIONS OF NEWCO2
4.1(d) FOREIGN QUALIFICATIONS OF SELLER
4.1(e) OFFICERS, DIRECTORS AND ORGANIZATIONAL DOCUMENTS
4.10 LEASES
4.12 COMMITMENTS
4.15 NOTICES OF CANCELLATION
6.1 CONFIDENTIALITY OBLIGATIONS
The schedules and exhibits have been omitted. The Company agrees to furnish to
the Securities and Exchange Commission supplementally a copy of any omitted
schedule or exhibit.
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of the 20th day of March, 1997
(this Agreement ), is by and between ▇▇▇▇▇▇ Drilling USA, Inc., a Delaware
corporation having its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ( Purchaser ), Samson Investment Company, a
Nevada corporation having its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ( Samson ), ▇▇▇▇▇ Drilling & Services Company, a
Delaware corporation ( Seller ), Samson Rig Company, an Oklahoma corporation (
Newco ), and Rig Properties, Inc., a Delaware corporation ( Newco2 ).
RECITALS:
WHEREAS, Seller desires to sell, and Purchaser desires to purchase, all
of the issued and outstanding shares of capital stock in Newco and Newco2;
WHEREAS, Seller owns certain assets which will be transferred to Newco
and Newco2 prior to the sale and purchase of such shares; and
WHEREAS, as a condition to its purchase of such shares, Purchaser
requires Samson and Seller to make certain representations, warranties and
covenants and to agree to indemnify Purchaser in certain respects, all as more
fully set forth herein;
NOW, THEREFORE, in consideration of the agreements, mutual
representations, warranties and covenants herein contained, and on the terms
and subject to the conditions herein set forth, the parties hereto agree as
follows:
ARTICLE I -- DEFINITIONS
For the purposes of this Agreement, the following defined terms shall
have the meanings set forth in this Article I. All Article, Section and
Schedule numbers and references used herein refer to Articles and Sections of
this Agreement and Schedules attached hereto, or delivered simultaneously
herewith, unless otherwise specifically described.
1.1 Affiliate means a Person that, directly or indirectly through
one or more intermediaries, Controls, is Controlled by or is
under common Control with, the first mentioned Person.
1.2 Agreement means this Stock Purchase Agreement.
1.3 Assets means all Rigs, Contracts, Owned Real Property, Leases,
Rolling Stock and Miscellaneous Files and Records which in each
case are owned by Seller and are to be owned prior to Closing by
Newco and Newco2 and all franchises, approvals, permits,
licenses, orders, registrations, certificates, variances and
similar rights
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obtained from Governmental Authorities that are related to any of
the Assets to the extent that the same are capable of conveyance.
1.4 Business Day means a day which is not a Saturday, a Sunday or a
United States federal or banking holiday.
1.5 Closing means the consummation of the purchase and sale of the
Shares contemplated in this Agreement.
1.6 Closing Amount has the meaning set forth in Section 2.1.
1.7 Closing Date means the date on which the Closing shall occur.
1.8 Code means the Internal Revenue Code of 1986, as amended, or any
amending or superseding tax law of the United States of America,
together with all rules and regulations promulgated thereunder.
1.9 Contracts means all rights under the contracts, agreements and
other arrangements and documents described on Schedule 1.9.
1.10 Control (including the terms Controlled, Controlled by and
under common Control with) means the possession, directly or
indirectly or as trustee or executor, of the power to direct or
cause the direction of the management or policies of a Person,
whether through the ownership of stock or as trustee or executor,
by contract or credit arrangement or otherwise.
1.11 Corporations means Seller, Newco and Newco2.
1.12 Damages means any and all claims, penalties, fines, damages
(including, without limitation, incidental and consequential
damages with respect to third party claims), liabilities,
interest, losses, expenses or costs (including, without
limitation, Litigation Expenses and remediation costs incident to
Indemnified Claims).
1.13 DOJ means the United States Department of Justice.
1.14 Employee Benefit Plan means (a) any bonus, incentive
compensation, profit sharing, retirement, pension, group
insurance, death benefit, group health, medical expense
reimbursement, workers' compensation, dependent care, flexible
benefits or cafeteria, stock option, stock purchase, stock
appreciation rights, savings, deferred compensation, consulting,
severance pay or termination pay, vacation pay, life insurance,
disability, welfare or other employee benefit or fringe benefit
plan, program or arrangement; or (b) any plan, program or
arrangement which is an employee pension benefit plan (as defined
in ERISA Sec. 3(2)), employee welfare
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benefit plan (as defined in ERISA Sec. 3(1)) or multiemployer
plan (as defined in ERISA Sec. 3(37)).
1.15 Environment means soil, land surface or subsurface strata,
surface waters (including navigable waters, ocean waters,
streams, ponds, drainage basins and wetlands), groundwaters,
drinking water supply, stream sediments, ambient air (including
indoor air), plant and animal life and any other environmental
medium or natural resource.
1.16 Environmental, Health and Safety Liabilities means any cost,
damages, expense, liability, obligation or other responsibility
arising from or under Environmental Law or Occupational Safety
and Health Law and consisting of or relating to:
(a) any environmental, health or safety matters or conditions
(including on-site or off-site contamination, occupational
safety and health and regulation of chemical substances or
products);
(b) fines, penalties, judgments, awards, settlements, legal or
administrative proceedings, damages, losses, claims,
demands and response, investigative, remedial or
inspection costs and expenses arising under Environmental
Law or Occupational Safety and Health Law;
(c) financial responsibility under Environmental Law or
Occupational Safety and Health Law for cleanup costs or
corrective action, including any investigation, cleanup,
removal, containment or other remediation or response
actions required by applicable Environmental Law or
Occupational Safety and Health Law (whether or not any
such actions have been required or requested by any
Governmental Authority or any other Person) and for any
natural resource damages; or
(d) any other compliance, corrective, investigative or
remedial measures required under Environmental Law or
Occupational Safety and Health Law.
The terms removal, remedial and response action include the
types of activities covered by the United States Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601 et seq., as amended.
1.17 Environmental Law means any Legal Requirement that requires or
relates to:
(a) advising appropriate authorities, employees and the public
of intended or actual releases of pollutants or hazardous
substances or materials, violations of discharge limits or
other prohibitions and of the commencements of
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activities, such as resource extraction or construction,
that could have significant impact on the Environment;
(b) preventing or reducing to acceptable levels the release of
pollutants or hazardous substances or materials into the
Environment;
(c) reducing the quantities, preventing the release or
minimizing the hazardous characteristics of wastes that
are generated;
(d) assuring that products are designed, formulated, packaged
and used so that they do not present unreasonable risks to
human health or the Environment when used or disposed of;
(e) protecting resources, species or ecological amenities;
(f) reducing to acceptable levels the risks inherent in the
transportation of hazardous substances, pollutants, oil or
other potentially harmful substances;
(g) cleaning up pollutants that have been released, preventing
the threat of release or paying the costs of such clean up
or prevention; or
(h) making responsible parties pay private parties, or groups
of them, for damages done to their health or the
Environment or permitting self-appointed representatives
of the public interest to recover for injuries done to
public assets.
1.18 ERISA means the Employee Retirement Income Security Act of 1974
or any successor law, together with any regulations and rules
issued pursuant to that Act or any successor law.
1.19 Form 8023-A has the meaning set forth in Section 11.4(b).
1.20 FTC means the United States Federal Trade Commission.
1.21 Governmental Authority means the governments of the United
States of America, any state of the United States of America or
any political subdivision thereof or any foreign or tribal
government or any agency, board, bureau, department or commission
of any of the foregoing, including, without limitation, any court
or other judicial or arbitral entity.
1.22 HSR Act means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended, together with the rules and regulations
promulgated thereunder.
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1.23 Indemnified Claim means any matter which may give rise to a
claim indemnifiable pursuant to this Agreement.
1.24 Indemnified Party means the party asserting indemnification
pursuant to this Agreement.
1.25 Indemnifying Party means the party who has assumed liability for
indemnification pursuant to this Agreement.
1.26 Inspection Reports has the meaning set forth in Section 6.5.
1.27 Knowledge means, with respect to any party, either (a) the
personal knowledge, after due investigation, of any officer or
director of such party or (b) as reflected in such party's files
and records.
1.28 Leased Real Property means the real property described on
Schedule 1.28.
1.29 Leases means the lease agreements relating to the Leased Real
Property.
1.30 Legal Requirement means any federal, state, local, municipal,
foreign, international, multinational or other administrative
order, constitution, law, ordinance, principle of common law,
regulation, statute or treaty.
1.31 Lien means any charge, claim, community property interest,
condition, equitable interest, lien, encumbrance, option, pledge,
security interest, right of first refusal or restriction of any
kind, including any restriction on use, voting, transfer, receipt
of income or exercise of any other attribute of ownership.
1.32 Litigation means, with respect to any party, any claim, action,
suit, litigation, proceeding, arbitration or investigation of any
kind, at law or in equity (including actions or proceedings
seeking injunctive relief), pending or Threatened against that
party or any properties or rights of that party, and any
continuing order of, consent decree, settlement agreement or
other similar written agreement with or continuing investigation
by, any Governmental Authority or any judgment, order, writ,
injunction, decree or award of any Governmental Authority or
arbitrator.
1.33 Litigation Expenses means reasonable attorneys' fees and other
costs and expenses (including actual cost of in-house counsel)
incident to proceedings or investigations respecting, or the
prosecution or defense of, a claim.
1.34 Material Adverse Effect means any change or effect that,
individually or when taken together with all other such changes
or effects, is or is reasonably likely to be materially adverse
to the business, properties, assets, condition (financial or
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otherwise), liabilities or operations of Newco and Newco2
(assuming Newco and Newco2 owned all of the Assets) at the time
of such change or effect. A Material Adverse Effect shall be
deemed to exist if there shall occur any event which causes or
may reasonably be expected to cause or result in estimable
monetary loss which individually exceeds $250,000 or when
aggregated with all other events exceeds $750,000.
1.35 Miscellaneous Files and Records means all personal property
(other than furniture, computers and telephone systems located
within the Enid, Oklahoma, office facility), active files, on-
going contracts and books and records owned or used by the
Corporations in connection with the operation of the Assets.
1.36 Newco means Samson Rig Company, an Oklahoma corporation.
1.37 Occupational Safety and Health Law means any Legal Requirement
designed to provide safe and healthful working conditions and to
reduce occupational safety and health hazards and any program,
whether governmental or private (including those promulgated or
sponsored by industry associations and insurance companies),
designed to provide safe and healthful working conditions.
1.38 Owned Real Property means the real property described on
Schedule 1.38.
1.39 Permitted Liens means any minor imperfection of title to Owned
Real Property or similar lien which individually, or in the
aggregate with such other liens or imperfections, does not have a
Material Adverse Effect.
1.40 Person means any individual, corporation (including any non-
profit corporation), general or limited partnership, limited
liability company, joint venture, estate, trust, association,
organization, labor union or other entity or Governmental
Authority.
1.41 Post-Closing Claims means any and all claims, demands, suits,
causes of action, expenses or proceedings asserted by any Person
which, directly or indirectly, arise out of or are related to or
based on (a) the ownership of Assets or the operations of Newco
and Newco2 and (b) acts or failures to act of Newco and Newco2,
including their officers, directors, attorneys, agents,
representatives or Affiliates, in each case, occurring after the
Closing Date. Post-Closing Claims shall include, without
limitation, all Environmental, Health and Safety Liabilities
caused by, arising out of, relating to or resulting from matters
occuring subsequent to the Closing.
1.42 Pre-Closing Claims means any and all claims, demands, suits,
causes of action, expenses or proceedings asserted by any Person
which, directly or indirectly, arise out of or are related to or
based on (a) the ownership of Assets or the operations of the
Corporations and (b) acts or failures to act of the Corporations,
including their
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officers, directors, attorneys, agents, representatives or
Affiliates, in each case, occurring on or prior to the Closing
Date. Pre-Closing Claims shall include, without limitation, all
Environmental, Health and Safety Liabilities caused by, arising
out of, relating to or resulting from matters occuring prior to
the Closing.
1.43 Property Taxes has the meaning set forth in Section 11.1(b).
1.44 Purchase Price has the meaning set forth in Section 2.1.
1.45 Purchase Price Offset has the meaning set forth in Section 2.1.
1.46 Rigs means all drilling rigs, along with all accessories,
components, parts, supplies, tools and associated equipment
related to the drilling and servicing business and owned by
Seller (prior to the Closing) or Newco, which are described on
Schedule 1.46.
1.47 Rolling Stock means all motor vehicles, trailers and forklifts
used by the Seller (prior to the Closing) or Newco, which are
described on Schedule 1.47.
1.48 Samson means Samson Investment Company, a Nevada corporation.
1.49 Samson Entity means Samson and its subsidiaries and Affiliates.
1.50 Section 338(h)(10) Election has the meaning set forth in Section
11.4(a).
1.51 Seller means ▇▇▇▇▇ Drilling & Services Company, a Delaware
corporation, and, unless the context requires otherwise, its
predecessors.
1.52 Shares means all of the issued and outstanding capital stock of
Newco, which consists of 500 shares of common stock, par value
$1.00 per share, and all of the issued and outstanding capital
stock of Newco2, which consists of 1,000 shares of common stock,
par value $.01 per share.
1.53 Tax means any federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including
taxes under Code Section 59A), customs duties, capital stock,
franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property,
sales, use, transfer, registration, value added, alternative or
add-on minimum, estimated or other tax of any kind whatsoever,
including any interest, penalty or addition thereto, whether
disputed or not.
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1.54 Tax Return means any return, declaration, report, claim for
refund or information return or statement relating to Taxes,
including any schedule or attachment thereto and including any
amendment thereof.
1.55 Threatened a claim, proceeding, dispute, action or other matter
will be deemed to have been Threatened with respect to a party
if (a) any demand, statement or notice has been made in writing
to such party or (b) any other event has occurred or any other
circumstances exist, of which event or circumstances such party
has Knowledge, that would lead a prudent Person in such party's
position and circumstances to conclude that such a claim,
dispute, action or other matter is likely to be asserted,
commenced, taken or otherwise pursued in the future.
1.56 Transfer Documents has the meaning set forth in Section 2.3.
1.57 Voting Debt has the meaning set forth in Section 4.3(e).
ARTICLE II -- SALE AND TRANSFER OF SHARES; CLOSING
2.1 Purchase and Sale. Subject to and upon the terms and conditions
contained herein, at the Closing, Seller shall sell and transfer the Shares to
Purchaser and Purchaser shall purchase and acquire the Shares from Seller, free
and clear of all Liens or restrictions on transfer. Upon the terms and subject
to the conditions set forth in this Agreement and in exchange for and in
consideration for the Shares and other consideration set forth in this
Agreement, Purchaser shall pay to Seller Eighty-five Million and no/100 Dollars
($85,000,000.00) (the Purchase Price ), subject to reduction by the sum of any
and all amounts designated by this Agreement as Purchase Price Offsets (as so
reduced, the Closing Amount ).
2.2 Scheduled Closing Date. The Closing shall be held on the second
Business Day following the expiration or termination of the applicable waiting
period under the HSR Act, unless Seller and Purchaser shall agree to a
different Closing Date. The Closing shall take place at 10:00 a.m. local time
at the offices of Seller in Tulsa, Oklahoma, or at such other time and place as
the parties hereto shall agree in writing. Except as provided in Article IX,
failure to consummate the purchase and sale provided for in this Agreement on
the date and time and at the place determined pursuant to this Section 2.2 will
not result in the termination of this Agreement and will not relieve any party
of any obligation under this Agreement.
2.3 Actions Prior to the Closing. Subject to Section 6.4, immediately
prior to the Closing, Seller shall, and Samson shall cause any Samson Entities
to, transfer, convey and deliver to Newco and Newco2 all right, title and
interest in and to the Assets, and Seller, Newco and Newco2 shall, and Samson
shall cause any Samson Entities to, execute, or cause to be executed, all
documents and instruments that Purchaser may reasonably require to evidence
such transfer, conveyance and delivery (the Transfer Documents ). Seller
shall not, and Samson shall ensure that the Samson Entities will not, transfer,
convey or deliver to Newco and Newco2 any assets or
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liabilities other than those contemplated by this Agreement without the prior
written consent of Purchaser.
2.4 Actions at the Closing. At the Closing:
(a) Seller shall deliver to Purchaser certificates
representing the Shares, together with executed stock
powers in the form of Exhibit 2.4(a).
(b) Purchaser shall deliver to Seller the Closing Amount in
immediately available United States funds by wire transfer
to:
Financial Institution: Liberty Bank and Trust Company of
Tulsa,
Tulsa, Oklahoma
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account Name: Samson Investment Company
Account Number: ▇▇▇▇▇▇▇
(c) Seller shall deliver to Purchaser (i) any minute books and
stock transfer books of Newco and Newco2 that are not then
in the possession of Purchaser, (ii) legally effective
resignations of all of the directors and officers of Newco
and Newco2 and (iii) any Miscellaneous Files and Records
that are not then in the possession of Purchaser.
(d) Seller shall deliver to Purchaser the certificate
described in Section 7.7.
(e) Purchaser shall deliver to Seller the certificate
described in Section 8.5.
(f) Seller, Newco and Newco2 shall deliver to Purchaser at
least one executed counterpart of all Transfer Documents.
(g) Seller shall deliver to Purchaser bring-down telegrams
from the Secretaries of State of the States of Oklahoma
and Delaware, dated as of the Closing Date, that indicate
that Newco and Newco2 are corporations existing and in
good standing in the States of Oklahoma and Delaware,
respectively.
(h) The parties shall deliver such other documents and
instruments as are required pursuant to Articles VII and
VIII, unless waived in writing by the party entitled to
delivery thereof.
2.5 Effectiveness of Closing. No action to be taken or delivery to
be made at the Closing shall be effective until all of the actions to be taken
and deliveries to be made at the Closing are complete.
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2.6 Deferred Closing. If, on the second Business Day following the
expiration or termination of any applicable waiting period under the HSR Act,
Samson and the Corporations have satisfied all conditions set forth in Articles
VII and VIII that are within the reasonable control of Samson, the Corporations
or any of their Affiliates, and if the Closing shall occur subsequent to such
second Business Day, then Purchaser shall pay to Seller at the Closing interest
on the Closing Amount accruing from and after such second Business Day until
the Closing Date, at an annual rate of eight percent.
ARTICLE III -- REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Samson and the Corporations
as follows:
3.1 Incorporation. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
with full corporate power to enter into this Agreement and perform its
obligations hereunder and thereunder.
3.2 Authorization and Enforceability. The execution and delivery of
this Agreement by Purchaser and the performance by Purchaser of its obligations
hereunder have been duly and validly authorized by all necessary corporate
action of Purchaser. This Agreement has been duly executed and validly
delivered by Purchaser and, assuming the due authorization, execution and
delivery thereof by Samson and the Corporations, is a legal, valid and binding
obligation of Purchaser, enforceable against the Purchaser in accordance with
its terms.
3.3 No Conflict. The execution and delivery of this Agreement by
Purchaser and the performance by Purchaser of its obligations hereunder do not
and will not (a) conflict with the charter documents or bylaws of Purchaser or
(b) result in the breach of any of the provisions of, constitute a default
under or give rise to a right of acceleration of, any material obligations or
to a loss of any material benefit under any judgment, writ, permit, concession,
franchise, license, order, decree or agreement to which Purchaser is a party or
by which Purchaser is bound, which breach, default, right of acceleration or
loss would materially adversely affect the ability of Purchaser to execute or
deliver or perform its obligations under this Agreement.
3.4 Consents. Except for any applicable HSR Act filing, no
authorization, consent, approval, permit or license of, filing with or
notification to any Governmental Authority, any lender or lessor or any other
Person is required to authorize or is required in connection with the
execution, delivery and performance of this Agreement on the part of Purchaser.
3.5 Banker's/Finder's Fee. Purchaser has made no agreement with any
Person regarding, nor taken any action which would cause any Person to become
entitled to, any agent's, broker's, investment banking or finder's fee in
connection with the transactions contemplated hereby.
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3.6 Sufficient Funds. Purchaser has internal resources or financing
commitments from responsible financial institutions available which are in an
aggregate amount sufficient to consummate the transactions contemplated hereby.
3.7 Investment. Purchaser is acquiring the Shares for its own
account, for investment, and not with a view to, or for offer or resale in
connection with, a distribution (within the meaning of Section 2(11) of the
Securities Act of 1933, as amended) of any of the Shares or any beneficial
interest in the Shares or distribution thereof in violation of any applicable
securities laws.
ARTICLE IV -- REPRESENTATIONS AND WARRANTIES OF SAMSON
AND THE CORPORATIONS
Samson and the Corporations hereby jointly and severally represent and
warrant to Purchaser as follows:
4.1 Incorporation.
(a) Samson is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada
with full corporate power and authority to enter into this
Agreement and perform its obligations hereunder and
thereunder.
(b) Newco is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Oklahoma, with full corporate power and authority to own,
lease and operate its properties and to carry on its
business as currently conducted and to enter into this
Agreement and perform its obligations hereunder and is a
corporation duly qualified and in good standing to do
business in each jurisdiction in which the location of the
Assets or the nature of its business makes such
qualification necessary. Schedule 4.1(b) sets forth all
of the jurisdictions where Newco is authorized, or
otherwise qualified, to do business as a foreign
corporation.
(c) Newco2 is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware, with full corporate power and authority to own,
lease and operate its properties and to carry on its
business as currently conducted and to enter into this
Agreement and perform its obligations hereunder and is a
corporation duly qualified and in good standing to do
business in each jurisdiction in which the location of the
Assets or the nature of its business makes such
qualification necessary. Schedule 4.1(c) sets forth all
of the jurisdictions where Newco2 is authorized, or
otherwise qualified, to do business as a foreign
corporation.
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(d) Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Delaware, with full corporate power and authority to own,
lease and operate its properties and to carry on its
business as currently conducted and to enter into this
Agreement and perform its obligations hereunder and is a
corporation duly qualified and in good standing to do
business in each jurisdiction in which the location of the
Assets or the nature of its business makes such
qualification necessary. Each of Seller's predecessors in
interest was duly qualified and in good standing to do
business in each jurisdiction in which the location of the
Assets or the nature of its business made such
qualification necessary. Schedule 4.1(d) sets forth all
of the jurisdictions where Seller is authorized, or
otherwise qualified, to do business as a foreign
corporation.
(e) Schedule 4.1(e) contains (i) a list of the officers and
directors of Newco and Newco2 and (ii) complete and
correct copies of (A) the Certificates of Incorporation
and the By-Laws, in each case as amended or restated, of
Newco and Newco2, (B) the agreement and plan of merger
pursuant to which Seller was created, (C) the certificate
of merger with Seller as the surviving entity and (D) all
other filings or constituent documents relating to the
merger of Seller.
4.2 Authorization and Enforceability. The execution and delivery of
this Agreement by Samson and each of the Corporations, and the performance by
such party of its obligations hereunder, have been duly and validly authorized
by all necessary corporate action of such party. This Agreement has been duly
executed and validly delivered by such party and, assuming the due
authorization, execution and delivery thereof by Purchaser, is a legal, valid
and binding obligation of such party, enforceable against such party in
accordance with its terms.
4.3 Capitalization.
(a) The Shares constitute all of the authorized, issued and
outstanding capital stock of Newco and Newco2.
(b) Seller is the sole record and beneficial owner of the
Shares. The Shares are free and clear of all Liens,
options, agreements, voting trusts and proxies.
(c) The Shares have been duly and validly issued and are fully
paid and nonassessable and were not issued in violation of
any preemptive rights.
(d) There are no rights, subscriptions, warrants, options,
calls, commitments, conversion rights, exchange rights or
agreements of any kind outstanding or in effect to
purchase or otherwise acquire (i) any capital stock or
debt securities of Newco or Newco2 or (ii) any obligations
of any kind convertible
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into, or exchangeable for, any shares of capital stock or
debt securities of Newco or Newco2.
(e) There are no bonds, debentures, notes or other
indebtedness or securities (other than the Shares) having
the right to vote on any matters on which the shareholders
may vote ( Voting Debt ) issued or outstanding related to
Newco or Newco2.
4.4 No Conflict. The execution and delivery of this Agreement by
Samson and each of the Corporations, and the performance by such party of its
obligations hereunder, do not and will not (a) conflict with the charter
documents or by-laws of such party or (b) result in the breach of any of the
provisions of, constitute a default under or give rise to a right of
acceleration of, any material obligations or to loss of any material benefit
under any judgment, writ, permit, concession, franchise, license, order, decree
or agreement to which such party is a party or by which such party is bound,
which breach, default, right of acceleration or loss would materially adversely
affect the ability of such party to execute or deliver or perform its
obligations under this Agreement.
4.5 Consents. Except for any applicable HSR Act filing, no
authorization, consent, approval, permit or license of, filing with or
notification to any Governmental Authority, any lender or lessor or any other
Person is required to authorize or is required in connection with the
execution, delivery and performance of this Agreement on the part of Samson or
the Corporations.
4.6 Operations of Newco and Newco2. Since their inception, Newco and
Newco2 have not conducted any business, nor have they suffered any Material
Adverse Effect.
4.7 Litigation and Claims. There is no Litigation pending or
Threatened against Newco or Newco2 or affecting any of the Assets or which
would reasonably be expected to affect the enforceability of the Contracts.
4.8 Insurance. All insurance coverage under Samson's insurance
programs for Seller shall be extended to Newco and Newco2 and shall be
maintained at Samson's expense until 12:01 a.m. CST on the day following the
day of the Closing. At such time, such insurance coverage shall terminate with
respect to events or occurrences following such time.
4.9 Environmental, Health and Safety Compliance. The Corporations are
not subject to liability under any Environmental Law or Occupational Safety and
Health Law that has had or is reasonably expected to have a Material Adverse
Effect.
4.10 Title. (a) As of the date hereof, Seller or another Samson
Entity has, and, as of the Closing Date, Newco will have, good and marketable
title to all Assets (other than Owned Real Property and Leases), and all such
Assets are owned, and will be owned on the Closing Date, free and clear of any
and all Liens. Samson has the power and authority to cause any Samson Entity
to transfer title to any Assets held by such Samson Entity to Newco.
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(b) With respect to each parcel of Owned Real Property:
(i) Seller has, as of the date hereof, and Newco2 will have as
of the Closing Date, good and marketable title (good and
indefeasible title in Texas) to such parcel, free and clear of
any Lien, easement, covenant or other restriction, except for
installments of special assessments not yet delinquent and
recorded easements, covenants and other restrictions which do not
impair the current use, occupancy, value or marketability of
title (indefeasibility of title in Texas), of the property
subject thereto;
(ii) there are no pending or Threatened condemnation
proceedings, lawsuits or administrative actions relating to such
parcel or other matters affecting materially and adversely the
current use, occupancy or value thereof;
(iii) the legal description for the parcel contained in the deed
thereof describes such parcel fully and adequately, the buildings
and improvements are located within the boundary lines of the
described parcels of land, are not in violation of applicable
setback requirements, zoning laws and ordinances (and none of the
properties or buildings or improvements thereon are subject to
permitted non-conforming use or permitted non-conforming
structure classifications) and do not encroach on any easement
which may burden the land, and the land does not serve any
adjoining property for any purpose inconsistent with the use of
the land, and the property is not located within any flood plain
or subject to any similar type restriction for which any permits
or licenses necessary to the use thereof have not been obtained;
(iv) to the Knowledge of Samson and the Corporations, all
facilities have received all approvals of Governmental
Authorities (including licenses and permits) required in
connection with the ownership or operation thereof and have been
operated and maintained in accordance with applicable laws, rules
and regulations;
(v) except as noted on Schedule 4.10, there are no leases,
subleases, licenses, concessions or other agreements, written or
oral, granting to any party or parties the right of use or
occupancy of any portion of the parcel;
(vi) there are no outstanding options or rights of first
refusal to purchase the parcel or any portion thereof or interest
therein;
(vii) except as noted on Schedule 4.10, there are no parties
(other than Seller as of the date hereof and Newco2 as of the
Closing Date) in possession of the parcel; and
(viii) all facilities located on the parcel are supplied with
utilities and other services necessary for the operation of such
facilities, including gas, electricity, water,
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telephone, sanitary sewer and storm sewer, all of which services
are adequate in accordance with all applicable laws, ordinances,
rules and regulations and are provided via public roads or via
permanent, irrevocable, appurtenant easements benefitting the
parcel.
(c) Seller or another Samson Entity has, as of the date
hereof, and Newco2 will have as of the Closing Date a valid
leasehold interest in all Leased Real Property. Samson has the
power and authority to cause any Samson Entity to transfer any
leasehold interest held by such Samson Entity to Newco2. Samson
or Seller has delivered to the Purchaser correct and complete
copies of all Leases. With respect to each Lease:
(i) the Lease is legal, valid, binding, enforceable and in
full force and effect;
(ii) except as noted on Schedule 4.10, the Lease will continue
to be legal, valid, binding, enforceable and in full force and
effect on identical terms following the consummation of the
transactions contemplated hereby;
(iii) no party to the Lease is in breach or default, and no
event has occurred which, with notice or lapse of time, would
constitute a breach or default or permit termination,
modification or acceleration thereunder;
(iv) no party to the Lease has repudiated any provision
thereof;
(v) there are no disputes, oral agreements (other than those
set forth on Schedule 1.9) or forbearance programs in effect as
to the Lease;
(vi) neither of the Corporations has assigned, transferred,
conveyed, mortgaged, deeded in trust or encumbered any interest
in the leasehold;
(vii) all Leased Real Property has received all approvals of
Governmental Authorities (including licenses and permits)
required in connection with the operation thereof and has been
operated and maintained in accordance with applicable laws, rules
and regulations; and
(viii) except as noted on Schedule 4.10, all Leased Real Property
is supplied with utilities and other services necessary for the
operation of the Leased Real Property, including those set forth
in Section 4.10(b)(viii).
4.11 Employees; Employee Benefit Plans. Newco and Newco2 do not have,
and have not had since their inception, any employees. Newco and Newco2 have
no liability, either directly or indirectly as a member of a controlled group
treated as a single employer under Sections 414(b), (c), (m) or (o) of the
Code, under or with respect to: (a) any Employee Benefit Plan; (b) any funded
or
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unfunded medical, health or life insurance plan or arrangement for retirees or
terminated employees; (c) any employment, collective bargaining or change in
control agreement; or (d) any violation of Sections 162(k) or 4980B of the
Code.
4.12 Commitments. The Corporations have not entered into, nor are the
Assets bound by, any contract, agreement, instrument or commitment, whether or
not in writing, in respect of the Assets, Newco or Newco2, other than the
Transfer Documents, the Contracts and as set forth on Schedule 4.12.
4.13 Compliance With Laws; Permits. There are no existing violations
by the Corporations of any applicable federal, state or local law or regulation
or order, decree or judgment of any Governmental Authority, except as will not
have a Material Adverse Effect. All franchises, approvals, permits, licenses,
orders, registrations, certificates, variances and similar rights obtained from
Governmental Authorities that are necessary for Newco and Newco2 to own, lease
and operate the Assets and to carry on the drilling and servicing business are
in the possession of Seller as of the date hereof, and will be in the
possession of Newco and Newco2 as of the Closing Date, and have not been, and
will not have been on the Closing Date, suspended, canceled or Threatened to be
suspended or canceled, except, in each case, as will not have a Material
Adverse Effect.
4.14 Banker's/Finder's Fee. None of the Corporations or Samson has
made any agreement with any Person regarding, nor taken any action which would
cause any Person to become entitled to, any agent's, broker's, investment
banking or finder's fee from Purchaser, Newco or Newco2 in connection with the
transactions contemplated hereby.
4.15 Contracts. Samson has delivered to Purchaser a correct and
complete copy of each written Contract and a correct and complete written
summary of the terms and conditions of each oral Contract. No material term or
provision of any Contract has been waived, amended or repudiated, and all
rights of all Samson Entities pursuant to the Contracts are held by Seller as
of the date hereof and will be held by Newco on the Closing Date. Except as
set forth on Schedule 4.15, neither Samson nor the Corporations has received
notice of any cancellation or Threatened cancellation of, or default,
acceleration or outstanding dispute under, any Contract. No party is in breach
or default of the terms of any Contract, and no event has occurred that, with
notice or lapse of time or both, would constitute a breach or default, or
permit termination, modification or acceleration, under any Contract. Samson
and the Corporations will take such steps as are necessary to ensure that the
Corporations will not breach any provisions or terms of any Contract. Each
Contract has been duly executed, constitutes the valid and enforceable
obligations of the parties thereto and will continue to be valid and
enforceable following the consummation of the transactions contemplated by this
Agreement.
4.16 Liabilities. There are no duties, liabilities or obligations of
Newco or Newco2 other than those imposed by (a) the Contracts, (b) this
Agreement and (c) applicable statutes, ordinances, rules and regulations.
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4.17 Powers of Attorney. There are no outstanding powers of attorney
executed by or on behalf of Newco or Newco2.
4.18 Guaranties. Newco and Newco2 are not guarantors of, and are not
otherwise liable for, any liability or obligation (including indebtedness) of
any other Person.
4.19 Completeness of Disclosure. No representation or warranty of
Samson, Seller, Newco or Newco2 in this Agreement and no statement in any
Schedule hereto provided by Samson, Seller, Newco or Newco2 omits to state a
material fact necessary to make the statements herein or therein, in light of
the circumstances in which they were made, not misleading. No notice given
pursuant to Section 12.17 by Samson, Seller, Newco or Newco2 will contain any
untrue statement or omit to state a material fact necessary to make the
statements therein or in this Agreement, in light of the circumstances in which
they were made, not misleading.
ARTICLE V -- PRE-CLOSING COVENANTS
Except as otherwise (a) provided for in this Agreement or (b) consented
to in writing by Purchaser, from the date of this Agreement until the Closing:
5.1 Operations. Newco and Newco2 shall not engage in any business
activity other than that required of it in order to comply with their duties
and obligations hereunder. The Corporations shall (a) preserve intact their
present business organization, (b) keep available the services of their present
officers and employees and (c) preserve their relationships with customers,
suppliers and others having business dealings with them toward the end of
preserving their goodwill and ongoing businesses.
5.2 Agreements. Samson shall not permit Newco or Newco2 to, and
Newco and Newco2 shall not, enter into any agreement with any third parties or
the Samson Entities, other than the Contracts and the Transfer Documents.
5.3 Dividends. Samson and the Corporations shall not permit the
declaration or payment of any dividend in respect of, or the repurchase or
redemption of any of, the capital stock of Newco or Newco2 or the Assets of the
Corporations.
5.4 Issuance of Securities. Newco and Newco2 shall not issue,
deliver or sell, or authorize or propose the issuance, delivery or sale of, any
shares of their capital stock of any class, any Voting Debt of Newco or Newco2
or any securities convertible into, or any rights, warrants or options to
acquire, any such shares, Voting Debt of Newco or Newco2 or convertible
securities.
5.5 Governing Documents. Neither Newco nor Newco2 shall amend or
propose to amend its Certificate of Incorporation or By-laws.
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5.6 No Acquisitions. Newco and Newco2 shall not acquire or agree to
acquire, by merging or consolidating with, by purchasing a substantial portion
of the assets of or by any other manner, any business or any corporation,
partnership, association or other business, organization or division thereof.
5.7 No Dispositions. Except as otherwise provided for in this
Agreement, the Corporations shall not sell, lease or otherwise dispose of, or
agree to sell, lease or otherwise dispose of, any of the Assets.
5.8 Indebtedness. Newco and Newco2 shall not incur any indebtedness
for borrowed money, guarantee any such indebtedness, issue or sell any debt
securities of the Corporations or guarantee any debt securities of others.
5.9 Other Actions. The Corporations and Samson shall not to take any
action that would or might result in any of the representations and warranties
of any such party set forth in this Agreement becoming untrue.
5.10 Advice of Changes. Samson shall promptly advise Purchaser orally
and in writing of any change or event having, or which, insofar as can
reasonably be foreseen, would have, a Material Adverse Effect.
5.11 Maintenance of Rigs. Samson shall cause the Corporations to, and
the Corporations shall, continue to store and maintain the Rigs in
substantially the same manner as they were stored and maintained prior to the
date hereof.
5.12 Exclusivity of Dealing. Samson and the Corporations will not,
and will cause each of their employees, officers, directors and agents not to,
directly or indirectly solicit, initiate or encourage any inquiries or
proposals from, discuss or negotiate with, provide any non-public information
to, or consider the merits of any unsolicited inquiries or proposals from, any
Person (other than Purchaser) relating to any transaction involving any (a)
sale or transfer of (i) the business of Newco or Newco2, (ii) Assets or (iii)
capital stock of Newco or Newco2 or (b) merger, consolidation, business
combination or similar transaction involving Newco or Newco2.
5.13 Best Efforts. Between the date of this Agreement and the Closing
Date, Samson and the Corporations will use their best efforts to cause the
conditions in Articles VII and VIII to be satisfied.
ARTICLE VI -- COVENANTS OF SELLER AND PURCHASER
6.1 Access and Inquiry. Subject to the terms of this Agreement and
any outstanding confidentiality obligations, all of which are set forth on
Schedule 6.1, Purchaser and/or its authorized representatives, at reasonable
times, shall have access to, at Purchaser's expense, all of the Assets,
including without limitation, placing an employee of Purchaser on any real
property where any
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Assets are located to inspect and/or inventory such Assets. Seller shall cause
the Corporations to cause their officers, employees and management personnel to
cooperate fully with Purchaser's reasonable requests. In connection therewith,
Seller shall permit Purchaser, at Purchaser's expense, to photocopy relevant
information and records of the Corporations at any reasonable time.
6.2 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. Within three Business Days following
execution of this Agreement, Seller and Purchaser shall file or cause to be
filed appropriate Notification and Report Forms under the HSR Act with respect
to this Agreement and the transaction contemplated herein. Seller and
Purchaser shall cooperate to coordinate such filings and to make reasonable
efforts to respond to any governmental request or inquiry with respect thereto;
but none of Seller, Purchaser, or any of their respective Affiliates shall be
required to make any payment (other than for reasonable legal fees and, in the
case of Purchaser, the HSR Act filing fees) that it is not presently
contractually required to make, divest any assets (including but not limited to
the Assets), make any change in the conduct of its business or that of the
Corporations, accept any limitation on the future conduct of its business or
that of the Corporations, enter into any other agreement or arrangement with
any Person that it is not presently contractually required to enter into,
accept any significant modification in any existing agreement or arrangement or
agree to any of the foregoing. Seller and Purchaser shall request early
termination of the waiting period under the HSR Act upon the filing of the
Notification and Report Forms.
6.3 Notices to Third Parties. Samson, the Corporations and Purchaser
shall cooperate to make all other filings and to give notice to all third
parties that may reasonably be required to consummate the transactions
contemplated by this Agreement.
6.4 Risk of Loss. Except as specifically set forth in Section 6.1 of
this Agreement, the risk of any loss, damage, impairment, confiscation or
condemnation of the Assets, or any part thereof, shall be upon Samson and the
Seller at all times prior to the Closing. In any such event, Seller shall
promptly notify Purchaser of such event, and the proceeds of or any claim for
any loss payable under any insurance policy, judgment or award with respect
thereto shall be payable to the Seller. In any such event, Purchaser shall, at
its sole option, elect by written notice to Seller either: (a) to require
Seller to repair, replace or restore any such property to the reasonable
satisfaction of Purchaser as soon as possible after its loss, impairment,
confiscation or condemnation; or (b) to treat as a Purchase Price Offset the
value of the lost, destroyed or damaged Asset. If Purchaser elects subsection
(b) above, then the lost, destroyed or damaged Asset shall no longer be deemed
an Asset for purposes of this Agreement, and Seller shall not transfer to Newco
the lost, destroyed or damaged Asset. In such event, the amount of the
Purchase Price Offset shall be determined by mutual agreement of Purchaser and
Seller. If Purchaser and Seller cannot reach such agreement on the amount of
the Purchase Price Offset prior to the Closing Date, the Purchase Price Offset
shall be estimated for the purposes of Closing as equal to the lesser amount
asserted in good faith by either of such parties, and such parties subsequently
shall mutually appoint an independent appraiser to finally determine the amount
of the Purchase Price Offset and shall pay to each other any applicable
difference between the estimated amount and such appraised amount.
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6.5 Inspection of Real Property and Leases. At any time, whether
prior to Closing or within 60 days subsequent thereto, Purchaser shall have the
right to conduct an environmental, health and safety assessment, the scope of
which may be determined by the Purchaser at its sole discretion and which may
include sampling and testing, of the Owned Real Property and the Leased Real
Property (the Inspection Reports ). If Purchaser prepares Inspection Reports,
Purchaser shall deliver to Seller the Inspection Reports promptly upon
completion thereof. Such Inspection Reports shall set forth the results of
Purchaser's environmental assessment of the Owned Real Property and Leased Real
Property. Upon completion of Purchaser's due diligence, including, without
limitation, any Inspection Reports, Purchaser shall have the option, at its
sole discretion, of requiring Seller to re-purchase (a) from Purchaser or
Newco2 any Owned Real Property or any Lease or (b) from Purchaser the Shares of
Newco2. In such event, the purchase price for such property or lease shall be
determined by mutual agreement of the parties (but in no event shall the
aggregate price for all such property and leases exceed $500,000), and the
purchase price for the Shares of Newco2 shall be $500,000. If Purchaser and
Seller cannot reach such agreement on the amount of the purchase price within
60 days subsequent to the Closing Date, the purchase price shall be estimated
as equal to the lesser amount asserted in good faith by either of such parties
and such estimated amount shall be paid by Seller, and such parties
subsequently shall mutually appoint an independent appraiser to finally
determine the amount of the purchase price and shall pay to each other any
applicable difference between the estimated amount and such appraised amount.
If the Purchaser exercises its option pursuant to this Section, the Purchaser
shall have use of and access to the Leased Real Property or the Owned Real
Property at no charge for up to 120 days after the repurchase of such Shares to
relocate the Assets from the Leased Real Property or the Owned Real Property,
as the case may be.
6.6 No Warranty; Acceptance of Assets. EXCEPT AS OTHERWISE PROVIDED
IN THIS AGREEMENT, (a) SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING
THE ASSETS OR REGARDING COMMERCIAL SUITABILITY OF THE OWNED REAL PROPERTY OR
LEASED REAL PROPERTY, (b) AT THE CLOSING, PURCHASER WILL KNOWINGLY AND
VOLUNTARILY ACCEPT THE ASSETS (OTHER THAN THE OWNED REAL PROPERTY AND THE
LEASES) AS IS AND WHERE IS, AND (c) NO REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, HAS BEEN MADE BY OR ON BEHALF OF THE SELLER WITH RESPECT TO THE
PRESENT CONDITION OF THE ASSETS OR THE PRESENT OR FUTURE SUITABILITY THEREOF
FOR ANY INTENDED USE BY PURCHASER.
6.7 Further Assurances. The parties agree (a) to furnish upon request
to each other such further information, (b) to execute and deliver to each
other such other documents, and (c) to do such other acts and things, all as
any other party may reasonably request for the purpose of carrying out the
intent of this Agreement and the documents referred to in this Agreement.
6.8 Mutual Cooperation. Each party to this Agreement shall cooperate
with the other parties, which cooperation shall include the furnishing of
testimony and other evidence, permitting access to employees and providing
information regarding the whereabouts of former employees, as
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reasonably requested by such other party in connection with the prosecution or
defense of any claims or other matters relating to the Corporations or the
Assets or the other parties' obligations under this Agreement.
6.9 Preservation of Seller's Files and Records. For a period of six
(6) years after the Closing, Seller shall preserve all files and records in
Seller's possession relating to ▇▇▇▇▇, ▇▇▇▇▇▇ or the Assets and shall allow
Purchaser or its designee access to such files and records and the right to
make copies and extracts therefrom at any time during normal business hours,
and shall not dispose of any thereof; provided, however, that during the sixth
year after the Closing, Seller shall give Purchaser written notice of its
intention to dispose of any part thereof upon expiration of said six (6) year
period, and Purchaser may, within a period of sixty (60) days after receipt of
said notice, notify Seller of Purchaser's desire to retain one or more of the
items to be disposed of. Seller shall, upon receipt of such notice from
Purchaser, at Purchaser's expense, deliver to Purchaser the items specified in
Purchaser's notice to Seller which Purchaser has elected to retain.
6.10 Access for Purposes of Litigation. After the Closing Date, and
subject to any other obligations of Purchaser, Purchaser shall, and shall cause
Newco and Newco2 to, cooperate with Samson and/or its authorized
representatives to provide reasonable access to, and make available for
inspection, any Assets and corporate records of Newco or Newco2 deemed
necessary by Samson to permit Samson to participate in that certain lawsuit
entitled Samson Investment Company and Subsidiaries v. Commissioner of
Internal Revenue, ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇-▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Tax Court. Purchaser
shall and shall cause Newco and Newco2 to cause their officers, employees and
management personnel to cooperate fully with Samson's requests for such access
and inspection. Samson's inspection of any Assets and inspection or
photocopying of any corporate records and information shall be at Samson's
expense. The provisions of this Section shall be specifically binding on any
successors or assigns of Purchaser, ▇▇▇▇▇, ▇▇▇▇▇▇ or the Assets and shall
further survive for a period of six (6) years following the Closing.
6.11 Expenses. Except as set forth in Section 9.2, whether or not the
transactions contemplated herein are consummated, each party to this Agreement
shall pay all expenses incurred by it or its Affiliates, or on its or its
Affiliates' behalf, in connection with the preparation, authorization,
execution and performance of this Agreement, including, but not limited to, all
fees and expenses of agents, representatives, counsel and accountants engaged
by it, except that Purchaser shall be solely responsible for the costs and
expenses incurred in connection with obtaining all permits and licenses not
presently required by the Corporations and required by Purchaser, Newco or
Newco2 to continue Newco's or Newco2's business after the Closing; provided,
however, that each party hereto agrees to pay the costs and expenses, including
reasonable attorneys' fees incurred by the other party in successfully (a)
enforcing any of the terms of this Agreement or (b) proving that the other
party breached any of the terms of this Agreement in any manner or respect; and
provided further that Purchaser shall pay any filing fee required for filings
under the HSR Act.
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ARTICLE VII -- CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
All obligations of Purchaser under this Agreement are subject, at
Purchaser's option, to the fulfillment, prior to or at the Closing, of each of
the conditions set forth in this Article VII. Purchaser may waive any
condition specified in this Article VII by executing a writing so stating at or
prior to the Closing or by electing to proceed with the Closing with such
condition unsatisfied. If Purchaser waives any such unsatisfied condition,
Purchaser shall not be deemed to have waived any other rights or remedies it
may have with respect to such condition.
7.1 Accuracy of Representations and Warranties. Each and every
representation and warranty of Samson and the Corporations under this Agreement
shall be true and accurate as of the date when made and as of the Closing,
except where failure to be so true and accurate would not, either alone or in
the aggregate, have a Material Adverse Effect.
7.2 Performance of Covenants and Agreements. Samson and the
Corporations shall have fully performed in all material respects all of the
covenants and agreements required to be performed by Samson and the
Corporations at or prior to the Closing in accordance with this Agreement.
7.3 Release of Liens. Except for Permitted Liens, on or before the
Closing Date, Seller shall have caused the recordation in the appropriate
governmental offices of releases of any and all Liens which encumber either the
Shares or the Assets.
7.4 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. All waiting periods under the HSR Act
applicable to the transactions contemplated by this Agreement shall have
expired, by passage of time or by valid early termination by the FTC or the
DOJ; no representative of either the FTC or the DOJ shall be taking the
position that any of such waiting periods has not commenced to run or has not
expired for any reason; and no representative of either the FTC or the DOJ
shall have requested a delay of the Closing for a period which has not expired,
which request has not been withdrawn.
7.5 Permits, Consents, etc. There shall be no material
authorization, consent, approval, permit or license of, filing with or
notification to any Governmental Authority, any lender or lessor or any other
Person required to authorize or required in connection with the execution,
delivery and performance of this Agreement on the part of Samson or the
Corporations which has not been accomplished or obtained.
7.6 Litigation Concerning this Agreement. No action, suit,
proceeding, investigation, inquiry or request for information by any third
Person shall have been instituted or Threatened against Seller or Purchaser or
any of their respective Affiliates that questions, or reasonably could be
expected to lead to subsequent questioning of, the validity or legality of this
Agreement or the transactions contemplated hereby which, if successful, would
materially adversely affect the right of Purchaser to consummate the
transactions contemplated by this Agreement or to utilize the Assets.
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7.7 Certificate of Seller. Each of the Corporations and Samson shall
have delivered to Purchaser a certificate of such party signed by the President
or any Vice President of such party certifying that each of the conditions set
forth in Sections 7.1 and 7.2 have been fulfilled.
7.8 Legal Opinion. Purchaser shall have received the opinion of the
General Counsel of Samson as to this Agreement and the transactions
contemplated hereby, dated as of the Closing Date, in form and substance as set
forth on Exhibit 7.8.
7.9 Delivery of Documents. Each of the Corporations and Samson shall
have executed and delivered all other documents required under the terms of
this Agreement to be executed and delivered by such party to Purchaser at or
prior to the Closing.
ARTICLE VIII -- CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
All obligations of Seller under this Agreement are subject, at Seller's
option, to the fulfillment, prior to or at the Closing, of each of the
conditions set forth in this Article VIII. Seller may waive any condition
specified in this Article VIII by executing a writing so stating at or prior to
the Closing or by electing to proceed with the Closing with such condition
unsatisfied. If Seller waives any such unsatisfied condition, Seller shall not
be deemed to have waived any other rights or remedies it may have with respect
to such condition.
8.1 Accuracy of Representations and Warranties. Each and every
representation and warranty of Purchaser under this Agreement shall be true and
accurate as of the date when made and as of the Closing, except where failure
to be so true and accurate would not, either alone or in the aggregate, have a
material adverse effect on the business or the operations of Purchaser.
8.2 Performance of Covenants and Agreements. Purchaser shall have
fully performed in all material respects all of the covenants and agreements
required to be performed by Purchaser at or prior to the Closing in accordance
with this Agreement.
8.3 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. All waiting periods under the HSR Act
applicable to the transactions contemplated by this Agreement shall have
expired, by passage of time or by valid early termination by the FTC or the
DOJ; no representative of either the FTC or the DOJ shall be taking the
position that any of such waiting periods has not commenced to run or has not
expired for any reason; and no representative of either the FTC or the DOJ
shall have requested a delay of the Closing for a period which has not expired,
which request has not been withdrawn.
8.4 Litigation Concerning this Agreement. No action, suit,
proceeding, investigation, inquiry or request for information by any third
Person shall have been instituted or Threatened against Seller or Purchaser or
any of their respective Affiliates, that questions, or reasonably could be
expected to lead to subsequent questioning of, the validity or legality of this
Agreement or the transactions contemplated hereby which, if successful, would
materially adversely affect the right
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of Seller to consummate the transactions contemplated by this Agreement or to
continue the business of the Corporations substantially as currently conducted.
8.5 Certificate of Purchaser. Purchaser shall have delivered to
Seller a certificate of Purchaser signed by the President or any Vice President
of Purchaser certifying that each of the conditions set forth in Sections 8.1
and 8.2 have been fulfilled.
8.6 Legal Opinion. Samson shall have received the opinion of in-
house counsel to ▇▇▇▇▇▇ as to this Agreement and the transactions contemplated
hereby, dated as of the Closing Date, in form and substance as set forth on
Exhibit 8.6.
8.7 Delivery of Documents. Purchaser shall have executed and
delivered all other documents required under the terms of this Agreement to be
executed and delivered by the Purchaser to Seller at or prior to Closing.
ARTICLE IX -- TERMINATION
9.1 Termination. This Agreement and the transactions contemplated
hereby may be terminated at any time prior to the Closing:
(a) by mutual written agreement of Samson and Purchaser; or
(b) by Purchaser, if (i) the conditions set forth in Article
VII have not all been fulfilled (or waived by Purchaser)
on or before the sixtieth day following the expiration or
termination of any waiting period under the HSR Act, and
(ii) Purchaser has complied with all of the obligations
applicable to it as set forth in this Agreement
(excluding, however, any obligations not complied with
solely as a result of non-performance by Samson or either
of the Corporations), then, unless the parties shall agree
otherwise in an amendment to this Agreement executed in
accordance with Section 12.7, Purchaser may terminate this
Agreement by giving notice to Samson in the manner
provided in Section 12.17;
(c) by Samson, if (i) the conditions set forth in Article VIII
have not all been fulfilled (or waived by Samson) on or
before the sixtieth day following the expiration or
termination of any waiting period under the HSR Act, and
(ii) Samson and each of the Corporations has complied with
all of the obligations applicable to it as set forth in
this Agreement (excluding, however, any obligations not
complied with solely as a result of non-performance by
Purchaser), then, unless the parties shall agree otherwise
in an amendment to this Agreement executed in accordance
with Section 12.7, Samson may terminate this Agreement by
giving notice to Purchaser in the manner provided in
Section 12.17;
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(d) by Purchaser, if Samson or either of the Corporations
shall be in material breach of this Agreement and such
breaching party shall fail to remedy such breach within
seven Business Days after written notice specifying such
breach in reasonable detail and demanding that the same be
remedied;
(e) by Samson, if Purchaser shall be in a material breach of
this Agreement and shall fail to remedy such breach within
seven Business Days after written notice specifying such
breach in reasonable detail and demanding that the same be
remedied; or
(f) by either Purchaser or Samson if any waiting period under
the HSR Act has not expired or terminated by September 1,
1997.
9.2 Effect of Termination. Each party's right of termination under
Section 9.1 is in addition to any other rights it may have under this Agreement
or otherwise, and the exercise of a right of termination will not be an
election of remedies. If this Agreement is terminated pursuant to Section 9.1,
all further obligations of the parties under this Agreement will terminate,
except that the obligations in Sections 6.10, 9.2 and 12.10 will survive;
provided, however, that if this Agreement is terminated pursuant to Section
9.1(b), (c), (d) or (e), then, at the sole election of the terminating party,
(a) the non-terminating parties, jointly and severally, shall pay to the
terminating party all third-party costs and expenses incurred by the
terminating party as a result of its entering into this Agreement and working
to consummate the transactions contemplated hereby, plus $5,000,000 in cash or
(b) the terminating party may exercise any other right or remedy it may have at
law, in equity or pursuant to this Agreement, including but not limited to
rights to ▇▇▇ for damages or require specific performance, against any or all
of the non-terminating parties. If the terminating party elects the remedy set
forth in subsection (a) of this Section, such remedy shall be exclusive and
shall constitute liquidated damages (and not a penalty) for all claims that the
terminating party may have with respect to any breach by any non-terminating
parties.
ARTICLE X -- INDEMNIFICATION
10.1 General Indemnification by Purchaser.
(a) Subject to the terms, conditions and limitations of this
Article, Purchaser shall indemnify, defend and hold
harmless Seller and its Affiliates from and against any
Damages, directly or indirectly, caused by, arising out
of, relating to or resulting from (i) the failure of
Purchaser to perform or fulfill any agreement or covenant
to be performed or fulfilled by it under this Agreement;
(ii) any inaccuracy in any representation or breach of any
warranty of Purchaser set forth in Article III; and (iii)
all Post-Closing Claims. Such indemnity shall include any
Taxes due as a result of payments under this indemnity.
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(b) Purchaser's obligation to indemnify Seller and its
Affiliates under Sections 10.1(a)(i) and (ii) shall expire
and be of no further force and effect on the third
anniversary of the Closing Date, except with respect to
claims Seller has asserted against Purchaser in writing,
setting forth with reasonable specificity the nature of
such claim, on or before such date.
(c) Purchaser's obligation to indemnify Seller and its
Affiliates under Section 10.1(a)(iii) shall not expire.
10.2 General Indemnification by Samson and the Seller.
(a) Subject to the terms, conditions and limitations of this
Article, Samson and Seller shall, jointly and severally,
indemnify, defend and hold harmless Purchaser and its
Affiliates, Newco and Newco2 from and against any Damages,
directly or indirectly, caused by, arising out of,
relating to or resulting from (i) the failure of Samson or
the Corporations to perform or fulfill any agreement or
covenant to be performed and fulfilled by it under this
Agreement; (ii) any inaccuracy in any representation or
breach of any warranty of Samson or the Corporations set
forth in Article IV; (iii) all Pre-Closing Claims; (iv)
any and all claims asserted by the Internal Revenue
Service or any local, state, federal, tribal or foreign
taxing authority against Purchaser, Newco or Newco2 for
Taxes for which Samson or Seller is liable pursuant to
Article XI; and (v) any inaccuracy in Section 4.3 or 4.10.
Such indemnity shall include any Taxes due as a result of
payments under this indemnity.
(b) Samson's and Seller's obligation to indemnify Purchaser
under Sections 10.2(a)(i) and (ii) shall expire and be of
no further force and effect on the third anniversary of
the Closing Date, except with respect to claims Purchaser
has asserted against Seller in writing, setting forth with
reasonable specificity the nature of such claim, on or
before such date.
(c) Samson's and Seller's obligation to indemnify Purchaser
under Sections 10.2(a)(iii), (iv) and (v) shall not
expire.
10.3 Defense of Third Party Claims.
(a) If any third party shall notify any party with respect to
an Indemnified Claim, such Indemnified Party shall notify
the Indemnifying Party in writing promptly after learning
of an Indemnified Claim but the failure to notify the
Indemnifying Party will not relieve the Indemnifying Party
of any liability that it may have to any Indemnified
Party, except to the extent (and then solely to the
extent) that the Indemnifying Party demonstrates that the
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defense of such action is prejudiced by the Indemnifying
Party's failure to give such notice.
(b) The Indemnifying Party will, unless the Indemnified Claim
involves Taxes, be entitled to participate in the defense
of such claim and, to the extent that it wishes (unless
(i) the Indemnifying Party is also a party to such claim
and the Indemnified Party determines in good faith that
joint representation would be inappropriate or (ii) the
Indemnifying Party fails to provide reasonable assurance
to the Indemnified Party of its financial capacity to
defend such claim and provide indemnification with respect
to such claim), to assume the defense of such claim with
counsel satisfactory to the Indemnified Party and, after
notice from the Indemnifying Party to the Indemnified
Party of its election to assume the defense of such claim,
the Indemnifying Party will not, as long as it diligently
conducts such defense, be liable to the Indemnified Party
under this Article X for any fees of other counsel or any
other expenses with respect to the defense of such claim,
in each case subsequently incurred by the Indemnified
Party in connection with the defense of such claim, other
than reasonable costs of investigation. If the
Indemnifying Party assumes the defense of a claim, (i) it
will be conclusively established for purposes of this
Agreement that the claims made in that claim are within
the scope of and subject to indemnification; (ii) no
compromise or settlement of such claims may be effected
by the Indemnifying Party without the Indemnified Party's
consent unless (A) there is no finding or admission of any
violation of Legal Requirements or any violation of the
rights of any Person and no effect on any other claims
that may be made against the Indemnified Party and (B) the
sole relief provided is monetary damages that are paid in
full by the Indemnifying Party; and (iii) the Indemnified
Party will have no liability with respect to any
compromise or settlement of such claims effected without
its consent. If notice is given to an Indemnifying Party
of the commencement of any claim and the Indemnifying
Party does not, within ten days after the Indemnified
Party's notice is given, give notice to the Indemnified
Party of its election to assume the defense of such claim,
the Indemnifying Party will be bound by any determination
made in such claim or any compromise or settlement
effected by the Indemnified Party.
(c) Notwithstanding the foregoing, if an Indemnified Party
determines in good faith that there is a reasonable
probability that a claim may adversely affect it or its
affiliates other than as a result of monetary damages for
which it would be entitled to indemnification under this
Agreement, the Indemnified Party may, by notice to the
Indemnifying Party, assume the exclusive right to defend,
compromise or settle such claim, but the Indemnifying
Party will not be bound by any determination of a claim so
defended or any
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compromise or settlement effected without its consent
(which may not be unreasonably withheld).
(d) The Indemnifying Party hereby consents to the non-
exclusive jurisdiction of any court in which a claim is
brought against any Indemnified Person for purposes of any
claim that an Indemnified Person may have under this
Agreement with respect to such claim or the matters
alleged therein, and agrees that process may be served on
the Indemnifying Party with respect to such a claim
anywhere in the world.
10.4 Matters Involving the Parties. In the event an Indemnified Party
should have a Indemnified Claim against an Indemnifying Party hereunder that
does not involve a claim by a third party, the Indemnified Party shall transmit
to the Indemnifying Party a written notice describing in reasonable detail the
nature of the claim, an estimate of the amount of damages attributable to such
claim and the basis of the Indemnified Party's request for indemnification
under this Agreement. If the Indemnifying Party does not notify the
Indemnified Party within 30 days of its receipt of such notice that the
Indemnifying Party disputes such claim, the claim shall be deemed a liability
of the Indemnifying Party hereunder and shall be paid within 30 days of the
expiration of the initial 30-day period.
10.5 Right to Indemnification Not Affected by Knowledge. The right to
indemnification, payment of Damages or other remedy based on such
representations, warranties, covenants and obligations will not be affected by
any investigation conducted, or any Knowledge acquired (or capable of being
acquired) by the party claiming indemnification at any time (whether before or
after the execution and delivery of this Agreement or the Closing Date), with
respect to the accuracy or inaccuracy of or compliance with any such
representation, warranty, covenant or obligation. The waiver of any condition
based on the accuracy of any representation or warranty or on the performance
of or compliance with any covenant or obligation, will not affect the right to
indemnification, payment of Damages or other remedy based on such
representations, warranties, covenants and obligations. The remedies provided
in this Article will not be exclusive of or limit any other remedies that may
be available to the Indemnified Party.
10.6 Consequential and Incidental Damages. Except to the extent
asserted by a third party against a party hereto, no party hereto shall seek
consequential or incidental damages from any other party pursuant to this
Article, nor shall it accept payment of any award or judgment rendered in favor
of one party against another party, to the extent that such award or judgment
includes consequential or incidental damages.
10.7 Determination of Damages. Buyer, Seller and Samson shall make
adjustments for tax benefits and insurance coverage in determining Damages for
purposes of this Agreement. All indemnification payments shall be deemed
adjustments to the Purchase Price.
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ARTICLE XI -- TAX MATTERS
11.1 Certain Non-Income Tax Matters.
(a) Samson and the Seller shall be liable for and pay all
Taxes which are sales, use, transfer, stamp, conveyance,
value added or other similar taxes, duties, excises or
governmental charges imposed by any taxing jurisdiction,
domestic or foreign, and all recording or filing fees,
notarial fees and other similar costs of Closing with
respect to the transfer of the Shares or the transfer of
Assets to Newco or Newco2 pursuant to this Agreement.
Samson and the Seller, with respect to such taxes, shall
timely prepare and file or shall cause to be timely
prepared and filed with the appropriate Governmental
Authority all Tax Returns, that are required and due to be
filed after the Closing Date and to pay or cause to be
paid all taxes due with respect to such Tax Returns.
(b) All Taxes which are personal property taxes ( Property
Taxes ) which are imposed for periods or portions of
periods on or prior to the Closing Date with respect to
any of the Assets or with respect to Newco or Newco2 shall
be paid by Samson or the Seller and Samson or the Seller
shall be liable for such Property Taxes, and all Property
Taxes imposed for periods or portions of periods after the
Closing Date shall be paid by the Purchaser. Such
Property Taxes shall be prorated between the Seller and
the Purchaser as of the Closing Date. Prior to the
Closing Date, the parties shall mutually agree on an
estimate of the amount of Property Taxes relating to Owned
Real Property to be paid by Seller, and such estimated
amount shall be a Purchase Price Offset. If Seller's
portion of Property Taxes is finally determined to vary
from such estimated amount, the parties shall pay to each
other any applicable difference between the estimated
amount and the finally determined amount.
11.2 Taxes Operations on or Before Closing Date. Seller shall be
liable for any and all Taxes applicable to the operations of Newco and Newco2
with respect to all periods occurring on or before the Closing Date as follows:
(a) Seller shall be liable for any Taxes owing with respect to
any taxable period of Newco or Newco2 which ends on or
before the Closing Date. With respect to any taxable
period of Newco or Newco2 which ends on or before the
Closing Date, Seller shall timely prepare and file, or
shall cause to be timely prepared and filed, with the
appropriate Governmental Authority, any and all Tax
Returns that are required and due to be filed with respect
to such taxable period (whether or not the filing date for
any taxable period occurs on or after the Closing Date),
and to timely pay or cause to be timely paid,
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any and all Taxes due with respect to such Tax Returns.
Purchaser shall (i) provide, or cause to be provided, to
Seller any data, reports, copies of prior Tax Returns or
other information in the possession of Purchaser or the
Corporations, (ii) make available to Seller for
consultation such personnel of Purchaser, Newco or Newco2
as may have relevant knowledge with respect to such
information and (iii) cooperate and cause Newco and Newco2
to cooperate with Seller, in order to enable Seller to
fulfill its obligations under the preceding sentence;
provided, however, that Seller shall reimburse Purchaser,
Newco or Newco2 for the costs and expenses of such
services. Any Taxes reflected in such Tax Returns, which
were not actually paid by ▇▇▇▇▇, ▇▇▇▇▇▇ or Seller prior to
the Closing Date and related to any time period prior to
the Closing Date shall be timely paid by Seller directly
to the appropriate Governmental Authority.
(b) With respect to any taxable period of Newco or Newco2
which ends after the Closing Date and which taxable period
encompasses time periods occurring both before and after
the Closing Date, Purchaser shall timely prepare and file,
or shall cause to be timely prepared and filed, with the
appropriate Governmental Authority, any and all Tax
Returns that are required and due to be filed with respect
to such taxable period, and shall pay, or cause to be
paid, all Taxes due with respect to such returns
attributed to periods after the Closing. Seller shall be
liable for and timely pay, or cause to be paid, all Taxes
due with respect to such Tax Returns attributable to
periods prior to or on the Closing Date.
(c) Purchaser will pay, or will cause to be paid, to Seller
any and all refunds of Taxes received by Purchaser or any
Affiliate of Purchaser after the Closing Date and
attributable to Taxes previously paid to the appropriate
Governmental Authority by Seller, Newco or Newco2 (or any
predecessor or Affiliate of Seller, Newco or Newco2) with
respect to all taxable periods ending on or before the
Closing Date. Such payment will be made by check to
Seller within ten days after Purchaser's receipt of any
such Tax refund from the appropriate Governmental
Authority.
(d) In the event of a proposed adjustment by any appropriate
Governmental Authority to increase any Taxes incurred by
Newco or Newco2 for any taxable period ending on or before
the Closing Date and for which Samson, Seller, Newco or
Newco2 previously filed the related Tax Return, Purchaser
will promptly notify Samson, of such proposed adjustment,
and Samson, if it so elects, and at its own expense, may
contest such adjustment with the appropriate Governmental
Authority on behalf of Newco or Newco2; provided, however,
that a delay or failure to so notify the Seller shall not
relieve Seller of any liability pursuant to this Section
11.2(d) unless such
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delay or failure causes Seller to lose the right to assert
a reasonable defense to such claim or adjustment. Any
additional Taxes which become due and payable as a result
of such adjustment will be indemnifiable pursuant to the
provisions of Article X hereof.
11.3 Taxes Operations Subsequent to Closing Date. Purchaser shall be
liable for any and all Taxes applicable to the operations of Newco and Newco2
with respect to all periods occurring subsequent to the Closing Date as
follows:
With respect to any taxable period of Newco or Newco2 which commences
subsequent to the Closing Date, Purchaser shall timely prepare and file, or
shall cause to be timely prepared and filed, with the appropriate Governmental
Authority any and all Tax Returns that are required and due to be filed with
respect to such taxable periods, and to pay or cause to be paid, any and all
Taxes with respect to such Tax Returns. Any Taxes due with respect to such Tax
Returns shall be paid by Purchaser directly to the appropriate Governmental
Authority.
11.4 Income Taxes Resulting from this Transaction.
(a) Both Purchaser and Seller are eligible to and may make a
timely and effective election under Section 338(g) of the
Code, with respect to the purchase and sale of the Shares
hereunder. Further, both Seller and Purchaser are
eligible to and may make or may cause to be made a timely
and effective election under Section 338(h)(10) of the
Code (the Section 338(h)(10) Election ).
(b) In order to assure that Purchaser will be able to make a
Section 338(h)(10) Election, Purchaser will deliver to
Samson, at least five days prior to the Closing, a
completed Internal Revenue Service Form 8023-A and any
required schedules thereto ( Form 8023-A ) and any
analogous state tax form, providing for the Section
338(h)(10) Election and any analogous state election.
Samson shall review and comment on the Form 8023-A prior
to the Closing. At the Closing, Samson and Purchaser
shall execute two Forms 8023-A and any analogous state tax
forms. Upon written instructions from Purchaser, Samson
and Purchaser will each timely file the Form 8023-A and
any required supplements thereto and any analogous state
tax forms and will provide assurance to each other that
they have done so.
(c) Any Tax liabilities incurred as a result of the Section
338(h)(10) Election (including without limitation, any
income Tax liabilities resulting from a state failure to
recognize the Section 338(h)(10) Election) or as a result
of the failure of Newco or Newco2 to qualify for a Section
338(h)(10) Election (other than as a result of any acts or
failures to act by Purchaser) will be the responsibility
of Seller, and the provisions of Sections 11.2(a) and
11.2(b) of this Agreement shall apply to such Tax
liabilities.
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11.5 Tax Sharing Agreements. All tax sharing agreements or similar
agreements with respect to or involving Newco or Newco2 shall be terminated as
of the Closing Date and, after the Closing Date, Newco and Newco2 shall not be
bound thereby or have any liability thereunder.
ARTICLE XII -- GENERAL
12.1 Entire Agreement. This Agreement and the other agreements,
documents and instruments being delivered at the Closing set forth the entire
agreement and understanding of the parties with respect to the transactions
contemplated hereby and supersede all prior agreements, arrangements and
understandings relating to the subject matter hereof, whether written or oral.
12.2 No Other Representations, Etc. No representation, promise,
inducement or statement of intention relating to the transactions contemplated
by this Agreement has been made by or on behalf of any party hereto which is
not set forth in this Agreement.
12.3 Headings. The Article and Section headings contained in this
Agreement are for convenient reference only and shall not in any way affect the
meaning or interpretation of this Agreement.
12.4 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUDING THE
CONFLICT OF LAWS PROVISIONS THEREOF THAT WOULD OTHERWISE REQUIRE THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
12.5 Counterparts. This Agreement may be executed in multiple
counterparts (including counterparts executed by one party), each of which
shall be an original, but all of which shall constitute a single agreement.
12.6 Binding Agreements; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement shall not be assignable by
any party without the prior written consent of the other parties; provided,
however, that Purchaser may assign any or all of its rights and interests
hereunder to one or more of its Affiliates and may designate one or more of its
Affiliates to perform any or all of its obligations hereunder (in which case
Purchaser nonetheless shall remain responsible for the performance of all of
its obligations hereunder).
12.7 Amendment. This Agreement may be amended only in a writing
executed by the parties hereto which specifically states that it amends this
Agreement.
12.8 U.S. Dollars. All dollar amounts set forth or referenced herein
are deemed to be expressed in U.S. currency.
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12.9 Publicity. The parties hereto agree that, following the
execution of this Agreement, any party may issue or cause the publication of a
press release or other public announcement with respect to the transactions
contemplated by this Agreement if both Purchaser and Samson shall have mutually
agreed to the content of such press release or other public announcement,
except that Purchaser or Samson may in any event make such filings and
disclosures as may be required by applicable law, rule, regulation or
requirement of any applicable stock exchange.
12.10 Confidentiality. Between the date of this Agreement and the
Closing Date, the parties hereto will maintain in confidence, and will cause
the directors, officers, employees, agents and advisors of Purchaser, Samson
and the Corporations to maintain in confidence, and not use to the detriment of
a party to this Agreement any information obtained from a party to this
Agreement in connection with this Agreement or the transactions contemplated
herein, unless (a) such information is already known to such party or to others
not bound by a duty of confidentiality or such information becomes publicly
available through no fault of such party, (b) use of such information is
necessary or appropriate in making any filing or obtaining any consent or
approval required for the consummation of the transactions contemplated herein
or (c) the furnishing or use of such information is required by legal
proceedings or applicable law or requirement of the American Stock Exchange.
If the transactions contemplated by this Agreement are not consummated, each
party will return or destroy all information provided to it by the other party.
The provisions of this Section shall survive notwithstanding the termination of
this Agreement.
12.11 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
12.12 Waiver. All of the original rights and powers of any party
hereunder shall remain in force notwithstanding any neglect, forbearance or
delay in enforcement thereof, and no party shall be deemed to have waived any
of its rights, any provision of this Agreement or any notice given hereunder
unless such waiver is in a writing signed by an officer of the waiving party.
A waiver by any of Samson or the Corporations shall be deemed to be a waiver by
all of such parties. No such waiver by a party of any breach by another party
of any provision of this Agreement shall be deemed a waiver of any continuing,
future or recurring breach of such provision or any other provision of this
Agreement. No action taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action or compliance with any
representations, warranties, covenants or agreements contained in this
Agreement.
12.13 Survival of Representations, Warranties, Covenants and
Agreements. Except as otherwise provided herein, all representations,
warranties, covenants and agreements of the parties
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contained in this Agreement or in any Schedule shall survive the execution and
delivery of this Agreement and consummation of the transactions provided for in
this Agreement and any related agreements, notwithstanding any investigation
made by, or on behalf of, the parties. The representations and warranties
contained in Articles III and IV of this Agreement shall terminate three years
following the Closing Date, except that Sections 4.3, 4.9 and 4.10 shall not so
terminate.
12.14 Parties in Interest. This Agreement shall not confer any rights
or remedies upon any Person other than the parties hereto and their respective
successors and permitted assigns. Samson acknowledges that the Corporations
are wholly controlled by Samson. Accordingly, Samson agrees that any act or
failure to act resulting in a breach of any of the terms of this Agreement by
the Corporations prior to the consummation of the Closing or by the Seller
shall be deemed to be the act or failure to act of Samson, and Samson shall
assume any and all liability arising from such act or failure to act.
12.15 Construction. THE PARTIES HAVE PARTICIPATED JOINTLY IN THE
NEGOTIATION AND DRAFTING OF THIS AGREEMENT. IF AN AMBIGUITY OR QUESTION OF
INTENT OR INTERPRETATION ARISES, THIS AGREEMENT SHALL BE CONSTRUED AS IF
DRAFTED JOINTLY BY THE PARTIES, AND NO PRESUMPTION OR BURDEN OF PROOF SHALL
ARISE FAVORING OR DISFAVORING ANY PARTY BY VIRTUE OF THE AUTHORSHIP OF ANY OF
THE PROVISIONS OF THIS AGREEMENT. Any reference to any federal, state, local
or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word including shall mean including without limitation. Nothing in the
Schedules hereto shall be deemed adequate to disclose an exception to a
representation or warranty made herein unless the Schedule identifies the
exception with reasonable particularity and describes the relevant facts in
reasonable detail. Without limiting the generality of the foregoing, the mere
listing (or inclusion of a copy) of a document or other item shall not be
deemed adequate to disclose an exception to a representation or warranty made
herein (unless the representation or warranty concerns the existence of the
document or other item itself). The Parties intend that each representation,
warranty and covenant contained herein shall have independent significance.
12.16 Specific Performance. Each of the parties acknowledges and
agrees that the other parties would be damaged irreparably if any of the
provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each party agrees that
any of the other parties shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof in any action
instituted in any court of the United States or any state thereof having
jurisdiction over the parties and the matter, in addition to any other remedy
to which such other party may be entitled at law or in equity.
12.17 Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be deemed to have been duly
given if in writing and delivered
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(a) personally, (b) by facsimile transmission, (c) by courier service or (d) by
registered or certified mail, return receipt requested, at the following
addresses:
IF TO NEWCO OR NEWCO2 (PRIOR TO THE CLOSING) OR SAMSON OR
SELLER:
Samson Investment Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇ ) ▇▇▇-▇▇▇▇
With copy to:
Samson Investment Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ (SUBSEQUENT TO THE CLOSING) OR
PURCHASER:
▇▇▇▇▇▇ Drilling USA, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇▇ Drilling USA, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
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and
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation number: (▇▇▇) ▇▇▇-▇▇▇▇
Notice to a copy to address shall be provided as a courtesy, but shall not be
deemed to be actual notice received by a party for any purpose. Any party may
change the address to which such communications are to be directed to it by
giving written notice to the other party in the manner provided in this
Section.
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IN WITNESS WHEREOF, this Stock Purchase Agreement has been duly executed
and delivered by the duly authorized officers of the parties hereto as of the
date first above written.
"SAMSON" "PURCHASER"
Samson Investment Company ▇▇▇▇▇▇ Drilling USA, Inc.
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ----------------------------
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Executive Vice President Title: Executive Vice President
----------------------------
"SELLER"
▇▇▇▇▇ Drilling & Services Company
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attorney-in-fact
"NEWCO"
Samson Rig Company
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
President
"NEWCO2"
Rig Properties, Inc.
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
President
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