PURCHASE AND SALE AGREEMENT
Exhibit
10.12
Samson
Oil and Gas USA,
0000
Xxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, (“Seller”) and Xxxxxx-Xxxxxxx
Anadarko Limited Partnership,
0000 X.
Xxxx Xxx., Xxxxx, Xxxxxxxx 00000, (“Buyer”) enter into this Purchase and Sale
Agreement (this “Agreement”) in consideration of Seller’s agreement to sell and
Buyer’s agreement to buy certain properties described in this Agreement pursuant
to the terms and conditions hereinafter set forth:
1. Properties.
Seller
shall convey to Buyer all of Seller’s right, title and interest in, to and under
the lands and leases described on Exhibit
“A”
attached
hereto (the “Leases”) and in and to the xxxxx, revenue interest and cost
interest described on Exhibit
“B”
attached
hereto (the “Xxxxx”). The Leases and the Xxxxx, including all of Seller’s
undivided interests in, to, under and derived from the equipment, unit rights,
permits and privileges related to the ownership thereof, are herein collectively
referred to as the Properties.
2. Consideration.
Buyer
agrees to deliver to Seller at the Closing the sum of Four Million Seven
Hundred
Thirty-Six Thousand Dollars ($4,736,000.00) (the “Purchase Price”) which shall
be adjusted pursuant to the terms of this Agreement. Seller and Buyer shall
execute and deliver a settlement statement 3 days prior to the Closing that
shall set forth the Purchase Price, each adjustment pursuant to Article 10,
as
applied at the Closing Date, each of which shall be calculated using the
best
information available as of a date or dates immediately preceding the Closing
Date, and the resulting adjusted Purchase Price (the “Closing
Amount”).
3. The
Closing.
Closing
shall occur on or before May 8th, 2008 (the “Closing Date”) at a time and place
to be agreed to by the parties. The date of the Closing shall not be extended
to
a later date except in writing by mutual consent of the parties. The Closing
means the consummation of the sale of transfer of Seller’s ownership in the
Properties and proper payment of the full Purchase Price (the
“Closing”).
a. Buyer
will make payment of the Purchase Price pursuant to Section 2 via wire transfer
payable as follows:
(i) One
Million Seven Hundred Ninety Six Thousand Dollars ($1,796,000) to:
Xxxxx
Fargo
ABA#
000000000
Samson
Oil and Gas
Account
#4121371694
SWIFT
Code: XXXXXX0X
Telephone
No.: 000-000-0000
(ii) Two
Million Nine Hundred and Forty Thousand Dollars ($2,940,000) to:
US
Bank
ABA#
000000000
Xxxxx,
Xxxxxx & Xxxxxx, LLP Agency Account
Account
#
120404713212
Client
Reference: 191937-0011
Telephone
No.: (000) 000-0000
b. A
form of
assignment is attached hereto as Exhibit
“C”
(the
“Assignment”). Upon receipt of Purchase Price via wire transfer, the Assignment
shall be executed and delivered to Buyer.
c. Seller
shall deliver to Buyer at Closing a Non-Foreign Affidavit in the form of
Exhibit
“I” attached hereto.
4. Effective
Time.
The
Assignment shall be effective as of January 1, 2008, at 7:00 a.m., local
time
where the Properties are located (the “Effective Time”).
5. Files,
Records and Due Diligence.
Prior
to the Closing, Seller shall allow Buyer to examine, at Seller’s offices (during
normal business hours), all files relating to the Properties. The Buyer shall
have a reasonable amount of time to examine title, environmental condition,
mechanical condition, applicable contracts and agreements, gas balancing
status
and payout status with all being acceptable to Buyer before Closing. Buyer
shall
notify Seller of any defects prior to Closing. Buyer and Seller shall in
good
faith negotiate the adjustments to the Purchase Price, using the values set
forth on the Exhibit “B”, for any defects not cured by Seller or accepted by
Buyer prior to Closing. However, there shall be no adjustment to the Purchase
Price unless the aggregate value of the defects not cured or waived by Buyer
prior to Closing exceeds $50,000. In addition, in the event the aggregate
value
of such defects exceeds fifteen percent (15%) of the Purchase Price, Seller
or
Buyer shall have the right to terminate this Agreement.
6. Post-Closing
Statement.
No
later than ninety (90) days after the Closing, or as soon thereafter as
practicable, Seller shall deliver to Buyer a final settlement statement that
will reconcile the actual expenses and revenues attributable to the period
of
time between the Effective Time and the Closing. The parties shall use their
best efforts to agree to such settlement statement within thirty (30) days
after
delivery by Buyer. Any payment due pursuant to this Section 6 shall be made
within fifteen (15) days following agreement on the settlement
statement.
7. Seller
Warranties.
Seller
represents and warrants that there are no: (i) material contracts; (ii) gas
imbalances; (iii) environmental notices received by the Seller; (iv)
preferential rights or consents; or pending litigation pertaining to Seller’s
interests in the Properties which are not disclosed on Exhibits
“D”
through
“H”
respectively. Said exhibits are summarized as follows:
Exhibit
“D” - Material Contracts (relating
to properties not operated by Buyer or that relate specifically only to
Seller)
Exhibit
“E” - Gas Imbalances
2
Exhibit
“F” - Environmental Notices
Exhibit
“G” - Preferential Rights or Consents
Exhibit
“H” - Pending Litigation
8. Representations
of Seller.
Seller
represents to Buyer that:
a. It
is,
and until the Closing, shall continue to be a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado
and is qualified and authorized to do business in the State of
Oklahoma.
b.
It
has
all requisite power and authority to carry on its business as presently
conducted, to enter into this Agreement, and to perform its obligations under
this Agreement. The consummation of the transactions contemplated by this
Agreement will not violate, nor be in conflict with, (i) any provision of
its
charter or bylaws or (ii) any agreement or instrument to which it is a party
or
is bound.
c. The
execution, delivery and performance of this Agreement and the transactions
contemplated hereby have been duly and validly authorized by all requisite
action on the part of Seller.
d. This
Agreement has been duly executed and delivered on behalf of Seller, and at
the
Closing all documents and instruments required hereunder to be executed and
delivered by it shall have been duly executed and delivered.
e. Seller
is
(and at the Closing will be) the record owner of, and upon consummation of
the
transactions contemplated hereby Buyer will acquire Seller’s title to, the
Properties with working interest no greater than and net revenue no less
than
those expressed on Exhibit “B” hereto, free and clear of all Liens by, through
and under Seller, but not otherwise.
f. There
are
no Proceedings pending or, to Seller's Knowledge, threatened, in which Seller
is
or may be a party affecting the execution and delivery of this Agreement
by
Seller or the consummation of the transactions contemplated hereby by
Seller.
9. Representations
of Buyer.
Buyer
represents to Seller that:
a. It
is,
and until the Closing, shall continue to be a limited partnership duly
organized, validly existing and in good standing under the laws of the State
of
Oklahoma and is qualified and authorized to do business in the State of
Oklahoma.
3
b. It
has
all requisite power and authority to carry on their business as presently
conducted, to enter into this Agreement, and to perform their obligations
under
this Agreement.
10. Operations
Prior to the Closing, Production and Expenses.
Except
as otherwise provided herein, the parties will apportion all benefits and
obligations of every kind and nature relating to the Properties on an accrual
basis as of the Effective Time using generally accepted accounting principles.
Additionally, the Seller shall receive an upward adjustment to the Purchase
Price for the value of all merchantable allowable oil or other liquids in
storage owned by Seller above the pipeline connection at the Effective Time,
and
not previously sold by Seller, that is credited to the Properties, such value
to
be the contract price, or if no contract is in effect, the actual sales price,
less taxes or gravity adjustments deducted by the purchaser of such oil or
other
liquids. Not limiting the foregoing, Seller shall be responsible for payment
of
all expenses incurred and for its share of disbursements (or directions of
disbursements) of revenue received, with respect to the Properties prior
to the
Effective Time. Buyer shall promptly turn over to Seller all proceeds of
production and all reimbursements of expenses previously paid by Seller which
are received by Buyer after the Closing Date and which are attributable to
the
Properties for any period of time prior to the Effective Time and which have
not
been accounted for on the Closing settlement statement. Buyer
shall be responsible for payment of all expenses incurred and for disbursements
of revenue received, with respect to the Properties from and after the Effective
Time. Expenses under this Section shall include, except as provided to the
contrary in this Agreement, any expenses incurred for the Properties transferred
by this Agreement. Seller shall promptly turn over to Buyer all proceeds
of
production and all reimbursements of expenses previously paid by Buyer which
are
received by Seller after the Closing Date and which are attributable to the
Properties for any period of time after the Effective Time and which have
not
been accounted for on the Closing settlement statement. This obligation shall
survive and continue beyond the Closing.
11. Taxes.
a. All
property and ad valorem taxes assessed for the production year 2007 shall
be the
responsibility of the Seller. Buyer shall be responsible for said taxes for
periods after the Effective Time. All property and ad valorem taxes assessed
for
any production year prior to 2007 shall be the responsibility of
Seller.
b. Sales
taxes, documentary stamp taxes, transfer taxes, and other similar taxes
resulting from the sale of the Properties, shall be paid by Buyer. Buyer
shall
remit all taxes, which result from the sale, including documentary stamp
taxes
and transfer taxes, directly to the appropriate taxing agency for such
taxes.
12. Operations
by Buyer.
From
and after the Effective Time, Buyer shall assume and agree to perform
obligations and implied covenants of Seller relating to the Properties, except
those arising out of any actions, suits, claims, or demands incurred or arising
from acts or omissions of Seller as owner of the Properties prior to the
Effective Time and those accruing or arising from a breach by Seller of any
representation, warranty, covenant, or agreement contained herein.
4
13. Indemnities.
a. Buyer.
Except
as otherwise provided herein, upon the Closing Buyer does hereby agree to
defend, save harmless, and indemnify Seller, its officers, directors, and
stockholders, from all loss, cost, expense (including attorney’s fees and
expenses), penalties and liabilities (i) arising out of any actions, suits,
claims, or demands incurred as a result of or arising from acts or omissions
of
Buyer as owner of the Properties after the Effective Time or arising in any
other manner from the ownership and operation of the Properties after the
Effective Time, or (ii) resulting from or related to any representation or
warranty of Buyer contained herein being untrue or any warranty, agreement,
or
covenant of Buyer contained herein being breached. Such indemnity and hold
harmless by Buyer shall not extend to liabilities to the extent they arise
from
Seller’s own gross negligence or willful misconduct. In no event shall Buyer be
obligated to indemnify Seller for any consequential, exemplary, special or
punitive damages, except to the extent that such damages are obtained by
a third
party (not Seller or its officers, directors, employees or agents) and Buyer
is
obligated under this Agreement to indemnify the Seller from and against such
third party claim, the damages or costs incurred in such claim, or
both.
b. Seller.
Seller
shall be responsible for any obligation, claim, demand, or cause of action
related to the Properties, which accrues or arises prior to the Effective
Time,
except those attributable to the negligent acts or omissions of Buyer prior
to
the Effective Time. Seller shall defend, save harmless, and indemnify Buyer,
its
officers, directors, and shareholders from all loss, cost, expense (including
attorney’s fees and expenses), penalties and liabilities (i) arising out of any
actions, suits, claims, or demands incurred as a result of or arising from
acts
or omissions of Seller prior to the Effective Time, (ii) resulting from or
relating to any representation or warranty of Seller contained herein being
untrue or any warranty, agreement, or covenant of Seller contained herein
being
breached, and (iii) attributable or related to or arising out of any litigation,
claims, or demands which may be instituted by Seller’s security holders,
creditors, or employees arising out of or related to the transactions
contemplated herein. Such indemnity and hold harmless by Seller shall not
extend
to liabilities to the extent they arise from Buyer’s own gross negligence or
willful misconduct. In no event shall Seller be obligated to indemnify Buyer
for
any consequential, exemplary, special or punitive damages, except to the
extent
that such damages are obtained by a third party (not Buyer or its officers,
directors, employees or agents) and Seller is obligated under this Agreement
to
indemnify the Buyer from and against such third party claim, the damages
or
costs incurred in such claim, or both.
14. Mutuality.
Buyer
and Seller hereby acknowledge and declare that this Agreement was prepared
by
the effort both parties. Accordingly, in the event of any ambiguity in this
Agreement, there shall be no presumption that this Agreement was prepared
solely
by either party.
5
15. Headings.
The
headings of the articles and sections of this Agreement are for convenience
only, and shall not control or affect the meaning or construction of the
terms
and provisions of this Agreement.
16. Notice.
All
communications required or permitted under this Agreement shall be in writing.
All such communications shall be (i) delivered personally,
(ii) delivered by facsimile or delivered by U.S. Registered or Certified
Mail, Return Receipt Requested mail, or (iii) delivered for overnight
delivery by a nationally recognized overnight courier service. Such
communications shall be deemed to have been given (i) the first business
day following the date of delivery if delivered personally or by facsimile,
(ii) on the third business day following the date of mailing if mailed by
U.S. Registered or Certified Mail, Return Receipt Requested, or (iii) on
the date of receipt if delivered for overnight delivery by a nationally
recognized overnight courier service. Any party may, by written notice so
delivered to the other, change the address to which delivery shall thereafter
be
made. Notices to Seller and Buyer shall be made at the addresses set forth
below:
Seller
Samson
Oil and Gas USA
0000
Xxxx
Xxxx Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxxxx Xxxxxxx
(000)
000-0000 - office
(000)
000-0000 - fax
Buyer
Xxxxxx
Xxxxxxx Oil Company
0000
Xxxxx Xxxx Xxxxxx
Xxxxx,
Xxxxxxxx 00000
Attn:
Xxx
Xxxxxxxx
(000)
000-0000 - office
(000)
000-0000 - fax
17. Parties
in Interest.
This
Agreement shall inure to the benefit of and be binding upon Seller and Buyer
and
their respective successors and assigns.
18. Governing
Law.
This
Agreement shall be construed under the laws where the Properties are
located.
19. Waiver
of Jury Trial.
The
parties (a) agree not to elect a trial by jury of any issue triable of right
by
a jury, and (b) waive trial by jury in any action or proceeding arising out
of
or relating to the operation of this Agreement or the transactions contemplated
hereby. It is understood and agreed that this waiver constitutes a waiver
of
trial by jury of all claims against all parties to any such action or
proceedings, including claims against persons or entities that are not parties
to this Agreement. This waiver of jury trial is separately given, knowingly,
willingly and voluntarily made by each party to this Agreement, and each
party
agrees that no representations of fact or opinion has been made by any
individual to induce this waiver of trial by jury or to in any way modify
or
nullify its effect.
6
20. Complete
Agreement.
This
Agreement, when executed by Seller and Buyer shall supersede all previous
agreements, communications, or representations, either written or oral, between
Seller and Buyer regarding the subject matter hereof.
21. Further
Assurances.
After
the Closing, Seller shall execute and deliver, and shall otherwise cause
to be
executed and delivered, from time to time, such further instruments, notices,
division orders, transfer orders and other documents, and do such other and
further acts and things, as may be reasonably necessary to more fully and
effectively grant, convey and assign the Properties to Buyer.
22. Counterparts.
This
Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but such counterparts
together shall constitute for all purposes one agreement.
Executed
on this the 6th day of May, 2008, but effective as of the Effective
Time.
[signature
page to follow]
7
SELLER
SAMSON
OIL AND GAS USA, INC.
| /s/ Xxxxxxx Xxxx | |
|
By: Xxxxxxx
Xxxx
Title: President
|
BUYER
XXXXXX-XXXXXXX
ANDARKO LIMITED PARTNERHIP
by
Xxxxxx-Xxxxxxx Anadarko LLC, its General Partner
| /s/ Xxx Xxxxxxxx | |
|
By: Xxx
Xxxxxxxx
Title: Attorney-in-Fact
|
8
