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EXHIBIT 10.28
ASSET PURCHASE AGREEMENT
BETWEEN
▇. ▇. ▇▇▇▇▇▇ DRILLING, INC.,
AN OKLAHOMA CORPORATION,
AS SELLER
AND
BAYARD DRILLING TECHNOLOGIES, INC.
A DELAWARE CORPORATION,
AS BUYER
NOVEMBER 25, 1997
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of
November 25, 1997 between ▇. ▇. ▇▇▇▇▇▇ Drilling, Inc., an Oklahoma corporation
(the "Seller"), and Bayard Drilling Technologies, Inc., a Delaware corporation
(the "Buyer").
RECITALS:
The Buyer desires to purchase from Seller the equipment described on
Exhibit A.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants of the parties hereinafter expressed, it is hereby agreed as
follows:
ARTICLE I
SALE AND PURCHASE OF THE SHARES
1.1 AGREEMENT FOR SALE AND PURCHASE. The Seller hereby agrees to
sell to the Buyer and the Buyer hereby agrees to purchase from the Seller on
the Closing Date, the Assets free and clear of all liens, encumbrances,
security interests and adverse claims (the "Asset Purchase").
1.2 CONSIDERATION FOR ASSETS. The total consideration for the
Assets shall be US $14,000,000 plus applicable sales taxes (the "Purchase
Price"), payable as follows: (a) US$3,500,000 paid as a deposit upon the
execution of this Agreement, plus (b) US$10,500,000 plus applicable sales
taxes, payable at the closing, in each case payable by certified bank check or
wire transfer.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to the Buyer as of the date hereof, and
as of the Closing Date, as follows:
2.1 AGREEMENT VALID. This Agreement has been duly executed and
delivered by Seller and constitute a valid and binding agreement of Seller
enforceable against Seller in accordance with its terms. All instruments
required hereunder to be executed and delivered by Seller at the Closing will
constitute valid and binding agreements enforceable against Seller in
accordance with their terms.
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2.2 COMPLIANCE WITH LAWS. Seller is in compliance with all
provisions of its Articles of Incorporation and Bylaws. Seller is in
compliance in all material respects with all laws and regulations in all
jurisdictions in which it is presently doing business. The Assets have been
held or operated in compliance with all applicable laws and regulations. There
are no judgments, court or administrative orders or determinations by any
governmental authorities rendered against or specifically affecting Seller or
the Assets.
2.3 CLAIMS OR LITIGATION. There are no lawsuits, actions or other
proceedings pending before any court or governmental agency, nor has any claim,
dispute, suit, action or other proceeding been threatened against Seller or any
of the Assets.
2.4 TITLE TO ASSETS. Seller has good and marketable title, free
and clear of any lien, encumbrance or adverse claim to all of the Assets and
none of the Assets are subject to any restriction which would prevent or
adversely affect the use thereof.
2.5 CONDITION OF ASSETS; EFFECT OF TRANSACTIONS. The Assets are
in the condition described on Exhibit A. IT IS EXPRESSLY UNDERSTOOD BY THE
PARTIES HERETO THAT THE TANGIBLE ASSETS OF SELLER ARE AS IS, WHERE IS, WITHOUT
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EITHER
EXPRESS OR IMPLIED.
2.6 BROKERS AND FINDERS. The Seller has not incurred any
liability, contingent or otherwise, for brokers' or finders' fees in respect of
this transaction for which the Buyer shall have any responsibility whatsoever.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Seller as follows:
3.1 VALID AGREEMENT. This Agreement constitutes the valid and
binding agreement of the Buyer enforceable against the Buyer in accordance with
its terms, and all instruments required hereunder to be executed and delivered
by the Buyer at the Closing will constitute valid and binding agreements of the
Buyer enforceable against the Buyer in accordance with their terms.
3.2 BROKERS AND FINDERS. The Buyer has incurred no liability,
contingent or otherwise, for brokers' or finders' fees in respect of this
transaction for which the Seller will have any responsibility whatsoever.
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3.3 NO RESTRICTIONS. The Buyer is not subject to any order,
judgment or decree or the subject of any litigation, claim or proceeding,
pending or, to the knowledge of the Buyer, threatened, or any other restriction
of any kind or character known to the Buyer which would restrict its ability to
consummate the transactions contemplated by this Agreement.
3.4 NO LITIGATION. There are no actions, proceedings or
investigations pending, or, to the Buyer's knowledge, any basis therefor or
threat thereof, which question the validity of this Agreement or any other
action taken, or to be taken, in connection herewith.
3.5 GOVERNMENTAL CONSENTS. No consent, approval or authorization
of, or designation, declaration or filing with, any governmental authority is
required on the part of the Buyer in connection with the valid execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
3.6 AVAILABLE FUNDS. On the Closing date, the Buyer will have
sufficient funds to enable it to pay the Purchase Price in full at the Closing.
ARTICLE IV
CONDITIONS TO OBLIGATIONS OF THE BUYER
The obligation of the Buyer to consummate the transactions provided
for in this Agreement shall be subject to the satisfaction of each of the
following conditions on or before the Closing Date, subject to the right of the
Buyer to waive any one or more of such conditions:
4.1 REPRESENTATIONS AND WARRANTIES OF SELLER. At and as of the
Closing Date the representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects.
4.2 PERFORMANCE OF THIS AGREEMENT. Seller has duly performed or
complied in all material respects with all of the agreements, covenants and
obligations to be performed or complied with by the Seller under the terms of
this Agreement on or prior to the Closing Date.
4.3 CONDITION OF ASSETS. No material portion of the Assets shall
have been materially adversely affected by damage, destruction or loss
resulting from fire or any other casualty.
4.4 ABSENCE OF LITIGATION. No material proceeding pertaining to
the transactions contemplated by this Agreement or to their consummation shall
have been instituted or threatened on or before the Closing Date.
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ARTICLE V
CONDITIONS TO OBLIGATIONS OF THE SELLER
The obligations of the Seller to consummate the transactions provided
for in this Agreement shall be subject to the satisfaction of each of the
following conditions on or before the Closing Date, subject to the right of the
Seller to waive any one or more of such conditions.
5.1 REPRESENTATIONS AND WARRANTIES OF THE BUYER. The
representations and warranties of the Buyer contained in this Agreement shall
be true and correct in all material respects at and as of the Closing Date.
5.2 PERFORMANCE OF THIS AGREEMENT. The Buyer shall have duly
performed or complied in all material respects with all of the agreements
covenants and obligations to be performed or complied with by the Buyer under
the terms of this Agreement on or prior to the Closing date.
5.3 ABSENCE OF LITIGATION. No material proceeding pertaining to
the transactions contemplated by this Agreement or to their consummation shall
have been instituted or threatened on or before the Closing Date.
ARTICLE VI
CLOSING
6.1 DATE AND PLACE. The Closing shall be held at 9:00 a.m. on
January 9, 1998 (the "Closing Date"). The Closing shall take place at Cedar
Valley Golf Club, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, or at such other
time or location as the parties shall determine.
6.2 SATISFACTION OF CONDITIONS. Prior to the Closing, each party
shall provide the other party such evidence of satisfaction of the conditions
to Closing pursuant to Articles V and VI.
6.3 SELLER DELIVERIES. At the Closing, the Seller shall deliver
to the Buyer a ▇▇▇▇ of sale transferring the Assets to the Buyer free and clear
of all liens, encumbrances, security interests and adverse claims.
6.4 BUYER DELIVERIES. At the closing, the Buyer shall deliver to
the Seller payment of the remaining cash portion of the Purchase Price
($10,500,000) plus applicable sales taxes.
6.5 EFFECTIVE TIME. For all purposes, the Share Purchase will be
deemed to have occurred at 7:00 a.m., Central Time, on the Closing Date.
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ARTICLE VII
MISCELLANEOUS
7.1 NOTICES. All communications required or permitted to be given
under this Agreement shall be in writing and delivered, mailed or transmitted
to the parties at the addresses set out below. Notices shall be deemed given
when received except that notices given by facsimile transmission on weekends,
holidays or after 5:00 p.m. Central Time, shall be deemed received on the next
business day. If delivered by commercial delivery service or mailed by
registered or certified mail, the delivery receipt shall be evidence of the
date of receipt. Either party may, by written notice so delivered to the
other, change the address to which delivery shall thereafter be made.
(a) Notices to the Buyer:
Bayard Drilling Technologies, Inc.
▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
P. O. Box 268867
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
(b) Notices to the Seller:
▇. ▇. ▇▇▇▇▇▇ Drilling, Inc.
▇▇▇▇ ▇. ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
7.2 BINDING EFFECT; ASSIGNABILITY. This Agreement shall be
binding upon and shall insure to the benefit of the parties hereto and their
respective successors and assigns.
7.3 EXPENSES. Each party hereto will bear and pay its own
expenses of negotiating and consummating the transactions contemplated hereby.
7.4 GOVERNING LAW; ENFORCEMENT. This Agreement shall be governed
by, construed and enforced in accordance with the laws of the State of Oklahoma
applicable to contracts made and to be performed entirely therein. The
prevailing party in any litigation initiated to enforce rights under or collect
damages for breach of this Agreement shall be entitled to reimbursement from
the nonprevailing party of all costs and expenses, including attorneys' fees,
incurred by the prevailing party in connection with such litigation.
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7.5 ANNOUNCEMENTS. The Seller and the Buyer shall consult with
each other with regard to all press releases and other announcements issued by
either party concerning this Agreement or the transaction contemplated hereby
and, except as may be required by applicable laws or the applicable rules and
regulations of any governmental agency or stock exchange, neither the Buyer nor
the Seller shall issue any such press release or other publicity without the
prior written consent of the other party.
7.6 INDEMNIFICATION BY THE SELLER. From and after the Closing
Date, Seller shall indemnify and hold harmless Buyer and its respective
directors, officers, shareholders, members, managers and affiliates against any
and all damages, losses, deficiencies, liabilities, obligations, commitments,
costs or expenses, including legal and other expenses reasonably incurred in
investigating and defending against the same (collectively, "Liabilities" and
each a "Liability") incurred by such person resulting from (i) the breach of
any representation or warranty of the Seller contained in this Agreement, or in
any agreement, document or instrument delivered in connection with the
transactions contemplated by this Agreement (a "Related Agreement"), (ii) any
breach of any agreement or covenant of the Seller contained in this Agreement
or in any Related Agreement, and (iii) the conduct of the business and
operations of Seller and the Assets on and prior to the Closing Date.
7.7 INDEMNIFICATION BY THE BUYER. From and after the Closing
Date, the Buyer shall indemnify and hold harmless the Seller and its directors,
officers, shareholders and affiliates against any and all Liabilities incurred
by the Seller resulting from (i) the breach of any representation or warranty
of Buyer contained in this Agreement or in any Related Agreement, (ii) any
breach of any agreement or covenant of the Buyer contained in this Agreement or
in any Related Agreement, and (iii) the conduct of the business and operations
of Seller and the Assets from and after the Closing, and (iv) sales tax
assessed as a result of this transaction.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SELLER:
▇. ▇. ▇▇▇▇▇▇ DRILLING, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
President
BUYER:
BAYARD DRILLING TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
President
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EXHIBIT A
Exhibit A to the Asset Purchase Agreement, which listed and described
six land drilling rigs and related equipment, has been omitted from this
filing.
