MEMBERSHIP INTEREST PURCHASE AGREEMENT
EXHIBIT
10.39
THIS
MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”)
is made this 10th day of
January, 2009, by and between the following parties:
· Renewable Spirits, LLC, a
Florida limited liability company (“Buyer”)
· Southeast Biofuels LLC, a
Florida limited liability company (the “Company”)
· Coastal Xethanol LLC, a
Delaware limited liability company (“Seller”)
BACKGROUND
Seller
owns a 78% membership interest in the Company (“Seller’s
SEB Membership Interest”) and Buyer owns the remaining 22% membership
interest in the Company. Seller also owns a 10% membership interest
in Buyer (“Seller’s
RS Membership Interest”).
Seller
wishes to sell and transfer to Buyer, and Buyer wishes to acquire from Seller,
(i) all of Seller’s rights and interests with respect to Seller’s SEB Membership
Interest so that Buyer becomes the sole owner of all membership interests in the
Company; and (ii) all of Seller’s rights and interest with respect to Seller’s
RS Membership Interest, in each case upon the terms and subject to the
conditions of this Agreement. (Seller’s SEB Membership Interest and
Seller’s RS Membership Interest are referred to collectively as the “Membership
Interests”). Certain other capitalized terms used in this
Agreement as defined in this Agreement or in Exhibit A and shall have the
meanings ascribed to therein.
It is the
intention of the parties that, notwithstanding the fact that the closing of the
sale and transfer of the Membership Interests will not occur until the Closing
date, and except as otherwise provided in this Agreement, all financial
obligations of the Company outstanding on December 31, 2008 will be satisfied by
Seller on behalf of the Company.
NOW, THEREFORE, in
consideration of the foregoing, the mutual covenants, agreements,
representations and warranties contained in this Agreement and other good and
valuable consideration, the receipt, sufficiency and adequacy of which are
hereby acknowledged by each party hereto, the parties hereto agree as
follows:
ARTICLE
1
PURCHASE AND SALE OF
INTERESTS
1.1 Purchase of the Membership
Interests. For the consideration provided in this Agreement
and subject to the terms and conditions of this Agreement, at the Closing,
Seller hereby sells, assigns, transfers, and conveys to Buyer, free and clear of
all Liens, and Buyer hereby purchases and accepts from Seller, and acknowledges
receipt of, all of Seller’s right title and interests in and to the Membership
Interests.
1.2 Released
Obligations. In consideration of the sale and transfers of the
Membership Interests, and the payments to be made by Seller pursuant to
Section 1.3, effective immediately upon the Closing Buyer and the Company
hereby release Seller and its Affiliates (other than the Company) from any and
all obligations and liabilities owed by Seller or any of its Affiliates toBuyer
or the Company, including each of the following:
(a) all
obligations and liabilities under the First Amendment and Restated Operating
Agreement of Southeast Biofuels LLC, dated as of December 12, 2006, as amended
(the “SEB
Operating Agreement”),
(b) all
obligations and liabilities under the First Amended and Restated Operating
Agreement for Renewable Spirits LLC, dated as of December 12, 2006, as amended
(the “RS
Operating Agreement”), and
(c) subject
to the provisions of Section 1.3, all obligations and liabilities, whether as a
primary obligor or as a guarantor or surety with respect to obligations of the
Company, that arise under or in connection with the Asset Contribution
Agreement, dated as of December 12, 2006, as amended (the “Asset
Contribution Agreement”), between the Buyer and the Company (which upon
the date of the Asset Contribution Agreement was a wholly-owned subsidiary of
the Seller), including any and all obligations to make payments to Buyer under
Section 4(c) of the Asset Contribution Agreement,
(all such
obligations and liabilities being referred to collectively as the “Released
Obligations”).
1.3 Payment of
Obligations.
(a) The
parties acknowledge that (i) under Section 4(c) of the Asset Contribution
Agreement the Company was obligated to pay Buyer the total amount of $600,000
payable in 120 monthly payments of $5,000 each, (ii) as of the date of this
Agreement $475,000 of such amounts remains unpaid (the “Installment
Payment Balance”) (iii) it is the intention of the parties that except
for the Installment Payment Balance, all financial obligations of the Company
outstanding on December 31, 2008 will be satisfied by Seller on behalf of the
Company, as set forth below, and (iv) during the period from January 1, 2009
through the Closing the Company will not create, assume or incur any additional
obligations other than its obligations under the CRADA Agreement with the USDA,
minor general and administrative expenses, the warehousing obligations related
to the equipment originally transferred by Buyer to the Company pursuant to the
Asset Contribution Agreement, and minor ongoing patent application
administrative expenses..
(b) Seller
will be responsible for the payment or other satisfaction of all financial
obligations and liabilities, whether known or unknown, of the Company that are
outstanding or accrued as of the close of business on December 31, 2008 other
than the Installment Payment Balance.
2
(c) No
later than January 31, 2009 Seller will prepare and deliver to Buyer a final
year end balance sheet of the Company (the “Balance
Sheet”), which will properly reflect any accrued or unpaid expenses for
the period ended December 31, 2008 and set forth the amount of all outstanding
financial obligations and accrued expenses of the Company as of December 31,
2008, excluding
the Installment Payment Balance (the “December
31, 2008 Accrued Obligation”). The Balance Sheet and the
December 31, 2008 Accrued Obligation shall be binding and conclusive upon Buyer
and Seller unless Buyer, within 10 days after the date on which it received the
Balance Sheet, shall have notified Seller in writing of any objections thereto
(“Buyer’s
Objection Notice”). Buyer’s Objection Notice shall specify in
reasonable detail the items in the Balance Sheet or the calculation of the
December 31, 2008 Accrued Obligation Adjustment Statement that are being
disputed and a description in reasonable detail of the reasons for such
dispute.
(d) Buyer
and Seller will promptly negotiate with each other in an attempt to resolve any
objections raised in the Buyer’s Objection Notice. If Buyer and
Seller are unable to resolve any such objections within 10 business days then
they will promptly refer the dispute to a mutually acceptable independent
accounting firm (the “Disputes
Auditor”) for resolution in accordance with this Section
1.3. The Disputes Auditor shall review only the items that are in
dispute and shall make its determination based upon the terms, conditions and
principles set forth in this Agreement and within the range of outcomes proposed
by Buyer and Seller. Buyer and Seller agree that they will require
the Disputes Auditor to render its decision within 30 days after referral of the
dispute to the Disputes Auditor for decision pursuant hereto. In the
absence of calculation and other similar manifest errors, the decision of the
Disputes Auditor shall be final and binding on all parties. Judgment
may be entered upon the determination of the Disputes Auditor in any court
having jurisdiction over the party against which such determination is to be
enforced. Buyer and Seller shall be responsible for their own costs
in respect of the preparation and review of the Balance Sheet. All
fees and expenses of the Disputes Auditor shall be borne by the party that that
is not successful (or is least successful) in its position.
(e) The
Balance Sheet and the calculation of the December 31, 2008 Accrued Obligation
shall become final and binding on all parties upon the earliest to occur of (i)
if no Buyer’s Objection Notice has been given, the expiration of the period
within which Buyer may notify Seller of any objections thereto pursuant to Section 1.3(c);
(ii) the agreement by Buyer and Seller that the Balance Sheet and the
calculation of the December 31, 2008 Accrued Obligation, together with any
modifications thereto agreed by them, shall be final and binding; and (iii) if a
matter has been submitted to the Disputes Auditor in accordance with this Section 1.3, the
date on which the Disputes Auditor shall issue its decision with respect
thereto.
(f) Within
five business days following the date on which the December 31, 2008 Accrued
Obligation has become final and binding in accordance with Section 1.3(e) Seller
will pay to Buyer the amount of the December 31, 2008 Accrued Obligation, as
adjusted, where applicable, pursuant to any agreement between Buyer and Seller
or pursuant to the decision of the Disputes Auditor.
3
(g) In
addition to the payment of the December 31, 2008 Accrued Obligation pursuant to
this Section 1.3, if at any time during the period ending on the date that is
six months after the date of this Agreement, Buyer becomes aware of an
additional liability or obligation of the Company that was outstanding or arose
during the period ending on December 31, 2008, it will promptly give written
notice of such obligation or liability to Seller (an “Additional
Liability Notice”). An Additional Liability Notice shall
specify in reasonable detail the amount and basis for the additional liability
or obligation. No later than 20 days after its receipt of the
Additional Liability Notice, Seller shall either pay the amount of the
additional liability or obligation or provide to Buyer notice in writing of any
objections thereto (a “Seller’s
Objection Notice”). A Seller’s Objection Notice shall specify
in reasonable detail the reasons for such disputing the appropriateness of the
liability or obligation. Buyer and Seller will resolve any dispute
concerning any Additional Liability Notice and any Seller’s Objection Notice in
accordance with the procedures set forth in Section 1.3 that are applicable to a
Buyer’s Objection Notice.
1.4 Resignations.
Effective
immediately upon the Closing Seller resigns as the Manager of the
Company.
1.5 Closing;
Deliveries.
(a) The
closing of the transactions contemplated by this Article I (the “Closing”)
shall occur on the date of this Agreement at the offices of the Company or, if
all parties otherwise agree, by electronic transmittal of the documents and
payments required to be delivered or paid on such date.
(b) All
deliveries, payments and other transactions and documents relating to the
Closing (i) shall be interdependent and none shall be deemed effective unless
and until all are effective (except to the extent that the party entitled to the
benefit thereof has waived satisfaction or performance thereof as a condition
precedent to Closing), and (ii) shall be deemed to be consummated
simultaneously.
ARTICLE
2
REPRESENTATIONS
AND
WARRANTIES OF
SELLERS
Seller
hereby represents and warrants to Buyer that:
2.1 Ownership of Purchased
Units. Seller is the owner of all right, title and interest in
and to the Membership Interests, free and clear of all Liens, other than any
obligations arising under the SEB Operating Agreement or the RS Operating
Agreement, as the case may be. The delivery to Buyer of the
Membership Interests as contemplated in this Agreement will transfer to Buyer
valid title thereto.
4
2.2 The Company's
Assets. The assets of the Company as of December 31, 2008
consist of the physical assets contributed to the Company by Buyer pursuant to
the Asset Contribution Agreement, other than supplies or inventory that have
been consumed in the ordinary course of business, and other assets that have
been acquired by or on behalf of the Company, including any rights to obtain or
be eligible for any grant from the State of Florida and any rights pursuant to
the Cooperative Research and Development Agreement (agreement no.
58-3K95-4-1053) (the “CRADA”)
with the Agricultural research Service of the U.S. Department of
Agriculture.
2.3 Bank
Accounts. The Company has no bank accounts or other financial
accounts.
2.4 Employees. The
Company has no employees.
2.5 Authority and Binding
Effect. Seller has the power and authority necessary (i) to
enter into and perform its obligations under this Agreement (ii) to sell,
assign, transfer and convey the Membership Interests to Buyer pursuant to this
Agreement, and (iii) to consummate the transactions contemplated
hereby. This Agreement constitutes the legal valid and binding
obligation of Seller, enforceable against the Seller in accordance with its
terms, subject to applicable bankruptcy, insolvency and other laws affecting the
enforceability of creditors’ rights generally and the discretion of courts in
granting or denying equitable remedies.
2.6 Validity of Contemplated
Transactions; Governmental Authorizations. The execution,
delivery and performance of this Agreement by Seller, and the consummation of
the transactions contemplated hereby or thereby, do not and will not (i) violate
any provision of the charter documents or governing instruments of Seller or,
(ii) violate any Law or Order to which Seller is subject or (iii) require the
consent of, or any authorization from, any other Person.
2.7 Express Disclaimer of All
Other Representations & Warranties. NO REPRESENTATION OR
WARRANTY IS MADE BY SELLER EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE
2. WITHOUT LIMITING THE FOREGOING, EXCEPT AS TO THOSE MATTERS
EXPRESSLY COVERED BY THE REPRESENTATIONS AND WARRANTIES IN THIS ARTICLE 2,
SELLER DISCLAIMS EACH AND EVERY OTHER WARRANTY, REPRESENTATION AND GUARANTY,
WHETHER EXPRESS OR IMPLIED.
ARTICLE
3
REPRESENTATIONS AND
WARRANTIES OF PURCHASER
Buyer
hereby represents and warrants to Seller that:
3.1 Authority and Binding
Effect. Buyer has the power and authority necessary (i) to
enter into and perform its obligations under this Agreement (ii) to purchase and
accept the Membership Interests pursuant to this
Agreement, and (iii) to consummate the transactions contemplated hereby and
thereby. This Agreement constitute the legal valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms,
subject to applicable bankruptcy, insolvency and other laws affecting the
enforceability of creditors’ rights generally and the discretion of courts in
granting or denying equitable remedies.
5
3.2 Validity of Contemplated
Transactions, Governmental Authorizations. The execution, delivery and
performance of this Agreement by Buyer, and the consummation of the transactions
contemplated hereby, do not and will not violate any Law or Order relating to
Buyer or require the consent of, or any authorization from, any other
Person.
3.3 Investment
Representation.
(a) Buyer
acknowledges that the Membership Interests have not been registered under the
Securities Laws and, therefore, cannot be resold unless they are registered
under such Securities Laws or exempt from registration thereunder.
(b) Buyer
is purchasing the Membership Interests for its own account, for investment and
not with a view to the resale, distribution or subdivision
thereof. Buyer (i) has such knowledge and experience in financial and
business matters as to enable Buyer to be capable of evaluating the merits and
risks of an investment in the Membership Interests (ii) understands that there
is no market for the Membership Interests and that none is likely to develop,
and (iii) is aware that it may have to bear the economic risk of such investment
for an indefinite period of time.
(c) Buyer
acknowledges that the Membership Interests were not offered to Buyer by means of
a general solicitation or publicly disseminated advertisement or sales
literature.
3.4 Other. Buyer
represents, warrants, acknowledges and agrees that (a) except as expressly set
forth in the Seller’s representations and warranties in Article 2, neither
Seller, nor the Company, nor any officer, director, employee, agent or other
representative of Seller or the Company has made any representation or warranty,
express or implied, as to the Company or any aspect of the Company’s business or
as to Seller or as to the accuracy or completeness of any memoranda,
projections, summaries or other information whatsoever relating to the Company
or any aspect of the Company’s business or Seller that has been made available
to Buyer; and (b) Buyer has made its own investigation of the Company and
the Company’s business and made its own decision to purchase the Membership
Interests and otherwise execute, deliver and perform this
Agreement. Without limiting the foregoing, neither Seller nor the
Company shall be subject to any Liability to Buyer resulting from the
distribution of any such information to, or the use of any such information by,
Buyer.
6
ARTICLE
4
COVENANTS
AND ADDITIONAL
AGREEMENTS OF SELLERS AND
PURCHASER
4.1 Transfer Of
Documents. As soon as possible after the Closing, but no later
than January 31, 2009, Seller will deliver to Buyer all documents, contracts,
scientific records, feasibility studies, books of record, Company resolutions,
Company minutes, articles of incorporation, profit and loss statements, tax
returns, annual reports, licenses, leases, grant applications, CRADA documents,
and related legal and administrative records of the Company.
4.2 Transition
Meetings. Seller will assist Buyer during a management
transition period of up to 180 days from the date of this Agreement with respect
to certain business relationships developed during the period when Seller was
Manager of the Company. This will likely include introducing Buyer to
officials of the State of Florida with authority to the make grants for
agricultural research, as well as meeting with the U.S. Department of
Agriculture in Winter Haven to ensure a smooth transition of the management of
the Company to Buyer. Seller will not charge a fee for any such
assistance.
4.3 Continued Technical And
Business Assistance. Buyer and Seller will enter into
discussions with each other for a period of up to 180 day from the date of this
Agreement concerning the terms upon which Seller may provide certain
non-financial assistance to the Company and Buyer from time to time in the area
of technical, business, potential sources of funding, and management guidance,
including the fees for any such services. Seller will have no
obligation to provide any such services except in accordance with the terms of a
definitive agreement entered into between Buyer and Seller, and neither party
shall be under any binding obligation to enter into such agreement.
4.4 Tax
Matters.
(a) It
is the intention of the parties that the sale and transfer of the Membership
Interests be accomplished in such a way that, to the extent possible, both the
economic interests and tax attributes of such interests be transferred as of
December 31, 2008.
4.5 Indemnification. Buyer
and the Company will jointly and severally indemnify Seller and its Affiliates
against all losses, liabilities, expenses, damages and claims (including
attorneys’ fees and expenses) suffered or incurred by Seller with respect to any
of the following:
(a) any
existing or future claim or lawsuit brought by Xxxxx Xxxxxxx or Citrus Energy
LLC, including the lawsuit filed in Palm Beach County, Florida, concerning the
Company’s or Buyer’s rights to use any technology or intellectual
property. The Seller states that there has been no claims filed
against the Company or any related party by Xxxxx Xxxxxxx or Citris Energy LLC
during the period that the Seller managed the Company,
7
(b) liability
or obligation of the Company arising on or after January 1, 2009 with respect to
any agreement or commitment to which the Company is a party or by which it is
bound on the Closing date.
4.6 Expenses. Each
party shall pay its own expenses and costs incurred in connection with the
negotiation and consummation of this Agreement and the transactions contemplated
by this Agreement (including legal, accounting, and any other advisory fees and
expenses).
4.7 Further
Assurances. The parties shall in good faith undertake to
perform their obligations in this Agreement, to satisfy all conditions and to
cause the transactions contemplated by this Agreement to be carried out promptly
in accordance with its terms. Each party shall do such things as may
be reasonably requested by another party in order more effectively to consummate
or to document the transactions contemplated by this Agreement.
ARTICLE
5
MISCELLANEOUS
5.1 Notices.
(a) All
notices, requests, demands and other communications hereunder shall be (i)
delivered by hand, (ii) mailed by registered or certified mail, return receipt
requested, first class postage prepaid and properly addressed, or (iii) sent by
overnight courier service or (iv) sent via facsimile, and, in each case,
addressed to the party to whom given at the address of such party set forth
below its signature.
(b) All
notices, requests, instructions or documents given to any party in accordance
with this Section 5.1 shall be deemed to have been given (i) on the date of
receipt, if delivered by hand or if sent by overnight courier service or (ii) on
the date that is three business days after mailing, if mailed in the manner
described and addressed as set forth above.
(c) Any
party hereto may change its address specified for notices herein by designating
a new address by notice given in accordance with this Section 5.1.
5.2 Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties relating to the
subject matter hereof and thereof and supersede all prior oral and written, and
all contemporaneous oral negotiations, discussions, writings and agreements
relating to the subject matter of this Agreement.
5.3 Modifications, Amendments
and Waivers.
(a) This
agreement shall not be modified or amended except by a written instrument signed
by the parties hereto.
8
(b) The
failure or delay of any party at any time or times to require performance of any
provision of this Agreement shall in no manner affect its right to enforce that
provision. No single or partial waiver by any party of any condition
of this Agreement, or the breach of any term, agreement or covenant or the
inaccuracy of any representation or warranty of this Agreement, whether by
conduct or otherwise, in any one or more instances shall be construed or deemed
to be a further or continuing waiver of any such condition, breach or inaccuracy
or a waiver of any other condition, breach or inaccuracy.
5.4 Successors and
Assigns. This Agreement cannot be assigned by any party
without the prior written consent of the other parties hereto. This
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties hereto, and their respective permitted successors and
assigns.
5.5 Captions;
References. The captions and other headings contained in this
Agreement as to the contents of particular articles, sections, paragraphs or
other subdivisions contained herein are inserted for convenience of reference
only and are in no way to be construed as part of this Agreement or as
limitations on the scope of the particular articles, sections, paragraphs or
other subdivisions to which they refer and shall not affect the interpretation
or meaning of this Agreement. All references in this Agreement to
“Section,” “Subsection” or “Article” shall be deemed to be references to a
Section, Subsection or Article of this Agreement.
5.6 Governing
Law. This Agreement has been negotiated and executed in the
State of Floridaand shall be governed by, and construed in accordance with, the
substantive Laws of the State of Florida.
5.7 Pronouns. All
pronouns used herein shall be deemed to refer to the masculine, feminine or
neuter gender as the context requires.
5.8 Severability. Should
any one or more of the provisions of this Agreement be determined to be invalid,
illegal or unenforceable in any respect, the validity and enforceability of the
remaining provisions hereof shall not in any way be affected or impaired
thereby.
5.9 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of such counterparts shall together constitute one and the
same instrument.
5.10 Interpretations. Neither
this Agreement nor any uncertainty or ambiguity herein shall be construed or
resolved against Buyer or Sellers, whether under any rule of construction or
otherwise. No party to this Agreement shall be considered the
draftsman. On the contrary, this Agreement has been reviewed,
negotiated and accepted by all parties and their attorneys and shall be
construed and interpreted according to the ordinary meaning of the words used so
as fairly to accomplish the purposes and intentions of all parties
hereto.
9
IN WITNESS WHEREOF, the
parties have caused their duly authorized representatives to execute this
Agreement as of the date first above written.
|
SELLER:
|
COASTAL
XETHANOL LLC
|
|
|
/s/ Xxxxxxx Xxxxxxxxxxxx
|
||
|
Address:
|
0000 Xxxxxxxxx Xx
|
|
|
Xxxxx 000
|
||
|
Xxxxxxx,
XX 00000
|
||
|
BUYER:
|
RENEWABLE
SPRITS LLC
|
|
|
/s/ Xxxxx Xxxxxxxxx
|
||
|
Address:
|
0000 Xxxxxxxxx Xxx
|
|
|
Xxxxxx Xxxxx,
XX 00000
|
||
|
THE
COMPANY:
|
SOUTHEAST
BIOFUELS LLC
|
|
|
/s/ Xxxxxxx Xxxxxxxxxxxx
|
||
|
Address:
|
0000 Xxxxxxxxx Xxxx
|
|
|
Xxxxx 000
|
||
|
Xxxxxxx,
XX 00000
|
||
10
EXHIBIT
A
GLOSSARY OF
TERMS
The
following terms (in their singular and plural forms as appropriate) as used in
the Membership Interests Purchase Agreement shall have the meanings set forth
below unless the context requires otherwise:
“Code” means the
Internal Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder.
“Governmental
Authority” means any federal, state, county, local, foreign or other
governmental or public agency, instrumentality, commission, authority, board or
body.
“IRS” means the
Internal Revenue Service of the United States of America.
“Law” means any code,
law, order, ordinance, regulation, rule, or statute of any Governmental
Authority.
“Liability” means any
direct or indirect, primary or secondary, liability, indebtedness, obligation,
penalty, expense (including, without limitation, costs of investigation,
collection and defense), claim, deficiency, guaranty or endorsement of or by any
Person (other than endorsements of notes, bills and checks presented to banks
for collection or deposit in the ordinary course of business) of any type,
whether accrued, absolute, contingent, liquidated, unliquidated, matured,
unmatured or otherwise.
“License” means any
license, certificate of need, certificate of exemption, accreditation,
franchise, permit, authorization or approval.
“Lien” means any
mortgage, deed of trust, deed to secure debt, lien, pledge, hypothecation,
attachment, levy, charge, conditional sale agreement, title retention agreement
or other security interest, lien or encumbrance of any kind or nature whatsoever
on, or with respect to, any property or property interest.
“Order” means any
decree, injunction, judgment, order, ruling, writ, administrative decision or
award of any federal, state, local, foreign or other court, arbitrator,
tribunal, or Governmental Authority.
“Person” means any
individual, partnership, joint venture, corporation, trust, limited liability
company, unincorporated organization, or other entity (including any
Governmental Authority).
“Securities Laws”
shall mean and include the Federal Securities Act of 1933, as amended, the
Georgia Securities Act, as amended, and any other applicable state securities
law, and the rules and regulations promulgated under any of the foregoing acts
or laws.
