UNIT REPURCHASE AGREEMENT
Exhibit 10.32
Execution Copy
Execution Copy
This Unit Repurchase Agreement (this “Agreement”)
is made and entered into as of the
30th day of September, 2011, by and between Xxxxxxxxx Land Company, LLC, a Delaware
limited liability company (the “Company”), and X. Xxxx Xxxxxxxxx III, an individual residing in the
State of Missouri (“Management Owner”), and is joined in by Members holding at least a
Supermajority Interest for the limited purpose of consenting to the transactions contemplated
hereby pursuant to Section 9.1 of the LLC Agreement (defined below). Capitalized terms used herein
and not otherwise defined shall have those meanings assigned to them in the LLC Agreement.
WHEREAS, Management Owner is a unitholder of the Company and is the record and beneficial
owner of 22,500 units of membership interests in the Company (the “Units”);
WHEREAS, as of the date hereof, Management Owner owes to the Company $1,432,812.50 in
aggregate principal amount and interest accrued thereon (the “Outstanding Debt”) under those
certain promissory notes dated September 28, 2006, December 6, 2006, March 7, 2007 and June 6, 2008
(the “Notes”), and Management Owner has pledged all of the Units as collateral to secure the
repayment of the Notes under pledge agreements of even dates as the Notes (the “Pledge
Agreements”);
WHEREAS, Management Owner is a party to that certain Amended and Restated Limited Liability
Company Agreement dated March 7, 2007, as amended by Amendment No. 1 thereto dated May 31, 2007, as
amended by Amendment No. 2 thereto dated March 31, 2008, as amended by Amendment No. 3 thereto
dated June 6, 2008, as amended by Amendment No. 4 thereto dated May 6, 2009, as amended by
Amendment No. 5 thereto dated as of March 31, 2010, among the Company and the other members a party
thereto (the “LLC Agreement”), which provides for certain restrictions on transfer of the Units;
and
WHEREAS, Management Owner desires to sell, and the Company desires to repurchase, that number
of Units having a value (based on a per Unit value of $169.00) equal to the Outstanding Debt in
full satisfaction of Management Owner’s obligations under the Notes and on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
contained herein, Management Owner and the Company do hereby represent, warrant, covenant and agree
as follows:
ARTICLE I
PURCHASE AND SALE
1.1. Sale of Purchased Units. Management Owner shall sell, assign and transfer to the Company, and the Company shall
purchase and accept from Management Owner, that number of Units equal to the quotient of (i) the
Outstanding Debt divided by (ii) $169.00 with any resulting fractional units being rounded
up to the nearest whole number of Units (the “Purchased Units”). Management Owner shall execute
an assignment effecting such transfer in form and substance satisfactory to the Company.
1.2. Consideration for Sale of Purchased Units. In consideration of the sale of the Purchased Units to the Company and upon receipt of the
assignment and other documents necessary to transfer the Purchased Units to the Company and in form
satisfactory to the Company, the Company shall consider the Notes paid in full. Management Owner
shall accept such form of payment in full consideration for the sale of the Purchased Units and by
the acceptance thereof shall waive and release the Company from any and all claims and rights now
or hereafter arising out of or in any way relating to the Purchased Units.
1.3. Tax Characterization. For federal income tax purposes, the parties agree to
treat the transactions described herein as if Management Owner repaid the Notes in full with cash
and the Company used such cash to effect a partial redemption of the Units, with such partial
redemption being treated as a distribution to Management Owner. The parties shall file all tax
returns consistently with the foregoing. The Company agrees to pay Management Owner a special
bonus to cover federal income taxes, if any, due and payable by Management Owner as a result of
the partial redemption of the Units and repayment of the Notes.
ARTICLE II
CLOSING
2.1. Closing. The transactions contemplated by Article I of this Agreement shall be
consummated (the “Closing”) on the date hereof (the “Closing Date”). The Closing shall take place
at the offices of the Company, at 10:00 a.m., local time, on the Closing Date, or such other
location or time or on such other date as shall be mutually agreed to by the parties. At the
Closing, the Purchased Units shall no longer be deemed outstanding and the Management Owner shall
have no voting rights, rights to distributions, or other rights otherwise appertaining to the
Purchased Units.
2.2. Prorations. All incidents of ownership of the Purchased Units in the Company,
including but not specifically limited to, obligations for assessments, if any, and allocation of
income, gain, loss and deduction, shall be prorated as of the Closing Date in accordance with the
terms and conditions of the LLC Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF MANAGEMENT OWNER
OF MANAGEMENT OWNER
As an inducement to the Company to enter into this Agreement, Management Owner represents and
warrants to the Company as follows:
3.1. Power and Authority. Management Owner has all necessary power and authority to execute and deliver this Agreement and
to perform its obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been executed and delivered by, and
constitute a legal, valid, and binding obligation of, Management Owner and this Agreement is
enforceable against Management Owner in accordance with its terms.
2
3.2. No Governmental Consents. No approval, consent, waiver, authorization or other order of, and no declaration, filing,
registration, qualification or recording with, any governmental authority is required to be
obtained from or made by or on behalf of Management Owner in connection with the execution,
delivery or performance of this Agreement and the consummation of the transactions contemplated
hereby and the performance by Management Owner of his other obligations hereunder in accordance
with the terms and conditions set forth herein.
3.3. Ownership of Purchased Units. Management Owner has not heretofore sold any participation or other interest in the Purchased
Units. Management Owner is the record and beneficial owner of the Purchased Units. Effective as
of the Closing Date, the Company will acquire good, valid and marketable title to the Purchased
Units, free and clear of all restrictions, claims, security interests and encumbrances of any kind,
other than as set forth in the Pledge Agreements and the LLC Agreement.
3.4. Informed Seller. Management Owner is familiar with the business and financial aspects of the Company, and is
entering into this Agreement freely and fully informed on the past performance of the Company and
the potential performance of the Company in the future. Management Owner is capable of evaluating
the merits of disposing of the Purchased Units. Management Owner acknowledges that Xxxxxxxx &
Knight LLP has not represented Management Owner in connection with the preparation of this
Agreement, and such counsel owes no duties to Management Owner. Management Owner acknowledges that
Management Owner has had a reasonable opportunity to review this Agreement and has had a reasonable
opportunity to consult with Management Owner’s legal counsel and accountants with respect to the
terms and the legal, financial and tax implications of this Agreement.
3.5. No Brokers. Neither Management Owner nor any of his or her agents has paid or
become obligated to pay any fee or commission to any broker, finder, intermediary, advisor,
consultant or appraiser for or on account of the transactions provided for in this Agreement,
except for attorneys, consultants and appraisers, as necessary, engaged by Management Owner and
who shall be paid solely by Management Owner. Management Owner agrees to indemnify the Company
against, and to hold the Company harmless from, any claims for brokerage or similar commission or
other compensation that may be made against the Company by any third party in connection with the
transactions contemplated hereby, which claim is based upon such third party having acted as
broker, finder, investment banker, advisor, consultant or appraiser or in any similar capacity on
behalf of Management Owner or any of its affiliates and agents
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
OF THE COMPANY
As an inducement to Management Owner to enter into this Agreement, the Company represents and
warrants to Management Owner that the Company has full corporate power and authority to make,
execute, deliver and perform this Agreement and the execution, delivery and performance of this
Agreement by the Company has been duly authorized by all necessary limited liability company action
of the Company. Upon execution and delivery of this Agreement by a Supermajority Interest of the
Members, the Company hereby acknowledges and
agrees that the terms and conditions set forth in the LLC Agreement will have either been
complied with or waived with respect to the Transfer (as defined in the LLC Agreement) of Purchased
Units, including without limitation those contained in Section 9.1 of the LLC Agreement.
3
ARTICLE V
MISCELLANEOUS
5.1. Entire Agreement. This Agreement supersedes all prior discussions and agreements between the Company and
Management Owner with respect to the matters contained herein, and this Agreement constitutes the
sole and entire agreement between the parties hereto with respect to the subject matters hereof.
5.2. Further Assurances. The parties hereto covenant and agree that they will execute such further instruments and
documents as are or may be necessary or convenient to effectuate and carry out the transactions
contemplated by this Agreement.
5.3. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, successors, partners, transferees and assigns. Neither this
Agreement nor any rights or obligations hereunder may be assigned without the written consent of
the other parties. Nothing in this Agreement, express or implied, is intended to or shall confer
upon any person, other than the parties hereto and their respective successors, legal
representatives and permitted assigns, any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement, and no person shall be deemed a third party beneficiary under
or by reason of this Agreement.
5.4. Governing Law. The validity and effect of this Agreement shall be governed by, and this Agreement shall be
construed and enforced in accordance with, the laws of the State of Delaware.
5.5. Joinder. The spouse of Management Owner hereby joins in the execution of this Agreement for the sole
purpose of binding her interest, if any, in the Purchased Units.
5.6. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an
original and all of which shall constitute but one and the same instrument.
*******
[Remainder of this page left intentionally blank]
[Signature page follows]
4
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and
year first above written.
| MANAGEMENT OWNER: | ||||
| /s/ X. Xxxx Xxxxxxxxx, III
|
||||
| X. Xxxx Xxxxxxxxx, III | ||||
| COMPANY: | ||||
| XXXXXXXXX LAND COMPANY, LLC |
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | President |
[Signature Page to Unit Repurchase Agreement]
The undersigned, representing at least a Supermajority Interest of the Members, join in the
making of this Agreement for the limited purpose of consenting to the transactions contemplated
hereby pursuant to Section 9.1 of the LLC Agreement.
| YORKTOWN ENERGY PARTNERS VI, L.P. | ||||||
| By: | Yorktown VI Company LP, its general partner |
|||||
| By: | Yorktown VI Associates LLC, its general partner |
|||||
| By: Name: |
/s/ Xxxxx X. Xxxxxxxx
|
|||||
| Title: | Member |
| YORKTOWN ENERGY PARTNERS VII, L.P. | ||||||
| By: | Yorktown VII Company LP, its general partner |
|||||
| By: | Yorktown VII Associates LLC, its general partner |
|||||
| By: Name: |
/s/ Xxxxx X. Xxxxxxxx
|
|||||
| Title: | Member | |||||
| YORKTOWN ENERGY PARTNERS VIII, L.P. | ||||||
| By: | Yorktown VIII Company LP, its general partner |
|||||
| By: | Yorktown VIII Associates LLC, its general partner |
|||||
| By: Name: |
/s/ Xxxxx X. Xxxxxxxx
|
|||||
| Title: | Member | |||||
| /s/ Xxxxx X. Xxxxxx
|
[Joinder to Unit Repurchase Agreement]
| LUCYB TRUST | ||||||
| (Dated February 26, 2007) | ||||||
| By: | /s/ Xxxxx X. Xxxxxx
|
|||||
| Xxxxxxx Xxxxxxx/Xxxxxxxx Xxxxxxx joint ownership with right of survivorship | ||||||
| By: | |
|||||
| By: | |
|||||
| BRIM FAMILY 2004 TRUST | ||||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Vice President | |||
| /s/ Xxxx X. Xxxxxx, III
|
||||
| XXXXXXXXXX BROTHERS, LLC |
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | Managing Member | |||
[Joinder to Unit Repurchase Agreement]
