AMENDMENT TO MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT
Exhibit 2.11
AMENDMENT TO MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT
This Amendment to Membership Interest Purchase and Sale Agreement (the “Amendment”) is made
and entered into this 16th day of November, 2007, by and among Rio Vista GO LLC, an Oklahoma
limited liability company or its assigns (“Buyer”) and Rio Vista Energy Partners L.P., a Delaware
limited partnership (“Rio Vista”), and Outback Production, Inc., a Nevada corporation (“Seller”)
and GO, LLC, an Oklahoma limited liability company (the “Company”), and Xxxx Xxxxxx and Xxxx Xxxx
(individually, a “Shareholder” and collective, the “Shareholders”).
RECITALS
A. Buyer, Rio Vista, Seller, Company and Shareholders have executed that certain Stock
Purchase Agreement (the “Agreement”) dated effective October 1, 2007, by and among Buyer, Rio
Vista, Seller, Company and Shareholders, which provides for the sale of the Membership Interests in
the Company from Seller to Buyer.
B. The Agreement was inadvertently titled a “Stock Purchase Agreement,” when in fact the
Agreement is a Membership Interest Purchase and Sale Agreement. Additionally, (i) the Agreement
inadvertently refers to the Company as a corporation, when in fact it is a limited liability
company; (ii) the Agreement inadvertently refers to the managers of the Company as directors; (iii)
the Agreement inadvertently refers to the members of the Company as shareholders; and (iv) the
Agreement inadvertently refers to the membership interests of the Company as shares.
C. The Agreement provides that Schedules 2.1, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 2.12,
2.14, 2.15, 2.16, 2.17, 2.18, 2.20, 2.21, 2.22, 2.23, 2.24, 2.25, 2.26, 2.27, 3.1, and7.6 are
attached thereto, but, inadvertently, such Schedules were not attached.
D. Paragraph 1.1.1 of the Agreement provides as follows:
1.1.1 Subject to Section 1.1.2, at Closing, Buyer will pay Seller $3,000,000
in cash or other immediately available funds and will deliver to Seller ninety-one
thousand nine hundred nine-six (91,996) common units of Rio Vista (the “Purchase
Price Units”).
E. Paragraph 7.3 of the Agreement provides as follows:
7.3 During the pre-Closing period, upon the inquiry of the Buyer, the Company
and Seller shall promptly notify the Buyer of:
F. Paragraph 10.4.1(b) of the Agreement provides as follows:
(b) Buyer Adjustments. The Final Settlement Statement shall incorporate the
following adjustments in favor of Buyer:
(i) All proceeds received by Shareholders (net of applicable Taxes and
royalties) after the Effective Time which are attributable, in accordance
with GAAP, to production from the Oil and Gas Assets during the period from
and after the Effective Time; and
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(ii) All capital costs, expenses, and any Taxes attributable to the
Oil and Gas Assets for periods from and after the Effective Date until
Closing.
G. Paragraph 11.6 of the Agreement provides as follows:
11.6 Buyer’s Agreement to Indemnify. Buyer and Company shall, on the
date of Closing, agree, following the Closing, to indemnify and hold Seller and
Shareholders, and their respective successors and permitted assigns harmless from
and against any and all claims, obligations, actions, liabilities, damages, costs
or expenses, (a) resulting from any breach of any representation, warranty,
covenant or agreement of Buyer contained in this Agreement, (b) resulting from any
breach of any representation, warranty, covenant or agreement of the Company
contained in this Agreement following the Closing, or (c) except as otherwise
provided herein, relating to the conduct of the Company’s business after the
Closing or to the Membership Interests or the Oil and Gas Assets arising after the
Closing, or (d) resulting from any claim, action or demand made by any third party
relating to Buyers acquisition of Seller’s membership units in the Company, whether
or not it arises out of or relates to this Agreement. Notwithstanding any
provision in this Agreement or its attachments to the contrary, Buyer agrees that
subsequent to Closing the Company shall continue to indemnify Seller and
Shareholders to the full extent any such indemnification was provided to any of
them under Company’s Bylaws and/or Articles of Incorporation in effect as of the
date of this Agreement as previously furnished to Buyer.
H. Paragraph 12.1 of the Agreement provides as follows:
12.1 Knowledge Respecting Buyer. Seller represents and acknowledges
that (a) it is a sophisticated investor with knowledge and experience in business
and financial matters, knows, or has had the opportunity to acquire, all
information concerning the business, affairs, financial condition and prospects of
Buyer which it deems relevant to make a fully informed decision regarding the
consummation of the transactions contemplated hereby and is able to bear the
economic risk and lack of liquidity inherent in holding the Purchase Price Units
and (b) it has accessed copies of all Forms 10-K, 10-Q and 8-K, and all proxy
statements, filed by Buyer and available at xxx.xxx.xxx. Without limiting
the foregoing, Seller understands and acknowledges that neither Buyer nor anyone
acting on its behalf has made any representations or warranties other than those
contained herein respecting Buyer or the future conduct of Buyer’s business or of
Company’s business, and Seller has not relied upon any representations or
warranties other than those contained herein in the belief that they were made on
behalf of Buyer.
I. Paragraphs 12.2 and 12.2.1 of the Agreement provide as follows:
12.2 Status of Units to be Issued. Seller agrees, acknowledges and
confirms that he or she has been advised and understands as follows:
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12.2.1 Seller is acquiring the Purchase Price Units to be
issued to it for its own account and without a view to any
distribution or resale thereof, other than a distribution or resale
which, in the opinion of counsel for Seller (which opinion shall be
satisfactory in form and substance to Rio Vista), may be made
without violating the registration provisions of the Securities Act
of 1933, as amended (the “Securities Act”) or any
applicable state securities or “blue sky” laws. Seller acknowledges
the Purchase Price Units are “restricted securities” within the
meaning of Rule 144 under the Securities Act and have not been
registered under the Securities Act or any state securities laws
and thereafter must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption
from such registration is available.
J. Paragraph 12.2.4 of the Agreement provides as follows:
12.2.4 Rio Vista and its transfer agent may refuse to effect a transfer of any
of the Purchase Price Units by the Seller or any of their successors, personal
representatives or assigns otherwise than as contemplated hereby in this Agreement.
K. Paragraph 12.4 of the Agreement provides as follows:
12.4 Cooperation by Seller. The Seller will cooperate with Rio Vista
as reasonably requested by Rio Vista in connection with the preparation and filing
of any Registration Statement. Each of the Seller will furnish to Rio Vista such
information regarding itself, the common units held by it, and the intended method
of disposition of such common units as shall be reasonably required to cause the
effectiveness of the Registration Statement and will execute and deliver such
documents in connection with the Registration Statement as Rio Vista may reasonably
request. Each of the Seller will, upon receipt of notice from Rio Vista of any
event requiring suspension of the use of the prospectus included as part of the
Registration Statement, immediately discontinue disposition of common units
pursuant to the Registration Statement until Seller’s receipt of the copies of the
supplemented or amended prospectus or receipt of notice that no supplement or
amendment is required. Each of the Seller covenants and agrees that it will comply
with the prospectus delivery requirements of the Securities Act of 1933 as
applicable to it or comply with the provisions of an exemption from such prospectus
delivery requirements in connection with sales of common units pursuant to the
Registration Statement.
L. Paragraph 12.5 of the Agreement provides as follows:
12.5 Value of Purchase Price Units; Alternate Payment. On the date
the Registration Statement is declared effective by the SEC (the “Registration
Date”), if the closing price of Rio Vista’s common units as reported by the
NASDAQ Stock Market (the “Registration Date Price”) is less than eighty
percent (80%) of such price as so reported on the Closing Date (the “Closing
Date Price”), Seller shall have the option for a period of thirty (30) days to
rescind the transactions contemplated by this Agreement unless Buyer agrees to
deliver to the Seller either (i) additional common
units of Rio Vista
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(the “Additional Units”) in such number as
necessary so that the total value of the Purchase Price Units and the Additional
Units, in each case based on the Registration Date Price, is at least eighty
percent (80%) of the value of the Purchase Price Units based on the Closing Date
Price or (ii) additional cash (the “Additional Cash”) in such amount as
necessary so that the total value of the Purchase Price Units, based on the
Registration Date Price, together with the Additional Cash, is at least eighty
percent (80%) of the value of the Purchase Price Units based on the Closing Date
Price. In lieu of delivery of Additional Units or Additional Cash to supplement
the Purchase Price Units, Buyer shall have the alternate option to pay the entire
value of the Purchase Price Units based on the Closing Date Price in cash (the
“All Cash Payment”), provided that Buyer makes the All Cash Payment in full
within ten (10) business days following an election by Seller to rescind as
provided above. Upon delivery of the All Cash Payment to the Seller, all Purchase
Price Units shall be returned to Buyer and/or cancelled by Rio Vista.
M. Paragraph 18.1.4 of the Agreement provides as follows:
18.1.4 by Seller by written notice to the other parties if (i) the
representations and warranties of Buyer shall not have been true and correct in all
respects (in the case of a representation or warranty containing a materiality
qualification) or in all material respects (in the case of a representation or
warranty without a materiality qualification) as of the date when made, (ii) if any
of the conditions set forth in Section 9 shall not have been, or if it
becomes apparent that any of such conditions will not be, fulfilled by 5:00 p.m.
Central Time on October 22, 2007, unless such failure shall be due to the failure
of Company or Seller to perform or comply with any of the covenants, agreements or
conditions to be performed or complied with by them prior to the Closing, (iii) if
Seller discovers any material liability or misrepresentation of Buyer not disclosed
by Buyer to Seller directly or in any public filing before June 28, 2007, or (iv)
if Buyer’s market capitalization as reflected on the NASDAQ Stock Market drops in
excess of 20% following the execution of the Letter of Intent prior to Closing; or
N. The parties desire to amend the Agreement.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. The Agreement is amended as follows:
(a) The title of the Agreement shall be “Membership Interest Purchase and Sale
Agreement.” Additionally, (i) all references throughout the Agreement to the Company as a
corporation shall be to the Company as a limited liability company; (ii) all references
throughout the Agreement to the directors of the Company shall refer to the managers of the
Company; (iii) all references throughout the Agreement to the shareholders of the Company
shall refer to the members of the Company; and (iv) all references throughout the
Agreement to the shares of the Company shall refer to the membership interests of the
Company.
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(b) Schedules 2.1, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 2.12, 2.14, 2.15, 2.16,
2.17, 2.18, 2.20, 2.21, 2.22, 2.23, 2.24, 2.25, 2.26, 2.27, 3.1, and7.6 are attached
hereto.
(c) Paragraph 1.1.1 of the Agreement is deleted in its entirety and the following is
substituted therefor:
1.1.1 Subject to Section 1.1.2 and pursuant to Schedule 1.1.1, at
Closing, Buyer will pay Seller $3,000,000 in cash or other immediately
available funds and Rio Vista will deliver to Shareholders ninety-one
thousand nine hundred nine-six (91,996) common units of Rio Vista (the
“Purchase Price Units”).
(d) Paragraph 7.3 of the Agreement is deleted in its entirety and the following is
substituted therefor:
7.3 During the pre-Closing period, the Company, the Shareholders and
Seller shall promptly notify the Buyer of:
(e) Paragraph 10.4.1(b) of the Agreement is deleted in its entirety and the following is
substituted therefore:
b) Buyer Adjustments. The Final Settlement Statement shall
incorporate the following adjustments in favor of Buyer:
(i) All proceeds received by Seller or Shareholders (net of
applicable Taxes and royalties) after the Effective Time which are
attributable, in accordance with GAAP, to production from the Oil
and Gas Assets during the period from and after the Effective Time;
and
(ii) All capital costs, expenses, and any Taxes allocable to
Company and that are attributable to the Oil and Gas Assets for
periods prior to the Effective Time.
(f) Paragraph 11.6 of the Agreement is deleted in its entirety and the following is
substituted therefor:
11.6 Buyer’s Agreement to Indemnify. Buyer and Company shall, on the
date of Closing, agree, following the Closing, to indemnify and hold Seller and
Shareholders, and their respective successors and permitted assigns harmless from
and against any and all claims, obligations, actions, liabilities, damages, costs
or expenses, (a) resulting from any breach of any representation, warranty,
covenant or agreement of Buyer contained in this Agreement or (b) except as
otherwise provided herein, relating to the conduct of the Company’s business after
the Closing or to the Membership Interests or the Oil and Gas Assets arising after
the Closing. Notwithstanding any provision in this Agreement or its attachments to
the
contrary, Buyer agrees that subsequent to Closing the Company shall continue
to indemnify Seller and Shareholders to the full extent any such indemnification
was provided to any of them under Company’s Bylaws and/or Articles of Incorporation
in effect as of the date of this Agreement as previously furnished to Buyer.
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(g) Paragraph 12.1 of the Agreement is deleted in its entirety and the following is
substituted therefor:
12.1 Knowledge Respecting Buyer. Each Shareholder represents and
acknowledges that (a) he is a sophisticated investor with knowledge and experience
in business and financial matters, knows, or has had the opportunity to acquire,
all information concerning the business, affairs, financial condition and prospects
of Rio Vista which it deems relevant to make a fully informed decision regarding
the consummation of the transactions contemplated hereby and is able to bear the
economic risk and lack of liquidity inherent in holding the Purchase Price Units
and (b) it has accessed copies of all Forms 10-K, 10-Q and 8-K, and all proxy
statements, filed by Rio Vista and available at xxx.xxx.xxx. Without
limiting the foregoing, each Shareholder understands and acknowledges that neither
Rio Vista nor anyone acting on its behalf has made any representations or
warranties other than those contained herein respecting Rio Vista or the future
conduct of Rio Vista’s business or of Company’s business, and neither Shareholder
has relied upon any representations or warranties other than those contained herein
in the belief that they were made on behalf of Rio Vista.
(h) Paragraphs 12.2 and 12.2.1 of the Agreement are deleted in their entirety and the
following is substituted therefor:
12.2 Status of Units to be Issued. Each Shareholder agrees,
acknowledges and confirms that he has been advised and understands as follows:
12.2.1 Each Shareholder is acquiring the Purchase Price Units to be
issued to it for his own account and without a view to any distribution or
resale thereof, other than a distribution or resale which, in the opinion
of counsel for either Shareholder (which opinion shall be satisfactory in
form and substance to Rio Vista), may be made without violating the
registration provisions of the Securities Act of 1933, as amended (the
“Securities Act”) or any applicable state securities or “blue sky”
laws. Each Shareholder acknowledges the Purchase Price Units are
“restricted securities” within the meaning of Rule 144 under the Securities
Act and have not been registered under the Securities Act or any state
securities laws and thereafter must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. Each Shareholder is an “accredited investor” as
defined in Rule 501(a) promulgated under the Securities Act.
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(i) Paragraph 12.2.4 of the Agreement is deleted in its entirety and the following is
substituted therefor:
12.2.4 Rio Vista and its transfer agent may refuse to effect a transfer of any
of the Purchase Price Units by either Shareholder or any of their successors,
personal representatives or assigns otherwise than as contemplated hereby in this
Agreement.
(j) Paragraph 12.4 of the Agreement is deleted in its entirety and the following is
substituted therefor:
12.4 Cooperation by Shareholders. The Shareholders will cooperate
with Rio Vista as reasonably requested by Rio Vista in connection with the
preparation and filing of any Registration Statement. Each of the Shareholders will
furnish to Rio Vista such information regarding itself, the common units held by
it, and the intended method of disposition of such common units as shall be
reasonably required to cause the effectiveness of the Registration Statement and
will execute and deliver such documents in connection with the Registration
Statement as Rio Vista may reasonably request. Each of the Shareholders will, upon
receipt of notice from Rio Vista of any event requiring suspension of the use of
the prospectus included as part of the Registration Statement, immediately
discontinue disposition of common units pursuant to the Registration Statement
until such Shareholder’s receipt of the copies of the supplemented or amended
prospectus or receipt of notice that no supplement or amendment is required. Each
of the Shareholders covenants and agrees that he will comply with the prospectus
delivery requirements of the Securities Act of 1933 as applicable to him or comply
with the provisions of an exemption from such prospectus delivery requirements in
connection with sales of common units pursuant to the Registration Statement.
(k) Paragraph 12.5 of the Agreement is deleted in its entirety and the following is
substituted therefore:
12.5 Value of Purchase Price Units; Alternate Payment. On the date
the Registration Statement is declared effective by the SEC (the “Registration
Date”), if the closing price of Rio Vista’s common units as reported by the
NASDAQ Stock Market (the “Registration Date Price”) is less than eighty
percent (80%) of $10.87 (the “Price”), Buyer agrees to deliver to the
Seller either (i) additional common units of Rio Vista (the “Additional
Units”) in such number as necessary so that the total value of the Purchase
Price Units and the Additional Units, in each case based on the Registration Date
Price, is at least eighty percent (80%) of the value of the Purchase Price Units
based on the Price or (ii) additional cash (the “Additional Cash”) in such
amount as necessary so that the total value of the Purchase Price Units, based on
the Registration Date Price, together with the Additional Cash, is at least eighty
percent (80%) of the value of the Purchase Price Units based on the Price. In lieu
of delivery of Additional Units or Additional Cash to supplement the Purchase Price
Units, Buyer shall have the alternate option to pay the entire value of the
Purchase Price Units based on the Price in cash (the “All Cash Payment”).
Upon delivery of the All Cash Payment to the Seller, all Purchase Price Units shall
be returned to Buyer and/or cancelled by Rio Vista.
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(l) Paragraph 18.1.4 of the Agreement is deleted in its entirety and the following is
substituted therefore:
18.1.4 by Seller by written notice to the other parties if (i) the
representations and warranties of Buyer shall not have been true and correct in all
respects (in the case of a representation or warranty containing a materiality
qualification) or in all material respects (in the case of a representation or
warranty without a materiality qualification) as of the date when made, (ii) if any
of the conditions set forth in Section 9 shall not have been, or if it
becomes apparent that any of such conditions will not be, fulfilled by 5:00 p.m.
Central Time on October 22, 2007, unless such failure shall be due to the failure
of Company or Seller to perform or comply with any of the covenants, agreements or
conditions to be performed or complied with by them prior to the Closing, or (iii)
if Seller discovers any material liability or misrepresentation of Buyer not
disclosed by Buyer to Seller directly or in any public filing before June 28, 2007.
2. Capitalized terms not otherwise defined in this Amendment shall have the meanings given to
such terms in the Agreement.
3. As modified by this Amendment, the Agreement is in full force and effect.
4. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns.
5. This Amendment shall be governed by and construed and enforced in accordance with the laws
of the State of Oklahoma.
6. This Amendment may be signed in counterparts and may be delivered by facsimile, and each
counterpart and facsimile will be considered an original, but all of which, when taken together,
shall constitute one instrument.
Signature page to follow.
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| Buyer Rio Vista GO LLC |
||||
| By: | /s/ Xxx Xxxxxxxx | |||
| Xxx Xxxxxxxx, Manager | ||||
| Rio Vista Energy Partners, L.P. |
||||
| By: | Rio Vista GP LLC, General Partner. | |||
| By: | /s/ Xxx Xxxxxxxx | |||
| Xxx Xxxxxxxx, Acting CEO | ||||
| Company GO, LLC |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Xxxx Xxxxxx, President | ||||
| Seller Outback Production, Inc. |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Xxxx Xxxxxx, President | ||||
| Shareholders |
||||
| /s/ Xxxx Xxxxxx | ||||
| Xxxx Xxxxxx | ||||
| /s/ Xxxx Xxxx | ||||
| Xxxx Xxxx | ||||
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