Exhibit 2.4
PARTNERSHIP INTEREST PURCHASE AGREEMENT
THIS PARTNERSHIP INTEREST PURCHASE AGREEMENT (this "Agreement") is made
and entered into as of the 1st day of March, 2006, between, David M.
Klausmeyer ("Seller"), and Sand Hills Partners L.L.C., a Delaware Limited
Liability Company, ("Buyer").
RECITALS:
A. Seller is the general partner of Sand Hills General Partners, a
Texas General Partnership ("SHGP"), and owns a thirty seven percent (37%)
partnership interest therein ("Seller's Partnership Interest").
B. SHGP owns shares of companies contributed by its general
partners and shares obtained or to be obtained through assumption of
certain debts (collectively, the "SHGP Assets").
C. Buyer desires to acquire from the Seller, and Seller desires to
sell to Buyer, Seller's Partnership Interest, all on the terms and
subject to the conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
ARTICLE I
PURCHASE OF PARTNERSHIP INTEREST
1.1 Acquisition of Transferred Partnership Interest. Upon the terms
and subject to the conditions contained herein, and for the consideration
set forth in Article II herein below, Seller, through delivery of the
Bill of Sale in form attached hereto as Exhibit 1, sells and transfers to
Buyer, and Buyer purchases and acquires from Seller, all of Seller's
right, title and interest in, to Seller's Partnership Interest as of the
date hereof (the "Transferred Partnership Interest"), free and clear of
all security interests, liens, restrictions, claims, encumbrances or
charges of any kind, other than those set forth in the Partnership
Agreement (as hereinafter defined) or restrictions under any federal or
state securities laws (collectively, "Encumbrances").
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. In consideration for the Transferred
Partnership Interest sold and transferred to Buyer, and upon the terms
and conditions contained herein, Buyer shall pay or cause to be paid to
or for the account of Seller (as set forth in Section 2.2 below), One
Million Five Hundred Thousand Dollars ($1,500,000) (the "Purchase
Price").
2.2 Payment of Purchase Price. Buyer shall pay the Purchase Price
to Seller through delivery of its promissory note in the form attached
hereto as Exhibit 2 (Buyer's Note"), which shall be accompanied by
Buyer's Pledge Agreement in form attached hereto as Exhibit 3 (""Pledge
Agreement"). Buyer's Note performance under Buyer's Note shall be
guaranteed by SHGP, which guaranty shall be secured by the pledge of
certain shares of stock held by SHGP. SHGP's guaranty and pledge shall be
evidenced by the Guaranty and Pledge Agreement in form attached hereto as
Exhibit 4 ("Guaranty and Pledge Agreement").
2.3 Taxes and Costs. All taxes, stamp duties, notarial,
registration and recording fees resulting from or relating to the sale
and transfer of the Transferred Partnership Interest as contemplated
hereby shall be paid by Buyer.
ARTICLE III
CLOSING; CLOSING DELIVERIES
3.1 Closing. The "Closing" means the time at which the Buyer and
Seller consummate the transactions contemplated by Articles 1 and 2
herein above. The Closing shall take place at such time and place as
shall mutually be agreed upon by Seller and Buyer.
3.2 Closing Deliveries of the Selling Parties. At the Closing,
Seller shall deliver to the Buyer:
(a) A Bill of Sale and Assignment, duly executed by Seller,
conveying all of Seller's right, title and interest in, to
and under the Transferred Partnership Interest to Buyer in
the form of Exhibit 5 hereto;
(b) A counterpart signature page to this Agreement, duly
executed by Seller;
(c) A counterpart signature page to the Pledge Agreement and
the Guaranty and Pledge Agreement in form of Exhibits 3 and 4
hereto.
(d) Such other instruments of sale, transfer, conveyance and
assignment as Buyer may reasonably request to effect the
transactions contemplated hereby.
3.3 Buyer's Closing Deliveries. At the Closing, in addition to any
other documents specifically required to be delivered pursuant to this
Agreement, Buyer shall, deliver to the Seller the following:
(a) Buyer's Note and Pledge Agreement (Exhibits 2 and 3);
(b) SHGP's Guaranty and Pledge Agreement (Exhibit 4); and
(c) A counterpart signature page to this Agreement, duly
executed by Buyer and SHGP.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Buyer to enter into this Agreement and to consummate
the transactions contemplated hereby, Seller represents and warrants to
Buyer, and Buyer, in agreeing to pay the Purchase Price and to otherwise
consummate the transactions contemplated by this Agreement has relied
upon such representations and warranties to Buyer, as follows:
(a) Seller is the lawful owner of Seller's Partnership Interest, free and
clear of all security interests, liens, encumbrances, equities and other
charges;
(b) Seller is not a party to any agreement, written or oral, creating
rights in respect to Seller's Partnership Interest in any third person;
(c) There are no existing warrants, options, purchase agreements,
redemption agreements, restrictions of any nature, calls or rights to
subscribe of any character relating to Seller's Partnership Interest
other than those contained in the Partnership Agreement, which are
addressed by the Resolutions attached hereto as Exhibit 6;
(d) Seller's Partnership Interests are assessable only as provided in the
Partnership Agreement;
(e) The execution and delivery by Seller of this Agreement and transfer
of Seller's Partnership Interests to Buyer does not contravene or
constitute a default under any agreement, indenture, commitment,
provision of the Partnership Agreement that have not otherwise been
addressed in the Resolutions attached hereto as Exhibit 7.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
As an inducement to Seller to enter into this Agreement and to consummate
the transactions contemplated hereby, Buyer represents and warrants to
Seller, and Seller in agreeing to consummate the transactions
contemplated by this Agreement has relied upon such representations and
warranties, as follows:
5.1 Organization of Buyer. Buyer is a limited liability company
duly organized and validly existing under the laws of the State of
Delaware and is qualified to do business as a foreign limited liability
company in good standing in each other state wherein the nature of its
business or activities requires such qualification.
5.2 Authorization. Buyer has full limited liability company power
and authority to (a) execute and deliver this Agreement, Buyer's Note and
Pledge Agreement and to perform its obligations hereunder and thereunder,
and (b) own and operate its assets, properties and business and carry on
its business as presently conducted. The execution, delivery and
performance of this Agreement and Buyer's Note and Pledge Agreement have
been duly authorized by all necessary action on the part of Buyer,
including member authorization.
5.3 Validity; Binding Effect. This Agreement and Buyer's Note and
Pledge Agreement have each been duly and validly executed and delivered
by Buyer and each constitutes a valid and legally binding obligation of
Buyer, enforceable against Buyer in accordance with their respective
terms.
5.4 Non-contravention. The execution, delivery and performance by
Buyer of this Agreement and Buyer's Note and Pledge Agreement, the
consummation of the transactions contemplated hereby and thereby and the
compliance with or fulfillment of the terms and provisions hereof and
thereof or of any other agreement or instrument contemplated hereby or
thereby, do not and will not (a) conflict with or result in a breach of
any of the provisions of the Articles of Organization or Operating
Agreement of Buyer, (b) contravene any Law which affects or binds Buyer
or any of its properties, (c) conflict with, result in a breach of,
constitute a default under, or give rise to a right of termination or
acceleration under any material contract, agreement, note, deed of trust,
mortgage, trust, lease, Governmental or other license, permit or other
authorization, or any other material instrument or restriction to which
Buyer is a party or by which any of its properties may be affected or
bound, or (d) require Buyer to obtain the approval, consent or
authorization of, or to make any declaration, filing or registration
with, any third party or any Governmental authority which has not been
obtained in writing prior to the date of this Agreement.
5.5 Securities Matters.
(a) Buyer understands and agrees that the Transferred
Partnership Interest has not been registered under the
Securities Act of 1933, as amended (the "Act"), or any state
securities act and, therefore, may not be resold unless
registered under such acts or unless an exemption from
registration is available.
(b) Buyer is purchasing the Transferred Partnership Interest
for investment only for its own account and not with a view
to the distribution or resale thereof.
(c) Buyer acknowledges that the Transferred Partnership
Interest is a speculative investment which involves a risk of
loss by it of its entire investment.
(d) Buyer is an "accredited investor" as defined in Rule
501(a) promulgated under the Act and has sufficient knowledge
and experience in business and financial matters to evaluate
the merits and risks of an investment in the Transferred
Partnership Interest.
5.6 Disclosure. None of the representations or warranties of Buyer
contained in this Article V is false or misleading in any material
respect or omits to state a fact herein or therein necessary to make the
statements made herein or therein not misleading in any material respect.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices, requests, consents and other
communications hereunder ("Notice") shall be in writing and shall be
deemed to have been given (a) if mailed, the date of receipt of such
Notice when sent via first class United States registered mail, return
receipt requested, postage prepaid to the address listed below for the
party to whom the Notice is being sent ("Notice Party"); (b) if hand
delivered or delivered by courier, upon actual delivery of such Notice to
the Notice Party at the address listed below for such Notice Party; or
(c) if sent by facsimile, on the first business day after the date of the
sender's receipt of a confirmed transmission of such Notice to the Notice
Party at the facsimile number, if any, listed below for such Notice Party
provided the party giving such Notice mails a copy of such Notice within
two days after the transmission of such Notice by facsimile to the Notice
Party. The addresses and facsimile numbers for each party to this
Agreement, as of the date hereof, are set forth in each parties signature
page hereto:
Any party may change its address or facsimile number by providing written
notice, in accordance with the foregoing provisions of this Section 6.1,
to each other party of such change.
6.2 Expenses.
(a) Each party hereto will pay all costs, fees and expenses
incident to its negotiation and preparation of this Agreement
and to its performance and compliance with all agreements
contained herein on its part to be performed, including the
fees, expenses and disbursements of its respective counsel
and accountants.
(b) In any legal action between the parties arising out of or
related to this Agreement, the prevailing party shall be
entitled to recover its costs and expenses, including
reasonable accounting and legal fees.
6.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, without
regard to such jurisdiction's conflict of laws principles.
6.4 Partial Invalidity. In case any one or more of the provisions
contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement,
but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision or provisions had never been contained herein.
6.5 Assignment. Seller may not assign this Agreement or any rights
hereunder, to any other party without the prior written consent of Buyer.
Buyer may assign its rights hereunder to a majority-owned Affiliate of
Buyer, provided, however, that Buyer shall not make any such assignment
of its rights without having given Seller written notice of the proposed
assignment, which notice shall identify the beneficial owners of such
Affiliate (the "Assignment Notice"). For a period of thirty (30) days
after the giving of the Assignment Notice, Seller shall be entitled to
give Buyer written notice of rejection of such proposed Affiliate (the
"Rejection Notice") if Seller, upon the advice of legal counsel and in
his reasonable, good faith judgment, believes that the assignment to such
proposed Affiliate would jeopardize Seller's interests in the Note and
Pledge Agreement. Seller hereby also agrees that Buyer may assign its
rights to the current partnership interest in SHGP owned by Buyer to a
majority-owned Affiliate of Buyer on the terms set forth in this Section
6.5 above, and Seller waives any and all right Seller may have to acquire
such partnership interest under the Partnership Agreement, along with any
co-sale or rights of first refusal of Seller. Notwithstanding anything
else to the contrary herein contained, if any party hereto makes an
assignment pursuant to this Section 6.5, it shall not be released from
any of its obligations under this Agreement.
6.6 Successors and Assigns. Subject to the provisions of Section
6.5 above, this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
6.7 Execution in Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be considered an original
counterpart, and all of which shall be considered to be but one agreement
and shall become a binding agreement when each party shall have executed
one counterpart and delivered it to the other party hereto.
6.8 Titles and Headings; Rules of Construction. Titles and headings
to sections herein are inserted for convenience of reference only and are
not intended to be a part of or to affect the meaning or interpretation
of this Agreement. Whenever the context so requires the use of or
reference to any gender includes the masculine, feminine and neuter
genders; and all terms used in the singular shall have comparable
meanings when used in the plural and vice versa.
6.9 Entire Agreement; Amendments and Waivers. This Agreement
contains the entire understanding of the parties hereto with regard to
the subject matter contained in this Agreement and supersedes all prior
agreements or understandings of the parties. The parties, by mutual
agreement in writing, may amend, modify and supplement this Agreement.
The failure of any party to this Agreement to enforce at any time any
provision of this Agreement shall not be construed to be a waiver of such
provision, nor in any way to affect the validity of this Agreement or any
part hereof or the right of such party thereafter to enforce each and
every such provision. No waiver of any breach of this Agreement shall be
held to constitute a waiver of any other or subsequent breach.
6.10 Termination. This Agreement shall terminate and shall be of no
further force or effect (a) upon mutual written agreement of the parties
hereto, or (b) upon payment in full of all amount due under Buyer's Note.
6.11 No Third Party Beneficiaries. This Agreement will not confer
any rights or remedies upon any person other than the parties and their
respective heirs, successors and permitted assigns, as applicable.
6.12 Definitions. For purposes of this Agreement:
(a) "Affiliate" means, with respect to any person or entity,
any person or entity that controls, is controlled by or is
under common control with such person or entity. A person or
entity shall be presumed to have control when it possesses
the power, directly or indirectly, to direct, or cause the
direction of, the management or policies of another person or
entity, whether through ownership of voting securities, by
contract, or otherwise.
(b) "Government" shall mean (or in the case of
"Governmental") shall refer to:
(i) the government of the United States of America;
(ii) the government of any state, county,
municipality, city, town or district of the
United States of America; and
(iii) any ministry, agency, department, authority,
commission, administration, corporation, court,
magistrate, tribunal, arbitrator, instrumentality
or political subdivision of, or within the
geographical jurisdiction of, any government
described in the foregoing subparagraphs (A) and
(B).
(c) "Law" shall mean any of the following of, or issued by,
any Government or Governmental agency: any statute, law, act,
ordinance, code, rule or regulation or any license, permit,
authorization or approval, or any injunction, award, decree,
judgment or order.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
/s/David M. Klausmeyer
David M. Klausmeyer
10811 Brenner Creek Ct.
Houston, Texas, 77079-7300
Sand Hills Partners, L.L.C., a
Delaware Limited Liability Company
/s/ George Jarkesy
George Jarkesy, Managing Member
18205 Burkhardt
Tomball, Texas 77377