Exhibit 2.2
MEMBERSHIP INTEREST PURCHASE
AGREEMENT
THIS MEMBERSHIP INTEREST PURCHASE
AGREEMENT (this “ Agreement ”) is made and
entered into as of the 30 th day of June, 2005, by and among
GLEN L. McALISTER, an individual (the “ Seller
”) and BRONCO DRILLING COMPANY, L.L.C., an Oklahoma limited
liability company (“ Buyer ”).
WITNESSETH
:
WHEREAS, the Seller presently owns
forty-four percent (44%) of the issued and outstanding membership
interests and units in STRATA DRILLING, L.L.C., an Oklahoma limited
liability company (“ Drilling ”), and STRATA
PROPERTY, L.L.C., an Oklahoma limited liability company (“
Property ”, with “Drilling” being
collectively referred to as the “ Companies ”);
and
WHEREAS, the Buyer desires to
purchase from the Seller, and the Seller desires to sell to the
Buyer, all of the Seller’s membership interests and units in
the Companies, subject to the terms and conditions described in
this Agreement.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements described in this Agreement,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Buyer and the
Seller hereby agree as follows:
1. SALE OF MEMBERSHIP
INTERESTS . Subject to the terms and conditions of this
Agreement, the Seller agrees to sell to the Buyer, and the Buyer
agrees to purchase from the Seller, all of the Seller’s
membership interests and units in: (i) Drilling, which represents
forty-four percent (44%) of the issued and outstanding membership
interests and units in Drilling (collectively, the “
Drilling Units ”); and (ii) Property, which represents
forty-four percent (44%) of the issued and outstanding membership
interests and units in Property (collectively, the “
Property Units ”, with the Drilling Units being
collectively referred to as the “ Membership Interests
”), together with any and all rights, privileges and
interests in the Companies resulting from, associated with or
arising from the Membership Interests.
2. PURCHASE OF RESTRICTED
INTERESTS . The Buyer understands that the Membership Interests
are being sold to the Buyer under an exemption from registration
provided by the Securities Act of 1933, as amended (the “
Act ”), and by applicable state securities acts, and
warrants and represents to the Seller that the Membership Interests
being acquired by the Buyer are solely for its own account for
investment purposes only, and are not being purchased with a view
to, or for the resale, distribution, subdivision or
fractionalization thereof, and that the Buyer must bear the
economics associated with the Membership Interests for an
indefinite period of time because the Membership Interests cannot
be resold or otherwise transferred unless subsequently registered
under the Act, or unless an exemption from registration is
available. Further, the Buyer acknowledges and understands that any
certificate that may be issued to the Buyer evidencing the
Membership Interests will bear substantially the following
legend:
The units represented by this
Certificate have not been registered under the United States
Securities Act of 1933 (the “ Act ”) or
registered or qualified under any state securities laws and are
“restricted securities” as that term is defined in Rule
144 under the Act. The
units may not be offered for sale,
sold or otherwise transferred except pursuant to an effective
registration statement under the Act, or pursuant to an exemption
from registration under the Act or state securities laws, or
pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of
the Company. In addition, the rights and obligations of the holder
of this Certificate, and the ability of the holder to transfer the
units represented by this Certificate, are subject to the approval
of the Members of the Company and other restrictions, terms and
conditions of the Amended and Restated Operating Agreement of the
Company, a copy of which can be obtained from the Company upon
written request.
3. CONSIDERATION . The
aggregate purchase price to be paid by the Buyer for the Membership
Interests at Closing shall be Three Million Two Hundred Sixty-five
Thousand and No/100 Dollars ($3,265,000.00), which amount shall be
paid to the Seller in cash or certified funds (the “
Purchase Price ”).
3.1 Real Estate . In
connection with and as consideration for the sale of the Membership
Interests, Seller shall cause Advanced Investments, L.L.C.
(“Investments”) to sell, transfer and convey to Buyer,
that certain real property and improvements situated thereon
located in Oklahoma County, Oklahoma owned by Investments and more
particularly described in Exhibit “B” attached hereto
(the “ Real Property ”), subject to the terms
and conditions described in that certain Real Estate Purchase
Agreement dated even date herewith by and between Buyer and
Investments attached hereto as Exhibit “C” (the “
REPA ”). The execution and delivery of the REPA by
Investments shall be a condition to and a requirement of the
execution and delivery of this Agreement by the Seller.
4. REPRESENTATIONS AND WARRANTIES
OF SELLER . The Seller hereby represents and warrants to Buyer
that the following statements are true and correct as of the date
of this Agreement and will be true and correct as of the Closing
Date (as hereafter defined).
4.1 Authority; Capacity . The
Seller has full power, authority and capacity to execute and
deliver, and to perform his duties and obligations under this
Agreement. This Agreement is the legal, valid and binding
obligation of the Seller and is enforceable against the Seller in
accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors’ rights generally and except that
the availability of equitable remedies, including specific
performance, may be subject to the discretion of the court before
which any proceeding may be brought.
4.2 No Conflicts; Consents .
The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby will not: (i) violate or
conflict with any constitution, statute, regulation, rule,
injunction, judgment, order, permit, decree, ruling, charge, or
other restriction of any government, governmental agency, court or
arbitrator to which the Seller or any of his assets are subject;
(ii) conflict with, result in a breach of, constitute a default
under (or with notice or the lapse of time or both could result in
a breach of or constitute a default), result in the acceleration
of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any
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notice or consent under any
agreement, contract, lease, license, instrument, or other
arrangement to which the Seller is a party or bound or to which any
of his assets are subject; (iii) that could result in the creation
or imposition of any lien, security interest or encumbrance in, to
or on the Membership Interests or any asset of the Seller; or (iv)
require the Seller to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or
governmental agency, creditor or other third party in order to
consummate the transactions contemplated by this Agreement, except
as required in the Companies’ respective operating
agreements.
4.3 Litigation . There are no
claims, demands, filings, hearings, notices of violation,
proceedings, notices or demand letters, investigations,
administrative proceedings, civil, criminal or other actions,
litigation, suits, mediations, arbitrations or other legal
proceedings pending or threatened against the Seller relating to,
resulting from or affecting the Membership Interests or that would
materially impair the ability of the Seller to perform his duties
or obligations under, or to consummate the transactions
contemplated by, this Agreement.
4.4 Title . Except for the
outstanding security interest in favor of the members from which
the Seller purchased the McAlister Interests, the Seller is the
lawful owner of, and has good and marketable title to, the
Membership Interests, free and clear of any and all liens,
restrictions, claims, charges, security interests and encumbrances
(contractual or otherwise) of any kind, nature or type whatsoever.
Investments is the lawful owner of, and has good and marketable
title to, the Real Property, free and clear of all liens,
restrictions, claims, charges, security interests and encumbrances
(contractual or otherwise) of any kind, nature or type
whatsoever.
4.5 Taxes . The Seller has
duly and timely filed all tax returns and reports required to be
filed by the Seller prior to the date of this Agreement and
Investments has duly and timely filed all tax returns and reports
required to be filed by Investments related to or involving the
Real Property prior to the date of the REPA (collectively, the
“ Returns ”) and has duly and timely paid all
taxes that have been incurred or are due and payable pursuant to
such Returns or pursuant to any assessment with respect to taxes in
such jurisdictions, whether or not in connection with such Returns.
No deficiency or proposed adjustment which has not been settled or
otherwise resolved for any amount of tax has been proposed,
asserted or assessed by any taxing authority against the Seller or
Investments. There are no actions, suits, taxing authority
proceedings, or audits now in progress, pending or threatened
against the Seller or Investments, and there are no liens for taxes
(other than for current taxes not yet due and payable) against the
Seller or Investments.
4.6 Membership Interest . The
Membership Interests being purchased by the Buyer under this
Agreement respectively represent forty-four (44%) of the issued and
outstanding membership interests and units in the
Companies.
4.8 No Pending Transactions .
Except for this Agreement, the Seller is not a party to or bound by
any agreement, undertaking or commitment to sell, lease, assign,
transfer or exchange any of the Membership Interests to any other
entity or person.
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4.9 Full Disclosure . No
representation or warranty of the Seller in this Agreement or any
agreement, document or scheduled executed or delivered in
connection with this Agreement contains any untrue statement of a
material fact or omits to state any material fact which makes any
such representation or warranty misleading.
4.10 Acknowledgement . Seller
understands and acknowledges that Buyer is in negotiations with the
holders of the other membership interests in Drilling and Property
to purchase their interests and that the terms of such purchases,
if agreed to, may differ from the terms contained herein, and that
such differences may be material.
5. REPRESENTATIONS AND WARRANTIES
OF BUYER . The Buyer hereby represents and warrants to the
Seller that the following statements are true and correct as of the
date of this Agreement and will be true and correct as of the
Closing Date.
5.1 Organization . The Buyer
is duly organized, validly existing and in good standing under the
laws of the State of Oklahoma, and is duly registered or qualified
to do business, and are in good standing, in each jurisdiction in
which the nature of its business or properties requires such
registration or qualification, except where the failure to so
register or qualify would have a material adverse
effect.
5.2 Authority; Capacity . The
Buyer has full power and authority to execute and deliver, and to
perform its duties and obligations under, this Agreement. The
execution and delivery of, the performance of its obligations
under, and the consummation of the transactions contemplated by,
this Agreement and any agreement, document, instrument or
certificate executed or to be executed in conne
