This LLC Membership Agreement involves
Title: MEMBERSHIP INTEREST PURCHASE AGREEMENT
Governing Law: Florida Date: 2/6/2009
Industry: Misc. Financial Services Sector: Financial
MEMBERSHIP INTEREST PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (Agreement) is made and entered into as of January 23, 2009, by and among UTEK REAL ESTATE HOLDINGS, INC. ( hereinafter “Buyer”) and MARION CITY INVESTMENT CORPORATION (hereinafter individually a “Seller” and collectively the “Sellers”) and CORTEZ 114, LLC, (the Company).
W I T N E S S E T H :
WHEREAS, Seller owns all of the outstanding membership interests (the” Interests”) in CORTEZ 114, LLC, A FLORIDA LIMITED LIABILITY COMPANY (the Company).
WHEREAS, the Company holds real estate as shown on Schedule A attached hereto (the Property); and
WHEREAS, Seller desires to sell, and Buyer desires to purchase all of the Interests of the Company owned by Seller, subject to the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the premises, the mutual representations, warranties, covenants, and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
PURCHASE AND SALE
1.01 Agreement to Purchase and Sell Interests . Seller agrees to sell, transfer and assign to the Buyer, and the Buyer agrees to purchase, on the Closing Date (as defined in Section 3.04 below), all the Interests, free and clear of all security interests, pledges, liens, encumbrances, charges, or restrictions on the ownership, use, voting, transfer.
1.02 Liabilities of Seller . Buyer shall not, as a result of the execution and consummation of this Agreement, assume, discharge, or become liable for any of the liabilities, obligations, debts, contracts, or other commitments of Seller of any kind or nature whatsoever, known or unknown, fixed, accrued, contingent, or otherwise, arising out of any transaction entered into, or any state of facts existing prior to, at, or subsequent to the Closing Date. Seller shall pay and discharge, or make adequate provision for the payment and discharge, of all of its liabilities, obligations, debts, contracts, or other commitments prior to, at, and/or subsequent to the Closing Date.
2.01 Purchase Price .
The Purchase Price of One Million Seven Hundred Thousand Dollars ($1,700,000.00) to be paid by the Buyer for One Million Five Hundred Thousand Dollars ($1, 500,000.00) in Shares of UTEK Corporation. The number of shares of Buyer’s Common Stock that Sellers shall receive will be determined based on the closing price of Common Stock ending one trading day before the date of this Agreement. The balance of the purchase price shall be paid in shares of stock from the NeoStem, Inc.
2.02 Consideration .
Contemporaneously with the transfer and assignment from Seller to Buyer of the Interests and the Parties’ delivery of the various certificates, instruments and documents referred to herein, Buyer hereby delivers to Sellers the Purchase Price in the amount to be paid to each Seller as specified in Section 2.01.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer all of the following, each of which is material to and is being relied upon by Buyer. The representations and warranties of Seller hereunder are made based upon the knowledge of the directors and officers of Seller as set forth in this Section.
3.01 Organization and Standing . Seller is a corporation duly organized, validly existing, and in good standing under the laws of the State of Florida with full power and authority to own its properties and assets and to conduct its business as now conducted or proposed to be conducted. The Company is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Florida with full power and authority to own its properties and assets and to conduct its business as now conducted or proposed to be conducted.
3.02 Corporate Authority . Seller and the Company each have the full right, power, legal capacity, and authority to enter into and perform each of its obligations under this Agreement and to consummate the transactions contemplated by this Agreement in accordance with the terms of this Agreement.
3.03 Title to Assets . Schedule B attached hereto contains a true and correct list and a description of all assets of the Company, (collectively, the Assets). All of the Assets are owned by the Company free and clear of all Liens and not subject to any leases.
3.04 Real Estate .
A. Title Insurance . Buyer will at Buyer’s expense obtain a Marketability Title Insurance Policy (ALTA Form “B”) (herein “Policy”) (unqualified, except for Permitted Exceptions on the Property in the full amount of the Purchase Price.
B. Closing . Subject to curing defects in title, the curative period for curing encroachments and survey defects as hereinafter provided, and all other conditions as herein provided, this sale shall be closed and the deed shall be delivered on or before February 4, 2009. This sale shall be closed at the offices of Buyer’s legal counsel or at such other location in Tampa, Florida acceptable to the parties hereto.
C. Costs . Any and all Transfer Costs shall be shared equally between the Buyer and the Buyer.
D. Real Estate Taxes And Assessments, And Prorations . Deleted.
E. Possession and Feasibility Study . Company states that it has exclusive occupancy and possession of the Property and, Seller and Company does warrant and represent that the property is currently zoned as so on Schedule C.
F. Survey . Buyer may obtain a survey. Seller and Company shall have a period of sixty (60) days after receipt of Buyer’s notice of Encroachments or Survey Defects to cure such Encroachments or Survey Defects to the satisfaction of the attorney for Buyer, and, Survey Defects to the satisfaction of the attorney for Buyer, and, subject to the other terms and provisions of this Agreement, this sale shall be closed within ten (10) days after written notice of such curing to Buyer or its attorney; provided, however, no such closing shall be earlier than the date of closing as hereinafter provided. Seller and Company shall use all reasonable diligence to attempt to cure any such Encroachments or Survey defects. In the event Seller fails to cure any such Encroachments or Survey Defects of which written notice has been given under and pursuant to the terms and provisions hereof within the time limit aforesaid, Buyer may, at its option, either (a) terminate this Agreement and upon such termination all monies deposited by Buyer under the terms hereof, together with all interest earned thereon, shall be returned to Buyer and thereupon all rights and liabilities arising returned to Buyer and thereupon all rights and liabilities arising hereunder shall terminate, or (b) waive all conditions and, subject to all the other terms and provisions of this Agreement, close this transaction in the same manner as if no such Encroachments or Survey Defects had been found.
G. Lien And Possession Affidavit . Buyer to receive an Owner’s Affidavit in and Survey Affidavit in content and form reasonable acceptable to Buyer.
H. Representations And Warranties, And Further Agreement of Seller . Seller does hereby represent and warrant to, and covenant and agree with Buyer as follows:
(i) Real estate taxes and tangible personal property taxes and assessments on the Property for the year 2008 and all prior years have been paid in full or will be paid.
(ii) No work has been done or will be performed , and no materials have been or will be furnished prior to closing that might give rise to a mechanic’s lien against the Real Property and the Improvements thereon subsequent to closing.
(iii) At closing there will be no parties in possession of the Property or any portion thereof except as agreed between the parties.
(iv) That to Seller’s best knowledge, after inquiry, no storage tanks for gasoline or any other substance is or was located on the Real Property at any time during Seller’s ownership thereof.
(v) Seller hereby represents and warrants to the best of it’s knowledge that the Property is not now and has never been used to generate, manufacture, refine, transport, treat, store, handle, dispose, transfer, produce, process or in any manner deal with Hazardous Materials (as that term is hereinafter defined); that no Hazardous Materials have ever been installed, placed or in any manner dealt with on the Property ; and that no owner of the Property or any tenant, subtenant, occupant, prior tenant, prior subtenant, prior occupant or person (collectively, “Occupant”) has received any notice or advise from any governmental agency or any Occupant with regard to Hazardous Materials on, from or affecting the Property. The term “Hazardous Materials” as used herein includes, without limitation, hazardous materials, hazardous wastes, hazardous or toxic substances, polychlorinated biphenyls or related or similar materials, asbestos or any material containing asbestos, or any other substance or materials as may be defined as a hazardous or toxic substance by any federal, state or local environmental law, ordinance, rule, or regulations, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et. seq.), the Hazardous Materials Transportation Act, as amended (42 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 1251, et seq.), the Clean Air Act (42 U.S.C. Sections 7401, et seq.), Chapter 376, Florida Statutes, and in the regulations adopted and publications promulgated pursuant thereto. Based upon an inspection of the Property by a person experienced in the identification of asbestos-containing materials, and who has bulk sampled and analyzed any suspect materials by a technique acceptable to the U.S. Environmental Protection Agency, Seller represents and warrants that there are no asbestos-containing materials, whether in the nature of thermal insulation produces, such as pipe, boiler or breech coverings, wraps or blankets or sprayed-on or troweled-on products, in, on or upon the Property. Based upon an inspection by a person experienced in the identification of Urea Best knowledge, after inquiry, (i) none of the Property has been used as a sanitary land fill; and (ii) no toxic materials or other hazardous waste have been buried, spilled or disposed of on or within the boundaries of the Property, or have leaked or otherwise been discharged onto the Property. The Seller enter into indemnify agreement for any environmental matters that may arise after the closing.
(vi) That no written notice from any governmental body has been served upon Seller claiming any violation of any law, ordinance, code or regulation or requiring or calling attention to the need for any work, repairs, constructions, alterations or installation on or in connection with the Property in order to comply with any laws, ordinances, codes or regulations with which Seller has not complied. If there are any such notices with which Seller has complied, Seller shall provide Buyer with copies thereof.
(vii) If Seller is notified of any legal or governmental or administrative act or proceeding instituted against the Property prior to closing, Seller shall promptly give notice thereof to Buyer.
(viii) The execution and delivery of this Agreement and the consummation of the transaction contemplated hereby will not (i) constitute a default under any instrument, document or obligation to which Seller is now or may become a party or by which Seller may be bound or affected, or (ii) violate any litigation to which Seller is a party.
(ix) Seller has not knowingly made any untrue statement of material fact or representation in connection with this Agreement, and all items, things, documents and instruments to be delivered by Seller to Buyer under the terms hereof, and which may be transferred by Seller to Buyer under the terms hereof, are and shall be true, correct and complete copies of what they purport to be. Said items, things, instruments and documents have not been amended or modified other than as so delivered, furnished and transferred to Buyer.
It is understood and agreed that this Agreement is specifically conditioned upon all the foregoing representations and warranties of Seller as set forth in this Agreement as being true and correct at closing; and if any of the foregoing representations or warranties of Seller as set forth are not true and correct at the time of closing, Buyer may (i) terminate this Agreement, and upon such termination all monies deposited by Buyer under the terms hereof, together thereupon all rights and liabilities arising hereunder shall terminate, or (ii) pursue all available remedies against Seller, including but not limited to an action for specific performance, or (iii) waive any representation or warranty contained in this Agreement and proceed to closing.
K. Attorneys Fees And Costs . In the event of any litigation arising out of this Agreement, the prevailing party shall be entitled to recover all costs incurred in connection with such litigation, including reasonable attorneys’ fees, and together with all costs, including reasonable attorneys’ fees, for any and all appellate proceedings.
L. Survival . It is understood and agreed that whether or not it is specifically so provided herein, any provision of this Agreement which by its nature and effect is required to be observed, kept or performed after the closing of the purchase of the Property as herein provided shall survive the closing of the purchase of the Property as herein provided and the delivery of the Deed hereunder, and shall not be merged therein but shall remain binding upon and for the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns until fully observed, kept or performed.
M. Miscellaneous .
(i) Litigation and Disputes . There are no claims, actions, suits or proceedings pending or, to the knowledge of Seller, threatened (or, to the knowledge of Seller, any governmental or regulatory investigation pending or threatened) against the Company or any Assets, properties or rights of the Company, before any court, arbitrator or administrative, governmental or regulatory authority or body, domestic or foreign. None of the Company or any of its Assets, properties or rights are subject to any outstanding injunction, order, decree, ruling or charge.
(ii) Full Disclosure . Seller does not have any knowledge of any specific events, transactions, or other facts (other than general economic or industry conditions) which, either individually or in the aggregate, would give rise to circumstances or conditions that might have a material adverse effect on the Company, Buyer’s ownership of the Company, or Buyer’s use of the Assets of the Company, including, but not limited to, the Software or the Proprietary Rights.
(iii) Accuracy of Information . To Seller’s knowledge, the statements and documents contained in any schedules or other written documents executed and/or delivered by or on behalf of Seller pursuant to terms of this Agreement are, or will be when delivered, true, correct, and complete in all respects, and such schedules and other documents do not omit, or will not omit when delivered, any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. No representation or warranty contained herein or made hereunder contains or will contain any misstatement of a material fact, or omits or will omit to state a material fact required to be stated herein or therein in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading. The schedules and such other documents will be deemed to constitute representations and warranties of Seller under this Agreement to the same extent as if set forth in this Agreement.
(iv) Brokerage . No broker, finder or agent has acted directly or indirectly for Seller in connection with this Agreement or with the transactions contemplated hereby, expect for N/A .
(v) Bankruptcy . No proceedings, whether voluntary or involuntary, are pending or threatened against Seller or the Company, nor is Seller or the Company contemplating any such proceedings, under the bankruptcy laws and/or receivership or similar laws of the United States of America or any state.
(vi) Corporate Documents . True, accurate and complete copies of the Articles of Incorporation and Articles of Organization of Seller and the Company, together with all amendments thereto, have been delivered to Buyer. Seller has furnished to Buyer copies of the corporate record books of Seller and the Company and the same are accurate and complete and reflect all resolutions adopted and all actions taken, authorized or ratified by the stockholders and directors of Seller and the Company, respectively.
(vii) Membership Ownership and Capitalization .
All of the Interests have been duly authorized and are validly issued, fully paid and nonassessable and were not issued in violation of the preemptive rights of any person. Other than the Interests, there are no outstanding membership interests of the Company.
(viii) No Undisclosed Liabilities . There are no liabilities of the Company, whether accrued, contingent, absolute, determined, determinable or otherwise, and there is no existing condition, situation or set of circumstances which could reasonably be expected to result in the occurrence of any such liability.
(ix) Contracts . The Company is not a party to or bound by any lease, agreement, contract or other commitment (collectively, the Contracts).
(x) Taxes . There are no taxes on or measured by income or gross receipts or franchise, real and personal property, employment, excise, sales and use or other taxes of any kind properly attributable to Seller or the Company for periods up to and including the Closing for which Buyer could be held liable which have not been or will not be paid by Seller.
(xiii) Compliance with Laws . The Company has not engaged and is not engaging in any activity or practice, and has not omitted and is not omitting to take any action that violates or contravenes any law, statute, ordinance, or regulation.
(xiv) Investment Representations and Covenants .
Seller understands that the Common Stock which shall comprise the Purchase Price is a highly speculative investment involving a high degree of risk; it is able, without impairing its financial condition, to hold the Common Stock for an indefinite period of time and suffer the complete loss thereof.
Seller represents and warrants that: (A) Seller is an “accredited investor” or “sophisticated investor” as defined under the 1933 Act and state “Blue Sky” laws, or that Seller has utilized, to the extent necessary to be deemed a sophisticated investor under the 1933 Act and state “Blue Sky” laws, the assistance of a professional advisor, (B) Seller, either alone or together with the assistance of Seller’s own professional advisor, has such knowledge and experience in financial and business matters such that Seller is capable of evaluating the merits and risks of Seller’s investment in the Common Stock to be acquired by Seller upon Closing, and (C) the Common Stock to be acquired by Seller upon consummation of the transactions described in this Agreement will be acquired by Seller for Seller’s own account, not as a nominee or agent, and without a view to resale or other distribution within the meaning of the 1933 Act and the rules and regulations thereunder, except as contemplated in this Agreement, and that Seller will not distribute any of the Common Stock in violation of the 1933 Act. All shares of the Common Stock shall bear a restrictive legend in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT