Exhibit 2.1
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:
ARTICLE I
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.
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ARTICLE II
PURCHASE PRICE
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.
ARTICLE III
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.
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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.
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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.
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(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.
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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.
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(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
