AGREEMENT FOR SALE AND PURCHASE OF MEMBERSHIP INTERESTS
Exhibit
2.1
THIS AGREEMENT (the
“Agreement”) is entered into this 26th day of November, 2008, (the “Effective
Date”) by and between MicroCap Management, a Colorado limited liability company
(the “Seller”) and Silver Star Capital Holdings, Inc., a Florida corporation
(“Buyer”).
RECITAL:
WHEREAS,
Seller is the owner and holder of all the limited liability interests in GREEN
STREET CAPITAL PARTNERS, LLC, a Florida limited liability company (the
“Company”);
WHEREAS,
the Company is engaged in the publication, marketing and distribution of THE
GREEN STREET REPORT, a quarterly financial magazine;
WHEREAS,
Without any intention to cause the dissolution of the Company under Florida law,
the Seller desires to sell one hundred percent (100%) of the limited liability
company membership interest in the Company (the “Interests”) to Buyer and Buyer
desires to purchase the Interests and to continue to operate the Company without
interruption, subject to and in accordance with all of the terms, provisions,
conditions and limitations, and for the purchase price, set forth in this
Agreement.
AGREEMENT:
NOW,
THEREFORE, in consideration of the premises, the covenants herein contained the
sums of money to be paid hereunder and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
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1.
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Sale and Purchase of
Interest in Company. The Seller agrees to sell and the Buyer agrees
to purchase, subject to and in accordance with all of the terms,
provisions, conditions and limitations set forth in this Agreement and
free and clear of all security interests, pledges, liens, encumbrances,
claims, interests, restrictions and limitations (except for those
restrictions and limitations set forth in this Agreement and in the
Operating Agreement), the Interests in the Company owned by the
Seller.
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2.
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Purchase Price.
The value of 100% of the Interests is, for purposes of this Agreement,
$1,000,000 (the “Purchase Price”). The Purchase Price is payable in two
million (2,000,000) shares of Buyer’s common stock (the “Shares”) which,
for the purposes of this Agreement, is valued at $.50 per share. The Buyer
shall deliver to the Seller, or cause to be delivered to the Seller, the
Shares at Closing.
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3.
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Closing. The
closing of the transactions contemplated hereby (the “Closing”) shall
occur at the offices of Buyer at such time as the parties may mutually
agree, but in no event later than December 31,
2008.
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4.
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Representations and
Warranties of Seller as to the Interests. The Seller, in order to
induce the Buyer to enter into this Agreement and close the transactions
contemplated by this Agreement and as a material consideration therefor,
makes the following representations and
warranties:
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a.
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The
Seller is a limited liability company duly organized, validly existing and
in good standing under the laws of the State of Florida has the requisite
power and authority to own, lease and operate its business and to
consummate the transaction contemplated
hereby.
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b.
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The
execution and delivery by the Seller of this Agreement and the other
instruments and agreements to be executed by it as provided for herein,
and the performance by it of its obligations hereunder and thereunder,
have been duly and validly authorized by all necessary corporate or
company action on its part, and this Agreement and all other such
instruments and agreements delivered or to be delivered in
connection
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c.
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herewith
are or will be valid and binding obligation, enforceable against Seller in
accordance with their respective
terms.
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d.
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The
Company is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Florida. Seller is the
sole member and sole Manager of the Company. The Company has all requisite
power and authority to own, lease and operate its properties and to carry
on its business as presently conducted by
it.
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e.
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There
are no outstanding or authorized subscriptions, options, warrants, calls,
rights, commitments or any other agreements of any character which
obligate or may obligate the Company to issue any additional interest in
the Company.
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f.
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The
Seller has, and will transfer to the Buyer, good, marketable and
sufficient title to and possession of all of the Interests, in each case
free and clear of all mortgages, liens, pledges, charges, claims,
encumbrances, restrictions, or rights, title and interests in others. The
Seller and the Interests are subject to no restrictions on transfer that
will be breached by the consummation of the transactions contemplated
hereby. As of the date hereof, the Seller has not entered into any
agreement to sell the Interests other than pursuant to this Agreement, and
the Company has not granted any right or option to purchase any of its
assets to any person or entity.
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g.
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Neither
the execution and delivery by the Seller of this Agreement and the other
agreement provided for herein, nor the performance by them of their
obligations hereunder and thereunder, will, nor with the giving of notice
or the lapse of time or both would, conflict with or result in a breach of
or constitute a default under any provision of the Articles of
Organization, the Operating Agreement of the Company, or any other
agreements and governing documents of or binding upon any of the Seller or
the Company.
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h.
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To
Seller’s knowledge, no consent, approval or agreement of any person,
party, court, government or entity is required to be obtained by the
Seller in connection with the execution and delivery of this Agreement or
the consummation of the transaction contemplated
hereby.
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“Seller’s’
knowledge,” or words of similar import, as used in this Agreement with respect
to the Company means that of MicroCap Management only and of no other person and
is based solely on his direct actual present knowledge without investigation or
a requirement for same.
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5.
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Buyer’s
Representations and
Warranties.
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a.
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Seller
has made available to the Buyer the opportunity to ask questions of and
receive answers from the Company concerning the business and operations of
the Company, and to obtain any additional information relating thereto, to
the extent that the Company possess such information or can acquire it
without unreasonable effort or expense, necessary to verify the accuracy
of the information given to it;
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b.
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Buyer
has reviewed and is fully advised with respect to the business, financial
condition, assets and liabilities, and prospects of the Company, and he
has such knowledge and experience in financial and business matters so as
to enable him to evaluate the merits and risks of purchasing and owning
the Interests in the Company;
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c.
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Buyer
is purchasing the Interests for investment purposes only and not for
resale or with a view to any distribution or resale thereof in violation
of the registration requirements of applicable federal or state securities
laws. Buyer has no contract, understanding or arrangement with any person
to sell, transfer or pledge to such person, or anyone else, any of the
Interests, and Buyer has no present plans or intentions to enter into any
such contract, understanding or
arrangement;
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d.
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Neither
the Seller, the Company, nor any of its agents, employees or affiliates
has made any representations or warranties, oral or otherwise, concerning
the Company except those that have been made in this Agreement. Buyer is
not relying upon any information, other than the results of his own
independent review of the written information provided to Buyer at his
request by the Seller or the
Company.
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6.
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Closing Costs and
Deliveries.
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a.
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All
costs and expenses necessary to close the transactions contemplated by
this Agreement and to effectuate the admission of Buyer as a member in the
Company pursuant to the terms of the Operating Agreement and this
Agreement (excluding, however, all legal fees incurred by either party in
connection with the negotiation and preparation of this Agreement and in
closing the transactions contemplated by this Agreement, which shall be
the responsibility of the party incurring such fees) whether or not
specifically mentioned herein shall be shared equally by Seller, on the
one hand, and Buyer, on the other
hand.
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b.
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The
Seller shall deliver to Buyer at the Closing the Assignment of Company
Interests in the form of those attached as Exhibit “A” together with such
other documents and instruments as shall reasonably be requested by
counsel for Buyer with respect to the consummation of the transactions
contemplated by this Agreement.
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7.
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Indemnification.
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a.
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Buyers
Indemnity. The Buyer agrees to forever indemnify, protect and hold
harmless the Seller from and against the following (including, without
limitation, the reasonable fees and disbursements of counsel arising out
of the following), which shall survive the Closing for one hundred eighty
(180) days, provided, however, that suit on any claim must be
initiated within such one hundred eighty (180) day
period:
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i.
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any
and all liabilities and obligations of the Company of any nature, whether
existing, accrued, absolute, contingent or otherwise, existing on the
Closing Date to the extent the same have been disclosed to the Buyer in
this Agreement and/or the Exhibits attached hereto or arising after the
Closing Date and based upon facts or events occurring, in whole or in
part, after the Closing Date.
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ii.
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any
and all claims, demands, actions, suits, judgments, liabilities, payments,
damages, deficiencies, costs and/or expenses resulting from or arising out
of any misrepresentation, concealment of a material fact, omission of a
material fact, or breach of or untruth of any warranties or
representations in this Agreement attributable to the Buyer under or
related to this Agreement. The provisions of this Section 7 shall
survive the Closing.
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b.
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The
Seller agrees to indemnify, defend, protect and hold harmless Buyer from
and against the following (including, without limitation, the reasonable
fees and disbursements of counsel arising out of the following), which
shall survive the Closing for one hundred eighty (180) days,
provided, however, that suit on any claim must be initiated within such
one hundred eighty (180) day
period:
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i.
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any
and all liabilities and obligations of the Company of any nature, whether
existing, accrued, absolute, contingent or otherwise, (1) existing
through the Closing Date, or (2) arising after the Closing Date but
based upon facts or events occurring, in whole or in part, prior to or on
the Closing Date, except for those liabilities and obligations disclosed
on Exhibit “B” attached to this Agreement;
and
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ii.
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any
and all claims, demands, actions, suits, judgments, liabilities, payments,
damages, deficiencies, costs and/or expenses resulting from or arising out
of any material misrepresentation, concealment of a material fact,
omission of a material fact, or material breach of or inaccuracy in any
warranties or representations in this Agreement made by or attributable to
the Seller under this Agreement or any material breach by Seller or the
Company of any agreements, covenants or obligations under this
Agreement.
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8.
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Conditions Precedent
to Closing. The obligation of Buyer to close the sale and purchase
transaction contemplated in this Agreement shall be and hereby is
expressly conditioned upon the prior occurrence, satisfaction or
fulfillment of the following:
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a.
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Representations and
Warranties. That at the time of closing all representations and
warranties of the Seller made in this Agreement shall be true and correct
and there shall have been no material breach or breaches of the same by
Seller.
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b.
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Satisfaction of Seller
Obligations. That at the time of closing all obligations of the
Seller provided in this Agreement shall have been fully satisfied or shall
have occurred or shall have been waived by Buyer in writing or as
otherwise provided in this
Agreement.
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c.
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Termination of
Agreement. That the Agreement has not been terminated pursuant to
its terms.
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d.
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Closing
Documents. The Seller shall have delivered to the Buyer by or on
the Closing Date the following:
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i.
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the
Assignment of Company Interests;
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ii.
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such
further instruments of conveyance, transfer and assignment or other
documents as may reasonably be required by the Buyer or its counsel in
order to effectuate the provisions of this Agreement and the transactions
contemplated herein.
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The Buyer
shall have delivered to the Seller by or on the Closing Date the
following:
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i.
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a
certificate evidencing the Shares.
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ii.
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such
instruments of or other documents as may reasonably be required by the
Buyer or its counsel in order to effectuate the provisions of this
Agreement and the transactions contemplated
herein.
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9.
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Prorations.
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a.
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Taxes. All ad
valorem real and personal property taxes shall be prorated as of the
Closing Date based upon the current year’s taxes at the maximum discount
available as of thirty (30) days following the Closing Date. If the
current year’s taxes are not available, then taxes will be prorated on the
gross amount of the prior year’s taxes and reporated upon receipt of the
tax ▇▇▇▇ for the year of closing.
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b.
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Income and
Expenses. All income and expense with respect to the Seller’s
business shall be prorated as of the Closing Date. Any continuing services
for which a separate ▇▇▇▇ through the Closing Date cannot be obtained
shall be prorated as of the Closing Date when received, and if unpaid as
of the Closing Date, shall be paid by the appropriate party within fifteen
(15) days after reasonable proof of payment of such charge is
submitted. The Seller shall pay all obligations of the Company up through
the day before the Closing Date.
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10.
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Notices. Any
notice or other communication permitted or required to be given hereunder
by one party to the other, for all purposes and time periods set forth in
this Agreement, shall be in writing and shall be delivered by hand or
deposited in the United States Mail, registered or certified, postage
prepaid, return receipt requested, or sent by recognized overnight courier
service such as Federal Express to the address specified below or at such
other address as may hereafter be designated in writing by any such party.
Such notice shall be deemed received upon receipted delivery or refusal to
accept same.
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To
Seller:
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MicroCap
Management
▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Telephone:
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(▇▇▇)
▇▇▇-▇▇▇▇
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Facsimile:
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(▇▇▇)
▇▇▇-▇▇▇▇
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To
Buyer:
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▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
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Telephone:
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(▇▇▇)
▇▇▇-▇▇▇▇
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Facsimile:
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(▇▇▇)
▇▇▇-▇▇▇▇
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11.
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Miscellaneous.
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a.
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Litigation and
Attorneys’ Fees. If it shall be necessary for either party to this
Agreement to bring suit to enforce any provisions hereof or for damages on
account of any breach of this Agreement, the prevailing party on any issue
in any such litigation and any appeals therefrom shall be entitled to
recover from the other party, in addition to any damages or other relief
granted as a result of such litigation, all costs and expenses of such
litigation and a reasonable attorneys’ fee as fixed by the
court.
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b.
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Time of
Essence. Time is of the essence of this Agreement and in the
performance of all conditions and covenants to be performed or satisfied
by either party hereto. Waiver of performance or satisfaction of timely
performance or satisfaction of any condition or covenant by one party
shall not be deemed to be a waiver of the performance or satisfaction of
any other condition or covenant unless specifically consented to in
writing. Any reference herein to time periods of less than six
(6) days shall in the computation thereof exclude Saturdays, Sundays
and legal holidays, and whenever a date specified herein shall fall on a
Saturday, Sunday or legal holiday, the date shall be extended to the next
succeeding business day.
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c.
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Counterparts.
This Agreement may be executed in one or more duplicate counterparts, each
of which shall upon execution by all parties be deemed to be an
original.
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d.
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Captions and
Paragraph Headings. Captions and paragraph headings contained
in this Agreement are for convenience and reference only and in no way
define, describe, extend or limit the scope or content of this Agreement
nor the intent of any provision
hereof.
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e.
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Governing Law and
Binding Effect. The interpretation and enforcement of this
Agreement shall be governed by and construed in accordance with the laws
of the State of Florida and shall bind, and the benefits and advantages
shall inure to and be enforceable by the Buyer and Seller as well as their
respective personal representatives, heirs, successors and assigns.
Jurisdiction and venue for any disputes hereunder shall be in the Circuit
Court of Orange County, Florida. Whenever used, the singular name shall
include the plural, the plural the singular, and the use of any gender
shall be applicable to all genders.
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f.
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Integrated Contract,
Waiver and Modification. This Agreement represents the complete and
entire understanding and agreement between and among the parties hereto
with regard to all matters involved in this Agreement and supersedes any
and all prior or contemporaneous agreements, whether written or oral. This
Agreement may not be modified or amended, nor may any provision contained
herein be waived, except in writing signed by all parties, or if such
modification, amendment or waiver is for the benefit of one or more of the
parties hereto and to the detriment of the others, then the same must be
in writing signed by all parties to whose detriment the modification,
amendment or waiver inures.
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g.
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Effective Date.
The “Effective Date” or date hereof shall be the date on which this
Agreement has been executed by the Seller, as evidenced by the date
following their signature line, and a facsimile of the signature pages has
been sent to the Buyer followed by overnight delivery of originals of
same.
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h.
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Non-Merger. In
addition to any specific language of non-merger found in certain sections
of this Agreement, any provision hereof which by its terms would be
reasonably performed after the Closing shall survive the Closing and shall
not merge in the Closing or in the deed, except as specifically provided
to the contrary herein.
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[AGREEMENT
CONTINUES]
SIGNATURE
PAGE
IN
WITNESS WHEREOF, the parties hereto have set their hands and seals as of the
Effective Date.
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“Seller”
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MicroCap
Management
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇
▇▇▇▇▇
Manager
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Date:
November 26, 2008
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“Buyer”
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/s/
Cliffe ▇. ▇▇▇▇▇▇
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Cliffe
▇. ▇▇▇▇▇▇
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President
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Date:
November 26, 2008
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EXHIBITS:
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Exhibit A
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-
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Form Assignment
of Membership Interest
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Exhibit B
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-
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Assumed
Pre-Closing Obligations
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EXHIBIT
“A”
FORM ASSIGNMENT OF
MEMBERSHIP INTEREST
ASSIGNMENT
OF MEMBERSHIP INTEREST
FOR VALUE
RECEIVED, MicroCap Management ("Assignor"), herewith sells, assigns, transfers
and conveys to Silver Star Capital Holdings, Inc., a Florida corporation
("Assignee"), the entirety of Assignor's rights, title and interests as member
of and in Green Street Capital Partners, LLC, a Florida limited liability
company (the "Company"), which shall include, without limitation, Assignor's
capital and profits interest in the Company, Assignor's capital account balance
in the Company, Assignor's distributions and liquidation rights in the Company
and Assignor's voting and management rights and powers in the
Company.
This
Assignment of Membership Interest in the Company is made, delivered and shall be
effective on the date hereof in accordance with and in complete satisfaction of
the requirements of Article XII of the Operating Agreement of Green Street
Capital Partners, LLC dated as of September 22, 2008.
IN
WITNESS WHEREOF, Assignor has executed this Assignment this 26th day of
November, 2008.
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MicroCap
Management
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By:
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
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Member
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Acknowledged,
consented, approved and agreed to by Green Street Capital Partners, LLC, a
Florida limited liability company (the "Company"), and its sole member this
26th
day of November, 2008, that Silver Star Capital, Inc., a Florida corporation
pursuant to the attached Assignment of Membership Interest has become and at all
times hereafter shall be a substitute member of the Company as provided by
Section 12 of the Operating Agreement of the Company dated as of September 22,
2008, with all rights, title and interest in the Company provided
therein.
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Green
Street Capital Partners, LLC
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By:
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Its
Sole Member
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
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MicroCap
Management
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