AGREEMENT AND PLAN OF ACQUISITION
EXHIBIT 10.6
This Agreement and Plan of
Acquisition (Agreement) is entered into by and between Multi-Carrier
Communications, Inc., a Florida corporation, (MCCI), UTEK CORPORATION, a
Delaware corporation, (UTEK), and Rim Semiconductor Company, a Utah corporation,
(RSMI).
WHEREAS, UTEK owns 100% of the
issued and outstanding shares of common stock of MCCI (MCCI Shares);
and
WHEREAS, before the Closing
Date, MCCI will acquire the license for the fields of use as described in the
License Agreement and the sponsored research as described in the Sponsored
Research Agreement and which are attached hereto as part of Exhibit A and made a
part of this Agreement (Agreements) and the rights to develop and market a
proprietary technology for the fields of uses specified in the License Agreement
(Technology).
WHEREAS, the parties desire to
provide for the terms and conditions upon which MCCI will be acquired by RSMI in
a stock-for-stock exchange (Acquisition) in accordance with the respective
corporation laws of their state, upon consummation of which all MCCI Shares (as
defined below) will be owned by RSMI, and all issued and outstanding MCCI Shares
will be exchanged for common stock of RSMI with terms and conditions as set
forth more fully in this Agreement; and
WHEREAS, for federal income
tax purposes, it is intended that the Acquisition qualifies as a tax-free
reorganization within the meaning of Section 368 (a)(1)(B) of the Internal
Revenue Code of 1986, as amended (Code).
NOW, THEREFORE, in
consideration of the premises and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are by this Agreement acknowledged,
the parties agree as follows:
ARTICLE
1
THE
STOCK-FOR-STOCK ACQUISITION
1.01 The
Acquisition
(a) Acquisition
Agreement. Subject to the terms and conditions of this
Agreement, at the Effective Date, as defined below, all MCCI Shares shall be
acquired from UTEK by RSMI in accordance with the respective corporation laws of
their state and the provisions of this Agreement and the separate corporate
existence of MCCI, as a wholly-owned subsidiary of RSMI, shall continue after
the closing.
(b) Effective Date. The
Acquisition shall become effective (Effective Date or Closing Date) upon the
execution of this Agreement and closing of the transaction.
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1.02 Exchange of Stock. At
the Effective Date, by virtue of the Acquisition, all of the MCCI Shares that
are issued and outstanding at the Effective Date shall be exchanged for
150,000,000 unregistered shares of common stock of RSMI.
1.03 Effect of
Acquisition. At and after the Effective Date, the holder of
each certificate of common stock of MCCI shall cease to have any rights as a
shareholder of MCCI.
1.04 Closing. Subject to
the terms and conditions of this Agreement, the Closing of the Acquisition shall
take place March 24, 2008.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES
2.01 Representations and
Warranties of UTEK and MCCI. UTEK and MCCI represent and
warrant to RSMI that the facts set forth below are true and correct, and will be
true and correct as of the Effective Date:
(a) Organization. MCCI
and UTEK are corporations duly organized, validly existing and in good standing
under the laws of their respective states of incorporation, and they have the
requisite power and authority to conduct their business and consummate the
transactions contemplated by this Agreement. True, correct and complete copies
of the articles of incorporation, bylaws and all corporate minutes of MCCI have
been provided to RSMI and such documents are presently in effect and have not
been amended or modified.
(b) Authorization. The
execution of this Agreement and the consummation of the Acquisition and the
other transactions contemplated by this Agreement have been duly authorized by
the board of directors and shareholders of MCCI and the board of directors of
UTEK; no other corporate action by the respective parties is necessary in order
to execute, deliver, consummate and perform their respective obligations
hereunder; and MCCI and UTEK have all requisite corporate and other authority to
execute and deliver this Agreement and consummate the transactions contemplated
by this Agreement.
(c) Capitalization. The
authorized capital of MCCI consists of 1,000,000 shares of common stock with a
par value $.01 per share (MCCI Shares). At the date of this Agreement, 1,000
MCCI Shares are issued and outstanding and held of record and beneficially by
UTEK, free and clear of all liens, encumbrances, restrictions and claims of very
kind. UTEK has full legal right, power and authority to sell, assign transfer
and convey the MCCI shares so owned by UTEK in accordance with the terms and
conditions of this Agreement. The delivery to RSMI of the MCCI shares so owned
by UTEK pursuant to the provisions of this Agreement will transfer to RSMI valid
title thereto, free and clear of any and all adverse claims. All issued and
outstanding MCCI Shares have been duly and validly issued and are fully paid and
non-assessable shares and have not been issued in violation of any preemptive or
other rights of any other person or any applicable laws. MCCI is not authorized
to issue any preferred stock. All dividends on MCCI Shares which have been
declared prior to the date of this Agreement have been paid in full. There are
no outstanding options, warrants, commitments, calls or other rights or
agreements requiring MCCI to issue any MCCI Shares or securities convertible
into MCCI Shares to anyone for any reason whatsoever. None of the MCCI Shares is
subject to any change, claim, condition, interest, lien, pledge, option,
security interest or other encumbrance or restriction, including any restriction
on use, voting, transfer, receipt of income or exercise of any other attribute
of ownership.
(d) Binding Effect. The
execution, delivery, performance and consummation of this Agreement, the
Acquisition and the transactions contemplated by this Agreement will not violate
any obligation to which MCCI or UTEK is a party and will not create a default
under any such obligation or under any agreement to which MCCI or UTEK is a
party. This Agreement constitutes a legal, valid and binding
obligation of MCCI, enforceable in accordance with its terms, except as the
enforcement may be limited by bankruptcy, insolvency, moratorium, or similar
laws affecting creditor’s rights generally and by the availability of injunctive
relief, specific performance or other equitable remedies.
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(e) Litigation Relating to this
Agreement. There are no suits, actions or proceedings pending or, to the
best of MCCI and UTEK’s knowledge, information and belief, threatened, which
seek to enjoin the Acquisition or the transactions contemplated by this
Agreement or which, if adversely decided, would have a materially adverse effect
on the business, results of operations, assets or prospects of
MCCI.
(f) No Conflicting
Agreements. Neither the execution and delivery of this Agreement nor the
fulfillment of or compliance by MCCI or UTEK with the terms or provisions of
this Agreement nor all other documents or agreements contemplated by this
Agreement and the consummation of the transaction contemplated by this Agreement
will result in a breach of the terms, conditions or provisions of, or constitute
a default under, or result in a violation of, MCCI or UTEK’s articles of
incorporation or bylaws, the Technology, the License Agreement, or any
agreement, contract, instrument, order, judgment or decree to which MCCI or UTEK
is a party or by which MCCI or UTEK or any of their respective assets is bound,
or violate any provision of any applicable law, rule or regulation or any order,
decree, writ or injunction of any court or government entity which materially
affects their respective assets or businesses.
(g) Consents. No consent
from or approval of any court, governmental entity or any other person is
necessary in connection with execution and delivery of this Agreement by MCCI
and UTEK or performance of the obligations of MCCI and UTEK hereunder or under
any other agreement to which MCCI or UTEK is a party; and the consummation of
the transactions contemplated by this Agreement will not require the approval of
any entity or person in order to prevent the termination of the Technology, the
License Agreement, or any other material right, privilege, license or agreement
relating to MCCI or its assets or business.
(h) Title to Assets. MCCI
has or has agreed to enter into the agreements as listed on Exhibit A attached
hereto. These agreements and the assets shown on the balance sheet of attached
Exhibit B are the sole assets of MCCI. MCCI has or will by the Effective Date
have good and marketable title to its assets, free and clear of all liens,
claims, charges, mortgages, options, security agreements and other encumbrances
of every kind or nature whatsoever.
(i)
Intellectual
Property
(1) The
University of Queensland & The University of Sydney represented by UNIQUEST
Pty Limited (UNIQUEST) respectively owns and has license to the Technology and
has all right, power, authority and ownership and entitlement to file, prosecute
and maintain in effect US Patent Application No. 2005/0047323 priority date
19th
June, 2003, Titled “Low Complexity Multi-Channel Modulation Method and
Apparatus” Inventors: Xx. X. Xxxxxxx X. Xxxxxxxx & Xx. Xxxx X. Xxxxxxxx;
(the Patent) with respect to the inventions listed in Exhibit A hereto (the
Inventions).
(2) The License Agreement
between UNIQUEST and MCCI covering the Inventions will be legal, valid, binding
and will be enforceable in accordance with its terms as contained in Exhibit
A.
(3) Except as otherwise set
forth in this Agreement, RSMI acknowledges and understands that MCCI and UTEK
make no representations and provide no assurances that the rights to the
Technology and Intellectual Property contained in the License Agreement do not,
and will not in the future, infringe or otherwise violate the rights of third
parties, and as of this date;
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(4) Neither MCCI nor UTEK has
received a written communication from any individual, corporation,
proprietorship, firm, general or limited partnership, limited liability company,
joint venture, trust, association, unincorporated organization, governmental
authority or other entity (“Person”) alleging that the Technology and
Intellectual Property contained in the License Agreement violate any material
rights relating to Intellectual Property of any Person.
(5) To the knowledge of MCCI
and UTEK, and without any independent investigation, the validity or
enforceability of the Patent or any of the Technology and Intellectual Property
contained in the License Agreement, or the ownership thereof, has not been
questioned in any action, suit, arbitration, proceeding or other litigation
commenced or, to the Sellers’ knowledge, threatened by any Person or
governmental authority (“Proceeding”) and, to the knowledge of MCCI and UTEK, no
such Proceeding is currently threatened, and neither MCCI nor UTEK has received
a written communication from any Person (A) asserting an ownership interest in
any of the Technology and Intellectual Property contained in the License
Agreement, or (B) alleging that any of the Technology and Intellectual Property
contained in the License Agreement is invalid or unenforceable.
(6) Except as otherwise
expressly set forth in this Agreement, MCCI and UTEK make no representations and
extend no warranties of any kind, either express or implied, including, but not
limited to warranties of merchantability, fitness for a particular purpose,
non-infringement and validity of the Intellectual Property.
(j) Liabilities of MCCI.
MCCI has no assets, no liabilities or obligations of any kind, character or
description except those listed on the attached schedules and
exhibits.
(k) Financial Statements.
The unaudited financial statements of MCCI, including a balance sheet, attached
as Exhibit B and made a part of this Agreement, are, in all respects, complete
and correct and present fairly MCCI’s financial position and the results of its
operations on the dates and for the periods shown in this Agreement; provided,
however, that interim financial statements are subject to customary year-end
adjustments and accruals that, in the aggregate, will not have a material
adverse effect on the overall financial condition or results of its operations.
MCCI has not engaged in any business not reflected in its financial statements.
There have been no material adverse changes in the nature of its business,
prospects, the value of assets or the financial condition since the date of its
financial statements. There are no, and on the Closing Date there will be no,
outstanding obligations or liabilities of MCCI except as specifically set forth
in the financial statements and the other attached schedules and
exhibits. There is no information known to MCCI or UTEK that would
prevent the financial statements of MCCI from being audited in accordance with
generally accepted accounting principles.
(l)
Taxes. All
returns, reports, statements and other similar filings required to be filed by
MCCI with respect to any federal, state, local or foreign taxes, assessments,
interests, penalties, deficiencies, fees and other governmental charges or
impositions have been timely filed with the appropriate governmental agencies in
all jurisdictions in which such tax returns and other related filings are
required to be filed; all such tax returns properly reflect all liabilities of
MCCI for taxes for the periods, property or events covered by this Agreement;
and all taxes, whether or not reflected on those tax returns, and all taxes
claimed to be due from MCCI by any taxing authority, have been properly paid,
except to the extent reflected on MCCI’s financial statements, where MCCI has
contested in good faith by appropriate proceedings and reserves have been
established on its financial statements to the full extent if the contest is
adversely decided against it. MCCI has not received any notice of assessment or
proposed assessment in connection with any tax returns, nor is MCCI a party to
or to the best of its knowledge, expected to become a party to any pending or
threatened action or proceeding, assessment or collection of taxes. MCCI has not
extended or waived the application of any statute of limitations of any
jurisdiction regarding the assessment or collection of any taxes. There are no
tax liens (other than any lien which arises by operation of law for current
taxes not yet due and payable) on any of its assets. There is no basis for any
additional assessment of taxes, interest or penalties. MCCI has made all
deposits required by law to be made with respect to employees’ withholding and
other employment taxes, including without limitation the portion of such
deposits relating to taxes imposed upon MCCI. MCCI is not and has never been a
party to any tax sharing agreements with any other person or
entity.
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(m) Absence of Certain Changes
or Events. From the date of the latest balance sheet of MCCI provided to
RSMI until the Closing Date, MCCI has not, and without the written consent of
RSMI, it will not have:
(1) Sold,
encumbered, assigned, let lapsed or transferred any of its material assets,
including without limitation the Intellectual Property, the License Agreement or
any other material asset;
(2) Amended
or terminated the License Agreement or other material agreement or done any act
or omitted to do any act which would cause the breach of the License Agreement
or any other material agreement;
(3) Suffered
any damage, destruction or loss whether or not in control of MCCI;
(4) Made
any commitments or agreements for capital expenditures or
otherwise;
(5) Entered
into any transaction or made any commitment not disclosed to RSMI in
writing;
(6) Incurred
any obligation or liability for borrowed money;
(7) Suffered
any other event of any character, which is reasonable to expect, would adversely
affect the future condition (financial or otherwise) of the assets or
liabilities or business of MCCI; or
(8) Taken
any action, which could reasonably be foreseen to make any of the
representations or warranties made by MCCI or UTEK untrue as of the date of this
Agreement or as of the Closing Date.
(n) Material Agreements.
Exhibit A attached contains a true and complete list of all contemplated and
executed agreements between MCCI and a third party. A complete and accurate copy
of all material agreements, contracts and commitments of the following types,
whether written or oral to which it is a party or is bound (Contracts), has been
provided to RSMI and such agreements are or will be at the Closing Date, in full
force and effect without modifications or amendment and constitute the legally
valid and binding obligations of MCCI in accordance with their respective terms
and will continue to be valid and enforceable following the Acquisition. MCCI is
not in default of any of the Contracts. In addition:
(1) There
are no outstanding unpaid promissory notes, mortgages, indentures, deed of
trust, security agreements and other agreements and instruments relating to the
borrowing of money by or any extension of credit to MCCI; and
(2) There
are no outstanding operating agreements, lease agreements or similar agreements
by which MCCI is bound; and
(3) The
complete final License Agreement will be provided to RSMI; and
(4) Except
as set forth in (3) above, there are no outstanding licenses to or from others
of any intellectual property and trade names; and
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(5) There
are no outstanding agreements or commitments to sell, lease or otherwise dispose
of any of MCCI’s property; and
(6) There
are no breaches of any agreement to which MCCI is a party.
(o) Compliance with Laws.
MCCI is in compliance with all applicable laws, rules, regulations and orders
promulgated by any federal, state or local government body or agency relating to
its business and operations.
(p) Litigation. There
is no suit, action or any arbitration, administrative, legal or other proceeding
of any kind or character, or any governmental investigation pending or to the
best knowledge of MCCI or UTEK, threatened against MCCI, the Technology,
or License Agreement, affecting its assets or business (financial or
otherwise), and neither MCCI nor UTEK is in violation of or in default with
respect to any judgment, order, decree or other finding of any court or
government authority relating to the assets, business or properties of MCCI or
the transactions contemplated hereby. There are no pending or threatened actions
or proceedings before any court, arbitrator or administrative agency, which
would, if adversely determined, individually or in the aggregate, materially and
adversely affect the assets or business of MCCI or the transactions
contemplated.
(q) Employees. MCCI has
no and never had any employees. MCCI is not a party to or bound by any
employment agreement or any collective bargaining agreement with respect to any
employees. MCCI is not in violation of any law, regulation relating to
employment of employees.
(r) Adverse Effect.
Neither MCCI nor UTEK has any knowledge of any or threatened existing
occurrence, action or development that could cause a material adverse effect on
MCCI or its business, assets or condition (financial or otherwise) or
prospects.
(s) Employee Benefit
Plans. MCCI states that there are no and have never been any
employee benefit plans, and there are no commitments to create any, including
without limitation as such term is defined in the Employee Retirement Income
Security Act of 1974, as amended, in effect, and there are no outstanding or
un-funded liabilities nor will the execution of this Agreement and the actions
contemplated in this Agreement result in any obligation or liability to any
present or former employee.
(t) Books and Records.
The books and records of MCCI are complete and accurate in all material
respects, fairly present its business and operations, have been maintained in
accordance with good business practices, and applicable legal requirements, and
accurately reflect in all material respects its business, financial condition
and liabilities.
(u) No Broker’s Fees.
Neither UTEK nor MCCI has incurred any investment banking, advisory or other
similar fees or obligations in connection with this Agreement or the
transactions contemplated by this Agreement.
(v) Full
Disclosure. All representations or warranties of UTEK
and MCCI are true, correct and complete in all material respects to the best of
our knowledge on the date of this Agreement and shall be true, correct and
complete in all material respects as of the Closing Date as if they were made on
such date. No statement made by them in this Agreement or in the
exhibits to this Agreement or any document delivered by them or on their behalf
pursuant to this Agreement contains an untrue statement of material fact or
omits to state all material facts necessary to make the statements in this
Agreement not misleading in any material respect in light of the circumstances
in which they were made.
2.02 Representations and
Warranties of RSMI. RSMI represents and warrants to UTEK and
MCCI that the facts set forth are true and correct.
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(a) Organization. RSMI
is a corporation duly organized, validly existing and in good standing under the
laws of Utah, is qualified to do business as a foreign corporation in other
jurisdictions in which the conduct of its business or the ownership of its
properties require such qualification, and have all requisite power and
authority to conduct its business and operate properties.
(b) Authorization. The
execution of this Agreement and the consummation of the Acquisition and the
other transactions contemplated by this Agreement have been duly authorized by
the board of directors of RSMI; no other corporate action on their respective
parts is necessary in order to execute, deliver, consummate and perform their
obligations hereunder; and they have all requisite corporate and other authority
to execute and deliver this Agreement and consummate the transactions
contemplated by this Agreement.
(c) Capitalization. The
authorized capital of RSMI consists of 900,000,000 (Nine Hundred Million) shares
of common stock with a par value $0.001 per share (RSMI Common Shares) and
15,000,000 (Fifteen Million) shares of preferred stock with a par value of $0.01
per share (RSMI Preferred Shares). On the Effective Date of the
Acquisition (686,182,134) RSMI Common Shares (which will include the
150,000,000 RSMI Common Shares to be issued at the Closing of the Acquisition)
will be issued and outstanding. The RSMI Common Shares outstanding have
been duly and validly issued and are fully paid and non-assessable shares and
have not been issued in violation of any preemptive or other rights of any other
person or any applicable laws. No RSMI Preferred Shares are
outstanding.
(d)
Anti Dilution
Adjustments. UTEK currently owns 60,000,000 RSMI Common
Shares, and will be acquiring 150,000,000 unregistered RSMI Common Shares;
and based on a total of (686,182,134) issued RSMI Common Shares (on an as
converted basis) this total will represent a 30.6% ownership position in
RSMI Common shares as of March 24, 2008 on an “as if converted basis”. For a
period of twelve months from the Effective Date of this Agreement, the aggregate
number of RSMI Common Shares that UTEK has received shall be adjusted
proportionately by the Board of Directors of RSMI for any increase in the number
of outstanding RSMI Common Shares resulting from the issuance of any additional
equity securities by the Company to any of its current list of management and
directors as of the Effective Date, other than for previously agreed to
disbursements prior to the Effective Date of this agreement.
For
purposes in this Agreement, “as if converted basis” shall mean total outstanding
common shares after giving effect to the conversion of all outstanding equity
securities including preferred stock or other convertible
instruments.
(e) Binding Effect. The
execution, delivery, performance and consummation of the Acquisition and the
transactions contemplated by this Agreement will not violate any obligation to
which RSMI is a party and will not create a default hereunder, and this
Agreement constitutes a legal, valid and binding obligation of RSMI, enforceable
in accordance with its terms, except as the enforcement may be limited by
bankruptcy, insolvency, moratorium, or similar laws affecting creditor’s rights
generally and by the availability of injunctive relief, specific performance or
other equitable remedies.
(f) Litigation Relating to this
Agreement. There are no suits, actions or proceedings pending or to its
knowledge threatened which seek to enjoin the Acquisition or the transactions
contemplated by this Agreement or which, if adversely decided, would have a
materially adverse effect on its business, results of operations, assets,
prospects or the results of its operations of RSMI.
(g) No Conflicting
Agreements. Neither the execution and delivery of this Agreement nor the
fulfillment of or compliance by RSMI with the terms or provisions of this
Agreement will result in a breach of the terms, conditions or provisions of, or
constitute default under, or result in a violation of
RSMI’s corporate charter or bylaws, or any agreement, contract,
instrument, order, judgment or decree to which it is a party or by which it or
any of its assets are bound, or violate any provision of any applicable law,
rule or regulation or any order, decree, writ or injunction of any court or
governmental entity which materially affects its assets or
business.
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(h) Consents. Assuming
the correctness of UTEK and MCCI’s representations, no consent from or approval
of any court, governmental entity or any other person is necessary in connection
with its execution and delivery of this Agreement; and the consummation of the
transactions contemplated by this Agreement will not require the approval of any
entity or person in order to prevent the termination of any material right,
privilege, license or agreement relating to RSMI or its assets or
business.
(i) Financial Statements.
The financial statements of RSMI included in its reports available on the XXXXX
Website of the Securities and Exchange Commission on Form 10-KSB filed on
February 5, 2007 for the fiscal year ended October 31, 2006, Form 10-QSB filed
on March 14, 2007 for the quarter ended January 31, 2007, Form 10-QSB filed on
June 13, 2007 for the quarter ended April 30, 2007, Form 10-QSB filed on
September 14, 2007 for the quarter ended July 31, 2007, and RSMI’s
definitive proxy statement filed on April 2, 2007, together with all subsequent
filings made with the Commission available at the XXXXX website (hereinafter
referred to collectively as the Reports) contain all material information
relating to RSMI and its operations and financial condition as of their
respective dates which information is required to be disclosed
therein. Since the date of the financial statements included in the
Reports, and except as modified in the Schedules hereto, there has been no
material adverse changes relating to RSMI’s business, financial condition or
affairs not disclosed in the Reports. The Reports do not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, taken as a whole,
not misleading in light of the circumstances when made.
(j) Full Disclosure. All
representations or warranties of RSMI are true, correct and complete in all
material respects on the date of this Agreement and shall be true, correct and
complete in all material respects as of the Closing Date as if they were made on
such date. No statement made by them in this Agreement or in the exhibits to
this Agreement or any document delivered by them or on their behalf pursuant to
this Agreement contains an untrue statement of material fact or omits to state
all material facts necessary to make the statements in this Agreement not
misleading in any material respect in light of the circumstances in which they
were made.
(k) Compliance with Laws.
RSMI is in compliance in all material respects with all applicable laws, rules,
regulations and orders promulgated by any federal, state or local government
body or agency relating to its business and operations.
(l) Litigation. There
is no suit, action or any arbitration, administrative, legal or other proceeding
of any kind or character, or any governmental investigation pending or, to the
best knowledge of RSMI, threatened against RSMI materially affecting its assets
or business (financial or otherwise), and RSMI is not in violation of or in
default with respect to any judgment, order, decree or other finding of any
court or government authority. There are no pending or, to RSMI’s knowledge,
threatened actions or proceedings before any court, arbitrator or administrative
agency, which would, if adversely determined, individually or in the aggregate,
materially and adversely affect its assets or business. Except as disclosed in
its Reports, RSMI has no knowledge of any existing or threatened occurrence,
action or development that could cause a material adverse affect on RSMI or its
business, assets or condition (financial or otherwise) or
prospects.
(m) Development. RSMI
agrees and warrants that it has the expertise necessary to and has had the
opportunity to independently evaluate the inventions of the Licensed Technology
and has the expertise necessary to develop same for the market.
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(n) Investment Company
Status RSMI is not an investment company, either registered or
unregistered.
2.03 Investment Representations
of UTEK. UTEK represents and warrants to RSMI that:
(a) General. It has such
knowledge and experience in financial and business matters as to be capable of
evaluating the risks and merits of an investment in RSMI Common Shares pursuant
to the Acquisition. It is able to bear the economic risk of the investment in
RSMI Common Shares, including the risk of a total loss of the investment in RSMI
Common Shares. The acquisition of RSMI Common Shares is for its own account and
is for investment and not with a view to the distribution of this Agreement.
Except a permitted by law, it has a no present intention of selling,
transferring or otherwise disposing in any way of all or any portion of the
shares at the present time. All information that it has supplied to RSMI is true
and correct. It has conducted all investigations and due diligence concerning
RSMI to evaluate the risks inherent in accepting and holding the shares which it
deems appropriate, and it has found all such information obtained fully
acceptable. It has had an opportunity to ask questions of the officer and
directors of RSMI concerning RSMI Common Shares and the business and financial
condition of and prospects for RSMI, and the officers and directors of RSMI have
adequately answered all questions asked and made all relevant information
available to them. UTEK is an accredited investor, as the term is defined in
Regulation D, promulgated under the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
(b) Stock Transfer
Restrictions. UTEK acknowledges that the RSMI Common Shares
will not be registered and UTEK will not be permitted to sell or otherwise
transfer the RSMI Common Shares in any transaction in contravention of the
following legend, which will be imprinted in substantially the following form on
the stock certificate representing RSMI Common Shares:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE ACT), OR UNDER THE SECURITIES LAWS OF
ANY STATE. THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED PURSUANT TO THE PROVISION
OF THE ACT AND THE LAWS OF SUCH STATES UNDER WHOSE LAWS A TRANSFER OF SECURITIES
WOULD BE SUBJECT TO A REGISTRATION REQUIREMENT, UNLESS UTEK CORPORATION HAS
OBTAINED AN OPINION OF COUNSEL STATING THAT SUCH DISPOSITION IS IN COMPLIANCE
WITH AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
(c) Legend. Subject
to the new Rule 144 restrictions, 6 months following the stock acquisition
described herein, RSMI agrees to and shall direct its transfer agent to
remove the above legend upon the issuance by UTEK's legal counsel that the above
legend can be removed from UTEK's RSMI Common Shares. RSMI agrees to and
promptly shall provide any information requested by UTEK or UTEK's counsel and
to make further direction to its transfer agent as necessary for such issuance
of an opinion regarding removal of the legend or the sale of such
restricted shares under Rule 144 or other available exemption from
registration.
(d) In the
event that RSMI wrongfully fails to direct its transfer agent to
remove the legend within fifteen (15) days of request by UTEK, RSMI shall be
liable to an additional fee of ten percent (10%) of the current value of the
shares held by UTEK, determined based on the closing price of the shares on the
fifteenth day after the request is deemed received by RSMI, as well as any and
all attorney fees and costs that UTEK may incur as a result of RSMI failing to
comply in this request.
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ARTICLE
3
TRANSACTIONS
PRIOR TO CLOSING
3.01 Corporate Approvals.
Prior to Closing Date, each of the parties shall submit this Agreement to its
board of directors and if necessary, its respective shareholders and obtain
approval of this Agreement. Copies of corporate actions taken by each party
shall be provided to the other party.
3.02 Access to
Information. Each party agrees to permit, upon reasonable notice, the
attorneys, accountants, and other representatives of the other party’s
reasonable access during normal business hours to its properties and its books
and records to make reasonable investigations with respect to its affairs, and
to make its officers and employees available to answer questions and provide
additional information as reasonably requested.
3.03 Expenses. Each party
agrees to bear its own expenses in connection with the negotiation and
consummation of the Acquisition and the transactions contemplated by this
Agreement.
3.04 Covenants. Except as
permitted in writing, prior to Closing each party agrees that it
will:
(a) Use
its good faith efforts to obtain all requisite licenses, permits, consents,
approvals and authorizations necessary in order to consummate the Acquisition;
and
(b) Notify
the other parties upon the occurrence of any event which would have a materially
adverse effect upon the Acquisition or the transactions contemplated by this
Agreement or upon the business, assets or results of operations;
and
(c) Not
modify its corporate structure, except as necessary or advisable in order to
consummate the Acquisition and the transactions contemplated by this
Agreement.
ARTICLE
4
CONDITIONS
PRECEDENT
The
obligation of the parties to consummate the Acquisition and the transactions
contemplated by this Agreement are subject to the following conditions that may
be waived, to the extent permitted by law:
4.01 Each party must obtain
the approval of its board of directors and such approval shall not have been
rescinded or restricted.
4.02. Each
party shall obtain all requisite licenses, permits, consents, authorizations and
approvals required to complete the Acquisition and the transactions contemplated
by this Agreement.
4.03. There
shall be no claim or litigation instituted or threatened in writing by any
person or government authority seeking to restrain or prohibit any of the
contemplated transactions contemplated by this Agreement or challenges the
right, title and interest of UTEK in the MCCI Shares or the right of MCCI or
UTEK to consummate the Acquisition contemplated hereunder.
4.04. The
representations and warranties of the parties shall be true and correct in all
material respects at the Effective Date.
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4.05. The
Technology and Intellectual Property has been prosecuted in good faith with
reasonable diligence.
4.06. The
License Agreement will be valid and in full force and effect without any default
in this Agreement.
4.07. RSMI
shall have received, at or prior to the Closing Date, each of the
following:
(a) the
stock certificates representing all of the currently issued and outstanding MCCI
Shares, duly endorsed (or accompanied by duly executed stock powers) by UTEK for
transfer of such shares to RSMI;
(b) all
corporate records and documentation relating to MCCI’s business, all in a form
and substance satisfactory to RSMI, including its Articles of Incorporation and
Bylaws;
(c) such
agreements, files and other data and documents pertaining to
MCCI’s business as RSMI may reasonably request;
(d) copies
of the general ledgers and books of account of MCCI, and all federal, state and
local income, franchise, property and other tax returns filed by MCCI since the
inception of MCCI;
(e) certificates
of (i) the Secretary of State of the State of Florida as to the legal existence
and good standing, as applicable, (including tax) of MCCI in
Florida;
(f)
the original corporate minute books of MCCI, including the articles of
incorporation and bylaws of MCCI, and all other documents filed in this
Agreement;
(g) all
consents, assignments or related documents of conveyance to give RSMI the
benefit of the transactions contemplated hereunder;
(h) such
documents as may be needed to accomplish the Closing under the corporate laws of
the states of incorporation of RSMI and MCCI, and
(i)
such other documents, instruments or certificates as RSMI, or their counsel may
reasonably request.
4.08. RSMI
shall have completed due diligence investigation of MCCI to RSMI’s satisfaction
in their sole discretion.
4.09. RSMI
shall receive the resignation effective the Closing Date of each director and
officer of MCCI.
4.10 MCCI’s assets
at the time of Closing will include US $300,000 in cash, which sum shall belong
absolutely and unconditionally to MCCI through and after the
Closing.
ARTICLE
5
INDEMNIFICATION AND LIABILITY
LIMITATION
5.01.
Survival of Representations
and Warranties.
Page 11 of
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(a) The
representations and warranties made by UTEK and MCCI shall survive for a period
of 1 year after the Closing Date, and thereafter all such representation and
warranties shall be extinguished, except with respect to claims then pending for
which specific notice has been given during such 1-year period.
(b) The
representations and warranties made by RSMI shall survive for a period of 1 year
after the Closing Date, and thereafter all such representations and warranties
shall be extinguished, except with respect to claims then pending for which
specific notice has been given during such 1-year period.
5.02 Limitations on
Liability. RSMI agrees that UTEK shall not be liable under
this agreement to RSMI or their respective successor’s, assigns or affiliates
except where damages result directly from the gross negligence or willful
misconduct of UTEK or its employees. In no event shall UTEK's
liability exceed the total amount of the fees paid to UTEK under this agreement,
nor shall UTEK be liable for incidental or consequential damages of any
kind. RSMI shall indemnify UTEK, and hold UTEK harmless against any
and all claims by third parties for losses, damages or liabilities, including
reasonable attorneys fees and expenses (“Losses”), arising in any manner out of
or in connection with the rendering of services by UTEK under this Agreement,
unless it is finally judicially determined that such Losses resulted from the
gross negligence or willful misconduct of UTEK. The terms of this paragraph
shall survive the termination of this agreement and shall apply to any
controlling person, director, officer, employee or affiliate of
UTEK.
5.03 Indemnification. RSMI
agrees to indemnify and hold harmless UTEK and its subsidiaries and affiliates
and each of its and their officers, directors, principals, shareholders, agents,
independent contactors and employees (collectively “Indemnified Persons”) from
and against any and all claims, liabilities, damages, obligations, costs and
expenses (including reasonable attorneys’ fees and expenses and costs of
investigation) arising out of or relating to matters arising from
this Agreement, except to the extent that any such claim, liability, obligation,
damage, cost or expense shall have been determined by final non-appealable order
of a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Indemnified Person or Persons in respect of whom
such liability is asserted.
(a) Limitation of
Liability. RSMI agrees that no Indemnified Person shall have
any liability as a result of the execution and delivery of this Agreement, or
other matters relating to or arising from this Agreement, other than liabilities
that shall have been determined by final non-appealable order of a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Indemnified Person or Persons in respect of whom such
liability is asserted. Without limiting the generality of the
foregoing, in no event shall any Indemnified Person be liable for consequential,
indirect or punitive damages, damages for lost profits or opportunities or other
like damages or claims of any kind. In no event shall UTEK's
liability exceed the total amount of the consideration paid to UTEK under this
Agreement.
ARTICLE
6
REMEDIES
6.01 Specific Performance.
Each party’s obligations under this Agreement are unique. If any party should
default in its obligations under this Agreement, the parties each acknowledge
that it would be extremely impracticable to measure the resulting damages.
Accordingly, the non-defaulting party, in addition to any other available rights
or remedies, may xxx in equity for specific performance, and the parties each
expressly waive the defense that a remedy in damages will be
adequate.
6.02 Costs. If any legal
action or any arbitration or other proceeding is brought for the enforcement of
this Agreement or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorneys’ fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
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ARTICLE
7
ARBITRATION
In the
event a dispute arises with respect to the interpretation or effect of this
Agreement or concerning the rights or obligations of the parties to this
Agreement, the parties agree to negotiate in good faith with reasonable
diligence in an effort to resolve the dispute in a mutually acceptable manner.
Failing to reach a resolution of this Agreement, either party shall have the
right to submit the dispute to be settled by arbitration under the Commercial
Rules of Arbitration of the American Arbitration Association. The parties agree
that, unless the parties mutually agree to the contrary such arbitration shall
be conducted in the State of Florida. The cost of arbitration shall
be borne by the party against whom the award is rendered or, if in the interest
of fairness, as allocated in accordance with the judgment of the arbitrators.
All awards in arbitration made in good faith and not infected with fraud or
other misconduct shall be final and binding. The arbitrators shall be
selected as follows: one by RSMI, one by UTEK and a third by the two selected
arbitrators. The third arbitrator shall be the chairman of the
panel.
ARTICLE
8
MISCELLANEOUS
8.01. No party may assign this
Agreement or any right or obligation of it hereunder without the prior written
consent of the other parties to this Agreement. No permitted assignment shall
relieve a party of its obligations under this Agreement without the separate
written consent of the other parties.
8.02. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
permitted successors and assigns.
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8.03. Each party agrees that it
will comply with all applicable laws, rules and regulations in the execution and
performance of its obligations under this Agreement.
8.04. This Agreement shall be
governed by and construct in accordance with the laws of the State of Oregon
without regard to principles of conflicts of law.
8.05. This document constitutes
a complete and entire agreement among the parties with reference to the subject
matters set forth in this Agreement. No statement or agreement, oral or written,
made prior to or at the execution of this Agreement and no prior course of
dealing or practice by either party shall vary or modify the terms set forth in
this Agreement without the prior consent of the other parties to this Agreement.
This Agreement may be amended only by a written document signed by the
parties.
8.06. Notices or other
communications required to be made in connection with this Agreement shall be
sent by U.S. mail, certified, return receipt requested, personally delivered or
sent by express delivery service and delivered to the parties at the addresses
set forth below or at such other address as may be changed from time to time by
giving written notice to the other parties.
8.07. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this
Agreement.
8.08. This Agreement may be
executed in multiple counterparts, each of which shall constitute one and a
single Agreement.
8.09 Any
facsimile signature of any part to this Agreement or to any other agreement or
document executed in connection of this Agreement should constitute a legal,
valid and binding execution by such parties.
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| RIM SEMICONDUCTOR COMPANY | MULTI-CARRIER COMMUNICATIONS, INC. |
|
By:
/s/ Xxxx Xxxxx
|
By: /s/ Xxxx Xxxxxxx |
|
Xxxx
Xxxxx,
|
Xxxx
Xxxxxxx
|
|
Chief Executive
Officer
|
President
|
|
Address:
|
Address:
|
|
000 XX 000XX Xxxxxx,
Xxxxx 000
|
0000
Xxxx Xxxx Xxxxxx
|
|
Xxxxxxxx,
Xxxxxx 00000
|
Xxxxx,
Xxxxxxx 00000
|
|
Date:
March 24,
2008
|
Date: 3-24-08 |
| UTEK CORPORATION | |
|
By:
/s/ Xxxxxxx
Xxxxxxxxx
|
|
|
Xxxxxxx X.
Xxxxxxxxx
|
|
|
Chief Operating
Officer
|
|
|
Address:
|
|
|
0000 Xxxx Xxxx
Xxxxxx
|
|
|
Xxxxx, Xxxxxxx
00000
|
|
|
|
Date:
_________________________
Page 15 of
16
EXHIBIT
A
Outstanding
Agreements
From
the University of Queensland
1) License
Agreement
2) Sponsored Research
Agreement
Page 16 of
16
