EXHIBIT 10.35
ACQUISITION OF APPLE PEEL TECHNOLOGIES, INC.
BY
HEALTH SCIENCES GROUP, INC.
AGREEMENT AND PLAN OF ACQUISITION
THIS AGREEMENT AND PLAN OF ACQUISITION (Agreement) is entered into by and
between Apple Peel Technologies, Inc., a Florida corporation, (APTI), UTEK
CORPORATION, a Delaware corporation, (UTEK), and Health Sciences Group, Inc., a
Colorado corporation, (HESG)
WHEREAS, UTEK owns 100% of the issued and outstanding shares of common
stock of APTI (APTI Shares); and
WHEREAS, before the Closing Date, APTI will acquire the exclusive license
for the fields of use as described in the License Agreement and a consulting
contract as described and which are attached hereto as part of Exhibit A and
made a part of this Agreement (License Agreement and Consulting Agreement) and
the rights to develop and market a patented and 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 APTI will be acquired by HESG in a stock-for-stock exchange (Acquisition)
in accordance with the respective corporation laws of their state, upon
consummation of which all APTI Shares will be owned by HESG, and all issued and
outstanding APTI Shares will be exchanged for common stock of HESG 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 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 APTI Shares
shall be acquired from UTEK by HESG in accordance with the respective
corporation laws of their state and the provisions of this Agreement and the
separate corporate existence of APTI, as a wholly-owned subsidiary of HESG,
shall continue after the closing.
(b) Effective Date. The Acquisition shall become effective
(Effective Date) upon the execution of this Agreement and closing of the
transaction.
1.02 Exchange of Stock. At the Effective Date, by virtue of the
Acquisition, all of the APTI Shares that are issued and outstanding at the
Effective Date shall be exchanged for 1,200,000* unregistered
shares (* said number of HESG shares to be adjusted to a value of
$828,000 based on the closing stock price the day
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before closing) of common stock of HESG (HESG Shares), which by agreement
of the shareholders of APTI shall be issued as follows:
SHAREHOLDER NUMBER OF HESG SHARES
----------- ---------------------
UTEK Corporation 1,200,000*
1.03 Effect of Acquisition.
(a) Rights in APTI Cease. At and after the Effective Date, the
holder of each certificate of common stock of APTI shall cease to have any
rights as a shareholder of APTI.
(b) Closure of APTI Shares Records. From and after the Effective
Date, the stock transfer books of APTI shall be closed, and there shall be no
further registration of stock transfers on the records of APTI.
1.04 Closing. Subject to the terms and conditions of this Agreement, the
Closing of the Acquisition shall take place November 22nd, 2004.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.01 Representations and Warranties of UTEK and APTI. UTEK and APTI
represent and warrant to HESG that the facts set forth below are true and
correct:
(a) Organization. APTI 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 APTI have been provided to HESG and such documents are
presently in effect and have not been amended or modified.
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(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 APTI 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 APTI 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 APTI consists of
1,000,000 shares of common stock with a par value $1.00 per share. At the date
of this Agreement, 1,000 APTI Shares are issued and outstanding as follows:
SHAREHOLDER NUMBER OF APTI SHARES
----------- ---------------------
UTEK CORPORATION 1000
All issued and outstanding APTI Shares have been duly authorized and validly
issued and are fully paid and
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non-assessable shares and have not been issued in violation of any preemptive
or other rights of any other person or any applicable laws. APTI is not
authorized to issue any preferred stock. All dividends on APTI 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 APTI to issue any APTI Shares or securities convertible
into APTI Shares to anyone for any reason whatsoever. None of the APTI 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 APTI or
UTEK is a party and will not create a default under any such obligation or
under any agreement to which APTI or UTEK is a party. This Agreement
constitutes a legal, valid and binding obligation of each of UTEK and APTI,
enforceable against each 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.
(e) Litigation Relating to this Agreement. There are no suits,
actions or proceedings pending or, to the best of APTI 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 APTI.
(f) No Conflicting Agreements. Neither the execution and delivery
of this Agreement nor the fulfillment of or compliance by APTI 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,
APTI or UTEK's articles of incorporation or bylaws, the Technology, the License
Agreement, or any agreement, contract, instrument, order, judgment or decree to
which APTI or UTEK is a party or by which APTI 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.
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(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 APTI and UTEK or performance of the
obligations of APTI and UTEK hereunder or under any other agreement to which
APTI 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 APTI or
its assets or business.
(h) Title to Assets. APTI 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
APTI. APTI has or will by Closing 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) Cornell University (CORNELL) owns the Technology and
has all right, power, authority and ownership and entitlement to file,
prosecute and maintain in effect the Patent and Patent applications with
respect to the Inventions listed in Exhibit A hereto.
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(2) The License Agreement between CORNELL and APTI covering
the Inventions is 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,
HESG acknowledges and understands that APTI 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
(4) Except as otherwise expressly set forth in this
Agreement, APTI 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 APTI. On the date hereof and on the Closing
Date, APTI has no (and will not have any) assets, no liabilities or obligations
of any kind, character or description except those listed on the attached
Financial Statements.
(k) Financial Statements. The unaudited financial statements of
APTI, including a balance sheet dated as of November 22nd, 2004, attached as
Exhibit B and made a part of this Agreement (the "Financial Statements") have
been prepared from the books and records of APTI consistently applied, are in
all respects, true, complete and correct and present fairly APTI's financial
position and the results of its operations on the dates and for the periods
shown in this Agreement. Such Financial Statements have been prepared in
accordance with generally accepted accounting principles. APTI 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 APTI except as specifically set forth in the Financial
Statements. (When used in this Agreement, "liabilities" shall mean debts,
liabilities, obligations, duties and responsibilities of any kind and
description (whether absolute or contingent, monetary or non-monetary, direct
or indirect, known or unknown or matured or unmatured, or of any other nature).
There is no information known to APTI or UTEK that would prevent the financial
statements of APTI from being audited in accordance with generally accepted
accounting principles. The records and books of account of APTI reflect all
transactions thereof and have been regularly kept and maintained consistently
applied. None of the Financial Statements, including the notes thereto,
contains any untrue statement of fact, or omits to state any fact necessary in
order to make the statements contained in this paragraph or therein not
misleading.
(l) Taxes. All returns, reports, statements and other similar
filings required to be filed by APTI 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 APTI 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 APTI by
any taxing authority, have been properly paid, except to the extent reflected
on APTI's Financial Statements, where APTI 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.
APTI has not received any notice of assessment or proposed assessment in
connection with any tax returns, nor is APTI 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. APTI 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. APTI has made all deposits required by law to
be made with respect to employees' withholding and other employment taxes,
including
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without limitation the portion of such deposits relating to taxes imposed upon
APTI. APTI is not and has never been a party to any tax sharing agreements with
any other person or entity.
(m) Absence of Certain Changes or Events. From the date of the
full execution of the Term Sheet until the Closing Date, APTI has not, and
without the written consent of HESG, it will not have:
(1) Sold, encumbered, assigned let lapsed or transferred
any of its assets, including without limitation the Intellectual Property, the
License Agreement or any other material asset;
(2) Amended or terminated the License Agreement or other
agreement or done any act or omitted to do any act which would cause the breach
of the License Agreement or any other agreement;
(3) Suffered any damage, destruction or loss whether or not
in control of APTI;
(4) Made any commitments or agreements for capital
expenditures or otherwise;
(5) Entered into any transaction or made any commitment not
disclosed to HESG;
(6) Incurred any obligation or liability for borrowed money
in the aggregate in excess of $500;
(7) Suffered any other event of any character, which is
reasonable to expect, would adversely
affect the future condition (financial or
otherwise) assets or liabilities or
business of APTI; or
(8) Taken any action that could reasonably be foreseen to
make any of the representations or
warranties made by APTI or UTEK untrue as
of the date of this Agreement or as of the
Closing Date.
(n) Agreements. Exhibit A attached contains a true and complete
list of all contemplated and executed agreements between APTI and a third
party. A complete and accurate copies of all agreements, contracts and
commitments between APTI and any third party, whether written or oral to which
it is a party or is bound (Contracts), has been provided to HESG 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 APTI and such each such third party in accordance with their
respective terms and will continue to be valid and enforceable following the
Acquisition. Neither APTI nor any such third party is 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 APTI; and
(2) There are no outstanding operating agreements, lease
agreements or similar agreements by which APTI is bound; and
(3) The complete final drafts of the License Agreement have
has been provided to HESG; 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, license or otherwise dispose of any of APTI's property; and
(6) There are no breaches of any agreement to which APTI is
a party.
(o) Compliance with Laws. APTI 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 APTI or UTEK,
threatened against APTI, the Technology, or Patent License Agreement, affecting
its assets or business (financial or otherwise), and neither APTI 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 APTI 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, adversely affect the assets or business of
APTI or the transactions contemplated.
(q) Employees. APTI has no and never had any employees. APTI is
not a party to or bound by any employment agreement or any collective
bargaining agreement with respect to any employees. APTI is not in violation of
any law, regulation relating to employment of employees.
(r) Neither APTI nor UTEK has any knowledge of any or threatened
existing occurrence, action or development that could cause a material adverse
effect on APTI or its business, assets or condition (financial or otherwise) or
prospects.
(s) Employee Benefit Plans. APTI 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 APTI 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 APTI 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. APTI. All representations or warranties of
UTEK and APTI contained herein or in any Schedule or Exhibit 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.
2.02 Representations and Warranties of HESG. HESG represents and
warrants to UTEK and APTI that the facts set forth are true and correct.
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(a) Organization. HESG is a corporation duly organized, validly
existing and in good standing under the laws of Colorado, 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 HESG; 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 HESG consists of
50,000,000 (Fifty Million) shares of common stock with a par value $0.001 per
share (HESG Common Shares) and on the Effective Date of the Acquisition,
17,496,200 (Seventeen Million, Four Hundred Ninety Six Thousand, Two Hundred)
HESG Shares (which will include the 1,200,000* HESG Shares issued and to be
adjusted at the closing of the Acquisition) will be issued and outstanding. All
issued and outstanding HESG 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.
(d) 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 HESG is a party and will not
create a default hereunder, and this Agreement constitutes a legal, valid and
binding obligation of HESG, 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.
(e) 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 HESG.
(f) No Conflicting Agreements. Neither the execution and delivery
of this Agreement nor the fulfillment of or compliance by HESG 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, their respective corporate charters 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.
(g) Consents. Assuming the correctness of UTEK and APTI'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 HESG or its assets or business.
(h) Financial Statements. The unaudited financial statements of
HESG attached as Exhibit C present fairly its 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. HESG 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
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assets or the financial condition since the date of its financial
statements. There are no outstanding obligations or liabilities of HESG except
as specifically set forth in the HESG financial statements.
(i) Full Disclosure. All representations or warranties of HESG
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.
(j) Compliance with Laws. HESG 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, except where any such non-compliance would not have a material
adverse effect on HESG.
(k) 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 HESG,
threatened against HESG materially affecting its assets or business (financial
or otherwise), and HESG 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 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.
2.03 Investment Representations of UTEK. UTEK represents and warrants to
HESG 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 HESG Shares pursuant to the Acquisition. It is able to bear the
economic risk of the investment in HESG Shares, including the risk of a total
loss of the investment in HESG Shares. The acquisition of HESG 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 HESG
is true and correct. It has conducted all investigations and due diligence
concerning HESG 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 HESG concerning HESG Shares and the business and
financial condition of and prospects for HESG, and the officers and directors
of HESG have adequately answered all questions asked and made all relevant
information available to them. UTEK is an Aaccredited 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 HESG
Shares will not be registered and UTEK will not be permitted to sell or
otherwise transfer the HESG Shares in any transaction in contravention of the
following legend, which will be imprinted in substantially the following form
on the stock certificate representing HESG 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
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OPINION OF COUNSEL STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
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 when necessary, its
respective shareholders and obtain approval of this Agreement. Copies of
corporate actions taken shall be provided to each party.
3.02 Access to Information. Each party agrees to permit, upon reasonable
notice, the attorneys, accountants, and other representatives of the other
parties 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, 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
challenge the right, title and interest of UTEK in the APTI Shares or the right
of APTI 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 and the Consulting Agreement are valid and in
full force and effect without any default in this Agreement.
4.07. HESG shall have received, at Closing Date, each of the following:
(a) the stock certificates representing the APTI Shares, duly
endorsed (or accompanied by duly executed stock powers) by UTEK for
cancellation;
(b) all documentation relating to APTI's business, all in a form
and substance satisfactory to HESG;
(c) such agreements, files and other data and documents
pertaining to APTI's business as HESG may reasonably request;
(d) copies of the general ledgers and books of account of APTI,
and all federal, state and local income, franchise, property and other tax
returns filed by APTI since the inception of APTI;
(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 APTI in Florida;
(f) the original corporate minute books of APTI, including the
articles of incorporation and bylaws of APTI, and all other documents filed in
this Agreement;
(g) all consents, assignments or related documents of conveyance
to give HESG 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 HESG and APTI, and
(i) such other documents, instruments or certificates as HESG, or
their counsel may reasonably request.
4.08. HESG shall have completed due diligence investigation of APTI to
HESG's satisfaction in their sole discretion.
4.09. HESG shall receive the resignation effective the Closing Date of
each director and officer of APTI.
ARTICLE 5
LIMITATIONS
5.01. Survival of Representations and Warranties.
(a) The representations and warranties made by UTEK and APTI 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 HESG shall survive
for a period of 1 year
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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. Limitations
on Liability. Notwithstanding any other provision to this Agreement the
contrary, neither party to this Agreement shall be liable to the other party
for any cost, damage, expense, liability or loss under this indemnification
provision until after the sum of all amounts individually when added to all
other such amounts in the aggregate exceeds $1,000 and then such liability
shall apply only to matters in excess of $1,000.
5.02 Indemnification. Each party agrees to indemnify the other party
hereto (and its officers, directors, employees and shareholders) against and
hold them harmless from any and all losses, liabilities, costs, damages
(including lost profits), claims and expenses (including, without limitation,
attorneys' fees, consultants', accountants' and disbursements) (collectively,
"Damages"), as incurred, which they may sustain at any time by reason of the
breach or inaccuracy of or failure to comply with any of the warranties,
representations, conditions, covenants or agreements of such indemnifying party
contained in 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.
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 Los Angeles, CA. 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 HESG, 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.
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8.02. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective permitted successors and assigns.
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 interpreted and construed by and
in accordance with the laws of the State of California 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.
(SIGNATURES ON THE FOLLOWING PAGE)
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HEALTH SCIENCES GROUP, INC. APPLE PEEL TECHNOLOGIES, INC.
By:___________________________ By:____________________________
Xxxx X. Xxxxxxx, Xxxx Xxxxxxx
CEO President
Address: Address:
Xxxxxx Xxxxxx Center 000 Xxxxx Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxx, 0xx Xxxxx Xxxxx Xxxx, Xxxxxxx 00000
Xxx Xxxxxxx, XX 00000
Date: _________________________ Date: _________________________
UTEK CORPORATION
By:___________________________
Xxxxxxxx X. Xxxxx, Ph.D.
Chief Executive Officer
Address:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxx 00000
Date: _________________________
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EXHIBIT A
OUTSTANDING AGREEMENTS
LICENSE AGREEMENT FROM CORNELL UNIVERSITY
CONSULTING AGREEMENT WITH DR. RUI XXX XXX.
Page 16 of 18
EXHIBIT B
APPLE PEEL TECHNOLOGIES, INC.
FINANCIAL STATEMENTS AS OF NOVEMBER 22ND, 2004
Page 17 of 18
EXHIBIT C
HESG CORPORATION
CURRENT FORM 10-QSB
FOR THE FISCAL QUARTER ENDING SEPTEMBER 30, 2004
INCLUDING FINANCIAL STATEMENTS
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