___________________________________________________________________________
ACQUISITION OF INNOVATIVE PACKAGING TECHNOLOGIES, INC.
by
LIBERTY DIVERSIFIED HOLDINGS, INC.
___________________________________________________________________________
AGREEMENT AND PLAN OF ACQUISITION
THIS AGREEMENT AND PLAN OF ACQUISITION (Agreement) is entered into by
and between Innovative Packaging Technologies, Inc., a Florida corporation,
(IPTI), UTEK CORPORATION, a Delaware corporation, (UTEK), and Liberty
Diversified Holdings, Inc., a Nevada corporation, (LDHI)
WHEREAS, UTEK owns 100% of the issued and outstanding shares of common
stock of IPTI (IPTI Shares); and
WHEREAS, before the Closing Date, IPTI will acquire the licenses for
the fields of use as described in the License Agreements as described and
which are attached hereto as part of Exhibit A and made a part of this
Agreement (License Agreements) and the rights to develop and market a
proprietary technology for the fields of uses specified in the License
Agreements (Technology).
WHEREAS, the parties desire to provide for the terms and conditions
upon which IPTI will be acquired by LDHI in a stock for stock exchange
(Acquisition) in accordance with the respective corporation laws of their
state, upon consummation of which all IPTI Shares will be owned by LDHI,
and all issued and outstanding IPTI Shares will be exchanged for common
stock of LDHI 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 IPTI Shares
shall be acquired from UTEK by LDHI in accordance with the respective
corporation laws of their state and the provisions of this Agreement and
the separate corporate existence of IPTI, as a wholly-owned subsidiary of
LDHI, 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.
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1.02 Exchange of Stock. At the Effective Date, by virtue of the
Acquisition, all of the IPTI Shares that are issued and outstanding at the
Effective Date shall be exchanged for 16,250,000 unregistered shares of
common stock of LDHI .
--------------------------- -----------------------------
Shareholder Number of Common LDHI Shares
--------------------------- -----------------------------
UTEK Corporation 15,437,500
Aware Capital Consultants 812,500
--------------------------- -----------------------------
1.03 Effect of Acquisition.
----------------------
(a) Rights in IPTI Cease. At and after the Effective Date, the
holder of each certificate of common stock of IPTI shall cease to have any
rights as a shareholder of IPTI.
(b) Closure of IPTI Shares Records. From and after the Effective
Date, the stock transfer books of IPTI shall be closed, and there shall be
no further registration of stock transfers on the records of IPTI.
1.04 Closing. Subject to the terms and conditions of this Agreement,
the Closing of the Acquisition shall take place September 12, 2006.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.01 Representations and Warranties of UTEK and IPTI. UTEK and IPTI
represent and warrant to LDHI that the facts set forth below are true and
correct:
(a) Organization. IPTI 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 IPTI have been provided
to LDHI 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 IPTI 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 IPTI 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 IPTI consists of
1,000,000 shares of common stock with a par value $.01 per share. At the
date of this Agreement, 1,000 IPTI Shares are issued and outstanding as
follows:
All issued and outstanding IPTI 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. IPTI is not authorized to issue any preferred stock. All
dividends on IPTI Shares which have been declared prior to the date of this
Page 2 of 19
Agreement have been paid in full. There are no outstanding options,
warrants, commitments, calls or other rights or agreements requiring IPTI
to issue any IPTI Shares or securities convertible into IPTI Shares to
anyone for any reason whatsoever. None of the IPTI 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
IPTI or UTEK is a party and will not create a default under any such
obligation or under any agreement to which IPTI or UTEK is a party. This
Agreement constitutes a legal, valid and binding obligation of IPTI,
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 the best of IPTI 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 IPTI.
(f) No Conflicting Agreements. Neither the execution and
delivery of this Agreement nor the fulfillment of or compliance by IPTI 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, IPTI or UTEK's articles of incorporation or
bylaws, the Technology, the License Agreement, or any agreement, contract,
instrument, order, judgment or decree to which IPTI or UTEK is a party or
by which IPTI 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 IPTI and UTEK or performance of
the obligations of IPTI and UTEK hereunder or under any other agreement to
which IPTI 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 IPTI or its assets or business.
(h) Title to Assets. IPTI 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 IPTI. IPTI 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) The University of Arkansas (UA) owns the Technology and has
all right, power, authority and ownership and entitlement to file,
prosecute and maintain in effect the Patent application with respect to the
Inventions listed in Exhibit A hereto.
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(2) The License Agreement between UA and IPTI and the License
Agreement between Xxxx Xxxxx Xxxxx 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, LDHI
acknowledges and understands that IPTI 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, IPTI
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 IPTI. IPTI 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
IPTI, 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 IPTI'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.
IPTI 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
IPTI except as specifically set forth in the financial statements and the
other attached schedules and exhibits. There is no information known to
IPTI or UTEK that would prevent the financial statements of IPTI 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 IPTI 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 IPTI 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 IPTI by any taxing authority, have been properly paid, except to
the extent reflected on IPTI's financial statements, where XXXX 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. IPTI has not received any notice of
assessment or proposed assessment in connection with any tax returns, nor
is IPTI 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. IPTI 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. IPTI has made all deposits required by law to
be made with respect to employees' withholding and other employment taxes,
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including without limitation the portion of such deposits relating to taxes
imposed upon IPTI. IPTI 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, IPTI has not, and
without the written consent of LDHI, 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 IPTI;
(4) Made any commitments or agreements for capital
expenditures or otherwise;
(5) Entered into any transaction or made any commitment not
disclosed to LDHI;
(6) Incurred any material 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) assets or liabilities or business of IPTI; or
(8) Taken any action, which could reasonably be foreseen to
make any of the representations or warranties made by IPTI 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 IPTI 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 LDHI
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 IPTI in accordance with their respective terms
and will continue to be valid and enforceable following the Acquisition.
IPTI 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 IPTI; and
(2) There are no outstanding operating agreements, lease
agreements or similar agreements by which IPTI is bound; and
(3) The complete final drafts of the License Agreement have
been provided to LDHI; 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
(5) There are no outstanding agreements or commitments to
sell, lease or otherwise dispose of any of IPTI's property; and
Page 6 of 19
(6) There are no breaches of any agreement to which IPTI is
a party.
(o) Compliance with Laws. IPTI 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 IPTI or
UTEK, threatened against IPTI, the Technology, or License Agreement,
affecting its assets or business (financial or otherwise), and neither IPTI
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 IPTI 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 IPTI or the
transactions contemplated.
(q) Employees. IPTI has no and never had any employees. IPTI is
not a party to or bound by any employment agreement or any collective
bargaining agreement with respect to any employees. IPTI is not in
violation of any law, regulation relating to employment of employees.
(r) Adverse Effect. Neither IPTI nor UTEK has any knowledge of
any or threatened existing occurrence, action or development that could
cause a material adverse effect on IPTI or its business, assets or
condition (financial or otherwise) or prospects.
(s) Employee Benefit Plans. IPTI 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 IPTI 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 IPTI 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 IPTI 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 LDHI. LDHI represents and
warrants to UTEK and IPTI that the facts set forth are true and correct.
Page 6 of 19
(a) Organization. LDHI is a corporation duly organized, validly
existing and in good standing under the laws of Delaware, 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 LDHI;
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 LDHI consists of
100,000,000 (One Hundred Million) shares of common stock with a par value
$0.001 per share (LDHI Common Shares) and on the Effective Date of the
Acquisition 44,469,213 (Forty-Four Million, Four Hundred, Sixty-Nine
Thousand, Two Hundred, Thirteen) LDHI Shares (which will include the
16,250,000 (Sixteen Million, Two Hundred Fifty Thousand) LDHI Common Shares
issued at the closing of the Acquisition) will be issued and outstanding.
All issued and outstanding LDHI 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) Anti Dilution Adjustments. UTEK currently owns 50,000 common
shares of LDHI and will be acquiring an additional 15,437,500 unregistered
shares of LDHI totaling 15,437,550 unregistered shares; and based on a
total of 44,469,213 issued shares this total will represent a 34.7%
ownership position in LDHI shares on an "as if converted basis". For a
period of twelve months from the Effective date of this Agreement, the
aggregate number of shares of Stock that Xxxx has received shall be
adjusted proportionately by the Board of Directors of LDHI for any increase
in the number of outstanding shares of Stock 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.
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, with the following exceptions:
i. LDHI currently has no Employment Agreements in place. However,
the Board of Directors is currently in the process of negotiating
Employment Agreements with the following five (5) persons, each
of will include LDHI stock as compensation for services rendered:
Xxx Xxxxxxxx (CEO & Co-Chair), Xxxxx Xxxxxxx (Co-Chair), Dr.
Xxxxxxx Xxxxx (VP Communications), Xxx Xxxxx (VP Operations) and
Xxxxx Xxxxxx (CFO).
ii. The LDHI Board of Directors currently consists of two members:
Xxx Xxxxxxxx and Xxxxx Xxxxxxx. The LDHI Board will be expanded
to five (5) total Directors and these Directors may also receive
LDHI stock as compensation for services rendered.
iii. The total number of LDHI shares issued as compensation to the
Executive Team and the Directors will either (1) not exceed a
total of 5 million shares of LDHI Common stock, or (2) can be any
number of shares of Preferred stock provided the Preferred shares
are not convertible for at least one year after the Effective
Date of this Agreement.
(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 LDHI is a party and xxxx
Xxxx 7 of 19
not create a default hereunder, and this Agreement constitutes a legal,
valid and binding obligation of LDHI, 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 LDHI.
(g) No Conflicting Agreements. Neither the execution and
delivery of this Agreement nor the fulfillment of or compliance by LDHI
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.
(h) Consents. Assuming the correctness of UTEK and IPTI'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 LDHI or its assets or business.
(i) Financial Statements. The unaudited financial statements of
LDHI 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. LDHI 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 outstanding obligations or liabilities of LDHI except as
specifically set forth in the LDHI financial statements.
(j) Full Disclosure. All representations or warranties of LDHI
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. LDHI 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.
(l) Litigation. There is no suit, action or any arbitration,
administrative, legal or other proceeding of any kind or character, or any
Page 8 of 19
governmental investigation pending or, to the best knowledge of LDHI,
threatened against LDHI materially affecting its assets or business
(financial or otherwise), and LDHI 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. LDHI has no
knowledge of any existing or threatened occurrence, action or development
that could cause a material adverse affect on LDHI or its business, assets
or condition (financial or otherwise) or prospects.
(m) Development. LDHI 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 develop same for the
market.
(n) Investment Company Status LDHI is not an investment company,
either registered or unregistered.
2.03 Investment Representations of UTEK.
------------------------------------
UTEK represents and warrants to LDHI 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 LDHI Shares pursuant to the Acquisition. It is able to
bear the economic risk of the investment in LDHI Shares, including the risk
of a total loss of the investment in LDHI Shares. The acquisition of LDHI
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 LDHI is true and correct. It has
conducted all investigations and due diligence concerning LDHI 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 LDHI concerning XXXX Xxxxxx and the business and financial
condition of and prospects for LDHI, and the officers and directors of LDHI
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
LDHI Shares will not be registered and UTEK will not be permitted to sell
or otherwise transfer the LDHI Shares in any transaction in contravention
of the following legend, which will be imprinted in substantially the
following form on the stock certificate representing LDHI 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 Rule 144 restrictions, 24 months
following the stock acquisition described herein, LDHI 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
Page 9 of 19
shares. LDHI 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. A letter affecting the
issuance of the certificate without the restrictive legend one year from
the date of closing is attached as Exhibit D.
(d) In the event that LDHI fails to direct its transfer agent to
remove the legend within fifteen (15) days of request by UTEK, LDHI shall
be liable to an additional fee of ten percent (10%) of the current value of
the shares held by UTEK, as well as any and all attorney fees and costs
that UTEK may incur as a result of LDHI failing to comply in this request.
(e) Stock Transfer Restrictions. UTEK will have "piggyback"
registration rights for all of the common shares it will receive in this
transaction.
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.
Page 10 of 19
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
IPTI Shares or the right of IPTI 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.
4.05. The Technology and Intellectual Property has been prosecuted
in good faith with reasonable diligence.
4.06. To the best knowledge of UTEK and IPTI, the License
Agreement are valid and in full force and effect without any default in
this Agreement.
4.07. LDHI shall have received, at or within 5 days of Closing
Date, each of the following:
(a) the stock certificates representing the IPTI Shares, duly
endorsed (or accompanied by duly executed stock powers) by UTEK for
cancellation;
(b) all documentation relating to IPTI's business, all in a form
and substance satisfactory to LDHI;
(c) such agreements, files and other data and documents
pertaining to IPTI's business as LDHI may reasonably request;
(d) copies of the general xxxxxxx and books of account of IPTI,
and all federal, state and local income, franchise, property and other tax
returns filed by IPTI since the inception of IPTI;
(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 IPTI in Florida;
(f) the original corporate minute books of IPTI, including the
articles of incorporation and bylaws of IPTI, and all other documents filed
in this Agreement;
(g) all consents, assignments or related documents of conveyance
to give LDHI 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 LDHI and IPTI,
and
(i) such other documents, instruments or certificates as LDHI,
or their counsel may reasonably request.
4.08. LDHI shall have completed due diligence investigation of
IPTI to LDHI's satisfaction in their sole discretion.
Page 11 of 19
4.09. LDHI shall receive the resignation effective the Closing
Date of each director and officer of IPTI.
ARTICLE 5
INDEMNIFICATION AND LIABILITY LIMITATION
5.01. Survival of Representations and Warranties.
(a) The representations and warranties made by UTEK and IPTI
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 LDHI 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. LDHI agrees that UTEK shall not be
liable under this agreement to LDHI 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. LDHI 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. LDHI 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 or 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. LDHI 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 fees paid to
UTEK under this Agreement.
Page 12 of 19
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 sue 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
Tampa, 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 LDHI, 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.
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 Florida 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
Page 13 of 19
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)
Page 14 of 19
LIBERTY DIVERSIFIED HOLDINGS, INC. INNOVATIVE PACKAGING TECHNOLOGIES, INC.
By:___________________________ By:____________________________
Xxx Xxxxxxxx, Xxxxxxxx Xxxxxx
Chief Executive Officer President
Address: Address:
0000 Xxxx Xxxxxxxxxx Xxxxxx,
Xxxxx 000 0000 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000 Xxxxx, Xxxxxxx 00000
Date: _________________________ Date: _________________________
UTEK CORPORATION
By:___________________________
Xxxx Xxxxxxxxx
Chief Operating Officer
Address:
0000 Xxxx Xxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Date: _________________________
UTEK CORPORATION
By:___________________________
Xxxx Xxxxxxxxx
Chief Compliance Officer
Address:
0000 Xxxx Xxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Date: _________________________
Page 15 of 19
EXHIBIT A
Outstanding Agreements
1) License Agreement with the University of Arkansas
2) License Agreement with Xxxx Xxxxx Xxxxx
Page 16 of 19
EXHIBIT B
INNOVATIVE PACKAGING TECHNOLOGIES, INC.
Financial Statements as of
Page 17 of 19
EXHIBIT C
LIBERTY DIVERSIFIED HOLDINGS, INC.
Unaudited Financial Statements
for Liberty Diversified Technologies LLC
for the QUARTER ended June 30, 2006
Page 18 of 19
EXHIBIT D
LIBERTY DIVERSIFIED HOLDINGS, INC.
Stock Transfer Letter
September _____, 2006
OTC Stock Transfer, Inc.
000 X 0000 X # 0
Xxxx Xxxx Xxxx, XX 00000
Dear Sir or Madam:
Re: Transfer of Liberty Diversified Holdings, Inc. Stock to UTEK
Corporation
This letter does hereby authorize OTC Stock Transfer, Inc., upon request by
UTEK Corporation or its authorized agent, to issue to UTEK Corporation a
new stock certificate representing 15,437,500 shares in Liberty Diversified
Holdings, Inc. These new shares issued shall be issued without a
restricted transfer legend.
The authorization for this letter shall become effective one year from the
date of this letter.
Signed,
Xxx Xxxxxxxx
Chief Executive Officer
Page 19 of 19
