ACQUISITION OF SPORT TECHNOLOGIES, INC. BY GLOTECH INDUSTRIES, INC.
AGREEMENT AND PLAN OF ACQUISITION
This Agreement and Plan of Acquisition ("Agreement") is entered into by and
between SPORT TECHNOLOGIES, INC., a Florida corporation, ("STI"), UTEK
CORPORATION, a Delaware corporation, ("UTEK"), and GLOTECH INDUSTRIES, INC., a
Nevada corporation, ("GTHI").
WHEREAS, UTEK owns 100% of the issued and outstanding shares of common stock of
STI ("STI Shares"); and
WHEREAS, before the Closing Date, STI has acquired the license for the fields of
use as described in the License Agreement, a part of Exhibit "A" attached to and
made a part of this Agreement ("License 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
STI will be acquired by GTHI in a, stock-for-stock exchange ("Acquisition") in
accordance with the respective corporation laws of their state, upon
consummation of which all STI Shares will be owned by GTHI, and all issued and
outstanding STI Shares will be exchanged for common stock of GTHI 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 STI Shares shall be
acquired from UTEK by GTHI in accordance with the respective corporation laws of
their state and the provisions of this Agreement and the separate corporate
existence of STI, as a wholly-owned subsidiary of GTHI, 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 STI Shares that are issued and outstanding at the Effective Date
shall be exchanged for 2,130,000 unregistered shares of common stock of GTHI
("GTHI Shares"), which by agreement of the shareholders of STI shall be issued
as follows:
1
Shareholder Number of GTHI Shares
------------------ ------------------------
UTEK Corporation 2,130,000
1.03 Effect of Acquisition.
(a) Rights in STI Cease. At and after the Effective Date, the holder of each
certificate of common stock of STI shall cease to have any rights as a
shareholder of STI.
(b) Closure of STI Shares Records. From and after the Effective Date, the
stock transfer books of STI shall be closed, and there shall be no further
registration of stock transfers on the records of STI.
1.04 Closing. Subject to the terms and conditions of this Agreement, the
Closing of the Acquisition shall take place on or before August 28, 2003
("Closing Date") unless extended by mutual consent of the parties in writing.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.01 Representations and Warranties of UTEK and STI. UTEK and STI represent
and warrant to GTHI that the facts set forth below are true and correct:
(a) Organization. STI 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 STI have been provided to GTHI 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 STI 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 STI 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 STI 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 STI Shares are issued and outstanding as follows:
Shareholder Number of STI Shares
----------------- -----------------------
UTEK Corporation 1,000
All issued and outstanding STI 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. STI
is not authorized to issue any preferred stock. All dividends on STI 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 STI to issue any STI Shares or securities
2
convertible into STI Shares to anyone for any reason whatsoever. None of the STI
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 STI or UTEK is a party and
will not create a default under any such obligation or under any agreement to
which STI or UTEK is a party. This Agreement constitutes a legal, valid and
binding obligation of STI, 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 STI 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 STI.
(f) No Conflicting Agreements. Neither the execution and delivery of this
Agreement nor the fulfillment of or compliance by STI 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, STI or UTEK's articles
of incorporation or bylaws, the Technology, the License Agreement, or any
agreement, contract, instrument, order, judgment or decree to which STI or UTEK
is a party or by which STI 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 STI and UTEK or performance of the obligations of STI and UTEK
hereunder or under any other agreement to which STI 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 STI or its assets or business.
(h) Title to Assets. STI 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 STI. STI 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) Xxxx X. Xxxxx (PDM) 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 Invention listed in Exhibit A
hereto, and
(2) The Technology was invented by Xxxx X. Xxxxx ("Inventor"),
3
(3) The License Agreement between the PDM and STI covering the Invention is
legal, valid, binding and will be enforceable in accordance with its terms as
contained in Exhibit A.
(4) Except as otherwise set forth in this Agreement, GTHI acknowledges and
understands that STI 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
(5) Except as otherwise expressly set forth in this Agreement, STI 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 STI. STI 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 STI,
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 STI'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. STI 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 STI except as specifically set forth in the financial statements and the
other attached schedules and exhibits. There is no information known to STI or
UTEK that would prevent the financial statements of STI 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 STI 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 STI 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 STI by any taxing authority, have been
properly paid, except to the extent reflected on STI's financial statements,
where STI 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. STI has not received any notice of
assessment or proposed assessment in connection with any tax returns, nor is STI
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.
STI 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. STI 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 STI. STI 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, STI has not, and without the
written consent of GTHI, it will not have:
4
(1) Sold, encumbered, assigned let lapsed or transferred any of its material
assets, including without limitation the Intellectual Property, the Patent
License Agreement or any other material asset;
(2) Amended or terminated the Patent License Agreement or other material
agreement or done any act or omitted to do any act which would cause the breach
of the Patent License Agreement or any other material agreement;
(3) Suffered any damage, destruction or loss whether or not in control of
STI;
(4) Made any commitments or agreements for capital expenditures or
otherwise;
(5) Entered into any transaction or made any commitment not disclosed to
GTHI;
(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 STI; or
(8) Taken any action which could reasonably be foreseen to make any of the
representations or warranties made by STI 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 STI and a third party.
A complete and accurate copies 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 GTHI 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 STI in accordance with their respective terms and will continue
to be valid and enforceable following the Acquisition. STI 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 STI; and
(2) There are no outstanding operating agreements, lease agreements or
similar agreements by which STI is bound; and
(3) The complete final drafts of the License Agreement have has been
provided to GTHI; 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 STI's property; and
(6) There are no breaches of any agreement to which STI is a party.
(o) Compliance with Laws. STI 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.
5
(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 STI or UTEK,
threatened against STI, the Technology, Patent License Agreement, Consulting
Agreement or Research Agreement affecting its assets or business (financial or
otherwise), and neither STI 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 STI 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 STI or the transactions contemplated.
(q) Employees. STI has no and never had any employees. STI is not a party to
or bound by any employment agreement or any collective bargaining agreement with
respect to any employees. STI is not in violation of any law, regulation
relating to employment of employees.
(r) Neither STI nor UTEK has any knowledge of any existing or threatened
occurrence, action or development that could cause a material adverse effect on
STI or its business, assets or condition (financial or otherwise) or prospects.
(s) Employee Benefit Plans. STI 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 STI 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 STI 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 STI 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 GTHI. GTHI represents and warrants
to UTEK and STI that the facts set forth are true and correct.
(a) Organization. GTHI is a corporation duly organized, validly existing
and in good standing under the laws of Florida, 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 GTHI; no other corporate
6
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 GTHI consists of 50,000,000
shares of common stock with a par value $.001 per share ("GTHI Shares"); and on
the Effective Date of the Acquisition, 22,380,000 GTHI Shares (which will
include the 2,130,000 GTHI Shares issued at the closing of the Acquisition) will
be issued and outstanding. All issued and outstanding GTHI 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 GTHI is a party and will not create a default
hereunder, and this Agreement constitutes a legal, valid and binding obligation
of GTHI, 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
GTHI.
(f) No Conflicting Agreements. Neither the execution and delivery of this
Agreement nor the fulfillment of or compliance by GTHI with the terms or
provisions of 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, 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 STI'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 GTHI or its
assets or business.
(h) Financial Statements. The unaudited financial statements of GTHI
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. GTHI 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 GTHI except as specifically set forth in the GTHI financial
statements.
(i) Full Disclosure. All representations or warranties of GTHI 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
7
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. GTHI 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.
(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 GTHI, threatened
against GTHI materially affecting its assets or business (financial or
otherwise), and GTHI 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.
(l) GTHI has no knowledge of any existing or threatened occurrence, action
or development that could cause a material adverse effect on GTHI or its
business, assets or condition (financial or otherwise) or prospects.
2.03 Investment Representations of UTEK. UTEK represents and warrants to
GTHI 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
GTHI Shares pursuant to the Acquisition. It is able to bear the economic risk of
the investment in GTHI Shares, including the risk of a total loss of the
investment in GTHI Shares. The acquisition of GTHI 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 GTHI is true
and correct. It has conducted all investigations and due diligence concerning
GTHI 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 GTHI concerning GTHI Shares and the business and financial
condition of and prospects for GTHI, and the officers and directors of GTHI 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 GTHI Shares will not be registered and UTEK will not
be permitted to sell or otherwise transfer the GTHI Shares in any transaction in
contravention of the following legend, which will be imprinted in substantially
the follow form on the stock certificate representing GTHI 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.
8
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 STI Shares or the right of STI or
UTEK to consummate the Acquisition contemplated hereunder.
9
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 STI, the License Agreement is valid
and in full force and effect without any default in this Agreement.
4.07. GTHI shall have received, at or within 5 days of Closing Date, each of
the following:
(a) the stock certificates representing the STI Shares, duly endorsed (or
accompanied by duly executed stock powers) by UTEK for cancellation;
(b) all documentation relating to the STI's business, all in a form and
substance satisfactory to GTHI;
(c) such agreements, files and other data and documents pertaining to STI's
business as GTHI may reasonably request;
(d) copies of the general ledgers and books of account of STI, and all
federal, state and local income, franchise, property and other tax returns filed
by STI since the inception of STI;
(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 STI in
Florida;
(f) the original corporate minute books of STI, including the articles of
incorporation and bylaws of STI, and all other documents filed in this
Agreement;
(g) all consents, assignments or related documents of conveyance to give
GTHI 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 GTHI and STI, and
(i) such other documents, instruments or certificates as GTHI, or their
counsel may reasonably request.
4.08. GTHI shall have completed due diligence investigation of STI to GTHI's
satisfaction in their sole discretion.
4.09. GTHI shall receive the resignation effective the Closing Date of each
director and officer of STI.
ARTICLE 5
LIMITATIONS
5.01. Survival of Representations and Warranties.
(a) The representations and warranties made by UTEK and STI 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.
10
(b) The representations and warranties made by GTHI 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. 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.
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 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 GTHI, 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.
11
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 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.
GloTech Industries, Inc. SPORT TECHNOLOGIES, INC.
By:/s/ Xxxxx Xxxxxxxxxxx By:/s/ Xxx X. Xxxxxx
-------------------------- -----------------------
Xxxxx Xxxxxxxxxxx Xxx X. Xxxxxx, Esq.
President and CEO President
Address: Address:
0000 XX Xxxxxxxxx Xxxx 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000 Xxxxx Xxxx, Xxxxxxx 00000
UTEK CORPORATION
By:/s/ Xxxxxxxx X. Xxxxx
---------------------------
Xxxxxxxx X. Xxxxx, Ph.D.
Chief Executive Officer
Address:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxx 00000
12
