Exhibit 2.1 Agreement and Plan of Acquisition
________________________________________________________________________________
ACQUISITION OF VIGLIANT NETWORK TECHNOLOGIES, INC.
by
MANAKOA SERVICES CORPORATION
________________________________________________________________________________
AGREEMENT AND PLAN OF ACQUISITION
This Agreement and Plan of Acquisition (Agreement) is entered into by and
between Vigilant Network Technologies, Inc., a Florida corporation, (VNTI), UTEK
CORPORATION, a Delaware corporation, (UTEK), and MANAKOA SERVICES CORPORATION, a
Nevada corporation, (Manakoa Services)
WHEREAS, UTEK owns 100% of the issued and outstanding shares of common
stock of VNTI (VNTI Shares); and
WHEREAS, before the Closing Date, VNTI will acquire the license for the
fields of use as described in the License Agreement and Work For Others
Agreement as described and which are attached hereto as part of Exhibit A 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
VNTI will be acquired by Manakoa Services in a stock-for-stock exchange
(Acquisition) in accordance with the respective corporation laws of their
state, upon consummation of which all VNTI Shares will be owned by Manakoa
Services, and all issued and outstanding VNTI Shares will be exchanged for
common stock of Manakoa Services 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 VNTI Shares shall be
acquired from UTEK by Manakoa Services in accordance with the respective
corporation laws of their state and the provisions of this Agreement and the
separate corporate existence of VNTI, as a wholly-owned subsidiary of Manakoa
Services, 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 VNTI Shares that are issued and outstanding at the
Effective Date shall be exchanged for 5,365,854 unregistered shares of common
stock of Manakoa Services (Manakoa Services Shares) ( to be adjusted to a value
of $2,200,000 based on the closing stock price of MKOS on the day of execution
of this agreement which is $.41 per share), which by agreement of the
shareholders of VNTI shall be issued as follows:
Shareholder Number of Manakoa Services Shares
-------------------------- -------------------------------------------
UTEK Corporation 5,365,854
1.03 Effect of Acquisition.
(a) Rights in VNTI Cease. At and after the Effective Date, the holder of
each certificate of common stock of VNTI shall cease to have any rights as a
shareholder of VNTI.
(b) Closure of VNTI Shares Records. From and after the Effective Date, the
stock transfer books of VNTI shall be closed, and there shall be no further
registration of stock transfers on the records of VNTI.
1.04 Closing. Subject to the terms and conditions of this Agreement, the
Closing of the Acquisition shall take place June 30th, 2004.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.01 Representations and Warranties of UTEK and VNTI. UTEK and VNTI
represent and warrant to Manakoa Services that the facts set forth below are
true and correct:
(a) Organization. VNTI 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 VNTI have been provided to Manakoa Services 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 VNTI 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 VNTI 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 VNTI consists of 1,000,000
shares of common stock with a par value $.01 per share. At the date of this
Agreement, 1,000 VNTI Shares are issued and outstanding as follows:
Shareholder Number of VNTI Shares
-------------------------- -------------------------------------------
UTEK Corporation 1000
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All issued and outstanding VNTI 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. VNTI
is not authorized to issue any preferred stock. All dividends on VNTI 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 VNTI to issue any VNTI Shares or securities
convertible into VNTI Shares to anyone for any reason whatsoever. None of the
VNTI 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 VNTI or UTEK is a party and
will not create a default under any such obligation or under any agreement to
which VNTI or UTEK is a party. This Agreement constitutes a legal, valid and
binding obligation of VNTI, 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 VNTI 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 VNTI.
(f) No Conflicting Agreements. Neither the execution and delivery of this
Agreement nor the fulfillment of or compliance by VNTI 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, VNTI or UTEK's articles
of incorporation or bylaws, the Technology, the License Agreement, or any
agreement, contract, instrument, order, judgment or decree to which VNTI or UTEK
is a party or by which VNTI 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 VNTI and UTEK or performance of the obligations of VNTI and
UTEK hereunder or under any other agreement to which VNTI 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 VNTI or its assets or business.
(h) Title to Assets. VNTI 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 VNTI. VNTI 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.
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(i) Intellectual Property.
(1) Los Alamos National Laboratory, Operated by the University of
California for the National Nuclear Security Administration of the US
Department of Energy. (LANL) 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.
(2) The License Agreement between LANL and VNTI 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, Manakoa Services
acknowledges and understands that VNTI 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, VNTI
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 VNTI. VNTI 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 VNTI,
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 VNTI'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. VNTI 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 VNTI except as specifically set forth in the financial statements and the
other attached schedules and exhibits. There is no information known to VNTI or
UTEK that would prevent the financial statements of VNTI 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 VNTI 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 VNTI 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 VNTI by any taxing authority, have been
properly paid, except to the extent reflected on VNTI's financial statements,
where VNTI 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. VNTI has not received any notice of
assessment or proposed assessment in connection with any tax returns, nor is
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(l) Taxes - continued
VNTI 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. VNTI 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. VNTI 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 VNTI. VNTI 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, VNTI has not, and without
the written consent of Manakoa Services, 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 VNTI;
(4) Made any commitments or agreements for capital expenditures or
otherwise;
(5) Entered into any transaction or made any commitment not disclosed
to Manakoa Services;
(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 VNTI; or
(8) Taken any action, which could reasonably be foreseen to make any
of the representations or warranties made by VNTI 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 VNTI 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 Manakoa Services 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 VNTI in accordance with their respective terms and will continue
to be valid and enforceable following the Acquisition. VNTI is not in default of
any of the Contracts. In addition:
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(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 VNTI; and
(2) There are no outstanding operating agreements, lease agreements or
similar agreements by which VNTI is bound; and
(3) The complete final drafts of the License Agreement have has been
provided to Manakoa Services; 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 VNTI's property; and
(6) There are no breaches of any agreement to which VNTI is a party.
(o) Compliance with Laws. VNTI 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 VNTI or UTEK,
threatened against VNTI, the Technology, or Patent License Agreement, affecting
its assets or business (financial or otherwise), and neither VNTI 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 VNTI 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 VNTI or
the transactions contemplated.
(q) Employees. VNTI has no and never had any employees. VNTI is not a party
to or bound by any employment agreement or any collective bargaining agreement
with respect to any employees. VNTI is not in violation of any law, regulation
relating to employment of employees.
(r) Adverse Effect. Neither VNTI nor UTEK has any knowledge of any or
threatened existing occurrence, action or development that could cause a
material adverse effect on VNTI or its business, assets or condition (financial
or otherwise) or prospects.
(s) Employee Benefit Plans. VNTI 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.
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(t) Books and Records. The books and records of VNTI 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 VNTI 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 VNTI 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 Manakoa Services. Manakoa Services
represents and warrants to UTEK and VNTI that the facts set forth are true and
correct.
(a) Organization. Manakoa Services is a corporation duly organized, validly
existing and in good standing under the laws of Nevada, 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 Manakoa Services; 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 Manakoa Services consists of
200,000,000 (Two Hundred Million) shares of common stock with a par value $0.001
per share (Manakoa Services Common Shares) and on the Effective Date of the
Acquisition, _______________ ( ) Manakoa Services Shares (which will include the
_______________ ( ) Manakoa Services Shares issued at the closing of the
Acquisition) will be issued and outstanding. All issued and outstanding Manakoa
Services 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 Manakoa Services is a party and will not create
a default hereunder, and this Agreement constitutes a legal, valid and binding
obligation of Manakoa Services, enforceable in accordance with its terms, except
as the enforcement may be limited by bankruptcy, insolvency, moratorium, or
similar laws affecting creditor's rights generally and by the availability of
injunctive relief, specific performance or other equitable remedies.
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(e) Litigation Relating to this Agreement. There are no suits, actions or
proceedings pending or to 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
Manakoa Services.
(f) No Conflicting Agreements. Neither the execution and delivery of this
Agreement nor the fulfillment of or compliance by Manakoa Services 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 VNTI'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 Manakoa Services or its assets or business.
(h) Financial Statements. The unaudited financial statements of Manakoa
Services 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. Manakoa Services 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 Manakoa Services except as specifically set forth
in the Manakoa Services financial statements.
(i) Full Disclosure. All representations or warranties of Manakoa Services
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. Manakoa Services 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 Manakoa
Services, threatened against Manakoa Services materially affecting its assets or
business (financial or otherwise), and Manakoa Services 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
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(k) Litigation - continued
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. Manakoa Services has no knowledge of
any existing or threatened occurrence, action or development that could cause a
material adverse affect on Manakoa Services or its business, assets or condition
(financial or otherwise) or prospects.
(l) Development. Manakoa Services agrees and warrants that it has the
expertise necessary to and has had the opportunity to independently evaluate the
inventions of the Licensed Patents and develop same for the market.
2.03 Investment Representations of UTEK. UTEK represents and warrants to
Manakoa Services 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
Manakoa Services Shares pursuant to the Acquisition. It is able to bear the
economic risk of the investment in Manakoa Services Shares, including the risk
of a total loss of the investment in Manakoa Services Shares. The acquisition of
Manakoa Services 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 Manakoa Services is true and correct. It has conducted
all investigations and due diligence concerning Manakoa Services 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 Manakoa Services
concerning Manakoa Services Shares and the business and financial condition of
and prospects for Manakoa Services, and the officers and directors of Manakoa
Services 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 Manakoa
Services Shares will not be registered and UTEK will not be permitted to sell or
otherwise transfer the Manakoa Services Shares in any transaction in
contravention of the following legend, which will be imprinted in substantially
the following form on the stock certificate representing Manakoa Services
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.
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(c) Legend. Manakoa Services agrees to and shall direct its transfer agent
to remove the above legend and the legend from all Manakoa Services shares held
by UTEK within 120 days of the execution of this Agreement. Manakoa Services
agrees to and promptly shall provide any information requested by UTEK or UTEK's
counsel and to make sure 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 Section 144 or other available exemption from
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.
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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 VNTI Shares or the right of VNTI 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 VNTI, the License Agreement and the
Work for Others Agreement are valid and in full force and effect without any
default in this Agreement.
4.07. Manakoa Services shall have received, at or within 5 days of Closing
Date, each of the following:
(a) the stock certificates representing the VNTI Shares, duly endorsed (or
accompanied by duly executed stock powers) by UTEK for cancellation;
(b) all documentation relating to VNTI's business, all in a form and
substance satisfactory to Manakoa Services;
(c) such agreements, files and other data and documents pertaining to
VNTI's business as Manakoa Services may reasonably request;
(d) copies of the general ledgers and books of account of VNTI, and all
federal, state and local income, franchise, property and other tax returns filed
by VNTI since the inception of VNTI;
(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 VNTI
in Florida;
(f) the original corporate minute books of VNTI, including the articles of
incorporation and bylaws of VNTI, and all other documents filed in this
Agreement;
(g) all consents, assignments or related documents of conveyance to give
Manakoa Services 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 Manakoa Services and VNTI, and
(i) such other documents, instruments or certificates as Manakoa Services,
or their counsel may reasonably request.
4.08. Manakoa Services shall have completed due diligence investigation of
VNTI to Manakoa Service's satisfaction in their sole discretion.
4.09. Manakoa Services shall receive the resignation effective the Closing
Date of each director and officer of VNTI.
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ARTICLE 5
Indemnification and Liability Limitation
5.01. Survival of Representations and Warranties.
(a) The representations and warranties made by UTEK and VNTI 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 Manakoa Services 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. Manakoa Services agrees that UTEK shall not
be liable under this agreement to Manakoa Services 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. Manakoa Services 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. Manakoa Services 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. Manakoa Services 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.
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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
Manakoa Services, 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.
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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)
MANAKOA SERVICES CORPORATION VIGLIANT NETWORK TECHNOLOGIES, INC.
By:___________________________ By:____________________________
Xxx Xxxxxxxxx, Xxxx Xxxxxxx
President President
Address: Address:
0000 X Xxxxxxxxx Xxxxxx 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx X Xxxxx Xxxx, Xxxxxxx 00000
Xxxxxxxxx, 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 from Los Alamos National Laboratory,
Operated by the University of California for the National Nuclear
Security Administration of the US Department of Energy. (LANL)
1) License Agreement
2) Work for Others Agreement
15
EXHIBIT B
VIGLIANT NETWORK TECHNOLOGIES, Inc.
Financial Statements as of
16
EXHIBIT C
Manakoa Services Corporation
FORM 10-QSB
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Including Audited Financial Statements
For the fiscal quarter ended March 31, 2005
17