EXHIBIT 2
ACQUISITION OF
ADVANCED MICROSPHERE TECHNOLOGY, INC. BY
PRIME PHARMACEUTICAL CORPORATION
AGREEMENT AND PLAN OF ACQUISITION
This acquisition Agreement ("Agreement") is entered into by and among PRIME,
Inc. ("PRIME"), an Ontario, Canada Corporation, Advanced Microsphere Technology,
Inc. (AMTI) a Florida Corporation and UTEK Corporation, a Delaware Corporation
("UTEK").
WHEREAS, UTEK owns 100% of the outstanding shares of the capital stock of AMTI;
and
WHEREAS, AMTI has negotiated with the Curators of the University of Missouri
(MISSOURI) and has acquired, the exclusive worldwide license (for the fields of
use described in the License Agreement contained in Exhibit A) to develop and
market a proprietary microsphere technology U.S. Provisional Patent Pending
(Application #09/241,492; Inventors: Xxxxxxx X. Day and Xxxxxx Xxxxxxx.
WHEREAS, the parties desire to provide for the terms and conditions upon which
AMTI will be acquired by PRIME in a tax free, stock for stock exchange
("Reorganization") in accordance with the respective corporation laws of their
states, upon consummation of which the assets and business of AMTI will be owned
by PRIME, and all issued and outstanding shares of capital stock of AMTI will be
exchanged for common stock of PRIME with terms and conditions as set forth more
fully herein; and
WHEREAS, for federal income tax purposes, it is intended that the Reorganization
qualify as a tax-free reorganization within the meaning of Section 368 (a)(1)(B)
of the Internal Revenue Code of 1986, as amended ("Code").
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the parties agree as follows:
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ARTICLE 1
STOCK FOR STOCK REORGANIZATION
1.01 The Acquisition
(a) Acquisition. Subject to the terms and conditions of this
Agreement, at the Effective Time, as defined below, AMTI shall be acquired by
PRIME in accordance with the laws of the respective states and the provisions of
this Agreement. The constituent corporations to this acquisition are PRIME and
AMTI.
(b) Effective Time. The acquisition shall become effective
("Effective Time") upon the execution of this Agreement.
1.02 Conversion of Stock. At the Effective Time, by virtue of the
Acquisition and without any action on the part of the shareholders of the
Constituent Corporations:
(a) All of the shares of AMTI stock that are issued and
outstanding at the Effective Time shall be converted into
560,000 shares of common stock of PRIME which by agreement of
the shareholders of AMTI shall be issued as follows:
(i) to UTEK Corporation: 560,000 shares.
1.03 Effect of Acquisition.
(a) Rights in AMTI Cease. At and after the Effective Time, the
holder of each certificate of common stock of AMTI shall cease to have any
rights as a shareholder of AMTI.
(b) Closure of AMTI Stock Records. From and after the Effective
Time, the stock transfer books of AMTI shall be closed, and there shall be no
further registration of stock transfers on the records of AMTI.
1.04 Closing. Subject to the terms and conditions of this
Agreement, the Closing of the transaction shall take place on or before
September 26, 2001, ("Closing Date") with the conveyance to follow unless
extended by mutual consent of the parties in writing.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.01 General Representations and Warranties of UTEK and AMTI. UTEK
and AMTI represents and warrants to PRIME that the facts set forth below are
true and correct:
(a) Organization. AMTI and UTEK are corporations duly organized,
validly existing and in good standing under the laws of their respective States,
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 minutes of AMTI
have been provided to PRIME 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 Reorganization and the other transactions contemplated
hereby have been duly authorized by the Board of Directors and shareholders of
AMTI 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 AMTI and UTEK have all
requisite corporate and other authority to execute and deliver this Agreement
and consummate the transactions contemplated hereby.
(c) Capitalization. The authorized capital of AMTI consists of
1,000,000 shares of common stock, par value $.01 per share; at the date hereof,
1,000 shares of common stock were issued and outstanding. UTEK owns all of the
1,000 shares in AMTI. All issued and outstanding shares of common stock of AMTI
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. AMTI is not authorized to issue any
preferred stock. All dividends on AMTI stock 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 it
to issue any shares of AMTI common stock or securities convertible into shares
of AMTI's common stock to anyone for any reason whatsoever. None of the AMTI
stock 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 Reorganization and the transactions
contemplated hereby will not violate any obligation to which AMTI or UTEK is
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a party and will not create a default hereunder; and this Agreement constitutes
a legal, valid and binding obligation of AMTI, 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. To the best knowledge
of AMTI or UTEK, there are no suits, actions or proceedings pending or
threatened which seek to enjoin the Reorganization 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,
prospects, the Patent, the License, the Sponsored Research Agreement, or the
results of the operations of AMTI.
(f) No Conflicting Agreements. Neither the execution and delivery
of this Agreement nor the fulfillment of or compliance by AMTI or UTEK with the
terms or provisions hereof nor all other documents or agreements contemplated
hereby 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, AMTI's or UTEK's corporate
charters or bylaws, the Patent Application, the License (as defined below),
Sponsored Research Agreement, or any agreement, contract, instrument, order,
judgment or decree to which AMTI is a party or by which AMTI or any of its
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 its assets or business.
(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 AMTI and UTEK or performance of the
obligations of AMTI and UTEK hereunder or under any other agreement to which
AMTI 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 Patent, the License, Sponsored Research
Agreement, or any other material right, privilege, license or agreement relating
to AMTI or its assets or business.
(h) Title to Assets. The License Agreement to be executed with the
University of MISSOURI and AMTI is contained in Exhibit A. This will be the sole
asset of AMTI. AMTI will have by the conveyance date 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.
All of the tangible assets of AMTI have been operated in accordance with
customary operating practices generally acceptable in its industry to which and
have been maintained and are in good
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working order and repair in the ordinary course of business, subject only to
reasonable and ordinary wear and tear; and
(i) Intellectual Property
i. The TECHNOLOGY is owned by University of MISSOURI.
University of MISSOURI 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
ii. The TECHNOLOGY was invented by Xxxxxxx X. Day and
Xxxxxx Xxxxxxx while they were at the University of MISSOURI,
and they have assigned their interest in the TECHNOLOGY to
University of MISSOURI; and
iii. The License Agreement to be executed by and between
the University of MISSOURI and AMTI, covering the invention is
legal, valid, binding and will be enforceable in accordance
with its terms as contained in Exhibit A.
iv. All of the tangible assets of AMTI have been operated
in accordance with customary operating practices generally
acceptable in the industry.
v. PRIME acknowledges and understands that AMTI and UTEK
make no representations and provide no assurances that the
intellectual property rights contained in the License
Agreement do not, and will not in the future, infringe or
otherwise violate the rights of others, and
vi. PRIME acknowledges and understands that except as
otherwise expressly set forth in this Agreement, AMTI and UTEK
makes no representations and extends 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 said patent
application rights, and
vii. PRIME acknowledges and understands that AMTI and UTEK
make no representations and provide no assurances that the US
Patent Application #09/241,492 referred to in the License
Agreement will be allowed by the US Patent and Trademark
Office in the future.
(j) Liabilities of AMTI. AMTI has no assets, no liabilities or
obligations of any kind, character or description except those created by the
Agreement with UNIVERSITY OF MISSOURI, copies of which have been provided to
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PRIME (Exhibit A). AMTI acknowledges and agrees to pay the University of
MISSOURI the $15,000 upfront License fee at the time of Closing.
(k) Financial Statements. The unaudited financial statements of
AMTI, including a Balance Sheet attached as (Exhibit B) and in all respects is
complete and correct and present fairly its financial position and the results
of its operations on the dates and for the periods shown therein; 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.
AMTI 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
AMTI except as specifically set forth in AMTI's Licensing and Research and
Development Agreements with the UNIVERSITY OF MISSOURI
(l) Taxes. All returns, reports, statements and other similar
filings required to be filed by AMTI 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 AMTI for taxes for the periods, property or
events covered thereby; and all taxes, whether or not reflected on those tax
returns, and all taxes claimed to be due from AMTI by any taxing authority, have
been properly paid. AMTI has not received any notice of assessment or proposed
assessment in connection with any tax returns, nor is AMTI 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. AMTI 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. AMTI 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 AMTI. AMTI 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 September 25, 2001
until the Closing Date, AMTI has not, and without the written consent of PRIME,
it will not have:
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(i) Sold, encumbered, assigned let lapsed or transferred
any of its material assets including without limitation its
intellectual property, or its License or any other material
asset; or
(ii) Amended or terminated the License or other material
contract or done any act or omitted to do any act which would
cause the breach of the License or any other material
contract; or
(iii) Suffered any damage, destruction or loss whether or
not in control of AMTI; or
(iv) Made any commitments or agreements for capital
expenditures or otherwise; or
(v) Entered into any transaction or made any commitment
not disclosed to PRIME; or
(vi) Incurred any material obligation or liability for
borrowed money
(vii) 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 AMTI.
(n) Material Contracts. Exhibit A contains a true and complete
list of all contracts. 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
PRIME and such agreements are in full force and effect without modifications or
amendment and constitute the legally valid and binding obligations of AMTI in
accordance with their respective terms and will continue to be valid and
enforceable following the Reorganization. AMTI is not in default of any of the
Contracts. In addition:
(i) 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 AMTI; and
(ii) There are no outstanding operating agreements, lease
agreements or similar agreements by which AMTI is bound; and
(iii) The complete License Agreement, and the US Patent
application has been provided to PRIME; and
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(iv) Except as set forth in (iii) above, there are no
outstanding licenses to or from others of any intellectual
property and trade names; and
(v) There are not outstanding contracts or commitments to
sell, lease or otherwise dispose of any of AMTI's property;
and
(vi) There are no breaches of any Contract
(o) Compliance with Laws. AMTI 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. To the best knowledge of AMTI there is no suit,
action or any arbitration, administrative, legal or other proceeding of any kind
or character, or any governmental investigation pending or threatened against
AMTI, the License Agreement or the Research and Development Agreement affecting
its assets or business (financial or otherwise), and AMTI 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.
(q) Employees. AMTI has no and never had any employees. AMTI is
not a party to or bound by any employment agreement or any collective bargaining
agreement with respect to any employees. AMTI is not in violation of any law,
regulation relating to employment of employees.
(r) Neither AMTI nor UTEK has any knowledge of any existing or
threatened occurrence, action or development which could cause a material
adverse effect on AMTI or its business, assets or condition (financial or
otherwise) or prospects.
(s) Employee Benefit Plans. AMTI 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 herein result in any obligation or liability to any
present or former employee.
(t) Books and Records. The books and records of AMTI are complete
and accurate in all material respects, fairly present its business and
operations, have been maintained in accordance with good business
8
practices, and applicable legal requirements, and accurately reflect in all
material respects its business, financial condition and liabilities.
(u) Full Disclosure. All representations or warranties of UTEK and
AMTI are true, correct and complete in all material respects to the best of our
knowledge on the date hereof and shall be true, correct and complete in all
material respects as of the Closing Date as if they were made on such date.
2.02 General Representations and Warranties of PRIME. PRIME
represents and warrants to UTEK and AMTI that the facts set forth are true and
correct.
(a) Organization. PRIME is a corporation duly organized, validly
existing and in good standing under the laws of its State, 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 hereby
have been duly authorized by the Board of Directors of PRIME; 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 hereby.
(c) Capitalization. The aggregate number of shares of common stock
that PRIME is authorized to issue is unlimited without par value, and 12,244,372
shares of common stock are issued and outstanding, at no par value, at the
Effective Time of the Acquisition. All issued and outstanding shares of common
stock of PRIME 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 Reorganization and the transactions contemplated hereby will
not violate any obligation to which PRIME is a party and will not create a
default hereunder, and this Agreement constitutes a legal, valid and binding
obligation of PRIME, 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
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Reorganization 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
PRIME.
(f) Conflicting Agreements. Neither the execution and delivery of
this Agreement nor the fulfillment of or compliance by PRIME with the terms or
provisions thereof 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's and AMTI'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 PRIME or its assets or business.
(h) Financial Statements. The unaudited financial statements of
PRIME as included in PRIME's PPM are incorporated here by reference (Exhibit C)
present fairly its financial position and the results of its operations on the
dates and for the periods shown therein; 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. PRIME 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 PRIME except as specifically set forth
in the PRIME financial statements.
(i) Full Disclosure. All representations or warranties of PRIME
are true, correct and complete in all material respects on the date hereof 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 herein or in
the exhibits hereto 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 therein not
misleading in any material respect in light of the circumstances in which they
were made.
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(j) Compliance with Laws. PRIME 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. To the best knowledge of PRIME there is no suit,
action or any arbitration, administrative, legal or other proceeding of any kind
or character, or any governmental investigation pending or threatened against
PRIME materially affecting its assets or business (financial or otherwise), and
PRIME 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) PRIME has no knowledge of any existing or threatened
occurrence, action or development that could cause a material adverse effect on
PRIME or its business, assets or condition (financial or otherwise) or
prospects.
2.03 Investment Representations of UTEK. UTEK represents and warrants to
PRIME 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 the shares ("Shares") of common
stock of PRIME pursuant to the Acquisition. It is able to bear
the economic risk of the investment in the Shares, including
the risk of a total loss of the investment in the Shares. The
receipt of the Shares is for its own account and is for
investment and not with a view to the distribution thereof.
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. All information that it has
supplied to PRIME is true and correct. It has conducted all
investigations and due diligence concerning PRIME 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 PRIME concerning the
Shares and the business and financial condition of and
prospects for PRIME, and the officers and directors of PRIME
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.
(b) Stock Transfer Restrictions. UTEK acknowledges that the PRIME
Stock will not be registered and UTEK will not be permitted to
sell or
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otherwise transfer the PRIME Stock in any transaction in
contravention of the following legend, which will be imprinted
in substantially the follow form on the PRIME Stock:
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 OBTAINED
AN OPINION OF COUNSEL STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
ARTICLE III
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
shareholders and obtain approval thereof. 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 Reorganization and the transactions
contemplated hereby.
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 Reorganization; and
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(b) Notify the other parties upon the occurrence of any event
which would have a materially adverse effect upon the
Reorganization or the transactions contemplated hereby 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 Reorganization and the
transactions contemplated hereby.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 The obligation of the parties to consummate the Reorganization and the
transactions contemplated hereby are subject to the following conditions that
may be waived to the extent permitted by law:
(a) Each party must obtain the approval of its Board of Directors
and such approval shall not have been rescinded or restricted;
and
(b) Each party shall obtain all requisite licenses, permits,
consents, authorizations and approvals required to complete
the Reorganization and the transactions contemplated hereby;
and
(c) 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 hereby or challenge the right, title and interest
of UTEK in the AMTI stock or the right of AMTI or UTEK to
consummate the Reorganization contemplated hereunder; and
(d) The representations and warranties of the parties shall be
true and correct in all material respects at the Effective
Time; and
(e) The License and Research and Development Agreements are valid
and in full force and effect without any default therein.
(f) PRIME shall have received at or within 5 days of Closing Date
each of the following:
i. the stock certificates representing the AMTI Stock,
duly endorsed (or accompanied by duly executed stock powers)
by UTEK for cancellation;
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ii. such contracts, files and other data and documents
pertaining to AMTI's business as PRIME may reasonably request;
iii. copies of the general ledgers and books of account of
AMTI, and all federal, state and local income, franchise,
property and other tax returns filed by AMTI since inception
of AMTI;
iv. certificates of (i) the Secretary of State as to the
legal existence and good standing, as applicable, (including
tax) of AMTI in Florida;
v. the original minute books of AMTI, including the
articles or certificate of incorporation and bylaws of AMTI,
and all other documents filed therein;
vi. all consents, assignments or related documents of
conveyance to give PRIME the benefit of the transactions
contemplated hereunder;
vii. such documents as may be needed to accomplish the
Closing under the corporate laws of the states of
incorporation of PRIME and AMTI, and
viii. such other documents, instruments or certificates as
PRIME, or their counsel may reasonably request.
(g) PRIME shall have completed due diligence of AMTI to PRIME's
satisfaction in their sole discretion.
(h) PRIME shall receive the resignation effective the Closing Date
of each Director and officer of AMTI.
(i) UTEK shall have received at or within 5 days of Closing Date
the following:
i. The stock certificates representing 560,000 shares of
PRIME common stock issued as follows:
a) UTEK Corporation: 560,000 shares
ARTICLE V
LIMITATIONS
5.01 Survival of Representations and Warranties.
(a) The representations and warranties made by UTEK and AMTI shall
survive for a period of one (1) year after Closing Date, and thereafter
all
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such representation and warranties shall be extinguished, except with
respect to claims then pending for which specific notice has been given
during such one (1) year period.
(b) The representations and warranties made by PRIME shall survive
for a period of one (1) year after 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 one (1) year period.
5.02 Limitations on Liability. Notwithstanding any other provision hereto
the contrary, neither party hereto 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 $500, and then such liability shall apply only to matters in
excess of $500.
(A) Indemnification.
i. Indemnification by UTEK. UTEK agrees to defend, indemnify
and hold PRIME harmless from and against any and all claims,
actions, damages, obligations, losses, liabilities, costs, and
expenses (including attorneys' fees and expenses)
(collectively, "Losses") arising out of or resulting from a
misrepresentation, breach or warranty, or breach or
non-fulfillment of any covenant of AMTI or UTEK contained
herein or in the Schedules or Exhibits annexed hereto or in
any other documents or instruments furnished or to be
furnished by AMTI or UTEK pursuant hereto or in connection
with the transaction contemplated hereby.
ii. Indemnification by PRIME. PRIME agrees to defend,
indemnify and hold UTEK harmless from and against any and all
claims, actions, damages, obligations, losses, liabilities,
costs, and expenses (including attorneys' fees and expenses)
(collectively, "Losses") arising out of or resulting from a
misrepresentation, breach or warranty, or breach or
non-fulfillment of any covenant of PRIME or contained herein
or in the Schedules or Exhibits annexed hereto or in any other
documents or instruments furnished or to be furnished by PRIME
pursuant hereto or in connection with the transaction
contemplated hereby.
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ARTICLE VI
REMEDIES
6.01 Specific Performance. Each party's obligations under this agreement is
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 VII
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 hereto,
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 thereof, 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 all arbitration shall
be conducted in Tampa, Florida, unless the parties mutually agree to the
contrary. 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 PRIME, one by UTEK
and a third by the two selected arbitrators. The third arbitrator shall be the
chairman of the panel.
ARTICLE VIII
TRANSACTIONS FOLLOWING CLOSING
PRIME acknowledges and agrees to provide to UTEK on a timely basis, unaudited
quarterly financial statements and such other financial information that UTEK
may request.
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ARTICLE IX
MISCELLANEOUS
No party may assign this Agreement or any right or obligation of it hereunder
without the prior written consent of the other parties hereto. No permitted
assignment shall relieve a party of its obligations under this Agreement without
the separate written consent of the other parties. This Agreement shall be
binding upon and enure to the benefit of the parties and their respective
permitted successors and assigns. 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. 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. This document constitutes a complete and entire
agreement among the parties with reference to the subject matters set forth
herein. No statement or agreement, oral or written, made prior to or at the
execution hereof and no prior course of dealing or practice by either party
shall vary or modify the terms set forth herein without the prior consent of the
other parties hereto. This Agreement may be amended only by a written document
signed by the parties. Notices or other communications required to be made in
connection with this Agreement shall be delivered to the parties at the address
set forth below or at such other address as may be changed from time to time by
giving written notice to the other parties. The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement. This Agreement may be
executed in multiple counterparts, each of which shall constitute one and a
single Agreement. Any facsimile signature of any part hereto or to any other
agreement or document executed in connection hereof should constitute a legal,
valid and binding execution by such parties.
ARTICLE X
PIGGYBACK REGISTRATION RIGHTS
PRIME covenants and agrees that if it files with the Securities and Exchange
Commission an underwritten registration statement on SEC Form S-SB1 or Form S-1
or its equivalent which includes the offer of shares owned by shareholders of
PRIME, PRIME will use its best efforts to include all of the shares of PRIME
common stock issued to and then held by UTEK pursuant to this Agreement. If the
underwriters include any selling shareholder shares, UTEK shall be permitted to
include all of its PRIME shares on a pro rata basis to the extent and upon the
same terms and conditions as other PRIME shareholders are permitted to have
their PRIME shares included in the proposed offering. If the underwriters do not
permit for any reason the inclusion of selling shareholder shares in the
offering, UTEK shares shall also
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not be included. It is the expressed intent of this Article that UTEK be treated
exactly the same as any other seller of PRIME common stock, no better and no
worse. If PRIME proposes an underwritten offering, PRIME will give UTEK 15 days'
prior written notice thereof, and UTEK shall give PRIME notice within 10 days
thereafter of UTEK's desire to include in the offering. PRIME will notify the
lead underwriters of UTEK's desire, and PRIME will include UTEK shares in
accordance with this Article.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
by a duly authorized officer this 26 day of September 2001.
PRIME Pharmaceutical Corporation Advanced Microsphere Technology, Inc.
By: By:
-------------------------- -------------------------------
Xxxxx Xxxxxxx Xxx Xxxxxxx, Ph.D., M.D.
President President
UTEK Corporation
By:
--------------------------
Xxxxxxxx X. Xxxxx, Ph.D.
Chief Executive Officer
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