AGREEMENT AND PLAN OF ACQUISITION
AGREEMENT
AND PLAN OF ACQUISITION
This
Agreement and Plan of
Acquisition (Agreement) is entered into by and between Broadband Distance
Systems, Inc., a Florida corporation, (BDSI), UTEK CORPORATION, a Delaware
corporation, (UTEK), and Rim Semiconductor Company, a Utah corporation,
(RSMI).
WHEREAS,
UTEK owns 100% of the
issued and outstanding shares of common stock of BDSI (BDSI Shares);
and
WHEREAS,
before the Closing
Date, BDSI will acquire the license for the fields of use as
described in the License 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 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 BDSI will be acquired by
RSMI in
a stock-for-stock exchange (Acquisition) in accordance with the respective
corporation laws of their state, upon consummation of which all BDSI Shares
(as
defined below) will be owned by RSMI, and all issued and outstanding BDSI
Shares
will be exchanged for common stock of RSMI 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 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 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 BDSI Shares shall
be
acquired from UTEK by RSMI
in accordance with the respective corporation laws of their state and the
provisions of this Agreement and the separate corporate existence of BDSI,
as a
wholly-owned subsidiary of RSMI, shall continue after the closing.
(b) Effective
Date. The
Acquisition shall become effective (Effective Date or Closing 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 BDSI Shares
that
are issued and outstanding at the Effective Date shall be exchanged for
60,000,000 unregistered shares of common stock of RSMI.
1.03 Effect
of
Acquisition. At and after the Effective Date, the holder of
each certificate of common stock of BDSI shall cease to have any rights as
a
shareholder of BDSI.
1.04 Closing.
Subject to
the terms and conditions of this Agreement, the Closing of the Acquisition
shall
take place January 28, 2008.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES
2.01 Representations
and
Warranties of UTEK and BDSI. UTEK and BDSI represent and
warrant to RSMI that the facts set forth below are true and correct, and
will be
true and correct as of the Effective Date:
(a) Organization.
BDSI
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 BDSI
have
been provided to RSMI 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 BDSI 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 BDSI 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 BDSI consists of 1,000,000 shares of common stock with
a
par value $.01 per share (BDSI Shares). At the date of this Agreement, 1,000
BDSI Shares are issued and outstanding and held of record and beneficially
by
UTEK, free and clear of all liens, encumbrances, restrictions and claims
of very
kind. UTEK has full legal right, power and authority to sell, assign transfer
and convey the BDSI shares so owned by UTEK in accordance with the terms
and
conditions of this Agreement. The delivery to RSMI of the BDSI shares so
owned
by UTEK pursuant to the provisions of this Agreement will transfer to RSMI
valid
title thereto, free and clear of any and all adverse claims. All issued and
outstanding BDSI 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. BDSI is not authorized
to issue any preferred stock. All dividends on BDSI 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 BDSI to issue any BDSI Shares or securities convertible
into BDSI Shares to anyone for any reason whatsoever. None of the BDSI 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 BDSI or UTEK is a party and will not create a default
under any such obligation or under any agreement to which BDSI or UTEK is
a
party. This Agreement constitutes a legal, valid and binding
obligation of BDSI, 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 the
best of BDSI 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
BDSI.
(f) No
Conflicting
Agreements. Neither the execution and delivery of this Agreement nor the
fulfillment of or compliance by BDSI 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, BDSI or UTEK’s articles of
incorporation or bylaws, the Technology, the License Agreement, or any
agreement, contract, instrument, order, judgment or decree to which BDSI
or UTEK
is a party or by which BDSI 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
BDSI
and UTEK or performance of the obligations of BDSI and UTEK hereunder or
under
any other agreement to which BDSI 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 BDSI or its assets or business.
(h) Title
to Assets. BDSI
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 BDSI. BDSI has or will by the Effective
Date
have good and marketable title to its assets, free and clear of all liens,
claims, charges, mortgages, options, security agreements and other encumbrances
of every kind or nature whatsoever.
(i) Intellectual
Property
(1) The
University of Illinois and The Board of Trustees of the University of Illinois,
Urbana Champaign (UIUC) respectively owns and has license to the Technology
and
has all right, power, authority and ownership and entitlement to file, prosecute
and maintain in effect United States Patent No. 6,400,773 (the Patent) with
respect to the inventions listed in Exhibit A hereto (the
Inventions).
(2) The
License
Agreement between UIUC and BDSI covering the Inventions will be 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, RSMI acknowledges and understands that BDSI 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 as of this date;
(4) Neither
BDSI
nor UTEK has received a written communication from any individual, corporation,
proprietorship, firm, general or limited partnership, limited liability company,
joint venture, trust, association, unincorporated organization, governmental
authority or other entity (“Person”) alleging that the Technology and
Intellectual Property contained in the License Agreement violate any material
rights relating to Intellectual Property of any Person.
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(5) To
the
knowledge of BDSI and UTEK, and without any independent investigation, the
validity or enforceability of the Patent or any of the Technology and
Intellectual Property contained in the License Agreement, or the ownership
thereof, has not been questioned in any action, suit, arbitration, proceeding
or
other litigation commenced or, to the Sellers’ knowledge, threatened by any
Person or governmental authority (“Proceeding”) and, to the knowledge of BDSI
and UTEK, no such Proceeding is currently threatened, and neither BDSI nor
UTEK
has received a written communication from any Person (A) asserting an ownership
interest in any of the Technology and Intellectual Property contained in
the
License Agreement, or (B) alleging that any of the Technology and Intellectual
Property contained in the License Agreement is invalid or
unenforceable.
(6) Except
as
otherwise expressly set forth in this Agreement, BDSI 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 BDSI.
BDSI 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 BDSI, 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 BDSI’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.
BDSI 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 BDSI except as specifically set
forth
in the financial statements and the other attached schedules and
exhibits. There is no information known to BDSI or UTEK that would
prevent the financial statements of BDSI 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 BDSI
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 BDSI
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 BDSI by any taxing authority, have been properly paid, except
to the
extent reflected on BDSI’s financial statements, where BDSI 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. BDSI has not received any notice of assessment or proposed
assessment in connection with any tax returns, nor is BDSI 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. BDSI 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. BDSI 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 BDSI. BDSI is not and has never been a party to any tax
sharing agreements with any other person or entity.
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(m) Absence
of Certain Changes
or Events. From the date of the latest balance sheet of BDSI provided to
RSMI until the Closing Date, BDSI has not, and without the written consent
of
RSMI, 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 BDSI;
(4) Made
any
commitments or agreements for capital expenditures or otherwise;
(5) Entered
into
any transaction or made any commitment not disclosed to RSMI in
writing;
(6) Incurred
any
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) of the assets or
liabilities or business of BDSI; or
(8) Taken
any
action, which could reasonably be foreseen to make any of the representations
or
warranties made by BDSI 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 BDSI and a third party. A complete and accurate
copy
of all material agreements, contracts and commitments of the following types,
whether written or oral to which it is a party or is bound (Contracts), has
been
provided to RSMI 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 BDSI in accordance with their respective
terms
and will continue to be valid and enforceable following the Acquisition.
BDSI 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 BDSI; and
(2) There
are no
outstanding operating agreements, lease agreements or similar agreements
by
which BDSI is bound; and
(3) The
complete
final License Agreement will be provided to RSMI; 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 BDSI’s property; and
(6) There
are no
breaches of any agreement to which BDSI is a party.
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(o) Compliance
with Laws.
BDSI 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 BDSI or UTEK, threatened against BDSI, the Technology,
or License Agreement, affecting its assets or business (financial or
otherwise), and neither BDSI 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 BDSI
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 BDSI or the transactions
contemplated.
(q) Employees.
BDSI has
no and never had any employees. BDSI is not a party to or bound by any
employment agreement or any collective bargaining agreement with respect
to any
employees. BDSI is not in violation of any law, regulation relating to
employment of employees.
(r) Adverse
Effect.
Neither BDSI nor UTEK has any knowledge of any or threatened existing
occurrence, action or development that could cause a material adverse effect on BDSI
or its business, assets or condition (financial or otherwise) or
prospects.
(s) Employee
Benefit
Plans. BDSI 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 BDSI 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 BDSI 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 BDSI 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 RSMI. RSMI represents and warrants to UTEK and
BDSI that the facts set forth are true and correct.
(a) Organization. RSMI
is a corporation duly organized, validly existing and in good standing under
the
laws of Utah, 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.
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(b) Authorization. The
execution of this Agreement and the consummation of the Acquisition and the
other transactions contemplated by this Agreement have been duly authorized
by
the board of directors of RSMI; 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 RSMI
consists of 900,000,000
(Nine
Hundred Million) shares of common stock
with a par value $0.001 per share (RSMI
Common Shares) and 15,000,000 (Fifteen
Million) shares of
preferred stock with a par value of $0.01 per share (RSMI Preferred Shares).
On the Effective Date of the Acquisition 536,182,134 RSMI Common
Shares (which will include the 60,000,000 RSMI Common Shares to be issued
at the
Closing of the Acquisition) will be issued and outstanding. The
RSMI
Common
Shares
outstanding 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. No
RSMI Preferred Shares are
outstanding.
(d) Anti
Dilution Adjustments. UTEK
currently owns zero RSMI
Common Shares, and will be acquiring
60,000,000 unregistered
RSMI
Common Shares; and based on
a total of
60,000,000 issued
RSMI
Common Shares (on an as converted
basis) this total will represent a 10.4% ownership position in RSMI
Common shares as of January 28, 2008 on an “as if converted basis”. For
a period of twelve months from the
Effective Date
of this Agreement, the aggregate
number of RSMI Common
Shares that UTEK
has received shall be adjusted
proportionately by the Board of Directors of RSMI
for any increase in the number of
outstanding RSMI Common
Shares resulting from
the
issuance of any additional equity securities by the Company to any of its
current list
of management and directors
as of the Effective Date, other than for previously agreed to disbursements
prior to the Effective Date of this agreement.
For
purposes in this Agreement, “as if
converted basis” shall mean total outstanding common shares after giving effect
to the conversion of all outstanding equity securities including preferred
stock
or other convertible instruments.
(e) Binding
Effect. The
execution, delivery, performance and consummation of the Acquisition and
the
transactions contemplated by this Agreement will not violate any obligation
to
which RSMI is a party and will not create a default hereunder, and this
Agreement constitutes a legal, valid and binding obligation of RSMI, enforceable
in accordance with its terms, except as the enforcement may be limited by
bankruptcy, insolvency, moratorium, or similar laws affecting creditor’s rights
generally and by the availability of injunctive relief, specific performance
or
other equitable remedies.
(f) Litigation
Relating to this
Agreement. There are no suits, actions or proceedings pending or to its
knowledge threatened which seek to enjoin the Acquisition or the transactions
contemplated by this Agreement or which, if adversely decided, would have
a
materially adverse effect on its business, results of operations, assets,
prospects or the results of its operations of RSMI.
(g) No
Conflicting
Agreements. Neither the execution and delivery of this Agreement nor the
fulfillment of or compliance by RSMI 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
RSMI’s corporate charter 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.
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(h) Consents.
Assuming
the correctness of UTEK and BDSI’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 RSMI or its assets or
business.
(i) Financial
Statements.
The financial statements of RSMI included in its reports available on the
XXXXX
Website of the Securities and Exchange Commission on Form 10-KSB filed on
February 5, 2007 for the fiscal year ended October 31, 2006, Form 10-QSB
filed
on March 14, 2007 for the quarter ended January 31, 2007, Form 10-QSB filed
on
June 13, 2007 for the quarter ended April 30, 2007, Form 10-QSB filed on
September 14, 2007 for the quarter ended July 31, 2007, and RSMI’s
definitive proxy statement filed on April 2, 2007, together with all subsequent
filings made with the Commission available at the XXXXX website (hereinafter
referred to collectively as the Reports) contain all material information
relating to RSMI and its operations and financial condition as of their
respective dates which information is required to be disclosed
therein. Since the date of the financial statements included in the
Reports, and except as modified in the Schedules hereto, there has been no
material adverse changes
relating to RSMI’s business,
financial condition or affairs not disclosed in the Reports. The Reports
do not
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary to make the statements therein,
taken
as a whole, not misleading in light of the circumstances when
made.
(j) Full
Disclosure. All
representations or warranties of RSMI are true, correct and complete in all
material respects on the date of this Agreement and shall be true, correct
and
complete in all material respects as of the Closing Date as if they were
made on
such date. No statement made by them in this Agreement or in the exhibits
to
this Agreement or any document delivered by them or on their behalf pursuant
to
this Agreement contains an untrue statement of material fact or omits to
state
all material facts necessary to make the statements in this Agreement not
misleading in any material respect in light of the circumstances in which
they
were made.
(k) Compliance
with Laws.
RSMI is in compliance in all material respects with all applicable laws,
rules,
regulations and orders promulgated by any federal, state or local government
body or agency relating to its business and operations.
(l) Litigation. There
is no suit, action or any arbitration, administrative, legal or other proceeding
of any kind or character, or any governmental investigation pending or, to
the
best knowledge of RSMI, threatened against RSMI materially affecting its
assets
or business (financial or otherwise), and RSMI 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, to RSMI’s knowledge,
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. Except as disclosed
in
its Reports, RSMI has no knowledge of any existing or threatened occurrence,
action or development that could cause a material adverse affect on RSMI
or its
business, assets or condition (financial or otherwise) or
prospects.
(m) Development. RSMI
agrees and warrants that it has the expertise necessary to and has had the
opportunity to independently evaluate the inventions of the Licensed Technology
and has the expertise necessary to develop same for the market.
(n) Investment
Company
Status RSMI is not an investment company, either registered or
unregistered.
2.03 Investment
Representations
of UTEK. UTEK represents and warrants to RSMI that:
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(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 RSMI Common Shares pursuant
to the Acquisition. It is able to bear the economic risk of the investment
in
RSMI Common Shares, including the risk of a total loss of the investment
in RSMI
Common Shares. The acquisition of RSMI Common 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 RSMI
is true
and correct. It has conducted all investigations and due diligence concerning
RSMI 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 RSMI concerning RSMI Common Shares and the business and financial
condition of and prospects for RSMI, and the officers and directors of RSMI
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 RSMI Common Shares
will not be registered and UTEK will not be permitted to sell or otherwise
transfer the RSMI Common Shares in any transaction in contravention of the
following legend, which will be imprinted in substantially the following
form on
the stock certificate representing RSMI Common Shares:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE ACT), OR UNDER THE SECURITIES LAWS
OF
ANY STATE. THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED PURSUANT TO THE PROVISION
OF THE ACT AND THE LAWS OF SUCH STATES UNDER WHOSE LAWS A TRANSFER OF SECURITIES
WOULD BE SUBJECT TO A REGISTRATION REQUIREMENT, UNLESS UTEK CORPORATION HAS
OBTAINED AN OPINION OF COUNSEL STATING THAT SUCH DISPOSITION IS IN COMPLIANCE
WITH AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
(c) Legend. Subject
to the new Rule
144 restrictions, 6months
following the stock acquisition
described herein, RSMIagrees
to and shall direct its transfer
agent to remove the above legend upon the issuance by UTEK's legal counsel
that
the above legend can be removed from UTEK's RSMI Common Shares.
RSMIagrees
to and promptly shall provide any
information
requested by UTEK or UTEK's
counsel and to make further direction to its transfer agent as necessary
for
such issuance of an opinion regarding removal of the legend or the sale of
such
restricted shares under Rule 144 or other available exemption from
registration.
(d) In
the event that RSMI wrongfully fails
to direct its transfer agent to
remove the legend within fifteen (15) days of request by UTEK, RSMIshall
be liable to an additional fee of
ten percent (10%) of the current value of the shares held by UTEK, determined based on
the closing price of
the shares on the fifteenth day after the request is deemed received by RSMI,
as well as any and
all
attorney fees and costs that UTEK may incur as a result of RSMIfailing
to comply in this
request.
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 if necessary, its respective shareholders and obtain
approval of this Agreement. Copies of corporate actions taken by each party
shall be provided to the other party.
Page
9 of
14
3.02 Access
to
Information. Each party agrees to permit, upon reasonable notice, the
attorneys, accountants, and other representatives of the other party’s
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, prior to Closing 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 challenges the right, title
and
interest of UTEK in the BDSI Shares or the right of BDSI 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 The
License
Agreement will be valid and in full force and effect without any default
in this
Agreement.
4.07 RSMI
shall
have received, at or prior to the Closing Date, each of the
following:
Page
10
of 14
(a) the
stock
certificates representing all of the currently issued and outstanding BDSI
Shares, duly endorsed (or accompanied by duly executed stock powers) by UTEK
for
transfer of such shares to RSMI;
(b) all
corporate
records and documentation relating to BDSI’s business, all in a form and
substance satisfactory to RSMI, including its Articles of Incorporation and
Bylaws;
(c) such
agreements, files and other data and documents pertaining to
BDSI’s business as RSMI may reasonably request;
(d) copies
of the
general ledgers and books of account of BDSI, and all federal, state and
local
income, franchise, property and other tax returns filed by BDSI since the
inception of BDSI;
(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 BDSI in
Florida;
(f) the
original
corporate minute books of BDSI, including the articles of incorporation and
bylaws of BDSI, and all other documents filed in this Agreement;
(g) all
consents,
assignments or related documents of conveyance to give RSMI 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 RSMI and BDSI, and
(i) such
other
documents, instruments or certificates as RSMI, or their counsel may reasonably
request.
4.08 RSMI
shall
have completed due diligence investigation of BDSI to RSMI’s satisfaction in
their sole discretion.
4.09 RSMI
shall
receive the resignation effective the Closing Date of each director and officer
of BDSI.
4.10 BDSI’s
assets
at the time of Closing will include US $400,000 in cash, which sum shall
belong
absolutely and unconditionally to BDSI through and after the Closing.
ARTICLE
5
INDEMNIFICATION
ANDLIABILITY
LIMITATION
5.01 Survival
of Representations
and Warranties.
(a) The
representations and warranties made by UTEK and BDSI 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 RSMI 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.
Page
11
of 14
5.02 Limitations
on
Liability. RSMI
agrees that UTEK shall not be liable under this agreement to RSMI 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. RSMI 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. RSMI
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 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. RSMI 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 consideration paid to UTEK under
this
Agreement.
ARTICLE
6
REMEDIES
6.01 Specific
Performance.
Each party’s obligations under this Agreement are unique. If any party should
default in its obligations under this Agreement, the parties each acknowledge
that it would be extremely impracticable to measure the resulting damages.
Accordingly, the non-defaulting party, in addition to any other available
rights
or remedies, may xxx in equity for specific performance, and the parties
each
expressly waive the defense that a remedy in damages will be
adequate.
6.02 Costs.
If any legal
action or any arbitration or other proceeding is brought for the enforcement
of
this Agreement or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorneys’ fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
ARTICLE
7
ARBITRATION
In
the
event a dispute arises with respect to the interpretation or effect of this
Agreement or concerning the rights or obligations of the parties to this
Agreement, the parties agree to negotiate in good faith with reasonable
diligence in an effort to resolve the dispute in a mutually acceptable manner.
Failing to reach a resolution of this Agreement, either party shall have
the
right to submit the dispute to be settled by arbitration under the Commercial
Rules of Arbitration of the American Arbitration Association. The parties
agree
that, unless the parties mutually agree to the contrary such arbitration
shall
be conducted in the State of 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 RSMI, one by UTEK and a third by the two selected
arbitrators. The third arbitrator shall be the chairman of the
panel.
Page
12
of 14
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 Oregon without regard to principles of conflicts of law.
8.05 This
document
constitutes a complete and entire agreement among the parties with reference
to
the subject matters set forth in this Agreement. No statement or agreement,
oral
or written, made prior to or at the execution of this Agreement and no prior
course of dealing or practice by either party shall vary or modify the terms
set
forth in this Agreement without the prior consent of the other parties to
this
Agreement. This Agreement may be amended only by a written document signed
by
the parties.
8.06 Notices
or
other communications required to be made in connection with this Agreement
shall
be sent by U.S. mail, certified, return receipt requested, personally delivered
or sent by express delivery service and delivered to the parties at the
addresses set forth below or at such other address as may be changed from
time
to time by giving written notice to the other parties.
8.07 The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
8.08 This
Agreement may be executed in multiple counterparts, each of which shall
constitute one and a single Agreement.
8.09 Any
facsimile signature of any part to this Agreement or to any other agreement
or
document executed in connection of this Agreement should constitute a legal,
valid and binding execution by such parties.
(Signatures
on the following page)
Page
13
of 14
|
RIM
SEMICONDUCTOR COMPANY
|
BROADBAND
DISTANCE SYSTEMS, INC.
|
|||
|
By: /s/
Xxxx
Xxxxx
|
By: /s/
Xxxx
Xxxxxxx
|
|||
|
Xxxx
Xxxxx
|
Xxxx
Xxxxxxx
|
|||
|
Chief
Executive Officer
|
President
|
|||
|
Address:
000 XX 000XX Xxxxxx,
Xxxxx
000
Xxxxxxxx,
Xxxxxx 00000
Date:
January
28,
2008
|
Address:
0000
Xxxx Xxxx Xxxxxx
Xxxxx,
Xxxxxxx 00000
Date:
January
28,
2008
|
|||
| UTEK CORPORATION | ||||
|
By: /s/
Xxxxxxxx X.
Xxxxx
Xxxxxxxx X. Xxxxx,
Ph.D.
Chief Executive
Officer
|
||||
|
Address:
0000
Xxxx Xxxx Xxxxxx
Xxxxx,
Xxxxxxx 00000
Date:
January
28,
2008
|
