EXHIBIT 2.1
ACQUISITION OF MEDICAL SAFETY TECHNOLOGIES, INC.
BY
E MED FUTURE, INC.
AGREEMENT AND PLAN OF ACQUISITION
THIS AGREEMENT AND PLAN OF ACQUISITION ("Agreement") is entered into
by and between MEDICAL SAFETY TECHNOLOGIES, INC., a Florida corporation,
("MSTI"), UTEK CORPORATION, a Delaware corporation, ("UTEK"), and E MED FUTURE,
INC., a Nevada corporation, ("EMDF").
WHEREAS, UTEK owns 100% of the issued and outstanding shares of common
stock of MSTI ("MSTI Shares"); and
WHEREAS, before the Closing Date, MSTI has acquired the license for
the fields of use as described in the License Agreement, a part of Exhibit "A"
attached to and made a part of this Agreement ("License Agreement") and the
rights to develop and market a patented and proprietary technology for the
fields of uses specified in the License Agreement ("Technology"); and
WHEREAS, the parties desire to provide for the terms and conditions
upon which MSTI will be acquired by EMDF in a stock-for-stock exchange
("Acquisition") in accordance with the respective corporation laws of their
state, upon consummation of which all MSTI Shares will be owned by EMDF, and
all issued and outstanding MSTI Shares will be exchanged for common stock of
EMDF 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 MSTI
Shares shall be acquired from UTEK by EMDF in accordance with the respective
corporation laws of their state and the provisions of this Agreement and the
separate corporate existence of MSTI, as a wholly-owned subsidiary of EMDF,
shall continue after the closing.
Page 1
(b) Effective Date. The Acquisition shall become
effective ("Effective Date") upon the execution of this Agreement and closing
of the transaction.
1.02 Exchange of Stock. At the Effective Date, by virtue of the
Acquisition:
All of the MSTI Shares that are issued and outstanding at the
Effective Date shall be exchanged for 1,250,000 unregistered shares of common
stock of EMDF ("EMDF Shares"), which by agreement of the shareholders of MSTI
shall be issued as follows:
SHAREHOLDER NUMBER OF EMDF SHARES
-------------------------------------------------------------------
UTEK CORPORATION 1,250,000
1.03 Effect of Acquisition.
(a) Rights in MSTI Cease. At and after the Effective
Date, the holder of each certificate of common stock of MSTI shall cease to
have any rights as a shareholder of MSTI.
(b) Closure of MSTI Shares Records. From and after the
Effective Date, the stock transfer books of MSTI shall be closed, and there
shall be no further registration of stock transfers on the records of MSTI.
1.04 Closing. Subject to the terms and conditions of this
Agreement, the Closing of the Acquisition shall take place on or before
December 30th, 2003 ("Closing Date") unless extended by mutual consent of the
parties in writing.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.01 Representations and Warranties of UTEK and MSTI. UTEK and
MSTI represent and warrant to EMDF that the facts set forth below are true and
correct:
(a) Organization. MSTI 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 MSTI have been
provided to EMDF 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 MSTI 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 MSTI and
UTEK have all requisite corporate and other authority to execute and deliver
this Agreement and consummate the transactions contemplated by this Agreement.
Page 2
(c) Capitalization. The authorized capital of MSTI
consists of 1,000,000 shares of common stock with a par value $1.00 per share.
At the date of this Agreement, 1,000 MSTI Shares are issued and outstanding as
follows:
SHAREHOLDER NUMBER OF MSTI SHARES
---------------------------------------------------------------------------
UTEK CORPORATION 1,000
All issued and outstanding MSTI 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.
MSTI is not authorized to issue any preferred stock. All dividends on MSTI
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 MSTI to issue any MSTI Shares or
securities convertible into MSTI Shares to anyone for any reason whatsoever.
None of the MSTI 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 MSTI or
UTEK is a party and will not create a default under any such obligation or
under any agreement to which MSTI or UTEK is a party. This Agreement
constitutes a legal, valid and binding obligation of MSTI, 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 MSTI 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 MSTI.
(f) No Conflicting Agreements. Neither the execution and
delivery of this Agreement nor the fulfillment of or compliance by MSTI 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, MSTI or UTEK's articles of incorporation or bylaws, the
Technology, the License Agreement, or any agreement, contract, instrument,
order, judgment or decree to which MSTI or UTEK is a party or by which MSTI 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.
Page 3
(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 MSTI and UTEK or performance of the
obligations of MSTI and UTEK hereunder or under any other agreement to which
MSTI 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 MSTI or
its assets or business.
(h) Title to Assets. MSTI 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 MSTI. MSTI has or will by Closing Date have good and marketable title
to its assets, free and clear of all liens, claims, charges, mortgages,
options, security agreements and other encumbrances of every kind or nature
whatsoever.
(i) Intellectual Property
(1) Emory University ("EMORY") owns the
Technology and has all right, power, authority and ownership and entitlement to
file, prosecute and maintain in effect the Patent application with respect to
the Invention listed in Exhibit A hereto, and
(2) The Technology was invented by Xxxxxx
Xxxxx, M.D., MPH ("Inventor"),
(3) The License Agreement between the EMORY and
MSTI covering the Invention is legal, valid, binding and will be enforceable in
accordance with its terms as contained in Exhibit A.
(4) Except as otherwise set forth in this
Agreement, EMDF acknowledges and understands that MSTI and UTEK make no
representations and provide no assurances that the rights to the Technology and
Intellectual Property contained in the License Agreement do not, and will not
in the future, infringe or otherwise violate the rights of third parties, and
(5) Except as otherwise expressly set forth in
this Agreement, MSTI 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 MSTI. MSTI 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 MSTI, 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 MSTI'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
Page 4
of its operations. MSTI 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 MSTI except as
specifically set forth in the financial statements and the other attached
schedules and exhibits. There is no information known to MSTI or UTEK that
would prevent the financial statements of MSTI 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 MSTI 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 MSTI 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 MSTI by
any taxing authority, have been properly paid, except to the extent reflected
on MSTI's financial statements, where MSTI 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.
MSTI has not received any notice of assessment or proposed assessment in
connection with any tax returns, nor is MSTI 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. MSTI 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. MSTI 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 MSTI. MSTI 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, MSTI has not,
and without the written consent of EMDF, it will not have:
(1) Sold, encumbered, assigned let lapsed or
transferred any of its material assets, including without limitation the
Intellectual Property, the Patent License Agreement or any other material
asset;
(2) Amended or terminated the Patent License
Agreement or other material agreement or done any act or omitted to do any act
which would cause the breach of the Patent License Agreement or any other
material agreement;
(3) Suffered any damage, destruction or loss
whether or not in control of MSTI;
Page 5
(4) Made any commitments or agreements for
capital expenditures or otherwise;
(5) Entered into any transaction or made any
commitment not disclosed to EMDF;
(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 MSTI; or
(8) Taken any action which could reasonably be
foreseen to make any of the representations or warranties made by MSTI 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 MSTI
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 EMDF 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 MSTI in accordance with their respective terms and will continue
to be valid and enforceable following the Acquisition. MSTI 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 MSTI; and
(2) There are no outstanding operating
agreements, lease agreements or similar agreements by which MSTI is bound; and
(3) The complete final drafts of the License
Agreement have has been provided to EMDF; 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 MSTI's property; and
(6) There are no breaches of any agreement to
which MSTI is a party.
(o) Compliance with Laws. MSTI 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.
Page 6
(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 MSTI or UTEK, threatened against MSTI, the Technology, Patent License
Agreement, Consulting Agreement or Research Agreement affecting its assets or
business (financial or otherwise), and neither MSTI 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 MSTI 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 MSTI
or the transactions contemplated.
(q) Employees. MSTI has no and never had any employees.
MSTI is not a party to or bound by any employment agreement or any collective
bargaining agreement with respect to any employees. MSTI is not in violation of
any law, regulation relating to employment of employees.
(r) Neither MSTI nor UTEK has any knowledge of any or
threatened existing occurrence, action or development that could cause a
material adverse effect on MSTI or its business, assets or condition (financial
or otherwise) or prospects.
(s) Employee Benefit Plans. MSTI 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 MSTI 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 MSTI 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 MSTI 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.
Page 7
2.02 Representations and Warranties of EMDF. EMDF represents and
warrants to UTEK and MSTI that the facts set forth are true and correct.
(a) Organization. EMDF 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 EMDF; 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 EMDF
consists of 24,884,000 shares of common stock with a par value $.001 per share
("EMDF Shares"); and on the Effective Date of the Acquisition, 26,134,000 EMDF
Shares (which will include the 1,250,000 EMDF Shares issued at the closing of
the Acquisition) will be issued and outstanding. All issued and outstanding
EMDF 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 EMDF is a party and will not
create a default hereunder, and this Agreement constitutes a legal, valid and
binding obligation of EMDF, enforceable in accordance with its terms, except as
the enforcement may be limited by bankruptcy, insolvency, moratorium, or
similar laws affecting creditor's rights generally and by the availability of
injunctive relief, specific performance or other equitable remedies.
(e) Litigation Relating to this Agreement. There are no
suits, actions or proceedings pending or to its knowledge threatened which seek
to enjoin the Acquisition or the transactions contemplated by this Agreement or
which, if adversely decided, would have a materially adverse effect on its
business, results of operations, assets, prospects or the results of its
operations of EMDF.
(f) No Conflicting Agreements. Neither the execution and
delivery of this Agreement nor the fulfillment of or compliance by EMDF 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.
Page 8
(g) Consents. Assuming the correctness of UTEK and
MSTI'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 EMDF or its assets or business.
(h) Financial Statements. The unaudited financial
statements of EMDF 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. EMDF 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 EMDF except as specifically set forth in the EMDF
financial statements.
(i) Full Disclosure. All representations or warranties
of EMDF 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. EMDF 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 EMDF, threatened against EMDF materially affecting its assets or business
(financial or otherwise), and EMDF 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) EMDF has no knowledge of any existing or threatened
occurrence, action or development that could cause a material adverse effect on
EMDF or its business, assets or condition (financial or otherwise) or
prospects.
2.03 Investment Representations of UTEK. UTEK represents and
warrants to EMDF that:
Page 9
(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 EMDF Shares pursuant to the Acquisition. It is able
to bear the economic risk of the investment in EMDF Shares, including the risk
of a total loss of the investment in EMDF Shares. The acquisition of EMDF
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 EMDF is true and correct. It has conducted all investigations and
due diligence concerning EMDF 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 EMDF concerning EMDF Shares and the
business and financial condition of and prospects for EMDF, and the officers
and directors of EMDF 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 EMDF Shares will not be registered and UTEK
will not be permitted to sell or otherwise transfer the EMDF Shares in any
transaction in contravention of the following legend, which will be imprinted
in substantially the follow form on the stock certificate representing EMDF
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.
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
Page 10
investigations with respect to its affairs, and to make its officers and
employees available to answer questions and provide additional information as
reasonably requested.
3.03 Expenses. Each party agrees to bear its own expenses in
connection with the negotiation and consummation of the Acquisition and the
transactions contemplated by this Agreement.
3.04 Covenants. Except as permitted in writing, each party agrees
that it will:
(a) Use its good faith efforts to obtain all requisite
licenses, permits, consents, approvals and authorizations necessary in order to
consummate the Acquisition; and
(b) Notify the other parties upon the occurrence of any
event which would have a materially adverse effect upon the Acquisition or the
transactions contemplated by this Agreement or upon the business, assets or
results of operations; and
(c) Not modify its corporate structure, except as
necessary or advisable in order to consummate the Acquisition and the
transactions contemplated by this Agreement.
ARTICLE 4
CONDITIONS PRECEDENT
The obligation of the parties to consummate the Acquisition and the
transactions contemplated by this Agreement are subject to the following
conditions that may be waived, to the extent permitted by law:
4.01. Each party must obtain the approval of its board of directors
and such approval shall not have been rescinded or restricted.
4.02. Each party shall obtain all requisite licenses, permits,
consents, authorizations and approvals required to complete the Acquisition and
the transactions contemplated by this Agreement.
4.03. There shall be no claim or litigation instituted or
threatened in writing by any person or government authority seeking to restrain
or prohibit any of the contemplated transactions contemplated by this Agreement
or challenge the right, title and interest of UTEK in the MSTI Shares or the
right of MSTI 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.
Page 11
4.06. To the best knowledge of UTEK and MSTI, the License Agreement
is valid and in full force and effect without any default in this Agreement.
4.07. EMDF shall have received, at or within 15 days of Closing
Date, each of the following:
(a) the stock certificates representing the MSTI Shares,
duly endorsed (or accompanied by duly executed stock powers) by UTEK for
cancellation;
(b) all documentation relating to the MSTI's business,
all in a form and substance satisfactory to EMDF;
(c) such agreements, files and other data and documents
pertaining to MSTI's business as EMDF may reasonably request;
(d) copies of the general ledgers and books of account
of MSTI, and all federal, state and local income, franchise, property and other
tax returns filed by MSTI since the inception of MSTI;
(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 MSTI in Florida;
(f) the original corporate minute books of MSTI,
including the articles of incorporation and bylaws of MSTI, and all other
documents filed in this Agreement;
(g) all consents, assignments or related documents of
conveyance to give EMDF 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 EMDF and
MSTI, and
(i) such other documents, instruments or certificates as
EMDF, or their counsel may reasonably request.
4.08. EMDF shall have completed due diligence investigation of MSTI
to EMDF's satisfaction in their sole discretion.
4.09. EMDF shall receive the resignation effective the Closing Date
of each director and officer of MSTI.
ARTICLE 5
LIMITATIONS
5.01. Survival of Representations and Warranties.
Page 12
(a) The representations and warranties made by UTEK and
MSTI 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 EMDF
shall survive for a period of 1 year after the Closing Date, and thereafter all
such representations and warranties shall be extinguished, except with respect
to claims then pending for which specific notice has been given during such
1-year period.
5.02. Limitations on Liability. Notwithstanding any other provision
to this Agreement the contrary, neither party to this Agreement shall be liable
to the other party for any cost, damage, expense, liability or loss under this
indemnification provision until after the sum of all amounts individually when
added to all other such amounts in the aggregate exceeds $1,000 and then such
liability shall apply only to matters in excess of $1,000.
ARTICLE 6
REMEDIES
6.01 Specific Performance. Each party's obligations under this
Agreement are unique. If any party should default in its obligations under this
agreement, the parties each acknowledge that it would be extremely
impracticable to measure the resulting damages. Accordingly, the non-defaulting
party, in addition to any other available rights or remedies, may xxx in equity
for specific performance, and the parties each expressly waive the defense that
a remedy in damages will be adequate.
6.02 Costs. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this agreement or because of an
alleged dispute, breach, default, or misrepresentation in connection with any
of the provisions of this agreement, the successful or prevailing party or
parties shall be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to which
it or they may be entitled.
ARTICLE 7
ARBITRATION
In the event a dispute arises with respect to the interpretation or
effect of this Agreement or concerning the rights or obligations of the parties
to this Agreement, the parties agree to negotiate in good faith with reasonable
diligence in an effort to resolve the dispute in a mutually acceptable manner.
Failing to reach a resolution of this Agreement, either party shall have the
right to submit the dispute to be settled by arbitration under the Commercial
Rules of Arbitration of the American Arbitration Association. The parties agree
that, unless the parties mutually agree to the contrary such arbitration shall
be conducted in Tampa, Florida. The cost of arbitration shall be borne by the
party against whom the award is rendered or, if in the interest of fairness, as
allocated in accordance with the judgment of the arbitrators. All awards in
arbitration made in good faith and not infected with fraud or other misconduct
shall be final and binding. The
Page 13
arbitrators shall be selected as follows: one by EMDF, one by UTEK and a third
by the two selected arbitrators. The third arbitrator shall be the chairman of
the panel.
ARTICLE 8
MISCELLANEOUS
8.01. No party may assign this Agreement or any right or obligation
of it hereunder without the prior written consent of the other parties to this
Agreement. No permitted assignment shall relieve a party of its obligations
under this Agreement without the separate written consent of the other parties.
8.02. This Agreement shall be binding upon and inure to the benefit
of the parties and their respective permitted successors and assigns.
8.03. Each party agrees that it will comply with all applicable
laws, rules and regulations in the execution and performance of its obligations
under this Agreement.
8.04. This Agreement shall be governed by and construct in
accordance with the laws of the State of Florida without regard to principles
of conflicts of law.
8.05. This document constitutes a complete and entire agreement
among the parties with reference to the subject matters set forth in this
Agreement. No statement or agreement, oral or written, made prior to or at the
execution of this Agreement and no prior course of dealing or practice 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.
Page 14
E MED FUTURE, INC. MEDICAL SAFETY TECHNOLOGIES,
INC.
By: By:
---------------------------------- -------------------------
Xxxxxx X. Xxxxxxxxxx, Xxx X. Xxxxxx,
President and CEO President
Address: Address:
000 Xxxxxxxx Xxxx, Xxxxx 000 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 Xxxxx Xxxx, Xxxxxxx 00000
UTEK CORPORATION
By:
----------------------------------
Xxxxxxxx X. Xxxxx, Ph.D.
Chief Executive Officer
Address:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxx 00000
Page 15
EXHIBIT A
OUTSTANDING AGREEMENTS
(LICENSE AGREEMENT BETWEEN EMORY UNIVERSITY & MSTI)
Page 16
EXHIBIT B
MSTI
FINANCIAL STATEMENT
AS OF 12-30-03
Page 17
EXHIBIT C
EMDF
CURRENT FORM 10-QSB
FOR THE QUARTER ENDING SEPTEMBER 30, 2003
INCLUDING FINANCIAL STATEMENTS
FILED WITH SEC
Page 18