ACQUISITION OF ENHANCED OIL RECOVERY TECHNOLOGIES, INC. by PLATINA ENERGY GROUP, INC. AGREEMENT AND PLAN OF ACQUISITION
ACQUISITION
OF ENHANCED OIL RECOVERY TECHNOLOGIES, INC.
by
PLATINA
ENERGY GROUP, INC.
AGREEMENT
AND PLAN OF ACQUISITION
WHEREAS, UTEK owns 100% of the
issued and outstanding shares of common stock of EORTI (EORTI Shares);
and
WHEREAS, before the Closing
Date, EORTI will acquire the license for the fields of use as
described in the License Agreement which is attached hereto as part
of Exhibit A and made a part of this Agreement (Agreements) 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 EORTI will be acquired by PLTG
in a stock-for-stock exchange (Acquisition) in accordance with the respective
corporation laws of their state, upon consummation of which all EORTI Shares (as
defined below) will be owned by PLTG, and all issued and outstanding EORTI
Shares will be exchanged for shares of Series F Convertible Preferred stock of
PLTG 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 EORTI Shares shall be
acquired from UTEK by PLTG in accordance with the respective corporation laws of
their state and the provisions of this Agreement and the separate corporate
existence of EORTI shall continue after the closing as a wholly-owned subsidiary
of PLTG.
(b) Effective Date. The
Acquisition shall become effective (Effective Date or Closing 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 EORTI Shares that
are issued and outstanding at the Effective Date shall be exchanged for 100,000
Series F convertible Preferred shares of PLTG stock as
follows:
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Prior to
closing, PLTG shall have the authority to issue the Series F
Convertible
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Preferred
stock.
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100,000
shares of Series F Convertible Preferred Stock issued and delivered within
ten (10) days of closing on this
Agreement.
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The
shares shall be converted
no sooner than the 6 month anniversary and no later than the twelve month
anniversary of the execution of this Agreement into $1,440,000 worth of
common shares of PLTG, based on the average of the five (5)
day closing price prior to the conversion date Shares will be salable
pursuant to Rule 144. The start of the holding period will begin upon the
issuance of the above convertible preferred
shares.
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A
convertible floor price of $.02 per common share shall be set for the
conversion of the Series F Convertible Preferred Stock, which for clarity
would result in a maximum of 72,000,000 common shares being
issued.
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In
addition, as part of the Series F Convertible Preferred Stock, a five year
warrant to purchase 500,000 shares priced at $.25 per share and a five
year warrant to purchase 500,000 shares at $.50 per share shall be
granted.
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No voting rights for Series F Convertible Preferred
Stock
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PLTG
agrees that it will have authorized the shares of common stock required
for the conversion of the shares within 150 days of the execution of this
agreement; if the number of shares outstanding are not available to
facilitate the conversion of the issued convertible preferred shares, then
the sum of $1,440,000 shall be immediately due and payable in cash at the
6 month anniversary of this
transaction.
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1.03 Effect of
Acquisition. At and after the Effective Date, the holder of
each certificate of common stock of EORTI shall cease to have any rights as a
shareholder of EORTI.
1.04 Closing. Subject to
the terms and conditions of this Agreement, the Closing of the Acquisition shall
take place as of the last to sign and date this agreement.
ARTICLE
2ARTICLE 2
REPRESENTATIONS
AND WARRANTIES
2.01 Representations and
Warranties of UTEK and EORTI. UTEK and EORTI represent and
warrant to PLTG that the facts set forth below are true and correct, and will be
true and correct as of the Effective Date:
(a) Organization. EORTI
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 EORTI have
been provided to PLTG 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 EORTI 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 EORTI 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 EORTI consists of 1,000,000 shares of common stock with a
par value $.01 per share (EORTI Shares). At the date of this Agreement, 1,000
EORTI 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 EORTI shares so owned by UTEK in accordance with the terms and
conditions of this Agreement. The delivery to PLTG of the EORTI shares so owned
by UTEK pursuant to the provisions of this Agreement will transfer to PLTG valid
title thereto, free and clear of any and all adverse claims. All issued and
outstanding EORTI 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. EORTI is
not authorized to issue any preferred stock. All dividends on EORTI 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 EORTI to issue any EORTI Shares or securities
convertible into EORTI Shares to anyone for any reason whatsoever. None of the
EORTI 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 EORTI or UTEK is a party and will not create a default
under any such obligation or under any agreement to which EORTI or UTEK is a
party. This Agreement constitutes a legal, valid and binding
obligation of EORTI, 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 EORTI 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
EORTI.
(f) No Conflicting
Agreements. Neither the execution and delivery of this Agreement nor the
fulfillment of or compliance by EORTI 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, EORTI or UTEK’s articles of
incorporation or bylaws, the Technology, the License Agreement, or any
agreement, contract, instrument, order, judgment or decree to which EORTI or
UTEK is a party or by which EORTI 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 EORTI
and UTEK or performance of the obligations of EORTI and UTEK hereunder or under
any other agreement to which EORTI 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 EORTI or its assets or business.
(h) Title to Assets.
EORTI 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 EORTI. EORTI 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
Board of Regents (“Board”) of The University of Texas at Austin (“University”)
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 US Patent No 6,705,403, Titled “A production system and method for
producing fluids from a well” Inventors: Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxxxxx,
Xxxx Xxxxxxxxxxx; (the Patent) with respect to the inventions listed in Exhibit
A hereto (the Inventions).
(2) The
License Agreement between University and EORTI 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, PLTG acknowledges and understands that
EORTI 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
EORTI 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.
(5) To
the knowledge of EORTI 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 EORTI
and UTEK, no such Proceeding is currently threatened, and neither EORTI 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, EORTI 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 EORTI.
EORTI 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 EORTI, 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 EORTI’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.
EORTI 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 EORTI except as specifically set forth
in the financial statements and the other attached schedules and
exhibits. There is no information known to EORTI or UTEK that would
prevent the financial statements of EORTI 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
EORTI
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
EORTI 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 EORTI by any taxing authority, have been properly paid,
except to the extent reflected on EORTI’s financial statements, where EORTI 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. EORTI has not received any notice of assessment or
proposed assessment in connection with any tax returns, nor is EORTI 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. EORTI 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. EORTI 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 EORTI. EORTI 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 latest balance sheet of EORTI provided to
PLTG until the Closing Date, EORTI has not, and without the written consent of
PLTG, 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
EORTI;
(4) Made
any commitments or agreements for capital expenditures or
otherwise;
(5) Entered
into any transaction or made any commitment not disclosed to PLTG 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 EORTI; or
(8) Taken
any action, which could reasonably be foreseen to make any of the
representations or warranties made by EORTI 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 EORTI 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 PLTG 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 EORTI in accordance with their
respective terms and will continue to be valid and enforceable following the
Acquisition. EORTI 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 EORTI;
and
(2) There
are no outstanding operating agreements, lease agreements or similar agreements
by which EORTI is bound; and
(3) The
complete final License Agreement will be provided to PLTG;
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 EORTI’s property; and
(6) There
are no breaches of any agreement to which EORTI is a party.
(o) Compliance with Laws.
EORTI 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 EORTI or UTEK, threatened against EORTI, the Technology,
or License Agreement, affecting its assets or business (financial or
otherwise), and neither EORTI 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 EORTI 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 EORTI or the transactions
contemplated.
(q) Employees. EORTI has
no and never had any employees. EORTI is not a party to or bound by any
employment agreement or any collective bargaining agreement with respect to any
employees. EORTI is not in violation of any law, regulation relating to
employment of employees.
(r) Adverse Effect.
Neither EORTI nor UTEK has any knowledge of any or threatened existing
occurrence, action or development that could cause a material adverse effect on
EORTI or its business, assets or condition (financial or otherwise) or
prospects.
(s) Employee Benefit
Plans. EORTI 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 EORTI 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 EORTI 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 EORTI 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 PLTG. PLTG represents and warrants to UTEK and
EORTI that to the best of its knowledge the facts set forth are true and
correct.
(a) Organization. PLTG
is a corporation duly organized, validly existing and in good standing under the
laws of Delaware, 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 PLTG; 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)
Adjustment of
Conversion Rate.
If, at any time the Series F Stock of this Corporation is outstanding,
the Corporation increases or decreases the number of common shares outstanding
through a stock split, stock dividend, or similar action, the conversion rate
for the Series F Stock shall be adjusted accordingly, so as to make each share
of Series F Stock convertible into the Same proportionate amount of common stock
as it would have been convertible into without such adjustment of the common
stock. Each Series F shareholder shall be notified in writing of the adjusted
conversion rate within thirty (30) days of such action by the
Corporation.
(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 PLTG is a party and will not create a default hereunder, and this
Agreement constitutes a legal, valid and binding obligation of PLTG, 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 PLTG.
(f) No Conflicting
Agreements. Neither the execution and delivery of this Agreement nor the
fulfillment of or compliance by PLTG 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
PLTG’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.
(g) Consents. Assuming
the correctness of UTEK and EORTI’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 PLTG or its assets or
business.
(h)
Financial
Statements. The financial statements of PLTG 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 PLTG’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 PLTG 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 PLTG’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.
(i) Full Disclosure. All
representations or warranties of PLTG 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.
PLTG 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.
(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 PLTG, threatened against PLTG materially affecting its assets
or business (financial or otherwise), and PLTG 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 PLTG’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, PLTG has no knowledge of any existing or threatened occurrence,
action or development that could cause a material adverse affect on PLTG or its
business, assets or condition (financial or otherwise) or
prospects.
(l) Development. PLTG
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.
(m) Investment Company
Status PLTG is not an investment company, either registered or
unregistered.
2.03 Investment Representations
of UTEK. UTEK represents and warrants to PLTG 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 PLTG Common Shares pursuant
to the Acquisition. It is able to bear the economic risk of the investment in
PLTG Common Shares, including the risk of a total loss of the investment in PLTG
Common Shares. The acquisition of PLTG 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 PLTG is true
and correct. It has conducted all investigations and due diligence concerning
PLTG 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 PLTG concerning PLTG Common Shares and the business and financial
condition of and prospects for PLTG, and the officers and directors of PLTG 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. Intentionally deleted
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(c)
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Legend. Intentionally
deleted
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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.
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 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 EORTI Shares or the right of EORTI 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. PLTG
shall have received, at or prior to the Closing Date, each of the
following:
(a) the
stock certificates representing all of the currently issued and outstanding
EORTI Shares, duly endorsed (or accompanied by duly executed stock powers) by
UTEK for transfer of such shares to PLTG;
(b) all
corporate records and documentation relating to EORTI’s business, all in a form
and substance satisfactory to PLTG, including its Articles of Incorporation and
Bylaws;
(c) such
agreements, files and other data and documents pertaining to
EORTI’s business as PLTG may reasonably request;
(d) copies
of the general ledgers and books of account of EORTI, and all federal, state and
local income, franchise, property and other tax returns filed by EORTI since the
inception of EORTI;
(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 EORTI in
Florida;
(f) the
original corporate minute books of EORTI, including the articles of
incorporation and bylaws of EORTI, and all other documents filed in this
Agreement;
(g) all
consents, assignments or related documents of conveyance to give PLTG 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 PLTG and EORTI, and
(i) such
other documents, instruments or certificates as PLTG, or their counsel may
reasonably request.
4.08. PLTG
shall have completed due diligence investigation of EORTI to PLTG’s satisfaction
in their sole discretion.
4.09. PLTG
shall receive the resignation effective the Closing Date of each director and
officer of EORTI.
4.10 EORTI’s
assets at the time of Closing will include US $300,000 in cash, which sum shall
belong absolutely and unconditionally to EORTI through and after the
Closing.
ARTICLE
5
INDEMNIFICATION AND LIABILITY
LIMITATION
|
5.01.
|
Survival of
Representations and
Warranties.
|
(a) The
representations and warranties made by UTEK and EORTI 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 PLTG 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. PLTG agrees that UTEK shall not be liable under
this agreement to PLTG 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. PLTG 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. PLTG
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. PLTG 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.
(b) Limitation of
Liability. UTK agrees that PLTG shall not be liable under this agreement
to UTK or their respective successor’s, assigns or affiliates except where
damages result directly from the gross negligence or willful misconduct of PLTG
or its employees. In no event shall PLTG's liability exceed the total
amount of the fees paid by PLTG under this agreement, nor shall PLTG be liable
for incidental or consequential damages of any kind. UTK shall
indemnify PLTG, and hold PLTG 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 PLTG under this Agreement, unless it is finally
judicially determined that such Losses resulted from the gross negligence or
willful misconduct of PLTG. 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 PLTG.
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 PLTG, 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 Delaware 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.
|
Signature
|
Title
|
Date
|
||
|
/s/
Xxxxx Xxxxxxx
|
Title:
Chief Executive Officer
|
Date:
March 31, 2008
|
||
|
Xxxxx
Xxxxxxx
|
on behalf of Platina Energy Group, Inc. | |||
|
/s/
Xxxx Xxxxxxx
|
Title:
President
|
Date:
March 31, 2008
|
||
|
Xxxx
Xxxxxxx
|
on behalf of Enhanced Oil Recovery Technolgies, Inc. | |||
|
/s/
Xxxxxxxx X. Xxxxx, Ph.D.
|
Title:
Chief Executive Officer
|
Date:
March 31, 2008
|
||
|
Xxxxxxxx
X. Xxxxx, Ph.D.
|
on behalf of UTEK |
EXHIBIT
A
Outstanding
Agreements
From
the University of Texas @ Austin
|
1)
|
License
Agreement
|
EXHIBIT
B
ENHANCED
OIL RECOVERY
TECHNOLOGIES,
INC.
Financial
Statements as of
March
18, 2008
EXHIBIT
C
Form 10QSB for PLATINA ENERGY GROUP
INC.
14-Feb-2008
Quarterly
Report
