ACQUISITION OF SPORT TECHNOLOGIES, INC.
BY
GLOTECH INDUSTRIES, INC.
AGREEMENT AND PLAN OF ACQUISITION
THIS AGREEMENT AND PLAN OF ACQUISITION ("Agreement") is entered into
by and between SPORT TECHNOLOGIES, INC., a Florida corporation, ("STI"), UTEK
CORPORATION, a Delaware corporation, ("UTEK"), and GLOTECH INDUSTRIES, INC., a
Nevada corporation, ("GTHI").
WHEREAS, UTEK owns 100% of the issued and outstanding shares of common
stock of STI ("STI Shares"); and
WHEREAS, before the Closing Date, STI 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").
WHEREAS, the parties desire to provide for the terms and conditions
upon which STI will be acquired by GTHI in a, stock-for-stock exchange
("Acquisition") in accordance with the respective corporation laws of their
state, upon consummation of which all STI Shares will be owned by GTHI, and all
issued and outstanding STI Shares will be exchanged for common stock of GTHI
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 STI Shares shall
be acquired from UTEK by GTHI in accordance with the respective corporation
laws of their state and the
provisions of this Agreement and the separate corporate existence of STI, as a
wholly-owned subsidiary of GTHI, shall continue after the closing.
(b) Effective Date. The Acquisition shall become effective
("Effective Date") upon the execution of this Agreement and closing of the
transaction.
1.02 Exchange of Stock. At the Effective Date, by virtue of the
Acquisition:
All of the STI Shares that are issued and outstanding at the Effective
Date shall be exchanged for 2,130,000 unregistered shares of common
stock of GTHI ("GTHI Shares"), which by agreement of the shareholders
of STI shall be issued as follows:
SHAREHOLDER NUMBER OF GTHI SHARES
UTEK CORPORATION 2,130,000
1.03 Effect of Acquisition.
(a) Rights in STI Cease. At and after the Effective Date, the
holder of each certificate of common stock of STI shall cease to have any
rights as a shareholder of STI.
(b) Closure of STI Shares Records. From and after the Effective
Date, the stock transfer books of STI shall be closed, and there shall be no
further registration of stock transfers on the records of STI.
1.04 Closing. Subject to the terms and conditions of this
Agreement, the Closing of the Acquisition shall take place on or before August
28, 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 STI. UTEK and STI
represent and warrant to GTHI that the facts set forth below are true and
correct:
(a) Organization. STI 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 STI have been provided to GTHI 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 STI 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 STI 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 STI 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 STI Shares are issued and outstanding as follows:
SHAREHOLDER NUMBER OF STI SHARES
UTEK CORPORATION 1,000
All issued and outstanding STI 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. STI
is not authorized to issue any preferred stock. All dividends on STI 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 STI to issue any STI Shares or securities
convertible into STI Shares to anyone for any reason whatsoever. None of the
STI 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 STI or
UTEK is a party and will not create a default under any such obligation or
under any agreement to which STI or UTEK is a party. This Agreement constitutes
a legal, valid and binding obligation of STI, 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 STI 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 STI.
(f) No Conflicting Agreements. Neither the execution and delivery
of this Agreement nor the fulfillment of or compliance by STI 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,
STI or UTEK's articles of incorporation or bylaws, the Technology, the License
Agreement, or any
agreement, contract, instrument, order, judgment or decree to which STI or UTEK
is a party or by which STI 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 STI and UTEK or performance of the
obligations of STI and UTEK hereunder or under any other agreement to which STI
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 STI or its
assets or business.
(h) Title to Assets. STI 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
STI. STI 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) Xxxx X. Xxxxx (PDM) 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 Xxxx X. Xxxxx
("Inventor"),
(3) The License Agreement between the PDM and STI
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,
GTHI acknowledges and understands that STI 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, STI 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 STI. STI 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
STI, 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 STI'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. STI 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 STI except as
specifically set forth in the financial statements and the other attached
schedules and exhibits. There is no information known to STI or UTEK that would
prevent the financial statements of STI 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 STI 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 STI 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 STI by any
taxing authority, have been properly paid, except to the extent reflected on
STI's financial statements, where STI 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.
STI has not received any notice of assessment or proposed assessment in
connection with any tax returns, nor is STI 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. STI 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. STI 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 STI. STI 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, STI has not, and
without the written consent of GTHI, 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 STI;
(4) Made any commitments or agreements for capital
expenditures or otherwise;
(5) Entered into any transaction or made any commitment
not disclosed to GTHI;
(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 STI; or
(8) Taken any action which could reasonably be foreseen
to make any of the representations or warranties made by STI 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 STI 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 GTHI 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 STI in accordance with their respective terms and will continue
to be valid and enforceable following the Acquisition. STI 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 STI; and
(2) There are no outstanding operating agreements, lease
agreements or similar agreements by which STI is bound; and
(3) The complete final drafts of the License Agreement
have has been provided to GTHI; 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 STI's property; and
(6) There are no breaches of any agreement to which STI
is a party.
(o) Compliance with Laws. STI 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 STI or UTEK,
threatened against STI, the Technology, Patent License Agreement, Consulting
Agreement or Research Agreement affecting its assets or business (financial or
otherwise), and neither STI 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 STI 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 STI or the
transactions contemplated.
(q) Employees. STI has no and never had any employees. STI is not
a party to or bound by any employment agreement or any collective bargaining
agreement with respect to any employees. STI is not in violation of any law,
regulation relating to employment of employees.
(r) Neither STI nor UTEK has any knowledge of any existing or
threatened occurrence, action or development that could cause a material
adverse effect on STI or its business, assets or condition (financial or
otherwise) or prospects.
(s) Employee Benefit Plans. STI 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 STI 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 STI 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 STI 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 GTHI. GTHI represents and
warrants to UTEK and STI that the facts set forth are true and correct.
(a) Organization. GTHI is a corporation duly organized, validly
existing and in good standing under the laws of Florida, 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 GTHI; 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 GTHI consists of
50,000,000 shares of common stock with a par value $.001 per share ("GTHI
Shares"); and on the Effective Date of the Acquisition, 22,380,000 GTHI Shares
(which will include the 2,130,000 GTHI Shares issued at the closing of the
Acquisition) will be issued and outstanding. All issued and outstanding GTHI
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 GTHI is a party and will not
create a default hereunder, and this Agreement constitutes a legal, valid and
binding obligation of GTHI, 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 GTHI.
(f) No Conflicting Agreements. Neither the execution and delivery
of this Agreement nor the fulfillment of or compliance by GTHI with the terms
or provisions of 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, their respective corporate charters or bylaws, or any agreement,
contract, instrument, order, judgment or decree to which it is a party or by
which it or any of its assets are bound, or violate any provision of any
applicable law, rule or regulation or any order, decree, writ or injunction of
any court or governmental entity which materially affects its assets or
business.
(g) Consents. Assuming the correctness of UTEK and STI'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 GTHI or its assets or business.
(h) Financial Statements. The unaudited financial statements of
GTHI 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. GTHI 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 GTHI except as specifically set forth in the GTHI
financial statements.
(i) Full Disclosure. All representations or warranties of GTHI
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. GTHI 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 GTHI,
threatened against GTHI materially affecting its assets or business (financial
or otherwise), and GTHI 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) GTHI has no knowledge of any existing or threatened
occurrence, action or development that could cause a material adverse effect on
GTHI or its business, assets or condition (financial or otherwise) or
prospects.
2.03 Investment Representations of UTEK. UTEK represents and
warrants to GTHI 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 GTHI Shares pursuant to the Acquisition. It is able to bear the
economic risk of the investment in GTHI Shares, including the risk of a total
loss of the investment in GTHI Shares. The acquisition of GTHI 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 GTHI
is true and correct. It has conducted all investigations and due diligence
concerning GTHI 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 GTHI concerning GTHI Shares and the business and
financial condition of and prospects for GTHI, and the officers and directors
of GTHI 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 GTHI Shares will not be registered and UTEK
will not be permitted to sell or otherwise transfer the GTHI Shares in any
transaction in contravention of the following legend, which will be imprinted
in substantially the follow form on the stock certificate representing GTHI
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 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 STI Shares or the
right of STI or UTEK to consummate the Acquisition contemplated hereunder.
4.04. The representations and warranties of the parties shall be
true and correct in all material respects at the Effective Date.
4.05. The Technology and Intellectual Property has been prosecuted
in good faith with reasonable diligence.
4.06. To the best knowledge of UTEK and STI, the License Agreement
is valid and in full force and effect without any default in this Agreement.
4.07. GTHI shall have received, at or within 5 days of Closing
Date, each of the following:
(a) the stock certificates representing the STI Shares, duly
endorsed (or accompanied by duly executed stock powers) by UTEK for
cancellation;
(b) all documentation relating to the STI's business, all in a
form and substance satisfactory to GTHI;
(c) such agreements, files and other data and documents
pertaining to STI's business as GTHI may reasonably request;
(d) copies of the general ledgers and books of account of STI,
and all federal, state and local income, franchise, property and other tax
returns filed by STI since the inception of STI;
(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 STI in Florida;
(f) the original corporate minute books of STI, including the
articles of incorporation and bylaws of STI, and all other documents filed in
this Agreement;
(g) all consents, assignments or related documents of conveyance
to give GTHI 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 GTHI and STI, and
(i) such other documents, instruments or certificates as GTHI, or
their counsel may reasonably request.
4.08. GTHI shall have completed due diligence investigation of STI
to GTHI's satisfaction in their sole discretion.
4.09. GTHI shall receive the resignation effective the Closing Date
of each director and officer of STI.
ARTICLE 5
LIMITATIONS
5.01. Survival of Representations and Warranties.
(a) The representations and warranties made by UTEK and STI 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 GTHI 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 arbitrators shall be selected as follows: one
by GTHI, 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.
GLOTECH INDUSTRIES, INC. SPORT TECHNOLOGIES, INC.
By: By:
------------------------------------ -----------------------
Xxxxx Xxxxxxxxxxx XXX X. XXXXXX, Esq.
President and CEO President
Address: Address:
0000 XX Xxxxxxxxx Xxxx 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 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
EXHIBIT A
OUTSTANDING AGREEMENTS
STI FINANCIAL STATEMENTS AS OF AUGUST 28, 2003
GTHI
CURRENT FORM 10-QSB
FOR THE QUARTER ENDING JUNE 30, 2003
INCLUDING FINANCIAL STATEMENTS
FILED WITH SEC
