Exhibit 2.1
ACQUISITION OF FIBER-GEL TECHNOLOGIES, INC.
BY
CIRCLE GROUP INTERNET, INC.
AGREEMENT AND PLAN OF ACQUISITION
THIS AGREEMENT AND PLAN OF ACQUISITION ("Agreement") is entered into by
and between Fiber-Gel Technologies, Inc., a Florida corporation, ("FGTI"), UTEK
Corporation, a Delaware corporation, ("UTEK"), and Circle Group Internet, Inc.,
an Illinois corporation, ("CRGQ").
WHEREAS, UTEK owns 100% of the issued and outstanding shares of common
stock of FGTI ("FGTI Shares"); and
WHEREAS, before the Closing Date, FGTI 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 FGTI will be acquired by CRGQ in a, stock-for-stock exchange
("Acquisition") in accordance with the respective corporation laws of their
state, upon consummation of which all FGTI Shares will be owned by CRGQ, and all
issued and outstanding FGTI Shares will be exchanged for common stock of CRGQ
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
FGTI Shares shall be acquired from UTEK by CRGQ in accordance
with the respective corporation laws of their state and the
provisions of this Agreement and the separate corporate
existence of FGTI, as a wholly-owned subsidiary of CRGQ, 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.
(c) EXCHANGE OF STOCK. At the Effective Date, by virtue of the
Acquisition, all of the FGTI Shares that are issued and
outstanding at the Effective Date shall be exchanged for
2,800,000 unregistered shares of common stock of CRGQ ("CRGQ
Shares") and a warrant to purchase 500,000 CRGQ common at
$0.36 exercisable within 36 months of execution of this
agreement.
1.02 EFFECT OF ACQUISITION.
a) RIGHTS IN FGTI CEASE. At and after the Effective Date, the
holder of each certificate of common stock of FGTI shall cease
to have any rights as a shareholder of FGTI.
b) CLOSURE OF FGTI SHARES RECORDS. From and after the Effective
Date, the stock transfer books of FGTI shall be closed, and
there shall be no further registration of stock transfers on
the records of FGTI.
1.03 CLOSING. Subject to the terms and conditions of this Agreement, the Closing
date of this Acquisition shall be the date of the last executed signature
affixed to this agreement, but in no event later than September 2, 2002.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.01 REPRESENTATIONS AND WARRANTIES OF UTEK AND FGTI. UTEK and FGTI represent
and warrant to CRGQ that the facts set forth below are true and correct:
a) ORGANIZATION. FGTI 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 FGTI have
been provided to CRGQ 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 FGTI 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 FGTI 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 FGTI consists of
1,000,000 shares of common stock, with a par value $0.01 per
share. At the date of this Agreement, 1,000 FGTI Shares are
issued and outstanding as follows:
Shareholder Number of FGTI Shares
----------- ---------------------
UTEK Corporation 1000
d) All issued and outstanding FGTI 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. FGTI
is not authorized to issue any preferred stock. All dividends
on FGTI 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 FGTI to issue any FGTI Shares
or securities convertible into FGTI Shares to anyone for any
reason whatsoever. None of the FGTI 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.
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e) 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 FGTI or UTEK is a party and will not
create a default under any such obligation or under any
agreement to which FGTI or UTEK is a party. This Agreement
constitutes a legal, valid and binding obligation of FGTI,
enforceable in accordance with its terms, except as the
enforcement may be limited by bankruptcy, insolvency,
moratorium, or similar laws affecting creditor's rights
generally and by the availability of injunctive relief,
specific performance or other equitable remedies.
f) LITIGATION RELATING TO THIS AGREEMENT. There are no suits,
actions or proceedings pending or, to the best of FGTI 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 FGTI.
g) NO CONFLICTING AGREEMENTS. Neither the execution and delivery
of this Agreement nor the fulfillment of or compliance by FGTI
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, FGTI or UTEK's articles of incorporation or
bylaws, the Technology, the License Agreement, or any
agreement, contract, instrument, order, judgment or decree to
which FGTI or UTEK is a party or by which FGTI 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.
h) 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
FGTI and UTEK or performance of the obligations of FGTI and
UTEK hereunder or under any other agreement to which FGTI 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 FGTI or its
assets or business.
i) TITLE TO ASSETS. FGTI 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 FGTI. FGTI 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.
j) INTELLECTUAL PROPERTY
1. The U.S. Government as represented by the U.S.
Department of Agriculture, Agricultural Research
Service (hereinafter referred to as "USDA") 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 X. Xxxxxxx
("Inventor"). The Inventor, has assigned all of his
rights, title and interests in the Technology to the
USDA, and
3. The License Agreement between the USDA and FGTI
covering the Invention is legal, valid, binding and
enforceable in accordance with its terms as contained
in Exhibit A.
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4. Except as otherwise set forth in this Agreement, CRGQ
acknowledges and understands that FGTI 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, FGTI 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 Technology.
k) LIABILITIES OF FGTI. FGTI has no assets, no liabilities or
obligations of any kind, character or description except those
listed on the attached schedules and exhibits.
l) FINANCIAL STATEMENTS. The unaudited financial statements of
FGTI, 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 FGTI'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. FGTI 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 FGTI except as specifically set
forth in the financial statements and the other attached
schedules and exhibits. There is no information known to FGTI
or UTEK that would prevent the financial statements of FGTI
from being audited in accordance with generally accepted
accounting principles.
m) TAXES. All returns, reports, statements and other similar
filings required to be filed by FGTI 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 FGTI 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 FGTI by any taxing authority,
have been properly paid, except to the extent reflected on
FGTI's financial statements, where FGTI 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. FGTI has not
received any notice of assessment or proposed assessment in
connection with any tax returns, nor is FGTI 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. FGTI 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. FGTI 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 FGTI. FGTI is not and has never been a party to
any tax sharing agreements with any other person or entity.
n) ABSENCE OF CERTAIN CHANGES OR EVENTS. From the date of the
full execution of the Term Sheet until the Closing Date, FGTI
has not, and without the written consent of CRGQ, it will not
have:
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1. Sold, encumbered, assigned let lapsed or transferred
any of its material assets, including without
limitation the Technology, the Patent 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 XXXX,
0. Made any commitments or agreements for capital
expenditures or otherwise,
5. Entered into any transaction or made any commitment
not disclosed to CRGQ,
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 FGTI, or
8. Taken any action which could reasonably be foreseen
to make any of the representations or warranties made
by FGTI or UTEK untrue as of the date of this
Agreement or as of the Closing Date.
o) MATERIAL AGREEMENTS. Exhibit A attached contains a true and
complete list of all contemplated and executed agreements
between FGTI 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 CRGQ 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 FGTI
in accordance with their respective terms and will continue to
be valid and enforceable following the Acquisition. FGTI 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 FGTI; and
2. There are no outstanding operating agreements, lease
agreements or similar agreements by which FGTI is
bound; and
3. The complete final drafts of the License Agreement
have has been provided to CRGQ; 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 FGTI's
property; and
6. There are no breaches of any agreement to which FGTI
is a party.
p) COMPLIANCE WITH LAWS. FGTI 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.
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q) 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 FGTI or UTEK, threatened against FGTI, the
Technology, License Agreement, affecting its assets or
business (financial or otherwise), and neither FGTI 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
FGTI 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 FGTI or the
transactions contemplated.
r) EMPLOYEES. FGTI has no and never had any employees. FGTI is
not a party to or bound by any employment agreement or any
collective bargaining agreement with respect to any employees.
FGTI is not in violation of any law, regulation relating to
employment of employees.
s) Neither FGTI nor UTEK has any knowledge of any existing or
threatened occurrence, action or development that could cause
a material adverse effect on FGTI or its business, assets or
condition (financial or otherwise) or prospects.
t) EMPLOYEE BENEFIT PLANS. FGTI 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.
u) BOOKS AND RECORDS. The books and records of FGTI 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.
v) NO BROKER'S FEES. Neither UTEK nor FGTI has incurred any
investment banking, advisory or other similar fees or
obligations in connection with this Agreement or the
transactions contemplated by this agreement.
w) FULL DISCLOSURE. All representations or warranties of UTEK and
FGTI 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 CRGQ. CRGQ represents and warrants to
UTEK and FGTI that the facts set forth are true and correct.
a) ORGANIZATION. CRGQ is a corporation duly organized, validly
existing and in good standing under the laws of Illinois, 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
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the board of directors of CRGQ; 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 CRGQ consists of
20,375,915 shares of common stock with a par value $.00005 per
share ("CRGQ Shares"); and on the Effective Date of the
Acquisition, less than 23,175,915 CRGQ Shares (which will
include the 2,800,000 CRGQ Shares issued at the closing of the
Acquisition) will be issued and outstanding. All issued and
outstanding CRGQ 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 CRGQ is a party and will not create a default
hereunder, and this Agreement constitutes a legal, valid and
binding obligation of CRGQ, 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 CRGQ
f) NO CONFLICTING AGREEMENTS. Neither the execution and delivery
of this Agreement nor the fulfillment of or compliance by CRGQ
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 FGTI'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 CRGQ or its
assets or business.
h) FINANCIAL STATEMENTS. The unaudited financial statements of
CRGQ 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. CRGQ 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 CRGQ except
as specifically set forth in the CRGQ financial statements.
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i) FULL DISCLOSURE. All representations or warranties of CRGQ 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. CRGQ 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 CRGQ, threatened against CRGQ materially
affecting its assets or business (financial or otherwise), and
CRGQ 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) CRGQ has no knowledge of existing or threatened occurrences,
actions and developments that could cause a material adverse
effect on CRGQ or its business, assets or condition (financial
or otherwise) or prospects.
2.03 INVESTMENT REPRESENTATIONS OF UTEK. UTEK represents and warrants to CRGQ
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 CRGQ Shares pursuant to the
Acquisition. It is able to bear the economic risk of the
investment in CRGQ Shares, including the risk of a total loss
of the investment in CRGQ Shares. The acquisition of CRGQ
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 CRGQ is true and correct. It has
conducted all investigations and due diligence concerning CRGQ
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
CRGQ concerning CRGQ Shares and the business and financial
condition of and prospects for CRGQ, and the officers and
directors of CRGQ 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 CRGQ
Shares will not be registered and UTEK will not be permitted
to sell or otherwise transfer the CRGQ Shares in any
transaction in contravention of the following legend, which
will be imprinted in substantially the follow form on the
stock certificate representing CRGQ 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
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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 FGTI Shares or the right of FGTI or UTEK to
consummate the Acquisition contemplated hereunder.
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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 FGTI, the License Agreement is valid and
in full force and effect without any default in this Agreement.
4.07. CRGQ shall have received, at or within 30 days of Closing Date, each of
the following:
a) the stock certificates representing the FGTI Shares, duly
endorsed (or accompanied by duly executed stock powers) by
UTEK for cancellation;
b) all documentation relating to the FGTI's business, all in a
form and substance satisfactory to CRGQ;
c) such agreements, files and other data and documents pertaining
to FGTI's business as CRGQ may reasonably request;
d) copies of the general ledgers and books of account of FGTI,
and all federal, state and local income, franchise, property
and other tax returns filed by FGTI since the inception of
FGTI;
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 FGTI in Florida;
f) the original corporate minute books of FGTI, including the
articles of incorporation and bylaws of FGTI, and all other
documents filed in this Agreement;
g) all consents, assignments or related documents of conveyance
to give CRGQ 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
CRGQ and FGTI, and
i) such other documents, instruments or certificates as CRGQ, or
their counsel may reasonably request.
4.08. CRGQ shall have completed due diligence investigation of FGTI to CRGQ's
satisfaction in their sole discretion.
4.09. CRGQ shall receive the resignation effective the Closing Date of each
director and officer of FGTI.
ARTICLE 5
LIMITATIONS
5.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(a) The representations and warranties made by UTEK and FGTI 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.
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(b) The representations and warranties made by CRGQ 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 is
unique. If any party should default in its obligations under this agreement, the
parties each acknowledge that it would be extremely impracticable to measure the
resulting damages. Accordingly, the non-defaulting party, in addition to any
other available rights or remedies, may xxx in equity for specific performance,
and the parties each expressly waive the defense that a remedy in damages will
be adequate.
6.02 COSTS. If any legal action or any arbitration or other proceeding is
brought for the enforcement of this agreement or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the provisions
of this agreement, the successful or prevailing party or parties shall be
entitled to recover reasonable attorneys' fees and other costs incurred in that
action or proceeding, in addition to any other relief to which it or they may be
entitled.
ARTICLE 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 in which the defending party resides. 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 CRGQ, 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.
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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.
8.10 PRESS RELEASES OR ANY OTHER FORMS OF COMMUNICATION TO THIRD PARTIES WHICH
MENTION BOTH UTEK CORPORATION AND CRGQ SHALL BE RELEASED WITHOUT THE PRIOR
WRITTEN CONSENT AND APPROVAL OF BOTH UTEK AND CRGQ.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
by a duly authorized officer of each party.
CIRCLE GROUP INTERNET, INC. FIBER-GEL TECHNOLOGIES,INC.
By: Date: By: Date:
---------------------- ----- --------------------- -----
Xxxxxxx X. Xxxxxxx Xxx Xxxxxx, X.X.
President and Chief Executive Officer President
Address: Address:
------- --------
0000 Xxxxxx Xx. 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxx Xxxx, Xxxxxxx 00000
UTEK CORPORATION
By: Date:
----------------- --------
Xxxxxxxx X. Xxxxx, Ph.D.
Chief Executive Officer
Address:
--------
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxx 00000
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EXHIBIT A
OUTSTANDING AGREEMENTS
EXHIBIT B
FGTI FINANCAL STATEMENTS
EXHIBIT C
CRGQ FINANCIAL STATEMENTS