EXHIBIT 10.55
ACQUISITION OF OPTIMETRIX TECHNOLOGIES, INC.
BY
ADVANCED REFRACTIVE TECHNOLOGIES, INC.
AGREEMENT AND PLAN OF ACQUISITION
THIS AGREEMENT AND PLAN OF ACQUISITION (Agreement) is entered into by
and between OptiMetrix Technologies, Inc., a Florida corporation (OTI), UTEK
CORPORATION, a Delaware corporation (UTEK), and Advanced Refractive
Technologies, INC., a Delaware corporation (ARFR).
WHEREAS, UTEK owns 100% of the issued and outstanding shares of common
stock of OTI (OTI Shares);
WHEREAS, before the Closing Date, OTI will acquire the license for the
fields of use as described In the License Agreement and Consulting Agreement as
described which is attached hereto as part of Exhibit A 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 OTI will be acquired by ARFR in a stock-for-stock exchange
(Acquisition) in accordance with the respective corporation laws of their state,
upon consummation of which all OTI Shares will be owned by ARFR, and all issued
and outstanding OTI Shares will be exchanged for Preferred B Series stock of
ARFR 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 I
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 OTI Shares shall
be acquired from UTEK by ARFR in accordance with the respective corporation laws
of their states and the provisions of this Agreement and the separate corporate
existence of OTI, as a wholly-owned subsidiary of ARFR 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.
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1.02 CONSIDERATION.
(a) On the date of closing ("the Effective Date") Advanced
Refractive Technologies, Inc. shall acquire all 1,000 Shares of common stock of
OptiMetrix Technologies, Inc, which are issued and outstanding at the date of
closing, and in exchange, Advanced Refractive Technologies, Inc shall issue
100,000 shares of series B convertible preferred stock (as described in Exhibit
D), of which UTEK is receiving 98,000 shares and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ is receiving
2,000 shares. At any time after Twelve (12) months from the date of closing,
UTEK shall have the right to convert its series B convertible preferred stock to
common stock of Advanced Refractive Technologies, Inc. to be adjusted to equal
the amount of $1,455,000, based on the previous 10 day average closing price on
the day of conversion. For example, on the date of conversion to common, if the
10 day average closing price is $.10, then UTEK shall receive 14,455,000 shares
of common stock in Advanced Refractive Technologies. Inc. and ▇▇ ▇▇▇▇▇ shall
receive 450,000 shares of common stock in Advanced Refractive Technologies, Inc.
The common stock that UTEK receives shall be delivered to UTEK within 30 days of
the conversion. Within 30 days of conversion of all of the Shares into Common
Stock, the Company will file a Registration Statement of Form S-1 or Form SB-2
under the Securities Act of 1933 to register the sale of the Conversion Shares
by the Purchasers. The Company shall use its best efforts within reason to
effect the registration, qualification or compliance under the Securities Act
and under other applicable federal law and any applicable securities or "blue
sky" laws of jurisdictions within the United States, of the Conversion Shares
and the Warrant Shares (the "REGISTRABLE SECURITIES"). During the 12 month
period in which Utek is holding said preferred stock, interest shall be charged
at the annual rate of five (5%) percent, compounded quarterly, (at 1.25% per
quarter) payable in cash or in kind due at the date of conversion. If UTEK
receives common stock as payment, the shares must be registered. In addition to
the convertible preferred stock, UTEK shall receive a Warrant attached to the
series B convertible preferred stock for 750,000 shares of common stock of
Advanced Refractive Technologies, Inc. (as described in Exhibit D). The exercise
price of the Warrant shall be equal to fifty (50%) per cent of the price of the
shares established for the conversion of the preferred stock as set forth above.
For example, if the conversion 10 day average closing price is $.10 per share,
the Warrant price shall be $.05 per share. The shares that UTEK will receive
from the conversion and exercise of its Warrant shall be included in a
registration statement filed by Advanced Refractive Technologies, Inc.
(b) EXCHANGE OF STOCK. At the Effective Date, by virtue of the
Acquisition, all of the OTI Shares that are issued and outstanding at the
Effective Date shall be exchanged for 100,000 Series B Preferred convertible
shares of ARFR (ARFR Shares, as described in Exhibit D) as follows:
Shareholder Number of ARFR Preferred B Shares
----------- ---------------------------------
UTEK Corporation 98,000
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ 2,000
---------
Total 100,000
1.03 EFFECT OF ACQUISITION.
(a) RIGHTS IN OTI CEASE. At and after the Effective Date, the
holder of each certificate of common stock of OTI shall cease to have any rights
as a shareholder of OYI.
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(b) Closure of OTI Shares Records. From and after the
Effective Date, the stock transfer books of OTI shall be closed, and there shall
be no further registration of stock transfers on the records of OTI.
1.04 CLOSING. Subject to the terms and conditions of this Agreement the
Closing of the Acquisition shall be the date of the last executed signature
affixed to this Agreement, but in no event later than December ___, 2005.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.01 REPRESENTATIONS AND WARRANTIES OF UTEK AND OTI. UTEK and OTI
jointly and severally represent and warrant to ARFR that the facts set forth
below are true and correct:
(a) ORGANIZATION. OTI 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 OTI have been provided to
ARFR 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 shareholder of
OTI 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 OTI 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 OTI consists of
1,000,000 shares of common stock with a par value $.01 per share. At the date of
this Agreement, 1,000 OTI Shares are issued and outstanding as follows:
Shareholder Number of OTI Shares
----------- --------------------
UTEK Corporation 1000
All issued and outstanding OTI 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. OTI
is not authorized to issue any preferred stock. All dividends on OTI 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 OTI to issue any OTI Shares or securities
convertible, exercisable or exchangeable into OTI Shares to anyone for any
reason whatsoever. None of the OTI Shares is subject to any charge, 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 OTI or UTEK is a
party and will not create a default under any such obligation or under any
Agreement to which OTI or UTEK is a party. This Agreement constitutes a legal,
valid and binding obligation of OTI, enforceable in accordance with its terms,
except as the enforcement may be limited by bankruptcy, insolvency, moratorium,
or similar laws affecting creditor's rights generally and by the availability of
injunctive relief, specific performance or other equitable remedies.
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(a) LITIGATION RELATING TO THIS AGREEMENT. There are no suits,
actions or proceedings pending or. to the best of OTI's 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 OTI.
(f) NO CONFLICTING AGREEMENTS. Neither the execution and
delivery of this Agreement nor the fulfillment of or compliance by OTI 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, OTI's or UTEK's articles of incorporation or bylaws, the
Technology, the License Agreement, or any agreement, contract, instrument,
order, judgment or decree to which OTI or UTEK is a party or by which OTI 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 OTI and UTEK or performance of the
obligations of OTI and UTEK hereunder or under any other agreement to which OTI
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 OTI or its assets or
business.
(h) TITLE TO ASSETS. OTI 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
OTI. Except as set forth on Schedule 2.01(h), OTI has 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.
On the Closing Date, OTI will 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 and nature whatsoever.
(1) INTELLECTUAL PROPERTY
(1) Los Alamos National Laboratory, Operated by the
University of California for the National Nuclear Security Administration of the
US Department of Energy. (LANL) invented and owns the Technology and has all
right, power, authority and ownership and entitlement to tile, prosecute and
maintain in effect the Patent application with respect to the Inventions listed
in Exhibit A hereto.
(2) The license Agreement between LANL and OTI
covering the Inventions is legal, valid, binding arid will be enforceable in
accordance with its terms as contained in Exhibit A.
(3) EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT,
ARFR ACKNOWLEDGES AND UNDERSTANDS THAT OTI 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: HOWEVER. OTI AND UTEK
HAVE NO KNOWLEDGE OF PENDING OR THREATENED CLAIMS BY, OR ANY BASIS FOR ANY
CLAIMS BY, ANY THIRD PARTIES ALLEGING SUCH INFRINGEMENT OR OTHER VIOLATION, AND
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(4) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, OTI 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 OTI. OTI has no assets (except as set forth
in Section 2.01 (h)), 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 OTI, 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 OTI'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. OTI 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 OTI except as specifically set forth in the financial statements and the
other attached schedules and exhibits. There is no information known to OTI or
UTEK that would prevent the financial statements of OTI 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 OTI 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 OTI 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 OTI by any taxing authority, have been properly
paid, except to the extent reflected on OTI's financial statements, where OTI
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. OTI has not received any notice of assessment or
proposed assessment in connection with any tax returns, nor is OTI 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. OTI 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. OTI 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
Sating to taxes imposed upon OTI. OTI 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, OTI has not, and
without the written consent of ARFR, 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;
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(3) Suffered any damage, destruction or loss whether
or not in control of OTI;
(4) Made any commitments or agreements for capital
expenditures or otherwise;
(5) Entered into any transaction or made any
commitment not disclosed to ARRR;
(6) Incurred any material obligation or liability for
borrowed money;
(7) Done or omitted to do any act, or 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 OTI; or
(8) Taken any action, which could reasonably be
foreseen to make any of the representations or warranties made by OTI or UTEK
untrue as of the date of this Agreement or as of the Closing Date.
(ii) MATERIAL AGREEMENTS. Exhibit A attached contains a true
and complete list of all contemplated and executed agreements between OTI 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 ARFR. Such
executed Contracts are, and such contemplated Contracts will be, at the Closing
Date, in full force and effect without modifications or amendment and constitute
the legally valid and binding obligations of OTI in accordance with their
respective terms and will continue to be valid and enforceable following the
Acquisition. OTI is not, and will not be at the Closing Date, 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 OTI; and
(2) There are no outstanding operating agreements,
lease agreements or similar agreements by which OTI is bound; and
(3) The complete final draft of the License Agreement
has been provided to ARFR; 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 OTI's property; and
(6) There are no breaches of any agreement to which
OTI is a party.
(o) COMPLIANCE WITH LAWS. OTI 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 OTI or UTEK,
threatened against OTI, the Technology, or License Agreement, affecting its
assets or business (financial or otherwise), and neither OTI 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 OTI or the transactions contemplated hereby. There are no pending
or threatened actions or proceedings before any court, arbitrator or
administrative agency, which would, it adversely determined, individually or in
the aggregate, materially and adversely affect the assets or business of OTI or
the transactions contemplated hereby.
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(q) EMPLOYEES. OTI has no and never had any employees. OTI is
not a party to or bound by any employment agreement or any collective bargaining
agreement with respect to any employees. OTI is not in violation of any law,
rule or regulation relating to employment of employees.
(r) Neither OTI nor UTEK has any knowledge of any existing or
threatened occurrence, action or development that could cause a material adverse
effect on OTI or its business, assets or condition (financial or otherwise) or
prospects.
(s) EMPLOYEE BENEFIT PLANS. 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 OTI 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 OTI 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 OTI are true, correct and complete in all material respects to the best of
UTEKs and OTI's 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 and schedules 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 ARFR. ARFR represents and
warrants to UTEK and OTI that the facts set forth below are true and correct
(a) ORGANIZATION. ARFR 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 its 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 ARFR; no other
corporate action on ARFR's part is necessary in order to execute, deliver,
consummate and perform its obligations hereunder; and it has all requisite
corporate and other authority to execute and deliver this Agreement and
consummate the transactions contemplated by this Agreement.
(c) 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 ARFR is a party and will not
create a default hereunder, and this Agreement constitutes a legal, valid and
binding obligation of ARFR, 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.
(d) 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 ARFR.
(e) NO CONFLICTING AGREEMENTS. Neither the execution and
delivery of this Agreement not the fulfillment of or compliance by ARFR 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, the 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.
(f) CONSENTS. Assuming the correctness of UTEK's and OTI'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 ARFR or its assets or business,
(g) FINANCIAL STATEMENTS. The unaudited financial statements
of ARFR attached as Exhibit C present fairly its financial position and the
results of its operations on the dates and for the periods shown on such
statements; 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. ARFR 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 ARFR except as specifically set forth in the ARFR financial
statements.
(h) FULL DISCLOSURE. All representations or warranties of ARFR
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 it in
this Agreement or in the exhibits to this Agreement or any document delivered by
it or on its 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.
(i) COMPLIANCE WITH LAWS. ARFR 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.
(j) 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 ARFR, threatened
against ARFR materially affecting its assets or business (financial or
otherwise), and ARFR 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 the knowledge of ARFR, 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. ARFR has no knowledge of any existing
or threatened occurrence, action or development that could cause a material
adverse affect on ARFR or its business, assets or condition (financial or
otherwise) or prospects.
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(k) DEVELOPMENT. ARFR agrees and warrants that it has the
expertise necessary to and has had the opportunity to independently evaluate the
inventions of the Licensed Patents and develop same for the market.
2.03 INVESTMENT REPRESENTATIONS OF UTEK. UTEK represents and warrants
to ARFR 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 ARFR Shares pursuant to the Acquisition. It is able to bear the
economic risk of the investment in ARFR Shares, including the risk of a total
loss of the investment in ARFR Shares. The acquisition of ARFR Shares is for its
own account and is for investment and not with a view to any distribution of
such shares. Except a permitted by law, it has 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 ARFR is true
and correct. It has conducted all investigations and due diligence concerning
ARFR 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 officers and
directors of ARFR concerning ARFR Shares and the business and financial
condition of and prospects for ARFR, and the officers and directors of ARFR 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, amended, and the
rules and regulations thereunder.
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 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 with the prior written approval of ARFR or of
OTI or UTEK, as the case may be, 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
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(c) Not modify its corporate structure, except, upon prior
written notice to the other parties, 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 OTI Shares, OTI in the License
Agreement, or the right of OTI 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 shall have been
prosecuted in good faith with reasonable diligence.
4.06. The License Agreement shall have been executed and delivered by
all parties thereto and, to the best knowledge of UTEK and OTI, the License
Agreement shall be valid and in full force and effect without any default under
such agreement
4.07. ARFR shall have received, at or within 5 days before the Closing
Date, each of the following:
(a) the stock certificates representing the OTI Shares, duly
endorsed (or accompanied by duly executed stock powers) by UTEK for
cancellation;
(b) all documentation relating to OTI's business, all in form
and substance satisfactory to ARFR;
(c) such agreements, files and other data and documents
pertaining to OTI's business as ARFR may reasonably request
(d) copies of the general ledgers and books of account of OTI,
and all federal, state and local income, franchise, property and other tax
returns filed by OTI since the inception of OTI;
(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 OTI in Florida;
(f) the original corporate minute books of OTI, including the
articles of incorporation and bylaws of OTI, and all other documents filed in
this Agreement;
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(g) all consents, assignments or related documents of
conveyance to give ARFR 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 ARFR and OTI, and
(i) such other documents, instruments or certificates as ARFR,
or its counsel may reasonably request
4.08. ARFR shall have completed its due diligence investigation of OTI
to ARFR's satisfaction in its sole discretion.
4.09. ARFR shall receive the resignations of each director and officer
of OTI effective the Closing Date.
ARTICLE 5
INDEMNIFICATION AND LIABILITY LIMITATION
5.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(a) The representations and warranties made by UTEK and OTI
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 ARFR 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. ARFR agrees that UTEK shall not be
liable under this agreement to ARFR 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. ARFR 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. ARFR 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 or 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.
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(a) LIMITATION OF LIABILITY. ARFR 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 fees paid to UTEK under this Agreement.
ARTICLE 6
REMEDIES
6.01 SPECIFIC PERFORMANCE. Each party's obligations under this
Agreement are unique. if any party should default in its obligations under this
Agreement, the parties each acknowledge that it would be extremely impracticable
to measure the resulting damages. Accordingly, the non-defaulting party, in
addition to any other available rights or remedies, may ▇▇▇ 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 New York, New York. 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
ARFR, 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.
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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.
ADVANCED REFRACTIVE TECHNOLOGIES, INC. OPTIMETRIX TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- -------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
CEO President
Address: Address:
1062 Calle Negocio ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Date: 12/13/05 Date: 12-13-2005
UTEK CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D.
Chief Executive Officer
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Date: 12-13-05
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EXHIBIT A
Outstanding Agreements
1. License Agreement from Los Alamos National Laboratory (LANL)
2. Consulting Agreement with ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
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EXHIBIT B
OPTIMETRIX TECHNOLOGIES, Inc.
Financial Statements as of
December 1, 2005
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EXHIBIT C
ADVANCED REFRACTIVE TECHNOLOGIES, INC.
FORM 10-QSB
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Including Audited Financial Statements
For the fiscal quarter ended June 30, 2005
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EXHIBIT D
ADVANCED REFRACTIVE TECHNOLOGIES, INC.
1) Series B Preferred Stock Purchase Agreement
2) Certificate of Designation of the Rights and Preferences of Series B
Preferred Stock
3) Board of Director's Meeting
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