U T E K (R)
STRATEGIC ALLIANCE Agreement
______________________________________________________________________________
This Strategic Alliance Agreement is made and entered into this______ day of
April 25, 2005, by and between UTEK CORPORATION ("UTK"), 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx Xxxx, Xxxxxxx 00000, a Delaware Corporation, and Rival
Technologies Inc 000, 000 Xxxx Xxxxx, Xxxx Xxxxxxxxx, XX X0X 1, a Canadian
Corporation.
WITNESSETH:
WHEREAS, RVTIF desires to engage UTK to provide the services as set forth
in this Agreement, and
WHEREAS, UTK is agreeable to provide these services.
NOW THEREFORE, in consideration of the mutual promise made in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
I. ENGAGEMENT
RVTIF hereby retains UTK to provide those services as defined herein and UTK
hereby agrees to the appointment on the terms and conditions hereinafter set
forth and agrees to use commercially reasonable efforts in providing said
services.
II. INDEPENDENT CONTRACTOR
UTK shall be, and in all respects be deemed to be, an independent contractor
in the performance of its duties hereunder.
A. RVTIF shall be solely responsible for making all payments to and on
behalf of its employees and UTK shall in no event be liable for any debts or
other liabilities of RVTIF.
B. UTK shall not have or be deemed to have, fiduciary obligations or
duties to, and shall be able to pursue, conduct and carry on for its own
account (or for the account of others) such activities, ventures, businesses
and other pursuits as UTK in its sole, absolute and unfettered discretion, may
elect.
C. Notwithstanding the above, no activity, venture, business or other
pursuit of UTK, during the term of this Agreement shall conflict with UTK's
obligations under this Agreement.
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III. SERVICES
UTK agrees to provide the following services, hereinafter collectively
referred to as "Services":
SEE STRATEGIC ALLIANCE SUMMARY (EXHIBIT A) ATTACHED AND MADE A PART HEREOF.
A. UTK shall devote such time and efforts, as it deems commercially
reasonable, under the circumstances to the affairs of, as is reasonable and
adequate to render the Services contemplated by this Agreement.
B. UTK cannot guarantee results on behalf of, but shall pursue all
reasonable avenues available through its network of contacts. The acceptance
and consumption of any transaction is subject to acceptance of the terms and
conditions by in its sole discretion.
C. In conjunction with the Services, UTK agrees to:
1. Make itself available at the offices of RVTIF or at another
mutually agreed upon place, during normal business hours, for reasonable
periods of time, subject to reasonable advance notice and mutually convenient
scheduling.
2. Make itself available for telephone conferences with the
principal officer(s) of during normal business hours.
IV. EXPENSES
It is expressly agreed and understood that each party shall be responsible for
its own normal and reasonable out-of-pocket expenses.
V. COMPENSATION
A. In consideration for the services, RVTIF agrees that UTK shall be
entitled to compensation as follows:
SEE STRATEGIC ALLIANCE CONFIDENTIAL TERM SHEET (EXHIBIT A) ATTACHED AND MADE A
PART HEREOF.
VI. TERM AND TERMINATION
The term of the Agreement will be for 12 months unless terminated sooner.
This Agreement may be renewed upon mutual, written agreement of the parties.
Either party may terminate this agreement at any time with 30 days written
notice.
VII. LEGAL COMPLIANCE
RVTIF agrees that it will put in place, if it has not already done so,
policies and procedures relating to and addressing, with the commercially
reasonable intent to ensure compliance with, applicable securities laws, rules
and regulations, including, but not limited to:
A. The use, release or other publication of forward-looking statements.
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B. Disclosure requirements regarding the required disclosure of the
nature and terms of UTK's relationship with, including, but not limited to
press releases, publications on its web site, letters to investors and
telephone or other personal communication with potential or current investors.
C. No press releases or any other forms of communication to third
parties, which mention both UTK CORPORATION and RVTIF, shall be released
without the prior written consent and approval of both UTK and RVTIF, unless
required by law.
D. EXECUTION. The execution, delivery and performance of this
Agreement, in the time and manner herein specified will not conflict with,
result in a breach of, or constitute a default under any existing agreement,
indenture, or other instrument to which either RVTIF or UTK is a party or by
which either entity may be bound or affected.
E. TIMELY APPRISALS. RVTIF shall use its commercially reasonable
efforts to keep UTK up to date and apprised of all business, market and legal
developments related to and its relationship to UTK.
F. CORPORATE AUTHORITY. Both RVTIF and UTK have full legal authority to
enter into this Agreement and perform the same in the time and manner
contemplated.
G. The individuals whose signatures appear below are authorized to sign
this Agreement on behalf of their respective corporations.
H. RVTIF will cooperate with UTK and will promptly provide UTK with all
pertinent materials and requested information in order for UTK to perform its
Services pursuant to this Agreement.
I. When delivered, the shares of RVTIF Common Stock shall be duly and
validly issued, fully paid and non-assessable.
J. UTK represents to RVTIF that a) it has the experience as may be
necessary to perform all the required services hereunder, b) all Services will
be performed in a professional manner, and c) all individuals it provides to
perform the Services will be appropriately qualified and subject to
appropriate agreements concerning the protection of trade secrets and
confidential information of which such persons may have access to over the
term of this Agreement.
K. Until termination of the engagement, RVTIF will notify UTK promptly
of the occurrence of any event, which might materially affect the condition
(financial or otherwise), or prospects of UTK.
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VIII. CONFIDENTIAL DATA
A. UTK shall not divulge to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the business and
affairs of RVTIF, obtained by UTK as a result of its engagement hereunder,
unless authorized, in writing by RVTIF. UTK represents and warrants that it
has established appropriate internal procedures for protecting the trade
secrets and confidential information of, RVTIF including, without limitation,
restrictions on disclosure of such information to employees and other persons
who may be engaged in such information to employees and other persons who may
be engaged in rendering services to any person, firm or entity which may be a
competitor of.
B. RVTIF shall not divulge to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the business and
affairs of UTK obtained as a result of its engagement hereunder, unless
authorized, in writing, by UTK.
C. UTK shall not be required in the performance of its duties to divulge
to RVTIF, or any officer, director, agent or employee of RVTIF, any secret or
confidential information, knowledge, or data concerning any other person, firm
or entity (including, but not limited to, any such person, firm or entity
which may be a competitor or potential competitor of) which UTK may have or be
able to obtain other than as a result of the relationship established by this
Agreement.
IX. OTHER MATERIAL TERMS AND CONDITIONS
A. INDEMNITY.
1. UTK shall indemnify, defend and hold harmless RVTIF from and
against any and all losses incurred by RVTIF which arise out of or result from
misrepresentation, breach of warranty or breach or non- fulfillment of any
covenant contained herein or Schedules annexed hereto or in any other
documents or instruments furnished by UTK pursuant hereto or in connection
with this Agree
2. RVTIF shall indemnify, defend and hold harmless UTK from and
against any and all losses incurred by UTK which arise out of or result from
misrepresentation, breach of warranty or breach or non-fulfillment of any
covenant contained herein or Schedules annexed hereto or in any other
documents or instruments furnished by RVTIF pursuant hereto or in connection
with this Agreement.
B. PROVISIONS. Neither termination nor completion of the assignment
shall affect the provisions of this Agreement, and the Indemnification
Provisions that are incorporated herein, which shall remain operative and in
full force and effect.
C. ADDITIONAL INSTRUMENTS. Each of the parties shall from time to
time, at the request of others, execute, acknowledge and deliver to the other
party any and all further instruments that may be reasonably required to give
full effect and force to the provisions of this Agreement.
D. ENTIRE AGREEMENT. Each of the parties hereby covenants that this
Agreement, is intended to and does contain and embody herein all of the
understandings and agreements, both written or oral, of the parties hereby
with respect to the subject matter of this Agreement, and that there exists no
oral agreement or understanding expressed or implied liability, whereby the
absolute, final and unconditional character and nature of this Agreement shall
be in any way invalidated, empowered or affected. There are no
representations, warranties or covenants other than those set forth herein.
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E. ASSIGNMENTS. The benefits of the Agreement shall inure to the
respective successors and assignees of the parties and assigns and
representatives, and the obligations and liabilities assumed in this Agreement
by the parties hereto shall be binding upon their respective successors and
assigns; provided that the rights and obligations of UTK under this Agreement
may not be assigned or delegated without the prior written consent of RVTIF
and any such purported assignment shall be null and void. Notwithstanding the
foregoing, UTK may assign this Agreement or any portion of its Compensation as
outlined herein to its subsidiaries in its sole discretion.
F. ORIGINALS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original and
constitute one and the same agreement.
G. ADDRESSES OF PARTIES. Each party shall at all times keep the other
informed of its principal place of business if different from that stated
herein, and shall promptly notify the other of any change, giving the address
of the new place of business or residence.
H. NOTICES. All notices that are required to be or may be sent pursuant
to the provision of this Agreement shall be sent by certified mail, return
receipt requested, or by overnight package delivery service to each of the
parties at the addresses appearing herein, and shall count from the date of
mailing or the validated air xxxx.
I. MODIFICATION AND WAVIER. A modification or waiver of any of the
provisions of this Agreement shall be effective only if made in writing and
executed with the same formality as this Agreement. The failure of any party
to insist upon strict performance of any of the provisions of this Agreement
shall not be construed as a waiver of any subsequent default of the same or
similar nature or of any other nature.
J. Injunctive RELIEF. Solely by virtue of their respective execution
of this Agreement and in consideration for the mutual covenants of each other,
RVTIF and UTK hereby agree, consent and acknowledge that, in the event of a
breach of any material term of this Agreement, the non-breaching party will be
without adequate remedy-at-law and shall therefore, be entitled to immediately
redress any material breach of this Agreement by temporary or permanent
injunctive or mandatory relief obtained in an action or proceeding instituted
in any court of competent jurisdiction without the necessity of proving
damages and without prejudice to any other remedies which the non-breaching
party may have at law or in equity.
K. ATTORNEY'S FEES. If any arbitration, litigation, action, suit, or
other proceeding is instituted to remedy, prevent or obtain relief from a
breach of this Agreement, in relation to a breach of this Agreement or
pertaining to a declaration of rights under this Agreement, the prevailing
party will recover all such party's attorneys' fees incurred in each and every
such action, suit or other proceeding, including any and all appeals or
petitions there from. As used in this Agreement, attorneys' fees will be
deemed to be the full and actual cost of any legal services actually performed
in connection with the matters involved, including those related to any appeal
to the enforcement of any judgment calculated on the basis of the usual fee
charged by attorneys performing such services.
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APPROVED AND AGREED:
UTEK CORPORATION NUTRACEA
By: /S/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxx Xxxxx Xxxxxx
Chief Technology Transfer Officer CEO
