EXHIBIT 10.11
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement is made and entered into this 26th day of June
2006, by and between UTEK Corporation ("UTEK"), a Delaware Corporation, 0000
Xxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, and Tradequest International, Inc. ("TRDQ"),
a Nevada Corporation, 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000.
WITNESSETH:
WHEREAS, TRDQ desires to engage UTEK to provide the services as set forth
in this Agreement, and
WHEREAS, UTEK 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. SERVICES
A. To identify technology acquisition opportunities for TRDQ from research
universities and government laboratories, while maintaining TRDQ's
confidentiality.
B. In conjunction with the Services, UTEK agrees to:
I. Make itself available at the offices of TRDQ 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.
II. Make itself available for telephone conferences with the principal
officer(s) of TRDQ during normal business hours.
C. TRDQ will have 30-days from receipt of information to determine if they
wish to go forward with the technology license. UTEK, after 30 days, shall
have the right to present the technology to other clients.
D. TRDQ acknowledges that the sources of technologies represented by UTEK are
3rd party research institutions for which UTEK does not control whether
the technology will be shown to other parties by the licensor.
E. At TRDQ's request and upon mutual agreement between TRDQ and UTEK, UTEK
will negotiate and seek to acquire a license to the requested technology
for subsequent sale to and acquisition by TRDQ.
F. On a case-by-case basis, at TRDQ's request and UTEK's sole discretion,
UTEK will propose an equity-financing plan for TRDQ's consideration, to
finance select technology acquisition opportunities for TRDQ.
G. TRDQ will not seek to acquire any technologies presented to TRDQ by UTEK
from the technology developer directly or indirectly for a period of 24
months following the termination of this Strategic Alliance Agreement.
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H. UTEK shall devote such time and efforts, as it deems commercially
reasonable, under the circumstances to the affairs of TRDQ, as is
commercially reasonable and adequate to render the Services contemplated
by this Agreement.
I. UTEK cannot guarantee results on behalf of TRDQ, 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.
J. TRDQ will cooperate with UTEK and will promptly provide UTEK with all
pertinent materials and requested information in order for UTEK to perform
its Services pursuant to this Agreement
II. INDEPENDENT CONTRACTOR
UTEK shall be, and in all respects be deemed to be, an independent contractor in
the performance of its duties hereunder.
A. TRDQ shall be solely responsible for making all payments to and on behalf
of its employees and UTEK shall in no event be liable for any debts or
other liabilities of TRDQ.
B. UTEK 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 UTEK in its sole, absolute and unfettered discretion,
may elect.
C. Notwithstanding the above, no activity, venture, business or other pursuit
of UTEK, during the term of this Agreement shall conflict with UTEK's
obligations under this Agreement.
III. EXPENSES
It is expressly agreed and understood that each party shall be responsible for
its own normal and reasonable out-of-pocket expenses.
IV. COMPENSATION
A. In consideration for providing these Services, TRDQ shall pay UTEK
$120,000 in the form of unregistered shares of common stock (387,097
shares) upon the execution of this Strategic Alliance Agreement. 1/12th of
the shares (32,258) shall vest each month during the term of this
Agreement. In lieu of payment of shares, TRDQ shall have the option of
paying UTEK $10,000 per month for the Services described in this
Agreement.
If this Agreement is terminated any unvested shares will be returned to
TRDQ.
B. In consideration for the services to be provided herein, TRDQ agrees that
it will remit the agreed upon stock certificate or cash payment within
five (5) days of both parties executing this Agreement. If no
consideration is received in the timeline, UTEK has the unilateral option
to terminate this Agreement.
C. TRDQ agrees that UTEK shall be entitled to additional compensation as
follows:
Technology Transfer: When a technology is shown to TRDQ that TRDQ wants to
acquire, UTEK will seek to acquire the license to a technology through one
of its subsidiaries. UTEK will then seek to provide a term sheet to TRDQ
outlining the consideration to be paid by TRDQ for the acquisition of this
technology. If TRDQ executes the term sheet, agreeing to the terms set
forth, UTEK shall transfer this subsidiary to TRDQ in a stock for stock
exchange under an "Agreement and Plan of Acquisition." The consideration
to be paid by TRDQ to UTEK will be based upon a markup to the value of the
license and other assets in the subsidiary as determined by UTEK and
agreed to by both parties.
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V. 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.
VI. LEGAL COMPLIANCE
TRDQ 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. Disclosure requirements regarding the required disclosure of the nature
and terms of UTEK'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.
B. No press releases or any other forms of communication to third parties,
which mention both UTEK and TRDQ, shall be released without the prior
written consent and approval of both UTEK and TRDQ.
C. UTEK represents to TRDQ that a) it has the experience as may be necessary
to perform all the required, 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.
D. Until termination of the engagement, TRDQ will notify UTEK promptly of the
occurrence of any event, which might materially affect the condition
(financial or otherwise), or prospects of TRDQ.
VII. CONFIDENTIAL DATA
A. UTEK shall not divulge to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the business
and affairs of TRDQ, obtained by UTEK as a result of its engagement
hereunder, unless authorized, in writing by TRDQ. UTEK represents and
warrants that it has established appropriate internal procedures for
protecting the trade secrets and confidential information of, TRDQ
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. TRDQ shall not divulge to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the business
and affairs of UTEK or confidential information revealed by UTEK obtained
as a result of its engagement hereunder, unless authorized, in writing, by
UTEK, and agreed to be bound by any confidentiality agreement entered into
by UTEK with any third party for the purpose of reviewing technology
acquisition opportunities.
C. UTEK shall not be required in the performance of its duties to divulge to
TRDQ, or any officer, director, agent or employee of TRDQ, 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 UTEK
may have or be able to obtain other than as a result of the relationship
established by this Agreement.
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VIII. OTHER MATERIAL TERMS AND CONDITIONS
A. INDEMNITY.
1. UTEK shall indemnify, defend and hold harmless TRDQ from and against
any and all losses incurred by TRDQ 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 UTEK pursuant hereto or in
connection with this Agreement.
2. TRDQ shall indemnify, defend and hold harmless UTEK from and against
any and all losses incurred by UTEK 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 TRDQ 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. SOLICITATION. TRDQ agrees that for a twenty four months (24) following the
execution of this Agreement, TRDQ shall not, without UTEK's prior written
consent, directly or indirectly solicit for employment any present
employee of UTEK, or request, induce or advise any employee of UTEK to
leave the employ of UTEK. In turn, UTEK agrees that it will not directly
or indirectly solicit any present employee of TRDQ.
D. 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.
E. 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.
F. 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 UTEK under this
Agreement may not be assigned or delegated without the prior written
consent of TRDQ and any such purported assignment shall be null and void.
Notwithstanding the foregoing, UTEK may assign this Agreement or any
portion of its Compensation as outlined herein to its subsidiaries in its
sole discretion.
G. 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.
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.
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I. MODIFICATION AND WAIVER. 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,
TRDQ and UTEK 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.
L. INVESTMENT COMPANY STATUS. TRDQ represents that it is not an investment
company, registered or unregistered.
APPROVED AND AGREED:
UTEK Corporation Tradequest International, Inc.
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxxxx Xxxx Xxxxxxx
Chief Operating Officer Chief Executive Officer
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