EXHIBIT 10.1
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UTEK
STRATEGIC ALLIANCE AGREEMENT
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This Strategic Alliance Agreement is made and entered into this 25th day of July
2006, by and between UTEK Corporation ("UTEK"), a Delaware Corporation, 000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxx 00000, and MM2 Group, Inc. ("MMGP"), a
New Jersey Corporation, 000 Xxxxxxx 00, Xxxxxxx, Xxx Xxxxxx 00000.
WITNESSETH:
WHEREAS, MMGP 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 MMGP from
research universities and government laboratories, while maintaining
MMGP's confidentiality.
B. In conjunction with the Services, UTEK agrees to:
I. Make itself available at the offices of MMGP 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 MMGP during normal business hours.
C. MMGP 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. MMGP 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 MMGP's request and upon mutual agreement between MMGP and UTEK,
UTEK will negotiate and seek to acquire a license to the requested
technology for subsequent sale to and acquisition by MMGP.
F. On a case-by-case basis, at MMGP's request and UTEK's sole discretion,
UTEK will propose an equity-financing plan for MMGP's consideration,
to finance select technology acquisition opportunities for MMGP.
G. MMGP will not seek to acquire any technologies presented to MMGP 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 MMGP, as is
commercially reasonable and adequate to render the Services
contemplated by this Agreement.
I. UTEK cannot guarantee results on behalf of MMGP, 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. MMGP 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. MMGP 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 MMGP.
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, MMGP shall pay
UTEK $120,000 in the form of unregistered shares of common stock
(1,411,765 shares) upon the execution of this Strategic Alliance
Agreement. 1/12 of the shares (117,647) shall vest each month
during the term of this Agreement. In lieu of payment of shares,
MMGP 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 MMGP.
B. In consideration for the services to be provided herein, MMGP
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. MMGP agrees that UTEK shall be entitled to additional
compensation as follows:
Technology Transfer: When a technology is shown to MMGP that MMGP
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 MMGP outlining the consideration to be
paid by MMGP for the acquisition of this technology. If MMGP
executes the term sheet, agreeing to the terms set forth, UTEK
shall transfer this subsidiary to MMGP in a stock for stock
exchange under an "Agreement and Plan of Acquisition." The
consideration to be paid by MMGP 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
MMGP 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 MMGP, shall be released
without the prior written consent and approval of both UTEK and
MMGP.
C. UTEK represents to MMGP 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, MMGP will notify UTEK
promptly of the occurrence of any event, which might materially
affect the condition (financial or otherwise), or prospects of
MMGP.
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 MMGP, obtained by UTEK
as a result of its engagement hereunder, unless authorized, in
writing by MMGP. UTEK represents and warrants that it has
established appropriate internal procedures for protecting the
trade secrets and confidential information of, MMGP 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. MMGP 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 MMGP, or any officer, director, agent or employee of
MMGP, 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.
VIII. OTHER MATERIAL TERMS AND CONDITIONS
A. INDEMNITY.
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1. UTEK shall indemnify, defend and hold harmless MMGP from and
against any and all losses incurred by MMGP 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. MMGP 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 MMGP 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. MMGP agrees that for a twenty four months (24)
following the execution of this Agreement, MMGP 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 MMGP.
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 MMGP 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.
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
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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, MMGP 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. MMGP represents that it is not an
investment company, registered or unregistered.
APPROVED AND AGREED
UTEK Corporation MM2 Group, Inc.
By: By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxxxxx Xxxx Xxxxxx
Chief Operating Officer Chief Executive Officer
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