EXHIBIT 10.45
[UTEK LOGO]
STRATEGIC ALLIANCE AGREEMENT BETWEEN
UTEK CORPORATION
AND
BITZMART, INC.
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This Agreement is made and entered into this 14th day of August 2001,
by and between UTEK CORPORATION ("UTEK"), 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx Xxxx,
Xxxxxxx 00000 a Delaware Corporation, and BITZMART, INC., 000 X. Xxxxxx Xxx.,
Xxxxx 0000, Xxxxxxx, XX, a Colorado corporation.
WITNESSETH:
WHEREAS, BITZMART, INC. 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. ENGAGEMENT
BITZMART, INC. hereby retains UTEK to provide those services as defined herein
and UTEK hereby agrees to the appointment on the terms and conditions
hereinafter set forth and agrees to use its best efforts in providing said
services.
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. BITZMART, INC. 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
BITZMART, INC..
B. UTEK shall not have or be deemed to have, fiduciary
obligations or duties to BITZMART, INC., 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.
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III SERVICES
UTEK agrees to provide the following services, hereinafter collectively referred
to as "Services" as a consultant to BITZMART, INC.: To provide business
development services, including the identification, evaluation and presentation
of potential technology and business merger and acquisition opportunities.
A. UTEK shall devote such time and efforts, as it deems
commercially reasonable, under the circumstances to the
affairs of the BITZMART, INC., as is reasonable and adequate
to render the Services contemplated by this Agreement.
B. UTEK cannot guarantee results on behalf of BITZMART, INC., 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 BITZMART, INC. in its sole discretion.
C. In conjunction with the Services, UTEK agrees to:
1. Make itself available at the offices of BITZMART,
INC. 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 BITZMART, INC. during
normal business hours.
3. Advise BITZMART, INC. as to the status of potential
technology acquisitions and business merger
opportunities.
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, BITZMART, INC. agrees that
UTEK shall be entitled to compensation as follows:
Upon executing this Agreement, BITZMART, INC. shall issue to
UTEK 100,000 common shares of BITZMART, INC.
VI. LEGAL COMPLIANCE
BITZMART, INC. 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.
B. Disclosure requirements regarding the required disclosure of
the nature and terms of UTEK's relationship with BITZMART,
INC., including, but not limited to press releases,
publications on its web site, letters to investors and
UTEK/BITZMART, INC. Strategic Alliance Agreement..........Page 2
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 UTEK CORPORATION OR BITZMART, INC. SHALL
BE RELEASED WITHOUT THE PRIOR WRITTEN CONSENT AND APPROVAL OF
BOTH UTEK AND BITZMART, INC.
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 BITZMART, INC. or UTEK is a party or by which
either entity may be bound or affected.
E. TIMELY APPRISALS. BITZMART, INC. shall use its commercially
reasonable efforts to keep UTEK up to date and apprised of all
business, market and legal developments related to BITZMART,
INC. and its relationship to UTEK.
F. CORPORATE AUTHORITY. Both BITZMART, INC. and UTEK 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. BITZMART, INC. will cooperate with UTEK and will promptly
provide UTEK with all pertinent materials and requested
information in order for UTEK to perform is Services pursuant
to this Agreement.
I. When delivered, the shares of BITZMART, INC.'s Common Stock
shall be duly and validly issued, fully paid and
non-assessable.
J. UTEK represents and warrants to BITZMART, INC. that a) it has
the Experience and ability as may be necessary to perform all
the required Services with a high standard of quality, 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 BITZMART, INC. which such persons may have
access to over the term of this Agreement.
K. Until termination of the engagement, BITZMART, INC. will
notify UTEK promptly of the occurrence of any event, which
might materially effect the condition (financial or
otherwise), or prospects of BITZMART, INC.
VII. TERM AND TERMINATION
The term of the Agreement shall commence upon the execution of this
Agreement and terminate on September 30, 2002.
VIII. CONFIDENTIAL DATA
A. UTEK shall not divulge to others, any trade secret or
confidential information,
UTEK/BITZMART, INC. Strategic Alliance Agreement..........Page 3
knowledge, or data concerning or pertaining to the business
and affairs of BITZMART, INC., obtained by UTEK as a result of
its engagement hereunder, unless authorized, in writing by
BITZMART, INC. UTEK represents and warrants that it has
established appropriate internal procedures for protecting the
trade secrets and confidential information of BITZMART, INC.,
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 competitor of BITZMART, INC.
B. BITZMART, INC. shall not divulge to others, any trade secret
or confidential information, knowledge, or data concerning or
pertaining to the business and affairs of UTEK obtained as a
result of its engagement hereunder, unless authorized, in
writing, by UTEK.
C. UTEK shall not be required in the performance of its duties to
divulge to BITZMART, INC., or any officer, director, agent or
employee of BITZMART, INC., 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 BITZMART, INC.) which UTEK 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. UTEK shall indemnify, defend and hold harmless
BITZMART, INC. from and against any and all losses
incurred by BITZMART, INC. 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. BITZMART, INC. 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 BITZMART, INC. pursuant
hereto or in connection with this Agreement.
D. 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.
E. 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.
F. 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
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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.
G. LAWS OF THE STATE OF FLORIDA. This Agreement shall be deemed
to be made in, governed by and interpreted under and construed
in all respects in accordance with the laws of the State of
Florida, irrespective of the country or place of domicile or
residence of either party. In the event of controversy arising
out of the interpretation, construction, performance or breach
of this Agreement, the parties hereby agree and consent to the
jurisdiction and venue of Hillsborough County, Florida, or the
United States District Court for the Middle District of
Florida, and further agree and consent that personal service
or process in any such action or proceeding outside of the
State of Florida and Hillsborough County shall be tantamount
to service in person within Hillsborough County, Florida and
shall confer personal jurisdiction and venue upon either of
said Courts.
H. 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 BITZMART, INC. 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.
I. 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.
J. 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.
K. 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.
L. 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.
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M. INJUNCTIVE RELIEF. Solely by virtue of their respective
execution of this Agreement and in consideration for the
mutual covenants of each other, BITZMART, INC. 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 Hillsborough County, State of Florida, or the
United States District Court for the Middle District of
Florida 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. For the purposes of this
Agreement, each party hereby agrees and consents that upon a
material breach of this Agreement as aforesaid, in addition to
any other legal and/or equitable remedies, the non-breaching
party may present a conformed copy of this Agreement to the
aforesaid courts and shall thereby be able to obtain a
permanent injunction enforcing this Agreement or barring,
enjoining or otherwise prohibiting the other party from
circumventing the express written intent of the parties as
enumerated in this Agreement.
N. 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 therefrom. 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.
APPROVED AND AGREED:
UTEK CORPORATION BITZMART, INC.
By: By:
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Xxxxxxxx X. Xxxxx, Ph.D., CEO Xxxxxx Xxxxxxxxx, President & CEO
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Date Date
If you are in agreement with the foregoing, please execute and return one copy
of this agent to the undersigned. Thank you.
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