UTEK
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement is made and entered into this 9th day of
September 2005, by and between UTEK Corporation ("UTK"), 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx Xxxx, Xxxxxxx 00000, a Delaware Corporation, and World Energy
Solutions, ("AVDU") 0000X 00XX Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, a Florida
Corporation.
WITNESSETH:
WHEREAS, AVDU 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
AVDU 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. AVDU 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 AVDU.
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.
III. SERVICES
UTK agrees to provide the following services, hereinafter collectively referred
to as "Services":
See "CONFIDENTIAL TERM SHEET" (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 AVDU, as is reasonable and
adequate to render the Services contemplated by this Agreement.
B. UTK cannot guarantee results on behalf of AVDU, 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 AVDU 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 AVDU 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 to be provided, AVDU agrees that it
will remit the agreed upon stock certificate within five (5) days of both
parties executing this Agreement.
B. AVDU 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
AVDU 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 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 AVDU, shall be released without the prior
written consent and approval of both UTK and AVDU.
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 AVDU or UTK is a party or by which either entity may
be bound or affected.
E. TIMELY APPRISALS. AVDU 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 AVDU 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. AVDU 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 AVDU Common Stock shall be duly and
validly issued, fully paid and non-assessable.
J. UTK represents to AVDU 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.
K. Until termination of the engagement, AVDU will notify UTK promptly of
the occurrence of any event, which might materially affect the condition
(financial or otherwise), or prospects of AVDU.
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 AVDU, obtained by UTK as a result of its engagement hereunder, unless
authorized, in writing by AVDU. UTK represents and warrants that it has
established appropriate internal procedures for protecting the trade secrets and
confidential information of, AVDU 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
AVDU.
B. AVDU shall not divulge to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the business and
affairs of UTK or confidential information revealed by 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
AVDU, or any officer, director, agent or employee of AVDU, 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 AVDU from and against
any and all losses incurred by AVDU 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 Agreement.
2. AVDU 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 AVDU 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. AVDU agrees that for a twenty four months (24) following the
execution of this Agreement, AVDU 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 AVDU.
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 UTK
under this Agreement may not be assigned or delegated without the prior
written consent of AVDU 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.
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. 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.
I. 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.
J. 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.
K. Injunctive RELIEF. Solely by virtue of their respective execution
of this Agreement and in consideration for the mutual covenants of each
other, AVDU 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.
L. 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.
APPROVED AND AGREED:
UTEK CORPORATION WORLD ENERGY SOLUTIONS
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------- -----------------------------
Xxxxxxxx X. Xxxxx, Ph.D. Xxxxxxxx X. Xxxxxxx
Chief Executive Officer Chief Executive Officer
Exhibit A
UTEK
CONFIDENTIAL TERM SHEET
Proposed strategic alliance Between
UTEK Corporation (UTK) & WORLD ENERGY SOLUTIONS (AVDU)
Statement of Work: To identify technology acquisition opportunities for AVDU
from research universities and government laboratories. A first step in this
process is the development of a Technology Acquisition Profile. Once completed,
we will identify and present technologies that meet this profile. While
conducting our search we will maintain the confidentiality of AVDU.
Term: 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.
Services: UTK agrees to provide the following distinct services to AVDU:
i. Identify synergistic new technologies from universities and government
laboratories to help provide AVDU with an enhanced new product pipeline.
ii. Review technology acquisition opportunities for AVDU while maintaining
AVDU's confidentiality.
iii. Present technology acquisition opportunities for AVDU. AVDU will have
30-days to determine if they want to go forward with the technology license. a.
UTK after 30 days shall have the right to present the technology to other
clients.
iv. AVDU 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.
v. At AVDU's request, UTK will prepare, and compile additional information
regarding the technology acquisition opportunities for AVDU.
vi. At AVDU's request and upon mutual agreement between AVDU and UTK, UTK
will negotiate and seek to acquire a license to the requested technology for
subsequent sale to and acquisition by AVDU.
vii. On a case-by-case basis, at AVDU's request and UTK's sole discretion,
UTK will propose an equity-financing plan for AVDU's consideration, to finance
select technology acquisition opportunities for AVDU.
viii. AVDU will not seek to acquire any technologies presented to AVDU by
UTK directly from the technology developer for a period of 24 months following
the termination of this Strategic Alliance agreement.
ix. The compensation quotation is valid for projects authorized and
initiated within 30 days of the date of this term sheet.
a. In arms length negotiation with the technology developer, UTK will
seek to acquire the license to the technology through one of its
subsidiaries. UTEK will then negotiate with AVDU to acquire this subsidiary
in a stock for stock exchange under an "Agreement and Plan of Acquisition."
The consideration to be paid by AVDU to UTK will be based upon a markup to
the value of the license and other assets in the subsidiary as determined
by UTK and agreed to by both parties.
b. Should AVDU decide not to proceed in the acquisition of the
technology/company as described above, then AVDU shall be prohibited from
acquiring the technology/company either directly or indirectly, from the
technology/company developer for a period of 24 months following the
termination of this Strategic Alliance Agreement.
Technology Transfer: When a technology is shown to AVDU that AVDU wants to
acquire, UTK will seek to acquire the license to a technology through one of its
subsidiaries. UTK will then seek to provide a term sheet to AVDU outlining the
consideration to be paid by AVDU for the acquisition of this technology. UTK
shall transfer this subsidiary to AVDU in a stock for stock exchange under an
"Agreement and Plan of Acquisition." The consideration to be paid by AVDU to UTK
will be based upon a markup to the value of the license and other assets in the
subsidiary as determined by UTK and agreed to by both parties.
COMPENSATION
In consideration for providing these Services, AVDU shall pay UTK $120,000 worth
of unregistered (restricted) shares of common stock (31,413 shares) upon the
execution of this Strategic Alliance Agreement. 1/12th of the shares (2,617
shares) shall vest each month during the term of this Agreement. If this
Agreement is terminated, any unvested shares will be returned to AVDU. Both AVDU
and UTK will cover their own out-of-pocket expenses incurred during the
performance of this Strategic Alliance Agreement.
Approved by:
/s/ Xxxxxxxx X. Xxxxx /s/ Xxxxxxxx X. Xxxxxxx
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UTEK Corporation World Energy Solutions
Xxxxxxxx X. Xxxxx, Ph.D. Xxxxxxxx X. Xxxxxxx
Chief Executive Officer Chief Executive Officer
Date:___________________________ Date:___________________________
