Exhibit 10.31
UTEK
STRATEGIC ALLIANCE AGREEMENT
________________________________________________________________________________
This Strategic Alliance Agreement is made and entered into this 1st. day of July
2004, by and between Utek Corporation ("UTK"), 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx
Xxxx, Xxxxxxx 00000, a Delaware Corporation, and INyX, Inc. (IYXI), 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, a Nevada Corporation.
WITNESSETH:
WHEREAS, IYXI 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
----------
IYXI 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. IYXI 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.
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.
1
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 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, 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
----------------
IYXI 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:
2
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 IYXI, shall be
released without the prior written consent and approval of
both UTK and IYXI.
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 IYXI or UTK is a party or by which either
entity may be bound or affected.
E. TIMELY APPRISALS. IYXI 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 IYXI 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. IYXI 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 IYXI Common Stock shall be duly
and validly issued, fully paid and non-assessable.
J. UTK represents to IYXI that a) it has the experience as may be
necessary to perform all the required Services 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, IYXI will notify UTK
promptly of the occurrence of any event which might materially
affect the condition (financial or otherwise), or prospects of
this Agreement.
L. This Agreement shall be interpreted in accordance with the
laws of New York State and both parties consent to New York
State as the forum.
3
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 IYXI, obtained by
UTK as a result of its engagement hereunder, unless
authorized, in writing by IYXI. UTK represents and warrants
that it has established appropriate internal procedures for
protecting the trade secrets and confidential information of,
IYXI 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. IYXI 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 IYXI, or any officer, director, agent or employee
of IYXI, 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 IYXI
from and against any and all losses incurred by IYXI
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. IYXI 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 IYXI 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
4
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.
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 IYXI 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, IYXI 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
5
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 INyX, INC.
assively TER Technologies, Inc.
By: /s/ Xxxx Xxxxxxxxx By: /s/ Dr. Xxxx Xxxxxxx
------------------------- -------------------------
Xxxx Xxxxxxxxx Dr. Xxxx Xxxxxxx
Vice President Chairman & CEO
6
Exhibit A
CONFIDENTIAL TERM SHEET
Proposed strategic alliance Between
UTEK Corporation (UTK) & INyX Inc. (IYXI)
________________________________________________________________________________
Statement of Work: To identify technology acquisition opportunities for INyX,
Inc. 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 IYXI.
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 IYXI:
i. Identify synergistic new technologies from
universities and government laboratories to help
provide IYXI with an enhanced new product pipeline.
ii. Review technology acquisition opportunities for IYXI
while maintaining IYXI's confidentiality.
iii. Present technology acquisition opportunities for
IYXI. IYXI 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. IYXI 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 IYXI's request, UTK will prepare, and compile
additional information regarding the technology
acquisition opportunities for IYXI.
7
vi. At IYXI's request and upon mutual agreement between
IYXI and UTK, UTK will negotiate and seek to acquire
a license to the requested technology for subsequent
sale to and acquisition by IYXI.
vii. On a case-by-case basis, at IYXI's request and UTK's
sole discretion, UTK will propose an equity-financing
plan for IYXI's consideration, to finance select
technology acquisition opportunities for IYXI's.
viii. IYXI will not seek to acquire any technologies
presented to IYXI 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.
COMPENSATION
In consideration for providing these Services, IYXI shall pay UTK $30,000 worth
of unregistered shares of common stock (31,579 shares) upon the execution of
this Strategic Alliance Agreement. 1/3rd of the shares (10,526) shall vest each
month during the term of this Agreement.
After the initial 3 month period an additional $90,000 worth of unregistered
shares of common stock (94,737 shares) will be paid to UTK with 1/9th of the
shares (10,526) vesting each month.
If this Agreement is terminated any unvested shares will be returned to IYXI.
Utek will pay IYXI $10,000 per IYXI introduced technology that UTK places in its
directory. UTK has full discretion on what it places in its directory and is
under no obligation to place any IYXI introduced technologies in its directory
throughout the term of this Agreement. If IYXI introduced technology is placed
in the UTK directory and then subsequently transferred to another company, IYXI
will gain additional compensation in the form of 5%-10% of the restricted shares
that UTK receives in the purchasing firm as compensation for the sale of the
IYXI introduced technology.
Approved by:
By: /s/ Xxxx Xxxxxxxxx By: /s/ Dr. Xxxx Xxxxxxx
------------------------------ --------------------------------
UTEK Corporation INyX, Inc.
Xxxx Xxxxxxxxx, Vice President Dr. Xxxx Xxxxxxx, Chairman & CEO
8
