Item 9A. Controls and Procedures
Item 9A.
Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Our Chief Executive Officer and Chief Financial Officer have
evaluated the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rule 13a-15(e) of the Securities Exchange Act of 1934) as of the end of the period covered by this report. Based upon that evaluation,
the Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective to ensure that information required to be disclosed by us in reports we file or submit under the Securities Exchange Act of
1934 is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission rules and forms and such that information required to be disclosed in our reports filed or submitted under the
Securities Exchange Act of 1934 is accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosure.
Managements Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in
Rule 13a-15(f) under the Securities Act of 1934. Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of the effectiveness of our
internal control over financial reporting based upon the framework in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on that evaluation, our management concluded that
our internal control over financial reporting is effective as of December 31, 2009.
Attestation Report of the Registered Public
Accounting Firm
Our independent registered public accounting firm, Pender Newkirk & Company LLP, has issued an
attestation report on the effectiveness of the Companys internal control over financial reporting, which is set forth under the heading Report of Independent Registered Public Accounting Firm.
Changes in Internal Control over Financial Reporting
There was no significant change in our internal control over financial reporting (as defined in Rule 13a-15(f) of the Securities Exchange Act of 1934) that occurred during our most recently completed
fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Item 9B.
Other Information
Not applicable.
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PART III
Item 10.
Directors, Executive Officers and Corporate Governance
Information about our directors may be found under the caption NOMINEES in the Companys Proxy Statement for the 2010 Annual Meeting of Stockholders (the Proxy Statement) to
be filed pursuant to Regulation 14A under the Securities Exchange Act of 1934 within 120 days from the fiscal year end. Information about our executive officers may be found under the caption EXECUTIVE OFFICERS in the Proxy
Statement. Information about the audit committee may be found under the captions MEETINGS OF THE BOARD OF DIRECTORS AND COMMITTEES and MEMBERSHIP ON BOARD COMMITTEES in the Proxy Statement. Information about beneficial
ownership may be found under the caption SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE in the Proxy Statement. All of the aforementioned information is incorporated herein by reference.
Code of Business Conduct and Ethics for Directors and Employees
We have adopted a Code of Business Conduct and Ethics for all of our directors and employees, including our Chief Executive Officer and Chief Financial Officer. We have posted a copy of our Code of
Business Conduct and Ethics on our Internet website at www.innovaro.com . Any waivers of the Code of Business Conduct and Ethics must be approved, in advance, by our full Board of Directors. Any amendments to, or waivers from the Code of
Business Conduct and Ethics that apply to our executive officers and directors will be posted on our Internet website located at www.innovaro.com .
Item 11.
Executive Compensation
The information set forth under the captions DIRECTOR COMPENSATION, EXECUTIVE COMPENSATION, COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION and
COMPENSATION COMMITTEE REPORT in the Proxy Statement is incorporated herein by reference.
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information set forth under the captions SECURITY OWNERSHIP in the Proxy Statement is incorporated herein by reference.
Securities Authorized For Issuance under Equity Compensation Plans
The following table summarizes information about the Companys equity incentive plans as of December 31, 2009:
Plan category
Number of securities to be
issued upon exercise
of
outstanding options, warrants
and rights
Weighted-average exercise
price of outstanding options,
warrants and rights
Number of securities
remaining available for
future issuance under equity
compensation plans
(excluding securities
reflected in column(a)
(a)
(b)
(c)
Equity compensation plans approved by security holders
1,739,150
$
7.01
1,194,837
Equity compensation plans not approved by security holders
Total
1,739,150
$
7.01
1,194,837
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Item 13.
Certain Relationships and Related Transactions, and Director Independence
The information set forth under the captions CERTAIN RELATIONSHIPS AND TRANSACTIONS and DIRECTOR INDEPENDENCE in the
Proxy Statement is incorporated herein by reference.
Item 14.
Principal Accountant Fees and Services
The information set forth under the captions FEES BILLED TO THE COMPANY BY REGISTERED INDEPENDENT PUBLIC ACCOUNTING FIRM and POLICY ON PRE-APPROVAL OF SERVICES PROVIDED BY REGISTERED
INDEPENDENT PUBLIC ACCOUNTING FIRM in the Proxy Statement is incorporated herein by reference.
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PART IV
Item 15.
Exhibits and Financial Statement Schedules
(a) Documents filed as part of this report:
1. The following Financial Statements
of UTEK Corporation are contained in Item 8 of this Form 10-K:
Consolidated Balance Sheet as of December 31, 2009 and Consolidated Statement of Assets and Liabilities as of December 31, 2008
Consolidated Statements of Operations and Comprehensive Income (Loss) for the three months ended December 31, 2009, the nine months ended
September 30, 2009, and the years ended December 31, 2008 and 2007
Consolidated Statements of Stockholders Equity (Deficit) and Comprehensive Income (Loss) for the years ended December 31, 2009, 2008 and
2007
Consolidated Statements of Cash Flows for the three months ended December 31, 2009, the nine months ended September 30, 2009, and the years
ended December 31, 2008 and 2007
Consolidated Statements of Changes in Net Assets for the nine months ended September 30, 2009 and the years ended December 31, 2008 and 2007
Consolidated Schedule of Investments for the year ended December 31, 2008
Notes to Consolidated Financial Statements
Selected Per Share Data and Ratios for the nine months ended September 30, 2009 and the years ended December 31, 2008, 2007, 2006 and 2005
Report of Independent Registered Public Accounting Firm
Report of Management on Internal Control over Financial Reporting
Report of Independent Registered Public Accounting Firm on Internal Control over Financial Reporting
2. The following financial statement schedules are filed herewith:
Schedule 12-14 of Investments in and Advances to Affiliates
In addition, there may be additional schedules not provided because (i) such schedules are not required or (ii) the information required has
been presented in the aforementioned financial statements.
3. The following exhibits are filed with this report or are
incorporated herein by reference to a prior filing, in accordance with Rule 12b-32 under the Securities Exchange Act of 1934:
3.1
Certificate of Incorporation, dated July 6, 1999, as filed and recorded with the Secretary of State of the State of Delaware on July 13, 1999. (Incorporated by
reference to Exhibit 3.1 filed with the Companys registration statement on Form N-2 (File No. 333-93913) filed on December 30, 1999.)
3.2
Certificate of Amendment to Certificate of Incorporation, dated October 14, 1999, as filed and recorded with the Secretary of State of the State of Delaware on October 15, 1999.
(Incorporated by reference to Exhibit 3.2 filed with the Companys registration statement on Form N-2 (File No. 333-93913) filed on December 30, 1999.)
3.3
By-Laws of UTEK Corporation. (Incorporated by reference to Exhibit 3.3 filed with the Companys registration statement on Form N-2 (File No. 333-93913) filed on December 30,
1999.)
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3.4
Certificate of Amendment to Certificate of Incorporation dated July 23, 2001, as filed and recorded with the Secretary of State of the State of Delaware on July 24, 2001.
(Incorporated by reference to Exhibit 3.4 to the Companys Form 10-K filed on April 1, 2002.)
3.5
Certificate of Amendment to Certificate of Incorporation dated June 12, 2007, as filed and recorded with the Secretary of State of the State of Delaware on July 12, 2007.
(Incorporated by reference to Exhibit 3.1 to the Companys Form 10-Q filed on August 6, 2007.)
3.6
Certificate of Amendment to By-Laws dated February 26, 2008. (Incorporated by reference to Exhibit 3.6 to the Companys Form 10-K filed on March 10, 2009.)
10.1
UTEK Corporation Amended and Restated Employee Stock Option Plan. (Incorporated by reference to Exhibit A filed with the Companys Proxy Statement filed on April 30, 2009.)
10.2
UTEK Corporation Amended and Restated Non-Qualified Stock Option Plan. (Incorporated by reference to Exhibit C to the Companys Proxy Statement filed on April 29,
2004.)
10.3
Form of Incentive Stock Option Agreement. (Incorporated by reference to Exhibit 10.1 to the Companys Form 10-Q filed on August 9, 2005.)
10.4
Employment Agreement between UTEK Corporation and Doug Schaedler dated November 20, 2010. (Incorporated by reference to Exhibit No. 10.1 to the Companys Form 8-K filed on
November 23, 2010.)
10.5
Employment Agreement between UTEK Corporation and Sam Reiber dated February 5, 2010. (Incorporated by reference to Exhibit 10.2 to the Companys Form 8-K filed on February 8,
2010.)
10.6
Separation Agreement dated April 8, 2009. (Incorporated by reference to Exhibit 10.1 to the Companys Form 8-K filed on April 13, 2009.)
10.7
Note and Warrant Purchase Agreement between UTEK Corporation and Gators Lender, LLC dated October 22, 2009. (Incorporated by reference to Exhibit 10.1 to the Companys Form 8-K
filed on October 28, 2009.)
10.8
$1,750,000 Promissory Note between UTEK Corporation, UTEK Real Estate Holdings, Inc. and Gators Lender, LLC dated October 22, 2009. (Incorporated by Reference to Exhibit 10.2 to the
Companys Form 8-K filed on October 28, 2009.)
10.9
Warrant Agreement between UTEK Corporation and Gators Lender, LLC dated October 22, 2009. (Incorporated by reference to Exhibits 10.3 to the Companys Form 8-K filed on October
28, 2009.)
10.10
Absolute Guaranty of Payment and Performance by Cortez 114, LLC, Ybor City Group, Inc., 22 nd Street of Ybor City, Inc., ABM of Tampa Bay, Inc. and UTEK Europe, Ltd. in favor of Gators Lender, LLC dated October
22, 2009. (Incorporated by reference to Exhibit 10.4 to the Companys Form 8-K filed on October 28, 2009.)
10.11
Mortgage and Security Agreement by Cortez, LLC for the benefit of Gators Lender, LLC dated October 22, 2009. (Incorporated by reference to Exhibit 10.5 to the Companys Form
8-K filed on October 28, 2009.)
10.12
Environmental Indemnity Agreement by UTEK Corporation, UTEK Real Estate Holdings, Inc. and Cortez 114, LLC in favor of Gators Lender, LLC dated October 22, 2009. (Incorporated by
reference to Exhibit 10.6 to the Companys Form 8-K filed on October 28, 2009.)
10.13
Substitution of Collateral Agreement among UTEK Corporation, UTEK Real Estate Holdings, Inc., Cortez 114, LLC and Gators Lender, LLC dated February 26, 2010. (Incorporated by
reference to Exhibit 10.1 to the Companys Form 8-K filed on March 5, 2010.)
10.14
Membership Interest Pledge Agreement among UTEK Real Estate Holdings, Inc., Cortez 114, LLC and Gators Lender, LLC dated February 26, 2010. (Incorporated by reference to Exhibit
10.2 to the Companys Form 8-K filed on March 5, 2010.)
10.15
Amended and Restated Promissory Note made by UTEK Real Estate Holdings, Inc. in favor of Gators Lender, LLC dated February 26, 2010. (Incorporated by reference to Exhibit 10.3 to
the Companys Form 8-K filed on March 5, 2010.)
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10.16
Release of Mortgage by Gators Lender, LLC for the benefit of Cortez 114, LLC dated February 26, 2010. (Incorporated by reference to Exhibit 10.4 to the Companys Form 8-K
filed on March 5, 2010.)
10.17*
$3,000,000 Promissory Note between Ybor City Group, Inc. and The Bank of Tampa dated May 1, 2008.
10.18*
$1,500,000 Mortgage and $1,500,000 Mortgage Note between Ybor City Group, Inc. and Jacob M. Buchman, Trustee dated September 30, 2005.
10.19*
Note and Mortgage Modification Agreement between Ybor City Group, Inc., 22 nd Street of Ybor City, Inc., and ABM of Tampa Bay, Inc. and Jacob M. Buchman, Trustee dated February 16,
2007.
10.20*
Employment Agreement between UTEK Corporation and Peter Skarzynski dated April 17, 2008.
10.21*
UTEK - Strategos Bonus Plan dated April 10, 2008.
11.1
Computation of per share earnings is included in Item 8 of this Form 10-K.
21.1*
List of subsidiaries of UTEK Corporation.
31.1*
Certification of the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, 18 USC. Section 1350.
31.2*
Certification of the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, 18 USC. Section 1350.
32.1*
Certification of the Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 USC. Section 1350.
32.2*
Certification of the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 USC. Section 1350.
*
Filed Herewith.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) Securities Exchange Act of 1934, the Registrant has duly caused this Report to be
signed on its behalf by the undersigned, thereunto duly authorized on March 22, 2010.
UTEK CORPORATION
By:
/s/ D OUGLAS
S CHAEDLER
Douglas Schaedler
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this Report has been signed below by the following persons on behalf of the Registrant in the capacities and on the dates indicated.
Signature
Title (Capacity)
Date
/s/ D OUGLAS
S CHAEDLER
Douglas Schaedler
Chief Executive Officer
(Principal Executive Officer)
March 22, 2010
/s/ C AROLE R.
W RIGHT
Carole R. Wright
Chief Financial Officer (Principal
Financial and Accounting Officer)
March 22, 2010
/s/ K EITH A.
W ITTER
Keith A. Witter
Chairman
March 22, 2010
/s/ H OLLY
C ALLEN - HAMILTON
Holly
Callen-Hamilton
Director
March 22, 2010
/s/ K WABENA
G YIMAH - BREMPONG
Kwabena Gyimah-Brempong
Director
March 22, 2010
/s/ J OHN
M ICEK
John Micek
Director
March 22, 2010
/s/ M ARK
B ERSET
Mark Berset
Director
March 22, 2010
/s/ H ENRY
C HESBROUGH
Henry Chesbrough
Director
March 22, 2010
/s/ C HARLES
P OPE
Charles Pope
Director
March 22, 2010
/s/ M ARK
R ADCLIFFE
Mark Radcliffe
Director
March 22, 2010
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Table of Contents
Schedule 12-14
UTEK CORPORATION
Schedule of Investments in and
Advances to Affiliates
Portfolio Company and Investment
Period Ended
September 31,
2009 Amount
of Interest or
Dividends(1)
December 31,
2008 Value
Gross
Additions(2)
Gross
Reductions(3)
September 30,
2009
Value
Affiliate Investments
Emission & Power Solutions, Inc. (privately held)
Common stock
$
$
287,900
$
$
(287,900
)
Preferred Series B stock
GS Energy Corporation
Common stock
Tesla Vision Corp. (Manakoa Services Corp.)
Common stock
Preferred Series B stock
MATECH Corporation (Material Technologies, Inc.)
Common stock
58,400
463,100
(521,500
)
Preferred Series E stock
463,100
(463,100
)
MachineTalker, Inc.
Common stock
133,700
15,200
(148,900
)
NeoStem, Inc.
Common stock
164,600
(164,600
)
Cytodyn, Inc.
Common stock
171,400
434,721
(171,400
)
434,721
Preferred Series A stock
260,000
65,000
(325,000
)
Cargo Connection Logistics Holdings, Inc.
Common stock
10,700
(10,700
)
Eclips Energy Technologies, Inc. (World Energy Solutions, Inc.)
Preferred Series A stock
1,450,000
(1,450,000
)
Common Stock
322,100
1,450,000
(1,772,100
)
Avalon Oil and Gas, Inc.
Common stock
67,500
(67,500
)
USTelematics, Inc.
Common stock
59,900
(59,900
)
American Soil Technologies, Inc.
Common stock
27,300
(27,300
)
NetFabric Holdings, Inc.
Common stock
600
(600
)
Technology Capital Services, LLC
Common Stock
69,568
69,568
WebSky, Inc.
Common Stock
Total Investments in Affiliate Investments
$
$
3,477,200
$
2,497,589
$
(5,470,500
)
$
504,289
Control Investments
UTEK Real Estate Holdings, Inc., (privately held)
Common Stock
$
$
2,980,000
$
1,780,000
$
$
4,760,000
Klegg Electronics, Inc
Common stock
7,500
19,600
(27,100
)
Total Investment in Control Investment
$
$
2,987,500
$
1,799,600
$
(27,100
)
$
4,760,000
SCH-1
Table of Contents
This schedule should be read in conjunction with the Companys consolidated financial
statements including the schedule of investments.
(1)
All of the listed securities are generally non-income producing. In addition, all of the listed securities are restricted securities within the meaning of
Rule 144 of the Securities Act of 1933. In some cases, preferred stock may also be non-income producing. The principal amount for debt and the number of shares of common stock and preferred stock is shown in the Schedule of Investments as of
September 30, 2009 included in the Companys September 30, 2009 quarterly report on Form 10-Q.
(2)
Gross additions include increases in the cost basis of investments resulting from new portfolio investments and the movement of an existing portfolio company into this
category from a different category. Gross additions also include net increases in unrealized appreciation or net decreases in unrealized depreciation.
(3)
Gross reductions include decreases in the cost basis of investments resulting from the sale of portfolio investments and the movement of an existing portfolio company
out of this category into a different category. Gross reductions also include net increases in unrealized depreciation or net decreases in unrealized appreciation.
SCH-2