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EXHIBIT 10.14
TEAMING AGREEMENT
THIS AGREEMENT made and entered into this 2nd day of March 2001, by and between
the National Scientific Corporation, a Texas Corporation ("Contractor"), located
at 0000 Xxxx Xxxxxxxxx Xxxx Xxx. X-000, Xxxxxxx, Xxxxxxx, 00000, and Ramtron
International Corporation, a Delaware Corporation (hereinafter referred to as
the ("Subcontractor") located at 0000 Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, XX 00000.
WHEREAS, Contractor intends to submit a proposal as prime contractor to the
Malaysian Government and its associated commercial semiconductor manufacturing
partners (hereinafter referred to as "Malaysian Consortium") concerning
development of manufacturing capacity in Malaysia for the production of
Subcontractor's FRAM and related technologies (hereinafter referred to as "the
Program"); and
WHEREAS, Contractor and the Subcontractor desire to combine their
respective capabilities in a joint effort to submit said proposal for the
Program and to complete the work required by any work statement in any contract
(hereinafter referred to as "Contract") resulting from such proposal; and
WHEREAS, Contractor and the Subcontractor desire to define their mutual rights
and obligations during the preparation and submittal of said proposal and under
any subsequent contract resulting there from, consistent with federal/state and
international laws governing restraint of trade or competition as applicable.
NOW THEREFORE, to effect the foregoing, Contractor and the Subcontractor in
consideration of the mutual covenants hereinafter contained, agree as follows:
1. The proposal will be based on Contractor acting as the prime contractor to
the Malaysian Consortium for any resultant Contract, and Subcontractor acting as
subcontractor to Contractor, furnishing support under the Program. Any resulting
subcontract to the Subcontractor, which shall be acceptable to Subcontractor in
its sole discretion, will involve, but may not be limited to, work set forth in
Exhibit "A" in Statement of Work attached hereto.
2. Contractor will prepare and
submit its proposal to the Malaysian Consortium with assistance from the
Subcontractor in the following areas: input on selected Statement of Work tasks,
related experience information, tailored resumes on key personnel, and
appropriate costs information, all to be used in preparation of the Contractor
proposal. Details and formats for these inputs will be provided separately.
3. Contractor will recognize and identify the Subcontractor in its proposal and
use its diligent efforts to secure Malaysian Consortium approval of the use of
the Subcontractor and its technologies in the Program. Contractor will keep the
Subcontractor fully advised of any proposed changes that affect its area of
responsibility.
4. In the event Contractor is awarded the Contract, then to
accomplish the work set forth in Exhibit "A" of this Agreement, it is agreed
that Contractor and the Subcontractor will, in good faith, proceed in a timely
manner to negotiate a mutually acceptable
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subcontract(s) for the selected portions of the work identified in Exhibit "A"
and described in a responsible technical/cost proposal prepared by the
Subcontractor, unless otherwise directed by the Malaysian Consortium. The
subcontract shall embody, among other provisions, those terms and conditions of
the prime contract that must be passed on to the Subcontractor in order to
comply with such prime contract. The subcontract will be negotiated at a fair
and reasonable price(s) to be established after cost or price analysis in
accordance with the requirements of the applicable Malaysian Consortium
procurement regulation. In the event that negotiations with the Malaysian
Consortium result in a substantial reduction of the Subcontractor's area of
responsibility from that proposed by the Prime Contractor, the Subcontractor
shall have prior opportunity to consult with the Prime Contractor and review the
effect of and concur with such reduction or revision before settlement with the
Malaysian Consortium. Not withstanding anything herein to the contrary, any such
subcontract shall be on terms and conditions acceptable to Subcontractor in its
sole discretion.
Each party shall exert its diligent efforts toward the successful performance of
the Contract, assuming award of the prime contract and the subcontract to the
parties hereto, and shall provide appropriate and high quality managerial,
marketing, advisory, technical, and other personnel to perform and support such
contracts.
5. LIMITATIONS ON USE OF DATA AND INFORMATION
a. The parties anticipate that under this Agreement it may be necessary
for either party to transfer to the other information of a proprietary
nature. Proprietary information shall be clearly identified by the
disclosing party at the time of disclosure by (i) appropriate stamp or
markings on the document exchanged; or (ii) written notice, with
attached listings of all material, copies of all documents, and
complete summaries of all oral disclosures (under prior assertion of
the proprietary nature of the same) to which each notice relates,
delivered within two (2) weeks of the disclosure to the other party.
b. Each of the parties agrees that it will use the same reasonable
efforts to protect such information as are used to protect its own
proprietary information. Disclosures of such information shall be
restricted to those individuals who are directly participating in the
proposal, contract and subcontract efforts identified in Articles 1, 2,
3, and 4 hereof.
c. Neither party shall make any reproduction, disclosure, or use of
such proprietary information except as follows:
(1) Such information furnished by the Subcontractor may be
used, reproduced and/or disclosed by Contractor in performing
its obligations under this Agreement.
(2) Such information furnished by Contractor may be used,
reproduced and/or disclosed by the Subcontractor in performing
its obligations under this Agreement.
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(3) Such information may be used, reproduced and/or disclosed
for other purposes only in accordance with prior written
authorization received from the disclosing party.
d. The limitations on reproduction, disclosure, or use of proprietary
information shall not apply to, and neither party shall be liable for
reproduction, disclosure, or use of proprietary information with
respect to which any of the following conditions exist:
(1) If, prior to the receipt thereof under this Agreement, it
has been developed or learned independently by the party
receiving it, or has been lawfully received from other
sources, including the Malaysian Consortium, provided such
other source did not receive it due to a breach of this
Agreement or any other agreement.
(2) If, subsequent to the receipt thereof under this
Agreement, (i) it is published by the party furnishing it or
is disclosed, by the party furnishing it to others, including
the Malaysian Consortium, without restriction; or (ii) it has
been lawfully obtained, by the party receiving it, from other
sources including the Malaysian Consortium, provided such
other source did not receive it due to a breach of this or any
other agreement; or (iii) such information otherwise comes
within the public knowledge or becomes generally known to the
public;
(3) If any part of the proprietary information has been or
hereafter shall be disclosed in a United States patent issued
to the party furnishing the proprietary information hereunder,
the limitations on such proprietary information as is
disclosed in the patent shall be only that afforded by the
United States Patent Laws after the issuance of said patent.
(4) If any part of the proprietary information is required by
law to be disclosed. In the event that information is required
to be disclosed pursuant to subsection 4., the party required
to make disclosure shall notify the other to allow that party
to assert whatever exclusions or exemptions may be available
to it under such law or regulation.
e. Neither the execution and delivery of this Agreement, nor the
furnishing of any proprietary information by either party shall be
construed as granting to the other party either expressly, by
implication, estoppels, or otherwise, any license under any invention
or patent now or hereafter owned or controlled by the party furnishing
the same.
f. Notwithstanding the expiration of the other portions of this
Agreement, the obligations and provisions of this Article 5 shall
cfuintinue for a period of three (3) years from the date of this
Agreement, however, any resulting contract shall take precedence.
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6. RIGHTS IN INVENTIONS
Inventions conceived or first reduced to practice during the course of work
under the Contract contemplated by this Agreement shall remain the property of
the inventing party. In the event of joint inventions, the parties shall
establish their respective rights by negotiations between them.
7. No publicity or advertising regarding any proposal or contract under the
Program or relating to this Agreement shall be released by the either party
without the prior written approval of the other, except for press releases that
in general terms overview the nature and existence of this Teaming Agreement.
The drafting party will provide such general releases to the other party in
advance of their release.
8. All communication relating to this Agreement shall be directed only to the
specific person designated to represent Contractor and the Subcontractor on the
Program. Each of the parties to this Agreement shall appoint one (1) technical
and one (1) administrative representative. These appointments shall be kept
current during the period of this Agreement. Communications that are not
properly directed to the persons designated to represent Contractor and the
Subcontractor shall not be binding upon Contractor or the Subcontractor.
All technical notices shall be addressed to:
As to Contractor: Xxxxxx Xxxxx, Director of Technical Sales NSC
0000 Xxxx Xxxxxxxxx Xx
Xxx X-000
Xxxxxxx, XX. 00000
Phone: 000-000-0000
Fax: 000-000-0000
As to Subcontractor: Xxx Xxxxxxxxx
VP FRAM Development
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
All contractual notices shall be addressed to:
As to Contractor: Xxxxxxx Xxxxxxxx, C.O.O, NSC
0000 Xxxx Xxxxxxxxx Xx
Xxx X-000
Xxxxxxx, XX. 00000
Phone: 000-000-0000
Fax: 000-000-0000
As to Subcontractor: Xxxx Xxxxx
President & COO
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
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Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxx Xxxxx 0000
Xxxxxx, XX. 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
xxxxxxxx@xxxxxxxxx.xxx
9. Except for the conditions expressed in Article 5 hereof, this Agreement,
which is effective upon the date of its execution by the last of the signatory
parties hereto, shall automatically expire, be deemed terminated, with each
party relieved of any obligations hereunder except as set forth in Article 5,
effective upon the date of the happening or occurrence of any one of the
following events or conditions, whichever shall first occur:
a. Official Malaysian Consortium announcement or notice of the
cancellation of the Program.
b. The receipt by Contractor of written notice from the Malaysian
Consortium that it will not award the Contract for the Program to
Contractor.
c. Award of a subcontract to the Subcontractor by Contractor for its
designated portion of the Program.
d. Mutual agreement of the parties to terminate the Agreement.
e. The expiration of a one (1) year period commencing on the effective
date of this Agreement unless such period is extended by mutual
agreement of the parties.
Or,
f. Written notice from one party to the other of the intent to
terminate this Agreement without cause, given that such written notice
is provided at least 30 days before the termination date in the letter
of notice.
10. This Agreement pertains only to the proposal relating to the Program and to
no other joint or separate effort undertaken by Contractor or the Subcontractor.
The parties hereto shall be deemed to be independent contractors and the
employees of one party shall not be deemed to be employees of the other. This
Agreement does not create a partnership between the parties.
11. This Agreement may not be assigned or otherwise transferred by either party,
in whole or in part, without the express prior written consent of the other
party.
12. This Agreement shall not preclude either party from bidding or contracting
independently from the other on any Malaysian Consortium or industry program
which may develop or arise in the general area of business related to this
Agreement or in any other area.
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13. This Agreement contains the entire agreement of the parties and cancels and
supersedes any previous understanding or agreement related to the Program,
whether written or oral. All changes or modifications to this Agreement must
first be agreed to in writing between the parties.
14. Each party to this Agreement will bear its respective costs, risks, and
liabilities incurred by it as a result of its obligations and efforts under this
Agreement. Therefore, neither Contractor nor the Subcontractor shall have any
right to any reimbursement, payment, or compensation of any kind from each other
during the period prior to the award and execution of any resulting subcontract
between Contractor and the Subcontractor for the Program and work described in
this Agreement.
15. Either party hereto is authorized to disclose the terms and conditions of
this Agreement to appropriate Malaysian Consortium officials upon their request.
16. In the event a Contract is not awarded to Contractor as a result of a
proposal each party will, at the request of the other party, return all
materials such as, but not limited to, those that are written, printed, drawn,
or reproduced, to the originating party.
17. Severability. All agreements and covenants contained herein are severable,
and in the event any of them shall be held to be invalid by any court of
competent jurisdiction, this Agreement shall be interpreted as if such invalid
agreements and covenants were not contained herein.
18. Choice of Law. It is the intention of the parties that this Agreement and
its performance and all suits and special proceedings hereunder be construed in
accordance with and under and pursuant to the laws of the state of Arizona and
that in any action, special proceeding or other proceedings that may be brought,
arising out of, in connection with, or by reason of this Agreement, the laws of
the state of Arizona shall be applicable and shall govern to the exclusion of
the law of any other forum, without regard to the jurisdiction in which any
action or special proceeding may be instituted.
19. Waiver. The waiver by either party of any breach or violation of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach or violation hereof.
20. Entire Agreement. This Agreement contains the complete agreement concerning
the arrangement between the parties. The parties acknowledge that any statements
or representations that may have been made previously by either of them to the
other are of no effect and that neither of them has relied on such
considerations in concluding this Agreement.
21. Attorney Fees. Should either party bring an action or claim as a result of a
breach of this agreement, then the prevailing party in such action shall be
entitled to the award of reasonable attorney's fees and costs.
Dated this ______ day of _________________________, 2001.
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CONTACTOR: SUB-CONTRACTOR:
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxx
----------------------- --------------
Printed Name: Xxxxxxx X. Xxxxxxxx Printed Name: Xxxx Xxxxx
------------------- -----------
Title: C.O.O. Title: President
------ ---------
Date: March 2, 2001 Date: March 2, 2001
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EXHIBIT A
Ramtron is expected to provide the following under this teaming agreement:
- Provide licenses to manufacture select models of their FRAM products
to NSC and the Malaysian Consortium, final terms to be negotiated at
a later date which shall be acceptable to Ramtron in its sole
discretion
- Full design, device, and process engineering support and guidance to
NSC and the Malaysian Consortium to implement and sustain
manufacturing process overseas, including provision of key personnel
as required
- Sales and marketing and other demand generation activities to create
sufficient demand to support the forecast plan for FRAM products
National Scientific Corporation is expected to provide the following under this
teaming agreement:
- Negotiate a Contract with Malaysian Consortium to manufacture desired
licensed FRAM products in desires quantities and desired timeframes
for Ramtron and for other clients, under terms to be defined at a
later date
- Achieve a capital investment by the Malaysian Consortium in the FRAM
manufacturing process sufficient to address up front incremental Fab
equipment purchases to manufacture FRAM products, including
significant equipment and labor costs
- Purchase FRAM from the Malaysian Consortium as it is produced and
sell it to Ramtron at terms to be negotiated at a future time
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