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 is 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.
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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 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:
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(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.
(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.
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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
continue for a period of three (3) years from the date of this
Agreement, however, any resulting contract shall take precedence.
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
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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 and COO
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
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.
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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.
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.
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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 2nd day of March, 2001.
CONTACTOR: SUB-CONTRACTOR:
/S/ Xxxxxxx X. Xxxxxxxx /S/ Xxxx X. Xxxxx
--------------------- ------------------
By: By: Xxxxxxx X. Xxxxxxxx By: Xxxx X. Xxxxx
Printed Name: Xxxxxxx X. Xxxxxxxx Printed Name: Xxxx X. Xxxxx
Title: COO 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 activates 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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