EXHIBIT 10.161
TEAMING AGREEMENT
This Teaming Agreement ("Agreement"), is made and entered into the last
date of the signatures below ("Effective Date"), by and between HiEnergy
Technologies, Inc., a Delaware Corporation, with offices at ▇▇▇▇-▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on behalf of itself and its subsidiaries and
respective successors (collectively, "HiEnergy") and ▇▇▇▇▇▇▇▇ Services, Inc., a
Massachusetts Corporation with offices at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), on behalf of itself and respective successors. HiEnergy and
▇▇▇▇▇▇▇▇ are sometimes each referred to in this Agreement as a "Party" and,
collectively, as the "Parties".
WHEREAS, the Parties have previously executed a Non-disclosure Agreement
("NDA");
WHEREAS, the Parties have discussed the possibility of teaming together on
government solicitations and opportunities presently exist and are anticipated
to in the near future to exist for federal, state, and local government agencies
both domestically and internationally (individually an "Opportunity" and
collectively the "Opportunities"). A complete list of Opportunity areas is
provided as Attachment A;
WHEREAS, the Parties believe that if their complimentary capabilities are
together applied to the pursuit and performance of one or more of the
Opportunities, the Parties would present a team that would offer value to
customers; and
WHEREAS, this Agreement is entered into to set forth the understanding
under which the Parties will jointly pursue one or more specific opportunities
NOW THEREFORE, in consideration of these premises, the mutual covenants
and undertakings contained in this Agreement, and other good and valuable
consideration, the Parties agree as follows:
1. ACTIVITIES
(a) The Parties intend to work together to identify opportunities where,
by combining their complementary talents, experience and capabilities,
they may be better able to provide government customers with a superior
solution on government procurements.
(b) Upon identifying an opportunity, the Parties will make a determination
whether to submit a proposal to the Customer for the project, with either
▇▇▇▇▇▇▇▇ or HiEnergy as the prime contractor for the project and the other
as proposed subcontractor responsible for a mutually established scope of
work associated with the project to be determined on a project by project
basis.
(c) If the Parties determine to team together on a specific opportunity:
(1) The Parties will document their decision to jointly
market/pursue or not to jointly market/pursue the Opportunity on
Attachment B, Decision Pertaining to Joint Pursuit of Identified
Opportunity. Should the Parties mutually agree to jointly
market/pursue an Opportunity (as documented in Attachment B) the
Parties shall jointly market and pursue such opportunity without
additional team members (except for entities which may be added to
the Parties' team) and should either Party subsequently withdraw
from the joint marketing /pursuit of that opportunity, the
withdrawing Party shall be prohibited from pursuing such opportunity
separately or with others. Parties' may release the other party from
this exclusivity.
(2) Each Party shall provide the other with all reasonable
assistance in the development and preparation of any proposal(s)
that may be required, including any best and final offer(s). The
ultimate responsibility for the content of any integrated
proposal(s) presented to the Customer will rest with prime
contractor. The prime contractor will include appropriate credit in
its proposal(s) relative to the areas of contribution furnished by
the other Party;
(3) Both Parties will use best efforts to make available their
respective management and technical personnel as may be appropriate
during the conduct of any discussions and negotiations with the
Customer concerning the award of a prime contract for the project;
(4) Each Party shall authorize the other Party to use any
information, data or drawings, solely for the express purpose of
developing and presenting the project proposal and obtaining a prime
contract award for the project;
(5) In the event a prime contract for the project has been awarded
and this Agreement has not been previously terminated pursuant to
the applicable provisions hereof, the subcontractor will enter into
good faith negotiations with the prime contractor to draft a
mutually agreeable subcontract for the work, subject to any
necessary approvals by the customer and the negotiation of mutually
acceptable terms and conditions. Such subcontract shall be based on
the Party's standard terms and conditions for the services offered;
and
(6) Since the joint proposal will require the full cooperation of
the Parties, both Parties agree that they will not participate in
efforts that are competitive to this Agreement, nor compete
independently for pursued Opportunities pursuant to an executed
Attachment B during the term of the Agreement. The term "participate
", as used herein, includes but is not limited to, cooperation in
proposal efforts or the interchange of technical data with
competitors provided however, that the foregoing does not limit or
restrict the rights of the Parties to offer to sell to others their
normal services so long as the same are not related to the proposals
that are subject of this Agreement.
2. ALLOCATION OF COSTS
Each Party will bear the cost of its own efforts in the preparation and
support of its portion of any proposal requirements or other
responsibilities unless otherwise set forth in this Agreement.
3. INDEPENDENT CONTRACTORS
This Agreement is not intended to constitute, create, give effect or
otherwise recognize a joint venture, partnership, principal-agent or
formal business organization of any kind, and the rights and obligations
of the Parties shall be only those expressly set forth herein. At all
times HiEnergy and ▇▇▇▇▇▇▇▇ shall remain independent contractors, each
responsible for its own employees. Neither Party assumes responsibility to
the other for costs, expenses, risks and liabilities arising out of the
efforts of the other Party under this Agreement.
4. NON-EXCLUSIVE ARRANGEMENT
Nothing contained in this Agreement shall be deemed to restrict
either Party from quoting, offering to sell or selling to others any items
or services that it may regularly offer for sale or license. In the event
the Parties do not mutually agree to market/pursue such opportunity
jointly, then either Party shall, subject only to the continuing
obligations of this Agreement to protect the other Parties' company
confidential and proprietary information, be free to market/pursue such
opportunity separately or with others, and to submit a proposal or bid for
the work contemplated by such opportunity.
5. PROPRIETARY INFORMATION
Proprietary information shall be governed by the terms and conditions of
the NDA previously executed by the Parties, which terms and conditions are
specifically incorporated herein by reference.
Each Party warrants that marketing materials will be free of infringement
of the right of the other Party and of third parties. Each Party at its
own expense, shall defend, and shall indemnify, and hold the other Party
harmless from and against any and all claims, suits, proceedings or
liability brought against the indemnified Party based on an allegation
that the indemnifying Party's marketing materials infringes any patent or
proprietary right of any third party.
6. LIABILITY
Each Party will be solely responsible for liability arising out of its own
acts or omissions occurring during the performance of its work under this
Agreement. The performing Party further agrees to indemnify, hold harmless
and defend the other from all costs of any nature whatsoever arising out
of any third party claim or action against the other Party resulting from
the acts or omissions of the performing Party. This provision shall not be
construed to mean that the Parties are precluded from resolving a claim
against each other.
In the event of an alleged breach of this Agreement, or any claim whether
in tort (including negligence and strict liability), contract, equity or
otherwise, arising out of or in connection with this Agreement, or the
acts or omissions of either Party, its agents, representatives or
employees in the performance of this Agreement, the Parties agree that the
sole remedy available shall be the recovery of direct costs and applicable
overhead reasonably expended in performance of this Agreement. In no event
shall either Party be liable to the other Party for any special, indirect,
incidental, punitive or consequential damages, including but not limited
to lost profits or revenue, or lost business opportunities, even if
advised of the possibility of such damages.
7. TERMINATION
This Agreement shall terminate upon the lapse of twelve months (12)
following the Effective Date, unless such term is extended by mutual
agreement. The Parties may terminate this Agreement earlier by mutual
written consent.
8. PUBLICITY
Any news release (including communication of any sort with the press
whether direct or indirect, written or oral), public announcement or
advertisement to be released in connection with this Agreement and the
subject matter hereunder shall have the written concurrence of both
Parties prior to release.
9. EFFECTIVE DATE
This Agreement shall be effective, and the term of this Agreement shall
commence, as of the Effective Date specified in the first paragraph above.
10. PROHIBITION ON HIRING OTHER PARTY'S PERSONNEL
It is expressly agreed and understood that neither Party will solicit
personnel of the other Party for the purpose of inducing them to join
their employ during the course of this Agreement, any resultant prime
contract or subcontract hereunder, and for a period of one (1) year
thereafter. This provision shall not prohibit either Party from
interviewing and hiring the other Party's personnel, for positions
unrelated to the Opportunity, where such personnel have sought the
position solely in response to a routine and ordinary, openly publicized,
advertisement or job posting.
11. NOTICES
All notices required or permitted to be given hereunder shall be in
writing and be deemed effective (a) upon personal delivery, (b) on the
calendar day following the date of confirmed transmission of telex,
telegram, or electronic mail, or (c) upon receipt if sent by registered,
certified or express mail to the Parties addressed as follows:
If to HiEnergy:
HiEnergy Technologies, Inc.
▇▇▇▇-▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to ▇▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇▇ Services, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. Kaczmarsky
▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Either Party may change the address or addressee set forth above at any
time or times, by written notice to the other Party in accordance with
this provision.
12. GOVERNING LAW; DISPUTES
This Agreement shall be governed and construed in accordance with the laws
of the State of California, without regard to its choice of law
provisions. HiEnergy and ▇▇▇▇▇▇▇▇ agree to attempt to settle any dispute
or controversy arising between them under this Agreement, through
consultation and negotiation in good faith and a spirit of mutual
cooperation. If such attempts fail, however, then the dispute will be
mediated by a mutually acceptable mediator to be chosen by ▇▇▇▇▇▇▇▇ and
HiEnergy within thirty (30) days after written notice by either Party
demanding such mediation. Neither Party shall unreasonably withhold or
condition its consent to the selection of a mediator. ▇▇▇▇▇▇▇▇ and
HiEnergy will share the costs of the mediation equally.
Any dispute that cannot be resolved through such negotiation or mediation
within six (6) months of the date of the initial demand by either Party
shall then be finally resolved by the courts. The Parties' use of
alternative dispute resolution procedures will not be construed under the
doctrines of laches, waiver or estoppel to affect adversely the rights of
either Party. Further, nothing in this provision will prevent either Party
from resorting to judicial proceedings at any time, if (a) good faith
efforts to resolve the dispute under these procedures have been
unsuccessful or (b) interim relief from a court is necessary to prevent
serious and irreparable injury to one Party or to others.
13. ENTIRE AGREEMENT
This Agreement, including exhibits hereto and other documents incorporated
herein by reference, contains the entire agreement between HiEnergy and
▇▇▇▇▇▇▇▇ concerning the subject matter hereof, and supersedes any prior or
contemporaneous agreements, understandings or communications concerning
the subject matter hereof. No modification or amendment of this Agreement
will be effective unless it is in writing and signed by the authorized
representatives of each Party.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed,
in duplicate originals, by their duly authorized representatives, on the date(s)
set forth below.
HiEnergy Technologies, Inc. ▇▇▇▇▇▇▇▇ Services, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President & CEO Title: President & CEO
Date: 11/27/2006 Date: 11/27/2006
Attachment A
Potential Opportunity Areas
I. Department of Energy
1. National Nuclear Security Administration (NNSA) Second Line of
Defense Initiatives
2. NNSA Global Threat Reduction Initiatives
3. Professional and Technical Support
4. Personnel Training for CBRNE Agent Detection
II. Department of Defense
1. US Army
2. US Navy
3. US Air Force
4. US Coast Guard
5. Professional and Technical Support
6. Personnel Training for CBRNE Agent Detection
III. Department of Homeland Security
1. Monitoring Programs for Borders and Seaports
2. First Responder Programs
3. Personnel Training for CBRNE Agent Detection
4. Domestic Nuclear Detection Office Initiatives
IV. Environmental Protection Agency
1. Support to Emergency Rapid Response Contractors
V. US Department of State
1. Security of US Embassy's in Foreign Countries
2. Security of other Government Agencies Activities in Foreign
Countries 3. Security of Commercial Operations in Foreign Countries
Attachment B
Decision Pertaining to Joint Pursuit of Identified Opportunity
On ________________________, HiEnergy Technologies, Inc. and ▇▇▇▇▇▇▇▇ Services,
Inc. (the "Parties") discussed whether it is their mutual commercial interest to
jointly pursue the following identified business opportunity:
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The Parties have decided (choose one):
|_| The Parties will jointly pursue the identified business opportunity.
Should either party subsequently withdraw from joint pursuit of that
opportunity, the withdrawing party shall be prohibited from pursuing
such opportunity separately or with others.
|_| The Parties will not pursue the identified business opportunity.
Either party may, subject only to the continuing obligations under
Section 5.1, Company Confidential Information, Protection and
Attachment B to the Parties' Joint Cooperation and Teaming
Agreement, freely pursue such opportunity separately or with others.
(Includes independent submission of a proposal or bid for the work
contemplated by such opportunity).(1)
Unless subsequently modified by the mutual agreement of the Parties,
________________ will serve as the Prime Contractor and
_________________________ will serve as the Subcontractor.
Except for the following contract scope, which shall be performed by the
Subcontractor, all contract scope is reserved for the Prime Contractor (continue
on reverse side if necessary).
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Special Considerations:
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▇▇▇▇▇▇▇▇ Services, Inc. HiEnergy Technologies, Inc.
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Signature Date Signature Date
1 A decision to not pursue an identified business opportunity is effective if
signed by only one Party provided a copy of the signed Attachment B is mailed,
e-mailed or faxed to the other Party.