EXHIBIT 10.44
TEAMING AGREEMENT
THIS Agreement is made and entered into on February 20, 2003, by and
between GENERAL ATOMICS, hereinafter referred to as the "Prime Contractor,"
and, SatCon Applied Technology, Inc., hereinafter referred to as the
"Subcontractor."
WHEREAS, the Prime Contractor intends to submit proposals with the
assistance of the Subcontractor to customers worldwide (hereinafter referred to
as the "Customer(s)") for the design, manufacture, installation and testing of
high voltage DC, shipboard power distribution systems, (hereinafter referred to
as the "Program Area") in response to various solicitations, and;
WHEREAS, the Prime Contractor and the Subcontractor desire to define
their mutual rights and obligations during the period of this Agreement as it
relates to the submittal of said proposals and any subsequent contracts
resulting therefrom, consistent with Federal/State laws governing restraint of
trade or competition as applicable, and consistent with FAR Subpart 9.6,
Contractor Team arrangements.
NOW THEREFORE, to effectuate the foregoing, the Prime Contractor and the
Subcontractor, in consideration of the mutual covenants hereinafter contained,
agree as follows:
1. The proposal will be based on GENERAL ATOMICS being the Prime
Contractor of any resultant contracts, and SatCon Applied
Technology, Inc. being a subcontractor to GENERAL ATOMICS for the
furnishing of professional services and technical support to be
utilized in the Program Area. The contemplated general description
of work for the Subcontractor's efforts on the Program Area is
described in Attachment 1 to this Agreement. However, specific
descriptions will be prepared for each bidding opportunity as they
arise.
2. The Prime Contractor will prepare and submit proposals for the
Program Area opportunities with assistance from the Subcontractor in
technical and cost aspects as they relate to the work defined in the
specific Attachment 1 to this Agreement which will be applicable to
the opportunity being bid.
3. Unless the Prime Contractor decides that it will not pursue a
specific opportunity within the Program Area, the Subcontractor
agrees that it will offer its services exclusively to the Prime
Contractor and the Prime Contractor agrees that it will utilize such
services exclusively for the specific opportunity that it decides to
pursue.
a. If the Prime Contractor decides to pursue specific
opportunities within the Program Area, it will promptly
provide written notice of its decision and offer an exclusive
subcontract opportunity to the Subcontractor, in which case
the parties agree to negotiate in good faith to develop an
equitable arrangement to allocate responsibilities and
remuneration for the specific opportunity. Upon agreement by
the parties to pursue a specific opportunity, the Prime
Contractor shall assign the Subcontractor scope within the
Program Area to the Subcontractor as sole
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source to the Prime Contractor, contingent upon the
conditions stated in Item 6 below.
b. The Subcontractor agrees that it will not submit a proposal
directly to the Customer on the Program, if the Prime
Contractor is pursuing a specific opportunity within the
Program Area utilizing Subcontractor's services.
Subcontractor further agrees that it will not assist or agree
to contract with any other firm or individual pursuing the
same specific opportunity within the Program Area if prime
Contractor has provided written notice to Subcontractor of
its intent to pursue a specific opportunity utilizing
Subcontractor's services.
C. If the Prime Contractor decides that it will not pursue a
specific opportunity in the Program Area, it shall provide
notice in writing of its decision to the Subcontractor within
15 days of learning of the opportunity or 30 days prior to
the due date of the proposal, whichever comes first. In such
case, the Subcontractor may pursue the opportunity directly
or as a subcontractor to another prime contractor for that
opportunity.
4. The Prime Contractor shall prepare all proposals and integrate the
Subcontractor's data therein. The Prime Contractor shall consult
with the Subcontractor on matters affecting the Subcontractor's
input to the proposal. When appropriate, the Prime Contractor shall
afford the Subcontractor the opportunity to review and comment on
the proposal during its preparation, and the Prime Contractor shall
evaluate and consider such comments. Subject to the provisions of
Article 1, as well as other provisions of this Agreement, the Prime
Contractor shall have the authority and responsibility for proposal
preparation, submittal and negotiation of contract terms and
conditions and pricing, provided however, that the Prime Contractor
shall use good faith efforts to protect the rights and interests of
the Subcontractor. In support of the Subcontractor's obligations in
the preparation of the proposal, Subcontractor shall provide the
Prime Contractor with a complete technical proposal, including all
required cost or pricing data. However, if the cost or pricing data
is deemed to be proprietary, it may be provided directly to the U.S.
Government. When required by applicable regulations, the
Subcontractor shall provide an executed Certificate of Current Cost
and Pricing Data. In the event the Prime Contractor is requested to
make presentations to the Customer, the Subcontractor agrees to
support such presentations as directed by the Prime Contractor and
as the presentations relate to the Subcontractor's area of work as
defined in Attachment 1 to this Agreement.
5. The Prime Contractor will recognize and identify the Subcontractor
in its proposal and use its best efforts to secure Customer approval
of the use of the Subcontractor the scope of work, as defined in
Attachment 1 to this Agreement. The Prime Contractor will keep the
Subcontractor fully advised of any changes that affect the
Subcontractor's area of responsibility.
6. In the event the Prime Contractor is awarded a contract for the
Program, the Prime Contractor and the Subcontractor agree to
negotiate in good faith and proceed in a timely manner to conclude a
mutually acceptable subcontract for supply of the support described
in the Subcontractor's proposal to the Prime Contractor. In the
event that negotiations with the Customer result in a substantial
change in the Subcontractor's responsibilities from that described
in its proposal to the Prime Contractor, the Subcontractor shall
have the prior opportunity to consult with the Prime Contractor and
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review the effect of such change before becoming obligated to
perform. The Subcontractor shall have the option to decline all or
part of the award by the Prime Contractor if, in the judgment of the
Subcontractor, the change of work scope is not in the
Subcontractor's best interest or creates an undue financial burden
on the Subcontractor.
7. It is understood by the Prime Contractor and the Subcontractor that
any provisions of the subcontract may be subject to the approval of
the Customer, regardless of the provisions hereof.
8. Limitations on Use of Information:
A. The parties anticipate that under this Agreement it may be
necessary for either party to disclose to the other
information which it considers proprietary, hereinafter
referred to as "Information." Information will be exchanged
in writing and will be clearly stamped proprietary or a
similar ▇▇▇▇ (or for U.S. Government proposal, Information
shall be marked in accordance with FAR 15.413) and shall be
addressed to the individual identified in Article I 1 hereto
as designated to receive proprietary information. Information
disclosed by electronic transmission (e-mail or fax) shall
similarly be clearly marked as proprietary. Information
disclosed orally to either party by the other shall be
confirmed as such in writing by the disclosing party within
thirty (30) days of such oral discussions.
B. Each of the parties agrees that it will use the same
reasonable efforts to protect Information as are used to
protect its own proprietary information. Disclosures of
Information shall be restricted to those individuals who are
directly participating in the proposal and subcontract
efforts identified in Articles 1, 2, and 3 hereof.
C. Neither party shall reproduce or disclose Information or use
it except as follows:
(1) Information furnished by the Subcontractor may be used
by the Prime Contractor in performing its obligations
under this agreement.
(2) Information furnished by the Prime Contractor may be
used by the Subcontractor in performing its
obligations under this Agreement.
(3) Information may be used in accordance with any written
authorization received from the disclosing party.
D. The limitations on reproduction, disclosure, or use of
Information shall not apply to, and neither party shall be
liable for reproduction, disclosure, or use of 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 independently by the party
receiving it, or has been lawfully received from other
sources, including the Customer, 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, (1) it is published by the party furnishing
it or is disclosed by the party furnishing it to
others, including the Customer, without restriction,
or (ii) it has been lawfully obtained by the party
receiving it from other sources, including the
Customer, provided such other source did not receive
it due to a breach of this or any other
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Agreement, or (iii) if Information otherwise comes
within the public knowledge or becomes generally known
to the public.
E. Neither the execution and delivery of this Agreement, nor the
furnishing of any Information by either party shall be
construed as granting to the party either expressly, by
implication, estoppel, or otherwise any license under any
invention or patent now or hereafter owned or controlled by
the party furnishing the same.
F. The Subcontractor agrees that any information provided by the
Prime Contractor, which is sub ect to control by the U.S.
Government, shall only be utilized subject to the terms and
restrictions applicable to its export that the U.S.
Government may impose.
G. Notwithstanding the expiration of the other portions of this
Agreement, the obligations and provisions of this Article 8
"Limitations on Use of Information," shall continue for a
period of five (5) years from the expiration of this
Agreement.
H. Each party will designate in writing one or more individuals
within its organization as the only point(s) for receiving
Information exchanged between the parties pursuant to this
Agreement.
9. Rights in Inventions:
Inventions shall remain the property of the originating party. In
the event of joint inventions, the parties shall establish their
respective rights by negotiations between them. In this regard, it
is recognized and agreed that the parties may be required to and
shall grant license or other rights to each other to inventions,
data, and information under such standard provisions which may be
contained in the prime contract and any approved subcontract
contemplated by this Agreement, provided, however, such license or
other rights shall not exceed those required by said contract.
10. Prior to award of a contract or subcontract, neither party will
release for publicity, advertising, or other purposes, any
information concerning the Program without first submitting the
proposed material to the other party for review and written
approval, which approval shall not be unreasonably withheld. Each
party will give full recognition and consideration to the role and
contributions of the other party in all releases concerning the
Program that directly pertains to the other party's area of
responsibility.
11. All communication relating to this Agreement shall be directed only
to the specific person designated to represent the Prime Contractor
and the Subcontractor on this Program. Each of the parties to this
Agreement shall appoint one technical and one 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 the Prime Contractor
and the Subcontractor shall not be
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binding upon the Prime Contractor or the Subcontractor. All
technical notices and exchange of proprietary or confidential
information shall be addressed to:
GENERAL ATOMICS SUBCONTRACTOR
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
SatCon Applied Technology
General Atomics ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
All contractual notices shall be addressed to:
GENERAL ATOMICS SUBCONTRACTOR
▇▇. ▇. ▇. ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SatCon Applied Technology
General Atomics ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
12. Except for the conditions expressed in the Article 8, "Limitations
on Use of Information," this Agreement shall automatically expire
and be deemed terminated coincident with any one of the following
events or conditions, whichever shall first occur:
A. Three years from the effective date of this Agreement.
B. Mutual agreement of the parties to terminate the Agreement.
13. This Agreement shall apply only to proposals for the Program Area
and to no other effort undertaken by the Prime Contractor or the
Subcontractor jointly or separately. This Agreement shall not
preclude either party from bidding or contracting independently from
the other on any other Government or industry program, which may
develop or arise in the general area of business related to this
Agreement.
14. The parties hereto shall be deemed to be independent contractors,
and the employees or agents of one shall not be deemed to be
employees or agents of the other.
15. 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.
16. This Agreement contains the entire agreement of the parties and
cancels and supersedes any previous understanding or agreement
related to this Program, whether written or oral. All changes or
modifications to this Agreement must be agreed to in writing between
the parties.
17. 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 the Prime
Contractor nor the Subcontractor shall have any right to any
reimbursement, payment, or compensation of any kind from each other
because of activities during the period prior to the award and
execution of any resulting subcontract between the Prime Contractor
and the Subcontractor for the Program and work described in the
Agreement.
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18. This contract and any dispute arising thereunder shall be governed
by the laws of the State of California.
GENERAL ATOMICS SatCon Applied Technology, Inc.
BY: /s/ ▇. ▇. ▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇. ▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TITLE: Senior Vice President TITLE: Vice President & General Manager
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DATE: 2/20/03 DATE: 2/20/03
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ATTACHMENT 1
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