EXHIBIT 10.10
TEAMING AGREEMENT
THIS TEAMING AGREEMENT ("Agreement") is made and entered into
this 29th day of March, 2005 ("Effective Date"), by and between PROJECT
PERFORMANCE CORPORATION ("PPC"), a Commonwealth of Virginia Corporation, with
offices located at 1760 Old Meadow Road, 4TH Floor, McLean, VA, 22102 and
CATCHER, INC. (FORMERLY LCM TECHNOLOGIES, INC.) with its principal place of
business at 1165 Via Vera Cruz, San Marcos, CA 92078 ("Company").
WHEREAS, The Technical Support Working Group (TSWG) ("the Customer")
has a requirement for Communications And Telemetry Computing Handheld for
Emergency Response ("CATCHER") and will be issuing a Request for Proposal (the
"TSWG Solicitation") with the intent to award a contract (hereinafter referred
to as the "Program") for CATCHER; and
WHEREAS, the above identified parties, because of their diverse
capabilities, have determined that they would benefit from a teaming arrangement
between their respective organizations in order to develop the best cost,
management and technical approach to the Solicitation; and
WHEREAS, both parties agree that Project Performance Corporation shall
be the prime contractor, hereinafter referred to as "PPC" or "the prime", and
Company shall be the subcontractor, hereinafter referred to as "Company" or "the
sub"; and
WHEREAS, the prime and the sub have agreed as set forth in the attached
Exhibit A to a division of responsibilities on the part of the prime and the sub
in support of the proposal effort or work to be performed under the Program; and
WHEREAS, PPC and the Company further desire to jointly pursue other
opportunities relating to the CATCHER product, on an exclusive basis, on the
terms and subject to the conditions contained herein.
NOW, THEREFORE, the parties hereto in consideration of the mutual
promises hereinafter contained, agree as follows:
1. During the term of this Agreement (the "Term"), PPC shall serve as
the exclusive reseller, systems integrator and program manager in connection
with all sales of the CATCHER product (including any modifications and/or
improvements thereto and any derivations thereof) (collectively, the "Product")
to any governmental agency or entity (including, without limitation, any
federal, state, local and quasi-governmental agency) or to any other company or
entity that provides transportation, telecommunications and/or security-related
services (collectively, the "Target Clients"). Accordingly, during the Term the
Company shall not, directly or indirectly, other than through PPC, market, sell,
offer to sell or otherwise provide the Product to any Target Client. Likewise,
during the Term PPC shall not market, sell, offer to sell or otherwise provide
any product that is substantially similar to the Product to any Target Client.
Each party hereto shall bring to the other party's attention any potential
opportunity (each, an "Opportunity") developed or discovered by such party
during the Term to provide the Product to any Target Client, and the parties
shall use good faith efforts to agree
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upon an appropriate proposal for such Target Client, in accordance with the
general parameters set forth in Section 2 below.
2. The parties anticipate that, in connection with the Program and each
other Opportunity, the parties' respective general responsibilities shall be as
follows: (a) PPC's primary responsibilities shall be overall project management,
system architecture, software development plus design, and service support and
maintenance; while (b) the Company's primary area of responsibility shall be the
delivery of a fully-furnished and designed hardware unit, including any related
software and other applications as may be necessary or appropriate in any
particular instance.
3. The prime as a prime contractor intends to submit a proposal in
response to the Solicitation, and will include the sub as a proposed
subcontractor for that portion of the work as may hereafter be agreed upon by
the parties and described in Exhibit A hereto, consistent with the general
parameters set forth in Section 2 above.
4. The parties agree that they will not actively participate in other
team efforts that are competitive to the Solicitation effort, nor will they
compete independently for work covered by the Solicitation during the Term. The
term "active participation", as used herein, includes the interchange of
technical data with the competitors.
5. Each party will exert its reasonable efforts to cause the selection
of the prime as a prime contractor for the Program and the acceptance of the sub
as the subcontractor for the work identified for the sub herein. Each party will
continue to exert its reasonable efforts toward this objective throughout any
and all negotiations concerning a proposed contract or subcontract which may
follow the submission of such proposal or proposals in response to the
Solicitation.
6. It is understood that in any proposal submitted in response to the
Solicitation and in all discussions with respect to such Solicitation, the prime
will identify the sub as its team member, and will state in such proposal or
discussions the relationship of the parties, and the scope of responsibilities
of each party, as set forth under this Agreement.
7. The sub will furnish, for incorporation into any proposal, all
proposal material pertinent to the work assigned to the sub as defined (or as
may hereafter be defined) in the attached Exhibit A, including but not limited
to manuscripts, art work, and cost and/or pricing data, as appropriate. The
prime agrees that the sub may submit proprietary or confidential corporate
financial data directly to the government. The parties will furnish qualified
personnel who will cooperate together in drafting a proposal. The sub shall
provide proposal inputs to the prime within the schedule agreed upon by both
parties. The parties shall perform such additional tasks as necessary and
reasonable, subsequent to the submission of the proposal to the Customer, in
order to remain in a competitive position. The parties shall also negotiate in
good faith, any further change or modification to Exhibit A as may be required
during the term of this Agreement.
8. Each party will furnish to the other such cooperation and assistance
as may be reasonably required hereunder, both with respect to the Program and
any other Opportunity; provided, however, that the parties shall be deemed to be
independent contractors, and the employees of one shall not be deemed to be the
employees of the other. Furthermore, this Agreement is not intended by the
PPC TEAMING AGREEMENT Page 2 Solicitation No.____TBD______
parties to constitute or create a joint venture, partnership, or formal business
organization of any kind, other than a contractor team arrangement as set forth
in the Federal Acquisition Regulations, and the rights and obligations of the
parties shall be only those expressly set forth herein. Neither party shall have
authority to bind the other except to the extent authorized herein.
9. In connection with the Program and any other Opportunity, each party
will bear all cost, risks and liabilities incurred by it arising out of its
obligations and efforts under this Agreement during the pre-proposal and
proposal periods, which are defined as the periods up to an award of a prime
contract. However, the prime will be responsible for the graphic arts, printing,
bindings, and delivery cost of any proposal. Neither party shall have any right
to any reimbursement, payment or compensation of any kind from the other during
the period up to an award of a prime contract with respect to the Program or any
other Opportunity.
10. The prime will have the sole right to decide the form and content
of all documents submitted to the Customer. The sub shall offer the prime its
advice and aid, and will prepare the substantive content of its portion of the
proposal, in the timeframes requested by the prime.
11. Pricing may be an important or significant part of the proposal
preparation process. The prime and the sub may, therefore, jointly discuss and
work together to develop price modeling for those portions of the work to be
performed by the sub, so as to maximize the ability of the team to successfully
compete. The sub agrees to take all reasonable steps to meet competitive prices
or rates derived from these models and discussions.
12. If a prime contract is awarded to the prime as a result of the
Solicitation (or in connection with any other Opportunity), the prime will, to
the extent permitted by Customer rules, regulations and applicable law, enter
into good faith negotiations with the sub for a subcontract, wherein the prime
will make every reasonable effort to subcontract to the sub for that portion of
the work set forth in the attached Exhibit A. The work to be performed by the
sub will be in accordance with the Solicitation, or resultant prime contract,
schedule and technical specifications, if any, and at a price to be mutually
agreed upon between the parties. Subcontractor agrees to accept applicable
subcontract terms and conditions flowed down from or similar to those included
in the prime contract which are required to be included by law or regulations,
or such provisions as may be reasonably required in order to enable the prime to
perform its obligations as a prime contractor, and such other provisions upon
which mutual agreement is reached. The parties agree to enter into good faith
negotiations relating to such a subcontract as soon as practicable.
13. It is agreed between the parties that the prime shall be the
primary contact with the government concerning any proposal. In the event it
becomes desirable for the sub to contact the government concerning the program,
such contact shall be approved by the prime to ensure coordination of efforts
and understanding of commitments prior to such contact. Although the prime will
be the prime contact with the government, it is recognized that the sub will
have a continuing relationship with the government and may be the recipient of
inquiries concerning the subject matter of this Agreement. Therefore, any
substantive communications directly between the sub and the Government
concerning any matter involving this Agreement shall not be deemed to be a
breach of this Agreement, provided the prime is notified in a timely manner
thereof by the sub.
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14. In the event the prime should be requested or is presented the
opportunity to make presentations, whether orally or by written communications,
to interested government agencies concerning the Program or any other
Opportunity, the content of the presentations shall be made immediately known to
the sub, subject to any prohibitions or restrictions imposed by the Government.
The sub will support such presentations as directed by the prime if it relates
to the sub's area of work as defined in Section 2 hereof or Exhibit A hereto.
15. Any news releases, public announcements, advertisements or
publicity released by either party concerning this Agreement, shall be subject
to the prior written approval of the other party. Any such publicity shall give
due credit to the contribution of each party.
16. During the term of this Agreement, the prime and the sub may
exchange proprietary and confidential information as is required for each to
perform its obligations hereunder.
a. Proprietary and confidential information is defined as, but
not limited to, performance, sales, financial, contractual,
and special marketing information, ideas, technical data and
concepts originated by the disclosing party, (i) not
previously published or otherwise disclosed to the general
public, (ii) not previously available to the receiving party
or others without restriction, (iii) not normally furnished
to others without compensation, or (iv) which the disclosing
party desires to protect against unrestricted disclosure or
competitive use; and which is furnished pursuant to this
Agreement and appropriately identified as being proprietary
or confidential when furnished.
b. The parties shall designate below the individuals within
their organizations as the only person(s) to receive
proprietary or confidential information exchanged between the
parties pursuant to this Agreement.
For the Prime (PPC): Steven Maxwell (Project Manager)
Director (Title)
For the Sub (Company): Ira Tabankin (Project Manager)
President (Title)
c. Neither party shall divulge or use for any purpose not
connected with the Program or any other Opportunity
contemplated in this Agreement, any proprietary or
confidential information in any manner other than to the
appropriate Customer agencies or organizations to which
proposals or reports are to be submitted. Each party agrees
to keep any Proprietary Information in strict confidence, and
to use the same reasonable efforts to protect such
information as are used to protect its own proprietary or
confidential information, and to prevent disclosure,
publication or dissemination of such.
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d. Disclosure of proprietary or confidential information shall
be restricted to those persons who are directly participating
in the proposal and contract efforts identified in this
Agreement. The parties each will designate in writing those
representatives responsible for initially receiving any
proprietary or confidential information.
e. All proprietary or confidential information exchanged will be
in writing, clearly identified as proprietary or confidential
and marked in accordance with FAR 52.215-1 (e) or similar
marking. Proprietary or confidential information provided
either orally or visually shall be promptly confirmed in
writing as proprietary or confidential information.
f. Each party is authorized to incorporate such proprietary or
confidential information in the proposal contemplated by this
Agreement for submission to the government, provided such
proposal bears a restrictive legend similar to that provided
for in FAR 52.215-1(e) or other appropriate procurement
regulations.
g. Proprietary or confidential information disclosed hereunder
may be used only by the receiving party in connection with
the Solicitation, any other Opportunity or the performance of
any contract or subcontract awarded pursuant to Agreement.
h. It is further agreed that each party will require that all
third parties to this Agreement, if any, receiving
proprietary or confidential information protect the same in
accordance with the provisions contained herein.
i. Neither party shall be liable for the inadvertent or
accidental disclosure of proprietary or the confidential
information if such disclosure occurs despite exercise of the
same degree of care as such party normally takes to preserve
its own such data or information.
j. The obligations of nondisclosure and nonuse of proprietary or
confidential information imposed in the preceding paragraphs
shall terminate two years after termination of this
Agreement, unless the parties enter into a definitive
subcontract, in which case the rights and obligations of the
parties shall be governed by the subcontract.
k. The work contemplated by this Agreement including the
proposal review and preparation activity could likely involve
access to and disclosure of technical data as it is
identified in the FAR and other U.S. Government statutes and
regulations. The parties shall conduct all of their
activities associated with this Agreement consistent with
these applicable regulations which in part limit, restrict or
prohibit disclosure of technical data to non-US persons as
defined by such regulations.
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17. The obligation with respect to the protection and handling of
proprietary or confidential information, as set forth in this Agreement, is not
applicable to the following:
a. Information which becomes lawfully known or available to the
receiving party from a source other than the disclosing
party, including the government, and without breach of this
Agreement by the recipient.
b. Information developed independently by the receiving party.
c. Information which becomes available to the receiving party by
inspection or analysis of products available in the market.
d. Information which is within, or later falls within, the
public domain without breach of this Agreement by the
recipient.
e. Information furnished to the government with "unlimited
rights".
f. Information publicly disclosed with the written approval of
the other party.
g. Information disclosed by the party providing the same to
others on a nonrestricted basis.
h. Nothing herein shall restrict either party from disclosing
any portion of such information on a restricted basis
pursuant to a judicial or other lawful government order, but
only to the extent of such order.
18. Neither party shall restrict the other party's use of any
information not considered proprietary or confidential hereunder.
19. No license to the other party, under any trademark, patent or
copyright, or applications which are now or may thereafter be owned by such
party, is either granted or implied by the conveying of information to that
party. The submission or exchange of information by the parties shall in no way
constitute any representation, warranty, assurance, guarantee or inducement by
either party to the other with respect to the infringement of trademarks,
patents, copyrights or any right of privacy, or other rights of third persons.
20. Access to classified information may be required in the performance
of the services hereunder, and the sub shall, if required by the Solicitation
and any resultant contract or subcontract awarded thereunder, meet the security
clearance requirements of the U.S. Government as set forth in the current
edition of the National Industrial Security Program Operating Manual (NISPOM) or
other pertinent government regulations. The sub agrees that all of its personnel
who, pursuant to this Agreement, will have access to classified information,
shall have an appropriate personal security clearance then in effect, prior to
being accorded access to such information.
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21. The Company represents and warrants to PPC that the Product is and
will be original and does not and shall not infringe or violate any patent,
copyright, trademark or other intellectual property right of any third party.
The Company shall indemnify, defend and hold harmless PPC against any losses,
liabilities, damages, fees, costs and expenses (including, without limitation,
reasonable attorneys' fees and costs) arising out of or based upon any claim
that the Product or any other intellectual property provided by the Company
pursuant to this Agreement (i) infringes or violates any patent, copyright,
trademark or other intellectual property right of any third party or (ii)
constitutes an unlawful disclosure, use or misappropriation of another party's
trade secret.
22. This Agreement shall remain in force for a period of two years from
the effective date hereof, and may be thereafter extended for up to five
successive periods of one year each upon the mutual written agreement of the
parties, unless sooner terminated in accordance with the remaining provisions of
this Section 22. Notwithstanding the foregoing, with respect to the Program
only, this Agreement shall be superseded by any subcontract entered into between
the parties, and the parties' respective obligations hereunder with respect to
the Program shall terminate upon the earliest to occur of the following:
a. The execution of a subcontract between the parties for the
Program;
b. An official Customer announcement that an award will not be
made based on the TSWG Solicitation;
c. An official Customer announcement that the TSWG Solicitation
has been canceled;
d. An official Customer announcement that the Program has been
canceled;
e. The award of a prime contract for the TSWG Solicitation to a
contractor(s) other than the prime;
f. The Customer directs the prime or the sub to participate with
one or more other contractors on this procurement;
g. The prime is unable to obtain Customer approval of the sub as
a subcontractor to the prime;
h. Mutual written consent of both parties; or
i. Inability of the prime and the sub, negotiating in good
faith, to reach agreement on the terms of a subcontract
offered by the prime, in accordance with this Agreement.
In addition, either party shall have the right to terminate this Agreement upon
written notice to the other party (i) in the event of a material breach by the
other party of its obligations under this Agreement, which breach shall have
continued uncured for thirty (30) or more days after receipt of
PPC TEAMING AGREEMENT Page 7 Solicitation No.____TBD______
written notice of such breach, (ii) if such other party makes a general
assignment for the benefit of creditors, or any proceeding shall be instituted
by or against such other party seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up or comparable disposition, or (iii) if the
terminating party determines in good faith that it is not receiving the benefits
it expected to receive in connection with this Agreement, PROVIDED that neither
party may terminate this Agreement pursuant to this clause (iii) unless it shall
have first notified the other party in writing of its intent to so terminate and
the parties shall have been unable to reach a mutually agreeable resolution
within sixty (60) days after the delivery of such notice.
23. The termination of this Agreement shall not supersede the
obligation of the parties with respect to the protection of proprietary or
confidential information, as set forth in paragraph 16.
24. In the event this Agreement is terminated, either party shall be
free to pursue its individual approaches in association with the successful
contractor or a third party for work, which is the subject of this Agreement,
subject to the provisions of paragraph 16j.
25. The parties each shall designate in writing one or more individuals
within their own organization as their representative(s) responsible for direct
performance of the parties' necessary functions. Such representative(s) shall
have the responsibility to effectuate the requirements and responsibilities of
the parties under this Agreement.
IF TO PPC: IF TO CATCHER, INC.:
Project Performance Corporation CATCHER, Inc.
1760 Old Meadow Road, 4th Floor 1165 Via Vera Cruz
McLean, VA 22102 San Marcos, CA 92078
Attention: Attention:
TECHNICAL: TECHNICAL:
Name: Steven Maxwell Name: Ira Tabankin
Phone: 972-740-8146 Phone: 805-443-9431
Fax: 972-516-3745 Fax: 760-736-4476
Email: smaxwell@ppc.com Email: ITabankin@aol.com
CONTRACTUAL: CONTRACTUAL:
Name: Peter Dierbeck Name: Ira Tabankin
Phone: 703-748-7026 Phone: 805-443-9431
Fax: 703-748-7001 Fax: 760-736-4476
Email: pdierbeck@ppc.com Email: itabankin@aol.com
26. All notices, certificates, acknowledgments and other reports
hereunder shall be in writing and shall be deemed properly delivered when duly
mailed by registered letter, by express (overnight) mail, or by facsimile to the
other party at its address as indicated in paragraph 25, or to such other
address as either party may, by written notice, designate to the other.
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27. In no event does this Agreement limit or restrict the rights of the
parties from quoting, offering to sell or selling to others, any items or
services not uniquely identified with the proposal, which it may regularly offer
for sale and which may be included in the proposal contemplated by this
Agreement. This Agreement is intended to protect products or services arising
from the combined efforts of the parties and proprietary or confidential
information furnished for this Agreement.
28. Nothing herein shall be construed as providing for the sharing of
profits or losses arising out of the efforts of either or both of the parties.
29. 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, which consent will not unreasonably be withheld. The foregoing
shall not apply in the event either party shall change its corporation name or
merge with another corporation.
30. This Agreement shall not be amended or modified, nor shall any
waiver or any right hereunder be effective unless set forth in a document
executed by duly authorized representatives of both the prime and the sub. The
waiver of any breach of any term, covenant or condition herein contained shall
not be deemed to be a waiver of such term, covenant or condition, or any
subsequent breach of the same or any other term, covenant or condition herein
contained.
31. The content of this Agreement may be made known to appropriate
Customer representatives by either party if requested by the Customer.
32. Nothing contained herein is intended to affect the rights of the
Customer to negotiate directly with either party hereto on any basis the
Customer may desire.
33. This Agreement (including all attachments and modifications hereto)
contains all of the agreements, representations and understandings of the
parties hereto, and supersedes and replaces any and all previous understandings,
commitments or agreements, oral or written, related to this Agreement and the
award of a contract under the Program set forth herein.
34. If any part, term or provision of this Agreement shall be held
void, illegal, unenforceable, or in conflict with any law of a federal, state,
or local government having jurisdiction over this Agreement, the validity of the
remaining portions or provisions shall not be affected thereby, so long as the
basic intent and purpose of this Agreement can still be achieved.
35. During the term of this Agreement and for a period of one year
after termination or expiration, neither party shall, without the written
consent of the other party, solicit for hire nor knowingly allow any of its
employees, agents, officers, or representatives to solicit for hire, any
employee(s) of the other party who are associated with or involved in the
performance of this Agreement. However, this restriction does not apply when
employment agreements are made pursuant to public recruitment offerings.
Further, this provision shall be included in, and shall apply to, any
subcontract issued under any resultant contract for the Program.
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36. The sub agrees that it is not authorized to engage in
communications or lobbying activity with Government personnel on behalf of prime
that attempt to influence contract award. Further, the sub shall comply with the
requirements of FAR 52.203-12.
37. This Agreement shall be enforced and interpreted under the laws of
the Commonwealth of Virginia, exclusive of its choice of law provisions.
IN WITNESS THEREOF, the parties hereto have executed this Agreement on the date
herein above indicated.
PROJECT PERFORMANCE CORPORATION CATCHER, INC.
(FORMERLY LCM TECHNOLOGIES, INC.)
BY: /s/ Michael J. Nigro (SIGNATURE) BY: /s/ Ira Tabankin (SIGNATURE)
----------------------- ----------------------
NAME: Michael J. Nigro NAME: Ira Tabankin
TITLE: President & CEO TITLE: President
DATE: Date: March 31 2005
PPC TEAMING AGREEMENT Page 10 Solicitation No._____________
TEAMING AGREEMENT
BETWEEN PROJECT PERFORMANCE CORPORATION (PPC) AND CATCHER, INC.
(FORMERLY LCM TECHNOLOGIES, INC.)
EXHIBIT A
Project Performance Corporation and CATCHER, Inc. are working together to define
the more detailed responsibilities of each party in connection with the Project.
This document will be updated at a later date as these responsibilities become
more defined.
PPC TEAMING AGREEMENT A-1 Solicitation No._____________