EXHIBIT 10.145
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 1601-B Alton
Parkway, Irvin, California 92606, on behalf of itself and its subsidiaries and
respective successors (collectively, "HIET") and Williams-Sterling, Inc. with
offices at 21153 Gibson's Lane, Lignum, Virginia 22726-1956 ("WSI"), on behalf
of itself and respective successors. HIET and WSI 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"); and
WHEREAS, the Parties have discussed the possibility of teaming together
on government solicitations.
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 WSI as
the prime contractor for the project and HIET as a proposed subcontractor
to WSI responsible for the 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 amend this Agreement to describe the specific
project and to outline HIET scope of work and pricing.
(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 WSI. WSI will include appropriate credit
in its proposal(s) relative to the areas of contribution furnished by
HIET.
(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 to
WSI.
(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 to
WSI for the project.
(5) In the event WSI is awarded a prime contract for the project and
this Agreement has not been previously terminated pursuant to the
applicable provisions hereof, HIET will enter into good faith
negotiations with WSI 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 HIET standard terms and conditions for
the services offered. HIET represents that it will be solely providing
"Commercial Items," as that term is defined in FAR Part 2.101 and used
in FAR Part 12.
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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 HIET and WSI 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, including
offering a proposal in response to a solicitation that a Party identifies
as a potential opportunity for the Parties to bid together. Any proposals
the Parties make to government agencies pursuant to this Agreement shall
be made on a non-exclusive basis unless the Parties otherwise agree in
writing.
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.
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.
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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. 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 HIET:
HiEnergy Technologies, Inc.
1601-B, Alton Parkway
Irvin, CA 92606
Attn: Bogdan Maglich
[Insert email address]
If to WSI:
Williams-Sterling, Inc.
21153 Gibson's Lane
Lignum, Virginia 22726
Attn: James H. Williams
williamsjh@msn.com
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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.
11. GOVERNING LAW; DISPUTES
This Agreement shall be governed and construed in accordance with the laws
of the Commonwealth of Virginia, without regard to its choice of law
provisions. HIET and WSI 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 WSI and HIET
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. WSI and HIET 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.
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12. ENTIRE AGREEMENT
This Agreement, including exhibits hereto and other documents incorporated
herein by reference, contains the entire agreement between HIET and WSI
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 WILLIAMS-STERLING, INC.
By: /s/ Bogdan C. Maglich By: /s/ James H. Williams
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Name: Dr. Bogdan C. Maglich Name: James H. Williams
Title: Chief Executive Officer Title: Chairman
Date: January 30, 2006 Date: January 23, 2006
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