EXHIBIT 10.12
SAIC/ NANOSYS MASTER MARKETING AND BUSINESS DEVELOPMENT AGREEMENT
This Master Marketing Agreement ("Agreement"), is entered into as of the later
of the dates set forth at the end of this Agreement (the "Effective Date"), by
and between Nanosys, Incorporated, a corporation duly organized under the laws
of the State of Delaware and having its principal place of business at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ("Nanosys"), and Science Applications
International Corporation, a corporation duly organized under the laws of the
State of Delaware and having its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, through its Advanced Systems Group
("SAIC"). Nanosys and SAIC may hereinafter be referred to individually as a
"Party" or collectively as the "Parties".
WHEREAS, SAIC is recognized as a leader in the information technology and
systems integration field with technologies and expertise that includes, but is
not limited to, systems design and engineering, database architecture, software
development, and large project management;
WHEREAS, Nanosys is recognized as a leader in the development of nanotechnology
materials and nanotechnology enabled modules, systems and processes;
WHEREAS, the Parties, from time to time, have collaborated in order to bid for
and to perform under contracts and grants awarded by various agencies of the
United States government; and
WHEREAS, Nanosys and SAIC mutually desire to establish a preferred marketing
relationship with each other in order to identify and pursue additional
contracts and awards with the United States government ("Opportunities")
relating to nanoscience and nanotechnology as a team, to further both their
businesses;
NOW THEREFORE, in consideration of the mutual terms and conditions set forth
herein, the Parties hereby agree as follows:
1. Scope of the Agreement. This Agreement is a master agreement that
commits the Parties to work together for their mutual benefit to
identify and advise each other as to specific Opportunities to market
and advertise their respective services and products in accordance with
the following terms, and as provided by Attachment A. SAIC will perform
activities in the following areas: systems integration; joint prototype
development; and marketing. Nanosys will perform activities in the
following areas: nanotechnology materials and nanotechnology-enabled
module development; joint prototype development; and marketing support.
Each Opportunity that is to be jointly pursued by the Parties shall be
defined and described in written, mutually agreed-upon exhibits
attached hereto (each a "Marketing Exhibit"). Each Marketing Exhibit
shall specify the particular Opportunity, the complementary products
and/or services to be marketed, the prospective customer base, and the
scope of effort required of each Party. Each Marketing Exhibit shall,
when executed, become an addendum to this Agreement. The first
Marketing Exhibit shall be titled "Marketing Exhibit No. 1," and
additional Marketing Exhibits shall be numbered sequentially.
(a) The obligations of the Parties under this Agreement are
non-exclusive. `Either Party may, at any time and for any
reason, enter into similar arrangements with any other entity
with respect to the same or similar areas or Opportunities set
forth in the Marketing Exhibits or for any other business
purposes. However, notwithstanding the foregoing, for any
given Opportunity for which: (1) the Parties have
complementary technology and/or intellectual property for
addressing such Opportunity; (2) a Party chooses not to pursue
such Opportunity on its own, or with a partner entity or
organization that is already a Strategic Commercial Partner of
such Party at the time the Party chooses to pursue such
opportunity; (3) a Party does not already have a proposal
submitted for such Opportunity; (4) a Party has not had such
Opportunity presented to such Party by a third party; and (5)
resources for pursuing such Opportunity are supported
Resources pursuant to Section 2 of this Agreement; then each
Party agrees to offer to the other Party the first opportunity
to enter into a Marketing
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Exhibit for such Opportunities contemplated to be pursued by
such Party. In the event that a Party desires to pursue an
Opportunity on its own, it shall notify the other Party to
allow the other Party an opportunity to present information
supporting the JOINT pursuit of such Opportunity by the
Parties hereto. The Party being offered the first opportunity
to enter into a Marketing Exhibit or to present information
supporting the joint pursuit of an Opportunity, shall
communicate any acceptance of such offer to the other Party
within a reasonable time, which time is not to exceed [***
Redacted], unless otherwise agreed to by the Parties in
writing. If the offer of first opportunity or to present
information for joint pursuit is rejected, or not accepted
within such reasonable time, either Party is then free to
pursue the Opportunity on its own or with any other person or
entity. Further, commencing upon the execution of a Marketing
Exhibit and continuing during the effectiveness of any
definitive agreement relating thereto, the Parties agree that
they shall not participate in any effort to prepare or submit
a separate proposal relating to the specific technology,
application and customer of the Opportunity identified in the
Marketing Exhibit. Strategic Commercial Partner shall mean a
partner entity or organization with which the Party has a
fully executed commercial development agreement.
(b) Except as set forth in this Agreement or a Marketing Exhibit
executed hereunder, each Party will bear all costs, risks and
liabilities incurred by it arising out of its obligations and
efforts under this Agreement and any such Marketing Exhibit.
Unless otherwise specified in this Agreement or a Marketing
Exhibit, neither Party shall have any right to any
reimbursement, payment or compensation of any kind from the
other Party for activities pursuant to this Agreement or a
Marketing Exhibit.
(c) This Agreement, including all Marketing Exhibits, sets forth
the provisions and conditions pursuant to which the Parties
may identify and advise each other of a mutually beneficial
Opportunity.
(d) Each Party shall designate one or more duly authorized
representatives to interact with the other for purposes of
this Agreement. Initially, [*** Redacted] and [*** Redacted]
shall be the representatives of Nanosys and [*** Redacted] and
[*** Redacted] shall be the representatives of SAIC. Each
Party's representative(s) may select and submit to the other
for its consideration such Opportunities that the Party
believes may be of mutual interest and the representatives
shall jointly determine whether to pursue such Opportunity
together. If the Parties determine to pursue an Opportunity
jointly, the representatives shall determine jointly the
appropriate marketing strategy; including planning for
directing the timing and use of the Resources described in
Section 2 which efforts shall be reflected in a Marketing
Exhibit hereto. At least one representative of each Party
shall meet and confer periodically with at least one
representative of the other as necessary, either in person or
by telephone, to discuss prospective Opportunities and
performance with respect to existing Marketing Exhibits
(including, but not limited to the Parties obligations under
Section 2 below). The Parties agree that the representatives
shall meet at agreed-upon intervals but not less than once in
any calendar [*** Redacted]. Subject to the provisions of
section 1(a) above relating to the Parties' actions commencing
upon execution of a Marketing Exhibit and continuing during
the effectiveness of any definitive agreement relating
thereto, if either Party's representative determines that it
is not in that Party's best interest to initiate or continue
an Opportunity jointly, either Party is free to pursue such
Opportunity, using its sole efforts or in conjunction with any
other person or entity.
(e) In those circumstances where the Parties' marketing efforts
identify a specific Opportunity, and the Parties decide to
pursue the Opportunity jointly as set forth in a Marketing
Exhibit, then the Parties agree to enter into good faith
negotiations to execute an appropriate definitive agreement
for the particular Opportunity. Generally, it is anticipated
that Nanosys would primarily apply its nanoscience and
nanotechnology development expertise and be the
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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preferred provider of any nanotechnology-based modules to the
Opportunity, and SAIC would primarily apply its system
integration expertise to the Opportunity. Each such definitive
agreement shall contain terms and conditions that are
customary for a teaming agreement, including, but not limited
to, allocating responsibility for preparation of proposals and
determining the structure of the proposal effort. Each such
definitive agreement shall set forth additional mutually
agreed-upon terms and conditions with respect to the rights
and obligations of the Parties with regard to that specific
Opportunity.
2. Mutual Commitment to Fund the Initiative.
(a) The Parties agree that, in order to initially support the
marketing activities associated with the Opportunities
anticipated to be identified in Marketing Exhibits, the work
of approximately [*** Redacted] full time employee equivalents
("FTEs", the FTEs and associated costs are collectively
referred to as the "Resources") will be necessary to
specifically support the marketing activities associated with
the Opportunities. The effort of each individual supporting an
Opportunity will be dedicated at a percentage agreed upon by
the representatives of each party authorized by this
Agreement. The Resources needed will include technical and
marketing resources. The Parties agree that Nanosys shall be
responsible for providing Resources equivalent to [***
Redacted] FTEs and SAIC shall be responsible for providing
Resources equivalent to [*** Redacted] FTEs.
(b) SAIC agrees, during the Initial Term, as defined in Section
3(a), to fund the cost of the Resources of both Parties set
forth in Section 2(a). Such costs are expected to be burdened
actual expenses, not including any fees or profit, and are
invoiced [*** Redacted] in accordance with 2f, below. The
funding support will be subject to [*** Redacted] reviews, as
stated in 1(d) above. The maximum Resources funded by SAIC
under this section during the Initial Term of this Agreement,
and that have not been reimbursed under section 2(c)(iii), are
not to exceed $2.2 M, (It is currently estimated that $1.6 M
will be allocated to Nanosys and $0.6 M to SAIC), unless
otherwise agreed to by the Parties. Resources reimbursed under
section 2(c)(iii) may, during the Initial Term, be reused to
fund additional Resources if mutually agreed by the Parties.
Unless specifically agreed upon by the Parties in writing, the
work performed by the representatives of the Parties in
carrying out their periodic review responsibilities under
Section 1(d), shall not be included in the amounts funded by
SAIC. Among the tasks to be performed by the Parties' FTEs are
support for preparation of proposals for contracts and awards,
demonstrations, and marketing presentations.
(c) In consideration of SAIC's agreement to fund the Resources
(including SAIC Resources) described in paragraph (b) above,
the Parties agree that all United States government contract
revenue, including the subcontract(s) from one Party to the
other Party, ("Contracts") arising out of or resulting from
work performed under this Agreement shall be allocated in
accordance with the following priority schedule, with funds
received under any Contract first being applied to the highest
priority category until all costs thereunder are reimbursed,
before applying any remaining funds to the next level of
priority, etc.:
i. [*** Redacted]
ii. [*** Redacted]
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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iii. [*** Redacted]
Unless otherwise agreed by the Parties in writing, Nanosys
shall reimburse SAIC [*** Redacted] after receipt of payment
from its prime customer under the applicable Contract.
(d) With the exception of income taxes imposed on the Parties,
each Party agrees to pay all sales, use, value added, personal
property or other taxes of any type that are imposed by any
governmental authority on the payments due by such Party to
the other Party under this Section 2. Any payment or part of a
payment due under this Agreement that is not paid when due
shall bear interest at the rate of [*** Redacted]% per month,
or at the highest rate allowed by law, whichever is less, from
its due date until paid.
(e) Each Party shall have the right, at its sole expense, to
inspect the books and records of the other Party for the
purpose of verifying the amounts funded by SAIC and that
Nanosys has complied with the payment obligations of this
Section 2. Such inspections may be made not more than
semi-annually, on not less than [*** Redacted] prior
written notice to the other Party, during regular business
hours.
(f) To fund the Nanosys Resources, SAIC ASG will implement a
purchase order with Nanosys which will be incrementally
funded, against which Nanosys will submit [*** Redacted]
invoices in accordance with the terms of the purchase order.
Invoices will be paid [*** Redacted]. A proper invoice may be
in Nanosys standard commercial format but must include, at a
minimum, detailed costs for the period covered by the invoice
and accumulated costs. Detailed costs are defined as hours by
individual labor categories, fully burdened labor and other
fully burdened expenses such as are described in general in 2a
above and not including any fee or profit.
To provide participation insight to Nanosys, SAIC ASG will prepare
financial statements on an SAIC "financial-period" basis , to be made
available to Nanosys, by the [*** Redacted] after the close of the
[*** Redacted] for which the financial statement is
prepared.. Financial statements will identify current and cumulative
total costs for Labor and ODC's as defined in paragraphs 2(a) and 2(b)
above.
3. Term and Termination.
(a) This Agreement shall have an initial term of twenty-four (24)
months commencing on the Effective Date (the "Initial Term").
Following the Initial Term, this Agreement may be extended
only by the written, signed, mutual agreement of both Parties
for an additional period of twelve (12) months (each, a
"Renewal Term"), which such written mutual commitment shall be
executed at least ninety (90) days prior to the end of the
Term immediately preceding such Renewal Term. For purposes of
this Agreement, the Initial Term and any Renewal Terms shall
be known as the Term.
(b) Either Party may terminate this Agreement as of the last day
of [*** Redacted] including and after the [*** Redacted] of
the Effective Date, provided that such termination must be
communicated to the other party in writing at least [***
Redacted] days prior to such termination date.
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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(c) Upon the termination or expiration of this Agreement, each
Party will destroy or return to the other Party all drawings,
specifications, manuals and other printed or reproduced
material (including information stored on machine readable
media) provided by the disclosing Party to the receiving Party
and shall use commercially reasonable efforts to destroy all
backup copies of such information made by the receiving Party
or its employees, wherever located. The obligations of this
section do not apply to any materials and/or information of
the disclosing Party that is necessary for the perfection
and/or enforcement of any rights to Intellectual Property
developed under this Agreement that is owned in whole or in
part by the receiving Party. Any Confidential Information
retained by the receiving Party hereunder shall remain subject
to the provisions of the Non-Disclosure Agreement attached a
Exhibit A.
(d) The Parties acknowledge that termination or expiration of this
Agreement shall terminate each Marketing Exhibit executed
hereunder, unless the Parties expressly agree to the contrary
in writing. However, any definitive agreements entered into
between the Parties as a result of their efforts hereunder
shall not be terminated upon the termination or expiration of
this Agreement and shall survive according to their terms.
Additionally, the obligations of paragraph 2(c) shall survive
any termination.
4. Intellectual Property.
(a) The Parties shall each retain ownership of and all right,
title and interest in and to their respective pre-existing
Intellectual Property (as that term is defined in Article 4(c)
below), and no license or right to use therein, whether
express or implied, is granted by this Agreement or as a
result of the work performed by either Party hereunder or in
pursuit hereof. To the extent the Parties wish to grant to the
other rights or interests in pre-existing Intellectual
Property, separate license agreements on mutually acceptable
terms will be executed.
(b) For all Intellectual Property developed under this Agreement
by the Parties (hereinafter referred to as "Collaboration
Intellectual Property"), all Nanotechnology Related
Collaboration Intellectual Property shall be solely owned by
Nanosys, regardless of inventorship. For purposes of this
Agreement, "Nanotechnology Related Collaboration Intellectual
Property" is Intellectual Property in [*** Redacted]
nanomaterials having at least [*** Redacted] of
[*** Redacted], including [*** Redacted] of such materials,
composites including such materials, nano to macro world
interface technology for such materials, and the fabrication
and processing of such materials. All non-Nanotechnology
Related Collaboration Intellectual Property such as systems,
use, and applications shall be owned according to U.S. laws of
intellectual property inventorship and ownership with
Collaboration Intellectual Property that is solely conceived
by the employees, agents or contractors of one Party being
solely owned by that Party with all rights appurtenant
thereto, and with non-Nanotechnology related Collaboration
Intellectual Property that is jointly conceived by the
employees, agents or contractors of both Parties being jointly
owned, with all joint rights appurtenant thereto and without
obligation to obtain consent or account to the other Party to
exploit, license or transfer jointly owned Intellectual
Property.
(c) As used herein the term "Intellectual Property" shall mean
patents, copyrights, trade marks, trade names, inventions
(whether or not patentable), works of authorship, trade
secrets, techniques, know-how, ideas, concepts, algorithms and
all other forms of intellectual property rights. As used
herein the term "pre-existing Intellectual Property" means any
Intellectual Property previously conceived, developed or
reduced to tangible medium as demonstrated by written
documentation.
5. Warranty Disclaimer and Limitation of Liability. Neither Party makes
any warranties whatsoever to the other Party, express or implied, with
regard to the products or services of that Party or any matter relating
to this Agreement and any Marketing Exhibits, and each Party
specifically disclaims all such
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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warranties and conditions, including any warranty of title,
merchantability, and fitness for a particular purpose. In no event
shall either Party be liable to the other for any punitive, exemplary,
special, indirect, incidental or consequential damages (including, but
not limited to, lost profits, lost revenues, lost business
opportunities, loss of use or equipment down time, and loss of or
corruption to data) arising out of or relating to this Agreement or any
Marketing Exhibit, regardless of the legal theory under which such
damages are sought, and even if the Parties have been advised of the
possibility of such damages or loss. The liability of either Party to
the other for any claims, liabilities, actions or damages arising out
of or relating to this Agreement or any Marketing Exhibit, howsoever
caused and regardless of the legal theory asserted, including breach of
contract or warranty, tort, strict liability, statutory liability or
otherwise, shall not, in the aggregate, exceed the amount of
out-of-pocket costs incurred by the other Party in connection with the
specific Marketing Exhibit or opportunity under which such claim arose.
6. Confidentiality. In the performance of this Agreement and any Marketing
Exhibits executed hereunder, certain information may be exchanged
between the Parties that is proprietary and confidential in nature.
This proprietary and confidential information is exchanged solely for
the purposes set forth in this Agreement and any such Marketing
Agreement. This proprietary and confidential information shall remain
the property of the disclosing Party and shall be subject to the terms
and conditions of the Non-Disclosure Agreement attached hereto as
Exhibit A. Prior to any transfer of materials under this Agreement, the
Parties agree that they will execute a Materials Transfer Agreement
that will be separately agreed to by the Parties.
7. Export Control. The Parties to this Agreement shall comply with all
applicable United States export and foreign import laws, rules, and
regulations in the performance of the Parties' responsibilities and
obligations under this Agreement. Without limiting the generality of
the foregoing, the Parties shall not disclose any U.S.-origin products,
know-how, technical data, documentation, or other products or materials
furnished to it pursuant to this Agreement, to any person or in any
manner which would constitute a violation of the export control
regulations of the United States then in effect.
8. Disputes. Any controversy, claim or dispute ("Dispute") arising out of
or relating to this Agreement shall be resolved by binding arbitration
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect. Before commencing any such
arbitration, the Parties agree to enter into negotiations to resolve
the Dispute. If the Parties are unable to resolve the Dispute by good
faith negotiation within [*** Redacted] days of entering into such
negotiations, then either Party may refer the matter to arbitration.
The arbitration shall take place in the County of San Diego, State of
California. The arbitrator(s) shall be bound to follow the provisions
of this Agreement in resolving the dispute, and may not award any
damages which are excluded by this Agreement. The decision of the
arbitrator(s) shall be final and binding on the Parties, and any award
of the arbitrator(s) may be entered or enforced in any court of
competent jurisdiction. Any request for arbitration of a claim by
either Party against the other relating to this Agreement must be filed
no later than [*** Redacted] after the date on which this Agreement
expires or terminates, or such claim shall be time barred.
9. Notices. All notices, certificates, acknowledgments or other written
communications (hereinafter referred to as "Notices") required to be
given under this Agreement shall be in writing and shall be deemed to
have been given and properly delivered if duly mailed by certified or
registered mail to the other Party at its address as follows, or to
such other address as either Party may, by written notice, designate to
the other. Additionally, Notices sent by any other means (i.e.,
facsimile, overnight delivery, courier, and the like) are acceptable
subject to written confirmation of both the transmission and receipt of
the Notice.
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*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
▇▇▇▇▇ ▇▇▇▇ [*** Redacted]
President and CEO [*** Redacted]
Nanosys, Incorporated Science Applications
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ [*** Redacted]
Telephone (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇ Telephone [*** Redacted]
e-mail ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ Fax [*** Redacted]
e-mail [*** Redacted]
10. Assignment. This Agreement may not be assigned, novated or otherwise
transferred by operation of law or otherwise by either Party without
the prior written consent of the other Party, which consent shall not
be unreasonably withheld. Any change of control of a Party shall be
deemed an assignment of this Agreement that does not require the prior
written consent of the other Party. For purposes of this Agreement,
"change of control" means any merger, consolidation, sale of all or
substantially all of the assets or sale of a substantial block of
stock, of a Party. Any such assignment, novation or transfer by one
Party not in accordance with this provision shall be a material breach
of this Agreement and shall be grounds for immediate termination
thereof by the non-breaching Party, in addition to any other remedies
that may be available at law or in equity to the non-breaching Party.
11. Waiver or Modification. This Agreement may be modified, or part(s)
hereof waived, only by an instrument in writing specifically
referencing this Agreement and signed by an authorized representative
of the Party against whom enforcement of the purported modification or
waiver is sought.
12. Relationship of Parties. The Parties are acting as independent
contractors in all respects with regard to this Agreement. Nothing
contained in this Agreement shall be deemed or construed to create a
partnership, joint venture, agency, or otherwise as participants in a
joint or common undertaking. Nothing in this Agreement shall be deemed
to give either Party any power to direct or control any activities of
the other, including marketing activities, or any power to bind or
obligate the other. No employee of one Party shall be deemed an
employee of the other.
13. Publicity. Neither Party may issue a press release or make any
disclosure to any other person or entity regarding the existence of or
the subject matter of this Agreement without the prior written consent
of the other Party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, either Party may reasonably disclose the
terms of this Agreement to the extent necessary to comply with any laws
or government regulations, provided that the Party that is required to
disclose the Agreement gives the other Party notice of such required
disclosure and takes reasonable steps to minimize the extent of such
disclosure.
14. Applicable Law. This Agreement shall be governed by and construed under
the laws of the State of California, without regard to its laws
relating to conflict or choice of laws.
15. Entire Agreement. This Agreement, including any and all Exhibits
attached hereto, which are hereby incorporated by reference,
constitutes the entire agreement and understanding between the Parties
and supersedes and replaces any and all prior or contemporaneous
proposals, agreements, understandings, commitments or representations
of any kind, whether written or oral, relating to the subject matter
hereof.
16. Multiple Copies or Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the
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*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
same instrument. This Agreement shall not be effective until the
execution and delivery between each of the parties of at least one (1)
set of the counterparts.
17. Headings. The headings and titles of the various sections of this
Agreement are intended solely for convenience of reference and are not
intended to define, limit, explain, expand, modify or place any
construction on any of the provisions of this Agreement.
IN WITNESS WHEREOF, the Parties represent and warrant that this Agreement is
executed by duly authorized representatives of each Party as set forth on the
date indicated below.
SCIENCE APPLICATIONS
NANOSYS, INCORPORATED INTERNATIONAL CORPORATION
/s/ ▇▇▇▇▇ ▇▇▇▇ /s/ [*** Redacted]
________________________________ ________________________________________
▇▇▇▇▇ ▇▇▇▇ [*** Redacted]
________________________________ ________________________________________
Name Name
President and CEO [*** Redacted]
________________________________ ________________________________________
Title Title
9 July 03
________________________________ ________________________________________
Date Date
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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ATTACHMENT A
AREAS OF RESPONSIBILITY
1. SAIC is anticipated to perform activities in the area of systems
integration.
2. Nanosys is anticipated to perform activities in the areas of
nanotechnology and module development.
3. SAIC and Nanosys are anticipated to jointly perform activities in the
areas of prototype development and marketing support.
4. Nanosys agrees to make its facilities, equipment, materials, etc.,
available at no additional cost above Nanosys' fully burdened FTE rate,
as reasonably needed to support the joint prototype development and
marketing support activities.
5. SAIC agrees to make its procurement and contract preparation and
administration infrastructure, and its facilities, equipment materials,
etc., available at no additional cost above SAIC's fully burdened FTE
rate, as reasonably needed to support the joint prototype development
and marketing support activities.
6. The Advanced Systems Group will promote its relationship with Nanosys
within SAIC and act as a liaison to encourage and facilitate the
development of additional Marketing Exhibits among Nanosys and other
organizations within SAIC. Nanosys will reasonably support such
additional efforts.
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MARKETING EXHIBIT NO. 1
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EXHIBIT A
NON-DISCLOSURE AGREEMENT
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NOTE: Each Party has a hardcopy of the signed NDA.
SAIC STANDARD NON-DISCLOSURE (CONFIDENTIALITY) AGREEMENT (PAGE 1 OF 3)
NON-DISCLOSURE AGREEMENT
PROPRIETARY INFORMATION
This is an Agreement, effective 4 June 2003 between Science Applications
International Corporation, a Delaware Corporation (hereinafter referred to as
"SAIC") and Nanosys Inc., a Delaware Corporation (hereinafter referred to as
"Nanosys"). It is recognized that it may be necessary or desirable to exchange
information between SAIC and Nanosys regarding [*** Redacted] nanomaterials and
their applications for the purpose of using the information to discuss potential
marketing areas and for marketing the opportunities identified under the
SAIC/Nanosys Master Marketing Agreement. With respect to the information
exchanged between the parties subsequent to this date, the parties agree as
follows:
(1) "Proprietary Information" shall include, but not be limited to, performance,
sales, financial, contractual and special marketing information, ideas,
technical data and concepts originated by the disclosing party, not previously
published or otherwise disclosed to the general public, not previously available
without restriction to the receiving party or others, nor normally furnished to
others without compensation, and which the disclosing party desires to protect
against unrestricted disclosure or competitive use, and which is furnished
pursuant to this Non-Disclosure Agreement and appropriately identified as being
proprietary when furnished.
(2) In order for proprietary information disclosed by one party to the other to
be protected in accordance with this Non-Disclosure Agreement, it must be: (a)
in writing; (b) clearly identified as proprietary information at the time of its
disclosure by each page thereof being marked with an appropriate legend
indicating that the information is deemed proprietary by the disclosing party;
and (c) delivered by letter of transmittal to the individual designated in
Paragraph 3 below, or his designee. Where the proprietary information has not
been or cannot be reduced to written form at the time of disclosure and such
disclosure is made orally and with prior assertion of proprietary rights
therein, such orally disclosed proprietary information shall only be protected
in accordance with this Non-Disclosure Agreement provided that complete written
summaries of all proprietary aspects of any such oral disclosures shall have
been delivered to the individual identified in Paragraph 3 below, within 20
calendar days of said oral disclosures. Neither party shall identify information
as proprietary which is not in good faith believed to be confidential,
privileged, a trade secret, or otherwise entitled to such markings or
proprietary claims.
(3) In order for either party's proprietary information to be protected as
described herein, it must be submitted in written form as set forth in Paragraph
2 above to the individuals identified below:
SCIENCE APPLICATIONS NANOSYS INC.
INTERNATIONAL CORPORATION
Name: [*** Redacted] Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Ph.D.
Title: [*** Redacted] Title: Director of Business Development
Address [*** Redacted] Address: Corporate Headquarters
[*** Redacted] ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
[*** Redacted] ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No: [*** Redacted] Telephone No: ▇▇▇-▇▇▇-▇▇▇▇
FAX No: [*** Redacted] FAX No: ▇▇▇-▇▇▇-▇▇▇▇
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
Page 12 of 14
7/7/2003
SAIC STANDARD NON-DISCLOSURE (CONFIDENTIALITY) AGREEMENT (PAGE 2 OF 3)
(4) Each party covenants and agrees that it will, notwithstanding that this
Non-Disclosure Agreement may have terminated or expired, keep in confidence, and
prevent the disclosure to any person or persons outside its organization or to
any unauthorized person or persons, any and all information which is received
from the other under this Non-Disclosure Agreement and has been protected in
accordance with paragraphs 2 and 3 hereof; provided however, that a receiving
party shall not be liable for disclosure of any such information if the same:
A. Was in the public domain at the time it was disclosed, or
____________
B. Becomes part of the public domain without breach of this
Agreement, or
C. Is disclosed with the written approval of the other party, or
D. Is disclosed after three years from receipt of the
information, or
E. Was independently developed by the receiving party, or
F. Is or was disclosed by the disclosing party to a third party
without restriction, or
G. Is disclosed pursuant to the provisions of a court order.
As between the parties hereto, the provisions of this Paragraph 4 shall
supersede the provisions of any inconsistent legend that may be affixed to said
data by the disclosing party, and the inconsistent provisions of any such legend
shall be without any force or effect.
Any protected information provided by one party to the other shall be
used only in furtherance of the purposes described in this Agreement, and shall
be, upon request at any time, returned to the disclosing party. If either party
loses or makes unauthorized disclosure of the other party's protected
information, it shall notify such other party immediately and take all steps
reasonable and necessary to retrieve the lost or improperly disclosed
information.
(5) The standard of care for protecting Proprietary Information imposed on the
party receiving such information, will be that degree of care the receiving
party uses to prevent disclosure, publication or dissemination of its own
proprietary information.
(6) Neither party shall be liable for the inadvertent or accidental disclosure
of Proprietary Information if such disclosure occurs despite the exercise of the
same degree of care as such party normally takes to preserve its own such data
or information.
(7) In providing any information hereunder, each disclosing party makes no
representations, either express or implied, as to the information's adequacy,
sufficiency, or freedom from defect of any kind, including freedom from any
patent infringement that may result from the use of such information, nor shall
either party incur any liability or obligation whatsoever by reason of such
information, except as provided under Paragraph 4, hereof.
(8) Notwithstanding the termination or expiration of any Teaming Agreement
executed in conjunction with this Agreement, the obligations of the parties with
respect to proprietary information shall continue to be governed by this
Non-Disclosure Agreement.
Page 13 of 14
7/7/2003
SAIC STANDARD NON-DISCLOSURE (CONFIDENTIALITY) AGREEMENT (PAGE 3 OF 3)
(9) This Non-Disclosure Agreement contains the entire agreement relative to the
protection of information to be exchanged hereunder, and supersedes all prior or
contemporaneous oral or written understandings or agreements regarding this
issue. This Non-Disclosure Agreement shall not be modified or amended, except in
a written instrument executed by the parties.
(10) Nothing contained in this Non-Disclosure Agreement shall, by express grant,
implication, estoppel or otherwise, create in either party any right, title,
interest, or license in or to the inventions, patents, technical data, computer
software, or software documentation of the other party.
(11) Nothing contained in this Non-Disclosure Agreement shall grant to either
party the right to make commitments of any kind for or on behalf of any other
party without the prior written consent of that other party.
(12) The effective date of this Non-Disclosure Agreement shall be the date
stipulated at the beginning of this Agreement.
(13) This Non-Disclosure Agreement shall be governed and construed in accordance
with the laws of the State of California.
SCIENCE APPLICATIONS NANOSYS INC.
INTERNATIONAL CORPORATION
Signature: _____________________________
Name: Name:
[*** Redacted]
Title: [*** Redacted] Title:
Address: [*** Redacted] Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
[*** Redacted] ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No: [*** Redacted] Telephone No:
FAX No: [*** Redacted] FAX No.
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
Page 14 of 14
7/7/2003