exv10w2






Exhibit 10.2




CONFIDENTIAL TREATMENT REQUESTED




TEAMING AGREEMENT




between



IRVINE SENSORS CORPORATION



and



OPTICS 1, INC.



     THIS TEAMING AGREEMENT (the “Agreement”) is entered into this 10th day of March
2010, (the “Effective Date”) by and between Irvine Sensors Corporation, a corporation organized and
existing under the laws of the State of Delaware with offices located at 3001 Red Hill Avenue,
Bldg. 4/108, Costa Mesa, CA 92626 (hereinafter “ISC”), and Optics 1, Inc., Defense Systems
Division, a corporation organized and existing under the laws of the State of Delaware, with
offices located at, 1050 Holt Avenue, Suite 12, Manchester, NH 03109 (hereinafter “OPTICS 1”).



     ISC and OPTICS 1 may be individually referenced as “Party” and collectively referenced as
“Parties” below.



RECITALS




     WHEREAS, ISC and OPTICS 1 each have expertise in marketing, proposal, engineering and
technical matters in the field of clip-on thermal imaging technology (the “Technology”) as defined
herein, and,



     WHEREAS, ISC and OPTICS 1 desire to team to combine their individual capabilities with respect
to the pursuit of business opportunities relative to the Technology, and,



     WHEREAS, the Parties agree that the objective of the Agreement shall be to pursue
opportunities in the clip-on thermal imaging market irrespective of the customer or marketplace.



     NOW, THEREFORE, the Parties agree as follows:


1. DEFINITIONS




     For purposes of this Agreement, the following terms shall have the following definitions:



     Technology — “Technology” herein shall be defined as technology relating to the field of
clip-on thermal imaging, (COTI), [******************************].





 




			
	*	 	Confidential treatment requested
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934. In accordance
with Rule 24b-2, these confidential portions have been omitted from this
exhibit and filed separately with the Securities and Exchange Commission.




 









 










     Scope — “Scope” herein shall be defined as the design, development, marketing, sale,
manufacturing, testing, production, delivery and distribution of clip-on thermal imaging products
and related intellectual property, trade secrets, design and manufacturing data relative to same.



     Order — “Order” herein shall be defined to include any solicitation to quote for products or
tasks falling within the Scope of this Agreement.



     Intellectual Property — “Intellectual Property” herein shall be defined as intellectual
property reasonably relating or referring to the Technology, including without limitation, patents,
patent applications, whether filed or not, and improvements; inventions of any kind, whether
patentable or not, including inventions conceived or reduced to practice; copyrights; copyrighted
or copyrightable materials; ideas expressed in any tangible or electronic medium of expression;
trademarks; service marks; trade secrets; technical data; computer software; technical know-how, or
any other recognized form of intellectual property.



     Proprietary Data — “Proprietary Data” herein shall be defined with respect to the subject
matter of this Agreement all Intellectual Property (as defined herein) and technical development
work as well as all commercial data relating to the Parties and their customers, as well as to
agreements and understandings, bids, quotations, purchase orders, sales and the like made in the
context of this Agreement.


2. THE TEAM




     This Agreement creates a purely contractual teaming relationship in which ISC and OPTICS 1
(the “Team”) shall have cooperative roles in the performance of all efforts falling within the
Scope of the Agreement; such roles to be negotiated and agreed upon in good faith by the Parties.



     Under this Agreement, [**************] shall be referred to as the prime contractor
[***********] (“Prime Contractor”). The other Party shall be referred to as the subcontractor
(i.e., supplier) herein (“Supplier”) [************].


3. GENERAL TERMS




     The technology and COTI product [*******] shall be agreed between the Parties [**********].



     The Parties shall negotiate in good faith and agree upon all terms relating to
[******************]. Standard pricing shall be reviewed and established [****************].



     As a matter of principle, [***********] for any order falling within the Scope of and arising
out of this Agreement shall be [**********] between the Parties on an order-by-order basis. The
Prime





 




			
	*	 	Confidential treatment requested pursuant to
Rule 24b-2 under the Securities Exchange Act of 1934. In accordance with Rule
24b-2, these confidential portions have been omitted from this exhibit and
filed separately with the Securities and Exchange Commission.




 









 









Contractor shall be entitled to [************] for the marketing and logistics efforts
associated with its role as the Party responsible for marketing and sales of the COTI products
[******************].




     The Prime Contractor shall be the first point of contact for all returns of the products.
After that, each Party shall be responsible for its part of the COTI product. The Parties will
closely cooperate to streamline the procedure to be put in place for dealing with returns.



     Terms and conditions between the Parties [************] with respect to post-order efforts
(e.g., spares, replacements, parts, service) shall be negotiated in good faith and agreed upon
between the Parties. [********************************]



     [**********************************************]



     The Parties shall reasonably support each other during any efforts hereunder. The Prime
Contractor shall afford Supplier the opportunity to review the form and content of any proposal
prior to being submitted to ensure that all inputs are adequately considered. Further, the Prime
Contractor shall afford the Supplier the opportunity to review any purchase order received that
falls within the Scope of the Agreement prior to issuing an order confirmation.


4. DISCLAIMERS




     No rights or obligations other than those expressly recited herein are intended or are to be
implied from this Agreement. In particular, no license is hereby offered or granted, express or
implied, under any present or future patent, trademark, copyright, mask work or other form of
intellectual property right incorporating Proprietary Data disclosed hereunder other than as
expressly stated herein.


5. NO WARRANTY/LIMITATION ON DAMAGES




     A PARTY DISCLOSING DATA HEREUNDER MAKES NO WARRANTY, GUARANTEE OR REPRESENTATION, EXPRESS OR
IMPLIED, AS TO THE ADEQUACY, ACCURACY, SUFFICIENCY OR FREEDOM FROM DEFECT OR INFRINGEMENT OF ANY
THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS THAT MAY RESULT FROM THE USE THEREOF. IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANYTHING OTHER THAN DIRECT DAMAGES, AND NEITHER PARTY
SHALL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL (INCLUDING MULTIPLE OR
PUNITIVE) OR ANY OTHER INDIRECT DAMAGES (INCLUDING LOST PROFITS OR REVENUES) THAT ARE CLAIMED TO BE INCURRED BY THE
OTHER PARTY ARISING OUT OF THIS AGREEMENT





 




			
	*	 	Confidential treatment requested pursuant to
Rule 24b-2 under the Securities Exchange Act of 1934. In accordance with Rule
24b-2, these confidential portions have been omitted from this exhibit and
filed separately with the Securities and Exchange Commission.




 









 









WHETHER SUCH CLAIM ARISES UNDER CONTRACT, TORT (INCLUDING
STRICT LIABILITY), INDEMNITY OR OTHER THEORY OR LAW. NO LIMITATION OF LIABILITY UNDER THIS
AGREEMENT WILL BE APPLICABLE WITH RESPECT TO A CLAIM THAT IS THE RESULT OF A PARTY’S GROSS
NEGLIGENCE OR INTENTIONAL MISCONDUCT.




     The Parties shall mutually agree in good faith on the terms and conditions of the product
warranty to be provided to the customers of the COTI products, whereby each of the Parties shall be
responsible to the extent commercially reasonable and customary for the parts of the COTI product
that it has contributed. Each of the Parties shall keep the other Party harmless from any claim,
action, demand and the like from any third party with respect to the part of the COTI product that
it has contributed.


6. DESIGNATION OF AUTHORIZED RECIPIENTS




     The initial recipients for the receipt of notices or Proprietary Data hereunder are:


For OPTICS 1: [************]



For ISC:            [***********]



7. INVENTIONS AND PATENTS




     Intellectual Property. In the event Intellectual Property has previously been developed or is
subsequently developed by one Party (the “Developing Party”) that reasonably relates to the
Technology, such Intellectual Property shall be [*********************]. Further, in the event
Intellectual Property is jointly conceived or developed by the Parties during the performance of
this Agreement, such Intellectual Property shall be [*********************].



     Any inventions, invention disclosures, patent applications or patents arising out of this
Agreement and throughout the term thereof shall be identified and disclosed by the inventing Party
to the non-inventing Party on at least an annual basis. All Intellectual Property including,
without limitation, inventions, invention disclosures, patent applications or patents shall be
labeled, cataloged and archived with a commercially reasonable third party storage facility having
appropriate security measures and facilities for the storage of such information (e.g., Iron
Mountain, Inc.) and shall remain accessible at any time to either Party in the event that, without
limitation, the other Party entered proceedings for a discharge of its debts over its assets or a
claim for such proceedings has been filed, or generally fails to honor its obligations to pay or is
unable or otherwise prevented to honor its obligations to pay, or
declares itself insolvent, or introduces a procedure for the administration of its estate, or goes
into liquidation, or transfers and assigns all or substantially all of the its business, or gives
up its business.





 




			
	*	 	Confidential treatment requested pursuant to
Rule 24b-2 under the Securities Exchange Act of 1934. In accordance with Rule
24b-2, these confidential portions have been omitted from this exhibit and
filed separately with the Securities and Exchange Commission.




 









 










     The parties shall negotiate in good faith and agree prior to bringing any form of legal claim
or action regarding any potential infringement by a third party of jointly beneficially owned
intellectual property.


8. NON-PUBLICITY




     Except as may be required by relevant federal, state, or local laws and regulations or courts
of competent jurisdiction, or as required to meet credit and financing arrangements or as required
or appropriate in the reasonable judgment of any Party to satisfy the disclosure requirement of any
federal or state securities laws or regulations, no publicity or advertising shall be released by
either Party in connection with this Agreement or any proposal contemplated hereunder, absent prior
written agreement between the Parties. In the event of any contract award of the type contemplated
by this Agreement, neither Party shall make any release for publication in media intended for
public circulation, absent prior written agreement between the Parties.


9. NATURE OF THE RELATIONSHIP BETWEEN THE PARTIES




     Each Party shall act as and is an independent contractor and this Agreement shall not and does
not constitute, create, give effect to or otherwise recognize a joint venture, agency, employment,
pooling arrangement, partnership, or formal business contractor of any kind. No relationship,
other than the teaming arrangement created by and set forth in this Agreement, shall be intended or
established by any reference to the Parties operating as a “Team” or as “Team Members.” Nothing in
this Agreement shall grant to either Party the right to make commitments of any kind for or on
behalf of the other Party.


10. EXCLUSIVITY




     The Parties further agree that no Party shall, during the term of this Agreement, associate or
team with nor shall provide any Technology-related proposal support or services, nor provide any
Technology-related proprietary information or hardware to any third party for the purpose of
proposal submission or competing for contract awards relating to the Technology, except with the
prior written consent of the other Party or as may be required by the any government.


11. EXPORT CONTROL




     The Parties recognize their obligation to adhere to and shall take all necessary steps to
comply with the requirements of all relevant state and federal law, including, without limitation,
the Export Administration Act, the Arms Export Control Act, and the National Industrial Security
Program Operating Manual (NISPOM) with respect to any matter arising hereunder.


12. TERMINATION




     This Agreement and all rights and duties hereunder, except those relating to the handling of
Proprietary Data, shall terminate upon the occurrence of the earliest of any of the following:



     (1) By mutual agreement in writing of the Parties hereto; or,



 









 





     (2) the occurrence of any event that may reasonably be deemed to constitute or be construed as
a repudiation or default of a material obligation of a Party and a material breach of this
Agreement, or,



     (3) inactivity relative to contract or proposal efforts with respect to the Technology for a
period of at least two years.



     If there is an assertion of a material default by a Party in the performance of the other
Party’s duties, obligations or undertakings contained herein, the asserting Party shall have the
right to give written notice to the defaulting Party setting forth detailed facts constituting such
default and the intention of the non-defaulting Party to terminate this Agreement and, if the
default has not been remedied within ninety (90) days after receipt of notice of default, the
non-defaulting Party shall have the right to terminate this Agreement upon thirty (30) days’
written notice to the defaulting Party.


13. ASSIGNMENT




     No Party may assign or transfer to any third party any interest hereunder, in whole or in
part, without the prior written consent of the other Party; provided, however, that each Party
hereto shall have the right to assign this Agreement to any third party or entity which, by way of
merger, or consolidation, or the acquisition of a substantial portion of the business or assets of
the assigning Party relating to the subject matter of this Agreement, succeeds to the interests in
the Scope of this Agreement of the assigning Party. Either Party may transfer its rights and
obligations under this Agreement to the other Party in writing with mutually agreed terms and
conditions in a separate written agreement.



     Such consent shall not be unreasonably withheld, so long as such assignment does not
materially affect the nature and the scope of the rights and benefits due the non-assigning Party
under the terms of this Agreement. The assigning Party shall expressly require its assignee to
assume all of the assigning Party’s obligations and liabilities under this Agreement.


14. PRECEDENCE




     Any inconsistency between this Agreement and any subcontract between the Parties relative to
the Technology shall be resolved by giving precedence to the subcontract. Further the terms of the
Non-Disclosure Agreement between the Parties dated June 11, 2007 are fully incorporated herein by
reference, which terms shall survive the expiration or termination of this Agreement.


15. DISPUTES




     All disputes which arise under or are related to this Agreement, or the performance or breach
thereof, shall be referred by each Party to [**************] If not resolved by them within thirty
(30)





 




			
	*	 	Confidential treatment requested pursuant to
Rule 24b-2 under the Securities Exchange Act of 1934. In accordance with Rule
24b-2, these confidential portions have been omitted from this exhibit and
filed separately with the Securities and Exchange Commission.




 









 









days, the Parties agree to enter into mediation of the unresolved dispute. If the Parties are
unable to resolve the dispute through mediation, either of the Parties may elect to seek relief in
a court of competent jurisdiction. This Agreement and the interpretation thereof shall be governed
by the laws of the State of Delaware, excluding its conflict of law rules.



16. ENTIRE AGREEMENT, MODIFICATION, WAIVER, CONSTRUCTION




     This Agreement is negotiated and shall be deemed to have been drafted jointly by all of the
Parties, and no rule of construction or interpretation shall apply against any Party based on a
contention that the Agreement was drafted by one of the Parties.



     This Agreement may not be supplemented, amended, modified or rescinded, except by written
Agreement signed by the Parties.



     This Agreement constitute the final, complete, and exclusive statement of the terms of the
agreement between the Parties pertaining to the subject matter of this Agreement and supersedes all
prior and contemporaneous understandings or agreements of the Parties with respect to the subject
matter thereof. No party has been induced to enter into this Agreement by, nor is any Party
relying on, any representation or warranty outside those expressly set forth in this Agreement.



     No delay or omission on the part of any Party in exercising any right under this Agreement
shall constitute a waiver of that right or any other right. If any term, provision, covenant, or
condition of this Agreement is held by a court of competent jurisdiction to be invalid or
unenforceable, the rest of the Agreement shall remain in force and effect and shall in no way be
affected or invalidated.



     IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as
of the day and year above provided.



	 	 	 	 	 	 	 

	IRVINE SENSORS CORP.	 	OPTICS 1, INC.
	 
	 	 	 	 	 	 
	By:

	 	/s/ John C. Carson
	 	By:
	 	/s/ Dane Hileman
	 

	 	 
	 	 	 	 
	 

	 	Name: John Carson
	 	 	 	Name: Dane Hileman
	 

	 	Title: President & CEO
	 	 	 	Title: President & CEO
	 

	 	Date: March 10, 2010
	 	 	 	Date: March 10, 2010