COLLABORATIVE AGREEMENT
PARTIES
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The parties to this Agreement are the Arizona Board of Regents, for and
on behalf of The University of Arizona (Lunar and Planetary Laboratory)
(hereinafter "University") and SpaceDev, Inc., a Colorado corporation, having
its principal place of business in Poway, California (hereinafter "SpaceDev").
RECITALS
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The University and SpaceDev have been engaged in discussions concerning
a collaborative agreement for the sale of scientific data which will be obtained
from camera created and owned by the University and to be carried into space
aboard SpaceDev's spacecraft. SpaceDev is a commercial space exploration company
currently projecting to launch a spacecraft under the SpaceDev Near Earth
Asteroid Prospector (NEAP) program. It is anticipated the scientific camera
developed and owned by the University will be carried aboard SpaceDev's NEAP
spacecraft to be placed in space for the purpose of gathering and relaying to
earth the scientific data which would be the product to be sold.
The parties have heretofore proceeded under a Nonbinding Letter of
Intent. They now wish to enter into a binding collaborative agreement which sets
forth the pre-mission agreements and responsibilities of the respective parties
and formalizes their respective agreements.
UNIVERSITY INSTRUMENT
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The University will furnish to SpaceDev in time for mission planning
and integration with the launch vehicle one (1) multi-band charged coupled
device (CCD) camera. The University will retain ownership of the camera, and in
the event SpaceDev fails to launch the
spacecraft before December 31, 2002, the camera will be returned to the
University in as good a condition as when first delivered to SpaceDev, and this
Agreement will be terminated along with any obligations between the parties
arising from this Agreement. In any event, the University shall retain all
information that pertains to the design, construction, testing, calibration and
operation of the camera.
INSURANCE AND LOSS OF CAMERA
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The University will deliver the camera to SpaceDev, F.O.B. the
University loading dock, Tucson, Arizona. At all times the camera is in the
possession of SpaceDev, including during the launch and space flight of such
camera, it shall be insured by SpaceDev using insurers satisfactory to the
University against loss or damage in an amount adequate to guarantee replacement
cost. If the camera is damaged, destroyed or otherwise lost while in SpaceDev's
custody or control, including in connection with the actual launch and space
flight or at any time after the camera is integrated into SpaceDev's spacecraft,
the proceeds of such insurance shall be payable to the University. The
University agrees to apply the insurance proceeds to recreate or rebuild the
camera using then-current technology. The University agrees to use its best
efforts to rebuild or replace the lost camera, but the parties understand that
such replacement will be on a schedule consistent with other University
commitments. When and if the camera is replaced, the University will make the
new camera available to SpaceDev under terms and conditions similar to this
Agreement.
SALE OF DATA
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If the camera is successfully placed in space and transmits data which
is acceptable for resale, SpaceDev shall have the exclusive right to resell the
data to clients of SpaceDev.
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SpaceDev will pay to the University a royalty equal to eight percent (8%) of the
gross receipts received by SpaceDev from the sale of data, including sales to
the University. Gross receipts shall be defined for purposes of this Agreement
as the total amount of money paid to SpaceDev in exchange for use or access
(however described) to the data from the camera described herein. Should
SpaceDev be unable or unwilling to sell the data within three (3) years from the
date it is received, then the University shall have the non-exclusive right to
use or sell the data. If the University is able to sell the data in a bona fide
arm's-length transaction, SpaceDev shall be entitled to a royalty of eight
percent (8%) of the gross proceeds (as herein defined) received by the
University from the sale. Should the University desire data from the camera, the
University will purchase the data from SpaceDev for $15 million per dataset (in
real year dollars). A dataset is defined as all data acquired by an instrument
from the beginning of the flight until the instrument ceases to function.
SpaceDev will provide a Certified Public Accountant (CPA) audited
accounting to the University within three (3) months of the University's
request. The University agrees to accept the CPA's audited financial statements
of SpaceDev in lieu of a segregated audit if such audited financial statements
provide the information which would he presented if such a segregated audit were
conducted pursuant to this section.
CAMERA OPERATIONS
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If the camera provided by the University is successfully launched, it
shall be operated by the University or under the direct supervision and control
of the University. The University shall have full rights to participate in the
mission operations phase of the project and will have access to the returned
data for the purposes of internal evaluation of the performance of the camera
and planning the observing sequences. Any other use of the data including
scientific analysis of the
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data leading to publication in scientific, journals shall not be performed
without purchase of the data. The University shall also have the right to plan
the data-taking sequences within the limitations placed by the mission profile
to maximize the scientific and commercial value of the datasets.
The University shall seek NASA funding for the cost for the operations
phase of the camera. In the event that NASA fails to fund the cost of operations
for the camera by purchase of the data or otherwise, and SpaceDev chooses to fly
the camera anyway, SpaceDev will provide the operations cost to the University
as incurred.
OTHER NASA FUNDING
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The University anticipates submitting Mission of Opportunity proposals
to NASA under NASA's Discovery Program, or other funding programs, which may
necessarily include funding for the acquisition of data transmitted by the
camera. In the event such proposals are funded, the granting of such funding
shall not relieve SpaceDev from its responsibility for the payment of the
royalty as agreed above. Any such proposals will be submitted beginning with
NASA's FY2000 funding cycle.
TERM AND TERMINATION
--------------------
This Agreement shall terminate: (1) by expiration in the event the
spacecraft launch planned by SpaceDev fails to occur by December 31, 2002; or
(2) due to cancellation of NASA's launch programs or other financial or
operational situations that are either outside the parties' control or
technically impossible, impractical or prevented by a third party or condition.
SpaceDev agrees to return the camera to the University in the event of
termination of its NEAP program before launch, or the above failure to launch
than by December 31, 2002, whichever is sooner.
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The University shall not be obligated to continue developing or
building the camera if SpaceDev fails to make reasonable or adequate progress in
the NEAP program or in developing and building the launch craft or space craft
or in obtaining necessary funding for the NEAP program, including the launch
itself. If the University discontinues its efforts for this reason, it shall
notify SpaceDev in writing of the discontinuation.
If the camera is successfully launched, then this Agreement shall
continue for three (3) years from the date of its execution. At the end of three
(3) years, neither party shall have any further duty or obligation to the other,
except that any duty or obligation that arose during the term of this Agreement
and remains unfulfilled shall survive and remain a duty or obligation or the
party upon whom it devolved. All the expiration of the term, any data received
or recovered from the operation of the camera shall belong jointly to the
parties without restriction or obligation, and each party agrees to provide the
other with any data or information such that each party has a full set.
This Agreement may be canceled for Conflict of Interest pursuant to
A.R.S.ss.38-511.
GENERAL TERMS
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Both parties acknowledge that no finder or other fee or introduction
fee has been paid or will be paid by either party to this Agreement, and both
parties warrant that they have not used a broker or other agent in connection
with this transaction. Both parties understand and agree that certain
information will be exchanged which may be proprietary in nature, and both
parties agree to execute the necessary confidentiality or non-disclosure
agreements as may be necessary in order to protect the proprietary nature of
that information.
The parties will bear their own costs and expenses in connection with
this Agreement and the transactions contemplated hereby including, but not
limited to, the cost of their respective
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legal counsel and neither party will have any obligation with respect to the
costs and expenses incurred by the other in connection herewith. Both parties
have had the opportunity to consult with counsel and participated in the
drafting of this Agreement. Therefore, this Agreement shall he construed fairly
and equitably between the parties and not more strongly for or against either of
them.
If either of the parties hereto files for protection under the United
States Bankruptcy Code or under any state law or act providing for a composition
of creditors or a reorganization of any type, the data and camera which are the
subject matter of this Agreement shall not be considered an asset in bankruptcy
but shall be and become the property of the party not filing for relief under
the bankruptcy act or other reorganization, subject to the right to receive any
proceeds to which the bankrupt or reorganizing party would otherwise be entitled
under this Agreement.
The parties agree to be bound by applicable state and federal rules
governing Equal Employment Opportunity and Non-discrimination.
The parties agree that any dispute arising under this Agreement
involving the sum of $30,000 or less in money damages only shall be resolved by
arbitration pursuant to the Arizona Uniform Rules of Procedures for Arbitration.
The decision of the arbitrator(s) shall be final.
The parties recognize that the performance by the Arizona Board of
Regents for and on behalf of The University of Arizona may be dependent upon the
appropriation of funds by the State Legislature of Arizona. Should the
Legislature fail to appropriate the necessary funds, or if the University's
appropriation is reduced during the fiscal year, the Board of Regents may reduce
the scope of the Agreement if appropriate or cancel the agreement without
further duty or obligation. The Board agrees to notify the other party(ies) as
soon as reasonably possible after the unavailability of said funds comes to the
Boards attention.
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DATED this 15 day of February, 2000.
SpaceDev, Inc. ARIZONA BOARD OF REGENTS
for and on behalf of The University of Arizona
By /s/ Xxxxx Xxxxxx By /s/ Xxxxxxx X. Xxxxxx
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Xxxxx Xxxxxx Xxxxxxx X. Xxxxxx
President Vice President for Research
APPROVED AND AGREED TO:
Lunar and Planetary Laboratory
By /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Director
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