STRATEGIC COLLABORATION AGREEMENT
THIS AGREEMENT is entered into this 5th day of August 1999, by and between
DaimlerChrysler Aerospace AG ("DASA"), a German corporation, acting through its
Space Infrastructure Division, with offices located at Xxxxxxxxxxxxxxx 0-0, XX
Xxx 000000, X-00000 Xxxxxx, Xxxxxxx ("DASA-RI"); and Spacehab, Inc., a
Washington State corporation with offices located at Xxxxx 000, 000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000, X.X.X. ("Spacehab") (DASA and Spacehab are
hereafter collectively referred to as the "parties").
W I T N E S S E T H:
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WHEREAS, Spacehab develops, owns and operates pressurized and unpressurized
modules and other equipment for use in transportation, research and logistical
support on board the United States National Aeronautics and Space Administration
("NASA") Space Shuttle; and
WHEREAS, DASA has been a shareholder in Spacehab since 1995; and
WHEREAS, pursuant to a Collaboration Agreement effective July 24, 1995 (the
"1995 Collaboration Agreement"), the parties have cooperated in the joint
pursuit of technological innovations and new business opportunities in the
environment of space; and
WHEREAS, DASA has, as of August 2, 1999, entered into a Preferred Stock
Purchase Agreement with Spacehab to increase its equity participation in
Spacehab to approximately Eleven and One-Half Percent (11.50%) through the
acquisition of shares in a new class of preferred stock (the "Spacehab Stock")
with the view to becoming Spacehab's leading strategic investor (the
"Subscription Agreement"); and
WHEREAS, the parties have agreed to update and expand the scope of their
Collaboration Agreement to reflect their current objectives in cooperating with
one another on technical and financial grounds;
WHEREAS, the parties envisage also cooperating beyond the scope defined in
this Collaboration Agreement and will be free to propose additional business
opportunities for one another's consideration;
NOW, THEREFORE, in consideration for the mutual covenants and undertakings
herein contained, the parties have agreed as follows:
1. Exclusive Common Business Segments.
1.1 The parties agree, during the term hereof, to collaborate technically
and financially in the following areas of mutual technological interest (the
"Exclusive Common Business Segments"):
(a) Human space flight support and research services in the
unpressurized domain, including the development and procurement of required
flight and ground hardware, software and related payloads; and
(b) Acquisition, preparation and performance of sounding rocket
missions excluding, however, DASA-RI's ongoing TEXUS and MAXUS programs,
and
(c)Inflatable structures excluding, however, the Inflatable Reentry
and Descent Technology and its applications.
Schedule 1.1 attached hereto and hereby incorporated into and made a part of
this Agreement sets forth the parties' agreed areas of collaboration within the
Exclusive Common Business Segments as of the execution of this Agreement. It is
understood that, except as set forth in sections 1.5, 1.6 and 2.4.2 below, the
parties' engagement in new lines of business and activities falling within the
Exclusive Common Business Segments beyond those addressed in Schedule 1.1 will
hereafter be decided by the parties' Joint Management Committee pursuant to
article 2 of this Agreement. The parties intend to invest jointly in the
procurement of flight hardware and software as a prerequisite for offering to
NASA and other customers a commercial service based on these assets and will
also pursue other upcoming business opportunities in the Exclusive Common
Business Segments.
1.2 Within the framework of this cooperation, DASA will receive and
Spacehab will place with DASA-RI contracts (preferably development contracts)
with a value of at least $12 million (U.S.) by December 31, 2000 ("DASA-RI
Minimum Contract Award").
1.3 Based on their joint market assessment the parties agree that, during
calendar year 2001 at least $13 million (U.S.) and in calendar year 2002 and
beyond an average of $26 million in annual revenues (but in no event less than
an aggregate of $65 million by the end of 2003) will be generated for DASA-RI
through the parties' collaboration on the projects listed in Schedule 1.1 in
sales to NASA and other customers. These revenues will be generated from (1)
customer contracts for integration and operation services and (2) contracts for
the leasing of hardware procured through the parties' joint investments, if any
("DASA-RI
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Minimum Revenue"). These amounts are understood to be in addition to and not to
include the value of the Minimum Contract Award defined in section 1.2 above.
The average annual and aggregate revenues generated referred to in the first
sentence of this Section 1.3 are subject to unforeseen events beyond the control
of Spacehab which prevent Spacehab from generating such revenues despite
Spacehab's reasonable best efforts to do so. Spacehab will take reasonable best
efforts to minimize the effects of any unforeseen events.
1.4 Spacehab agrees that, except as permitted under section 2.4.2 below,
during the term of this Agreement, it will not enter into agreements with any
third parties for engagement in work or cooperation falling within the Exclusive
Common Business Segments.
1.5 The parties hereby agree that any program already in development by
either party shall be exempted from the terms of this Agreement.
1.6 DASA-RI shall be free to pursue new business opportunities falling
within the Exclusive Common Business Segments (except for projects in the United
States in competition with business opportunities pursued by Spacehab), whether
in Europe or elsewhere, without the participation of Spacehab.
1.7 The parties may agree to collaborate jointly with third parties in any
activities which they jointly undertake within the Exclusive Common Business
Segments.
2. Joint Management Committee.
2.1 The parties' collaboration in the Exclusive Common Business Segments
shall be conducted under the direction and oversight of a Joint Management
Committee (the "Committee").
2.2 The Committee shall be comprised of an equal number of representatives
designated by Spacehab and DASA-RI. They shall choose their own chairman and
adopt procedural rules of governance.
2.3 The Committee shall meet at least four times a year and shall operate
by consensus. Meetings may be held by telephone or other electronic means by
which all members present may hear and be heard by one another.
2.4 The Committee shall be responsible for overseeing the parties'
implementation of the schedule of agreed lines of business and activities set
forth in Schedule 1.1 hereto. To this end the Committee will periodically review
all active joint projects. Spacehab will and DASA-RI, at its sole election, may
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present to the Committee during the term hereof additional or new commercial
opportunities not reflected or addressed in Schedule 1.1 but falling within the
Exclusive Common Business Segments. Such presentation will include a preliminary
business plan indicating the key business parameters of the opportunity. Upon
receipt of such a plan the Committee will do one of the following at its next
meeting
(a) Agree that the candidate project shall be considered further, or
(b) Agree that the candidate project should not be pursued as a joint
project, in which case the proposing party shall be free to
pursue the opportunity independently, or
(c) Fail to agree on either (a) or (b), in which case section 2.4.2
below shall apply.
2.4.1 In the case a decision is taken under paragraph (a) above, a project
manager from each party shall be assigned to draft a business plan and a project
plan to include proposed investments by the parties, if any, as well as the
development and operations structures for implementation of the opportunity. The
Committee shall review the completed business and project plan and either
approve the project for implementation or decide that the project should not be
pursued as a joint project. The Committee may approve complete implementation,
or require the project manager to return for incremental authorization at
specific milestones in the project plan.
2.4.2 If the parties elect by consensus not to collaborate on any
commercial opportunity within the Exclusive Common Business Segments, the
proposing party shall be free to pursue such commercial opportunity
independently from the other party, including, should it so elect, jointly with
one or more third parties. If the parties, following repeated good faith
efforts, fail to reach consensus on how to respond to any commercial opportunity
within the Exclusive Common Business Segments presented to the Committee, the
Committee shall refer the issue for resolution by the Chairman of Spacehab and
the President of DASA-RI, who shall meet and confer on the subject in good
faith. If, following such effort to resolve a bona fide deadlock between the
parties, the parties are still unable to reach consensus on how to respond to
the commercial opportunity within the Exclusive Common Business Segments, then
either party shall be free to engage in the business opportunity in question.
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2.4.3 If the parties fail to reach consensus following the procedure
defined in section 2.4.2 above, and one party elects to pursue the business
opportunity on its own (the "Electing Party"), then the other party will have a
right of first refusal to match bona fide proposals by third parties for
subcontract work in pursuit of such opportunity for the Electing Party. Spacehab
expressly agrees in such instance, however, not to compete with a then existing
business opportunity of DASA-RI in Europe.
2.5 As part of its consideration of any commercial opportunity for the
parties falling within the Exclusive Common Business Segments (other than in
cases where one party is acting in the capacity of a contractor to the other
party pursuant to Section 2.4.3), the Committee shall determine the parties'
respective ownership of intellectual property interests (including rights to
seek patent protection) in any technology which will be jointly developed as a
result of the parties' engagement in the commercial opportunity.
2.6 In their consideration of new commercial opportunities within the
Exclusive Common Business Segments, the parties, acting through their appointed
members on the Committee, shall work in good faith to reach consensus. Neither
party shall be entitled to abstain from good faith consideration of any
opportunity brought before the Committee or deliberately to block or hinder the
achievement of consensus on any such issue.
2.7 The Spacehab Executive Committee and/or Board of Directors and the
DASA-RI Board of Management shall have final authority on behalf of the
respective party hereto to accept or reject any major determination by the Joint
Management Committee, including any financial commitments required from the
parties hereto, but they shall have no authority to alter or amend any such
determination.
3. Executive Exchange Program. Both parties agree to exchange executive
level representatives of their companies for a period of up to three months each
with the goal to achieve a better understanding of each other's structures and
processes and thereby to optimize the efficiency of the collaboration.
4. Term.
4.1 The term of this Agreement shall commence concurrently with the initial
closing of the Subscription Agreement and shall remain in effect until the
earliest of the following:
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(a) Following the expiration of four (4) years from the effective date of
this Agreement, upon sixty (60) days prior written notice of termination by
either party (the "Notifying Party") to the other (the "Notified Party");
(b) In the event that the DASA-RI Minimum Revenue is not met in 2001 or in
2002, upon thirty (30) days prior written notice of termination by DASA-RI to
Spacehab; or
(c) In the event that the DASA-RI Minimum Contract Award is not met by
December 31, 2000, upon thirty (30) days prior written notice of termination by
DASA-RI to Spacehab;
(d) Immediately upon written notice of termination by the Notifying Party
in the event the Notified Party breaches any material undertaking hereunder or
in the Subscription Agreement and fails to cure such breach within fifteen (15)
days of receiving notice of default from the Notifying Party.
4.2 In the event of termination of this Agreement pursuant to paragraph (a)
above, the parties will promptly enter into good faith negotiations to reach a
mutual agreement on the discontinuation of joint projects and they will ensure
that ongoing contractual obligations toward third parties are professionally
fulfilled or wound up.
5. Notices. Any notices provided under this Agreement shall be given in
writing by facsimile, confirmed by registered mail postage prepaid, and shall be
addressed as follows:
If to DASA-RI: DaimlerChrysler Aerospace AG
Space Infrastructure
1-5 Huenefeldstrasse
D-28199 Bremen
Germany
Attention: Xx. Xxxxxx Xxxxx
Fax No.: 000-00-000-000-0000
If to Spacehab: Spacehab, Incorporated
000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: President
Fax No.: (000) 000-0000
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Notices provided in accordance with the terms hereof shall be deemed received
upon receipt of the facsimile copy. Any changes to the foregoing addresses
during the term hereof shall be promptly notified to the other party in
accordance with the terms of this provision.
6. Dispute Resolution. All disputes arising out of the interpretation or
enforcement of this Agreement and not settled previously in an amicable manner
shall be finally settled under the rules of conciliation and arbitration of the
International Chamber of Commerce by a panel of three arbitrators appointed in
accordance with said rules. The arbitration proceeding shall take place in
London, England, or at such other location as the parties may mutually agree,
and shall be conducted in the English language. The arbitration award shall be
final and binding on the parties. Judgment upon the award may be entered in any
court of appropriate jurisdiction upon application by a party hereto.
7. Miscellaneous Provisions.
7.1 Governing Law. This Agreement, and any disputes arising under it, shall
be governed by the laws of the State of New York without reference to the
conflict of laws provisions thereof.
7.2 Assignment. Neither party hereto may assign any of its rights or
delegate or otherwise transfer any of its duties under this Agreement without
the prior written consent of the other party. This provision shall not apply in
the event of any reorganization of either party or merger or acquisition of a
party with or by a third party where the reorganized, merged or successor party
is qualified to perform the terms of this Agreement.
7.3 Waiver. The waiver of any right hereunder shall not be deemed to
constitute a waiver of such right on any future occasion.
7.4 Entire Agreement. This Agreement constitutes the full understanding of
the parties regarding the subject matter hereof and supersedes all previous
representations, communications and understandings of the parties, whether
written or oral, including, but not limited to, the 1995 Collaboration
Agreement, provided, however, that the Subscription Agreement, and the
Non-Disclosure Agreement executed by the parties on March 30, 1999, shall
survive in full force and effect in accordance with their terms.
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IN WITNESS WHEREOF, the parties hereto have affixed their signatures and
seals below the first date indicated above, intending to be bound thereby.
DAIMLERCHRYSLER AEROSPACE SPACEHAB, INC.
AG
By: By:
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Title: Title:
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Schedule 1.1
AGREED AREAS OF COLLABORATION WITHIN
EXCLUSIVE COMMON BUSINESS SEGMENTS
AS OF THE EXECUTION OF THIS AGREEMENT
It is agreed that Spacehab shall, by December 31, 2000, award contracts to
DASA-RI for work within the following areas of collaboration valued in the
aggregate at no less than $12 million (U.S.):
1. Consolidated Resupply/ISS Logistics
2. ISS Services
(a) Commercial Station Reboost and Resupply Service
(b) Carrier Hardware Interface Adapters
3. External ISS Research Facilities
(a) Quick External Science Tray
(b) Commercial Attached Payload Service
(c) EXPRESS/TEF
4. Experiment Integration Services/ISS Research Services
5. ISS Research Facilities
(a) Space-DRUMS (TM)
(b) TEMPUS
6. X-37 Cradle
7. Spacehab Universal Communication System (provided DASA co-invests in
the system), excepting developments and projects on said system already
in process in accordance with Section 1.5 of the Agreement.
