1
EXHIBIT 10.6
Note: Confidential treatment has been requested pursuant to Rule 406 under the
Securities Act of 1933, as amended. Certain portions of this exhibit have been
omitted. The omitted portions of this exhibit have been separately filed with
the Securities and Exchange Commission.
AMENDED AND RESTATED DISTRIBUTOR LICENSE AGREEMENT
BETWEEN
ORBITAL IMAGING CORPORATION
AND
SAMSUNG AEROSPACE INDUSTRIES, LTD.
This Restated Distributor License Agreement (the "Agreement")
is made and entered into this _______ day of November, 1996, between Orbital
Imaging Corporation ("ORBIMAGE"), whose principal place of business is 00000
Xxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx, 00000, XXX, and Samsung Aerospace
Industries, Ltd.. (the "Licensee"), whose principal place of business is 000,
0-xx Xxxxxxxxxx, Xxxxx-xx, Xxxxx, Xxxxx. This Agreement amends and restates the
Distributor License Agreement between ORBIMAGE and the Licensee dated December
1, 1995 (the "Original Agreement").
WHEREAS, ORBIMAGE intends to construct and operate a
satellite-based, low-Earth orbit, high-resolution remote sensing system;
WHEREAS, ORBIMAGE intends to market satellite-based,
high-resolution imagery services using the OrbView-3 System in the United States
through ORBIMAGE and elsewhere in the world through distributors subject to
distributor license agreements; and
WHEREAS, ORBIMAGE and Licensee wish to amend and restate the
Original Agreement in its entirety and enter into this Agreement setting forth
their respective obligations and understanding relating to the delivery and
distribution of high-resolution imagery products using the OrbView-3 System (as
defined below).
NOW, THEREFORE, the parties agree as follows:
1. EFFECTIVE DATE OF AGREEMENT
This Agreement shall be effective as of December 1, 1995.
2. DEFINITIONS:
a. AUTHORIZED CUSTOMER: Throughout the term of this Agreement, any
person other than (i) an entity listed on the U.S. State Department List of
terrorist countries or a citizen thereof or (ii) any other person who under U.S.
laws or regulations is prohibited from receiving OrbView-3 System imagery.
b. ORBVIEW-3 SYSTEM: The space-based system consisting of the satellite
bus, one- and two-meter panchromatic camera, four-meter multispectral camera and
an associated ground segment consisting of the command and control station, the
ground image receive station and the image processing center.
c. LICENSEE GROUND FACILITY: The ground image receive station and image
processing center located in the Territory.
d. OPERATIONAL CAPABILITY DATE: The date when the OrbView-3 System is
placed into operation following the successful launch and completion of on-orbit
checkout of that satellite, including all of its subsystems and payloads.
0
x. XXXXXXXXX: Xxxxx xxx Xxxxx Xxxxx, to include the 200 nautical mile
fishery conservation zone of North and South Korea.
f. ORBIMAGE SYSTEM SOFTWARE: Proprietary ORBIMAGE software that shall
be developed and provided by ORBIMAGE in order to permit Licensee to generate
from the OrbView-3 System satellite raw imagery and high resolution imagery of
the Territory.
g. TARGET LAUNCH DATE. October 31, 1998.
3. GRANT OF LICENSE
a. Subject to receipt of U.S. Department of Commerce and all other
applicable U.S. agency approvals of this Agreement, ORBIMAGE grants to Licensee
an exclusive license in the Territory (the "License") to: (a) receive, process
and sell imagery of the Territory using the OrbView-3 System satellite while it
is within view of the Licensee's ground receive station, (b) use the ORBIMAGE
system methods, (c) use, if permitted by law, the ORBIMAGE logos, trademarks,
service marks and name, in accordance with the terms and conditions set forth in
this Agreement, and (d) install and use the ORBIMAGE System Software. ORBIMAGE
also hereby grants the Licensee priority use of the OrbView-3 System while the
satellites are within effective imaging range during their orbit over the
Territory.
b. ORBIMAGE will command, control and task the OrbView-3 System,
including all of its subsystems, from its ground facilities located in the
United States.
c. The Licensee acknowledges that it must abide by the terms and
conditions of the operating license granted to ORBIMAGE by the U.S. Department
of Commerce as contained in Attachment A. Licensee hereby acknowledges that it
has read, understands and will comply with the contents of Attachment A,
including any subsequent modifications imposed by the Department of Commerce.
The Licensee further acknowledges that it will not knowingly directly or
indirectly sell or provide any OrbView-3 System imagery to any person other than
an Authorized Customer. Violation of any of the terms of this paragraph will be
sufficient cause for, at ORBIMAGE's sole option, immediate cancellation or
termination of this Agreement, including the License granted hereunder.
d. Except as otherwise provided in Section 3(g), the Licensee may not
transfer the License to other users or operators without the prior written
consent of ORBIMAGE.
e. The Licensee acknowledges its responsibility to ensure that all
receivers of OrbView-3 System imagery are notified and agree that they may not
redistribute, sell or provide any OrbView-3 System imagery in any form to any
other entity without the prior written consent of ORBIMAGE. Licensee shall
strictly enforce such prohibitions against any and all receivers of OrbView-3
System imagery.
f. Licensee has provided ORBIMAGE with a deposit of U.S.$ 250,000 to be
applied against payment due for the Licensee Ground Facility, or if the Licensee
does not award a Ground Facility contract to ORBIMAGE or XxxXxxxxx, Xxxxxxxxx
and Associates Ltd., against the first year payment of U.S. $ [Confidential
Treatment Requested] as provided in Section 5(c).
g. Licensee shall have the right to novate this agreement to an entity
to be incorporated under the laws of the Republic of Korea in which an entity
controlled by the Korean Government and/or
2
3
the Licensee will own more than fifty percent (50%) of the shares and the other
shareholders, if any, will be persons of the Korean nationality; and provided
further that Licensee fully guarantees the performance under this Agreement of
such entity to which this Agreement is novated.
4. SCOPE OF AGREEMENT
a. Responsibilities and Rights of Licensee. Licensee shall:
(i) Promptly obtain and at all times maintain, at its sole
expense, all governmental approvals, licenses, authorizations and permits (the
"Permits") necessary (A) to develop, construct, implement and operate the
OrbView-3 System in the Territory, including any necessary in-country
environmental impact studies, (B) to provide OrbView-3 System services in the
Territory, and (C) to use the Licensee Ground Facility to receive
high-resolution (1-2 meter panchromatic and 4 meter multi-spectral) imagery
during the term of this Agreement;
(ii) Use all commercially reasonable efforts to advertise,
promote and market the OrbView-3 System and its capabilities, products and
services to Authorized Customers. Except as otherwise provided for in this
Agreement, Licensee is responsible for actively promoting OrbView-3 System
imagery products to all Authorized Customers within the Territory and for
selling OrbView-3 System imagery products of the Territory to all Authorized
Customers located in all parts of the world;
(iii) Operate the Licensee system in a manner so as not to
injure the reputation of ORBIMAGE or otherwise adversely impact the operations
or commercial viability of the OrbView-3 System in other territories;
(iv) With the prior written approval of ORBIMAGE and to the
extent permitted by applicable law, use the OrbView logos and all OrbView
trademarks and service marks in Licensee's marketing and advertising for the
Licensee system. Such use will conform to ORBIMAGE requirements for display and
use of the OrbView logos, trademarks and service marks; and obtain all
governmental approvals, licenses, authorizations and permits necessary to use
such logos, trademarks and service marks and, to the extent not previously done
so by ORBIMAGE, to register such logos, trademarks and service marks in
OrbView's name for use by Licensee in the Territory. Any modification or partial
use of the word "OrbView" for a logo, trademark, service xxxx or trade name
shall also require the prior written approval of ORBIMAGE;
(v) Pay to ORBIMAGE the fees, costs and other payments set
forth in this Agreement;
(vi) Give ORBIMAGE and its representatives reasonable access
during normal business hours to Licensee's books, accounts, records, contracts
and documents concerning the Licensee system and use of the logos, trademarks
and service marks for, among other reasons, the purpose of determining
compliance by Licensee with the terms of this Agreement;
(vii) Use the ORBIMAGE System Software only to operate the
Licensee system, and shall not copy or disclose, sell, distribute or re-license
such software to any other person or entity or reverse engineer or compile or
disassemble such software; Licensee may request an extension for the use of the
ORBIMAGE System Software beyond the expiration date of this Agreement provided
both parties mutually agree to the terms and conditions of such an extension;
3
4
(viii) Establish an accounting system with books, records and
procedures sufficient to establish and maintain an adequate audit trail of all
transactions conducted by the Licensee. Licensee agrees that only one set of
accounting records will exist for the OrbView-3 System, that all transactions
applicable to the OrbView-3 System will be recorded in these records and that
such records will be updated and maintained on a current basis so as to provide
the means for ORBIMAGE to independently verify compliance with the provisions of
this Agreement;
(ix) Use the Licensee Ground Facility to receive high
resolution imagery of equal or better quality to that described in Attachment D
only from the OrbView-3 System and not from any other competitive
high-resolution provider. Licensee may use the Licensee Ground Facility for any
other purposes. Licensee shall have the right to sell in the Territory, on a
non-exclusive basis, OrbView-3 System imagery of other territories from other
ORBIMAGE distributors worldwide, subject to the specific terms and conditions of
each distributor's license and ORBIMAGE's royalty requirements;
(x) Have the non-exclusive right to solicit other entities in
the Territory to participate and/or invest in the Licensee's promotion and sales
of OrbView-3 System products in the Territory with prior written approval from
ORBIMAGE; and
(xi) Forward to the ORBIMAGE's ground facility in the United
States, by the most expeditious means, all requests for imagery taskings of the
satellites in the OrbView-3 System. The ORBIMAGE ground facility will
consolidate all worldwide requests for imagery taskings and will uplink these
taskings at the same time to the OrbView-3 System satellite.
b. RESPONSIBILITIES OF ORBIMAGE. ORBIMAGE SHALL:
(i) Use commercially reasonable efforts to launch the
OrbView-3 System satellite by the Target Launch Date. In the event that the
OrbView-3 System satellite has not been launched within six months of the Target
Launch Date, then ORBIMAGE and Licensee shall each have the option to terminate
the Agreement immediately, provided that written notice of termination must be
delivered to the other party no later than May 15, 1999 (or the first business
day thereafter if May 15 falls on a weekend). After termination of the Agreement
under this Section 4(b)(i), Licensee agrees that ORBIMAGE may be the preferred
provider of one-meter digital satellite imagery unless another commercial entity
launches an operating system prior to ORBIMAGE's launch of OrbView-3 that is
capable of providing to Licensee such imagery services that were otherwise to be
provided by ORBIMAGE pursuant to the Agreement;
(ii) Use commercially reasonable efforts to assist Licensee in
providing data relating to the OrbView-3 System required by any governmental
authority or agency in connection with Licensee obtaining any of the Permits if
Licensee cannot reasonably provide such data itself; provided that written data
shall be provided at ORBIMAGE's expense and any data required to be presented in
person or orally shall be provided at Licensee's expense; and provided further
that ORBIMAGE shall not be required to disclose any such data unless ORBIMAGE
reasonably believes that such data will be maintained by the receiving party on
a confidential basis;
(iii) Implement advertising and other promotional programs for
the OrbView-3 System, the scope and timing of which shall be at ORBIMAGE's sole
discretion;
4
5
(iv) Perform and have sole responsibility for telemetry,
tasking and control of the satellite and all of its subsystems and payloads
using ORBIMAGE facilities located in the United States and Licensee may not
perform these functions from its facilities;
(v) Seek the permission of the Licensee prior to
[Confidential Treatment Requested];
(vi) Use commercially reasonable efforts to finalize by
January 31, 1997 the terms of a financing plan to fund all amounts projected to
be required for the design, development, construction, launch and initial
operations of the OrbView-3 System. ORBIMAGE shall be deemed to have complied
with this requirement if it delivers to Licensee a letter from the President and
Chief Executive Officer of Orbital Sciences Corporation confirming that a
satisfactory financing plan sufficient to fund the OrbView-3 System program, as
contemplated at such time, is in place, accompanied by a copy of a share
purchase agreement or similar agreement among Orbital Sciences Corporation,
ORBIMAGE and other investors to commit to finance the amount projected to be
required for the design, development, construction, launch and initial
operations of the OrbView-3 System. If such financing plan is not in place by
January 31, 1997, then either party may terminate the Agreement, provided that
written notice of termination must be delivered to the other party no later than
February 21, 1997;
(vii) Provide Licensee with periodic progress reports on a
semi-annual basis in writing; and
(viii) Use commercially reasonable efforts to obtain insurance
that will cover losses from either a launch or on-orbit OrbView satellite
failure. ORBIMAGE will keep Licensee apprised of the status of negotiations with
insurance provider and the terms and conditions of such policy.
5. REVENUE REQUIREMENTS
a. The Licensee will have the sole authority to establish the final
retail price for all OrbView-3 System imagery of the Territory sold to
Authorized Customers located either inside or outside the Territory. It is
mutually agreed that such retail prices should be established at a level so as
to maximize profits from sales of OrbView-3 System imagery of the Territory to
customers throughout the world.
b. Each request for a separate image shall be considered a "tasking";
for example, a stereo image product shall be considered two taskings. Imagery of
the Territory taken by the OrbView-3 System satellite shall be downlinked in
real-time to the Licensee Ground Facility for processing, archiving, and sale.
c. (i) Licensee agrees to pay ORBIMAGE a guaranteed amount of
U.S.$[Confidential Treatment Requested] (the "Guaranteed Amount") per 12-month
period, beginning with the Operational Capability Date of the OrbView-3 System
and ending three years later, for a total payment of U.S.$[Confidential
Treatment Requested], provided that the raw imagery is transmitted in a
reasonable fashion to the Licensee. (Each 12-month period following the
Operational Capability Date is referred to herein as the "Operational Period.")
Such payments shall be made [Confidential Treatment Requested] on a quarterly
basis and shall be in the amount of U.S..$[Confidential Treatment Requested],
and shall be made regardless of the number of taskings or archive sales actually
ordered by Licensee. The first payment shall be pro-rated as appropriate
depending upon the Operational Capability Date.
5
6
(ii) The Guaranteed Amount shall be deemed consideration for
[Confidential Treatment Requested] taskings and sales from the Licensee archive
in each given Operational Period. For the purpose of calculating [Confidential
Treatment Requested] monoscopic mode taskings and sales from the Licensee
archive, a tasking and the first sale of the image from such tasking, whether
the sale is made simultaneously with the tasking or after stored in Licensee's
archive, shall be considered as one. If in the second or third Operational
Period, Licensee has requested more than [Confidential Treatment Requested]
taskings and/or archive sales, in the aggregate, then Licensee shall pay
ORBIMAGE a royalty for each additional tasking and for each additional sale or
delivery of imagery from the Licensee archive during such Operational Period
based upon [Confidential Treatment Requested]. All sales/deliveries of imagery
from the Licensee archive to an entity [Confidential Treatment Requested] and/or
[Confidential Treatment Requested] shall be included in the [Confidential
Treatment Requested] number. There shall be no [Confidential Treatment
Requested].
(iii) It is recognized that Licensee may request imagery of
territories other than the Territory, and that ORBIMAGE will use its reasonable
efforts to meet such requests, subject to contractual or other obligations. In
the event such imagery is provided, it shall be subject to the pricing terms set
forth in the preceding paragraph (ii).
d. ORBIMAGE shall invoice Licensee on a quarterly basis for the lump
sum payment and royalties provided for in subsection (c) above. All invoices
shall be paid within 30 days of receipt. In the event Licensee fails to make
payment within the required period, ORBIMAGE, at its discretion, may assess a
finance charge at the prime rate charged by Xxxxxx Guaranty Trust Company of New
York at the date of invoice plus 5% per annum. Annual license payments related
to subsequent satellites that may be incorporated into the OrbView-3 System will
be the subject of future negotiations.
e. In the event that the OrbView-3 System satellite is or becomes
incapable of providing imagery on a regular basis in accordance with the
parameters set forth in Attachment D and ORBIMAGE is unable to cure such failure
within [Confidential Treatment Requested] days notice thereof, then the parties
shall renegotiate the price set forth in subparagraph (c) above. If the parties
are unable to agree on mutually acceptable price terms in such circumstances,
then either party may terminate the Agreement upon ten (10) days written notice
to the other.
6. LICENSEE GROUND FACILITY
Licensee shall procure a ground image receive station and image
processing center that shall be operational and capable of receiving and
processing OrbView-3 System imagery data no later than the Target Launch Date.
7. TERM OF THE AGREEMENT
a. TERM. This Agreement shall terminate on the date three years after
the Operational Capability Date of the OrbView-3 System. The terms and other
conditions relating to it, may, by mutual agreement, be modified whenever
additional satellites or other major significant capabilities are contemplated
for addition to the OrbView-3 System. Within one year prior to the expiration of
the initial term of this Agreement, Licensee may request that this Agreement be
extended for a further period of up to ten years, which request shall be subject
to good faith negotiations by both parties.
6
7
b. TERMINATION FOR CONVENIENCE. Each party shall have the right to
terminate this Agreement for convenience at any time by giving ten (10) days
notice to the effect to the other party and shall pay as damages the amounts set
forth in Section 7(d) below.
c. TERMINATION FOR BREACH. This Agreement may be terminated by the
non-breaching party at any time after the occurrence of any of the following
events ("Events of Default"):
(i) Licensee shall fail to pay any amount due under this
Agreement, within the time period specified, and such payment is not made within
five days notice from ORBIMAGE of such failure;
(ii) Any representation or warranty made by Licensee or
ORBIMAGE in this Agreement or any other document delivered pursuant to this
Agreement shall be false or misleading in any material respect;
(iii) A party shall fail to observe or perform any of its
material obligations under this Agreement, and such failure to observe or
perform is not cured within sixty (60) days of notice of such failure;
(iv) A party shall become insolvent, admit in writing its
inability to pay its debts as they become due, make a general assignment for the
benefit of creditors, suffer or permit the appointment of a receiver for its
business or assets, initiate or become subject to any proceeding under any
bankruptcy or insolvency law, whether domestic or foreign, or liquidate or wind
up, voluntarily or otherwise;
(v) Currency exchange restrictions that prevent Licensee from
making its payments to ORBIMAGE in U.S. dollars shall be imposed by any
governmental authority or agency in the Territory and continue in effect for
more than 12 months;
(vi) Licensee shall take any action or fail to take any action
that results in Licensee or ORBIMAGE contravening or violating any law in effect
in any part of the Territory or the United States;
(vii) Licensee shall fail to obtain any necessary Korean
Government permits within 60 days after the Operational Capability Date; and
(viii) Following the Operational Capability Date, ORBIMAGE is
unable to deliver images that conform with the performance requirements set
forth in Attachment D hereto, and such failure is not cured within [Confidential
Treatment Requested] days of notice thereof.
d. DAMAGES
(i) Damages payable by Licensee to ORBIMAGE:
(A) Except as otherwise provided herein, if
prior to the launch and initial of operations of the OrbView-3 System,
Licensee terminates this Agreement for convenience or ORBIMAGE terminates this
Agreement for breach by Licensee, then Licensee shall pay damages to ORBIMAGE
equal to the lesser of all reasonable and documented costs incurred to date by
ORBIMAGE under this Agreement and the following amounts: $[Confidential
Treatment Requested] if the Agreement is terminated before July 31, 1997;
$[Confidential Treatment Requested] if the Agreement is
7
8
terminated before January 31, 1998; $[Confidential Treatment Requested] if the
Agreement is terminated before July 31, 1998; $[Confidential Treatment
Requested] if the Agreement is terminated at any time after July 31, 1998. The
$250,000 deposit provided by Licensee shall be credited against any payments by
Licensee under this subparagraph (A).
(B) Except as otherwise provided herein, if following
the launch of the OrbView-3 System, Licensee terminates this Agreement for
convenience or ORBIMAGE terminates this Agreement for breach by Licensee, then
Licensee shall pay damages to ORBIMAGE in an amount equal to $[Confidential
Treatment Requested] minus any payments made to ORBIMAGE for OrbView-3 services
through the date of termination. Nothing herein shall relieve Licensee of its
obligation to pay all invoices that have been delivered, or obligations
otherwise accrued, prior to such date of termination.
(ii) Damages payable by ORBIMAGE to Licensee:
(A) Except as otherwise provided herein, if
ORBIMAGE terminates this Agreement for convenience or Licensee terminates this
Agreement for breach by ORBIMAGE, then ORBIMAGE shall pay damages to Licensee
equal to the lesser of all reasonable and documented costs incurred to date by
Licensee under this Agreement and the following amounts: $[Confidential
Treatment Requested] if the Agreement is terminated before July 31, 1997;
$[Confidential Treatment Requested] if the Agreement is terminated before
January 31, 1998; $[Confidential Treatment Requested] if the Agreement is
terminated before July 31, 1998; $[Confidential Treatment Requested] if the
Agreement is terminated at any time after July 31, 1998. If the Agreement is
terminated pursuant to this Section 7(d)(ii)(A), ORBIMAGE shall also refund to
Licensee the $250,000 deposit.
(iii) All payments for damages under this Section 7 shall
be made within thirty (30) days of termination and may be conditioned upon the
execution by both parties of a mutually acceptable release.
(iv) Notwithstanding anything herein to the contrary,
neither ORBIMAGE nor Licensee shall be liable to the other for any damages,
expenses, costs, indemnification or otherwise in the event this Agreement is
terminated pursuant to Section 4(b)(i) or Section 4(b)(vi), or Section 5(e),
except that ORBIMAGE shall refund all or any portion of the $250,000 that has
not been applied against payment for the Licensee Ground Facility or the first
year Guaranteed Amount as contemplated by Section 3(f) above.
(v) In no event shall any liability of either party
exceed the amounts provided for in this Section 7 (d).
e. USE OF SYSTEM AFTER TERMINATION. On the effective date of
termination of this Agreement, Licensee shall cease using the OrbView-3 System.
In the event of the occurrence of an Event of Default by Licensee, to the extent
permitted by law, ORBIMAGE shall be entitled to, in its sole discretion,
establish another Licensee in the Territory. Licensee agrees to cooperate in
ensuring continued operations and transfer of control to the new Licensee.
8. REPRESENTATIONS AND WARRANTIES
a. Licensee represents and warrants to ORBIMAGE that (i) Licensee is a
corporation duly incorporated and validly existing under the laws of Republic of
Korea; (ii) the execution, delivery and performance of this Agreement by
Licensee has been duly authorized by all necessary action on the part
8
9
of Licensee, (iii) this Agreement has been duly executed and delivered by
Licensee and constitutes a legally valid and binding obligation of Licensee,
enforceable against Licensee in accordance with its terms, (iv) Licensee has or
will have all Permits from any governmental authority or agency necessary for
Licensee to perform its obligations under this Agreement.
b. Licensee agrees to indemnify and hold harmless ORBIMAGE and its
affiliates, officers, directors, employees, agents and representatives against
all claims, demands or liabilities (including reasonable attorneys' fees) of
third parties arising out of or in connection with Licensee's wrongful or
grossly negligent operation of the Licensee System, Licensee's misuse of the
OrbView logos, trademarks and service marks or any other intellectual property
rights of ORBIMAGE or any third parties incorporated into the OrbView-3 System,
or Licensee's breach of any representations, warranties, covenants or agreements
contained herein or of any third party rights. This indemnification obligation
shall survive the expiration or termination of this Agreement
c. ORBIMAGE represents and warrants to Licensee that (i) ORBIMAGE is a
corporation duly incorporated and validly existing under the laws of the State
of Delaware; (ii) the execution, delivery and performance of this Agreement by
ORBIMAGE has been duly authorized by all necessary action on the part of
ORBIMAGE, (iii) this Agreement has been duly executed and delivered by ORBIMAGE
and constitutes a legally valid and binding obligation of ORBIMAGE, enforceable
against ORBIMAGE in accordance with its terms; and (iv) that the OrbView-3
System shall be capable of delivering imagery that meets the criteria set forth
in Attachment D hereto.
9. NON-COMPETITION
a. During Term. As long as this Agreement is in effect and except for
the participation in KOMSAT, Licensee agrees that it shall not engage or
participate in, assist or have an interest in, directly or indirectly, the
operation, management or conduct of any business or enterprise that provides or
intends to provide Earth remote sensing products and/or services that competes,
directly or indirectly with any part of ORBIMAGE's Earth remote sensing products
and/or services as described in Attachment D.
b. Reserved.
c. If ORBIMAGE declares a system failure pursuant to Section 10(c),
Licensee shall have the right to participate in another commercial remote
sensing system provided that Licensee has met all of its financial obligations
under this Agreement. Licensee will have been deemed to have met all financial
obligations upon payment to ORBIMAGE for all items delivered as of the date of
system failure.
10. SYSTEM OUTAGES AND FAILURE
a. [Confidential Treatment Requested].
b. In the event ORBIMAGE is unable to provide Licensee with access to
the OrbView-3 System due to temporary or intermittent problems with the
OrbView-3 System (not including planned periods of satellite unavailability that
result from the OrbView-3 System architecture) for a total of more than
[Confidential Treatment Requested] days during any one year period commencing on
the Operational Capability Date and any anniversary of such date, Licensee's
sole and exclusive remedy shall be to extend the term of this Agreement one day
for each day in excess of such [Confidential
9
10
Treatment Requested] days that ORBIMAGE is unable to provide Licensee with
access to the OrbView-3 System.
c. If ORBIMAGE determines in its sole discretion that the OrbView-3
System has permanently and irrevocably failed such that Licensee cannot access
the OrbView-3 System, ORBIMAGE shall be entitled to terminate this Agreement.
11. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
a. Each of the parties acknowledges and understands that the OrbView-3
System is a new, untested system that entails a high degree of risk of (i) delay
in or cancellation of deployment and (ii) launch vehicle, satellite and other
equipment or software failure or impaired performance, and that there can be no
assurance that the OrbView-3 System will be an economically viable system even
if successfully deployed. Each party shall bear all responsibility, risk and
cost associated with developing and maintaining its respective business. and
ORBIMAGE shall not be liable to Licensee for costs or damages caused by any
schedule delays or failure of the OrbView-3 System or any component thereof,
except as specifically provided herein.
b. (i) Except as otherwise specifically provided in Section 8 herein,
ORBIMAGE makes no representations or warranties whatsoever with respect to any
services and/or products to be provided by ORBIMAGE hereunder, whether express
or implied, including any implied warranty of merchantability or fitness for an
particular purpose, or any implied warranty arising from course of performance,
course of dealing or usage of trade. No representation or other affirmation of
fact, including, but not limited to, statements regarding capacity or
suitability for use, that is not contained in this agreement shall be deemed to
be a warranty by ORBIMAGE.
(ii) Neither ORBIMAGE nor the Licensee shall be liable to the
other for any indirect, incidental, or consequential damages in connection with
this Agreement, including loss of use, revenue or profit. Any liability of one
party to the other for direct damages shall be limited to the amounts set forth
in Section 7(d) above.
c. Licensee shall insure that all of its Authorized Customers agree to
the foregoing waiver of rights and claims.
12. DISPUTE RESOLUTION
a. In the event of a dispute regarding any matter covered by this
Agreement, ORBIMAGE and Licensee shall use all reasonable efforts to resolve
such dispute within sixty calendar days of when such parties commenced
discussion of such dispute. In the event the parties are unable to agree on the
resolution of such dispute within such period of time, either party may remove
the dispute for settlement by final and binding arbitration in London, England,
in accordance with the then rules of Arbitration of the International Chamber of
Commerce (ICC) (to the extent not modified by this Section). In the event that
more than one dispute arises under this Agreement, such disputes may be
consolidated in a single arbitral proceeding. The arbitral tribunal shall be
composed of three arbitrators, each of whom shall have experience in satellite
business and/or the subject matter of the dispute if it is different. Each of
ORBIMAGE and Licensee shall appoint one arbitrator. If any party shall fail to
appoint an arbitrator within thirty days from the date on which the other
party's request for arbitration has been communicated to the first party, such
appointment shall be made by the ICC. The two arbitrators so appointed shall
agree upon the third arbitrator who shall act as chairman of the arbitral
tribunal and who shall have
10
11
experience in satellite business and/or the subject matter of the dispute, if it
is different. If the two appointed arbitrators fail to nominate a chairman
within ten days from the date as of which both arbitrators shall have been
appointed, such chairman shall be selected by the ICC. In all cases, the
arbitrators shall be fluent in English and the Arbitration shall be conducted in
English. Judgment upon any award rendered by the arbitrators may be entered in
any court having jurisdiction or application may be made for judicial acceptance
of the award and an order of enforcement, as the case may be. The parties agree
that if it becomes necessary for any party to enforce an arbitral award by a
legal action or additional arbitration or judicial methods, the party against
whom enforcement is sought shall pay all reasonable costs and attorney's fees
incurred by the party seeking to enforce the award.
b. Pending a final determination by the arbitrators, both parties shall
continue to fulfill all of their obligations under this Agreement, except in the
event that this Agreement has been terminated by either party.
c. The rights of the parties under this Section 12 shall be the
exclusive remedy with respect to any dispute regarding any matter covered by
this Agreement.
13. EXPORT CONTROL AND PROHIBITED FOREIGN TRADE PRACTICES RESTRICTIONS
Any export of ORBIMAGE hardware, software, and other
information shall comply with applicable U.S. export control requirements.
Licensee agrees to comply with all applicable laws, rules, and regulations of
the United States regarding export controls and foreign corrupt practices,
including the United States Federal International Traffic in Arms Regulations
and of the Prohibited Foreign Trade Practices Act are set forth in Attachments B
and C, as they may be amended from time to time.
14. RESERVED
15. MISCELLANEOUS
a. NOTICES. All notices given under this Agreement must be in
writing and sent by hand delivery, by facsimile transmission or by registered
mail, postage prepaid, to:
Orbital Imaging Corporation:
ORBIMAGE
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: President
Licensee:
Samsung Aerospace Industries, LTD
Samsung Life Xxxxxxxx
000, 0-Xx, Xxxxxxxxx-Xx, Xxxxxx-Xx
Xxxxx, Xxxxx, 100-716
Mail Drop No. XXX/C.P.O. Box 9762
11
12
or to such other persons or addresses as either party may designate by written
notice to the other. All such notices sent to either Licensee or ORBIMAGE shall
be effective upon delivery if hand delivery, twenty-four (24) hours after
transmission, if sent by facsimile, or on the date ten (10) days from posting if
sent by mail.
b. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties, their successors and permitted assigns. Except as otherwise provided in
Section 3(g), neither this Agreement nor any interests or duties of Licensee
hereunder may be assigned by Licensee without the express written consent of
ORBIMAGE, which consent shall not be unreasonably withheld, provided that either
party may assign this Agreement to any successor in interest by merger,
acquisition or otherwise, or to any parent or subsidiary entity.
c. ENTIRE AGREEMENT. This Agreement and all attachments (which are
hereby made part of this Agreement) contain the entire understanding between
Licensee and ORBIMAGE and supersede all prior written and oral understandings
relating to the subject hereof. No representations, agreements, modifications or
understandings not contained herein shall be valid or effective unless agreed to
in writing and signed by both parties. Any modification or amendment of this
Agreement must be in writing and signed by both parties.
d. GOVERNING LAW AND JURISDICTION. (i) The construction, interpretation
and performance of this Agreement, as well as the legal relations of the parties
arising hereunder, shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflict or choice
of law provisions thereof. The United Nations Convention on Contracts for the
International Sale of Goods (1980) shall not apply to any provision of this
Agreement. Neither party may bring any action for a claim under this Agreement
later than one year after the termination of this Agreement; provided that
claims under any provision of this Agreement that survives termination of this
Agreement may be brought within one year of the later of the occurrence of the
event giving rise to the claim and actual knowledge thereof by the party
asserting such claim
e. FORCE MAJEURE. Neither party shall be held responsible for failure
or delay in performance or delivery if such failure or delay is the result of an
act of God, the public enemy, embargo, governmental act, fire, accident, war,
riot, strikes, inclement weather or other cause of a similar nature that is
beyond the control of the parties. In the event of such occurrence, this
Agreement shall be amended by mutual agreement to reflect an extension in the
period of performance and/or time of delivery. Failure to agree on an equitable
extension shall be considered a dispute and resolved in accordance with Section
12.
f. WAIVER. It is understood and agreed that no failure or delay by
either ORBIMAGE or Licensee in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof, or the exercise
of any other right, power or privilege hereunder. No waiver of any terms or
conditions of this Agreement shall be deemed to be a waiver of any subsequent
breach of any term or condition. All waivers must be in writing and signed by
the party sought to be bound.
g. SEVERABILITY. If any part of this Agreement shall be held
unenforceable, the remainder of this Agreement will nevertheless remain in full
force and effect.
h. HEADINGS. Headings in this Agreement are included for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
12
13
i. INDEPENDENT CONTRACTORS. Licensee and ORBIMAGE are independent
contractors to one another, neither party has the authority to bind the other in
any way or to any third party, and nothing in this Agreement shall be construed
as granting either party the right or authority to act as a representative,
agent, employee or joint venturer of the other.
j. COMMUNICATIONS IN ENGLISH. The parties agree that all
communications, notices or any written material to be provided by ORBIMAGE to
Licensee or by Licensee to ORBIMAGE under this Agreement shall be in the English
language or accompanied by an accurate and complete translation into English.
k. CALENDAR. The Gregorian calendar shall be used in calculating,
invoicing and paying all amounts due under this Agreement.
l. PAYMENTS. All payments due and payable hereunder shall be paid in
U.S. Dollars in immediately available funds to the bank account specified by
either party in writing, as the case may be.
m. This Agreement is executed in English and Korean counterpart. in the
event of a conflict or discrepancy in the interpretation of this Agreement, the
English version will govern.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the day and year first above written.
ORBITAL IMAGING CORPORATION
By:
--------------------------------
Name: Xxxxxxx X. Xxx
Title: President
SAMSUNG AEROSPACE INDUSTRIES, LTD.
By:
--------------------------------
Name: Xxxxx Xxx Oh
Title: Senior Director
Strategic Business Development
Division
GUARANTEE OF AGREEMENT
With respect to the subject matter of this Agreement, Orbital
Sciences Corporation, as a 100% shareholder of Orbital Imaging Corporation,
hereby guarantees the performance by Orbital Imaging Corporation of this
Agreement.
ORBITAL SCIENCES CORPORATION
By:
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
13
14
ATTACHMENT A
U.S. DEPARTMENT OF COMMERCE OPERATING LICENSE
ISSUED TO ORBIMAGE
On May 5, 1994, the U.S. Department of Commerce issued a
license under Title II of the Land Remote Sensing Policy Act of 1992, P.L.
102-555, for Orbital Sciences Corporation (Licensee), on behalf of Eyeglass
International, to operate a private remote-sensing space system, known as
"Eyeglass". The license was subsequently amended and issued to "ORBIMAGE" to
operate the "OrbView" system. The license is valid for a period of 10 years. The
major contents of the license are outlined below. All references to "Licensee"
are to "ORBIMAGE". It is the intent of this Distribution License Agreement that
all of the requirements levied by the Department of Commerce operating license
on ORBIMAGE shall also apply to the fullest extent to Samsung Aerospace
Industries, Ltd.
A. The license is limited to the operations of a land
remote-sensing space system and subject to the following terms and conditions
that apply to the Licensee and any subsidiary, affiliate, or contractor, as
appropriate. The issuance of the license does not relieve the Licensee of the
obligation to obtain export or other licenses from appropriate U.S. Government
agencies pursuant to applicable statutes.
1. Licensee shall comply with the requirements of the Act
and any applicable regulations issued pursuant to the
Act. The Licensee shall operate the system in a manner
that preserves the national security and observes the
international obligations and foreign policies of the
United States. The Licensee shall at all times maintain
positive control of the spacecraft including safeguards
to ensure the integrity of spacecraft operations. The
Licensee shall maintain and make available to the U.S.
Government, as requested, a record of all satellite
tasking operations, for the previous year.
During periods when national security or international
obligations and/or foreign policies may be compromised, as
defined by the Secretary of Defense or the Secretary of
State, respectively, the Secretary of Commerce may, after
consultation with the appropriate agency(ies), require the
Licensee to limit data collection and/or distribution by
the system to the extent necessitated by the given
situation. During those periods when, and for those
geographic areas that, the Secretary of Commerce has
required the Licensee to limit distribution, the Licensee
shall, on request, make the enhanced data thus limited
from the system available exclusively, by means of
government furnished rekeyable encryption on the downlink,
to the U.S. Government. The costs and terms associated
with meeting this condition will be negotiated directly
between the Licensee and DOD (for the U.S. Government) in
accordance with Section 507 (d) of the Act.
The Licensee shall ensure that all encryption devices used
are approved by the U.S. Government for the purpose of
denying unauthorized access to others during periods when
national security or international obligations and/or
foreign policies may be compromised.
14
15
The Licensee shall use a data downlink format that allows
the U.S. Government access and use of these data during
periods when national security or international
obligations and/or foreign policies may be compromised.
The Licensee shall provide sufficient documentation to the
U.S. Government on the Licensee's downlink data format to
assure this access.
2. Licensee will make available to the Government of any
country (including the United States) unenhanced data
concerning the territory under the jurisdiction of such
Government as soon as such data are available and on
reasonable cost terms and conditions.
3. Licensee will make available unenhanced data requested by
the National Satellite Land Remote Sensing Data Archive
(the Archive) in the Department of the Interior on
reasonable cost terms as agreed by the Licensee and the
Archive. After a reasonable period of time, as agreed with
the Licensee, the Archive may make these data available to
the public at a price equivalent to the cost of fulfilling
user requests.
Before purging any data in its possession, the Licensee
shall offer such data to the Archive at the cost of
reproduction and transmission. The Archive may make these
data available immediately to the public at a price
equivalent to the cost of fulfilling user requests.
4. Upon termination of operations under the license, the
Licensee will dispose of any satellite in space in a
manner satisfactory to the President. To meet this
condition and to deal with any circumstances involving the
satellite's end of life/termination of mission, the
Licensee shall obtain a priori U.S. Government approval of
all plans and procedures to deal with the safe disposition
of the satellite (e.g., burn on reentry or controlled
deorbit).
5. Licensee shall not change the operational specifications
of the satellite system from the application as submitted,
which would result in materially different capabilities
than those described in the application, without filing an
amendment as specified in paragraph C.3 of this license.
6. Licensee shall notify the National Environmental
Satellite, Data, and Information Service (NESDIS) of any
significant or substantial agreement the Licensee intends
to enter with a foreign nation, entity, or consortium
involving foreign nations or entities at least 60 days
before concluding such agreement. Significant or
substantial agreements include, but are not limited to,
agreements which would provide for the tasking of the
satellite and its sensors, provide for real-time direct
access to unenhanced data, or involve high-volume data
purchase agreements. NESDIS, in consultation with the
appropriate agencies, shall review the proposed agreement
to ensure that it is consistent with the terms and
conditions of this license. Specifically, the agreement
shall require that
15
16
the foreign entity will abide by the conditions in this
license addressing national security and international
obligations and foreign policies. If NESDIS, in
consultation with appropriate agencies, determines that
the proposed agreement will compromise national security
concerns or international obligations or foreign policy,
NESDIS will so advise the Licensee.
B. Enforcement of this license will be carried out in
accordance with section 203 of the Act. Any civil penalties authorized by
section 203(a) (3) will be assessed in accordance with the procedures set forth
in Subparts B and C of 15 C.F.R. Part 904. Such civil penalties may be assessed
in amounts up to $10,000 for any violation of the Act or any condition of this
license with each day of violation constituting a separate violation.
C. Before the Licensee may take any of the following actions
NESDIS must grant an amendment to the license. NESDIS will consult with the
appropriate Federal agencies, as required by the Act, before taking final action
on the amendment. The Licensee must promptly file all relevant information with
NESDIS if the Licensee anticipates the occurrence of any of the following
conditions:
1. Assignment or transfer of the license;
2. Any change in ownership of the Licensee that would
result in foreign individuals, entities, or consortia
having an aggregate interest in the Licensee in
excess of 25 percent; and
3. Any change in the orbital characteristics,
performance specifications, or data collection and
exploitation capabilities approved above. In the case
of an emergency posing an imminent and substantial
threat of harm to human life, property, environment,
or the remote-sensing space system itself, Licensee
shall not be required to obtain such amendment. If
circumstances permit, Licensee shall attempt to
obtain oral approval from NESDIS prior to making any
such substantial change.
16
17
ATTACHMENT B
COMPLIANCE WITH INTERNATIONAL TRAFFIC IN ARMS REGULATIONS
Although this Agreement is not intended to be a technical
assistance agreement as defined in Part 120.22 of the International Traffic in
Arms Regulations, to the extent any part of this Agreement is deemed to be a
technical assistance agreement, the following provisions of Part 124.8 shall
apply with respect to that part of this Agreement:
A. The applicable part of this Agreement shall not
enter into force, and shall not be amended or extended, without the prior
written approval of the Department of State of the U.S. Government.
B. The applicable part of this Agreement is subject to all
United States laws and regulations relating to exports and to all administrative
acts of the U.S. Government pursuant to such laws and regulations.
C. The parties to this Agreement agree that the obligations
contained in this Agreement shall not affect the performance of any obligations
created by prior contracts or subcontracts which the parties may have
individually or collectively with the U.S. Government.
D. No liability will be incurred by or attributed to the U.S.
Government in connection with any possible infringement of privately owned
patent or proprietary rights, either domestic or foreign, by reason of the U.S.
Government's approval of this Agreement.
E. Any technical data or defense service exported from the
United States in furtherance of this Agreement and any defense article which may
be produced or manufactured from such technical data or defense service may not
be transferred to a person in a third country or to a national of a third
country unless the prior written approval of the Department of State has been
obtained.
F. All provisions in this Agreement which refer to the U.S.
Government and the Department of State will remain binding on the parties after
the termination of this Agreement.
17
18
ATTACHMENT C
PROHIBITED FOREIGN TRADE PRACTICES ACT
A. Licensee agrees that, in connection with this Agreement, it
will not, directly or indirectly, give, offer or promise, or authorize or
tolerate to be given, offered or promised, anything of value to any official or
employee of a government, or of any subdivision thereof, with the intent to (1)
influence any official act or decision of such official or employee, (2) induce
such official or employee to do or omit to do any act in violation of his or her
lawful duty, or (3) induce such official or employee to use his or her influence
to affect or influence any act or decision of a government, or of any
subdivision thereof, to assist ORBIMAGE in obtaining or retaining business, or
in directing business to any person.
B. Licensee agrees that, in connection with this Agreement, it
will not, directly or indirectly, give, offer or promise, or authorize or
tolerate to be given, offered or promised, anything of value to any political
party or official thereof or any candidate for any political office, with the
intent to (1) influence any official act or decision of such party, official or
candidate, (2) induce such party, official or candidate to do or omit to do any
act in violation of its, his or her lawful duty, or (3) induce such party,
official or candidate to use its, his or her influence to affect or influence
any act or decision of a government, or of any subdivision thereof, to assist
ORBIMAGE in obtaining or retaining business, or in directing business to any
person.
C. Licensee agrees that, in connection with this Agreement, it
will not, directly or indirectly, give, offer or promise, or authorize or
tolerate to be given, offered or promised, anything of value to any person,
knowing or having reason to know that all or a portion of such thing of value is
to be given, offered or promised to any official or employee of a government, or
of any subdivision thereof, or any political party or official thereof, or to
any candidate for any political office, with the intent to (1) influence any
official act or decision of such official, party, party official or candidate,
(2) induce such official, party, party official or candidate to do or omit to do
any act in violation of its, his or her lawful duty, or (3) induce such
official, party, party official or candidate to use its, his or her influence to
affect or influence any act or decision of a government, or of any subdivision
thereof, to assist ORBIMAGE in obtaining or retaining business, or in directing
business to any person.
D. Licensee agrees that, in performing its obligations under
this Agreement, it will not undertake, nor cause nor permit to be undertaken,
any activity which either (1) is illegal under any applicable laws, decrees,
rules or regulations in effect in any country, or (2) would have the effect of
causing ORBIMAGE to be in violation of any applicable laws, decrees, rules or
regulations in effect in the United States or in any country.
E. Licensee hereby represents and warrants that neither
Licensee, nor any employee, representative or agent of Licensee, is an official
or employee of the government of any country whose laws are applicable to the
performance of this Agreement ("Applicable Country"), or any subdivision
thereof. Licensee further agrees to notify ORBIMAGE event that this covenant
ceases to be true.
F. Licensee agrees to notify ORBIMAGE immediately of any
extortive solicitation, demand or other request for anything of value, by or on
behalf of any official or employee of the government of any Applicable Country,
or of any subdivision thereof, relating to the subject matter of this Agreement.
18
19
G. If Licensee breaches any of the covenants set forth in A,
B, or C above, (1) this Agreement shall become void, and (2) ORBIMAGE shall have
a cause of action against Licensee for, among other things, the amount of any
monetary payment or thing of value given by Licensee in breach of any of the
above-mentioned covenants.
19
20
ATTACHMENT D
EXPECTED PERFORMANCE OF THE ORBVIEW-3 SYSTEM
Resolution & Swath Width:
Panchromatic: 1-meter resolution in 8 kilometer swaths
2-meter resolution in 8 kilometer swaths
Multispectral: 4-meter resolution in 8 kilometer swaths
MTF:
[Confidential Treatment Requested]
[Confidential Treatment Requested]
[Confidential Treatment Requested]
Orbital Characteristics:
Revisit over the Korean Peninsula every three days or less.
Accuracy:
[Confidential Treatment Requested]
[Confidential Treatment Requested]
20
