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Exhibit 10.96
Revised Draft: 11 June 1998
SPACEHAB, INC. AND
INTOSPACE GmbH
EUROPEAN MARKETING AGREEMENT
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This Agreement is made and entered into on this __ day of _________ 1998, by and
between SPACEHAB, Inc., a corporation organized under the laws of the State of
Washington, United States of America with its principal place of business
located at 0000 Xxxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 (hereinafter referred
to as "SPACEHAB") and INTOSPACE, GmbH, a corporation organized under the laws of
the Federal Republic of Germany with its principal offices located at
Xxxxxxxxxxxxxx 0, X-00000 Xxxxxxxx, Xxxxxxx (hereinafter referred to as
"INTOSPACE").
Since 1989 SPACEHAB and INTOSPACE have maintained a close and mutually
beneficial relationship in marketing research payload flight opportunities on
SPACEHAB's Space Shuttlebased carriers to user organizations in Europe.
SPACEHAB, following consultations with its European partners Alenia Aerospazio
and Daimler-Benz Aerospace, and INTOSPACE, following consultations with its
Steering Board, now seek to enhance their relationship by concluding a new
marketing Agreement to replace the "Exclusive European Broker Agreement" entered
into on February 15, 1989.
This Agreement is intended to focus INTOSPACE's marketing efforts on attracting
additional European customers for research payload flight opportunities on
SPACEHAB's Shuttle-based carriers, particularly customers from the industrial
and national government sectors. In so doing, SPACEHAB and INTOSPACE hope to
promote increased microgravity research and prepare for scientific and
commercial utilization of the International Space Station.
ARTICLE I -- RESPECTIVE RESPONSIBILITIES
In implementing this Agreement, INTOSPACE shall act as the principal European
agent for SPACEHAB in the marketing of research opportunities on SPACEHAB's
Space Shuttle-based carriers.
In carrying out its responsibilities, INTOSPACE shall:
- Market Space Shuttle research payload flight opportunities on SPACEHAB's
Shuttle-based carriers to prospective customers in the European territory
as defined in Article III below.
- Establish a new SPACEHAB-INTOSPACE Joint Customer Support Office as
described in Article II below.
- Assist SPACEHAB in meeting current customer requirements for technical
information.
- Conduct accommodation studies for potential new customers within the
capabilities of the Joint Office.
- Assist SPACEHAB in concluding contracts with European customers of SPACEHAB
research flight services consistent with customer requests.
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- Promote enhanced European and international microgravity research through
continued publication and distribution of the INTOSPACE "Low G" journal on
a quarterly basis including SPACEHAB special editions for international
missions provided the Joint Office planned target budget (discussed in
Article II, below) is reached.
- Promote SPACEHAB research payload flight opportunities to the European
market through:
- Distribution of a bimonthly newsletter "INTOSPACEHAB"
- Participation in European exhibitions, workshops and symposia.
- Periodic presentations to key European government and industry
decision-makers.
In carrying out its responsibilities, SPACEHAB shall:
- Keep INTOSPACE informed regarding confirmed and prospective research
payload flight opportunities for SPACEHAB's Shuttle-based carriers.
- Ensure INTOSPACE has current information regarding SPACEHAB pricing,
accommodation requirements and procedures and other relevant technical
information.
- Pay INTOSPACE marketing fees for executed contracts in accordance with the
conditions and fee structure discussed in Article V below.
- Assist INTOSPACE in its European marketing activities through:
- Technical support for accommodations studies and proposal preparation.
- Provision of SPACEHAB marketing literature, exhibition support and
other materials.
- Participation of SPACEHAB personnel in selected workshops, symposia,
marketing meetings and presentations to key European decision-makers
within available marketing and sales resources.
- Support the SPACEHAB-INTOSPACE Joint Customer Support Office by
periodically arranging for SPACEHAB personnel to visit and temporarily work
at the Office in connection with SPACEHAB's customer support and marketing
activities.
- Distribute the quarterly INTOSPACE "Low G" journal to interested
organizations in the United States.
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ARTICLE II -- JOINT EUROPEAN CUSTOMER SUPPORT OFFICE
In support of this marketing Agreement and as noted above, INTOSPACE will
establish a Joint SPACEHAB-INTOSPACE Customer Support Office in The Netherlands
as agreed in the Share Purchase Agreement dated ______.
The activities of the Joint Customer Support Office will begin operations on
September 1, 1998 and continue through June 2001. During the third year of
operations, INTOSPACE and SPACEHAB will review the current status and
accomplishments of the Joint Customer Support Office to determine whether and
under what conditions the Joint Office should be continued.
INTOSPACE and SPACEHAB will jointly recruit a manager for the Joint Office. In
this new capacity, the Joint Office manager will carry a business card
representing the Joint Customer Support Office.
To guide the operation of the Joint Customer Support Office, INTOSPACE and
SPACEHAB will prepare an office operations plan. This plan will include a
baseline office budget as well as a target budget for the three-year period. The
baseline and target budget figures will be based on the estimates developed by
INTOSPACE and SPACEHAB in March 1998. The office operations plan will also
elaborate on INTOSPACE's planned marketing activities on SPACEHAB's behalf. The
operations plan will be completed no later than August 30, 1998 and will be
reviewed annually in June.
INTOSPACE's Managing Director and SPACEHAB's Vice President for Marketing and
Sales will be jointly responsible for the overall direction of the Joint
Customer Support Office, and for approval review and changes to the joint office
operations plan. Both representatives must approve the annual office operations
plan, and any amendments thereto.
INTOSPACE will be responsible for providing office space and other necessary
services, and for all expenses associated with the operation of the Joint
Office. SPACEHAB's sole contribution to these expenses will be made through
SPACEHAB's purchase of INTOSPACE shares as set forth in Paragraph 1.4 of the
SPACEHAB/INTOSPACE Share Purchase Agreement dated _____________.
INTOSPACE and SPACEHAB will each maintain general liability insurance to cover
the acts of their respective employees who support the activities of the Joint
Customer Support Office and other related SPACEHAB marketing activities in
Europe.
ARTICLE III -- MARKETING TERRITORY
For the purposes of this Agreement, the marketing activities will be performed
in Europe, which shall be defined as the geographic territory of the member
nations of the European Union as of January 1, 1998 plus Switzerland and Norway.
These European Union member states are Austria, Belgium, Denmark, Finland,
France, Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal,
Spain, Sweden, and the United Kingdom.
ARTICLE IV -- NON-EXCLUSIVITY
INTOSPACE will be SPACEHAB's principal European Shuttle microgravity flight
opportunity marketing agent. In this role, INTOSPACE shall promote and market
research payload flight opportunities on SPACEHAB's shuttle-based carriers on a
non-exclusive basis throughout the European territory.
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SPACEHAB reserves the right to establish additional marketing arrangements with,
and to place contracts through, other European companies in order to expand its
marketing presence in Europe. SPACEHAB will consult with INTOSPACE prior to
concluding any new European marketing arrangements. SPACEHAB will also take into
account concrete, pre-existing business arrangements that INTOSPACE may have
made and, should these arrangements result in revenues, provide appropriate
compensation to INTOSPACE for its marketing efforts.
ARTICLE V -- MARKETING FEES
SPACEHAB shall pay INTOSPACE marketing fees as a percentage of the final sales
price actually received from contracts executed by SPACEHAB with customers in
the European territory in accordance with the following schedule:
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CUSTOMER FEE BASIS TOTAL FEE PAID
-------- --------- --------------
All customers in the European territory Basic fee 2.5%
European Space Agency Basic fee 2.5%
European national space agencies Basic fee + 2.5% 5%
European industry and European Union Basic fee + 7.5% 10%
The above fee schedule replaces the fee provisions of the February 1989
"Exclusive European Broker Agreement." Notwithstanding this change, INTOSPACE
will receive a marketing fee of 10% of the executed contract amounts to be paid
to SPACEHAB for the ESA contracts for the STS-95 mission and the planned STS-107
SPACEHAB mission (or its successor if the Shuttle flight assignment is altered)
where INTOSPACE has entered into a reservation agreement with SPACEHAB and has
already begun contract negotiations with ESA.
Recent NASA/ESA Space Station barter arrangements have resulted in lost business
revenues from ESA payloads on STS-95 and STS-107. Should any future ESA and NASA
barters result in lost revenues and should NASA compensate SPACEHAB for these
lost revenues, SPACEHAB will compensate INTOSPACE in accordance with the above
fee structure.
Marketing fees paid under this Agreement are based on percentages of the total
executed SPACEHAB/European customer contract amounts actually received by
SPACEHAB exclusive of any NASA Space Shuttle or other NASA charges. These fees
will be paid within thirty (30) days of the date SPACEHAB receives full cash
payment from the customer or at such times as may be mutually agreed between
INTOSPACE and SPACEHAB. Marketing fee payments will be made using electronic
fund transfers to a bank designated in writing by INTOSPACE.
ARTICLE VI -- INDEPENDENT CONTRACTOR RELATIONSHIP
The parties to this Agreement are and shall remain independent contractors to
one another. Notwithstanding the above-described role of the Joint Customer
Support Office manager, SPACEHAB and INTOSPACE personnel performing work in
support of this contract will continue to be employees of their existing
organizations. INTOSPACE and SPACEHAB employees are not authorized to make
commitments or create express or implied obligations on behalf of the other
party.
SPACEHAB reserves the right, in its sole discretion, to refuse to enter into a
contractual agreement with customers solicited by INTOSPACE except that SPACEHAB
shall not unreasonably or arbitrarily refuse to enter into contracts solicited
by INTOSPACE.
Except as otherwise noted in this Agreement, each party shall bear its own costs
with respect to the performance of this Agreement. No claim for the
reimbursement of such costs shall be made.
ARTICLE VII -- TITLE
Title to, and ownership of, all tangible personal property and software supplied
to customers or users of SPACEHAB Shuttle-based carriers or utilized in the
course of business pursuant to this Agreement shall remain with and be vested in
the party supplying such property and in no event shall the other party acquire
any right, title or interest therein.
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The property of each party provided in connection with the use of SPACEHAB
Shuttle-based carriers shall be clearly marked as to ownership, and the other
party shall not remove, change or obscure any such markings as may properly
identify the title and ownership thereof.
Title to, and ownership of, all intellectual property such as patents,
copyrights and trade secrets which are incorporated in or related to property
supplied to customers or users of SPACEHAB Shuttle-based carriers or utilized in
the course of business pursuant to this agreement shall remain with and be
vested in the party supplying such property, and in no event shall the other
party acquire any right, title, license or interest therein.
ARTICLE VIII -- PROPRIETARY INFORMATION
During the term of this Agreement and for a period of five (5) years from the
termination of this Agreement, each party shall not communicate, divulge or in
any manner whatsoever, directly or indirectly, make known to any other person or
entity, or use to the benefit of any third parties, any trade secrets, business
and technical knowledge, processes of manufacturing, software or software
know-how, or other proprietary information of the other party or their
customers, or the knowledge such party obtains as a result of the performance of
this Agreement, and which was disclosed and identified in writing, or if
disclosed orally then confirmed in writing within thirty (30) days, as being the
proprietary information of such disclosing party.
Neither party shall have an obligation to disclose or grant to the other party
any right to the technology that it brings to this Agreement, or may acquire by
reason of the relationship of the parties under this Agreement.
ARTICLE IX -- FULL AGREEMENT WITHOUT DELEGATION, ASSIGNMENT OR ORAL MODIFICATION
This Agreement is the complete marketing agreement between SPACEHAB and
INTOSPACE. It replaces and supersedes the February 15, 1989 Exclusive European
Broker Agreement which hereafter is null and void. This Agreement also replaces
any other representations, communications and understandings, whether written or
oral, between SPACEHAB and INTOSPACE. No oral modification of this Agreement is
permissible. A course of dealing does not effect a waiver or modification unless
ratified in writing.
Neither party shall assign its rights or delegate or otherwise transfer its
duties under this Agreement without the prior written consent of the other
party.
ARTICLE X -- NOTICE AND COMMUNICATIONS
Any notice or communication necessary to ensure the timely performance of this
Agreement shall be sent to:
Xx. Xxxxx X. Xxxxx Xx. Xxxxxx X. von der Xxxxx
President Managing Director
SPACEHAB, Inc. XXXXXXXXX XxxX
Xxxxx 000 Xxxxxxxxxxxxxx 0
0000 Xxxxxx Xxxx Xxxx X-00000 Xxxxxxxx
Xxxxxx, Xxxxxxxx XXX Germany
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All notices and communications required pursuant to the performance of this
Agreement shall be in writing. The date of any notice is the date it is
received.
ARTICLE XI -- MISCELLANEOUS PROVISIONS
This Agreement shall be governed by the laws of the Commonwealth of Virginia,
USA.
Any controversy or claim arising out of or relating to this agreement, which
cannot be resolved in a timely manner by the mutual agreement of the parties,
shall be subject to arbitration in accordance with the commercial Rules of the
American Arbitration Association if effect at the time the arbitration is
initiated, unless the parties mutually agree otherwise, and judgement upon the
award rendered by the arbitration may be in any court having jurisdiction
thereof. Arbitration shall be held in the District of Columbia.
This Agreement shall inure to the benefit of and be binding upon the parties to
this Agreement and their successors and permitted assigns.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall be ineffective to the extent of such prohibition or
unenforceability only without invalidating the remaining provisions of this
Agreement and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
Either party may waive any breach by the other of any of the provisions
contained in this Agreement, or any default by such other party in the
observance or performance of any covenant, agreement or condition required to be
kept, observed or performed by a party under this Agreement, provided that such
waiver shall not be effective unless expressed in writing, and provided that no
act or omission by a party in respect of such breach or default shall extend to
or be taken in any manner whatsoever to effect any subsequent breach or default,
or to effect the rights of a party resulting from such subsequent breach or
default.
INTOSPACE shall not be responsible for the performance of any agreement between
SPACEHAB and its European customers. SPACEHAB shall hold harmless and indemnify
INTOSPACE with respect to any liability arising from any agreement between
SPACEHAB and a European customer. INTOSPACE shall not be responsible for
receiving any governmental approvals necessary for implementation of the
agreements between SPACEHAB and its European customers but shall assist SPACEHAB
and its European customers in obtaining any required approval.
In order to optimize its marketing efforts in European countries with national
space agencies, INTOSPACE may cooperate with selected local companies if so
deemed to be beneficial to acquire orders from national funding authorities.
INTOSPACE shall notify SPACEHAB of any prospective business cooperation
arrangements with third parties and will give SPACEHAB the opportunity to review
and approve such arrangements prior to INTOSPACE implementing such arrangements.
The parties shall use their best efforts to inform the other of any relevant
activity undertaken that may affect or be related to the subject of this
Agreement.
ARTICLE XII -- AGREEMENT TERM
This Agreement shall take effect on July 1, 1998 with a term of three (3) years.
The Agreement may be extended by mutual written agreement of the parties only.
Either SPACEHAB or INTOSPACE may terminate this Agreement at any time after two
years from the effective date upon six (6) months prior written notice.
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Obligations to pay marketing fees incurred during the period this Agreement is
in effect and commitments with respect to the protection of proprietary
information shall survive the termination of this contract and shall remain
continuing obligations of the parties.
Signed on this 12th day of June, 1998.
SPACEHAB, Inc. INTOSPACE, GmbH
/s/ Xxxxx Xxxxx
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Xxxxx X. Xxxxx Xxxxxx X. von der Xxxxx
President Managing Director
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Agreement
By and between
SPACEHAB, Inc.
Suite 360, 0000 Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
XXX
and
INTOSPACE GmbH
Xxxxxxxxxxxxxx 0
X-00000 Xxxxxxxx
Germany
Preamble
Since 1989 SPACEHAB, Inc. and INTOSPACE GmbH have maintained a close and
mutually beneficial relationship in marketing research payload flight
opportunities on SPACEHAB's Space Shuttle-based carriers to user organizations
in Europe. This agreement furthers that relationship through the purchase by
SPACEHAB of 7.5% of INTOSPACE's share capital and the establishment of a Joint
Customer Support Office.
1. SPACEHAB PURCHASE OF INTOSPACE SHARES
1.1 Status and Shareholders
INTOSPACE GmbH is a private company under German law with headquarters in
Hannover, Germany, and an office in Brussels, Belgium, and is presently owned by
64 shareholders from 9 European countries.
1.2 Share Value
The total value of INTOSPACE's share capital is DM 1 Million or approximately
U.S. $555,600. Since its establishment in 1985, INTOSPACE's shareholders have
invested additional funds in the company.
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1.3 Steering Board Membership
As provided for in the INTOSPACE Shareholders' Agreement of May 1, 1986,
shareholders having 7.5% of the total share capital have the right to nominate a
representative to the INTOSPACE Steering Board.
1.4 Share Purchase
SPACEHAB, Inc. agrees to purchase 7.5% of the INTOSPACE share capital at a price
of US $293,000. This purchase will take effect on July 1, 1998. The purchase is
payable within 30 days after signature of the purchase/transfer agreement. The
payment will be made to INTOSPACE's bank account and in any event will be made
no later than July 31, 1998.
1.5 Shareholders' Agreement
SPACEHAB, Inc. will enter into and sign the Shareholders' Agreement on INTOSPACE
GmbH, Revised Issue No. 1 of May 1, 1986.
1.6 Steering Board Nomination
As provided in the INTOSPACE Shareholders' Agreement, SPACEHAB, Inc. will be
entitled to one seat on the INTOSPACE Steering Board and will nominate the
SPACEHAB representative in due course.
2. JOINT EUROPEAN CUSTOMER SUPPORT OFFICE
2.1 Objective
SPACEHAB and INTOSPACE plan to establish a Joint Customer Support Office to
provide support to SPACEHAB's European customers and to enhance INTOSPACE's
marketing of research payload flight opportunities on SPACEHAB's Shuttle-based
carriers.
2.2 Operation
To guide the operation the Joint Customer Support Office, INTOSPACE and SPACEHAB
will prepare an office operations plan. This plan will include a baseline office
budget as well as a target budget for the three-year period. The line and target
budget figures will be based on the estimates developed by INTOSPACE and
SPACEHAB in March 1998. The office operations plan will also elaborate on
INTOSPACE's planned marketing activities on SPACEHAB's behalf. The operations
plan will be completed no later than August 30, 1998 and will be reviewed
annually in June.
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INTOSPACE's Managing Director and SPACEHAB's Vice President for Marketing and
Sales will be jointly responsible for the overall direction of the Joint
Customer Support Office, and for approval, review and changes to the joint
office operations plan. Both representatives must approve the annual office
operations plan, and any amendments thereto.
2.3 Staff
The Joint Customer Support Office will be staffed by one permanent member from
INTOSPACE supplemented by occasional visits of SPACEHAB personnel for technical
liaison and marketing support.
INTOSPACE and SPACEHAB will each fund the cost of their respective personnel
assigned to work at the Joint Office. This includes travel and applicable local
living expenses.
INTOSPACE and SPACEHAB will jointly recruit a manager for the Joint Office. In
this new capacity, the Joint Office manager will carry a business card,
representing the Joint Customer Support Office.
2.4 Location
The office will be established in the vicinity of the European Space Agency's
ESTEC center. INTOSPACE and SPACEHAB plan to select a location which is close to
other space business activities and convenient from the international travel
standpoint. This is likely to be in or near the university town of Leiden.
2.5 Expenses
INTOSPACE will be responsible for providing office space and other necessary
services, and for all expenses associated with the operation of the Joint
Office. SPACEHAB's sole contribution to these expenses will be made through
SPACEHAB's purchase of INTOSPACE shares as set forth in Paragraph 1.4 above.
2.6 Liability insurance
INTOSPACE and SPACEHAB will each maintain general liability insurance to cover
the acts of their respective employees who support the activities of the Joint
Customer Support Office and other related SPACEHAB marketing activities in
Europe.
2.7 Duration
The activities of the Joint Customer Support Office will begin operations on
September 1, 1998 and continue through June 2001. During the third year of
operations, INTOSPACE and SPACEHAB will review the current status and
accomplishments of the Joint Customer Support Office to determine whether and
under what conditions the Joint Office should be continued.
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3. COMING INTO FORCE
This Agreement will come into force, if and when the European Marketing
Agreement by and between both parties is signed.
Signed on this 12th day of June, 1998.
SPACEHAB, Inc. INTOSPACE GmbH
/s/ Xxxxx X. Xxxxx /s/ Xxxxxx X. von der Xxxxx
------------------------- ------------------------------
Xxxxx X. Xxxxx Xxxxxx X. von der Xxxxx
President Managing Director
