EXHIBIT 10.3
*** TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(3),
200.80(b)(4) and 230.406
ORBCOMM CONCEPT DEMONSTRATION SATELLITE BUS, INTEGRATION TEST AND
LAUNCH SERVICES PROCUREMENT AGREEMENT B10LG1197
This ORBCOMM Procurement Agreement (this "Agreement") is made and entered into
as of the 10th day of March, 2005 (the Effective Date") between ORBCOMM Inc, a
Delaware corporation ("ORBCOMM") with its principal place of business located at
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corporation ("OHB") with its principal place of business located at
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WITNESSETH
WHEREAS ORBCOMM has received United States Government Contract
#HSCG-23-04-C-ADA-001 (the "United States Government Contract" or the
"Contract") from the United States Coast Guard to develop the capability to
receive, process, and forward the Automatic Identification System (AIS) Signal
via spacecraft and associated ground systems; and
WHEREAS ORBCOMM has received an order under the Contract to deliver a Concept
Demonstration Communications Payload and to launch and demonstrate functionality
of the same; and
WHEREAS ORBCOMM has contracted with Orbital to provide the ORBCOMM payload and
AIS payload; integrate the payload into Concept Demonstration Satellite CDS
payload module structure, perform all payload functional tests, support payload
module integration with bus module and initial payload operations in orbit, and
WHEREAS ORBCOMM desires to contract with OHB for the overall CDS design, bus
module and payload module structure manufacture, payload module and bus module
integration, assembled satellite environmental tests, launch services, and
on-orbit testing of bus module for ORBCOMM as specified in the Contract
Statement of Work. Additionally, as an option defined herein, there is a
potential for OHB to provide thereafter up to five (5) additional identical or
similar such Satellite Buses for the AIS and related Launch Services(s), if
approved, and an option for six (6) ORBCOMM satellites with integrated AIS
payloads and/or an option for six (6) ORBCOMM satellites with integrated
payloads similar to the current ORBCOMM payload.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1 - DEFINITIONS
"ORBCOMM Concept Demonstration Satellite Spacecraft Bus Integration and Test and
Launch Services Statement of Work"" dated shall mean the bus and launch vehicle
statement of work and specifications attached hereto as Exhibit A,
"Options" shall mean the Additional Busses, Integration, Test and Launch
Services as set forth in Section 2.1.
"Satellite Bus Module" shall mean the satellite equipment required to host the
ORBCOMM Payload as defined in the Bus integration Test and Launch Service
Specifications and the Bus Integration Test and Launch Services Statement of
Work (SOW) dated as set forth at Exhibit A, Part 1
Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
"Launch Services" shall mean the launch services required to transport the
Concept Demonstration Satellite into space as defined in the Bus Integration
Test and Launch Service Specifications and the ORBCOMM Concept Demonstration
Satellite Spacecraft Bus, Integration and Test and Launch Services Statement of
Work.
ARTICLE 2 - SCOPE OF WORK
Consistent with the terms and conditions set forth herein, OHB shall furnish the
management, labor, facilities and materials required for the performance by it
of the following work (collectively, the "Work"):
Section 2.1 - Base Requirements. (a) OHB shall design and develop the ORBCOMM
Concept Demonstration Satellite (CDS) with modular payload and bus concept,
manufacture the bus module and payload module structure, perform the bus module
and payload module integration, perform the CDS functional tests with the
customer's or payload contractor's support, perform environmental tests of CDS,
launch, perform on-orbit checkout of CDS bus module, support initial operations
of payload module and bus module control via ORBCOMM SCC as well as providing
the Spacecraft Bus Simulator in accordance with the Concept Demonstration
Satellite Bus, Integration and Test and Launch Services Statement of Work as set
forth in Exhibit A.
(b) Options Requirements. ORBCOMM shall have the option (the " Option") to
require OHB to construct and deliver to ORBCOMM up to five additional spacecraft
busses (the "Optional Busses")
And/Or
ORBCOMM shall have the option (the "Option") to require OHB to provide an
additional Launch Vehicle to launch all six spacecraft buses and associated
communications payloads (the "Optional Launch Vehicle")
Or
Orbcomm shall have the option (the "Option") to require OHB to construct and
deliver to ORBCOMM six (6) ORBCOMM spacecraft without AIS integrated payloads
(the "Optional ORBCOMM Spacecraft")
(c) The Options shall be exercisable, at the times and prices defined in Exhibit
F.
(d) Nothing in this agreement or option provision shall be construed as
requiring ORBCOMM to exercise the option rights granted hereunder.
Section 2.2 - Other Documentation. OHB shall prepare, develop and submit to
ORBCOMM the documentation set forth in the Contract Data Requirements Lists
(CDRLs) of the Concept Demonstration Satellite Spacecraft Bus Integration and
Test and Launch Services Statement of Work as set forth at Exhibit A.
Section 2.3 - Satellite Bus Storage. OHB shall provide ORBCOMM technical
services and facilities associated with the storage of the satellite bus(ses)
when required by ORBCOMM. If such services and storage are required due to the
actions or inactions of OHB, OHB shall be responsible for the costs of the same.
Section 2.4 - Regulatory and Export Matters. OHB shall provide to ORBCOMM the
technical data needed by ORBCOMM (a) to obtain and maintain the required United
States regulatory authority needed to manufacture and export the satellite Bus
and Launch Services technical data and (b) to take reasonable actions in any
regulatory proceedings to defend any claims against any regulatory authority
granted to ORBCOMM or any of its subsidiaries in connection with the satellite
bus(ses) and launch service(s).
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Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
ARTICLE 3 - WORK SCHEDULE AND DELIVERY
Section 3.1 (a) Completion of the milestones is set forth in Exhibit B - Work
Schedule and Delivery (the "Milestones"). Completion of Milestones shall be
determined as described in Section 5.3.
(b) Satellite Bus. The first Satellite Bus, Integration and Tests with payload
shall be completed by the later of December 31, 2005 or 3 months after delivery
of integrated payload module from Orbital to OHB.
(c) Launch Services. The Launch Services shall be provided no later than the
close of Q1 2006.
(d) Options. Options shall be ready for delivery in accordance with the delivery
schedule defined in Exhibit B
ARTICLE 4 - CONSIDERATION
Section 4.1 - Price. The price for all products and services to be provided
hereunder exclusive of any options exercised hereunder (the "Price") is as
follows:
$2,416,000.00
The Price represents a fixed price. The Price includes all transportation
(except integrated payload module from US to Germany) and related costs for
shipment of each item listed in Section 2.1(a) to its relevant destination as
required by the terms of this Agreement and attachments hereto.
Section 4.2 - Price of Options. The prices for the Options (the "Option Prices")
shall be provided by OHB to ORBCOMM no later than ninety (90) days after
execution of this Agreement and shall be set forth in Exhibit F.
The price and terms of any such Option Payloads shall be no less favorable to
ORBCOMM than those made available by OHB to NASA or ESA for similar products,
without any obligation on ORBCOMM to pay NASA or ESA prices.
Section 4.3 - Technical Assistance. For technical assistance tasks, other than
those set forth in Section 2.1, the following shall apply:
(a) OHB shall provide to ORBCOMM on a time and materials basis as defined in
Exhibit E technical services, as and when required and directed by a Task Order
issued by ORBCOMM, relating to the Busses and/or Launch Services and/or
Spacecraft Bus. OHB shall be required to submit to ORBCOMM a monthly report in
writing for active Task Orders that outlines the total hours expended during the
month and the total dollar amount spent, including cumulative amount. OHB shall
not make any charge at rates in excess of those set forth at Exhibit E without
receiving the prior express written permission of ORBCOMM to charge for the
same.
Section 4.4 - Taxes (a) The Price (including any Option Prices) does not include
United States federal, state and/or local sales, use and/or excise taxes levied
upon or measured by the sale, the sales price, or the use of the items to be
delivered or services required to be performed hereunder. The Price (including
any Option Prices) does include all German and Russian federal, state and/or
local sales, use and/or excise taxes levied upon or measured by the sale, the
sales price, or the use of the items to be delivered or services required to be
performed hereunder. If any such German or Russian tax is determined to be
legally due from ORBCOMM, ORBCOMM shall pay it separately. OHB shall pay, or
reimburse ORBCOMM for all out-of-pocket expenses incurred in connection with any
such German or Russian taxes.
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Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
Section 4.5 - Insurance. (a) The Price(s) includes the cost of property
insurance and general and product liability insurance for the Spacecraft
Bus(ses), Launch Vehicle(s), and Spacecraft Bus Simulator until ORBCOMM takes
delivery, of the same. Delivery of the Spacecraft Bus and Launch Services shall
be deemed to have occurred at such time as the Bus shall have been integrated on
the launch vehicle and successful Launch Vehicle Filling Authorization Review
(before ignition of the launcher) has occurred. Delivery of the Spacecraft Bus
Simulator shall be deemed to have occurred at such time as the Spacecraft Bus
Simulator is delivered to and installed at ORBCOMM's facilities. Delivery of the
Satellite Control Center upgrades shall be deemed to have occurred as of such
time as the upgrades are installed and are operational at ORBCOMM's facilities.
Such insurance shall be in an amount of not less than the standard OHB policies
in effect as of the date of this contract,
(b) Launch Insurance. At ORBCOMM's option, OHB shall provide launch insurance
covering the Spacecraft Buses and Launch Services. ORBCOMM shall be responsible
to pay for such insurance. OHB shall provide ORBCOMM with quotations for such
insurance upon request by ORBCOMM therefore. In the event ORBCOMM orders such
insurance, such insurance shall be maintained by OHB through launch plus ___
days after launch. ORBCOMM shall be named as an additional insured with regard
to such insurance and OHB shall provide to ORBCOMM proof of such insurance upon
request. OHB shall direct the carrier(s) to pay directly to ORBCOMM all proceeds
which are to be paid from such insurance due to any and all claims made
thereunder.
ARTICLE 5 - PAYMENT TERMS AND INVOICING
Section 5.1 - Invoicing.
For all Milestone Payments, OHB shall submit an invoice for each Milestone
Payment in accordance with the payment schedule defined in Exhibit E. Each
invoice shall identify the Milestone for which payment is being requested and
the amount requested. Payments shall be due net 5 days after ORBCOMM receives
payment for the same from the Coast Guard. For all invoices for time and
material tasks, OHB shall provide a certificate, signed by the Vice President
and Controller of OHB or by any other officer designated by the Vice President
and Controller of OHB, certifying the accuracy of the costs incurred that are
the subject of the respective invoice. The invoices shall include, but not be
limited to, a listing of labor costs, including labor hours by bid rate group,
material subcontracts and ODC's as to enable ORBCOMM to fully comprehend the
total monthly charges being invoiced by OHB. Invoices shall be submitted to the
following address:
ORBCOMM, Inc
Attn: Controller
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Section 5.2 - Milestone Achievement. (a) A Milestones shall be deemed achieved
upon the successful demonstration by OHB that the Work that is the subject of
the Milestone has been completed in accordance with the requirements of this
Agreement, and that all conditions established by this Agreement as
prerequisites to payment of the invoice therefore have been fulfilled to
ORBCOMM's reasonable satisfaction.
(b) In the event that OHB fails to achieve any Milestone on or before the
scheduled completion date shown in Exhibit B, ORBCOMM shall be relieved of its
obligation to pay the applicable amounts specified for such Milestone until such
time as OHB achieves such Milestone or obtains a waiver in writing from ORBCOMM
for such achievement. OHB's failure to timely complete any Milestone shall not
relieve ORBCOMM from its obligation to pay for other achieved Milestones.
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Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
(c) If ORBCOMM concludes that the Milestone event for which any invoices have
been submitted has not been successfully completed in accordance with the
requirements of this Agreement or that any condition established by this
Agreement as prerequisite to payment has not been fulfilled, it shall provide
OHB written exceptions within ten (10) business days after receipt of the
invoice, specifying in detail the non-conformance. The applicable payments shall
be made within five (5) business days after ORBCOMM's receipt of OHB's response,
in writing, addressing in detail each of ORBCOMM's exceptions; provided however,
if with respect to any such Milestone, ORBCOMM reasonably concludes that OHB's
response to ORBCOMM's exceptions to be non-responsive and so notifies OHB as
provided in Subsection 5.5 (c) (i) below, ORBCOMM may, at its sole discretion,
defer any unpaid amount of the relevant Milestone payment until the resolution
of the matter as described in Subsection 5.3(c)(i) below.
(i) In the event ORBCOMM concludes that OHB has been non-responsive to ORBCOMM's
exception to a Milestone, ORBCOMM shall notify OHB thereof in writing (the
"Exception Notification") within ten (10) business after receipt of OHB's
response to ORBCOMM written exception. The Exception Notification shall (A)
specify in detail the reason(s) ORBCOMM believes OHB's response to be
non-responsive, and (B) advise OHB formally that ORBCOMM intends to withhold
payment for such Milestone(s). On receipt of an Exemption Notification from
ORBCOMM, OHB shall have thirty (30) days to demonstrate the achievement of the
relevant Milestone to the reasonable satisfaction of ORBCOMM. If OHB is unable
to make such a demonstration, ORBCOMM may defer payment as provided above. If
OHB continues to dispute the ORBCOMM assertions of non-compliance, either party
may, at any time after the filing of the OHB additional response as permitted by
this Section 5.3 (c)(i), submit the matter to be resolved by arbitration as
provided in Section 12.3 hereof.
Section 5.3 - Certification and Auditor Review of Submitted Invoices. In order
to assure ORBCOMM that the invoices that are submitted accurately reflect (i)
the actual hours expended, and actual cost incurred for travel expenses,
material and other direct cost (ODC) for T&M payments, and (ii) the correct
Milestone completion effort to be invoiced under the terms of this Agreement,
OHB will provide with each invoice a certification executed by the Vice
President of OHB's Space Systems Group that the sums invoiced are current,
complete and accurate and that they are allowable and allocable to the invoice
being presented and to this contract. If the United States Government should
require that invoices be certified in addition to the above referenced
certification, OHB shall provide such other Government required certifications
as are required. ORBCOMM may request an independent outside auditing firm
selected by ORBCOMM or request the Government to review the accuracy of
submitted invoices under this agreement against OHB's accounting books and
records. In the event that an error was made and ORBCOMM was overcharged, the
amount of the overcharge shall be determined by the auditors and the overcharged
amount, shall be refunded to ORBCOMM within thirty (30) business days from the
date of notification by the auditors. To the extent that OHB does not agree with
the auditors' determination, such dispute shall be settled in accordance with
Section 12.3.
Section 5.4 - Non-Waiver of Right of Rejection. The making of any payment by
ORBCOMM hereunder shall not be construed as a final acceptance of the work
performed up to the time of the application of such payment(s), nor shall such
payment(s) be considered to relieve OHB of its obligation to complete all tasks
as required by and in accordance with the terms of this Agreement. Furthermore,
the making of any payment by ORBCOMM hereunder shall not prejudice ORBCOMM's
right at any subsequent time to question or contest the propriety of any charge
included in any invoice in respect of which such payment was made.
ARTICLE 6 - ACCESS AND ACCEPTANCE
Section 6.1 - Access. Subject to the receipt of any and all required
governmental approvals, ORBCOMM authorized representatives shall have the right,
on a not-to-interfere basis, at all reasonable times during the performance of
this Agreement, to monitor the Work in progress (including without limitation
all test activities with access to related computer program information
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Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
to the extent reasonable safeguards can be implemented) at the plant(s) of OHB.
OHB shall use all commercially reasonable efforts to incorporate in all of its
subcontracts OHB's and ORBCOMM's rights to monitor work in progress as provided
herein, provided that any additional direct expenses associated with the
exercise or implementation of such rights shall be borne by ORBCOMM.
Section 6.2 - Inspection and Acceptance. (a) For each item to be delivered under
this Agreement, OHB will provide ORBCOMM with prior written notice at least 15
days in advance of anticipated final testing. ORBCOMM shall be permitted to
witness all such final testing. ORBCOMM authorized representatives shall
promptly conduct a final inspection of the Satellite Bus and any Option Busses
ordered in accordance with the Verification and Test Plan or, at ORBCOMM's
option, witness such inspection by OHB and shall either approve them for
acceptance in writing or promptly notify OHB in writing of the particulars in
which they are non-conforming with the applicable Specifications.
(b) ORBCOMM will notify OHB within 15 days of the final testing of any
particulars in which ORBCOMM believes the item(s) tested does not conform to the
requirements of this Agreement, including but not limited to the requirements of
the specifications and statement of work. OHB shall promptly remedy any
non-conformities or deficiencies in the item(s) so tested and OHB shall
re-perform all relevant testing concerning the item(s) in question and provide
ORBCOMM with the results thereof. ORBCOMM shall be notified at least (15) days
in advance of any retesting of the item(s) and shall be permitted to witness the
retesting thereof. ORBCOMM shall be permitted to witness any such retesting and
to verify that all nonconformities or deficiencies in the item(s) have been
corrected. In the event that any such nonconformity or deficiency has not been
corrected, the provisions of this Section shall continue to apply until such
time as the nonconformity or deficiency has been corrected.
(c) If no objections have been sent by ORBCOMM within (15) days of the
inspection, the relevant bus shall be deemed to have received approval for
acceptance by ORBCOMM. Corrections required to render the buses in conformance
with the applicable Specifications shall be made by OHB at its cost. The
decision how to make the corrections shall be at OHB's sole discretion and an
item found to be non-conforming during or after testing performed under this
Agreement shall at ORBCOMM's request and without charge to ORBCOMM be retested
by OHB after OHB has remedied the non-conformance. ORBCOMM may be assisted in
all inspections by its consultants or advisors. This final inspection and
acceptance shall take place at OHB's or a designated subcontractor facility
prior to delivery to ORBCOMM.
Section 6.3. - Corrections in Delivered Busses or Known Heritage Components. (a)
If at any time, either OHB or ORBCOMM becomes aware that any bus delivered under
this contract or any known heritage component used or to be used in conjunction
with the work to be performed hereunder is defective as a result of the
operation of on-orbit Satellites which defect(s) has resulted from a defect in
workmanship or materials or adherence to the statement of work or specification
then the following shall occur: (i) if the discovery is made by OHB, OHB shall
notify promptly ORBCOMM of such defects and to the extent that ORBCOMM
determines that such defects would, in the reasonable opinion of ORBCOMM
materially adversely affect the operation of the ORBCOMM AIS System, OHB shall
take prompt and appropriate corrective measures to eliminate any such defects
from all unused busses, or (ii) if a payload issue is discovered by ORBCOMM
after the payloads have been delivered to the integration facility, ORBCOMM
shall notify promptly OHB of such defects that would, in the reasonable opinion
of ORBCOMM, materially and adversely affect the operation of the ORBCOMM AIS
System. ORBCOMM shall also identify the corrective actions to repair the
payload. OHB shall be obligated within ten days to respond to ORBCOMM as to the
impact to implementing the corrective actions. The decision how to make the
corrections shall be mutually agreed upon by ORBCOMM and OHB.
(b) If the defects so identified are not the result of any failure to adhere to
the applicable specifications and SOW on the part of OHB, ORBCOMM shall pay the
costs of such corrections
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Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
identified in Section 6.3(a) and OHB shall charge for the effort expended on
such corrections; provided however, that if the material defect is found as a
result of on-ground testing of the busses by OHB or OHB's subcontractors, then
the corrections shall be deemed to be in the Scope of Work. OHB's obligation to
correct such material defects in the bus and/or known heritage equipmentses
shall end the sooner of Twelve (12) months after acceptance of the hardware by
ORBCOMM or launch. After such date corrections to such bus and/or known heritage
equipmentses shall be made at a price mutually agreed to by ORBCOMM and OHB.
ORBCOMM shall decide whether to proceed with the corrections of such material
defects. If the defects so identified result from the failure of OHB to adhere
to the applicable specifications and/or SOW, then OHB shall be responsible to
correct the defect in workmanship and/or material at no increase in Contract
price.
Section 6.4. Pre-Shipment Review - OHB will convene a Pre-Shipment review as
described in the statement of work for the CDS and Spacecraft Bus Simulator to
be delivered under this Agreement. OHB will advise ORBCOMM in writing at least
45 days in advance of the anticipated Pre-Shipment review. ORBCOMM and ORBCOMM
designated consultants shall be permitted to attend the Pre-Shipment review. At
the Pre-Shipment review OHB will provide to ORBCOMM confirmation and
certification that the CDS and Spacecraft Bus Simulator being reviewed conform
to all requirements of the specifications and statement of work and will further
provide to ORBCOMM copies of all Qualification and Acceptance Test reports and
results and all required governmental licenses, approvals or other
authorizations. OHB may not ship the CDS and the Spacecraft Bus Simulator to be
delivered under the terms of this Agreement until such time as ORBCOMM has
accepted the item(s) pursuant to the Pre-Shipment review. Pre-Shipment reviews
shall be conducted in like manner for all option items ordered under this
agreement.
ARTICLE 7 - TITLE AND RISK OF LOSS
Section 7.1 - Title Passage and Risk of Loss. Title to, beneficial ownership of,
and right to possession to and risk of loss of or damage to the Spacecraft Bus
and any option busses ordered hereunder shall pass to ORBCOMM upon delivery of
the CDS bus and Launch Services in accordance with the provisions of Article
4.5(a) infra Title to, beneficial ownership of and risk of loss or damage to the
Spacecraft Bus Simulator shall pass to ORBCOMM upon final acceptance at
ORBCOMM's facilities in Dulles, VA.
ARTICLE 8 - CHANGES
Section 8.1 - Changes. At any time and by written order, ORBCOMM may make
changes within the general scope of this Agreement in (a) the Specifications or
the Statements of Work, (b) the method of packing or shipment, (c) place or time
of delivery, or (d) the quantity or type of the items to be delivered or
services required to be performed hereunder.
Section 8.2 - Adjustments to Agreement. (a) If any change causes an increase or
decrease in the Price, or in the time required for performance of any part of
the Work, whether or not directly changed by the order, ORBCOMM and OHB shall
negotiate an equitable adjustment to such Price, delivery schedule or other
provision of this Agreement. OHB shall perform the Work as changed pending
resolution of any negotiation under this Article 8.
(b) OHB must assert in written proposal that addresses its right to an
adjustment under this Article 8 within thirty (30) days from receipt of the
written order.
(c) If OHB's proposal includes the cost of replacing property made obsolete or
excess by the change, ORBCOMM shall have the right to prescribe the manner of
the disposition of the obsolete or excess property.
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Concept Demonstration Satellite Bus Integration Test
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(d) Failure to agree to any adjustment shall be a dispute and shall be settled
in accordance with Section 12.3 provided that nothing in this Section 8.2 shall
excuse OHB from proceeding with the Work as changed.
(e) The exercise of any Option contemplated by this Agreement shall not be
considered a change to this Agreement.
ARTICLE 9 - REPRESENTATIONS AND WARRANTIES
Section 9.1 - Representations and Warranties. OHB represents and warrants that
(a) it has and it shall deliver to ORBCOMM at the time of title passing pursuant
to Article 7, sole and good legal and equitable title to the items to be
delivered or to the extent applicable, the services required to be performed
pursuant to Article 2, free and clear of any and all security interests, liens,
claims, charges and encumbrances of any kind or nature whatsoever, together with
full power and lawful authority to sell, deliver and perform the items to be
delivered or to the extent applicable, the services required to be performed
under Article 2, (b) the items to be delivered or to the extent applicable, the
services required to be performed shall be free from defects in material and
workmanship and shall operate and conform to the statement of work and
specifications as set forth in the in the contract, (c) neither the delivery of
the items nor the performance of the services required to be performed by OHB
shall in any way constitute an infringement or other violation of any copyright,
trademark or patent or other validly registered enforceable intellectual
property right of any third party, and (d) the items to be delivered and the
services required to be performed hereunder shall be in compliance with all
applicable United States laws, rules and regulations.
Section 9.2 Remedies for Breach of Warranty and Warranty Period. Unless a breach
of warranty by OHB shall be cause for termination for default of this Agreement
in which event the provisions of Section 10.2(a)(vi) shall apply, ORBCOMM's
remedy for any item failure, defects, failure to conform with applicable
Specifications or any other requirements until twelve months following launch
shall be limited to (i) non-payment to OHB of the Price for the item(s) so
affected, including where appropriate return of funds provided to OHB pursuant
to Milestone payments and (ii) termination remedies under Article 10.
Section 9.3 - Limitation of Liability. THE WARRANTY SET FORTH HEREIN IS IN LIEU
OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 9.4 - Patent Indemnification. (a) In the event of a breach of the
representation and warranty set forth in Section 9.1(c), OHB agrees to indemnify
and hold harmless ORBCOMM and its permitted successors and assigns of its
products from and against all loss, damages, claims, demands and suits at law or
in equity, for actual or alleged claims, demands and suits at law or in equity,
arising out of such breach or alleged breach.
ARTICLE 10 - TERMINATION
Section 10.1 Termination. (a) This order may be terminated at any time by the
mutual agreement of the parties, which agreement shall specify their respective
remaining rights and duties.
(b) ORBCOMM may, by written notice of termination to OHB terminate this
Agreement upon the failure of OHB (a) to achieve any of the Milestones within 8
weeks after the scheduled completion date set forth in Exhibit B, provided that
scheduled completion dates shall be extended by any excusable delays as a result
of a force majeure event under Section 12.2; (b) to comply in any
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Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
material respect with any of the provisions of this Agreement and to correct
such failure, within sixty (60) days from the date of OHB's receipt of written
notice thereof from ORBCOMM authorized representative setting forth in detail
ORBCOMM basis for termination of the Agreement; or (c) termination of ORBCOMM's
prime contract by ORBCOMM's customer, the United States Government.
(c) OHB shall be in default under this agreement if it fails to deliver the
goods covered hereunder, or does so beyond a reasonable time, or delivers goods
of a quality differing from or inferior to the referenced applicable
specifications.
(d) OHB shall be in default under this Agreement in the event that OHB fails to
comply with any applicable federal, state or local laws pertaining to the
subject matter of this Agreement or the work required to fulfill the
requirements of this Agreement.
(e) This order may be unilaterally terminated by ORBCOMM for default by OHB
without prejudice to any claim for damages or other relief arising out of such
default.
(f) This order or, at the option of the ORBCOMM, individual orders placed
hereunder may be terminated in whole or in part by ORBCOMM for its convenience
or because of termination of a relevant United States Government prime contract.
Section 10.2 - Remedies Upon Termination.
(a) In the event of termination of this Agreement by ORBCOMM as provided for
hereinabove, OHB shall:
(i) At ORBCOMM's request, to the extent it is permitted to do so by law,
regulation and any third party obligations pertaining thereto, deliver to
ORBCOMM all completed items to be delivered under Article 2, work-in-process,
drawings, and other technical data associated with the Work developed as part of
the performance of the completed Milestones of this Agreement along with
appropriate licenses to the intellectual property embodied in all such items,
drawings and other technical data sufficient to enable ORBCOMM to use, make and
have made such items, as would have been required as a deliverable had the work
continued to completion, provided that such data and licenses shall be used
exclusively for purposes related to the ORBCOMM System and shall be subject to
appropriate confidentiality obligations.
(ii) At ORBCOMM's request and to the fullest extent permitted by law, and
subject to applicable laws, regulations and terms of this Agreement, transfer
the applicable approvals, permits, and licenses pertaining to the goods
delivered under this Agreement.
(iii) Take all commercially reasonable steps to protect and preserve the
property referred to in (i) above in the possession of OHB until delivery to
ORBCOMM.
(iv) In the event this agreement is terminated as a result of a termination for
convenience of the United States Government prime contract in support of which
this agreement has been entered, provide to ORBCOMM as soon as possible but in
any event not later than ninety (90) days after receipt of notice of such
termination for convenience, a certified statement of all damages for which it
will require ORBCOMM to seek reimbursement from the Government. In such event,
OHB shall retain all Milestone payments received to date and be reimbursed for
all costs (including a reasonable fee thereon) that are in excess of Milestone
payments received and for which ORBCOMM is able to obtain payment from the
United States Government. OHB shall cooperate fully with the United States
Government and ORBCOMM regarding the presentation of a termination for
convenience request for payment, including but not limited to providing all
required certifications and permitting all required United States Government
audits in conjunction therewith. ORBCOMM shall present the OHB termination for
convenience costs to the Government and shall use its best efforts to permit OHB
to be able to participate directly with the Government in the negotiation of
those termination for convenience costs which pertain to OHB.
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In such event, ORBCOMM shall not be responsible to pay to OHB any damages other
than those which it is able to collect from the United States Government as a
result of the termination for convenience request for payment.
(v) In the event this Agreement is terminated solely for the convenience of
ORBCOMM (and not due to the termination of the relevant United States prime
contract), OHB shall be entitled to retain all Milestone payments received to
date and shall further be entitled to be reimbursed for all costs (including a
reasonable fee) in excess of such Milestone payments that have been incurred by
OHB in support of this Agreement. OHB shall have the obligation to mitigate all
such costs to the extent such mitigation is possible.
(vi) In the event that this Agreement is terminated for Default, ORBCOMM shall
be obliged to mitigate the damages sustained as a result of such default by OHB
to the extent permitted by the Contract. If ORBCOMM elects to complete the
undelivered items specified in the Agreement, OHB will be responsible for the
re-procurement cost of the remaining undelivered items. If ORBCOMM elects not to
complete the undelivered items specified in the Agreement, ORBCOMM and OHB shall
agree on the disposition and amount of payment for undelivered manufacturing
materials decided by the parties to be delivered to ORBCOMM. If ORBCOMM is
required to seek an alternate source for the terminated items in order to comply
with the requirements of the Contract, OHB will be responsible to reimburse
ORBCOMM for all costs associated with the acquisition from such alternate
source. Failure to agree will be a dispute under Article 12.3. OHB shall hold
ORBCOMM harmless and indemnify ORBCOMM from any and all claims demands,
assessments and all liabilities and costs related thereto for which ORBCOMM
becomes liable, including but not limited to any assessment of damages and/or
reprocurement costs by the United States Government.
(b) Any disagreement under this provision, including disagreements with respect
to ORBCOMM's right to seek a termination and the appropriate remedies for
termination, shall be resolved in accordance with Article 12.3 of this
Agreement.
ARTICLE 11 - OWNERSHIP OF INTELLECTUAL PROPERTY
Section 11.1 (a) Except as required by the terms of the Prime Contract, all
foreground IP related to the Work is the exclusive property of ORBCOMM. All
rights, title and interest in and to all background IP relating to the Work
shall remain exclusively in OHB and/or its subcontractors, notwithstanding OHB's
disclosure of any information or delivery of any data items to ORBCOMM or
ORBCOMM's payment to OHB for engineering or non-recurring charges. ORBCOMM shall
not use or disclose such information or property to any third party other than
as required by the terms of the Prime Contract without the prior written consent
of OHB. Title to all tools, test equipment and facilities not furnished by
ORBCOMM or specifically paid for by ORBCOMM and delivered to ORBCOMM under this
Agreement shall remain in OHB and/or its subcontractors. Foreground information
is defined as that data, regardless of format, that is first conceived,
developed or produced by OHB in the performance of this Agreement. Background
information is defined as data, regardless of format, and inclusive of all
technical information trade secrets, and proprietary information that was
conceived, developed or produced by OHB prior to performing under this Agreement
or outside of the efforts required by this Agreement.
Section 11.2 To the extent that computer software, source codes, programming
information and other related documentation relating to the Work, (the
"Background Information") are not deliverable data under this Agreement (or to
the extent that they are deliverable data, that no ownership or license rights
are being transferred to ORBCOMM), OHB, to the extent that it has the right to
do so, shall provide to ORBCOMM on an as needed basis, the right to access and
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Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
copy such Background Information to support its analysis of the ORBCOMM System,
to develop alternative solutions for technical problems affecting the operation
and management of the ORBCOMM AIS System and to design modifications to the
Background Information but in any event, not for any re-procurement. To the
extent that ORBCOMM designs modifications to the Background Information it shall
not have the right to implement such modifications without the prior written
consent of OHB, which consent shall not be unreasonably withheld.
Section 11.3 To the extent permitted by applicable law, each party grants to the
other party a worldwide fully paid non-exclusive license for use of the other
party's intellectual property as defined in Sections 11.1 and 11.2 and which is
necessary to be transferred by one party to the other for purposes of performing
the Work under this Agreement.
ARTICLE 12 - MISCELLANEOUS
Section 12.1 - Notices. (a) Except as otherwise specified herein, all notices,
requests and other communications required to be delivered to any party
hereunder shall be in writing (including any facsimile transmission or similar
writing), and shall be sent either by certified mail, return receipt requested,
by telecopy or delivered by overnight courier which provides tracking of
documents transported or delivered in person addressed as follows:
(i) If to OHB, to it at:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇-▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (or ▇▇▇▇▇ ▇▇▇▇▇)
(ii) If to ORBCOMM Inc, to it at:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)-▇▇▇-▇▇▇▇
Attention: President & CEO
Or to such other persons or addresses as any party may designate by written
notice to the others. Each such notice, request or other communication shall be
effective (i) if given by telecopy, when such telecopy is transmitted and the
appropriate answer back is received, (ii) if given by reputable overnight
courier, one (b) business day after being delivered to such courier, (iii) if
given by certified mail (return receipt requested), three 3 business days after
being deposited in the mail with first class postage prepaid, or (iv) if given
by any other means, when received at the address specified in this Section 12.1.
Section 12.2 Force Majeure. Neither party shall be responsible for failure or
delay in performance or delivery if such failure or delay is the result of an
act of God, terrorism, piracy, riot, or other hostilities, act of the public
enemy, embargo, governmental act, orders or regulations, fire, accident, war,
riot, strikes, inclement weather or other cause of a similar nature that is
beyond the control of the parties. The party experiencing a force majeure event
shall give prompt notice (unless precluded by the force majeure event itself
within 5 business days of the onset of the event) to the other party of the
occurrence of the event together with details thereof and an estimate of the
period of time during which it is anticipated to continue. A force majeure event
shall suspend the obligations of the party affected by the event until the force
majeure event ceases. 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 necessitated by such circumstances. Failure to agree on
an equitable extension shall be
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And Launch Services Procurement Agreement
considered a dispute and resolved in accordance with Section 12.3 hereof. A
force majeure circumstance shall not excuse performance unless the United States
Government excuses the performance of ORBCOMM under the Contract due to such
circumstance. In the event a force majeure event causes OHB to be delayed or to
be likely to be delayed for a period in excess of __ days, ORBCOMM at its sole
option shall be entitled to terminate this agreement. In such event, OHB shall
be entitled to be compensated in accordance with the provisions of Article
10.2(a)(i),(ii), (iii) and (v) infra.
Section 12.3 - Resolution of Disputes. (a) Any controversy or claim that may
arise under, out of, in connection with or relating to this Agreement or any
breach hereof, shall be submitted to a representative management panel of
ORBCOMM and OHB. Each of ORBCOMM and OHB may appoint up to two (2) individuals
to each panel. Such appointments shall be made within ten (10) days of the
receipt by the appointing party of notice of the existence of such controversy
or claim. The unanimous decision and agreement of such panel, shall resolve the
controversy or claim. If the panel is unable to resolve such matter within
thirty (30) days of the submission of such controversy or claim to such
individuals by way of unanimous decision, either party may remove the
controversy or claim for arbitration in accordance with Section 12.3(b).
(b) Any controversy or claim that is not resolved under Section 12.3(a) shall be
settled by final and binding arbitration in Washington, D.C., in accordance with
the then existing United States domestic rules of the American Arbitration
Association (the "AAA") to the extent not modified by this Section 12.3. In the
event that claims or controversies arise under this Agreement and/or any of the
Definitive Agreements, such claims or controversies may be consolidated in a
single arbitral proceeding. Unless otherwise agreed by the parties, the arbitral
tribunal shall be composed of three (3) arbitrators who are expert in satellite
communications systems and/or launch vehicles as may be appropriate depending on
the nature of the dispute. Each of ORBCOMM and OHB shall appoint one (1)
arbitrator. If any party fails to appoint an arbitrator within thirty (30) days
from the date on which another party's request for arbitration has been
communicated to the first party such appointment shall be made by the AAA. The
two (2) arbitrators so appointed shall agree upon the third arbitrator who shall
act as chairman of the arbitral tribunal. If the two (2) appointed arbitrators
shall not agree upon the appointment of the third arbitrator, such chairman
shall be selected by the AAA. In all cases, the arbitrators shall be fluent in
English. Judgement upon any award rendered by the arbitrators may be entered
into 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 attorneys'
fees incurred by the party seeking to enforce the award.
Section 12.4 - Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the Commonwealth of Virginia, USA without
giving effect to the provisions, policies or principles thereof relating to
choice or conflict of laws.
Section 12.5 - Binding Effect: Assignment. This Agreement shall be binding upon
and shall inure to the benefit of the parties and their respective successors
and permitted assigns. Neither this Agreement nor any interest or obligations
hereunder shall be assigned or transferred (by operation of law or otherwise) to
any person without the prior written consent of the other party, provided that
any party may assign this Agreement and its interest and obligations hereunder
to any wholly owned subsidiary of such party.
Section 12.6 - Order of Precedence. Inconsistencies between or among Articles of
Agreements and/or any attachment shall be resolved in the following order of
precedence:
(a) Article 1 through Article 12 of this Agreement
(b) the Statements of Work: and
(c) the Specifications.
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Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
Section 12.7 - Key personnel. OHB agrees that those individuals identified in
Exhibit C are necessary for the successful completion of the work to be
performed under this Agreement. Such key personnel shall be removed only after
proper advanced (two weeks minimum) consultation with ORBCOMM. Advanced
consultation shall include identification/qualifications of the replacement and
a transition plan. OHB shall take considerable effort to replace Key Personnel
with personnel of substantially equal qualifications and ability. In the event
of a dispute, ORBCOMM shall communicate the concern to OHB's senior management
to negotiate a mutually agreed upon alternative. Notwithstanding its role in
reviewing Key personnel adjustments, ORBCOMM shall have no supervisory control
over Key Personnel work, and nothing in this Section 12.7 shall relieve OHB of
any of its obligations under this Agreement, or of its responsibility for any
acts or omissions of its personnel. To the extent that the Key Personnel
voluntarily resign, ORBCOMM shall be consulted in the selection of the
replacement personnel but shall not have the right to approve such replacement
personnel.
Section 12.8 - Counterparts. This Agreement may be executed in any number of
counterparts of the signature pages, each of which shall be considered an
original, but all of which together shall constitute one and the same
instrument.
Section 12.9 - Headings. This section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
Section 12.10 - Amendment Waiver. Except as provided otherwise herein, this
Agreement may not be amended nor may any rights hereunder by waived except by an
instrument in writing signed by the parties hereto.
Section 12.11 - Entire Agreement. This Agreement and all exhibits (which are
hereby made part of this Agreement) contain the entire understanding between the
parties and supersede all prior written and oral understandings relating to the
subject hereof. No representations, agreement, modifications or understandings
not contained herein shall be valid or effective unless agreed to in writing and
signed by both parties.
Section 12.12 - Modification and Termination. This order may not be modified or
terminated orally. No claimed modification, termination or waiver of any of its
provisions shall be valid UNLESS in writing signed by ORBCOMM.
Section 12.13 - Government Contract Conditions. Since this order is being placed
in support of the United States Government Contract referenced above, this order
is subject to the following additional provisions:
(a) The terms and conditions of the United States Government Contract;
(b) Inspection at Source: ORBCOMM reserves the right to request Government
Inspection at source. In the event this right is exercised, OHB shall make all
necessary arrangements with the appropriate Government Agency for such
inspection and shall promptly furnish ORBCOMM with the resultant inspection
certificate(s); and
(c) Government Regulations: The provisions of the Federal Acquisition
Regulations and Defense Department Supplement thereto are incorporated herein by
reference as attached hereto at Exhibit "D." Where necessary to make the context
of these provisions applicable to this order, the term "Government" and
equivalent phrases shall include ORBCOMM, the term "Contractor" shall include
OHB, and the term "Contract" shall refer to this order. Where any reference
above contains alternative clauses, that alternative shall apply which is
required by or most consistent with ORBCOMM's Contract pursuant to which this
order is issued. The clauses set forth above shall be interpreted as referring
to the FAR or DFAR clause with the same or similar name in effect (including
revision by Defense Acquisition Circular) as of the date set forth on ORBCOMM's
Contract regardless of title or FAR/DFAR numbering. In the event that this order
is placed for a "commercial" product(s) as defined in FAR 52.202-1, only the
provisions of the Federal
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Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
Acquisition Regulations and Defense Department Supplement thereto set forth at
Attachment "A" hereto which are applicable to commercial item acquisitions shall
be applicable hereto. See in general FAR 52.244-6 and DFAR 252.225.7012.
Section 12.14 - False Statements. OHB acknowledges that whoever knowingly and
willfully makes any false, fictitious or fraudulent representations to the
United States Government either directly or indirectly may be liable to criminal
prosecution under 18 U.S.C. 1001.
Section 12.15 Certification Regarding Debarment, Suspension, Proposed Debarment
and Other Responsibility Matters.
In the event this order is placed in support of a United States Government prime
or subcontract, OHB herewith certifies to the best of its knowledge and belief,
that it and/or any of its principals
(i.) Are ( ) are not ( ) presently debarred, suspended, proposed for debarment,
or declared ineligible for the award of contracts by a federal agency;
(ii.) Have ( ) have not ( ), within a three year period preceding this offer,
been convicted of or had a civil judgment rendered against them for: commission
of fraud or a criminal offense in connection with obtaining, attempting to
obtain, or performing a public (federal, state or local) contract or
subcontract; violation of federal or state antitrust statutes relating to the
submission of offers; or commission of embezzlement, theft, forgery, bribery,
falsification or destructions of records, making false statements, or receiving
stolen property; and
(iii.) Are ( ) are not ( ) presently indicted for, or otherwise criminally or
civilly charged by a government entity with, commission of any of the offenses
enumerated above.
The OHB has ( ) has not ( ), within a three year period preceding this offer,
had one or more contracts terminated for default by any federal agency.
"Principals," for the purposes of this certification, means officers, directors,
owners, partners and persons having primary management or supervisory
responsibilities within a business entity (e.g. general manager, plant manager,
head of a subsidiary, division or business segment, and similar positions).
Section 12.16 Severability. If any term, condition, clause or provision of this
order shall be determined or declared to be void or invalid in law or otherwise,
then only that term, condition, clause or provision shall be stricken from this
order and in all other respects this order shall be valid and continue in full
force, effect and operation.
Section 12.17 Waiver. Any failure of ORBCOMM or OHB at any time to insist on
performance of any provision of this order shall not be construed as a waiver of
that provision in any later instance, nor shall it be construed as a waiver of
any other provision of this order.
Section 12.18 Limitation of Liability. In no event shall either party hold the
other liable for incidental, consequential or punitive damages.
Section 12.19 - Publicity. OHB, its subcontractors, vendors, representatives,
employees, officers, directors, shareholders, designees, agents and/or
consultants shall not issue news releases, articles, brochures, advertisements,
prepared speeches or any other information releases related to the work
performed or products delivered or to be delivered under this Agreement,
including the confirmation or denial thereof, without the prior written consent
of ORBCOMM. Any information releases issued by OHB shall be reviewed in advance
of release by ORBCOMM, and ORBCOMM shall have the right to reject any proposed
release or any portion of any proposed release in which event OHB shall not
issue such rejected release or rejected portion thereof.
ARTICLE 13 - LIST OF EXHIBITS AND SCHEDULES
Exhibit A STATEMENT OF WORK AND SPECIFICATIONS
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ORBCOMM PROPRIETARY INFORMATION
Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
Part 1A Concept Demonstration Satellite Spacecraft Bus, Integration and
Test and Launch Services Statement of Work
Part 1B Demonstration Spacecraft Bus Integration Test and Launch Services
Specifications
Exhibit B Work Schedule and Delivery
Exhibit C Key Personnel
Exhibit D United States Government Contract Flow Down Provisions
Exhibit E [***]
Exhibit F Option Prices
Exhibit G Schedules
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above written.
OHB SYSTEM, AG
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vorstand
ORBCOMM LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
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ORBCOMM PROPRIETARY INFORMATION
Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
EXHIBIT A
STATEMENT OF WORK AND SPECIFICATION
The following documentation shall be provided separately.
Part 1A
Concept Demonstration Satellite Spacecraft Bus, Integration and Test and Launch
Services Statement of Work
Drawing Number: B15071194
Part 1B
Demonstration Spacecraft Bus Integration Test and Launch Services Specifications
Drawing Number: B15051193
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Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
EXHIBIT B
WORK SCHEDULE AND DELIVERY
Basic Contract:
Deliver one (1) each Concept Demonstration Bus as defined in ARTICLE
1 and Exhibit A shall be completed by December 31, 2005.
Launch Services shall be provided no later than the close of Q1 2006
Delivery of all services, reviews and equipment will be in
accordance with Appendix A, Deliverable Services, Reviews and
Equipment.
Delivery of all documentation will be in accordance with Appendix A,
Documentation Requirements List.
Options:
Delivery of the optional prices will be completed within 90 days of
contract execution and shall include the following:
ITEM DESCRIPTION OF INFORMATION TO BY PROVIDED TO ORBCOMM
---- ----------------------------------------------------
Up to six additional Concept Demonstration Buses Price per spacecraft bus
(including all activities through on-orbit testing) Delivery schedule
Prime contractor role Provide the additional costs (if any) to become the
prime contractor with overall
mission responsibilities.
Launch services Price for launch services
Delivery schedule
Technical proposal Technical proposal defining the overall system
configuration, critical system budgets (power, mass,
thermal), and integration and test philosophy.
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Concept Demonstration Satellite Bus Integration Test
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EXHIBIT C
KEY PERSONNEL
The following individuals will be assigned to the Concept Demonstration
Satellite Bus Agreement effort in accordance with the provisions of ARTICLE 12.7
Program Manager Prof. ▇▇.▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Lead Systems Engineer Dipl. Ing. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Lead Electrical/RF Engineer Dipl. Ing. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Structural Engineer ▇. ▇▇▇▇▇▇▇
Payload Interface Engineer ▇. ▇▇▇▇▇▇▇
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EXHIBIT D.
FAR FLOW DOWN CLAUSES
ITEM CLAUSE # FAR TITLE DATE APPLICATION
---- -------- --------- ---- -----------
1. 52.203-3 Gratuities APR 84 Over SAT
2. 52.203-6 Restriction on Subcontractor Sales JUL 95 Over SAT to the Government
3. 52.203-7 Anti-Kickback Procedures JUL 95 Over SAT *
4. 52.203.10 Price or Fee Adjustment for Illegal or JAN 97 All Improper Activity
5. 52.203-11 Certification and Disclosure Regarding Payments APR 91 Over $100,000.0 to Influence Certain Federal
Transactions
6. 52.203-12 Limitation on Payments to Influence Certain JUN 03 All Federal Transactions
7. 52.204-2 Security Requirements AUG 96 All
8. 52.209-6 Protecting the Government's Interest JUL 95 Over $25,000.00, Subcontracting w/ Contractors
Debarred, Suspended, or Proposed for Debarment
9. 52.214-26 Audit and Records- Sealed Bidding OCT 97 Over $500,000.00
10. 52.214-28 Subcontractor Cost or Pricing Data OCT 97 Over $500,000.00 Modifications - Sealed Bidding
11 52.215-2 Audit and Records - Negotiation JUN 99 Over SAT *
12. 52.215-10 Price Reductions for Defective Cost or Pricing OCT 97 over $500,000.00and Data FAR 15.403-4 exceptions n/a
13. 52.215-11 Price Reductions for Defective Cost or Pricing OCT 97 Over $500,000.00 Data - Modifications and
FAR 15.403-4 Exceptions N/A
14. 52.215-12 Subcontractor Cost or Pricing Data OCT 97 Over $500,000.00
15. 52.215-13 Subcontractor Cost or Pricing Data - Modifications OCT 97 Over $500,000.00
16. 52.215-14 Integrity of Unit Prices OCT 97 Over $500,000.00 and FAR 15.403-4 Exceptions N/A
17. 52.215-15 Pension Adjustments and Asset Reversions JAN 04 If Cost&Pricing Data Required Per FAR 15.408(g)
18. 52.215-18 Reversions or Adjustments of Plans for Post OCT 97 If Cost & Pricing Data Retirement Benefits (PRB)
Other than Pensions Required
19. 52.215-19 Notification of Ownership Change OCT 97 If FAR 15.408(k) applicable
20. 52.215-21 Requirements for Cost or Pricing Data or OCT 97 If Cost & Pricing Data Req'd Information Other than
Cost or Pricing Data -Modifications
21. 52.219-8 Utilization of Small Business Concerns OCT 00 If further subcontract opportunities exist.
22. 52.219-9 Small, Small Disadvantaged and Women-Owned JAN 02 Over $500,000.00 Small Business Subcontracting Plan
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23. 52.222-4 Contract Work Hours & Safety Standards Act - SEPT 00 Over $100,000.00 Overtime Compensation
24. 52.222-21 Prohibition of Segregated Facilities FEB 99 Over$100,000.00
25. 52.222-26 Equal Opportunity APR 02 Over $10,000.00
26. 52.222-35 Equal Opportunity for Special Disabled Veterans, DEC 01 Over $25,000.00 Veterans of the Vietnam Era, and
Veterans and Other Eligible Veterans
27. 52.222-36 Affirmative Action for Workers with disabilities JUN 98 Over $10,000.00
28. 52.222-37 Employment Reports on Special Disabled Veterans DEC 01 $25,000.00 or more and Veterans of the Vietnam Era
29.. 52.223-3 Hazardous Material Identification JAN 97 All requiring delivery of & Material Safety Data
hazardous materials
30. 52.224-2 Privacy Act APR 84 All
31. 52.225-8 Duty-Free Entry FEB 00 If SK includes covered supplies
32. 52.225-13 Restrictions on Certain Foreign Purchases JAN 04 All
33. 52.227-1 Authorization and Consent JUL 95 Above SAT * (Unless outside USA)
34. 52.227-2 Notice and Assistance Regarding AUG 96 Above SAT * Patent & Copyright Infringement (Unless
outside USA)
35. 52.227-3 Patent Indemnity APR 84 All
36.. 52.227-6 Royalty Information APR 84 If Cost & Pricing Data or Royalty Information
Required
37. 52.227-9 Refund of Royalties APR 84 If C.O. determines substantial amounts of royalties
may have to be paid
38. 52.227-10 Filing of Patent Applications - APR 84 Certain experimental, Classified Subject Matter
developmental, or research
39. 52.227-11 Patent Rights - Retention by the Contractor JUN 97 Certain experimental (Short Form) developmental, or
research Over SAT* w/exceptions
40. 52.227-12 Patent Rights - Retention by the Contractor JAN 97 Certain experimental, (Long Form) developmental,
or research
41. 52.227-13 Patent Rights - Acquisition by the Government JAN 97 Certain experimental, developmental, or research
42. 52.227-17 Rights in Data - Special Works JUN 87 If in Prime Contract
43. 52.228-5 Insurance - Work on a Government Installation JAN 97 Over SAT*, w/exceptions
44. 52.230-2 Cost Accounting Standards APR 98 Negotiated contracts with enumerated exceptions
45. 52.230-3 Disclosure and Consistency of APR98 Over $500,00.00, under Cost Accounting Practices
$25 million, eligible for CAS coverage (unless UK)
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B10LG1197 - Revision New Page 20
ORBCOMM PROPRIETARY INFORMATION
Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
46. 52.230-6 Administration of Cost Accounting Standards NOV 99 Negotiated contracts with enumerated exceptions
47. 52.244-6 Subcontracts for Commercial Items APR 03 All SK's where clause is in prime contract
48. 52.245-17 Special Tooling JUN 03 Fixed-price, tooling provided by / rights acquired
by Gov't
49. 52.245-18 Special Test Equipment FEB 93 Negotiated; Contractor to acquire/fabricate special
test equipment yet unknown
50. 52.246-23 Limitation of Liability FEB 97 All non-high-value (normally under $100,000.00) end
items via contracts over SAT *
51. 52.247-63 Preference for US-Flag Air Carriers JUN 03 All/w possible intl air transport
52. 52.247-64 Preference for Privately Owned APR 03 All that may involve ocean U.S.-Flag Commercial
Vessels transport under Cargo Preference Act;
transport otherwise required by such vessels w/ ltd
commercial item exception
53. 52.248-1 Value Engineering FEB 00 If in prime contract and $100,000.00+;less if
potential for significant savings.
54. 52.212-4 Contract Terms and Conditions - Commercial Items OCT 2003
55. 52.244-6 Subcontracts for Commercial Items APR 2003
* "Over SAT" indicates that the referenced clause applies to all contract over
the Simplified Acquisition Threshold.
FAR 2.101; see FAR 3.503-2
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B10LG1197 - Revision New Page 21
ORBCOMM PROPRIETARY INFORMATION
Concept Demonstration Satellite Bus Integration Test
And Launch Services Procurement Agreement
Exhibit E
[***]
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B10LG1197 - Revision New Page 22
ORBCOMM PROPRIETARY INFORMATION
CDS Spacecraft Bus, Integration and Test and
Launch Services Statement of Work Exhibit 1A
--------------------------------------------------------------------------------
CONCEPT DEMONSTRATION SATELLITE
SPACECRAFT BUS, INTEGRATION AND TEST
AND LAUNCH SERVICES
STATEMENT
OF
WORK
ORBCOMM LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Signature Date:
--------- -----
Prepared -
By: Staff
Approved ▇. ▇▇▇▇▇▇
By: VP TECHNOLOGY DEVELOPMENT
Approved ▇. ▇▇▇▇▇▇
By: EVP TECHNOLOGY AND OPERATIONS
Issue Date: February 24, 2005
--------------------------------------------------------------------------------
Revision New 1
ORBCOMM PROPRIETARY INFORMATION
CDS Spacecraft Bus, Integration and Test and
Launch Services Statement of Work
--------------------------------------------------------------------------------
[***]
[48 pages omitted]
--------------------------------------------------------------------------------
Revision New 2
ORBCOMM PROPRIETARY INFORMATION
Exhibit 1B
CONCEPT DEMONSTRATION SATELLITE
SPACECRAFT BUS, INTEGRATION AND TEST AND LAUNCH SERVICES
SPECIFICATION
ORBCOMM LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Signature Date
--------- ----
Prepared By: Space System Engineering
Approved By: ▇▇▇▇ ▇▇▇▇▇▇
EVP, Technology & Operations
Approved By: ▇▇▇ ▇▇▇▇▇▇
VP, System Engineering
Approved By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
VP, Sales and Product Engineering
Approved By: ▇▇▇▇ ▇▇▇▇
VP, Gateway Engineering
Approved By: ▇▇▇▇▇ ▇▇▇▇
Senior Manager, Network Operations
Issue Date: February 24, 2005
(ORBCOMM LOGO)
CONCEPT DEMONSTRATION SATELLITE
SPACECRAFT BUS, INTEGRATION AND TEST AND LAUNCH SERVICES
SPECIFICATION
ORBCOMM LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Issue Date: February 24, 2005
B15051193
CDS Bus Specification Chapter 9 Logistics
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[***]
[27 pages omitted]
B15051193