Exhibit 10.4
*** 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 COMMUNICATION PAYLOAD
PROCUREMENT AGREEMENT B10LG1192
This ORBCOMM Procurement Agreement (this "Agreement") is made and entered into
as of the 3rd day of November, 2004 (the Effective Date") between ORBCOMM Inc, a
Delaware corporation ("ORBCOMM") with its principal place of business located at
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Delaware corporation ("Orbital") 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 desires to contract with Orbital for the overall design,
manufacture, test, and delivery to ORBCOMM the Concept Demonstration
Communication Payload for the ORBCOMM Automatic Identification System (AIS) and
provide payload integration support and on-orbit operations support as specified
in the Contract Statement of Work. Additionally, as an option defined herein,
there is a potential for Orbital to provide thereafter up to five (5) additional
identical or similar such payloads for the AIS, if approved, and an option for
six (6) ORBCOMM satellites with integrated AIS payloads and an option for six
(6) ORBCOMM satellites with integrated payloads similar to the current ORBCOM
payload utilized on the Plane B spacecraft.
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 AIS Demonstration Payload Statement of Work" B15051188 - Rev New dated
November 2nd, 2004 And "ORBCOMM Concept Demonstration Spacecraft Communications
Payload Specification" B15051189-Rev D dated October 6th, 2004 shall mean the
payload statement of work and specifications attached hereto as Exhibit A,
"Options" shall mean the Additional AIS Payloads as set forth in Section 2.1 and
ORBCOMM Spacecraft with AIS Payloads and ORBCOMM Spacecraft with ORBCOMM Plane B
similar payloads to be defined at the time of the option execution.
"Payload" shall mean the communication payload equipment including an Automatic
Identification System (AIS) receiver as described in the Concept Demonstration
Spacecraft Communications Payload Specifications and the ORBCOMM, AIS
Demonstration Payload Statement of Work (SOW) dated November 2nd, 2004 as set
forth at Exhibit A, Part 1
ARTICLE 2 - SCOPE OF WORK
Consistent with the terms and conditions set forth herein. Orbital shall furnish
the management, labor, facilities and materials required for the performance by
it of the following work (collectively, the "Work"):
Section 2.1 - Manufacture of Payload. (a) Orbital shall design, manufacture,
test and deliver to ORBCOMM the demonstration payload (the "Demo Payload") in
accordance with the Payload Statement of Work and the Payload Specifications as
set forth at Exhibit A.
(b) ORBCOMM shall have the option (the "Option") to require Orbital to construct
and deliver to ORBCOMM up to five additional payloads (the "Optional Payloads")
Or
ORBCOMM shall have the option (the "Option") to require Orbital to construct and
deliver to ORBCOMM six (6) ORBCOMM Spacecraft with AIS integrated payloads (the
"Optional AIS Spacecraft")
Or
ORBCOMM shall have the option (the "Option") to require Orbital to construct and
deliver to ORBCOMM six (6) ORBCOMM Spacecraft without AIS integrated payloads
(the "Optional ORBCOMM Spacecraft")
(c) The Option shall be exercisable, at the times and prices defined in Exhibit
F.
Section 2.2 - Other Documentation. Orbital shall prepare, develop and submit to
ORBCOMM the documentation set forth in the CDRLs of the AIS Demonstration
Payload Statement of Work.
Section 2.3 - Payload Storage. Orbital shall provide ORBCOMM, on a time and
materials basis, at the rate specified in Exhibit B, technical services
associated with the storage of Payloads when required by ORBCOMM, relating to
the ORBCOMM AIS System.
Section 2.4 - Regulatory and Export Matters. Orbital shall provide to ORBCOMM
where practical, the technical data needed by ORBCOMM (a) to obtain and maintain
the required United States regulatory authority needed to manufacture and export
the Payload and any Option Payloads 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 Payloads.
ARTICLE 3 - WORK SCHEDULE AND DELIVERY
Section 3.1 - 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) Demo Payload. The first Demo Payload shall be ready for delivery twelve (12)
months following the receipt of the first milestone payment.
(c) 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 the Demo Payload (the "Price") is as follows:
(a) Demo Payload
One (1) each $3,305,000
TOTAL $3,305,000
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The Price for the Demo Payload represents a fixed price.
Section 4.2 - Price of Options. The prices for the Options (the "Option Prices")
are defined in Exhibit F:
The price and terms of any such Option Payloads shall be no less favorable to
ORBCOMM than those made available by Orbital to NASA for similar products,
without any obligation on ORBCOMM to pay NASA prices.
Section 4.3 - Technical Assistance. For technical assistance tasks, other than
those set forth in Section 2.1, the following shall apply:
(a) Orbital shall provide to ORBCOMM on a time and materials basis as defined in
Exhibit E technical services, the cost for which is estimated to be less than
One Hundred Thousands Dollars ($100,000), as and when required and directed by a
Task Order issued by ORBCOMM, relating to the Payloads. Orbital 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.
Section 4.4 - Taxes (a) The Price (to include any Option Prices) does not
include any federal, state or local sales, use 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.
(b) In cases where Orbital and/or ORBCOMM are wholly or partially exempt from
such taxes and duties or otherwise entitled to relief by way of protest, refund
claims litigation or other proceeding, Orbital shall take all necessary steps to
facilitate such exemption or relief by:
(i) Using reasonable efforts to bring about the exemption or relief before
submitting the invoices to ORBCOMM; and
(ii) Complying with all formalities necessary to enable ORBCOMM to claim
reimbursement with respect to taxes and duties that have been paid. For this
purpose, Orbital shall comply with the reasonable instructions given to it by
ORBCOMM and provide in due time the information that ORBCOMM reasonably
requires.
If any such tax is determined to be legally due from either Orbital or ORBCOMM,
ORBCOMM shall pay it separately. ORBCOMM shall pay, or reimburse Orbital for all
out-of-pocket expenses incurred in connection with the activities contemplated
by this Subsection 4.4(b).
Section 4.5 - Insurance. (a) The Price(s) includes the cost of property
insurance and general and product liability insurance for the Payloads until
ORBCOMM takes delivery of the payload.
(b) The Price does not include the cost to insure the payloads during any period
of time in which the Payloads are put into storage. Orbital shall obtain the
appropriate levels(s) of insurance required to cover the repair or replacement
costs, as the case may be of the Payloads during storage. ORBCOMM shall pay or
promptly reimburse Orbital for all expenses incurred by Orbital on behalf of
ORBCOMM in obtaining the Payload storage insurance, upon receipt of Orbital's
invoice therefor.
ARTICLE 5 - PAYMENT TERMS AND INVOICING
Section 5.1 - Invoicing.
For all Milestone Payments, Orbital 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 30 days.
For all invoices for time and material tasks, Orbital shall provide a
certificate, signed by the Vice President and Controller of Orbital or by any
other officer designated by the Vice President and Controller of Orbital,
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 Orbital. Invoices shall be submitted to the following address:
ORBCOMM, Inc
Attn: Controller
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Section 5.2 - Milestone Achievement. (a) A Milestone shall be deemed achieved
upon the successful demonstration by Orbital 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 have been fulfilled to ORBCOMM's
reasonable satisfaction.
(b) In the event that Orbital 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 Orbital achieves such Milestone or obtains a waiver in writing from
ORBCOMM for such achievement. Orbital's failure to timely complete any Milestone
shall not relieve ORBCOMM from its obligation to pay for other achieved
Milestones.
(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
Orbital 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 Orbital'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 Orbital's response to ORBCOMM's exceptions to be non-responsive
and so notifies Orbital 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 Orbital has been non-responsive to
ORBCOMM `s exception to a Milestone, ORBCOMM shall notify Orbital thereof in
writing (the "Exception Notification") within ten (10) business after receipt of
Orbital's response to ORBCOMM written exception. The Exception Notification
shall (A) specify in detail the reason(s) ORBCOMM believes Orbital's response to
be non-responsive, and (B) advise Orbital formally that ORBCOMM intends to
withhold payment for such Milestone(s). On receipt of an Exemption Notification
from ORBCOMM, Orbital shall have thirty (30) days to demonstrate the achievement
of the relevant
Milestone to the reasonable satisfaction of ORBCOMM. If Orbital is unable to
make such a demonstration, ORBCOMM may defer payment as provided above. If
Orbital continues to dispute the OBRCOMM assertions of non-compliance, either
party may, at any time after the filing of the Orbital 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,
Orbital will provide with each invoice a certification executed by the Vice
President of Orbital'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, Orbital shall provide such other Government required
certifications as are required. ORBCOMM may request the Government to review the
accuracy of submitted invoices under this agreement against Orbital'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
Orbital does not agree with the auditors' determination, such dispute shall be
settled in accordance with Section 12.3.
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 to the
extent reasonable safeguards can be implemented) at the plant(s) of Orbital.
Orbital shall use all commercially reasonable efforts to incorporate in all of
its subcontracts Orbital'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. ORBCOMM authorized representatives
shall promptly conduct a final inspection of the Demo Payload and any Option
Payloads ordered in accordance with the Verification and Test Plan or, at
ORBCOMM's option, witness such inspection by Orbital and shall either approve
them for acceptance in writing or promptly notify Orbital in writing of the
particulars in which they are non-conforming with the applicable Specifications.
If no objections have been sent by ORBCOMM within (15) days of the inspection,
the relevant payload shall be deemed to have received approval for acceptance by
ORBCOMM. Corrections required to render the payloads in conformance with the
applicable Specification shall be made by Orbital at its cost. The decision how
to make the corrections shall be at Orbital'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 Orbital
after Orbital 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 Orbital's Dulles facility prior to delivery to ORBCOMM.
Section 6.3. - Corrections in Delivered Payloads. (a) If at any time, either
Orbital or ORBCOMM becomes aware that any payloads delivered under this contract
are 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 Orbital, Orbital 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. Orbital shall take prompt and appropriate corrective
measures to eliminate any such defects from all unused payloads, or (ii) if the
discovery is made by ORBCOMM, ORBCOMM shall notify promptly Orbital of such
defects that would, in the reasonable opinion of ORBCOMM, materially and
adversely affect the operation of the ORBCOMM AIS System. Orbital shall be
obligated within ten days to verify and respond to the ORBCOMM notification of
defective delivered and not yet launched payloads, and, in the event the defect
has been verified, Orbital shall take prompt and appropriate corrective measures
to eliminate any such defects from all such payloads. The decision how to make
the corrections shall be mutually agreed upon by ORBCOMM and Orbital.
(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 Orbital, ORBCOMM shall pay
the costs of such corrections identified in Section 6.3(a) and Orbital 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 payloads by
Orbital or Orbital's subcontractors, then the corrections shall be deemed to be
in the Scope of Work. Orbital's obligation to correct such material defects in
the payloads shall end the sooner of Twelve (12) months after acceptance of the
hardware by ORBCOMM or launch. After such date corrections to such payloads
shall be made at a price mutually agreed to by ORBCOMM and Orbital. ORBCOMM
shall decide whether to proceed with the corrections of such material defects.
If the defects so identified result from the failure of Orbital to adhere to the
applicable specifications and/or SOW, then Orbital shall be responsible to
correct the defect in workmanship and/or material at no increase in Contract
price.
ARTICLE 7 - TITLE AND RISK OF LOSS
Title to, beneficial ownership of, and right to possession to and risk of loss
of or damage to the payloads shall pass to ORBCOMM upon final acceptance at
Orbital's Dulles facility.
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 Orbital
shall negotiate an equitable adjustment to such Price, delivery schedule or
other provision of this Agreement. Orbital shall perform the Work as changed
pending resolution of any negotiation under this Article 8.
(b) Orbital 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 Orbital'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.
(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 Orbital 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. Orbital 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
Orbital 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. ORBCOMM's sole
remedy for payload failure, defects, failure to conform with applicable
Specifications or any other requirements shall be limited to (i) non-payment to
Orbital of the Price for the Payload (s) so affected and (ii) termination
remedies under Article 10.
Section 9.3 - Limitation of Liability. (a) ORBITAL SHALL NOT BE LIABLE FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES RESULTING FROM THE USE OF
ANY OF THE GOODS OR SERVICES TO BE PROVIDED HEREUNDER, OTHER THAN THE
LIABILITIES EXPRESSLY STATED HEREIN. 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), Orbital 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 Orbital terminate this
Agreement upon the failure of Orbital (a) to achieve any of the Milestones
within four (4) 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 material respect with any of the provisions of this Agreement and to correct
such failure, within sixty (60) days from the date of Orbital'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) Orbital 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. A stoppage of work, initiated by Orbital as a direct result of
ORBCOMM's failure to make timely payment against any properly and appropriately
submitted invoice shall not be grounds for Default.
(d) Orbital shall be in default under this agreement in the event that Orbital
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 Orbital
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, Orbital 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 Orbital 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. In such event, Orbital 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. Orbital 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 Orbital termination for convenience costs
to the Government and shall use its best efforts to permit Orbital to be able to
participate directly with the Government in the negotiation of those termination
for convenience costs which pertain to Orbital.
(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), Orbital 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 Orbital in support of this
Agreement. Orbital 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, Orbital shall
be permitted to retain the Milestone payments previously received prior to the
termination subject to the following conditions. ORBCOMM shall be obliged to
mitigate the damages sustained as a result of such default by Orbital to the
extent permitted by the Contract. If ORBCOMM elects to complete the undelivered
items specified in the Agreement, Orbital will be responsible for the
reprocurement cost of the remaining undelivered items up to the value of those
undelivered items as specified in this Agreement, and, if requested by ORBCOMM,
Orbital will, for the sole purpose of enabling ORBCOMM to complete the
undelivered items specified in the Agreement, make available to ORBCOMM
Foreground and Background Information necessary to enable ORBCOMM or its
designee to complete the items. Orbital will permit use of the aforementioned
Foreground and Background Information by ORBCOMM's designee only after Orbital
has been notified of ORBCOMM's intentions to make such Information available to
a third party and Orbital and ORBCOMM's designee have executed a non-disclosure
agreement, which will be in substantially the same form as that non-disclosure
agreement which exists between Orbital and ORBCOMM at the time of execution of
this Agreement, to protect such Information If ORBCOMM elects not to complete
the undelivered items specified in the Agreement, ORBCOMM and Orbital shall
agree on the disposition and amount of payment for undelivered manufacturing
materials decided by the parties to be delivered to ORBCOMM. Failure to agree
will be a dispute under Section 12.3. If, after termination, it is determined
that Orbital was not in default, or that the default was excusable, the rights
and obligations of the parties shall be the same as if the termination had been
issued for the convenience of the 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 set forth in Sections 11.1(b) and 11.1(c) and 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 Orbital
and/or its subcontractors, notwithstanding Orbital's disclosure of any
information or delivery of any data items to ORBCOMM or ORBCOMM's payment to
Orbital 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 Orbital.
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 Orbital and/or its subcontractors. Foreground information is
defined as that data, regardless of format, that is first conceived, developed
or produced by Orbital 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 Orbital 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), Orbital, 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 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 Orbital, which consent shall
not be unreasonably withheld.
Section 11.3 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 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 Orbital, to it at:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)-▇▇▇-▇▇▇▇
Attention: ▇. ▇. ▇▇▇▇▇, Director, Contracts
(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 give 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, 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. 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 considered a dispute and resolved in accordance
with Section 12.3 hereof.
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 Orbital. Each of ORBCOMM and Orbital
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 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 Orbital 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.
Section 12.7 - Key personnel. Orbital 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. Orbital 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 Orbital'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 Orbital 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, Orbital 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
Orbital, and the term "Contract" shall refer to this order. Orbital however,
reserves the right of audit solely to the Government. Where any reference above
contains alternative clauses, that alternative shall apply which is required by
or most consistent with ORBCOMM's prime or subcontract 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
prime or subcontract 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 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 - Equal Opportunity. Orbital agrees during the performance of this
order, pursuant to 41 CFR Section 60-1.4, unless otherwise exempted by law,
rules, regulations, or orders of the United States Government:
1) Orbital will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin. Orbital
will take affirmative action to ensure that applicants are employed, and that
employees are treated during employment without regard to their race, color,
religion, sex, or national origin. Such action shall include, but not be limited
to the following: Employment, upgrading, demotion, or transfer, recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The Orbital
agrees to post in conspicuous places, available to employees and applicants for
employment, notices to be provided by the contracting officer setting forth the
provisions of this non-discrimination clause.
(2) Orbital will, in all solicitations or advertisements for employees placed by
or on behalf of the Orbital, state that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex or
national origin.
(3) Orbital will send to each labor union or representative of workers with
which it has a collective bargaining agreement or other contract or
understanding, a notice to be provided by the agency Contracting Officer
advising the labor union or worker's representative of Orbital's commitments
under section 202 of Executive Order 11246 of September 24, 1965, and shall post
copies of the notice in conspicuous places available to employees and applicants
for employment.
(4) Orbital will comply with all provisions of Executive Order 11246 of
September 24, 1965, and of the rules, regulations, and relevant orders of the
Secretary of Labor.
(5) Orbital will furnish all information and reports required by Executive Order
11246 of September 24, 1964, and by the rules, regulations, and orders of the
Secretary of Labor, or pursuant thereto, and will permit access to its books,
records, and accounts by the contracting agency and the Secretary of Labor for
purposes of investigation to ascertain compliance with such rules regulations,
and orders.
(6) In the event of Orbital's non-compliance with the nondiscrimination clauses
of this order or with any of such rules, regulations, or orders, this order may
be canceled, terminated or suspended in whole or in part and Orbital may be
declared ineligible for further Government contracts in accordance with
procedures authorized in Executive Order 11246 of September 24, 1965, and such
other sanctions may be imposed and remedies invoked as provided in Executive
Order 11246 of September 24, 1965, or by rule, regulation, or order of the
Secretary of Labor, or as otherwise provided by law.
(7) Orbital will include the provisions of paragraphs (1) through (7) in every
subcontract or purchase order unless exempted by rules, regulations, or orders
of the Secretary of Labor issued pursuant to section 204 of Executive Order
11246 of September 24, 1965, so that such provisions will be binding upon each
subcontractor or vendor. Orbital will take such action with respect to any
subcontract or purchase order as may be directed by the Secretary of Labor as a
means of enforcing such provisions including sanctions for noncompliance:
Provided, however, that in the event Orbital becomes involved, in, or is
threatened with, litigation with a subcontractor or vendor as a result of such
direction, the Orbital may request the United States to enter into such
litigation to protect the interests of the United States.
Section 12.15 - Segregated Facilities. Orbital hereby certifies that Orbital
does not and will not maintain any facilities Orbital provides for its employees
in a segregated manner, or permit its employees to perform their services of any
location, under Orbital's control, where segregated
facilities are maintained; and Orbital will provide further certification of
same as may be required by the Director of the Office of Federal Contract
Compliance Programs (OFCCP).
Section 12.16 - False Statements. Orbital 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 12.17 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, Orbital 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 Orbital 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 12.18 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 12.19 Waiver. The failure of ORBCOMM 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 12.20 Limitation of Liability. In no event shall either party hold the
other liable for incidental, consequential or punitive damages.
ARTICLE 13 - LIST OF EXHIBITS AND SCHEDULES
Exhibits
Exhibit A Statement of Work and Specifications
Part 1A AIS Demonstration Payload Statement of Work
Part 1B Demonstration Spacecraft Communication Payload
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.
ORBITAL SCIENCES CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇
---------------------------------
Name: ▇. ▇. ▇▇▇▇▇
Title: Director, Contracts
ORBCOMM LLC
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
(ORBCOMM LOGO)
EXHIBIT 1A
ORBCOMM AIS DEMONSTRATION PAYLOAD
STATEMENT
OF
WORK
ORBCOMM LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Signature Date
--------- ----
Prepared -
By: Staff
Approved ▇. ▇▇▇▇▇▇
By: VP TECHNOLOGY DEVELOPMENT
Approved ▇. ▇▇▇▇▇▇
By: EVP TECHNOLOGY AND OPERATIONS
Issue Date: November 2, 2004
B15051188 - REV New
(ORBCOMM LOGO)
EXPORT CONTROL STATEMENT
The contents of this document, in whole or in part, shall not be
exported from the United States, which export shall include, but not
be limited to, transmittal to any non-U.S. citizen wherever said
person is located, except in accordance with 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. Diversion,
re-export or transshipment of the contents of this document, in whole
or in part, contrary to U.S. law is also strictly prohibited.
[***]
[44 pages omitted]
--------------------------------------------------------------------------------
B15051188 - Revision New 1
ORBCOMM PROPRIETARY INFORMATION
EXHIBIT 1B
ORBCOMM
CONCEPT DEMONSTRATION SPACECRAFT
COMMUNICATIONS PAYLOAD SPECIFICATION
ORBCOMM LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Signature Date
--------- ----
Prepared Communications Payload Engineering
By:
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: October 6, 2004
B15051189 - REV D
(ORBCOMM LOGO)
EXPORT CONTROL STATEMENT
The contents of this document, in whole or in part, shall not be
exported from the United States, which export shall include, but not
be limited to, transmittal to any non-U.S. citizen wherever said
person is located, except in accordance with 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. Diversion,
re-export or transshipment of the contents of this document, in whole
or in part, contrary to U.S. law is also strictly prohibited.
[***]
[54 pages omitted]
Exhibit B
Work Schedule and Delivery
Basic Contract:
Deliver one (1) each Demo Payload as defined in ARTICLE 1 and
Exhibit A will be twelve (12) months after contract effectiveness as
define in ARTICLE 12.5.
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 B,
Documentation Requirements List.
Options:
Delivery of the optional equipment will be in accordance with the
following schedules:
Option A: Option for up to five (5) Additional AIS Payload
configured identically as Demo Payload defined in Exhibit A.
Delivery will be twelve (12) months after receipt of ORBCOMM's
election to exercise the option and the first milestone payment
(TBD) for this option. Option must be exercised within one hundred
and twenty (120) days of the effective date of the contract.
Option B: Option for six (6) ORBCOMM Spacecraft similar to existing
Plane B configuration with integrated AIS Payloads configured
identically as Demo Payload defined in Exhibit A.
Delivery will be eighteen (18) months after receipt of ORBCOMM's
election to exercise the option and the first milestone payment of
(TBD) for this option.
Option exercise dates are as stated in Exhibit F.
Option C: Option for six (6) ORBCOMM Spacecraft with ORBCOMM Payload
similar to existing Plane B configuration without AIS Payloads.
Delivery will be eighteen (18) months after receipt of ORBCOMM's
election to exercise the option and the first milestone payment of
(TBD) for this option.
Option exercise dates are as stated in Exhibit F.
Exhibit C
Key Personnel
The following individuals will be assigned to the Demo Payload Agreement effort
in accordance with the provisions of ARTICLE 12.7
Program Manager ▇▇▇ ▇▇▇▇▇▇▇▇▇
Systems Engineer ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Contract Administrator ▇▇▇ ▇▇▇▇▇
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 $500,000.00 and 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
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 APR 98 Over $500,00.00, under Cost Accounting Practices
$25 million, eligible for CAS coverage (unless UK)
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
Exhibit E
[***]
Exhibit F
Option Prices
Option Prices:
Option A: Option for up to five (5) Additional AIS Payload
configured identically as Demo Payload defined in Exhibit A. Each
additional AIS payload ordered beyond the one (1) Demo Payload will
be provided at a Firm Fixed-Price of $3,000,000 each.
Option B:
Option for six (6) ORBCOMM Spacecraft similar to existing Plane A
configuration with integrated AIS Payloads configured identically as
Demo Payload defined in Exhibit A, the following Firm Fixed-Prices
apply:
If exercised before 15 December 2004: $34,400,000
If exercised before 30 January 2005: $34,650,000
If exercised after 30 January 2005:
but before 28 February 2005: $34,900,000
Option C:
Option for six (6) ORBCOMM Spacecraft with ORBCOMM Payload similar
to existing Plane A configuration the following Firm Fixed-Prices
apply:
If exercised before 15 December 2004: $32,600,000
If exercised before 30 January 2005: $32,850,000
If exercised after 30 January 2005:
but before 28 February 2005: $33,100,000
Special Option Provision:
ORBCOMM may decide to exercise Option B during the period of performance of the
Demo Payload and utilize the Demo Payload as one of the six (6) AIS Payloads to
be delivered as one of the six (6) integrated AIS / ORBCOMM Spacecraft in Option
B. Upon the Termination for Convenience for the Demo Payload, Orbital will
retain all payments received to date and an adjustment (either upward or
downward) to Option B Price will be negotiated prior to the commencement of the
Option B effort.