|
Exhibit
10.40
STRATEGIC COLLABORATION
AGREEMENT
THIS AGREEMENT is entered into this 5th
day of August 1999, by and between DaimlerChrysler Aerospace AG
(“ DASA ”), a German corporation, acting through
its Space Infrastructure Division, with offices located at
Hunefeldstrasse 1-5, PO Box 105909, D-28059 Bremen, Germany
(“ DASA-RI ”); and Spacehab, Inc., a Washington
State corporation with offices located at Suite 814, 300 D Street,
S.W., Washington, D.C. 20024, U.S.A. (“ Spacehab
”) (DASA and Spacehab are hereafter collectively referred to
as the “parties”).
W I T N E S S E T
H:
WHEREAS, Spacehab develops,
owns and operates pressurized and unpressurized modules and other
equipment for use in transportation, research and logistical
support on board the United States National Aeronautics and Space
Administration (“NASA”) Space Shuttle; and
WHEREAS, DASA has been a
shareholder in Spacehab since 1995; and
WHEREAS, pursuant to a
Collaboration Agreement effective July 24, 1995 (the “1995
Collaboration Agreement”), the parties have cooperated in the
joint pursuit of technological innovations and new business
opportunities in the environment of space; and
WHEREAS, DASA has, as of
August 2, 1999, entered into a Preferred Stock Purchase Agreement
with Spacehab to increase its equity participation in Spacehab to
approximately Eleven and One-Half Percent (11.50%) through the
acquisition of shares in a new class of preferred stock (the
“Spacehab Stock”) with the view to becoming
Spacehab’s leading strategic investor (the
“Subscription Agreement”); and
WHEREAS, the parties have
agreed to update and expand the scope of their Collaboration
Agreement to reflect their current objectives in cooperating with
one another on technical and financial grounds;
WHEREAS, the parties envisage
also cooperating beyond the scope defined in this Collaboration
Agreement and will be free to propose additional business
opportunities for one another’s consideration;
NOW, THEREFORE, in
consideration for the mutual covenants and undertakings herein
contained, the parties have agreed as follows:
1. Exclusive Common
Business Segments.
1.1 The parties agree, during
the term hereof, to collaborate technically and financially in the
following areas of mutual technological interest (the
“Exclusive Common Business Segments”):
(a) Human space flight
support and research services in the unpressurized domain,
including the development and procurement of required flight and
ground hardware, software and related payloads; and
(b) Acquisition, preparation
and performance of sounding rocket missions excluding, however,
DASA-RI’s ongoing TEXUS and MAXUS programs, and
(c) Inflatable structures
excluding, however, the Inflatable Reentry and Descent Technology
and its applications.
Schedule 1.1 attached hereto and hereby
incorporated into and made a part of this Agreement sets forth the
parties’ agreed areas of collaboration within the Exclusive
Common Business Segments as of the execution of this Agreement. It
is understood that, except as set forth in sections 1.5, 1.6 and
2.4.2 below, the parties’ engagement in new lines of business
and activities falling within the Exclusive Common Business
Segments beyond those addressed in Schedule 1.1 will hereafter be
decided by the parties’ Joint Management Committee pursuant
to article 2 of this Agreement. The parties intend to invest
jointly in the procurement of flight hardware and software as a
prerequisite for offering to NASA and other customers a commercial
service based on these assets and will also pursue other upcoming
business opportunities in the Exclusive Common Business
Segments.
1.2 Within the framework of
this cooperation, DAS A will receive and Spacehab will place with
DASA-RI contracts (preferably development contracts) with a value
of at least $12 million (U.S.) by December 31, 2000 (
“DASA-RI Minimum Contract Award ”).
1.3 Based on their joint
market assessment the parties agree that, during calendar year 2001
at least $13 million (U.S.) and in calendar year 2002 and beyond an
average of $26 million in annual revenues (but in no event less
than an aggregate of $65 million by the end of 2003) will be
generated for DASA-RI through the parties’ collaboration on
the projects listed in Schedule 1.1 in sales to NASA and other
customers. These revenues will be generated from (1) customer
contracts for integration and operation services and (2) contracts
for the leasing of hardware procured through the parties’
joint investments, if any
-2-
(“ DASA-RI Minimum
Revenue ”). These amounts are understood to be in
addition to and not to include the value of the Minimum Contract
Award defined in section 1.2 above. The average annual and
aggregate revenues generated referred to in the first sentence of
this Section 1.3 are subject to unforeseen events beyond the
control of Spacehab which prevent Spacehab from generating such
revenues despite Spacehab’s reasonable best efforts to do so.
Spacehab will take reasonable best efforts to minimize the effects
of any unforeseen events.
1.4 Spacehab agrees that,
except as permitted under section 2.4.2 below, during the term of
this Agreement, it will not enter into agreements with any third
parties for engagement in work or cooperation falling within the
Exclusive Common Business Segments.
1.5 The parties hereby agree
that any program already in development by either party shall be
exempted from the terms of this Agreement.
1.6 DASA-RI shall be free to
pursue new business opportunities falling within the Exclusive
Common Business Segments (except for projects in the United States
in competition with business opportunities pursued by Spacehab),
whether in Europe or elsewhere, without the participation of
Spacehab.
1.7 The parties may agree to
collaborate jointly with third parties in any activities which they
jointly undertake within the Exclusive Common Business
Segments.
2. Joint Management
Committee.
2.1 The parties’
collaboration in the Exclusive Common Business Segments shall be
conducted under the direction and oversight of a Joint Management
Committee (the “Committee”).
2.2 The Committee shall be
comprised of an equal number of representatives designated by
Spacehab and DASA-RI. They shall choose their own chairman and
adopt procedural rules of governance.
2.3 The Committee shall meet
at least four times a year and shall operate by consensus. Meetings
may be held by telephone or other electronic means by which all
members present may hear and be heard by one another.
2.4 The Committee shall be
responsible for overseeing the parties’ implementation of the
schedule of agreed lines of business and activities set forth in
Schedule 1.1 hereto. To this end the Committee will periodically
review all active joint projects. Spacehab will and DASA-RI, at its
sole election, may
-3-
p
| 
