Filed by Bowne Pure Compliance





EXHIBIT 10.2




	 	 	 	 	 
	 

	 	* * *
	 	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






EXECUTION COPY




ORBCOMM GENERATION 2 PROCUREMENT AGREEMENT




This ORBCOMM Procurement Agreement is made and entered into as of the 5th day of May, 2008 (the
“Effective Date” or “Start” or “Start Date”) between ORBCOMM Inc, a Delaware corporation
(“ORBCOMM”) with offices located at 21700 Atlantic Boulevard, Dulles, VA 20166 and SIERRA NEVADA
CORPORATION, a Nevada corporation with offices located at 444 Salomon Circle, Sparks, NV 89434
(“SNC” or “SUPPLIER”).



WITNESSETH




WHEREAS ORBCOMM desires to purchase from SUPPLIER, and SUPPLIER desires to provide and sell to
ORBCOMM, Eighteen (18) Flight Satellites, one (1) Flatsat Unit, one (1) Satellite Simulator, up to
thirty (30) Optional Satellites, any required Ground Support Equipment and the Launch Support
Services as specified in the Specification and Statement of Work.



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




Except as otherwise specifically defined herein, capitalized terms in this Agreement have the
following meanings:



“Agreement” shall mean this agreement, including all referenced Exhibits hereto. References to
“Exhibits” mean the exhibits listed in Article 16. Section numbers refer to sections in this
document unless an Exhibit is expressly referenced.



“Business Days” shall mean each Monday through Friday, with the exception of public holidays in the
State of Virginia when banks are not required to be open.



“Costs” shall mean reasonable, out-of-pocket, and documented costs actually incurred by a party to
perform a particular task, calculated on an incremental basis (i.e., only such costs as are
incurred in performing the particular task requested over and above costs that said party would
have incurred in any event in accordance with its obligations under this Agreement or otherwise),
with labor billed at the rates and in accordance with the billing while in travel policies shown in
Exhibit B, “Labor Rates and Travel Policies,” and subcontracts, travel and material billed at Cost
plus [* * *]%;provided: (i) there shall be no markup on the cost of insurance, shipping, or in
connection with any task the underlying Cost of which is less than $100,000; (2) no markup on
charges to SNC from MicroSat Systems or any other affiliate of
SNC; and (3) no SNC (or affiliate) general administrative or overhead charges shall be billed other
than as already reflected in the specified labor rates.


 


 









 





“Data and Documentation” shall mean all test and other data and documentation to be provided by
SUPPLIER to ORBCOMM under this Agreement, as defined in Section 11 of the SOW.



“Defect” shall mean any failure of any Satellite or any other Deliverable to meet the
specifications, including (without limitation), as to the reliability, as defined in Exhibit A,
Statement of Work and Specifications.



“Deliverable(s)” shall mean the Satellites(s) and all goods, including associated Data and
Documentation, and Services to be provided by SUPPLIER or its subcontractors to ORBCOMM under this
Agreement.



“Delivery” or “Delivered” shall mean delivery by SUPPLIER of the applicable Deliverable to ORBCOMM
in accordance with the SOW and Satellite Specification. The obligation to Deliver includes all
necessary and appropriate packing, shipment, and insurance, subject to Section 4.4(b) of this
Agreement below, in accordance with the SOW and the standard of care stated herein.



“Design Life” shall have the meaning set forth in Section 3.2 of the Specification.



“Flatsat” shall have the meaning set forth in Section 2.4 of the SOW.



“Flight Satellite” shall have the meaning set forth in Section 2.1 of the SOW.



“Force Majeure Event” shall have the meaning specified in Section 15.2 of this Agreement.



“Ground Support Equipment” shall have the meaning set forth in Section 2.2 of the SOW.



“Initial Order” shall mean the eighteen (18) Flight Satellites, Launch Support Services, and all
other Deliverables to be provided by SUPPLIER to ORBCOMM, with the exception of any Optional
Satellites.



“IOT” shall mean the in-orbit tests of each Satellite to be performed by SUPPLIER in accordance
with the SOW.



“Launch” shall mean the moment of intentional ignition of the Launch Vehicle used to launch the
ORBCOMM Satellite to which the Launch Vehicle has been integrated; provided that the definition
shall be modified as necessary to reflect the appropriate language for the specific launch vehicle
to be employed.



“Launch Contract” shall, subject to Section 4.8 hereof, mean a contract that ORBCOMM shall enter
into with a Launch Vehicle supplier for the Launch of one or more of the Flight Satellites to be
Delivered hereunder.



“Launch Support Services” shall mean the services specified in Section 3 of the SOW.



“Launch Site” shall mean the location at which the Launch is scheduled to occur.



“Launch Vehicle(s)” or “LV(s)” shall mean the launch vehicle(s) designated by ORBCOMM in accordance
with the terms of this Agreement, to be used for the Launch of the Flight Satellites.


 


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“Major Subcontractors” shall mean the “Team Members” and any person or entity that individually
and/or collectively among its affiliated entities and its or their subcontractors is or will be
supplying any product(s) or service(s) or other work of any kind of the Work specified herein for
an amount equal to or in excess of one million, five hundred thousand United States Dollars (U.S.
$1,500,000).



“Milestone(s)” shall mean the criteria for payment and the completion of Work set forth in Article
5 hereto and in the Work Schedule, as applicable.



“Optional Satellite(s)” shall have the meaning specified in Section 2.1(b) hereof.



“Pre-Shipment Review” or “PSR” shall have the meaning set forth in Section 7.3.7 of the SOW.



“Price” shall mean the price specified herein as applicable to the Initial Order or any Optional
Satellites that have been ordered.



“Project Software and Software Documentation” shall mean all software and software documentation to
be provided by SUPPLIER to ORBCOMM in accordance with Section 4 of the SOW.



“Project” shall mean the totality of efforts described in the Statement of Work and directed toward
timely achievement of the ORBCOMM satellite program.



“Ready to Ship” shall mean the time after the Successful Completion of the Pre-Shipment Review when
a Flight Satellite is transferred by SUPPLIER, properly packed, to an insured freight forwarder,
approved in writing by ORBCOMM, for transfer of the Flight Satellite to the Launch Site.



“Satellite(s)” shall mean the satellites to be provided by SUPPLIER, including an Automatic
Identification System (AIS) receiver meeting all requirements of the Specifications and Statement
of Work.



“Satellite Simulator” shall have the meaning set forth in Section 2.5 of the SOW




“Satellite Specifications” or “Specifications” shall mean the Satellite specifications attached
hereto as Exhibit A, Part 1B.



“Services” shall mean all services to be provided by SUPPLIER to ORBCOMM as specified in this
Agreement, including, without limitation, all of the Satellite integration, Launch Support Services
and in-orbit support items shown the SOW.



“Shipset” or (“SS”) shall mean the set of spacecraft to be Launched on an individual Launch
Vehicle. For the Initial Order of eighteen (18) Flight Satellites, subject to Section 2.5, each
Shipset shall consist of six Flight Satellites.



“Statement of Work” or “SOW” shall mean the attached hereto as Exhibit A, Part 1A.



“Successful Completion” or “Successfully Completed” as to contractually required test(s) or
milestone(s) shall mean that the relevant task(s) and test(s) have been completed and the
corresponding test report(s) and test data, as defined in the SOW, if applicable, have been
Delivered to ORBCOMM and the item has been demonstrated, through all contractually required tests
and as shown in test data, to conform to the applicable requirements of the Specifications, without
any unresolved open material actions items arising out of tests, inspections, or acceptance
processes, Defects, anomalies, or liens, unless waived in writing by ORBCOMM.


 


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“Successful Operation” or “Successfully Operating” shall mean that the Satellite has been shown at
IOT to meet and thereafter has continuously met and is meeting the standard for Successful
Operation in accordance set forth in Section 2.11 of the SOW at and before the relevant time
hereunder.



“Team Members” shall have the meaning set forth in Section 4.7 hereof.



“Unlaunched Satellite” shall mean a Satellite which has not yet been Launched.



“Work” shall mean all contractually required labor, Services, acts (including tests to be
performed), items, materials, articles, Data and Documentation, equipment, matters and things to be
furnished by SUPPLIER to, or performed by SUPPLIER (and/or its subcontractors) for, ORBCOMM in the
performance of this Agreement.



“Work Schedule” shall mean the schedule for the completion of Work as shown in Article 3 of this
Agreement.



ARTICLE 2 — SCOPE OF WORK. Consistent with the terms and conditions set forth herein, SUPPLIER
shall furnish the management, labor, facilities and materials required for the performance by it of
the following Work:



Section 2.1 — Construction of Satellites, Launch Support Services, and Associated Deliverables.



(a) SUPPLIER shall design, manufacture, test and Deliver to ORBCOMM eighteen (18) Flight
Satellites, associated Launch Support Services, the Satellite Ground Support Equipment, the
Satellite Simulator and the FlatSat in accordance with the Statement of Work and the
Specifications.



(b) ORBCOMM shall have the option (the “Option”), to be exercised in writing, in whole or in
part and from time to time, as set forth in this Agreement, to require SUPPLIER to manufacture,
test and Deliver to ORBCOMM up to thirty (30) additional Flight Satellites (the “Optional
Satellites”). Except as expressly provided herein or the SOW, SUPPLIER shall have the same
obligations with respect to each Optional Satellite as it does with respect to the Initial Order.



(c) With respect to the transportation of the Flight Satellites to the applicable Launch Site,
SUPPLIER shall be responsible for obtaining export licenses, in accordance with Section 2.7 of this
Agreement, packing the Flight Satellites as required under the SOW, and for contracting with a
qualified freight forwarder for the timely delivery of the Flight Satellites to the applicable
Launch Site; provided that the freight forwarder’s reasonable charges to do so, including for
insurance while in transport, shall be a billable Cost from SUPPLIER to ORBCOMM.



Section 2.2 — Data and Documentation. SUPPLIER shall prepare, develop and submit to ORBCOMM the
Data and Documentation as and when set forth in the SOW and the Specifications.



Section 2.3 — Other Deliverables. SUPPLIER shall design, manufacture, test, and/or, in the case of
Services, provide all other Deliverables as and when specified in the SOW and the Specifications.


 


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Section 2.4 Flight Satellite Storage. SUPPLIER shall store one or more of the Flight Satellites
in appropriately environmentally controlled and secured facilities, under conditions as more
particularly described in Section 2.7 of the SOW. SUPPLIER shall insure the Flight Satellite while
in storage and shall be responsible for its risk of loss. SUPPLIER shall bear the cost of storage
and insurance until the Flight Satellite is Ready to Ship, subject to the following: If delays in
shipment of a Shipset caused by
ORBCOMM are in excess of ninety (90) days (the “Storage Grace Period”), ORBCOMM shall pay SUPPLIER
$[* * *]/month (pro rated for partial months) per Shipset for such delays in excess of the Storage
Grace Period. Such charge includes, without limitation, the cost of insurance to be obtained by
SUPPLIER. In addition, if ORBCOMM causes a delay in shipment in excess of six (6) months, ORBCOMM
shall pay SUPPLIER for and necessary acceptance testing on a Cost basis, to include associated
SUPPLIER and subcontractor labor.



Section 2.5 — Launch Vehicle and Launch Site. With respect to each Shipset, ORBCOMM shall provide
notice to SUPPLIER of the selected Launch Vehicle(s) and Launch Site(s) to SUPPLIER twelve (12)
months prior to the scheduled Pre-Shipment Review of said Shipset. ORBCOMM shall make its
selection from the following types:




	 	(i)	 	Strela;

	 
	 	(ii)	 	Minotaur IV; and

	 
	 	(iii)	 	PSLV






Use of a different Launch Vehicle than specified or of more than one Launch Vehicle type for the
first eighteen (18) satellites shall be subject to the provisions of Article 9 hereof (Changes) as
to any effects on price and/or schedule.



Section 2.6 — Regulatory Matters. The SUPPLIER shall obtain and maintain all necessary or
appropriate regulatory consents, including, without limitation, as may be required under United
States or foreign export laws and regulations to perform and provide all Services and Work
specified herein, including, without limitation, the export of the Satellites.



ARTICLE 3 — WORK SCHEDULE AND DELIVERY




Section 3.1 — Delivery; Completion of Pre-Shipment Reviews.



(a) Delivery; Pre-Shipment Review. The FlatSat shall be Delivered no later than thirty-seven
(37) months after the Effective Date and the Satellite Simulator shall be Delivered no later than
twelve (12) months after the Effective Date. The Pre-Shipment Review shall be Successfully
Completed: (i) for the first six (6) Flight Satellites no later than twenty-four (24) months after
the Effective Date; (ii) the next set of six (6) Flight Satellites out of the Initial Order no
later than thirty-one (31) months after the Effective Date; and the last set of six (6) Flight
Satellites out of the Initial Order no later than thirty-six (36) months after the Effective Date.
All other Deliverables shall be Delivered by the applicable time specified in the SOW and, in the
case of the Optional Satellites, by application of such schedules consistent with the required
Delivery dates therefor.


 


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(b) Optional Satellite Pre-Shipment Review. Pre-Shipment Review of each of the Optional
Satellites shall be Successfully Completed no later than as shown in the following schedule:



	 	 	 	 	 	 	 	 	 
	 	 	Satellite Minimum	 	 	PSR Dates	 
	Exercise Date	 	Quantity	 	 	(subject to Section 5.1(d) below)	 
	On or before Effective Date Plus nine months
	 	 	3	 	 	Order Date Plus [* * *] months
	 	 	6	 	 	Order Date Plus [* * *] months
	 	 	12	 	 	Order Date Plus [* * *] months
	 
	 	 	18	 	 	Order Date Plus [* * *] months
	After
9 months and on or before 1 year from Effective Date
	 	 	3	 	 	Order Date Plus [* * *] months
	 	 	6	 	 	Order Date Plus [* * *] months
	 	 	12	 	 	Order Date Plus [* * *] months
	 
	 	 	18	 	 	Order Date Plus [* * *] months
	After 1 and
on or before 2 years from Effective Date
	 	 	3	 	 	Order Date Plus [* * *] months
	 	 	6	 	 	Order Date Plus [* * *] months
	 	 	12	 	 	Order Date Plus [* * *] months
	 
	 	 	18	 	 	Order Date Plus [* * *] months
	After 2 and
on or before 3 years from Effective Date
	 	 	3	 	 	Order Date Plus [* * *] months
	 	 	6	 	 	Order Date Plus [* * *] months
	 	 	12	 	 	Order Date Plus [* * *] months
	 
	 	 	18	 	 	Order Date Plus [* * *] months







ARTICLE 4 — CONSIDERATION




Section 4.1 — Price. Subject to any adjustments in Price as determined in accordance with this
Agreement, the firm, fixed Price for the Initial Order shall be One Hundred Seventeen Million
United States Dollars ($117,000,000).



Section 4.2 — Optional Satellites. Subject to any adjustments in Price as determined in accordance
with this Agreement, the firm, fixed price per Optional Satellite (and all associated
Deliverables), ordered by ORBCOMM shall be:



	 	 	 	 	 	 	 	 	 
	 	 	Satellite	 	 	Optional Satellite	 
	 	 	Minimum	 	 	pricing	 
	Order Timing	 	Quantity	 	 	(millions)	 
	9 months from Effective Date
	 	 	[* * *]	 	 	 	[* * *]	 
	1 year from Effective Date
	 	 	[* * *]	 	 	 	[* * *]	 
	2 years from Effective Date
	 	 	[* * *]	 	 	 	[* * *]	 
	3 years from Effective Date
	 	 	[* * *]	 	 	 	[* * *]	 






Section 4.3 — Taxes.



(a) SUPPLIER shall be solely liable for and pay any applicable federal, state or local sales,
use, value added or excise taxes, import duties or other governmental fees or charges levied upon
or measured by the sale, the sales Price, or the use of the Deliverables to be Delivered or
Services to be performed hereunder (collectively, “Transfer Taxes”).


 


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(b) If ORBCOMM is (or becomes) wholly or partly liable to any person for Transfer Taxes
relating to this Agreement or the transactions contemplated herein, (i) SUPPLIER shall pay to
ORBCOMM the amount of any Transfer Taxes due and owing, and (ii) ORBCOMM shall pay the full amount
of such Transfer Taxes to the relevant party in accordance with applicable law.



(c) ORBCOMM hereby waives compliance by SUPPLIER with the provisions of any bulk transfer laws
which may be applicable to the transactions contemplated by this Agreement. SUPPLIER shall
indemnify, defend and hold ORBCOMM harmless from and against, and pay or reimburse, as the case may
be, ORBCOMM for any and all damages, as incurred, suffered by ORBCOMM based upon, arising out of or
otherwise relating to such noncompliance.



Section 4.4 — Insurance.



(a) The Price(s) includes the cost of property/casualty insurance and general and product
liability insurance for the Flight Satellites until they are Ready to Ship and for all other
Deliverables until ORBCOMM takes Delivery of the applicable Deliverable in accordance with the
schedule in this Agreement.



(b) SUPPLIER shall use commercially reasonable efforts to obtain and maintain
property/casualty insurance for the Flight Satellites from the time they are Ready to Ship until
Launch at commercially reasonable rates (“Post-Ready to Ship Insurance”), and shall ensure that
there are no gaps in insurance before or after the point that the Flight Satellites are Ready to
Ship. The price (including any broker fee) of such insurance shall be subject to ORBCOMM’s prior
written consent, not to be unreasonably withheld, and, if requested by ORBCOMM, SUPPLIER shall use
ORBCOMM’s selected insurance broker for this purpose. Subject to the foregoing, ORBCOMM shall pay
the insurance premium for such policy and the broker’s commission, if any.



(c) All personal property belonging to either party in the other party’s custody or possession
shall be at the possessing party’s risk of loss or damage from all hazards until Launch. The
parties and their subcontractors will maintain public liability and property damage insurance in
reasonable limits covering the obligations set forth above and will maintain required workers’
compensation insurance covering all employees engaged in the performance of this Agreement.



Section 4.5 — Assistance in Spacecraft Insurance. SUPPLIER shall reasonably assist ORBCOMM, at
SUPPLIER’s expense, in the event ORBCOMM decides to obtain Launch and/or in-orbit insurance for one
or more of the Satellites (and/or the Satellite portions thereof), by making available SUPPLIER
personnel to participate in a reasonable number of technical presentations to insurers and by
providing such reasonable documentation and reasonable on-site inspections as ORBCOMM’s insurance
broker and insurers shall require in order to obtain and maintain such insurance.



Section 4.6 — Assistance in Settlement of Claims. In the event ORBCOMM files a claim under any
insurance policies it may obtain for one or more of the Satellites (and/or the Satellite portions
thereof), SUPPLIER shall provide ORBCOMM with all reasonable assistance necessary to permit ORBCOMM
to substantiate and pursue its claim including, without limitation, providing ORBCOMM, its
insurance broker and its insurers with such documentation relating to the Satellite as ORBCOMM, its
insurance broker or its insurers shall reasonably request.


 


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Section 4.7 Team Members. SNC shall use the following subcontractors, herein “Team Members,” for
the portions of the Work substantially in accordance with the forms of statements of work for
these subcontractors that have been presented by SNC to ORBCOMM: ITT Industries Space Systems,
LLC;
The Boeing Company, MicroSat Systems (“MSI”); COM DEV Europe LTD (provided that within thirty (30)
days of the Effective Date, SNC may, with notice to ORBCOMM, substitute Argon ST, Inc. for some or
all of the Work specified to be performed by Com DEV Europe LTD, [* * *]); The PTR Group; and, if
SNC will be providing the Launches for the Satellites, its Launch Subcontractor. SNC shall be
responsible for all acts and omissions of its subcontractors, including Team Members, the same as
SNC would be responsible hereunder for its own acts and omissions in performing the Work.



Section 4.8 Launch Option. Not later than ninety (90) days from the Effective Date, SNC shall
present ORBCOMM, in writing, with an option pursuant to which, if accepted by ORBCOMM, SNC shall
provide launches for the Satellites in the Initial Order. The option shall be available for
exercise for a minimum of thirty (30) days from delivery to ORBCOMM, during which time, if ORBCOMM
is interested in exercising the option, the parties shall negotiate in good faith changes in this
Agreement as necessary or appropriate to implement the same. The addition of such Launch
responsibilities to this Agreement shall not be effective without a mutually agreeable written
amendment to this Agreement executed by SNC and ORBCOMM. If proceeding with the proposed option
would reduce any Team Member’s pricing to SNC, SNC shall so notify ORBCOMM and such savings shall
be shared [* * *], subject to implementation in the same manner as savings under Section 5.2(c)
below.



Section 4.9 Secondary Payload Option. SNC shall prepare and present to ORBCOMM a complete
cost-benefit analysis including any schedule and performance impacts due to a secondary payload
opportunity, as well as any mutually beneficial potential business models. Following a detailed
review of all the trade-offs and approval of ORBCOMM (which approval may be given or withheld in
ORBCOMM’s sole discretion) to incorporate such a secondary payload into the baseline at the right
point in time for any particular satellite Shipset(s), SNC will propose a modified baseline
configuration that would minimize potential risks to the program and have the least impact on the
original baseline. Upon the prior written approval of a contract change by ORBCOMM, SNC will then
proceed to implement a secondary payload in the modified program baseline.



Section 4.10 Expansion of MSI’s Facilities. Supplier shall cause MSI to complete and make
operational new facilities to be employed for the bus and integration activities to be performed by
MSI for the Project not later than September 30, 2008. Said facilities shall have sufficient space
(over 40,000 square feet) and facilities to meet the requirements and schedule of the Project as to
be performed by MSI.


 


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ARTICLE
5 — PAYMENT TERMS AND INVOICING




Section 5.1 — Milestone Payments.




	 	(a)	 	Payments by ORBCOMM to SUPPLIER for the Initial Order shall be made following
Successful Completion of the Milestones as shown below, but in no event earlier than
thirty (30) days prior to the scheduled completion date also as shown below:






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Scheduled	 	 	 	 	 	 	Cum %	 	 	 	 	 	 	 
	 	 	 	 	 	 	Completion	 	 	Payment %	 	 	Payment of	 	 	 	 	 	 	 
	 	 	Milestone	 	 	Months from	 	 	of Initial	 	 	Initial Order	 	 	Payment	 	 	Cum	 
	Milestone	 	Description	 	 	Effective Date	 	 	Order Price	 	 	Price	 	 	Amount	 	 	Payments	 
	1
	 	 	 	 	 	 	 	 	 	 	[* * *]	 	 	 	 	 	 	 	 	 	 	 	 	 
	2
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	5
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	6
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	7
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	8
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	9
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	10
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	11
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	12
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	13
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	14
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	15
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	16
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	17
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	18
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	19
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	20
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	21
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	22
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	23
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	24
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	25
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	26
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	27
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	28
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	29
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	30
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	31
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	32
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	33
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	34
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	35
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	36
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	37
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	117,000,000	 






[* * *]


 


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	 	(b)	 	Payments by ORBCOMM to SUPPLIER for any Optional Flight Satellite (“OFS”)
ordered for In-Orbit Delivery shall be made following Successful Completion of the
Milestones as shown below, but in no event earlier than the scheduled completion date
also as shown below:






	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Scheduled	 	 	 	 
	 	 	 	 	 	 	Completion	 	 	 	 
	 	 	 	 	 	 	months from	 	 	Payment % of	 
	Milestone	 	 	 	 	 	date of Option	 	 	Optional Satellite	 
	Number	 	Milestone Description	 	 	Exercise *	 	 	(“OFS”) Price	 
	1
	 	 	 	 	 	 	[* * *]	 	 	 	 	 
	2
	 	 	 	 	 	 	 	 	 	 	 	 
	3
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	4
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	5
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	6
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 







 


Page 10












 





	 	(c)	 	At the time of order of any Optional Satellite, the parties shall cooperate in
good faith to establish PSR dates (no later than the dates set forth in the chart in
Section 3.1(b) above) and associated scheduled Milestone completion dates to be
inserted in the column above, as applicable to the particular order, assuming ongoing
Work, consistent with the schedule of Work and scheduled Milestone completion dates for
the Initial Order.







	 	(d)	 	SUPPLIER shall provide ORBCOMM with a secured credit facility in accordance
with the terms set forth in Exhibit G hereto and subject to other customary terms and
conditions to be mutually agreed to by SUPPLIER and ORBCOMM, each acting reasonably.






Section 5.2
— Schedule and Payment Adjustments.



(a) SUPPLIER Delay in Pre-Shipment Review. In the event of a delay of more than sixty (60)
days in Successfully Completing the PSR from the scheduled completion date as set forth in Section
3.1(a) with respect to the Initial Order and Section 3.1(b) with respect to any Optional
Satellites, SUPPLIER shall pay ORBCOMM the amounts set forth below, except to the extent that the
delay is caused in whole or in part by ORBCOMM’s failure to perform its obligations hereunder or a
Force Majeure Event:




	 	(i)	 	U.S.$[* * *] per day (starting with sixty-first (61st)
day) per Shipset #1 delay in PSR, up to
U.S.$[* * *];







	 	(ii)	 	U.S.$[* * *] per day (starting with sixty-first (61st)
day) per Shipset #2 delay in PSR, up to U.S.$[* * *];







	 	(iii)	 	U.S.$[* * *] per day (starting with sixty-first (61st)
day) per Shipset #3 delay in PSR, up to U.S.$[* * *]; and







	 	(iv)	 	Delays in Successfully Completing PSR for Optional
Satellites shall be charged at U.S.$[* * *] per day per Optional Satellite
that is delayed, starting with the sixty-first (61st) day of delay, up to
[* * *]% of the price for the applicable Optional Satellite(s).






(b) Successful Operation Incentive – Initial Order. ORBCOMM shall pay SUPPLIER an incentive
bonus for the Successful Operation of the Initial Order five (5) years following the Successful
Completion of IOT for Shipset #3 (the “Five-Year Mark”), as follows: U.S.$1,500,000 if all 18
Flight Satellites of the Initial Order are Successfully Operating at the Five-Year Mark; or U.S.$
1,000,000 if 17 of the 18 Flight Satellites of the Initial Order are Successfully Operating at the
Five-Year Mark; or $500,000 if 16 of the 18 Flight Satellites of the Initial Order are Successfully
Operating at the Five-Year Mark.




(c) [* * *]


 


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Section 5.3
— Invoicing; U.S. Dollars. For all invoices for progress payments, Milestones and/or
time and material tasks (e.g., for “Costs” where applicable hereunder), SUPPLIER shall provide a
certificate,
signed by the Vice President of Finance/Contracts or Controller of SUPPLIER or by any other officer
designated by the Vice President of Finance/Contracts or Controller of SUPPLIER, certifying the
accuracy of the invoice and, if applicable, the Costs incurred that are the subject of the
respective invoice. Fixed Price invoices will be submitted following Successful Completion of the
Milestones in Section 5.1 above. For Cost tasks, the monthly invoices shall include, but not be
limited to, a listing of labor Costs, material invoices, and other Costs sufficient as to enable
ORBCOMM to fully comprehend the total charges being invoiced by SUPPLIER and confirm compliance
herewith. Invoices shall be submitted to the following addresses:



ORBCOMM Inc

Attn: Tony Robinson, Vice President, Space Segment Engineering

21700 Atlantic Blvd.

Dulles, VA 20166, and




ORBCOMM Inc.

Attn: Robert Costantini, Chief Financial Officer

2115 Linwood Avenue

Fort Lee, NJ 07024




, or to such other address as ORBCOMM may specify on notice to SUPPLIER.



ORBCOMM shall pay invoices within thirty-five (35) days from the date of the invoice; provided that
such invoice meets the requirement of this Section 5.3. All undisputed fees not paid within ten
(10) days of the due date shall bear interest at the annual percentage rate of nine percent (9%),
or at the highest rate allowed by law, whichever is less (the “Contract Interest Rate”), from the
date due until paid. The foregoing notwithstanding, interest shall not accrue without SUPPLIER
first giving ORBCOMM a written demand for late payment, expressly stating that SUPPLIER intends to
charge interest and ORBCOMM failing to make any undisputed payment subject to such demand letter
within five (5) days of notice thereof.




All payment obligations are expressed herein and shall be paid by United States dollars.



In any circumstances in which payments are to be made by SUPPLIER to ORBCOMM hereunder, the
above provisions shall apply in reverse mutatis mutandis.



Section 5.4 — Milestone Achievement.



(a) A Milestone shall be deemed achieved upon the Successful Completion by SUPPLIER that the
Work that is the subject of the Milestone has been Successfully 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 as defined in Exhibit A, Statement of
Work and Specifications.



(b) In the event that SUPPLIER fails to Successfully Complete a Milestone on or before the
scheduled completion date shown in the Work Schedule, ORBCOMM may withhold payment of the
applicable amounts specified for such Milestone until such time as SUPPLIER achieves such Milestone
or obtains a waiver in writing from ORBCOMM for such achievement. SUPPLIER’s failure to timely
complete any Milestone shall not relieve ORBCOMM from its obligation to pay for other achieved
Milestones.


 


Page 12









 





(c) If 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 (including, without limitation, the requirements of the
invoice itself) has not been fulfilled, ORBCOMM shall provide SUPPLIER written exceptions within
fourteen (14) 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
SUPPLIER’s response, in writing, addressing in detail each of ORBCOMM’s exceptions and
demonstrating Successful Completion of the applicable Milestone or other conformity with invoice or
other requirements for payment; provided however, if ORBCOMM reasonably concludes that SNC’s
response to ORBCOMM’s exceptions to be non-responsive or not to demonstrate such Successful
Completion or to cure other non-compliance (in any case, “Non-Responsive”) and so notifies SNC as
provided in Subsection 5.4(d) below, ORBCOMM shall have the right, at its good faith discretion, to
defer any unpaid amount of the relevant payment until the resolution of the matter as described in
Subsection 5.4(d) below; provided, further that, in the event of a bona fide dispute, ORBCOMM
shall, within thirty (30) days of SNC’s written request, deposit the disputed amount into an
interest bearing escrow account that shall provided for payment to SNC (with accrued interest) if
and to the extent that SNC is determined to have been entitled to payment at the time of its
earlier disputed invoice.



(d) In the event ORBCOMM concludes that SUPPLIER has been Non-Responsive to ORBCOMM‘s
exception to an invoice, ORBCOMM shall notify SUPPLIER thereof in writing (the “Exception
Notification”) within ten (10) Business Days after receipt of SUPPLIER’s response to ORBCOMM
written exception. The Exception Notification shall (A) specify in reasonable detail the reason(s)
ORBCOMM believes SUPPLIER’s response to be Non-Responsive, and (B) advise SUPPLIER formally that
ORBCOMM intends to withhold payment on that basis. On receipt of an Exception Notification from
ORBCOMM, SUPPLIER shall have thirty (30) days to demonstrate the achievement of the relevant
Milestone and/or satisfaction of any other contractual requirement. If SUPPLIER is unable to make
such a demonstration, ORBCOMM shall have the right to defer payment as provided above. If SUPPLIER
continues to dispute the ORBCOMM assertions of non-compliance, either party may, at any time after
the filing of the SUPPLIER additional response as permitted by this Section 5.4(d), submit the
matter to be resolved by the disputes procedure as provided in Section 15.4 hereof.



Section 5.5 — Accounting Review of Submitted Invoices. For the application of Section 5.2(c)
hereof and for Agreement changes or Work performed on a Cost basis, in order to assure ORBCOMM that
the invoices that are submitted accurately reflect (i) the actual incurred Costs for materials,
invoices and travel and (ii) the correct labor rates to be invoiced under the terms of this
Agreement, upon ORBCOMM’s request, upon reasonable notice, SUPPLIER shall make available for
inspection at all reasonable times by an independent accounting firm, to be selected by ORBCOMM,
and subject to the consent of SUPPLIER not to be unreasonably withheld, SUPPLIER’s books and
records as they relate to this Agreement, for accounting review. In the event that the independent
accounting firm determines that ORBCOMM was overcharged, the amount of the overcharge, plus
interest at the Contract Interest Rate from the date of overpayment, shall be refunded to ORBCOMM
within five (5) Business Days from the date of notification by the independent accounting firm. In
addition, if the accounting review shows that SUPPLIER’s charges under review to be more than five
percent (5%) in excess of the charges that should have been invoiced to ORBCOMM, SUPPLIER shall
reimburse ORBCOMM for the Costs of the accounting review. SUPPLIER shall maintain all books and
records necessary to support its invoices to ORBCOMM for a minimum of five (5) years following the
date of relevant invoice.


 


Page 13









 






ARTICLE 6 — TECHNICAL AND CONTRACTUAL REPRESENTATIVES




The following authorized representatives are hereby designated for this Agreement:



	 	 	 	 	 	 	 
	SUPPLIER:

	 	 	 	ORBCOMM:	 	 
	 
	 	 	 	 	 	 
	Technical:

	 	Larry Montgomery
	 	Technical:
	 	Tony Hopko
	 
	 	 	 	 	 	 
	Contractual:

	 	Ellick C. Hsu
	 	Contractual:
	 	Chris Le Brun, General Counsel
	 

	 	Staff Counsel	 	 	 	 






Each party may change its authorized representative(s) on notice to the other party given in
accordance with Section 15.1.



ARTICLE 7 — ACCESS AND ACCEPTANCE




Section 7.1  — Access. Subject to the receipt of any and all required governmental approvals,
ORBCOMM and its consultants and advisors shall have the right, on a not-to-interfere basis, during
normal business hours (and, subject to reasonable coordination efforts as appropriate under the
circumstances, all other times that Work is being performed at the relevant facility) during the
performance of this Agreement, to monitor and have access to the Work in progress (including
without limitation all test activities with access to related computer program information) at the
plant(s) of SUPPLIER and its Major Subcontractors. SUPPLIER shall use all commercially reasonable
efforts to incorporate this access right in all of its subcontracts.



Section 7.2 — Inspection and Acceptance.



(a) ORBCOMM shall, within fifteen (15) Business Days after being notified that a Satellite is
ready for the Pre-Shipment Review, conduct an inspection of the Satellite in accordance with
Section 5.4.3.1 of the SOW or, at ORBCOMM’s option, witness such inspection by SUPPLIER and shall
either approve it for acceptance in writing within five (5) Business Days or promptly notify
SUPPLIER in writing of the particulars in which they are non-conforming with the applicable
Specifications within five (5) Business Days. ORBCOMM shall within fifteen (15) Business Days
after being notified that a satellite is ready for the Launch Readiness Review, conduct an
inspection of the Satellite in accordance with Section 5.4.3.2 of the SOW to confirm that damage
has not occurred during shipment and shall either accept a Satellite in writing within five (5)
Business Days or promptly notify SUPPLIER in writing of the particulars in which it was damaged.
Corrections required to render the Satellites in conformance with the applicable Specifications
shall be made by SUPPLIER at its cost and in the manner as the parties shall reasonably agree.
Prior to Launch, any portion of the Satellites 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 SUPPLIER after SUPPLIER has remedied the non-conformance. ORBCOMM may be assisted in
all inspections by its consultants or advisors. All inspections and tests by ORBCOMM and retests
by SUPPLIER shall be performed in such a manner as not to unduly delay the Work and in accordance
with the SOW. If practical, all testing and corrections to be made post-shipment to the Launch
Site shall be made without re-shipment to SUPPLIER’s facilities, to SUPPLIER. If not, the cost of
re-shipment to and from SUPPLIER facilities, including insurance and risk of loss, while in transit
and while at SUPPLIER’s facilities, shall be borne by SUPPLIER. For the avoidance of doubt,
ORBCOMM’s acceptance shall not relieve SUPPLIER of its warranty obligations through the Warranty
Period.


 


Page 14









 





Section 7.3. — Corrections in Unlaunched Satellites and Unused Launch Vehicles. If before the end
of the Warranty Period specified in Section 10, either SUPPLIER or ORBCOMM becomes aware that
Defects exist in any Unlaunched Satellites as a result of the operation or testing of in-orbit
satellites (including any Satellite in ORBCOMM’s possession), other launches, or otherwise,
including (without limitation) any event that would cause the representation given under Section
10.1 to be untrue, if restated, then the
following shall occur: (i) if the discovery is made by SUPPLIER, SUPPLIER shall notify promptly
ORBCOMM of such Defects, and SUPPLIER shall take prompt and appropriate corrective measures to
eliminate any such Defects from all Unlaunched Satellites, or (ii) if the discovery is made by
ORBCOMM, ORBCOMM shall notify promptly SUPPLIER of such Defects, and SUPPLIER shall be obligated
within ten (10) days to verify and respond to the ORBCOMM notification of Defects in the Unlaunched
Satellites, and SUPPLIER shall take prompt and appropriate corrective measures to eliminate any
such Defects from all Unlaunched Satellites. The decision how to correct the Defects shall be
subject to the prior written approval of ORBCOMM, not to be unreasonably withheld, conditioned, or
delayed.



Section 7.4.
— Post-IOT Support. In the event that any Flight Satellite, after Launch, does not
operate in accordance with the Specifications, SUPPLIER, with the assistance of ORBCOMM, shall use
commercially reasonable efforts to investigate such failure and to develop work-around solutions,
including, if necessary or appropriate, software patches or other adjustments in ground facilities
so as to eliminate or ameliorate the effects of such failure. SNC shall bear the costs to eliminate
or ameliorate the effects of such failure until [* * *], unless the failure was caused by ORBCOMM’s
negligent acts or omissions in operating such Satellite. Post-IOT support provided later than [*
* *] or before that time if the failure was caused by ORBCOMM’s negligent acts or omissions in
operating such Satellite shall, if requested in writing by ORBCOMM, be provided on a Cost basis.



ARTICLE 8 — TITLE AND RISK OF LOSS




Unless otherwise provided in this Agreement, title to, beneficial ownership of and right to
possession to and risk of loss of or damage to each Deliverable shall pass to ORBCOMM upon Delivery
of such Deliverable to ORBCOMM. (All references herein to the transfer of title herein shall
embody the same rights and responsibilities, as specified in the previous sentence, unless
otherwise expressly stated.) The foregoing notwithstanding, risk of loss and, unless earlier
transfer of title is requested in writing by ORBCOMM (which request shall be honored at any time
from and after the applicable PSR date), title to each Flight Satellite shall transfer to ORBCOMM
at the moment of Launch.



ARTICLE
8A — SNC’S SECURITY INTEREST




ORBCOMM agrees that SNC retains a purchase money security interest in each Satellite sold by SNC to
ORBCOMM and to any sale proceeds thereof, until the following Milestones have been paid or have
been otherwise discharged: (a) for Shipset #1 at the earlier of Milestone 24 (Satellite 11 FAT) or
Milestone #23 (SS#1 Launch) plus four (4) months, if Milestone 24 has not at that time yet
occurred; (b) for Shipset #2 at Milestone 26 (SS#2 Launch); (c) for Shipset #3 at Milestone 31
(SS#3 Launch); and (d) for any Optional Satellite, at PSR, in each case at which time any security
interest shall be deemed released and discharged without any further action required. ORBCOMM
agrees to promptly, but no later than fifteen (15) days after request for the same, execute any
financing statements or other documents as SNC may reasonably request in order to protect SNC’s
security interest. SNC agrees promptly, but no later than fifteen (15) days after request for the
same, to execute any release of the same, as to the applicable Satellite, upon discharge of SNC’s
security interest in accordance with this Article or Article 12, as ORBCOMM may reasonably request.
Upon any termination of this Agreement by SNC for default by ORBCOMM hereunder, SNC shall have all
rights and remedies of a secured party under the Uniform Commercial Code, which rights and remedies
shall be cumulative and not exclusive.


 


Page 15









 





ARTICLE
8B — ORBCOMM’S SECURITY INTEREST




As collateral for the timely performance by SUPPLIER of its Work hereunder, SUPPLIER hereby pledges
and grants to ORBCOMM, a first priority security interest to all of SUPPLIER’s right, title, and
interest in
the Work and all Work in progress and any proceeds therefrom, whether now or hereafter acquired by
SUPPLIER and whether now-existing or hereafter coming into existence. Until SUPPLIER has Delivered
to ORBCOMM and transferred to it title to all Deliverables associated therewith (at which time the
applicable security interest shall be deemed discharged and released without any further action
required), SUPPLIER agrees promptly, but no later than fifteen (15) days after request for the
same, to execute any financing statements or other documents as ORBCOMM may reasonably request in
order to protect ORBCOMM’s security interest and ORBCOMM agrees to execute any release of the same,
at such point that pursuant to the previous sentence, such security interest is no longer required
to be maintained, as SUPPLIER may reasonably request. Upon any termination of this Agreement by
ORBCOMM for default by SUPPLIER hereunder, ORBCOMM shall have all rights and remedies of a secured
party under the Uniform Commercial Code, which rights and remedies shall be cumulative and not
exclusive.



ARTICLE
8C — PROPERTY ACCOUNTING




SUPPLIER shall account for all supplies, parts, materials, components, subsystems or systems in its
possession which are designated by SUPPLIER, in accordance with SUPPLIER’s normal inventory control
practice, to become the property of ORBCOMM pursuant to the terms of this Agreement, and which are
part of the items to be Delivered under this Agreement. For this purpose, SUPPLIER shall maintain
a system to control, protect, preserve and identify, at all times and until the Delivery and
acceptance of the last item to be Delivered hereunder, all of the aforementioned property in its
possession. Once supplies, parts, materials, components, subsystems or systems have been installed
on or designated for a Satellite under SUPPLIER’s internal system, such supplies, parts, materials,
components, subsystems or systems shall not be redeployed to another of SUPPLIER’s programs without
ORBCOMM’s prior written consent, and in no event if such redeployment would jeopardize the schedule
for Delivery of a Flight Satellite or any other item hereunder. SUPPLIER shall retain inventory
records reflecting the foregoing until the Delivery and acceptance of the last item to be Delivered
pursuant to this Agreement. SUPPLIER shall make inventory records and the property to which they
relate available for ORBCOMM review and inspection, upon reasonable notice and at reasonable times.



ARTICLE 9 — CHANGES




Section 9.1 — 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 9.2 — Adjustments to Agreement.



(a) If any change requested by ORBCOMM causes an increase or decrease in SUPPLIER’s Costs, or
in the time required for performance of any part of the Work, whether or not directly changed by
the order, ORBCOMM and SUPPLIER shall negotiate an equitable adjustment to such Price, Delivery
schedule or other provision of this Agreement. If SUPPLIER’s Costs are increased in connection
with any changes under this Article 9, it shall be entitled to such Costs. If SUPPLIER’s Costs are
reduced in connection with any changes under this Article 9, ORBCOMM shall be entitled to a credit
against its payments otherwise due hereunder of SUPPLIER’s savings, also calculated at Cost.
SUPPLIER shall perform the Work as contractually obligated pending resolution of any negotiation
under this Article 9; unless ORBCOMM directs SUPPLIER in writing to proceed with the change subject
to such resolution in which event SUPPLIER shall proceed in that manner. If ORBCOMM so directs
SUPPLIER to proceed
pending such resolution, then: (i) ORBCOMM shall pay SNC in accordance with such proposal pending
resolution at which time any over (or under) payments shall be required to be paid or refunded by
the relevant party in accordance with such resolution; and (ii) the pendancy of such resolution
shall not excuse SNC from proceeding with the Work as changed.


 


Page 16









 





(b) SUPPLIER must assert in a written proposal that addresses its right to an adjustment under
this Article 9 within twenty (20) Business Days from receipt of the written order.



(c) If SUPPLIER’s proposal includes the Cost of replacing property made obsolete or excess by
the change, SUPPLIER’s charge for the new item shall be reduced by the Cost of the item to be
replaced.



(d) Failure to agree to any adjustment shall be a dispute and shall be settled in accordance
with Section 15.4.



Section 9.3 — Changes Made by Waiver. In no event shall ORBCOMM be required to make any additional
payment or agree to any adjustment on the Work Schedule to accommodate any change that may result
from a waiver that may be requested by SUPPLIER.



ARTICLE
10 — REPRESENTATIONS, WARRANTIES AND COVENANTS




Section 10.1 — SUPPLIER’s Representations Warranties and Covenants. SUPPLIER represents, warrants
and covenants that:



(a) it has and it shall deliver to ORBCOMM at the time of title passing as provided in this
Agreement, sole and good legal and equitable title to the items to be Delivered or to the extent
applicable, the Services required to be performed hereunder, 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 hereunder.



(b) the Deliverables to be provided hereunder shall conform to the requirements defined in
Exhibit A, Statement of Work and Specifications, and be free from material defects in design,
material and workmanship and shall operate and conform to the Specifications for a period of
thirty-six (36) months following Delivery thereof (“Warranty Period”); provided that the Warranty
Period for each Satellite (subject to the provisions herein) shall expire upon Launch and provided
further that if SUPPLIER identifies or is notified of such defects prior to expiration of the
Warranty Period its obligation to correct such defects shall continue until such defects are
remedied. All Services to be provided hereunder shall be performed in accordance with commercially
reasonable standards of care and in accordance with best industry practices. The foregoing
warranties do not apply to errors or malfunctions caused by (i) malfunction of ORBCOMM’s equipment,
(ii) software provided to SUPPLIER by ORBCOMM, or (iii) any other cause not attributable to Work
performed by SUPPLIER or its contractors or subcontractors.



(c) To the best of SUPPLIER’s knowledge, following reasonable inquiry, there are no anomalies
that have occurred either in orbit or in testing, with respect to each and every such system,
sub-system, or unit that, if present in a Satellite, would cause or threaten to cause the Satellite
not to perform in accordance with the Specifications, unless the root cause of the anomaly has been
determined and resolved.


 


Page 17









 





(d) To the best of SUPPLIER’s knowledge, there is nothing inherent in the Satellites that
would prevent SUPPLIER from obtaining: (i) all U.S. or other export authorizations for their
Delivery, along with
all associated technical data, to NATO and non-NATO countries (and to NATO and non NATO nationals);
and/or (ii) launch and/or in-orbit insurance for the Satellites (and/or the ORBCOMM Satellites) at
commercially reasonable rates and without any exclusion specific to the Satellites, or any of their
system, sub-system, or unit elements.



(e)
The information provided by SUPPLIER to ORBCOMM in response to ORBCOMM’s due diligence
checklist, attached hereto and incorporated herein as Exhibit H, is accurate and complete in all
material respects. SUPPLIER is not, in any material respect, in breach of or in default under any
of the material contracts referenced in Section E4 of Exhibit H or any other contract with a
contract value in excess of Ten Million United States Dollars ($10,000,000).



(f)
The audited consolidated balance sheet of SUPPLIER as of December 31, 2006, including the
footnotes thereto, and the unaudited consolidated balance sheet of SUPPLIER dated as of December
31, 2007 and the related consolidated statements of operations, cash flows and changes in
shareholders’ equity for each of such two fiscal years of SUPPLIER that was provided by SUPPLIER to
ORBCOMM in response to the due diligence checklist provided in Exhibit H accurately reflect, in all
material respects, the consolidated financial position of SUPPLIER as at such balance sheet dates
and the consolidated results of operations and consolidated cash flows of SUPPLIER for each of such
fiscal years, in each case in accordance with United States generally accepted accounting
principles, consistently applied for the periods covered thereby.



Section 10.2
— Mutual Representations and Warranties. Each party represents and warrants to the
other that:



(a) it is a corporation duly and validly organized and existing in good standing under the
laws of the state of its incorporation, that it has full corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby, that the transactions
contemplated hereby have been duly authorized by all necessary corporate action, and that this
Agreement constitutes the legal, valid, and binding obligation of such party; and



(b) neither the execution and delivery of this Agreement nor the performance of the parties’
respective obligations hereunder will (a) violate any provisions of its certificate of
incorporation or bylaws or other governing instrument, or the certificate of incorporation or
bylaws or other governing instrument or any of its subsidiaries or affiliates or (b) violate, be in
conflict with, or constitute a default under any agreement or commitment to which the party or any
of its subsidiaries or affiliates is a party or (c) violate any statute or law or judgment or
decree, order, regulation or rule of any court or other governmental body applicable to the party,
its parent corporation(s), subsidiaries or affiliates or (d) require the payment of any broker’s
commission or finder’s fee.



Section 10.3
— Exclusion of Warranties. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, SUPPLIER
DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO
COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE SHALL BE DEEMED TO ESTABLISH A
WARRANTY, EXPRESS OR IMPLIED.


 


Page 18









 





ARTICLE 11 — REMEDIES FOR BREACH OF WARRANTY; LIMITATION OF LIABILITY; INTELLECTUAL PROPERTY
INDEMNIFICATION; INTERPARTY WAIVER



Section 11.1 — Remedies for Breach of Warranty and Warranty Period. Except in the case of willful
misconduct, fraud, or gross negligence, ORBCOMM’s exclusive remedy and SUPPLIER’s sole liability
for Defects in Deliverables, failure of any Deliverable to conform with applicable Specifications
shall be limited to: (i) SUPPLIER using commercially reasonable efforts to correct such Defects in
the Deliverable(s) or supply ORBCOMM with a corrected version of the Deliverables pursuant to
Section 7.3 above, as soon as reasonably practicable after SUPPLIER becomes aware or has been
notified of such Defects; (ii) if correction or replacement is not reasonably achievable by
SUPPLIER, for ORBCOMM to withhold payment to SUPPLIER of the Price for the Satellite(s) so
affected; (iii) the applicable Price adjustments set forth in Section 5.2 hereof or as may be
determined as part of the waiver or change order process set forth in Article 9 and the Statement
of Work; (iv) ORBCOMM terminating the Agreement pursuant to Article 12, and exercising its remedies
stated therein; (v) the indemnification and other rights and obligations as set forth herein;
and/or (vi) the specific performance set out in Section 11.5 below.



Section 11.2 — Limitation of Liability. EXCEPT AS TO THIRD PARTY LIABILITY IN THE CASE OF A
PARTY’S OBLIGATIONS OF INDEMNITY HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF ANY OF THE GOODS OR
SERVICES TO BE PROVIDED HEREUNDER, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OR OTHERWISE IS AWARE
OF THE POSSIBILITY OF SUCH DAMAGES.



Section 11.3 — Intellectual Property Indemnification.



(a) SUPPLIER agrees to defend, indemnify and hold harmless ORBCOMM, from and against any claim
or liability arising from any claim and/or allegation alleging that the Work or any portion thereof
infringes (including direct or contributory infringement or inducement to infringe), violates or
misappropriates any patent, copyright, trade secret or proprietary right of any third party (each,
an “Infringement Claim”), and SUPPLIER shall indemnify ORBCOMM, against all costs, expenses,
damages, and liability (including reasonable attorneys fees) arising from any such Infringement
Claim; provided, however, that (i) ORBCOMM shall have given SUPPLIER prompt notice of such
Infringement Claim, (ii) ORBCOMM shall cooperate with SUPPLIER in the defense and settlement
thereof and (iii) SUPPLIER shall have control of the defense of such action and any settlement or
compromise thereof. SUPPLIER shall not enter into any settlement or compromise that fails to
completely absolve ORBCOMM from any liability or obligation with respect to such matter, nor shall
SUPPLIER have the right to control the defense of any action in which SUPPLIER disputes a material
portion of the liability to ORBCOMM. Although SUPPLIER may have control of the defense of any
Infringement Claim, SUPPLIER shall provide ORBCOMM with copies of all pleadings filed in any such
case and SUPPLIER or its representatives shall keep ORBCOMM or its agents informed of all material
information pertaining to a Infringement Claim. Notwithstanding any of the foregoing to the
contrary, the failure or delay of ORBCOMM to deliver prompt notice of an Infringement Claim shall
not excuse any indemnity obligations of SUPPLIER hereunder, except to the extent that SUPPLIER was
actually disadvantaged by such failure or delay.



(b) If a temporary or a final injunction is obtained against ORBCOMM’s use of the Work or any
portion thereof by reason of an infringement, violation or misappropriation of a patent, copyright,
trade secret or proprietary right, SUPPLIER will, at its option and expense, either (i) procure
for ORBCOMM the right to continue using the Work; or (ii) replace or modify the Work so that it no
longer infringes, violates or misappropriates such patent, copyright, trade secret or proprietary
right and continue to perform in accordance with the Specifications.


 


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(c) SUPPLIER shall have no liability to ORBCOMM arising from an Infringement Claim to the
extent that such liability is based upon or arises out of (i) the modification of the Work by
ORBCOMM or ORBCOMM-provided software, or any third party (other than subcontractors of SUPPLIER in
connection with the Project) or (ii) the use of the Work or any portion thereof in combination with
any other equipment or software, in the event that, but for such modification or use, such
liability from such Infringement Claim would not arise.



(d) SUBJECT TO THE PROVISIONS OF EXHIBIT D HERETO, THIS ARTICLE STATES SUPPLIER’S ENTIRE
OBLIGATION TO ORBCOMM WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.



Section 11.4 — Interparty Waiver. The parties agree to the extent required under the Launch
Contract to be entered by SUPPLIER or ORBCOMM to accede to a no-fault, no-subrogation,
inter-participant waiver of liability, whereby the parties agree mutually to waive, and shall
require their subcontractors at any tier to waive, certain rights of recovery (as shall be more
particularly described in the Launch Contract) any such party may have against the Launch services
provider (which shall not be interpreted for purposes of this Section 11.4 to mean SUPPLIER), its
contractors and subcontractors at any tier, and its contractors and subcontractors at any tier
involved in Launch services. Each party shall indemnify the other party for and hold the other
party harmless from any liability, loss or damage suffered by such party resulting from the failure
by the party to comply with its obligations under this Section 11.4 to waive, or to require its
subcontractors at any tier to waive, such rights of recovery referred to in this paragraph. The
parties shall execute and deliver any agreement as may be necessary to accede to the waiver of
liability referred to in this Section 11.4.



Section 11.5 — Specific Performance. ORBCOMM may seek equitable relief to compel performance by
SUPPLIER of its obligations hereunder in the event of any breach by SUPPLIER of its obligations
hereunder. SUPPLIER may contest whether a breach has in fact occurred, but shall not contest that,
if a breach has occurred, an order of specific performance, if sought by ORBCOMM, is an appropriate
remedy.



ARTICLE 12 — TERMINATION




Section 12.1 — Termination.



(a) This Agreement 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 notice of termination to SUPPLIER, terminate this Agreement in whole (or
in part) upon: (i) the failure of SUPPLIER (a) to Successfully Complete a Milestone within [* * *]
after the scheduled completion date set forth in Section 5.1(a) with respect to the Initial Order
and Section 5.1(b) with respect to any Optional Satellites (other than with respect to PSR which
scheduled completion dates are set forth in Section 3.1(a) and 3.1(b), as applicable), unless due
solely or substantially to a breach by ORBCOMM of its obligations hereunder, provided that
scheduled completion dates shall be extended for up to eight (8) additional weeks by any excusable
delays as a result of a force majeure event under Section 15.2; (b) to comply in any material
respect with any of the provisions of this Agreement and to correct such failure, within [* * *]
from the date of SUPPLIER’s receipt of notice thereof from ORBCOMM’s authorized representative
setting forth in reasonable detail ORBCOMM’s basis for termination of the Agreement; (ii) any
secured or lien creditor of SUPPLIER commences a foreclosure action of its liens, security
interests and/or mortgages in or against a material portion of SUPPLIER’s operating assets, and
such proceedings are not dismissed within sixty (60) days after commencement; or


 


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(iii) (a) SUPPLIER commences a voluntary proceeding concerning itself under any applicable
bankruptcy or similar insolvency or reorganization law (“Insolvency Law”), (b) any involuntary
proceeding commences against SUPPLIER under an Insolvency Law and the petition has not been
dismissed within one hundred and twenty (120) days after commencement of the proceeding, (c) a
receiver is appointed for or takes charge of all or a substantial portion of the property of
SUPPLIER and such receiver has not been dismissed or discharged within one hundred twenty (120)
days, (d) SUPPLIER has taken action toward the winding-up, dissolution or liquidation of SUPPLIER
or its business, (e) SUPPLIER has been adjudicated insolvent or bankrupt or a final order for
relief or approving a case or proceeding under an Insolvency Law has been entered, or (f) SUPPLIER
has made a general assignment for the benefit of creditors or becomes unable to pay its debts
generally as they become due.



(c) SNC may, by notice of termination to ORBCOMM terminate this Agreement in whole (or in
part) upon: (i) the failure of ORBCOMM to make any payment due hereunder to SNC, unless the
requirement of such payment is subject to a bona fide dispute, within sixty (60) days from the date
of ORBCOMM’s receipt of notice thereof from SNC’s authorized representative setting forth in
reasonable detail its basis for termination for late payment, provided however, that any undisputed
portion of such payment has been made; (ii) any secured or lien creditor of ORBCOMM commences a
foreclosure action of its liens, security interests and/or mortgages in or against a material
portion of ORBCOMM’s operating assets, and such proceedings are not dismissed within sixty (60)
days after commencement; or (iii) (a) ORBCOMM commences a voluntary proceeding concerning itself
under any applicable Insolvency Law, (b) any involuntary proceeding commences against ORBCOMM under
an Insolvency Law and the petition has not been dismissed within one hundred and twenty (120) days
after commencement of the proceeding, (c) a receiver is appointed for or takes charge of all or a
substantial portion of the property of ORBCOMM and such receiver has not been dismissed or
discharged within one hundred twenty (120) days, (d) ORBCOMM has taken action toward the
winding-up, dissolution or liquidation of ORBCOMM or its business, (e) ORBCOMM has been adjudicated
insolvent or bankrupt or a final order for relief or approving a case or proceeding under an
Insolvency Law has been entered, or (f) ORBCOMM has made a general assignment for the benefit of
creditors or becomes unable to pay its debts generally as they become due.



Section 12.2 — Remedies Upon Termination.



(a) In the event of termination of this Agreement by ORBCOMM as provided for in Section
12.1(b) above, at and upon ORBCOMM’s election, as it shall specify on notice to SUPPLIER, SUPPLIER
shall either:



(i) Deliver and, to the extent not already vested or transferred, transfer title to ORBCOMM to
all Work in progress, including, without limitation, all drawings and technical data associated
with the Work, and all completed items including previously Delivered Deliverables, grant ORBCOMM
all necessary and appropriate licenses for the intellectual property embodied in such items,
drawings, and other technical data to use and make use of such items and take all commercially
reasonable steps to protect and preserve the property in the possession of SUPPLIER until Delivery
to ORBCOMM; provided that, as to any intellectual property not specifically developed for the
purposes of this Agreement, such licenses shall be for the limited purpose of completing work on
the Satellites, and launching, maintaining, and using such Satellites. In addition, unless
termination is made because of a delay caused by a Force Majeure Event, SUPPLIER shall pay to
ORBCOMM an amount (the “Additional SUPPLIER Termination Liability Payment”) that shall equal the
total of ORBCOMM’s Costs to have the Work to have been performed by SUPPLIER completed and
performed by other vendor(s) (less the remaining portion of the Price for such Work that would have
been payable to SUPPLIER had the Work been so completed by SUPPLIER) plus any additional costs that
ORBCOMM may incur with its integration, bus, launch, or other
charges as a result of the delay in completing the Work, provided that such Additional SUPPLIER
Termination Liability Payment not to exceed the total Price for the Satellites ordered hereunder;
or


 


Page 21









 





(ii) Refund to ORBCOMM all amounts paid by ORBCOMM to SUPPLIER under this Agreement, plus
interest at the Contract Interest Rate, from the date that payment was made, less the Retained
Amount, if any, as provided in this Section 12.2(a)(ii) below. ORBCOMM shall retain any Flight
Satellites already Delivered. In each case, ORBCOMM shall also retain any associated Deliverables
already Delivered. If and to the extent that ORBCOMM retains any Flight Satellite(s) and
Deliverables already Delivered at the time of termination, SUPPLIER shall be entitled to subtract
from its termination liability a pro rata portion of the Price for said Satellite(s), in the case
of the Initial Order based upon the number of Flight Satellites being retained against the total
order of eighteen (18) or, in the case of any Optional Satellite(s) retained, against the number of
Optional Satellites that were part of the terminated order, minus: (i) any portion of the Price
associated therewith for which Milestones have not been Successfully Completed; and (ii) such
amounts as would have been at risk in the event of any delay or failure of the applicable Flight
Satellite (the “Retained Amount”). As to any and all Flight Satellites or other Deliverables
retained by ORBCOMM under this Section 12.2(a)(ii), ORBCOMM shall have all the rights specified in
the first sentence of Section 12.2(a)(i) above.



(b) In the event of termination of this Agreement by SNC pursuant to Section 12.1(c) above,
SNC shall have the same rights and remedies available to it as specified in Section 12.3 hereof in
the event of termination for convenience by ORBCOMM.



(c) Any disagreement under this provision, including disagreements with respect to either
party’s right to seek a termination and the appropriate remedies for termination, shall be resolved
in accordance with Section 15.4 of this Agreement.



(d) Termination of this Agreement shall not relieve either party of any obligation arising out
of Work performed prior to termination, including obligations of warranty and indemnity, or any
obligations stated herein as surviving termination.



(e) Upon termination pursuant to Section 12.1(b), all licenses of intellectual property
granted pursuant to Section 13.1(b)(i) and Exhibit D shall survive termination.



Section 12.3 — Termination for Convenience. In the event that ORBCOMM’s underlying program for
which the Satellites under order shall be extinguished or so dramatically altered so that the
ORBCOMM shall have no requirement for such Satellites, ORBCOMM shall also have the right to
terminate this Agreement for convenience upon notice to SUPPLIER. In such event, SUPPLIER shall be
entitled to retain all payments made by ORBCOMM to the date of termination (“Retained Payments”)
and, if and to the extent in excess of the Retained Payments, to recover its Costs for all Work
performed by SUPPLIER hereunder, including, without limitation, any termination liability to
subcontractors and any commitments in place, subject in all cases to reasonable mitigation efforts
by SUPPLIER (the “Additional ORBCOMM Termination Liability Payment”), provided that in no event
shall the Additional ORBCOMM Termination Liability Payment exceed the total Price for the
Satellites ordered hereunder, less such amount of the Price already paid by ORBCOMM. SUPPLIER
shall invoice ORBCOMM, in accordance with invoice requirements hereof, not later than thirty (30)
days after the day of termination under this Section 12.3 of the amount, if any, of the ORBCOMM
Additional Termination Liability Payment. Upon payment by ORBCOMM of the ORBCOMM Additional
Termination Liability Payment, if any, or the passage of thirty (30) days following termination
under this Section 12.3 without an invoice for any such amount, SUPPLIER shall, to the extent not
already vested and Delivered to ORBCOMM, Deliver or make available for ORBCOMM to take possession
of all Work in progress or that has been completed and transfer title to the same to ORBCOMM.
SUPPLIER shall also take all commercially reasonable steps to protect and
preserve the property in the possession of SUPPLIER until Delivery to ORBCOMM, or ORBCOMM taking
possession thereof.


 


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ARTICLE 13 — SOFTWARE; OWNERSHIP AND LICENSES OF INTELLECTUAL PROPERTY




Section 13.1




(a) The rights and obligations of the parties relating to Project Software and Software
Documentation are set out in Exhibit D (“Project Software Terms and Conditions”).



(b) The rights and obligations of the parties relating to patents are agreed as follows: If,
during in the course of the Work, a patentable invention is conceived or first actually reduced to
practice, then:



(i) If an invention is made exclusively by the employees of one party in connection with this
Agreement, title to said invention and to any patent issuing thereon shall be in said one party;
but the other party shall enjoy a nonexclusive, irrevocable, royalty free, worldwide right to use
the invention for purposes of and making use of the Project.



The parties acknowledge and agree that any invention, patent, patent application, trade
secret, know how or other intellectual property (collectively, “Intellectual Property”) licensed
hereunder shall constitute “Intellectual property” within the meaning of Section 101(35)A)) of
Title 11 of the United States Code (the “Bankruptcy Code”), and that this Agreement is an executory
contract governed by Section 365(n) of the Bankruptcy Code in the event that a bankruptcy case is
commenced involving the licensor.



(ii) In the case of joint inventions, that is, inventions made jointly by one or more
employees of both parties hereto, each party shall have an equal, undivided one-half interest in
and to such joint inventions, as well as in and to patent applications and patents thereon in all
countries.



(iii) In the case of such joint inventions, if the parties cannot agree on the joint filing of
patent application(s) thereon in one or more jurisdictions, then either party may file such
application(s) at its own expense, and to the extent that any patents are granted and yield any
sums on account of the assignment, sale, lease, license, or other disposition of rights in such
patent(s), such sums, net of all costs and expenses of the patent prosecution and the disposition
of the subject patent rights in the relevant jurisdiction(s), all applicable taxes, and reasonable
attorney’s fees, shall be divided equally between the parties.



(c) To the extent that Intellectual Property related to the Work is not provided to ORBCOMM
as a Deliverable, SUPPLIER, to the extent that it has the right to do so, shall provide ORBCOMM on
an as needed basis, the right to access and copy such Intellectual Property to support its analysis
of the ORBCOMM system, to develop alternative solutions for technical problems affecting the
operation and management of the Project and to design modifications to the Intellectual Property
but in any event, not for any re-procurement except as provided in Article 12 of this Agreement.
ORBCOMM shall not disclose such information or property to any third party unless such third party
has agreed in writing to not disclose such information or property to other third parties except on
a need to know basis and will maintain the confidentiality of, and not use, such information and
property except for the operation, enhancement and maintenance of the Project or as may be
otherwise permitted under Article 12 of this Agreement. Without limitation to any other provision
of this Agreement and subject to ORBCOMM’s compliance with Section 15.17 hereof, SUPPLIER hereby
grants ORBCOMM a nonexclusive, irrevocable, royalty free, worldwide license in all Intellectual
Property which is incorporated into any Deliverable for the use, operation, enhancement and
maintenance of the Project. Without limitation to any other provision of this Agreement
and subject to SUPPLIER’s compliance with Section 15.17 hereof, ORBCOMM hereby grants to SUPPLIER a
nonexclusive, irrevocable, royalty free, worldwide license in all Intellectual Property which is
incorporated into any Deliverable for the performance and completion of its Work and Services under
this Agreement.


 


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ARTICLE 14 — COMPLIANCE WITH LAWS, PERMITS, AND LICENSES




Section 14.1 — Each party shall comply with the requirements of any laws, permits, and licenses of
any place in which any part of the work is to be performed by such party and with the lawful
requirements of public, municipal, and other authorities in any way affecting or applicable to any
work to be performed by such party, including (without limitation) all applicable U.S. export laws
and regulations.



ARTICLE 15 — MISCELLANEOUS




Section 15.1 — Notices.



(a) All notices and other communications hereunder shall be in writing and shall be deemed
given upon receipt if delivered personally or by facsimile (answer back received), one Business Day
after being sent by express mail or courier, or five Business Days after being sent by registered
or certified mail, return receipt requested, postage prepaid, to the parties at the addresses
specified in this Section 15.1 (or such other address for a party as shall be specified by like
notice, provided that such notice shall be effective only upon receipt thereof):




	 	(i)	 	if to SUPPLIER to it at:

444 Salomon Circle

Sparks, NV 89434

Telephone: 775-331-0222

Attention: Corporate VP Operations

	 
	 	 	 	and

	 
	 	 	 	444 Salomon Circle

Sparks, NV 89434

Telephone: 775-331-0222

Attention: Staff Counsel

	 
	 	(ii)	 	If to ORBCOMM Inc, to it at:

21700 Atlantic Boulevard

Dulles, VA 20166 


Telephone: (703) 433-6400

Attention: Vice President Space Segment Engineering

	 
	 	 	 	and

	 
	 	 	 	2115 Linwood Avenue

Fort Lee, NJ 07024

Telephone: 703 433-6361

Attn: General Counsel





 


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Section 15.2 — 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, war, riot, or other cause of a similar nature that is beyond the control of the parties;
provided that such failure or delay could not have been avoided by the party seeking force majeure
protection through the exercise of commercially reasonable diligence and care, and was not the
result of its own negligence or that of its contractors or subcontractors (provided that nothing
herein shall be interpreted to make either Party responsible for the acts or omissions of the other
Party or its contractors or subcontractors) and further provided that the party seeking force
majeure protection shall use its best efforts, at its own expense, including through the use or
work-around solutions and twenty-four (24)-hour/day operations to keep any such delay to a minimum.
In the event of such occurrence (herein, a Force Majeure Event), the party so affected shall
immediately notify the other party of the occurrence and shall promptly, and in all events within
forty-eight (48) hours thereof, notify the other party of the anticipated delay and the efforts
being undertaken to mitigate the effects of the Force Majeure Event and minimize the delay. This
Agreement shall be amended by mutual agreement to reflect any 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 15.4
hereof.



Section 15.3 — Reserved.



Section 15.4 — Resolution of Disputes.



(a) The parties shall attempt in good faith to resolve any dispute arising out of or relating
to this Agreement/Contract promptly by negotiation between executives who have authority to settle
the controversy and who are at a higher level of management that the persons with direct
responsibility for administration of this contract. Any person may give the other party written
notice of any dispute not resolved in the normal course of business. Within fifteen (15) days
after delivery of the notice, the receiving party shall submit to the other a written response.
The notice and response shall include (a) a statement of that party’s position and a summary of
arguments supporting that position, and (b) the name and title of the executive who will represent
that party and of any other person who will accompany the executive. Within thirty (30) days after
delivery of the initial notice, the executives of both parties shall meet at a mutually acceptable
item and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve
the dispute. All reasonable requests for information made by one party to the other will be
honored. All negotiations pursuant to this clause are confidential and shall be treated as
compromise and settlement negotiations for purposes of applicable rules of evidence.



(b) If the dispute has not been resolved by nonbinding means as provided herein within the
period specified above, this Agreement does not preclude either party from initiating litigation
upon ten (10) days written notice to the other party.



Section 15.5 — 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. Any and all action or proceeding
arising out of, in connection with, or related to this Agreement shall be brought and maintained in
Virginia. Each Party consents to the exclusive jurisdiction of U.S. federal courts for the Eastern
District of Virginia, unless it is determined that there is not federal jurisdiction, in which
event each Party consents to the exclusive jurisdiction of Virginia state courts located in Loudoun
County, Virginia. Each Party agrees that service of process in any action or proceeding shall be
deemed sufficient if mailed, first class, postage prepaid, to the other at the address set forth in
Section 15.1 as the same may be changed in accordance with that Section.


 


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Section 15.6  — 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 either party may assign this Agreement and its interest and obligations hereunder to any
wholly owned subsidiary of such party or to an entity acquiring all or substantially all of its
assets; provided that SUPPLIER shall not make such assignment (or delegate any of its obligations
hereunder) to any entity that does not have the technical facilities and expertise to perform
SUPPLIER’s obligations hereunder or to a competitor of ORBCOMM. Further, an assignment by either
party shall not relieve it of its obligations under this Agreement to the other party without the
other party’s express written consent.



Section 15.7 — Order of Precedence. Irreconcilable inconsistencies between or among Articles of
Agreements and/or any Exhibits (i.e., only where it is not possible reasonably to interpret all
provisions together and not in conflict) shall be resolved in the following order of precedence:




	(a)	 	Article 1 through Article 15 of this Agreement;

	 
	(b)	 	the Statement of Work (Exhibit A, Part 1A);

	 
	(c)	 	the Specifications (Exhibit A, Part 1B);

	 
	(d)	 	Key Personnel (Exhibit C);

	 
	(e)	 	Project Software and Software Documentation Terms and Conditions (Exhibit D);

	 
	(f)	 	Third Party Software Ownership and Licensing (Exhibit E);

	 
	(g)	 	Preferred Escrow Agreement (Exhibit F);

	 
	(h)	 	Terms for Secured Line of Credit (Exhibit G);and

	 
	(i)	 	Response to Due Diligence Checklist (Exhibit H)






Section 15.8 — Reserved




Section 15.9 — Key personnel. SUPPLIER agrees that those individuals identified in Exhibit C are
necessary for the successful completion of the work to be performed under this Agreement. Such
personnel (“Key Personnel”) shall be removed only after proper advanced (two (2) weeks minimum)
consultation to ORBCOMM. Advanced consultation shall include identification/qualifications of the
replacement and a transition plan. SUPPLIER shall only replace Key Personnel with personnel of
substantially equal qualifications and ability. In the event of a dispute, ORBCOMM shall
communicate the concern to SUPPLIER’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 15.9 shall relieve
SUPPLIER 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 notified in the selection of the replacement personnel but shall, subject to SUPPLIER’s
compliance with this Section 15.9, not have the right to approve such replacement personnel.



Section 15.10 — 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 15.11 — 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 15.12 — 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.


 


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Section 15.13 — 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 15.14 —  Modification and Termination. This Agreement 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 and SUPPLIER.



Section 15.15 — Severability. If any term, condition, clause or provision of this Agreement 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 Agreement and in all other respects this
Agreement shall be valid and continue in full force, effect and operation.



Section 15.16 – Waiver. The failure of ORBCOMM or SUPPLIER at any time to insist on performance of
any provision of this Agreement 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 Agreement or any
express or implied election of remedies.



Section 15.17 — Proprietary Information. During the term of this Agreement, and for five (5) years
after its termination, ORBCOMM and SUPPLIER shall not disclose any technical, non-technical and/or
business data or information concerning work under this Agreement, which has been designated in
writing or by an appropriate stamp or legend by the disclosing party to be proprietary or orally
received and indicated at the time of receipt as being proprietary, to any person or persons
outside their respective organizations or any unauthorized person or persons within such
organization; provided, however, that neither party shall be liable for disclosure or use of such
data or information if the same:




	 	(1)	 	was in the public domain at the time it was disclosed, or


	 
	 	(2)	 	was known to the party receiving it at the time of receipt, or

	 
	 	(3)	 	is disclosed inadvertently despite the exercise of the same degree of care as
the recipient party takes to preserve of safeguard its own proprietary information, or

	 
	 	(4)	 	is independently developed by the receiving party, or

	 
	 	(5)	 	becomes known to the party without breach of this agreement by the receiving
party, or

	 
	 	(6)	 	is required to be disclosed pursuant to a court order or subpoena or is
otherwise required to be disclosed by law, including any securities laws, provided the
disclosing party gives the other party prior notice of the disclosure.






ORBCOMM shall also be permitted to disclose such information, subject to comparable conditions of
confidentiality and on a need to know basis, to its actual and potential contractors,
subcontractors, insurers and insurance brokers, and successors-in-interest.



Except as may be required by applicable laws, neither party will make a public announcement
regarding this Agreement without the approval of the other party, which approval will not be
unreasonably withheld, conditioned, or delayed.



The provisions of this Section 15.17 shall survive the termination of this Agreement.


 


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Section 15.18 Independent Contractor.



(a) SUPPLIER’s relationship to ORBCOMM in the performance of this Agreement is that of an
independent contractor,



(b) SUPPLIER’s personnel performing services under this Agreement shall at all times be under
SUPPLIER’s exclusive direction and control and shall be employees of SUPPLIER and not employees of
ORBCOMM. All employees and agents of SUPPLIER shall, however, be subject to the rules and
regulations of ORBCOMM while on ORBCOMM’s property, and employees and agents of ORBCOMM shall be
subject to the rules and regulations of SUPPLIER while on SUPPLIER’s premises. SUPPLIER’s and
ORBCOMM’s employees and agents shall each be subject to the rules and regulations of the other’s
contractors and subcontractors while on their property.



Section 15.19 —  Indemnification For Negligence. ORBCOMM and SUPPLIER (each, the “Indemnifying
Party”) shall indemnify and hold harmless the other party (the “Indemnified Party”) from and
against any and all claims, suits, actions, liabilities, losses, damages and expenses, including
attorney fees, threatened or brought against or incurred by the Indemnified Party as a result of
the negligence of the Indemnifying Party in performing its obligations hereunder or as a result of
a breach by the Indemnifying Party of it obligations hereunder.



ARTICLE 16 — LIST OF EXHIBITS





	 	 	 	 	 
	Exhibit A	 	STATEMENT OF WORK AND SPECIFICATIONS

	Part 1A	 	ORBCOMM Generation 2 (OG2) Satellite Statement of Work

	Part 1B	 	ORBCOMM Generation 2 (OG2) Satellite Specification

	Exhibit B	 	Labor Rates

	Exhibit C	 	Key Personnel

	Exhibit D	 	Project Software and Software Documentation Terms and Conditions

	Exhibit E	 	Third Party Software Ownership and Licensing

	Exhibit F	 	Preferred Escrow Agreement

	Exhibit G	 	Terms for Secured Line of Credit

	Exhibit H	 	Response to Due Diligence Checklist







 


Page 28









 





IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year
first above written.



	 	 	 	 	 
	 	SIERRA NEVADA CORPORATION

 	 
	 	By:  	/s/ Fatih Ozmen
 	 
	 	 	Name:  	Fatih Ozmen 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	ORBCOMM INC

 	 
	 	By:  	/s/ Marc Eisenberg
 	 
	 	 	Name:  	Marc Eisenberg 	 
	 	 	Title:  	Chief Executive Officer 	 




 


Page 29











 




Exhibit A, Part 1A









Exhibit A, Part 1A




ORBCOMM

Generation 2 (OG2) Satellite Statement of Work




This document is Exhibit A, Part 1A of the ORBCOMM Generation 2 (OG2)

Satellite Procurement Agreement.




Document Number: B15TD1413




	 	 	 
	2115 Linwood Avenue, Suite 100, Fort Lee, NJ 07024

	 	21700 Atlantic Boulevard, Dulles, VA 20166
	Telephone: 201-363-4900

	 	Telephone: 703-433-6300






www.orbcomm.com

ORBCOMM Proprietary Information



 


 









 





Disclaimers




This document is the proprietary and exclusive property of ORBCOMM except as otherwise indicated.
No part of this document, in whole or in part, may be reproduced, stored, transmitted, or used for
design purposes without the prior written permission of ORBCOMM.



[* * *]




					
	 
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Table of Contents




	 	 	 	 	 
	1 INTRODUCTION
	 	 	4	 
	1.1 Scope
	 	 	4	 
	1.2 Responsibility
	 	 	4	 
	1.3 Reference Documents
	 	 	4	 
	2 EQUIPMENT AND DELIVERABLES
	 	 	5	 
	2.1 Flight Satellite
	 	 	5	 
	2.2 Flight Ground Support Equipment
	 	 	5	 
	2.3 Removed
	 	 	5	 
	2.4 FlatSat Satellite
	 	 	5	 
	2.5 Satellite Simulator
	 	 	6	 
	[* * *]
	 	 	 	 
	2.11 Successful Operations
	 	 	6	 
	2.12 Major Milestones and Deliverable Timeline
	 	 	7	 
	[* * *]
	 	 	 	 
	3 LAUNCH SERVICES SUPPORT
	 	 	9	 
	[* * *]
	 	 	 	 
	4 SOFTWARE DELIVERABLES
	 	 	10	 
	[* * *]
	 	 	 	 
	[4 pages omitted]
	 	 	 	 






					
	 
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1 Introduction




1.1 Scope




This Statement of Work (SOW) defines the work to be performed by Sierra Nevada Corporation as
the Satellite provider, Integration, Test and Launch Support Services Contractor (“Contractor”)
and specifies the equipment, services, and documentation that shall be required in connection
with the Contractor Agreement under contract with ORBCOMM INC (“Customer” or “ORBCOMM”).




1.2 Responsibility




The Contractor shall be responsible for all tasks related to design, development, fabrication,
integration and test, and launch support services with respect to eighteen (18) ORBCOMM
Generation 2 (OG2) Satellites with an option of up to thirty (30) more flight satellites. The
Contractor shall also be responsible for the delivery of all supporting equipment and software,
analysis documentation, and services as outlined in this Statement of Work (SOW).




1.3 Reference Documents




[1] ORBCOMM Generation 2 Satellite Specification, B15051414, Version 1.28 (SNC),



					
	 
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2 Equipment Deliverables and Services




The Contractor shall deliver the flight hardware, test hardware, documentation, and perform
services as defined in this Statement of Work.




2.1 Flight Satellite




The Contractor shall design, manufacture, integrate, test, provide launch support services, and
checkout in orbit eighteen (18) ORBCOMM Generation 2 (OG2) Flight Satellites and up to thirty
(30) optional Flight Satellites which comply to all the requirements outlined in the ORBCOMM
Generation 2 (OG2) Satellite Specification and this SOW.




The Flight Satellite shall consist of all the hardware and software components necessary to meet
the ORBCOMM Mission Requirements as defined in the Specification. The Flight Satellite shall
support all of the following operations; power distribution, attitude control, thermal control,
orbit manoeuvres and perform the communications functions as specified in the Specification.




All eighteen (18) Flight Satellites are planned to be on orbit and in operation no later than
2011. The satellite delivery schedule shall be in accordance with Table 1 “Major Milestones”




2.2 Flight Ground Support Equipment (GSE)




The Flight Satellite Ground Support Equipment (GSE) shall be comprised of the necessary
electrical and mechanical equipment to support Satellite component, subsystem, subassembly, and
system integration and tests, environmental tests, storage, transportation, launch preparation
and launch operation requirements. Acceptance of the GSE shall take place at the Contractor’s
facility and subsequently delivered to ORBCOMM’s operations center.




2.3 Removed




This paragraph intentionally left blank




2.4 FlatSat Satellite




The Contractor shall deliver to the Customer a FlatSat Satellite comprised of all the electrical
components and harnesses of the Flight Satellite (i.e., no mechanical structure required) and
the required FlatSat Satellite Ground Support Equipment. It shall have all the same electrical
components as the Flight Satellite but may be built with non-flight components as long as it
functions electronically the same. The FlatSat Satellite shall be used by the Customer to
support ORBCOMM Network Software development, troubleshooting on-orbit anomalies and to develop
operational updates over the life of the Satellites on orbit. The Contractor shall also deliver
all the documentation necessary to operate and configure the FlatSat Satellite. The FlatSat
Satellite shall be delivered to ORBCOMM’s operations center following FlatSat testing at the
Contractor’s facility. The Contractor shall maintain a repair
capability for the FlatSat to support future Customer requests for maintenance contract
agreements.



					
	 
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2.5 Satellite Simulator




The Contractor shall deliver to the Customer and install a complete Satellite software simulator
and associated electrical support equipment. The Satellite Simulator shall have the ability to
execute the same compiled software image files as the Flight Satellite and at a minimum shall
have the following capabilities:




	 	•	 	Accept and respond as accurately as possible to all Satellite commands pertaining to
attitude control, and command and data handling

	 
	 	•	 	Software upgradeable so the latest flight software version can be uploaded and run

	 
	 	•	 	Medium level fidelity flight simulation code is provided to allow for realistic
on-orbit telemetry and Satellite responses to actuators and propulsion reactions

	 
	 	•	 	Provide a graphical software user interface to configure and operate the simulator

	 
	 	•	 	All hardware platforms required to run and maintain the Satellite Simulator







2.11  Successful Operations




The functionality of the Simulator shall be as mutually agreed upon between the Customer and the
Contractor. The Satellite Simulator shall be used by the Customer for Satellite Control Center
(SCC) compatibility testing, launch, and on-orbit operations simulations for operator training.
The Satellite Simulator shall be delivered to ORBCOMM’s Operations center.




[* * *]




[1 page omitted]




To meet this milestone, the Contractor shall demonstrate to the Customer through telemetry
and/or analysis and on-orbit performance that each Satellite meets the following performance
requirements when the ORBCOMM NCC and GES’ are operating sufficiently:




	 	1.	 	The Satellites shall meet the attitude control point requirements as outlined
in the Specification.

	 
	 	2.	 	The Satellite batteries shall provide enough power to operate the payload
through [* * *] without interruption.

	 
	 	3.	 	The Satellite Solar Arrays shall provide enough power to recharge the batteries
after [* * *] with a full payload in operation (or demonstrate with an equivalent
load) within [* * *] orbit period.

	 
	 	4.	 	The Satellite electrical power subsystem shall be capable of controlling power
(on/off) to each of the payload components.

	 
	 	5.	 	The payload is capable of operating continuously, meeting the following
requirements without interruption or ground commands for at least [* * *] period:








	 	5.1.	 	The subscriber receiver has at least [* * *]% subscriber
demodulators operating in all receiver modes for [* * *] out of [* * *]
downlinks

	 
	 	5.2.	 	[* * *]% of the subscriber downlinks are operating at no less
than [* * *] below the specified RF levels based on an agreed upon measurement
and analysis verification process








					
	 
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2.12 Major Milestones and Deliverable Timeline




All major deliverables and services described in this SOW shall be delivered to the Customer
according to the Major Milestones list in Table 1. The Contractor shall provide notification if
any Customer actions or extenuating circumstances result in a delivery delay and request a
schedule, penalty or compensation adjustment. All other deliverables and services not listed in
this table shall be delivered according to the schedule listed in the Section 11.



Table 1. Major Milestones




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Scheduled
	 	 	 	 	 	 	Completion
	 	 	 	 	 	 	After Start of
	 	 	 	 	 	 	Contract
	Milestone #	 	Milestone Description	 	Ref Section	 	(Months)
	1

	 	[* * *]	 	 	 	 
	2
	 	 	 	 	 	 
	3
	 	 	 	 	 	 
	4
	 	 	 	 	 	 
	5
	 	 	 	 	 	 
	6
	 	 	 	 	 	 
	7
	 	 	 	 	 	 
	8
	 	 	 	 	 	 
	9
	 	 	 	 	 	 
	10
	 	 	 	 	 	 
	11
	 	 	 	 	 	 
	12
	 	 	 	 	 	 
	13
	 	 	 	 	 	 
	14
	 	 	 	 	 	 
	15
	 	 	 	 	 	 
	16
	 	 	 	 	 	 
	17
	 	 	 	 	 	 
	18
	 	 	 	 	 	 
	19
	 	 	 	 	 	 
	20
	 	 	 	 	 	 
	21
	 	 	 	 	 	 
	22
	 	 	 	 	 	 






					
	 
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	 	 	 	 	 	 	Scheduled
	 	 	 	 	 	 	Completion
	 	 	 	 	 	 	After Start of
	 	 	 	 	 	 	Contract
	Milestone #	 	Milestone Description	 	Ref Section	 	(Months)
	23
	 	 	 	 	 	 
	24
	 	 	 	 	 	 
	25
	 	 	 	 	 	 
	26
	 	 	 	 	 	 
	27
	 	 	 	 	 	 
	28
	 	 	 	 	 	 
	29
	 	 	 	 	 	 
	30
	 	 	 	 	 	 
	31
	 	 	 	 	 	 
	32
	 	 	 	 	 	 
	33
	 	 	 	 	 	 
	34
	 	 	 	 	 	 
	35
	 	 	 	 	 	 
	36
	 	 	 	 	 	 
	37
	 	 	 	 	 	 







[* * *]




[2 pages omitted]



					
	 
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3 Launch Services Support




The Contractor shall provide Launch Services Support (LSS) in accordance to Sections 3.3 and 3.5
of the Specification for the OG2 Program.




ORBCOMM is responsible for managing the Launch Services Provider(s) (LSP) in performing and
integrating the overall Programmatic Launch Services functions including Program/Project
planning, Risk Management, Range Safety, Launch and Operations. ORBCOMM’s selection of Launch
Vehicles shall be made pursuant to Section 2.5 of the Agreement. The Contractor shall provide
LSS as relates to the OG2 Satellites for the listed Launch Services Support functions below.




Launch Services Support will support the launch of the Satellites from the time a launch
campaign is initiated until the Satellites have been successfully lifted off the launch pad.
These activities includes transporting the Satellite(s) and necessary GSE from the production or
storage facility to the launch base, performing pre-launch Satellite processing, transporting
the Satellite(s) to the launch pad, mating to the launch vehicle separation adapter, mating with
the launch vehicle and the payload fairing, and ensuring the launch readiness. Launch Services
Support shall apply to each Flight Satellite.




[* * *]




[3 pages omitted]



					
	 
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4 Software Deliverables




[* * *]




[40 pages omitted]



					
	 
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Exhibit A, Part 1B









Exhibit A, Part 1B




ORBCOMM




Generation 2 (OG2) Satellite Specification




This document is Exhibit A, Part 1B of the ORBCOMM Generation 2

(OG2) Satellite Procurement Agreement.




Document Number: B15051414




Release Date: 11 April 2008




	 	 	 
	2115 Linwood Avenue, Suite 100, Fort Lee, NJ 07024

	 	21700 Atlantic Boulevard, Dulles, VA 20166
	Telephone: 201-363-4900

	 	Telephone: 703-433-6300






www.orbcomm.com

ORBCOMM Proprietary Information





 


 









 







Disclaimers




This document is the proprietary and exclusive property of ORBCOMM except as otherwise
indicated. No part of this document, in whole or in part, may be reproduced, stored,
transmitted, or used for design purposes without the prior written permission of ORBCOMM.



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.




[* * *]




[72 pages omitted]






					
	 
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Exhibit B

LABOR RATES AND TRAVEL POLICY




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	2008	 	 	2009	 	 	2010	 
	 	 	Total	 	 	Total	 	 	Total	 
	FIELD SERVICE LABOR	 	Burd Rate	 	 	Burd Rate	 	 	Burd Rate	 
	PROGRAM MANAGER III
	 	 	 	 	 	 	[* * *]	 	 	 	 	 
	PROGRAM MANAGER II
	 	 	 	 	 	 	 	 	 	 	 	 
	PROGRAM MANAGER I
	 	 	 	 	 	 	 	 	 	 	 	 
	PROJECT ANALYST I
	 	 	 	 	 	 	 	 	 	 	 	 
	SYSTEMS ENG III
	 	 	 	 	 	 	 	 	 	 	 	 
	SOFTWARE ENG IV
	 	 	 	 	 	 	 	 	 	 	 	 
	PROJECT ENG II
	 	 	 	 	 	 	 	 	 	 	 	 
	ELECTRICAL ENG II
	 	 	 	 	 	 	 	 	 	 	 	 
	MECH. ENG 11
	 	 	 	 	 	 	 	 	 	 	 	 
	TECH WRITER II
	 	 	 	 	 	 	 	 	 	 	 	 
	TECH WRITER I
	 	 	 	 	 	 	 	 	 	 	 	 
	CONFIGURATION MGR
	 	 	 	 	 	 	 	 	 	 	 	 
	LOGESTICS SPECIALIST
	 	 	 	 	 	 	 	 	 	 	 	 
	QA SPECIALIST I
	 	 	 	 	 	 	 	 	 	 	 	 
	QA INSPECTOR I
	 	 	 	 	 	 	 	 	 	 	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	MSI Labor Category	 	2008	 	 	2009	 	 	2010	 	 	2011	 
	MSI Enterprise Engineer
	 	 	 	 	 	 	 	 	 	 	[* * *]	 	 	 	 	 
	Group Engineer
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Senior System Engineer
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Senior Staff Engineer
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Quality Control
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Program Support
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ASI — Executive MTS
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 


 Page 43









 





Exhibit B

LABOR RATES AND TRAVEL POLICY




SNC TRAVEL TIME POLICY




Employees will be eligible for travel time and will be compensated as required by applicable law.



The following policies shall be used when calculating hours worked for the purpose of travel time:




	1.	 	All travel time is compensable if it is same day travel.

	 
	2.	 	Employees whose travel requires an overnight stay will be compensated for travel time that is
within his or her normal working hours. Such time is considered hours worked on regular
working days during normal work time, and also during the corresponding time of non-working
days i.e. Saturday, Sunday and Holidays.

	 
	3.	 	Any non-business meal periods or times when an employee is permitted to sleep will not be
considered as time worked and is non-compensable.

	 
	4.	 	Overtime may only be earned if the employee’s compensable travel time and hours worked exceed
40 hours in any workweek.

	 
	5.	 	Employees will not be compensated for time spent traveling if the additional travel time was
due to the employees choice of transportation.

	 
	6.	 	Normal travel time commuting from home to work and work to home is not compensable and must
be subtracted from any travel time claimed.

	 
	7.	 	All time that an employee spends traveling as a part of the principal activity of the
position i.e. travel from job site to job site, is considered hours worked.





 


 Page 44









 










Exhibit C

Key Personnel




SUPPLIER Personnel




	 	 	 
	Title	 	Name
	OG2 Program Manager

	 	Doug Infiesto
	Bus Subsystem Manager

	 	Lad Henry Curtis
	Communication Subsystem Manager

	 	TBD*
	RF Payload Manager

	 	TBD*
	Antenna Boom Manager

	 	TBD*
	Lead Systems Engineer

	 	Charlie Gault
	Lead Integration and Test Engineer

	 	Terrance Yee
	Lead Mechanical Systems Engineer

	 	Bill Plaster
	Lead Avionics System Engineer

	 	Ladd Gillies
	LV Interface Manager

	 	Bill Anders
	Lead Software Engineer

	 	Dave Bryan






*     TBD: Supplier Personnel will be determined upon the selection of, and award to the payload
provider.


 


 Page 45









 





Exhibit D




PROJECT SOFTWARE AND SOFTWARE DOCUMENTATION

TERMS AND CONDITIONS




1. The parties agree that the Project Software and Software Documentation delivered to
ORBCOMM pursuant to this Agreement will comprise all software and software documentation and/or
components and/or amendments and derivatives that are:




(a) — owned by or copyrighted to ORBCOMM on before the Effective Date of this Agreement
(“Existing ORBCOMM Software”); and




(b) — owned by or licensed to SUPPLIER on or before the Effective Date of this Agreement
(“Existing SUPPLIER Software”); and




(c) — owned by third parties and licensed to ORBCOMM on or before the Effective Date of
this Agreement (“Existing Third Party Software”); and




(d) — to be developed by ORBCOMM and made available for use in the Project (“New ORBCOMM
Software”); and




(e) — to be developed by or for SUPPLIER for the Project and licensed to ORBCOMM as
provided herein (“New SUPPLIER Software”), and




(f) — to be developed by third parties for the Project and licensed to ORBCOMM for use in
the Project and thereafter (“New Third Party Software”).



2. SUPPLIER shall have principal responsibility for delivery of Project Software and Software
Documentation integrating all of the above that performs and/or is interoperable as described in
the SOW in the context of Project infrastructure.



3. ORBCOMM hereby grants SUPPLIER, for use in the Project only, all of the nonexclusive,
nontransferable licenses and sublicenses necessary to use, make derivative works from, and
integrate with other Project Software and Software Documentation, such Existing ORBCOMM Software,
Existing Third Party Software, and New Third Party Software as ORBCOMM or its third party software
contractors shall make available to SUPPLIER in the course of SUPPLIER’s performance of its Work
and Services hereunder.



4. SUPPLIER hereby grants ORBCOMM, for use in support of the Project and thereafter, all of
the licenses and sublicenses necessary (a) to use, make derivative works from, and integrate with
the other Project Software and Software Documentation mentioned above, such Existing SUPPLIER
Software and New SUPPLIER Software and the directly related Project Software and Software
Documentation as shall be made available to ORBCOMM in the course of SUPPLIER’s Work and Services
for the Project, and (b) to permit ORBCOMM’s third party software contractors to do the same.



5. Except as specified in Exhibit E mentioned in the following paragraph, all SUPPLIER Work
and Services regarding Project Software and Software Documentation (including without limitation,
all code, documentation, notes, graphics, and test results) and all New SUPPLIER Software and any
Project Software and Software Documentation directly related to any of the foregoing shall be
deemed to be jointly owned by the Parties, and each Party hereby licenses the other the right to
use, make derivative works from, and sublicense the same.


 


 Page 46









 





6. Each Party represents and warrants to the other that (a) it has such right, title, and
interest in any Project Software and Software Documentation made available to the other Party
hereunder as may be necessary to the use of such software for the Project purposes described or
required in the SOW, and (b) such use shall not infringe the rights of others. SUPPLIER further
represents and warrants that, unless otherwise specified in Exhibit E, “Third Party Software
Ownership and Licensing,” attached to this Agreement and to be updated as necessary and agreed by
ORBCOMM throughout its Work and Services hereunder, all Project Software and Software Documentation
used in its SUPPLIER’s Work and Services and/or delivered to ORBCOMM hereunder shall be SUPPLIER’s
own original work.



7. To the extent SUPPLIER may by operation of law or otherwise attain any right, title, or
interest in any Project Software and Software Documentation, SUPPLIER hereby and without further
consideration agrees to grant to ORBCOMM a license to use any and all of the same and any goodwill
attaching thereto, free from any encumbrances whatever, to ORBCOMM. ORBCOMM shall thus be entitled
to use and modify the Project Software and Software Documentation in source code or other form to
create derivative software(s) and to use, copy, have copied, sublicense, market, and distribute the
Project Software and Software Documentation and any derivative softwares and related documentation.



8. SUPPLIER hereby covenants with ORBCOMM that it will, at the request of ORBCOMM at all
times hereafter, do all such acts and execute such documents as may be necessary or desirable to
secure the vesting of all rights in ORBCOMM pursuant to this Exhibit D and to assist in the
resolution of any question concerning ORBCOMM’s joint ownership of the New SUPPLIER Software and
New Third Party Software and directly related Project Software and Software Documentation and any
intellectual property rights related to or derived from either or both of the same.



9. SUPPLIER shall, contemporaneously with its entry into this Agreement, execute (as the
“Depositor”) and thereafter perform the obligations of a Depositor under the “Preferred Escrow
Agreement” with Iron Mountain and ORBCOMM (as the “Preferred Beneficiary”), attached hereto as
Exhibit F. ORBCOMM agrees that it shall pay Iron Mountain’s fees under the Preferred Escrow
Agreement. Subject to ORBCOMM’s obligation to pay Iron Mountain’s fees, SUPPLIER agrees that
ORBCOMM shall have the right to adjust the level of work to be performed by Iron Mountain and/or
terminate the Preferred Escrow Agreement in accordance with its terms and SUPPLIER shall execute
and deliver such instructions to Iron Mountain as ORBCOMM may reasonably request to reflect
ORBCOMM’s decisions in this regard.



10. The Party granting a license(s) in Sections 3, 4, 5, or 7 of this Exhibit D (hereinafter,
in this Exhibit, the “Indemnitor Party”) shall indemnify the other party, its Project contractors,
and its and their officers, directors, employees (together, “Indemnitees”), against all costs,
expenses, (including reasonable attorney’s fees), and damages (together, “Damages”) arising out of
any claim, suit, demand, or action alleging infringement in the making, licensing, or use of any
Project Software and Software Documentation so licensed, made, or assigned; provided, however,
that: (i) the Indemnitees shall have given the Indemnitor Party prompt notice of such claim, suit,
demand, or action; (ii) the Indemnitees shall cooperate with the licensing Party in the defense and
settlement thereof; and, (iii) the Indemnitor Party shall have control of the defense of such
claim, suit, demand, or action and the settlement or compromise thereof, and provided further that
SUPPLIER shall not enter into any settlement or compromise that fails to completely relieve
Indemnitees from any liability or obligation with respect to such matter; nor shall SUPPLIER have
the right to control the defense of any action in which SUPPLIER disputes liability to ORBCOMM.
The failure or delay of an Indemnitee to deliver prompt notice of a claim shall not excuse any
indemnity obligations of the Indemnitor Party, except to the extent that the Indemnitor Party was
actually disadvantaged by such failure or delay.


 


 Page 47









 





11. If a temporary or a final injunction is obtained against an Indemnitee’s use of the
Project Software and Software Documentation or any portion thereof by reason of an infringement of
a U.S. copyright, trade secret, or other proprietary right, the Indemnitor Party will, at its
option and expense, either (i) procure for the Indemnitee(s) the right to continue using the
infringing Project Software and Software Documentation or (ii) replace or modify the infringing
Project Software and Software Documentation, or the infringing portion thereof, so that it no
longer is infringing (provided that the utility or performance of the same is not adversely
affected by such replacement or modification). A party shall have no liability to the other party
or other Indemnitees for any infringement action, claim, suit, demand, or action to the extent that
it is based upon or arises out of the modification of Project Software and Software Documentation
or the Project Software and Software Documentation by the other party without notice to and the
express written consent of the first party.



12. EVEN IF AN INDEMNITOR PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL ANY DAMAGES WHICH MAY BE ASSESSED UPON AN INDEMNITOR
PARTY FOR ANY REASON EXCEED THE PURCHASE PRICE UNDER THE AGREEMENT. ANY ACTION FOR INDEMNIFICATION
OF DAMAGES AGAINST A LICENSING PARTY MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER A FINAL JUDGMENT
OF INFRINGEMENT IS ENTERED.



13. EXCEPT AS TO THIRD PARTY LIABILITY, IN NO EVENT WILL AN INDEMNITOR PARTY BE LIABLE FOR
ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE OR LOST
BUSINESS, REVENUE, OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT, ANY SOFTWARE AND
SOFTWARE DOCUMENTATION OF OTHERS, OR THE PROJECT SOFTWARE AND SOFTWARE DOCUMENTATION, AND/OR THE
USE THEREOF, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR NEGLIGENCE.


 


 Page 48









 





Exhibit E

THIRD PARTY SOFTWARE OWNERSHIP AND LICENSING




	 	 	 	 	 
	Third Party Software Software Ownership and Licensing	 	Version	 
	Software Title (SOW) Section 4)
	 	 	 	 
	[* * *]
	 	 	[* * *]	 






The foregoing software shall only be deemed included on this Exhibit E to the extent such software
exists on or prior to the Effective Date. Upon selection and execution of subcontracts with
vendors, this list may be updated as necessary in accordance with the provisions of Exhibit D to
the Agreement.




 


 Page 49









 







Exhibit F









Three-Party Escrow Service Agreement




Deposit Account Number:                                         





	1.	 	Introduction.

	 
	 	 	This Three Party Escrow Service Agreement (the “Agreement”) is entered into by and between
Sierra Nevada Corporation and its Affiliates, as defined below (the “Depositor”), and by ORBCOMM
Inc. and its Affiliates (the “Beneficiary”) and by Iron Mountain Intellectual Property
Management, Inc. (“Iron Mountain”) on this 5th day of May, 2008 (the “Effective Date”).
Depositor, Beneficiary, and Iron Mountain may be referred to individually as a “Party” or
collectively as the “Parties” throughout this Agreement.

	 
	 	 	(a) The use of the term services in this Agreement shall refer to Iron Mountain services that
facilitate the creation, management, and enforcement of software or other technology escrow
accounts as described in Exhibit A attached hereto (“Services”). A Party shall request Services
under this Agreement by submitting a work request for certain Iron Mountain Services (“Work
Request”) via written instruction or the online portal maintained at the website located at
www.ironmountainconnect.com, or other websites owned or controlled by Iron Mountain that
are linked to that website (collectively the “Iron Mountain Website”).

	 
	 	 	(b) The Beneficiary and Depositor have, or will have, entered into a license agreement or other
agreement conveying intellectual property rights to the Beneficiary, and the Parties intend this
Agreement to be considered as supplementary to such agreement, pursuant to Title 11 United
States Bankruptcy Code, Section 365(n).

	 
	2.	 	Depositor Responsibilities and Representations.







	 	(a)	 	Depositor shall make an initial deposit that is complete and functional of all
proprietary technology and other materials covered under this Agreement (“Deposit
Material”) to Iron Mountain not later than sixty (60) days from the Effective Date of the
Procurement Agreement. Depositor may also update Deposit Material from time to time during
the Term of this Agreement provided a minimum of one (1) complete and functional copy of
Deposit Material is deposited with Iron Mountain at all times. At the time of each deposit
or update, Depositor will provide an accurate and complete description of all Deposit
Material sent to Iron Mountain using the form attached hereto as Exhibit B.

	 
	 	(b)	 	Depositor represents that it lawfully possesses all Deposit Material provided to Iron
Mountain under this Agreement free of any liens or encumbrances as of the date of their
deposit. Any Deposit Material liens or encumbrances made after their deposit will not
prohibit, limit, or alter the rights and obligations of Iron Mountain under this Agreement.
Depositor warrants that with respect to the Deposit Material, Iron Mountain’s proper
administration of this Agreement will not violate the rights of any third parties.

	 
	 	(c)	 	Depositor represents that all Deposit Material is readable in its then current form; if
any portion of such Deposit Material is encrypted, the necessary decryption tools and keys
to read such material are deposited contemporaneously.

	 
	 	(d)	 	Depositor agrees, upon request by Iron Mountain, in support of Beneficiary’s request
for verification Services, to promptly complete and return the Escrow Deposit Questionnaire
attached hereto as Exhibit Q. Depositor consents to Iron Mountain’s performance of any
level(s) of verification Services described in Exhibit A attached hereto and Depositor
further consents to Iron Mountain’s use of a subcontractor to perform verification
Services. Any such subcontractor shall be bound by the same confidentiality obligations as
Iron Mountain and shall not be a direct competitor to either Depositor or Beneficiary. Iron
Mountain shall be responsible for the delivery of Services of any such subcontractor as if
Iron Mountain had performed the Services. Depositor represents that all Deposit Material is
provided with all rights necessary for Iron Mountain to verify such proprietary technology
and materials upon receipt of a Work Request for such Services or agrees to use
commercially reasonable efforts to provide Iron Mountain with any necessary use rights or
permissions to use materials necessary to perform verification of the Deposit Material.
Depositor agrees to reasonably cooperate with Iron Mountain by providing reasonable access
to its technical personnel for verification Services whenever reasonably necessary.







	3.	 	Beneficiary Responsibilities and Representations.







	 	(a)	 	Beneficiary acknowledges that, as between Iron Mountain and Beneficiary, Beneficiary
assumes all responsibility for the completeness and functionality of all Deposit Material.

	 
	 	(b)	 	Beneficiary may submit a verification Work Request to Iron Mountain for one or more of
the Services defined in Exhibit A attached hereto and further consents to Iron Mountain’s
use of a subcontractor if needed to provide such Services. Beneficiary warrants that Iron
Mountain’s use of any materials supplied by Beneficiary to perform the verification
Services described in Exhibit A is lawful and does not violate the rights of any third
parties.





 


 









 











	4.	 	Iron Mountain Responsibilities and Representations.







	 	(a)	 	Iron Mountain agrees to use commercially reasonable efforts to provide the Services
requested by Authorized Person(s) (as identified in the “Authorized Person(s)/Notices
Table” below) representing the Depositor or Beneficiary in a Work Request. Iron Mountain
may reject a Work Request (in whole or in part) that does not contain all required
information at any time upon notification to the Party originating the Work Request.

	 
	 	(b)	 	Iron Mountain will conduct a visual inspection upon receipt of any Deposit Material and
associated Exhibit B. If Iron Mountain determines that the Deposit Material does not match
the description provided by Depositor represented in Exhibit B attached hereto, Iron
Mountain will notify Depositor of such discrepancies and notate such discrepancy on the
Exhibit B.

	 
	 	(c)	 	Iron Mountain will provide notice to the Beneficiary of all Deposit Material that is
accepted and deposited into the escrow account under this Agreement.

	 
	 	(d)	 	Iron Mountain will work with a Party who submits any verification Work Request for
Deposit Material covered under this Agreement to either fulfill any standard verification
Services Work Request or develop a custom Statement of Work (“SOW”). Iron Mountain and the
requesting Party will mutually agree in writing to an SOW on the following terms and
conditions that include but are not limited to: description of Deposit Material to be
tested; description of Verification testing; requesting Party responsibilities; Iron
Mountain responsibilities; Service Fees; invoice payment instructions; designation of the
paying Party; designation of authorized SOW representatives for both the requesting Party
and Iron Mountain with name and contact information; and description of any final
deliverables prior to the start of any fulfillment activity. After the start of
fulfillment activity, each SOW may only be amended or modified in writing with the mutual
agreement of both Parties, in accordance with the change control procedures set forth
therein.

	 
	 	1.	 	Iron Mountain will hold and protect Deposit Material in physical or electronic vaults
that are either owned or under the control of Iron Mountain, unless otherwise agreed to by
the Parties.

	 
	 	2.	 	Upon receipt of written instructions by both Depositor and Beneficiary, Iron Mountain
will permit the replacement or removal of previously submitted Deposit Material. The Party
making such request shall be responsible for getting the other Party to approve the joint
instructions.







	5.	 	Payment.

	 
	 	 	The Party responsible for payment designated in Exhibit A (“Paying Party”) shall pay to Iron
Mountain all fees as set forth in the Work Request (“Service Fees”). Except as set forth below,
all Service Fees are due within thirty (30) calendar days from the date of invoice in U.S.
currency and are non-refundable. Iron Mountain may update Service Fees with a ninety (90)
calendar day written notice to the Paying Party during the term of this Agreement. The Paying
Party is liable for any taxes related specifically to Services purchased under this Agreement or
shall present to Iron Mountain an exemption certificate acceptable to the taxing authorities.
Applicable taxes shall be billed as a separate item on the invoice. Depositor and Beneficiary
agree that if this Agreement terminates during the term for any reason, other than for the fault
of Iron Mountain, all prepaid fees shall be non-refundable. Any Service Fees not collected by
Iron Mountain when due shall bear interest until paid at a rate of one percent (1%) per month
(12% per annum) or the maximum rate permitted by law, whichever is less. Notwithstanding, the
non-performance of any obligations of Depositor to deliver Deposit Material under the License
Agreement or this Agreement, Iron Mountain is entitled to be paid all Service Fees that accrue
during the Term of this Agreement.

	 
	6.	 	Term and Termination.







	 	(a)	 	The “Term” of this Agreement is for a period of one (1) year from the Effective Date
(“Initial Term”) and will automatically renew for additional one (1) year terms (“Renewal
Term”) and continue in full force and effect until one of the following events occur: (i)
Depositor and Beneficiary provide Iron Mountain with sixty (60) days’ prior written joint
notice of their intent to terminate this Agreement; (ii) Beneficiary provides Iron
Mountain and Depositor with sixty (60) days’ prior written notice of their intent to
terminate this Agreement; (iii) the Agreement terminates under another provision of this
Agreement; or (iv) any time after the Initial Term, Iron Mountain provides a sixty (60)
days’ prior written notice to the Depositor and Beneficiary of Iron Mountain’s intent to
terminate this Agreement. If the Effective Date is not specified in the Introduction
section, then the last date noted on the signature blocks of this Agreement shall be the
Effective Date.

	 
	 	(b)	 	Unless the express terms of this Agreement provide otherwise, upon termination of this
Agreement, Iron Mountain shall return the Deposit Material to the Depositor. If reasonable
attempts to return the Deposit Material to Depositor are unsuccessful, Iron Mountain shall
destroy the Deposit Material.





 


Page 2 of 10









 





	 	(c)	 	In the event of the nonpayment of undisputed Service Fees owed to Iron Mountain, Iron
Mountain shall provide all Parties to this Agreement with written notice of Iron Mountain’s
intent to terminate this Agreement. Any Party to this Agreement shall have the right to
make the payment to Iron Mountain to cure the default. If the past due payment is not
received in full by Iron Mountain within thirty (30) calendar days of the date of such
written notice, then Iron Mountain shall have the right to terminate this Agreement at any
time thereafter by sending written notice to all Parties. Iron Mountain shall have no
obligation to perform the Services under this Agreement (except those obligations that
survive termination of this Agreement) so long as any undisputed Service Fees due Iron
Mountain under this Agreement remain unpaid.







	7.	 	General Indemnity.

	 
	 	 	Subject to Section 10 and 11, each Party shall defend, indemnify and hold harmless the others,
their corporate affiliates and their respective officers, directors, employees, and agents and
their respective successors and assigns from and against any and all claims, losses,
liabilities, damages, and expenses (including, without limitation, reasonable attorneys’ fees),
arising under this Agreement from the negligent or intentional acts or omissions of the
indemnifying Party or its subcontractors, or the officers, directors, employees, agents,
successors and assigns of any of them.

	 
	8.	 	Warranties.







	 	(a)	 	IRON MOUNTAIN WARRANTS ANY AND ALL SERVICES PROVIDED HEREUNDER SHALL BE PERFORMED IN A
WORKMANLIKE MANNER. EXCEPT AS SPECIFIED IN THIS SECTION, ALL EXPRESS OR IMPLIED
CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY
QUALITY, AGAINST INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE
PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. AN AGGRIEVED PARTY
MUST NOTIFY IRON MOUNTAIN PROMPTLY OF ANY CLAIMED BREACH OF ANY WARRANTIES AND SUCH PARTY’S
SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SHALL BE RETURN OF THE PORTION OF THE FEES
PAID TO IRON MOUNTAIN BY PAYING PARTY FOR SUCH NON-CONFORMING SERVICES. THIS DISCLAIMER
AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH ABOVE
FAILS OF ITS ESSENTIAL PURPOSE. THE WARRANTY PROVIDED IS SUBJECT TO THE LIMITATION OF
LIABILITY SET FORTH IN THIS AGREEMENT.

	 
	 	(b)	 	Depositor warrants that all Depositor information provided hereunder is accurate and
reliable and undertakes to promptly correct and update such Depositor information during
the Term of this Agreement.

	 
	 	(c)	 	Beneficiary warrants that all Beneficiary information provided hereunder is accurate
and reliable and undertakes to promptly correct and update such Beneficiary information
during the Term of this Agreement.

	 
	 	(d)	 	Ownership Warranty. Depositor warrants that it is the owner or legal custodian of the
Deposit Material and has full authority to store the Deposit Material and direct their
disposition in accordance with the terms of this Agreement. Depositor shall reimburse Iron
Mountain for any expenses reasonably incurred by Iron Mountain (including reasonable legal
fees) by reason of Iron Mountain’s compliance with the instructions of Depositor in the
event of a dispute concerning the ownership, custody or disposition of Deposit Material
stored by Depositor with Iron Mountain.







	9.	 	Confidential Information.

	 
	 	 	Iron Mountain shall have the obligation to reasonably protect the confidentiality of the Deposit
Material. Except as provided in this Agreement Iron Mountain shall not disclose, transfer, make
available or use the Deposit Material. Iron Mountain shall not disclose the terms of this
Agreement to any third Party. If Iron Mountain receives a subpoena or any other order from a
court or other judicial tribunal pertaining to the disclosure or release of the Deposit
Material, Iron Mountain will notify the Parties to this Agreement unless prohibited by law.
After notifying the Parties, Iron Mountain may comply in good faith with such order. It shall
be the responsibility of Depositor or Beneficiary to challenge any such order; provided,
however, that Iron Mountain does not waive its rights to present its position with respect to
any such order. Iron Mountain will cooperate with the Depositor or Beneficiary, as applicable,
to support efforts to quash or limit any subpoena, at such party’s expense. Any party requesting
additional assistance shall pay Iron Mountain’s standard charges or as quoted upon submission of
a detailed request.

	 
	10.	 	Limitation of Liability.

	 
	 	 	NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, ALL LIABILITY, IF ANY, WHETHER ARISING IN
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OF ANY PARTY TO THIS AGREEMENT SHALL BE
LIMITED TO THE AMOUNT EQUAL TO ONE YEAR OF FEES PAID OR OWED TO IRON MOUNTAIN UNDER THIS
AGREEMENT. IF CLAIM OR LOSS IS MADE IN RELATION TO A SPECIFIC DEPOSIT OR DEPOSITS, SUCH
LIABILITY SHALL BE LIMITED TO THE FEES RELATED SPECIFICALLY TO SUCH DEPOSITS. THIS LIMIT SHALL
NOT APPLY TO ANY PARTY FOR: (I) ANY CLAIMS OF INFRINGEMENT OF ANY PATENT, COPYRIGHT OR
TRADEMARK; (II) LIABILITY FOR DEATH OR BODILY INJURY; (III) DAMAGE TO TANGIBLE PROPERTY
(EXCLUDING THE DEPOSIT MATERIAL); (IV) PROVEN THEFT; OR (V) PROVEN GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. FOR THE AVOIDANCE OF DOUBT, THIS LIMIT SHALL NOT APPLY
TO DEPOSITOR AND BENEFICIARY WITH RESPECT TO ANY CLAIM, LIABILITY OR DAMAGE ARISING UNDER OR
RELATED TO ANY AGREEMENT OTHER THAN THIS AGREEMENT.





 


Page 3 of 10









 





	11.	 	Consequential Damages Waiver.

	 
	 	 	IN NO EVENT SHALL ANY PARTY TO THIS AGREEMENT BE LIABLE TO ANOTHER PARTY FOR ANY INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA OR INFORMATION, ANY COSTS
OR EXPENSES FOR THE PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT DAMAGES, WHETHER
ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EVEN IF THE POSSIBILITY THEREOF
MAY BE KNOWN IN ADVANCE TO ONE OR MORE PARTIES.

	 
	12.	 	General.







	 	(a)	 	Incorporation of Work Requests. All valid Depositor and Beneficiary Work
Requests are incorporated into this Agreement.

	 
	 	(b)	 	Purchase Orders. In the event that the Paying Party issues a purchase order or
other instrument used to pay Service Fees to Iron Mountain, any terms and conditions set
forth in the purchase order which constitute terms and conditions which are in addition to
those set forth in this Agreement or which establish conflicting terms and conditions to
those set forth in this Agreement are expressly rejected by Iron Mountain.

	 
	 	(c)	 	Right to Make Copies. Iron Mountain shall have the right to make copies of all
Deposit Material as reasonably necessary to perform the Services. Iron Mountain shall copy
all copyright, nondisclosure, and other proprietary notices and titles contained on Deposit
Material onto any copies made by Iron Mountain. Any copying expenses incurred by Iron
Mountain as a result of a Work Request to copy will be borne by the Party requesting the
copies. Iron Mountain may request Depositor’s reasonable cooperation in promptly copying
Deposit Material in order for Iron Mountain to perform this Agreement.

	 
	 	(d)	 	Choice of Law. The validity, interpretation, and performance of this Agreement
shall be controlled by and construed under the laws of the Commonwealth of Massachusetts,
USA, as if performed wholly within the state and without giving effect to the principles of
conflicts of laws.

	 
	 	(e)	 	Authorized Person(s). Depositor and Beneficiary must each authorize and
designate one person whose actions will legally bind such party (“Authorized Person” who
shall be identified in the Authorized Persons (s) Notices Table of this Agreement) and who
may manage the Iron Mountain escrow account through the Iron Mountain website or written
instruction. The Authorized Person for each the Depositor and Beneficiary will maintain the
accuracy of their name and contact information provided to Iron Mountain during the term of
this Agreement.

	 
	 	(f)	 	Right to Rely on Instructions. Iron Mountain may act in reliance upon any
instruction, instrument, or signature reasonably believed by Iron Mountain to be genuine
and from an Authorized Person(s), officer, or other employee of a Party. Iron Mountain may
assume that such representative of a Party to this Agreement who gives any written notice,
request, or instruction has the authority to do so. Iron Mountain will not be required to
inquire into the truth or evaluate the merit of any statement or representation contained
in any notice or document reasonably believed to be from such representative. With respect
to Release and Destruction of Deposit Materials, Iron Mountain shall rely on an Authorized
Person(s).

	 
	 	(g)	 	Force Majeure. No Party shall be liable for any delay or failure in
performance due to events outside the defaulting Party’s reasonable control, including
without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots,
war, acts of terrorism, fire, epidemics, or delays of common carriers or other
circumstances beyond its reasonable control. The obligations and rights of the excused
Party shall be extended on a day-to-day basis for the time period equal to the period of
the excusable delay.

	 
	 	(h)	 	Notices. All notices regarding Exhibit C (release) shall be sent by commercial
express mail or other commercially appropriate means that provide prompt delivery and
require proof of delivery. All other correspondence, including invoices, payments, and
other documents and communications, may be sent electronically or via regular mail. The
Parties shall have the right to rely on the last known address of the other Parties. Any
correctly addressed notice to last known address of the other Parties that is relied on
herein and that is refused, unclaimed, or undeliverable because of an act or omission of
the Party to be notified as provided herein shall be deemed effective as of the first date
that said notice was refused, unclaimed, or deemed undeliverable by electronic mail, the
postal authorities by mail, through messenger or commercial express delivery services.





 


Page 4 of 10









 





	 	(i)	 	No Waiver. No waiver of rights under this Agreement by any Party shall
constitute a subsequent waiver of this or any other right under this Agreement.

	 
	 	(j)	 	Assignment. No assignment of this Agreement by Depositor or Beneficiary or any
rights or obligations of Depositor or Beneficiary under this Agreement is permitted without
the written consent of Iron Mountain, which shall not be unreasonably withheld or delayed.
Iron Mountain shall have no obligation in performing this Agreement to recognize any
successor or assign of Depositor or Beneficiary unless Iron Mountain receives clear,
authoritative and conclusive written evidence of the change of parties.

	 
	 	(k)	 	Severability. In the event any of the terms of this Agreement become or are
declared to be illegal or otherwise unenforceable by any court of competent jurisdiction,
such term(s) shall be null and void and shall be deemed deleted from this Agreement. All
remaining terms of this Agreement shall remain in full force and effect. If this paragraph
becomes applicable and, as a result, the value of this Agreement is materially impaired for
any Party, as determined by such Party in its sole discretion, then the affected Party may
terminate this Agreement by written notice to the others.

	 
	 	(l)	 	Independent Contractor Relationship. Depositor and Beneficiary understand,
acknowledge, and agree that Iron Mountain’s relationship with Depositor and Beneficiary
will be that of an independent contractor and that nothing in this Agreement is intended to
or should be construed to create a partnership, joint venture, or employment relationship.

	 
	 	(m)	 	Attorneys’ Fees. In any suit or proceeding between the Parties relating to
this Agreement, the prevailing Party will have the right to recover from the other(s) its
costs and reasonable fees and expenses of attorneys, accountants, and other professionals
incurred in connection with the suit or proceeding, including costs, fees and expenses upon
appeal, separately from and in addition to any other amount included in such judgment.
This provision is intended to be severable from the other provisions of this Agreement, and
shall survive and not be merged into any such judgment.

	 
	 	(n)	 	No Agency. No Party has the right or authority to, and shall not, assume or
create any obligation of any nature whatsoever on behalf of the other Parties or bind the
other Parties in any respect whatsoever.

	 
	 	(o)	 	Disputes. Any dispute, difference or question relating to or arising among any
of the Parties concerning the construction, meaning, effect or implementation of this
Agreement or the rights or obligations of any Party hereof will be submitted to, and
settled by arbitration by a single arbitrator chosen by the corresponding Regional Office
of the American Arbitration Association in accordance with the Commercial Rules of the
American Arbitration Association. The Parties shall submit briefs of no more than 10 pages
and the arbitration hearing shall be limited to two (2) days maximum. The arbitrator shall
apply Massachusetts law. Unless otherwise agreed by the Parties, arbitration will take
place in Boston, Massachusetts, U.S.A. Any court having jurisdiction over the matter may
enter judgment on the award of the arbitrator. Service of a petition to confirm the
arbitration award may be made by regular mail or by commercial express mail, to the
attorney for the Party or, if unrepresented, to the Party at the last known business
address. If however, Depositor or Beneficiary refuse to submit to arbitration, the matter
shall not be submitted to arbitration and Iron Mountain may submit the matter to any court
of competent jurisdiction for an interpleader or similar action. Unless adjudged
otherwise, any costs of arbitration incurred by Iron Mountain, including reasonable
attorney’s fees and costs, shall be divided equally and paid by Depositor and Beneficiary.

	 
	 	(p)	 	Regulations. All Parties are responsible for and warrant, to the extent of
their individual actions or omissions, compliance with all applicable laws, rules and
regulations, including but not limited to: customs laws; import; export and re-export laws;
and government regulations of any country from or to which the Deposit Material may be
delivered in accordance with the provisions of this Agreement.

	 
	 	(q)	 	No Third Party Rights. This Agreement is made solely for the benefit of the
Parties to this Agreement and their respective permitted successors and assigns, and no
other person or entity shall have or acquire any right by virtue of this Agreement unless
otherwise agreed to by all the parties hereto.

	 
	 	(r)	 	Entire Agreement. The Parties agree that this Agreement, which includes all the
Exhibits attached hereto and all valid Work Requests submitted by the Parties, is the
complete agreement between the Parties hereto concerning the subject matter of this
Agreement and replaces any prior or contemporaneous oral or written communications between
the Parties. There are no conditions, understandings, agreements, representations, or
warranties, expressed or implied, which are not specified herein. Each of the Parties
herein represents and warrants that the execution, delivery, and performance of this
Agreement has been duly authorized and signed by a person who meets statutory or other
binding approval to sign on behalf of its business organization as named in this Agreement.
This Agreement may only be modified by mutual written agreement of the Parties.

	 
	 	(s)	 	Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute one
instrument.





 


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	 	(t)	 	Survival. Sections 6 (Term and Termination), 7 (General Indemnity), 8
(Warranties), 9 (Confidential Information), 10 (Limitation of Liability) 11(Consequential
Damages Waiver), and 12 (General) of this Agreement shall survive termination of this
Agreement or any Exhibit attached hereto.

	 
	 	(u)	 	Affiliates. “Affiliates”, as used herein, shall mean those entities controlled
by, or under common control with, a party of this Agreement. For purposes of the foregoing
definition “control” (including “controlled by” and “under common control”) shall mean
ownership of, or the right to acquire; (a) not less than fifty percent (50%) of the voting
stock of a corporation, (b) the right to vote not less than fifty (50%) of the voting stock
of a corporation, or (c) not less than fifty percent (50%) ownership interest in a
partnership or other business entity. It is the intention of the parties (i) that each
Affiliate shall be bound by the terms and conditions of this Agreement, (ii) that all of
the services provided under this
Agreement be made available to each Affiliate, (iii) each Affiliate shall be entitled to
enforce this Agreement against Iron Mountain and that (iv) each Affiliate shall be a third
party beneficiary of this Agreement.







 


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NOTE: SIGNATURE BLOCKS FOLLOW ON THE NEXT PAGE




Note: If contracting electronically via the online portal, clicking the “I Accept” button
displayed as part of the ordering process, evidences agreement to the preceding terms and
conditions (the ‘Agreement”). If you are entering into this Agreement via the online portal on
behalf of a company or other legal entity, you represent that you have the authority to bind
such entity to these terms and conditions, in which case the terms “you” or “your” shall refer
to such entity. If you do not have such authority, or if you do not agree with these terms and
conditions, you must select the “I Decline” button.



	 	 	 	 	 	 	 
	DEPOSITOR

	 	 
	 	BENEFICIARY
	 	 






	 	 	 	 	 	 	 
	Company Name:	 	Sierra Nevada Corporation.	 	Company Name:	 	ORBCOMM Inc.
	Signature:

	 	 	 	Signature:	 	 
	 

	 	 
	 	 
	 	 
	Print Name:

	 	 	 	Print Name:	 	 
	 

	 	 
	 	 
	 	 
	Title:

	 	 	 	Title:	 	 
	 

	 	 
	 	 
	 	 
	Date:

	 	 	 	Date:	 	 
	 

	 	 
	 	 
	 	 
	Email Address

	 	 	 	Email Address:	 	 
	 

	 	 	 	 	 	 






IRON MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC.



	 	 	 	 	 	 	 
	Signature:

	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Print Name:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Email Address:

	 	ipmclientservices@ironmountain.com
	 	 
	 	 






NOTE: Authorized Person(s)/Notices Table, Billing Contact Information Table and exhibits
follow


 


Page 7 of 10









 





DEPOSITOR — Authorized Person(s)/Notices Table



Provide the name(s) and contact information of the Authorized Person(s) under this Agreement.
All notices will be sent to the person(s) at the address(es) set forth below. This is required
information.



	 	 	 
	Company:	 	Sierra Nevada Corporation
	Administrative Contact
	 	 
	Print Name:
	 	 
	 

	 	 
	Title:
	 	 
	Email Address
	 	 
	 

	 	 
	Address 1

	 	 444 Salomon Circle
	 

	 	 
	Address 2
	 	 
	 

	 	 
	City/State/Province

	 	 Sparks, NV.
	 

	 	 
	Postal/Zip Code

	 	 89434-9651
	 

	 	 
	Phone Number

	 	 775.331.0222
	 

	 	 
	Fax Number

	 	 775.331.0370
	 

	 	 






BENEFICIARY — Authorized Person(s)/Notices Table



Provide the name(s) and contact information of the Authorized Person(s) under this Agreement.
All notices will be sent to the person(s) at the address(es) set forth below. This is required
information.



	 	 	 
	Company:	 	Orbcomm, Inc.
	Administrative Contact
	 	 
	Print Name:
	 	 
	 

	 	 
	Title:
	 	 
	 

	 	 
	Email Address
	 	 
	 

	 	 
	Address 1

	 	 21700 Atlantic Blvd.
	 

	 	 
	Address 2
	 	 
	 

	 	 
	City/State/Province

	 	 Dulles, VA
	 

	 	 
	Postal/Zip Code

	 	 20166
	 

	 	 
	Phone Number

	 	 7034336000
	 

	 	 
	Fax Number

	 	 7034336380
	 

	 	 






IRON MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC.



All notices should be sent to ipmclientservices@ironmountain.com OR

Iron Mountain Intellectual Property Management, Inc., Attn: Client Services

2100 Norcross Parkway, Suite 150

Norcross, Georgia, 30071, USA.

Telephone: 800-875-5669

Facsimile: 770-239-9201



 


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Billing Contact Information Table



Please provide the name and contact information of the Billing Contact under this Agreement.
All Invoices will be sent to this individual at the address set forth below.



	 	 	 	 	 	 	 
	Print Name:

	 	 
	 	Print Name:	 	 
	 

	 	 
	 	 
	 	 
	Title:

	 	 	 	Title:	 	 
	 

	 	 
	 	 
	 	 
	Email Address

	 	 	 	Email Address	 	 
	 

	 	 
	 	 
	 	 
	Street Address

	 	 	 	Street Address
	 	21700 Atlantic Boulevard, Ste 300
	 

	 	 
	 	 
	 	 
	Province/City/State

	 	 	 	Province/City/State
	 	Dulles, VA
	 

	 	 
	 	 
	 	 
	Postal/Zip Code

	 	 	 	Postal/Zip Code
	 	20166
	 

	 	 
	 	 
	 	 
	Phone Number

	 	 	 	Phone Number
	 	(703) 433-6420
	 

	 	 
	 	 
	 	 
	Fax Number

	 	 	 	Fax Number
	 	(703) 433-6380
	 

	 	 
	 	 
	 	 
	Purchase order #

	 	 	 	Purchase order #	 	 
	 

	 	 
	 	 
	 	 






 


Page 9 of 10










 





MUST BE COMPLETED Exhibit A — Escrow Service Work Request — Deposit Account Number:                     




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	Paying Party
	 	 	Service Description — Three Party Escrow Agreement	 	 	 	 	 	 	 	 	 	Check box to
	Service	 	All services are listed below. Services in shaded tables	 	One-	 	 	 	 	 	identify the Paying
	Check box(es)	 	are required for every new escrow account set up.	 	Time	 	Annual	 	Party for each
	to order service	 	Some services may not be available under the Agreement.	 	Fees	 	Fees	 	service below.
	þ Setup Fee 

	 	Iron Mountain will setup a new escrow deposit account
using a standard escrow agreement. Custom contracts are
subject to the Custom Contract Fee noted below.
	 	$1250
	 	 
	 	o Depositor — OR —

þ Beneficiary

	þ Deposit Account Fee-
including Escrow 

Management Center 

Access

	 	Iron Mountain will set up one deposit account to manage
and administrate access to Deposit Material that will be
securely stored in controlled media vaults. Furthermore,
Iron Mountain will provide account services that include
unlimited deposits, electronic vaulting, access to Iron
Mountain ConnectTM Escrow Management Center for secure
online account management, submission of electronic Work
Requests, and communication of status. A Client Manager
will be assigned to each deposit account and provide
training upon request to facilitate secure Internet access
to the account and ensure fulfillment of Work Requests. An
oversize fee may apply.
	 	 
	 	$1,000
	 	o Depositor — OR —

þ Beneficiary
	þ Beneficiary Fee 

including Escrow 

Management Center 

Access

	 	Iron Mountain will fulfill a Work Request to add a
Beneficiary to an escrow deposit account and manage access
rights associated with the account. Beneficiary will have
access to Iron Mountain ConnectTM Escrow Management Center
for secure online account management, submission of
electronic Work Requests, and communication of status. A
Client Manager will be assigned to each deposit account
and provide training upon request to facilitate secure
Internet access to the account and ensure fulfillment of
Work Requests.
	 	 	 	 	 	$700
	 	o Depositor — OR —
þ Beneficiary
	o Add Deposit 

Tracking 

Notification

	 	At least semi-annually, Iron Mountain will send an update
reminder to Depositor. Thereafter, Beneficiary will be
notified of last deposit.
	 	 	N/A	 	 	$	375	 	 	o Depositor — OR —

o Beneficiary
	o Add File List Test

	 	Iron Mountain will fulfill a Work Request to perform a
File List Test, which includes analyzing deposit media
readability, file listing, creation of file classification
table, virus scan, and assurance of completed deposit
questionnaire. A final report will be sent to the Paying
Party regarding the Deposit Material to ensure consistency
between Depositor’s representations (i.e., Exhibit B and
Supplementary Questionnaire) and stored Deposit Material. 
	 	$	2,500	 	 	 	N/A	 	 	o Depositor — OR —

o Beneficiary
	o Add Level 1 —

Inventory Test

	 	Iron Mountain will perform an Inventory Test on the
initial deposit, which includes Analyzing deposit media
readability, virus scanning, developing file
classification tables, identifying the presence/absence of
build instructions, and identifying materials required to
recreate the Depositor’s software development environment.
Output includes a report which will include build
instructions, file classification tables and listings. In
addition, the report will list required software
development materials, including, without limitation,
required source code languages and compilers, third-party
software, libraries, operating systems, and hardware, as
well as Iron Mountain’s analysis of the deposit. Fee
Contingencies Enclosed.
	 	$	5,000	 	 	 	N/A	 	 	o Depositor — OR —

o Beneficiary
	o Add Level 2 —

Deposit Compile 

Test

	 	Iron Mountain will fulfill a Work Request to perform a
Deposit Compile Test, which includes the Inventory Test as
described above plus recreating the Depositor’s software
development environment, compiling source files and
modules, linking libraries and recreating executable code,
pass/fail determination, creation of comprehensive build
instructions with a final report sent to the Paying Party
regarding the Deposit Material.  The Paying Party and Iron
Mountain will agree on a custom Statement of Work (“SOW”)
prior to the start of fulfillment. 
	 	Based on SOW
	 	 	N/A	 	 	o Depositor — OR —

o Beneficiary
	o Add Level 3 —

Deposit Usability 

Test — Binary 

Comparison

	 	Iron Mountain will fulfill a Work Request to perform one
Deposit Compile Test Binary Comparison which includes a
comparison of the files built from the Deposit Compile
Test to the actual licensed technology on the
Beneficiary’s site to ensure a full match in file size,
with a final report sent to the Requesting Party regarding
the Deposit Material.  The Paying Party and Iron Mountain
will agree on a custom Statement of Work (“SOW”) prior to
the start of fulfillment. 
	 	Based on SOW
	 	 	N/A	 	 	o Depositor — OR —

o Beneficiary
	o Add Level 4 —

Deposit Usability 

Test — Full 

Usability Test

	 	Iron Mountain will fulfill a Work Request to perform one
Deposit Compile Test Full Usability which includes a
confirmation that the built applications work properly
when installed. A final report will be sent to the Paying
Party regarding the Deposit Material.  The Paying Party
and Iron Mountain will agree on a custom Statement of Work
(“SOW”) prior to the start of fulfillment.
	 	Based on SOW
	 	 	N/A	 	 	o Depositor — OR —

o Beneficiary
	o Add Dual/Remote 

Vaulting

	 	Iron Mountain will fulfill a Work Request to store deposit
materials in one additional location as defined within the
Service Agreement. Duplicate storage request may be in
the form of either physical media or electronic storage.
	 	 	N/A	 	 	$	500	 	 	o Depositor — OR —

o Beneficiary
	o Release Deposit 

Material

	 	Iron Mountain will process a Work Request to release
Deposit Material by following the specific procedures
defined in Exhibit C “Release of Deposit Materials” the
Escrow Service Agreement.
	 	$	 500	 	 	 	N/A	 	 	o Depositor — OR —

o Beneficiary
	o Add Custom Services

	 	Iron Mountain will provide its Escrow Expert consulting
based on a custom SOW mutually agreed to by all Parties.
	 	$175/hour
	 	 	N/A	 	 	o Depositor — OR —

o Beneficiary
	o Custom Contract Fee

	 	Custom contracts are subject to the Custom Contract Fee,
which covers the review and processing of custom or
modified contracts.
	 	$	 500	 	 	 	N/A	 	 	o Depositor — OR —

o Beneficiary





Note: Parties may submit Work Requests via written instruction or electronically through the online
portal.





 


Page 10 of 10









 







Exhibit B

Deposit Material Description



Company Name: Sierra nevada Corporation Escrow Account Number:                     




Deposit Name                      and Deposit Version                     

(Deposit Name will appear in account history reports)



Deposit Media (Please Label All Media with the Deposit Name Provided Above)




	 	 	 	 	 	 	 
	Media Type	 	Quantity	 	Media Type	 	Quantity
	þ
o CD-ROM / DVD

	 	 
	 	o 3.5” Floppy Disk
	 	 
	 

	 	 
	 	 
	 	 
	o DLT Tape

	 	 	 	o Documentation	 	 
	 

	 	 
	 	 
	 	 
	o DAT Tape

	 	 	 	o Hard Drive / CPU	 	 
	 

	 	 
	 	 
	 	 
	 

	 	 	 	o Circuit Board	 	 
	 

	 	 
	 	 
	 	 






	 	 	 	 	 	 	 
	 	 	Total Size of Transmission	 	 	 	 
	 	 	(specify in bytes)	 	# of Files	 	# of Folders
	o Internet File Transfer

	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	o Other (please describe below):

	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 






Deposit Encryption (Please check either “Yes” or “No” below and complete as appropriate)




Is the media or are any of the files encrypted? o Yes or þ No




If yes, please include any passwords and decryption tools description below. Please also
deposit all necessary encryption software with this deposit.



	 	 	 	 	 	 	 	 	 
	Encryption tool name

	 	 
 

	 	Version
	 	 
 

	 	 






	 	 	 
	Hardware
required

	 	 
	 

	 	 






	 	 	 
	Software
required

	 	 
	 

	 	 






	 	 	 
	Other
required information

	 	 
	 

	 	 






Deposit Certification (Please check the box below to Certify and Provide your Contact
Information)



	 	 	 
	o I certify for Depositor that the above
described Deposit Material has been
transmitted electronically or sent via
commercial express mail carrier to
Iron Mountain at the address below.

	 	o Iron Mountain has inspected and
accepted the above described
Deposit Material either
electronically or physically.
Iron Mountain will notify
Depositor of any discrepancies.
	 

	 	 
	Name:

	 	Name:
	 

	 	 
	Print Name:

	 	Print Name:
	 

	 	 
	Date:

	 	Date:
	 

	 	 
	Email Address:
	 	 
	 

	 	 
	Telephone Number:
	 	 
	 

	 	 
	Fax Number:
	 	 
	 

	 	 






Note: If Depositor is physically sending Deposit Material to Iron Mountain, please label
all media and mail all Deposit Material with the appropriate Exhibit B via commercial express
carrier to the following address:



	 	 	 
	Iron Mountain Intellectual Property Management, Inc.

	 	Telephone: 800-875-5669
	Attn: Vault Administration

	 	Facsimile: 770- 239-9201
	2100 Norcross Parkway, Suite 150
	 	 
	Norcross, GA 30071
	 	 






FOR IRON MOUNTAIN USE ONLY: (NOTED DISCREPANCIES ON VISUAL INSPECTION)




 





 






 


 











 




Exhibit C




RELEASE OF DEPOSIT MATERIALS

Deposit Account Number:                     




Iron Mountain will use the following procedures to process any Beneficiary Work Request
to release Deposit Material. All notices under this Exhibit C shall be sent pursuant to
the terms of Section 12(h) Notices.




	 	1.	 	Release Conditions. The Depositor and Beneficiary agree that a
Work Request for the release of the Deposit Material shall be based solely on one
or more of the following conditions (defined as “Release Conditions”):






	 	(i)	 	Depositor’s breach of the license agreement or other agreement between the
Depositor and the Beneficiary regulating the use of the Deposit Material covered
under this Agreement; or






	 	(ii)	 	Failure of the Depositor to function as a going concern or to operate in
the ordinary course; or






	 	(iii)	 	Depositor is subject to voluntary or involuntary bankruptcy.






	 	2.	 	Release Work Request. A Beneficiary may submit a Work Request to
Iron Mountain to release the Deposit Material covered under this Agreement. Iron
Mountain will send a written notice of this Beneficiary Work Request within five
(5) business days to the Depositor’s Authorized Person(s).






	 	3.	 	Contrary Instructions. From the date Iron Mountain mails written
notice of the Beneficiary Work Request to release Deposit Material covered under
this Agreement, Depositor authorized representative(s) shall have ten (10)
business days to deliver to Iron Mountain contrary instructions. Contrary
instructions shall mean the written representation by Depositor that a Release
Condition has not occurred or has been cured (“Contrary Instructions”). Contrary
Instructions shall be on company letterhead and signed by an authorized Depositor
representative. Upon receipt of Contrary Instructions, Iron Mountain shall
promptly send a copy to Beneficiary’s Authorized Person(s). Additionally, Iron
Mountain shall notify both Depositor and Beneficiary Authorized Person(s) that
there is a dispute to be resolved pursuant to the Disputes provisions of this
Agreement. Iron Mountain will continue to store Deposit Material without release
pending (i) joint instructions from Depositor and Beneficiary with instructions to
release the Deposit Material; or (ii) dispute resolution pursuant to the Disputes
provisions of this Agreement; or (iii) receipt of an order from a court of
competent jurisdiction.






	 	4.	 	Release of Deposit Material. If Iron Mountain does not receive
Contrary Instructions from an authorized Depositor representative, Iron Mountain
is authorized to release Deposit Material to the Beneficiary or, if more than one
Beneficiary is registered to the deposit, to release a copy of Deposit Material to
the Beneficiary. Iron Mountain is entitled to receive any undisputed, unpaid
Service Fees due Iron Mountain from the Parties before fulfilling the Work Request
to release Deposit Material covered under this Agreement. Any Party may cure a
default of payment of Service Fees.






	 	5.	 	Termination of Agreement Upon Release. This Agreement will
terminate upon the release of Deposit Material held by Iron Mountain.






	 	6.	 	Right to Use Following Release. Beneficiary has the right under
this Agreement to use the Deposit Material for the sole purpose of continuing the
benefits afforded to Beneficiary by the License Agreement. Notwithstanding, the
Beneficiary shall not have access to the Deposit Material unless there is a
release of the Deposit Material in accordance with this Agreement. Beneficiary
shall be obligated to maintain the confidentiality of the released Deposit
Material.




 


 









 










ESCROW DEPOSIT QUESTIONNAIRE




Introduction




From time to time, technology escrow beneficiaries may exercise their right to perform verification
services. This is a service that Iron Mountain provides for the purpose of validating relevance,
completeness, currency, accuracy and functionality of deposit materials.



Purpose of Questionnaire




In order for Iron Mountain to determine the deposit material requirements and to quote fees
associated with verification services, a completed deposit questionnaire is requested. It is the
responsibility of the escrow depositor to complete the questionnaire.



Instructions




Please complete the questionnaire in its entirety by answering every question with accurate data.
Upon completion, please return the completed questionnaire to the beneficiary asking for its
completion, or e-mail it to Iron Mountain to the attention of verification@ironmountain.com



Escrow Deposit Questionnaire




General Description





	 	(i)	 	What is the general function of the software to be placed into escrow?
	 
	 	(ii)	 	On what media will the source code be delivered?
	 
	 	3.	 	What is the size of the deposit in megabytes?





Requirements for the Execution of the Software Protected by the Deposit





	 	1.	 	What are the system hardware requirements to successfully execute the software?
(memory, disk space, etc.)
	 
	 	2.	 	How many machines are required to completely set up the software?






	 	3.	 	What are the software and system software requirements, to execute the software and
verify correct operation?





Requirements for the Assembly of the Deposit





	 	A.	 	Describe the nature of the source code in the deposit. (Does the deposit include
interpreted code, compiled source, or a mixture? How do the different parts of the deposit
relate to each other?)
	 
	 	B.	 	How many build processes are there?






	 	C.	 	How many unique build environments are required to assemble the material in the escrow
deposit into the deliverables?






	 	D.	 	What hardware is required for each build environment to compile the software?
(including memory, disk space, etc.)






	 	E.	 	What operating systems (including versions) are used during compilation? Is the
software executed on any other operating systems/version?






	 	F.	 	How many separate deliverable components (executables, share libraries, etc.) are
built?






	 	G.	 	What compilers/linkers/other tools (brand and version) are necessary to build the
application?






	 	H.	 	What, if any, third-party libraries are used to build the software?






	 	I.	 	How long does a complete build of the software take? How much of that time requires
some form of human interaction and how much is automated?






	 	J.	 	Do you have a formal build document describing the necessary steps for system
configuration and compilation?






	 	K.	 	Do you have an internal QA process? If so, please give a brief description of the
testing process.






	 	L.	 	Please list the appropriate technical person(s) Iron Mountain may contact regarding
this set of escrow deposit materials.





Please provide your technical verification contact information below:




	 	 	 	 	 
	COMPANY:
	 	 	 	 
	 

	 	 

	 	 
	SIGNATURE:
	 	 	 	 
	 

	 	 

	 	 
	PRINT NAME:
	 	 	 	 
	 

	 	 

	 	 
	ADDRESS 1:
	 	 	 	 
	 

	 	 

	 	 
	ADDRESS 2:
	 	 	 	 
	 

	 	 

	 	 
	CITY, STATE, ZIP
	 	 	 	 
	 

	 	 

	 	 
	TELEPHONE:
	 	 	 	 
	 

	 	 

	 	 
	EMAIL ADDRESS:
	 	 	 	 
	 

	 	 

	 	 






For additional information about Iron Mountain Technical Verification Services, please contact

Manager of Verification Services at 978-667-3601 ext. 100 or by e-mail at mailto: verification@ironmountain.com




 


 









 







ADDENDUM TO

IRON MOUNTAIN THREE-PARTY ESCROW SERVICE AGREEMENT




1. SOFTWARE DEPOSIT




(a) As used herein:



“Underlying Agreement” means that certain ORBCOMM Generation 2 Procurement Agreement, dated May 5,
2008, by and between ORBCOMM Inc. as Customer” and Sierra Nevada Corporation as “Contractor,” and
any amendments and exhibits thereto relevant to escrow deposits of any works as defined therein,
communicated to Iron Mountain as amended Instructions in accordance with the terms of this
Three-Party Escrow Service Agreement; and “Depositor” has the same meaning as “Contractor” in the
Underlying Agreement; and “Beneficiary” has the same meaning as “Customer” in the Underlying
Agreement.



(b) Within sixty days from the Effective Date, Depositor shall make an initial deposit that is
complete and functional of all proprietary technology and other materials covered under this
Agreement and the Underlying Agreement that existed on or prior to the Effective Date. In
addition, within thirty days of the completion of Critical Design Review, Depositor shall deposit
with Iron Mountain, and in accordance with the terms of this Three-Party Escrow Service Agreement,
copies of all work-in-progress on the matters listed in 1.1-1.5 below. Copies of all
work-in-progress on the matters listed in 1.1-1.5 below shall be provided in a mutually agreed upon
schedule, but no less frequently than quarterly.



(c) This deposit requirement is in addition to, and not a substitute for, the timely delivery to
Beneficiary of the same or similar Deliverables according to schedules established in the
Underlying Agreement. As between Beneficiary and Depositor, in case of any inconsistency between
the Underlying Agreement and this Addendum to the Three-Party Escrow Service Agreement, terms and
provisions of the former shall prevail.



(d) Whenever there is no substantial change in specific materials to be deposited pursuant to this
Exhibit from the deposit of the same materials made in the previous deposit, Depositor shall so
certify, in writing, to both Iron Mountain and Beneficiary; but it shall thereafter be the duty of
the Depositor, promptly upon any substantial change in said materials, to deposit a copy thereof
that otherwise complies with the requirements of the Three-Party Escrow Service Agreement.



1.1 FLIGHT SOFTWARE SOURCE CODE




The Depositor shall deposit on standard media a complete copy of the all work-in-progress on all
the Flight Satellite source code and software image files for each Flight Satellite. If the
software is different for each Satellite, then one work-in-progress baseline source code can be
delivered along with Satellite specific source code changes for each Satellite. The Depositor
shall deposit the relevant compiler and OS version information needed to recompile the flight
software image if required. The Depositor shall also deposit work-in-progress on modeling diagram
and software design overview information for all the flight software.



1.2 Payload DSP Documentation




The Depositor shall deposit all work-in-progress documentation for all DSP algorithms that
thoroughly describes the algorithms with respect to timing, sampling, and filtering and that is
mathematically rigorous in the documentation of collision detection, resolution, noise estimation,
and sync detection algorithms.



1.3 GSE Software



The Depositor shall deposit all work-in-progress on all the custom GSE software, Satellite
Simulator, and FlatSat GSE. The Depositor shall also deposit all licenses for any commercial
software products used for the GSE.


 


 









 





1.4 Telemetry Database




The Depositor shall deposit all work-in-progress on an electronic database file which contains all
the relevant Satellite telemetry in the agreed upon format. Details and format of the Satellite
telemetry database shall be documented in the Satellite Telemetry and Command Software Interface
Control Document, to be filed by Depositor and Beneficiary with Iron Mountain.



1.5 Command Database




The Depositor shall deposit all work-in-progress on an electronic database file which contains all
the relevant Satellite commands in an agreed upon format. Details and format of the Satellite
command database shall be documented in the Satellite Telemetry and Command Software Interface
Control Document, to be filed by Depositor and Beneficiary with Iron Mountain.



	 	 	 	 	 	 	 	 	 	 	 
	AGREED:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	ORBCOMM INC.	 	 	 	Sierra Nevada Corporation
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	Date:
	 	By:
	 	 	 	Date:
	 

	 	 

	 	 	 	 	 	 

	 	 
	ACCEPTED:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	IRON MOUNTAIN	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	Date:	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 





 


 









 





Exhibit G




SECURED CREDIT FACILITY




THIS EXHIBIT IS ONLY INTENDED TO OUTLINE THE MATERIAL TERMS AROUND WHICH A MORE DETAILED DEFINITIVE
AGREEMENT, WITH OTHER CUSTOMARY TERMS, CAN BE COMPLETED IN THE EVENT THAT BORROWER ELECTS TO
ESTABLISH THE CREDIT FACILITY.



Sierra Nevada Corporation as the Lender will provide a credit facility to ORBCOMM Inc. as the
Borrower, with a maximum sum available of $20,000,000.00 providing for cash advances during months
24-44 of the Agreement, subject to the terms set forth below. ORBCOMM will provide Lender 45 days
written notice of its intent to establish the credit facility.



The $20 Million Credit Facility (the “Credit Facility” or “Revolver”) will be subject to the
following covenants and limitations:



The Revolver will be subject to a borrowing base (the “Borrowing Base”) consisting of the sum of
90% of billed receivables, not more than 90 days past due. The Borrowing Base may also be expanded
to include collateral other than pledged receivables to the extent agreed to in writing by Lender
and Borrower, and subject to the maximum sum available of $20,000,000.00.



Borrower must have positive EBITDA as demonstrated at the close of the most recent fiscal quarter
and every quarter thereafter until the Credit Facility is paid in full.



The proceeds of the Credit Facility shall be used for making Milestone payments under the
Agreement, working capital, capital expenditures, letters of credit, and other lawful corporate
purposes.



Lender will flow down all applicable interest rates and the associated interest payment schedule of
such interest rates to the Borrower that are established between the Lender and the Lender’s Credit
Facility obtained from outside sources.



The Lender will also flow down arrangement and upfront fees to the Borrower on a pro-rata share of
the aggregate principal amount of the Credit Facility. The Lender will not flow down
administrative agency fees to the Borrower. The total fee is estimated to be 0.25% of the
aggregate principal amount.



The Lender shall receive a first priority security interest in all accounts receivables and any
other assets used to expand the Borrowing Base pledged by the Borrower and subsidiaries (the
“Collateral”) at the time the Credit Facility is established.



The Lender will be allowed to conduct due diligence to verify that Borrower has positive EBITDA; as
well as to verify the existence of the Collateral pledged during the due diligence process and from
time to time throughout the term the Credit Facility is being used.



The Borrower may prepay the Revolver in whole or in part at any time without penalty, subject to
reimbursement to the Lender of any breakage costs the Lender may incur with outside funding
sources. The Credit Facility will be paid in full, including any interest payments and any
expenses related thereto, within 30 days after the earlier of (i) Month 44 of the Milestone Payment
Schedule or (ii) the successful completion of Milestone 31 (SS#3 Launch).



The Borrower will provide representations recording the accuracy and completeness of specified
financial documents submitted to support utilization of the Credit Facility from time to time as
required under herein.


 


 









 





The Borrower shall provide, or cause to be provided, to the Lender the Borrower’s audited
consolidated/consolidating financial statements along with applicable compliance certifications
regarding the Collateral. As long as the line is being utilized the Borrower will provide the
Lender with a monthly A/R aging to support the accounts receivable amounts pledged under the line.
Covenants as to the disposition or pledging of Borrower’s assets shall be limited to the Collateral
and financial covenants shall be limited to maintaining positive EBITDA.



Events of default include, without limitation, the following: (i) nonpayment of principal,
interest, fees or other amounts; (ii) violation of covenants; (iii) inaccuracy of representations
and warranties; (iv) cross-default to other material agreements and indebtedness; (v) bankruptcy
and other insolvency events; (vi) creditor or forfeiture proceedings; (vii) actual or asserted
invalidity of any loan documentation or security interests; and (viii) change in control.



 


 









 






					
	ORBCOMM Inc.
	 	BAFO Process
	 	 






Due Diligence Checklist — Exhibit H




The items set forth in this checklist are requested with respect to Sierra Nevada Corporation in
connection with the proposed Gen-2 Procurement Agreement with ORBCOMM (the “contract”). Please
provide copies of the indicated documents or the information requested as appropriate which shall
be treated as “Proprietary Information as defined under that certain Agreement of Disclosure and
Safeguarding of Proprietary Information dated October 19, 2007.



	 	 	 	 	 
	Item	 	Notes/Status
	A. FINANCIAL	 	 
	A1

	 	Most recent audited financial report
(financial statements with footnotes) -2006.
	 	Posted in Data Room
	A2

	 	Unaudited financial report for most recent
fiscal year (financial statements with
footnotes) -2007.
	 	Posted in Data Room
	A3

	 	Unaudited financial statements with full year
Proforma for current fiscal year — 2008.
	 	Posted in Data Room
	A4

	 	Forecast/plan for the period of 2008-2009.
	 	Posted in Data Room
	A5

	 	Contact information for major suppliers/Team
Members of the contract.
	 	Posted in Data Room
	A6

	 	List of major customers, with contact
information — Top five customers based on
contract value.
	 	Posted in Data Room
	B. GENERAL CORPORATE	 	 
	B1

	 	Organization chart (including Board members).
	 	Posted in Data Room
	B2

	 	Certified copy of Articles/Certificate of
Incorporation and amendments.
	 	Posted in Data Room
Including Letter
from NV Sec. of
State regarding
1966 Amendment.
	B3

	 	Certified copy of Bylaws and amendments.
	 	Posted in Data Room
	B4

	 	List of subsidiaries, affiliates, branches,
partnerships, joint ventures, sales offices,
etc.
	 	Posted in Data Room







					
	 	 	 	 	 
	Confidential
	 	 
	 	5/5/2008







 Page 1 





 


 











 




					
	ORBCOMM Inc.
	 	BAFO Process
	 	 






	 	 	 	 	 
	Item	 	Notes/Status
	B5

	 	Summary of insurance coverage, including
casualty, business interruption, liability,
D&O, key man, etc. — company, agent, coverage.
	 	Posted in Data Room
	C. CAPITAL STOCK	 	 
	C1

	 	List of common stockholders, option holders,
warrant holders, preferred stock holders,
convertible debt holders, committed share
issuances, etc. (include amounts owned, date
of grant, vesting schedule, etc.).
	 	Posted in Data Room
	C2

	 	Copy of any agreements with shareholders
(e.g., voting agreements, registration rights
agreements).
	 	Except as otherwise
provided in the
organizational
documents, there are
no separate
agreements.
	D. TAX/Export Licensing	 	 
	D1

	 	Diagram of corporate structure and tax profile
of each entity (C-corp,
S-corp, etc.).
	 	Posted in Data Room
	D2

	 	Copies of all TAAs’ related to the contract
and contact name for customs and export
licensing.
	 	Posted in Data Room
	E. GENERAL CONTRACT	 	 
	E1

	 	Copies of all license agreements involving
patents, trade secrets, cross licenses,
trademarks, copyrights, licenses, second
souring, development arrangements (including
software), etc., both by third parties to the
company and by the company to third parties in
each case related to the contract.
	 	To be provided upon
execution of
contracts with
vendors.
	E2

	 	Copies of all lending agreement/documents.
	 	Posted in Data Room
	E3

	 	Description of any material joint ventures,
strategic alliance, and corporate partnership
agreements.
	 	None.
	E4

	 	Copies of all other contracts to which company
is a party which are material – Top five
highest contract value contracts with periods
of performance and contract value provided
cumulatively.
	 	Posted in Data Room
	E5

	 	Copies of final statements of work and
contracts with Team Members (Pricing items can
be redacted).
	 	Posted in Data Room
	F. PRODUCT/CONTRACT SPECIFIC	 	 
	F1

	 	Please provide an updated list the individuals
who will be working on the contract. For each
such individual, provide: (a) job title; (b)
present company and/or academic affiliations;
(c) company and/or academic affiliations; (d)
copies of non-disclosure agreements.
	 	Posted in Data Room






					
	 	 	 	 	 
	Confidential
	 	
	 	5/5/2008





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	ORBCOMM Inc.
	 	BAFO Process
	 	 







	 	 	 	 	 
	Item	 	Notes/Status
	G. PERSONNEL RELATED	 	 
	G1

	 	Summary of key management personnel (officers,
directors, others).
	 	As provided in B1, B4
	G2

	 	Summary of key personnel (engineering,
manufacturing, others) to be listed on Exhibit
C of the contract including names, ages,
responsibilities, educational background and
recent business experience, that are important
to this contract. Please provide an updated
organizational chart that ties into the key
personnel listed on Exhibit C of the contract.
	 	Posted in Data Room






					
	 	 	 	 	 
	Confidential
	 	 
	 	5/5/2008






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